ACTION AGAINST NEWSPAPERS

Hawera Star, Volume XLV, 17 October 1925, Page 7

ACTION AGAINST NEWSPAPERS

CONTEMPT OF COURT ALLEGED. ECHO OF MQUAT CASE. (by TELEGRAPH PRESS ASSOCIATION .) WELLINGTON, Oct. 16. The Court of Appeal was engaged today in hearing a motion by the At-ttorney-General (Sir Francis Bell) to attach Thomas Edward Robson, of Addington, Christchurch, and commit him to prison for publishing in the Star_ in August last certain matter in relation to one Lucy Prosser, a witness in the Mouat case, calculated to prejudice or interfere with the due administration of justice. The matter is as follows: Judge, Jury and Newspaper. Mouat Trial Incident. Improper Paragraph. "Before the proceedings of the trial of Frederick Peter Mouat were opened to-day, Mr Justice Reed, addressing the foreman of the jury, said: “It is only right to say that my attention has been drawn to a paragraph in one of the evening newspapers yesterday. I don’t know if any juryman has seen it, but it is a most improper one, and one that might influence some jurymen against an accused person. It is a most serious thing for a newspaper to publish anything like that in the middle of any trial, particularly in a trial where a man is being tried for his life. A paragraph such as that might have the effect 1 of influencing the jurymen. Fortunately in New Zealand respectable newspapers do not’'as a rule do that' sort of thing. We don’t want trial by newsFapers, such as there is in America. trust that you will discard any influence the paragraph may have had on your minds.” The paragraph to which his Honor takes, exception appeared in our evening contemporary. It was to the effect that one witness, Mrs Lucy Prosser, while speaking of her knowledge of the Mounts, spared many quick smiley for Mouat. ’ ; V .!

Arthur Davis Dunkiey, publisher ,of the Sun, was similarly charged with contempt in respect to a paragraph reading as follows: The last person who saw Mouat and his wife in company was Mrs Lucy Prosser, at whose house, 31 Beckford Street, St. Martin’s, the Mouats attended a party on the evening of February 19. » As she spoke of her knowledge of the Mouat s her. gaze alternated between the Crown Prosecutor and the dock. From under the brown, hat she spared many quick smiles for Mouat. During an interval when clothes were being sought in the trunks, she > gave each juryman a searching scrutiny.”

The Attorney-General (Sir Francis Bell) and the Solicitor-General (Mr A. Fair, K.C.) appeared for the Crown, Messrs Gresson and Hutchison for the Sun, and Mr TJpham for the Star. The Attorney-General said the matter had been brought before the court by direction of the judge and after the papers had been laid before the law officers of the Crown. A paragraph “Smiles for Mouat,” was considered a grave interference with a criminal trial. The witness was an important one, because she identified the clothes of the woman who had disappeared, and she went to show that the articles in the house were not all the property of Mrs' Mouat. The Crown did not rely on that, but contended that the report of the proceedings of a court of justice is privileged, but not while such are in progress. The reporter claimed the truth of the comment, hut such was irrelevant. If the report was untrue it, would have been am indictable offence. The comment was more than a suggestion that the witness was favourable to the prisoner. That was the obvious meaning of the paragraph. “The smile is a fact which evidences that the witness had a biased view, either for /the Crown or the prisoner,” the Attorney-General added. “We are apt to be led away by the well-known legal principle that a judge' may form his opinion of witnesses’ veracity from their conduct in the box. It is difficult not to contend that this conduct of a witness is not a comment on the opinion of a witness.”

The Attorney-General cited extracts fnom the judgments of Lord Hewitt in. the famous recent English case of Hobbs, the notorous swindler, where it was said that it is no offence to publish a full account of court proceedings, but where matter is published which prejudices or tends to prejudice a fair trial, then it is an offence. The Chief Justice (Sir Robert Stout) questioned whether the jury were allowed to have the newspapers, but Mir Justice Reed stated that in this case the jury did have possession of a newspaper. . ; : * - Mr Justice Sim said that if a judge refused to allow a jury to have a newspaper he would soon become very unpopular with juries. Mr Gresson stated that iri many cases now juries were even taken to pictures. The Attorney-General submitted that if the paragraph was comment, then it was contempt of court. If it .was n(ot comment their case' must fail. If it ■was comment that was likely in any way to prejudice the ease .'of either party to any extent in the eyes of the jury, then it amounted to contempt of court. If the truth were told, and that truth amounted to comment, then the comment was prohibited, and the sooner newspapers knew of it the better. Most of the cases on the point related to publications before trial, and not to publications during the course of a tria l , but he cited an English case, wherein publication was made in which depreciatory remarks were made concerning the truth of a witness by a newspaper that a new trial was pend-

ing, and the court, held thepaperguilty of contempt of court. , Mr Gresson stated thit the defence was based on."two; grounds, : (1> Courts sit . with open doors and newspapers have the right "to publish a fair and accurate report of what takes place; (2) the- right to be tried by regular tribunals of the land and rtot under exceptional summary tribunals. ' “The on" the' fact,” said counsel, “that although one can give a fair and; igqcurate account of proceedings, as soon .as anyt'hjng, in the nature 'of'“eahiihexrfc occurs J it iis ' barred immediately/- whether"the truth or not. The - fact- (that-witness . smiled at (prisoner was merely a statement of fact. If the paper ..published rthe fact that witnesis during the evidence shook her fist at prisoner, that clearly would also be a statement- of; fact j yet undoubtedly a newspaper has a perfect right to publish the latter ’ statement/ and both are the'.same.'’'

