THE SLANDER CASE.

Hawera & Normanby Star, Volume LXIX, Issue LXIX, 19 May 1915, Page 6

THE SLANDER CASE.

CARROLL V. GARDES

JUDGMENT FOR THE DEFENDANT

On Tuesday afternoon Mr Kenrick, S.XL, delivered his reserved decision in this case. His Worship, after quoting the statement of claim aoid the words in respect of which slander was imputed, proceeded: For tha defence Mr Sellar contends the communication of the above words were privileged, except in the case of Edwards. Secondly, he pleads justification. If the truth of defamatory words are proved it is a complete defence to a civil action for libel or slander. Section 101 of the Judicature Act, 1908, expres&iy provides that unchastity or adultery imputed to any woman shall not require special damages to render them actionable. The defendant does not deny' using the above words, which clearly impute adultery by the plaintiff with a man named Corrigan, but he- contends they are true.

I will deal with the question of privilege first. After considering the evidence before me and the circumstances surrounding the publication of ths above words to each of the* above persons, I come to the conclusion, firstly, that the publication to Joseph Butler was privileged, the defendant at the time being an elder of the church, and the communication of the words to the minister of his church are proved to have been made in confidence, and apparently in connection with Mrs Carroll not being allowed to take part in church bazaars. Mr Butler says part of the conversation with defendant was privileged communications in the nature of a confessional to 'a minister, and declined to state the whole conversation. Secondly, I am of the opinion that the communication to Constable Hadler was privileged under the circumstances they were made. Defendant Garden had received a letter of demand for £200 damages from plaintiff's solicitor, and he went with it to Constable Hadler and asked his advice, told him the nature of the words used, and said they were true, and that he was prepared to face- plaintiff and tell her so. Thirdly, I think the communication x to John Carroll, plaintiff's husband, of the above words was privileged. Defendant visited John Carroll by request and during the conversation told him what he (defendant) could say would be no use to him (Carroll) in the maintenance case brought by his wife, but it might be in a divorce case.- Defendant finally told Carroll on a promise that ha would not use. the words against his wife. In regard to v the words being communicated to Joseph Archbold and James Edwards, I think under the circumKtane.es they were told that' they were not privileged, and although one* of the parties was a church member there was no duty or necessity to tell him.

I have now to.consider whether the words' used were true; if they are proved to be true, .as already stated, it is a complete defence to the action, irrespective of whether the communications were privileged cr not. Defendant ha§ refused to withdraw or apologise for using the above-mention-ed words on the ground that the statement was true. Thfe evidence in support of the words being true is. that of the defendant alone. There are some circumstances brought out in evidence which support his statement of having seen plaintiff in or near the manse grounds just prior to the alleged misconduct, and of seeing a man leave her. Defendant says he mistook the man for plaintiff's-husband, and said "Good night, Mr Carroll," the man replying, "Mr Carroll is not at home.' Defendant swears positively that he saw Mrs Carroll's face when looking through the cracks of the shed at the time when he says she was with a man at the back of the manse shed in her own grounds, and when they had improper relations, but defendant is not prepared to swear it was Corrigan; he says he could not see his face when they were on the ground. The evidence gtven by the defendant impresses mo with being honest, nor do 1 thinkin any way that he told untruths: but it is clear that he is a man with verv •strong feelings on the question of immoraliry, and he certainly was verv indiscreet m the way he acted, however good his motive might be. The evidence is too long to go into in detail m my written judgment, and therefore i shall only refer to some of the evidence. Defendant says he went to look at some stock he had on the- manse section, and as he entered the gate he saw a man and a woman a little way apart, walking away from each other This was on sth February, 1914, about ».lo p.m. Plaintitf says she did not then see defendant, but at quite a different date, and that there was no man with her then. Defendant recognised her. and spoke to her, and says she then went into her house in. the adjoining section, and banged the door three times, which made him suspicious. ■ I am satisfied defendant did i see the plaintiff as he said .and on the date he says. Plaintiff's evidence was most unreliable. She contradicts her husband; she also contradicts the witnesses for the defence, or says she does not remember the questions she should remember from their very nature. Defendant further says plaintiff came out ot her house within five minutes and approacaed the manse shed, which is on the boundary of plaintiff's land, and stood within three feet of the shed in wmch he was standing and looking through the cracks, and that he then recognised her, and that the man he had seen m the section returned and met her there. Defendant says he did not see the man's face, Wit being moonlight he saw Mrs Carroll's distinctly and described the cloak she was wearing and its color. Comgan denies taat he was there that right and says he remembers the sth "ebruary that he returned from the rac^s to Nor' nianby -and was lcokin- few a horse he had lost, from 9 p.m .io 10 p.m that night _ Defendant says further that the plaintiff and the in.-sn wore lying on the ground within four feet of the shed and he could see the wom:i»i's face distinctly, and that they J :d improper I relations on three cessions whilst) there.

A considerable amount of evidence has been called, to prove defendant could not have seen v'c.i.l he says he aid through the crack*, bui the evidence Mas mostly gm-v ou lhe con . tluion of the shed more than tvelve months; after the even, .nd then it js admitted there wciv <••• ~-;cS and a person could be seen ".};■ ., -^h. them it is a question of \vh.-i !i- - ; I can belieye defendant's evid-:.i-.- •.> be true Jionvithstanding^ a. der-.^l :-.x plaintiff1 and Corngan. Did de!,,.; :i ;:fc actually see what ha states ho <■': : .-. r has he imagined it, or sworn £:V:-\jy? | 1 came to the con :.' ..' that his B^.Toment piib.li^.c-d ir. ■ ;:,. , !;U 1 whieh h- admits jiavmg mad- ,■ ie in a \\ r^perts except that i.. -~t proved tjjflt. lat..K;k Con :<:«:-, . ... 'i-he man w:th jilamtilF «t th.o !.-■ ■ ' .. the shed a:-Ki \\-ith whom she ha •.• •■.r-r r^ation?. There .iro oiix-iu ■'. ' ',roi: £ rlit CV-; in the nv-:-b:if.o v ,-l : • ■-•;.: f .j- e at<? stit::i- siis.ni.-i,--?! thnt ? . ■ :J !0 man, I "i:- n°t syifi.-ieiu- to , ■~ i s t} lc . lnnn. Iho eviuonce pi- \.. t a mnn was in the section of •; nse that evening, and lavor a -.vm ■.^ at the back of the shed with ••'.:<■ Iff, with whom she had improper r-!:'.i-?ns. Cor-

rigan admits he was looking about for a lost horse in -Norntanby the- same evening, and" 'Standish, in his evidence, says & Corrigan told "him ■-he had slept with Mrs Carroll, and - the admitted* fact that Corrigan had boarded at plaintiff's place, and thai her husband was away one .week" whilst he was boarding theie —the)>e facts combined, may create a strong suspicion that Corrigan was the man defendant saw, but it does not prove it. The law is that the hill-den,is on the defendant of satisfying the jury that the statement which is justified is true in substance and in fact, and I think defendant has done so, except that defendant has stated that Corrigan was the man plaintiff had misconducted herself with, whereas the man's name is not proved. This may affect Comgan, but whether it was Covrigan or another man can make no difference to plaintiff's re-m- ;- tation. If the statements made had imputed the commission by plaintiff of a criminal offence, then the defendant, to succeed on his plea of justification, must prove the commission of the offence charged as strictly as if the plaintiff were being prosecuted for .the offence, but in other cases the proof required is perhaps less staict. Had defendant failed to have proved the truth of