Sir Robert ( Stout , asked Whether this was a new ,method,.of smJling. j Mr. Greisisoii submitted -that both stood on the same' ground ■as .being statements of facts. The, fact"-that, witness .smiled af the jury was ,® fact of which the’jury " should he made aware, whether they became aware through counsel, judge, their own observance or through, the-, newspapers! .-Suppose-a' witness turned ro.und . and said to, the prisoner: “You’re a liar and" a rogue!”. l Without doubt-this would be legally reportable. There’.was no doubt that a smile was a fact,, and rib"-was exceed? injgly diffiicult'to draw a', line between fact .and comment) ’ - Mr. Justice Adams i'“To take a classical example. In Bunyan’s Pilgrim’s Progress, Christian asks of Air Wordly. Wiseman : ‘ls not the way dangerous?’" The answer was:’- ‘Not very dangerous,’ but he blushed when he spoke.. Surely the ibluish in this .case is- comment upon the truth of his’ answer.-Vf-:- , Mr Gresson submitted that there jhacl been no ..previous cases' 1 directly in point, and asked that the" doctrine of contempt" should be extended.v~ It'wa% absolutely within the powers . of, the court to extend the doctrine to smoking in the corridors of the court". 'Mr Justice Ostler .stated that" most of the court had been guilty of ..that, except,, perhaps, the CJhief Justice. Mr Gresson said the statement appearing in the papers, in .thiscase would have passed the observation of the*general public and most lawyer® as. regards being a comment.

Mr Justice. Reed. stated there was.-a gnave danger in this case thst the prisoner might be wrongly convicted and that the published statements would, affect the ; verdict Of thb jury;- - >•’ Mr Gresson r “If the. report of the case is a fair and /accurate report of the eaise, then,' even although the statements .show that' witness is biased, the publication is. quite legal and does not ‘ amount to contempt, off court.” :i ''.v' -• •• • . .*

Mr Gresson proceeded, to, jarguo .the second point of his defence that this method of summary piktffe'du re' by motion was discretionary, and that in this case the Mouat, trial- being dead and there being .nothing tp,. be ■ gained-d>y-such procedure, the defendants, should ' have been left to-stand , their trial by jury under, .the: Crimes..Act...Air; Gresson'said that if ,the; <qoprt , found, the. ? Sun guilty of' contempt, then he would' like to express "the Sun’s'regret for what had occurred. He ■- wished ’ to state that if the publication. was xe?> garded as 'contempt, then it was quite inadvertently published/ and;the management of . the'.Sun’liad asked him to express its regrets..,. ;; v;,. IITT-fIATt/ Mr. Upham (for the Star) submitted that the offence alleged was of ial different nature from that alleged against the !Sun. It ‘had to bet, assumed that when the judge, , ,pn. , ( the. . .morning ; of : August 25,. remarked on the offending paragraph, he wished What lie had .said to be made-public. ’ Ass' the judge did not expressly state what was. wrong with the paragraph,- therStan-had-,cop-w, • sidered it necessary to' put hi an exj planatory note about it. ' . The evil. which, the learned judge complained about was the .publication: of matter during the course of the trial which might possibly “influence '' > the jury. At the .time the-explanatory note was published by the Star there was no opportunity or that paper coming before the notice of the. jury, until., after the verdict had been given. There-' fore the evil-of which-the judge-com-plained did not. exist'.in the case' of the Star. The necessity for the Crown's summary jurisdiction was that there alrwp”s should be; a short, sharp and - prompt remedy available to protect the fai r adm i n iistratio n. of j u stioer d uring a CS*i-. . # - v-’' ■‘ ■' V V V*^ * * It was possible to poison the tain of justice before it began to flow,but not when the stream had ceased to give effect to the summary remedy,-,-It-: was contemplated that the judge of the court where the contempt was committed would he the judge to deal-with' it. Such a form of contempt should be dealt with on the spot. If the court , found that the Star had committed* y contempt, he was -authorised to express regret. . • s Mr. Fair, in reply, stated that cel for the defence were relying on lack of interest to commit contempt, and that in such a case as this it was perfectly clear that there was no intent to commit a crime.. This court./was_a>... much better tribunal to determine the ° i. effect of such -a-statement, as this , under question than a common jury would be. Decision was reserved.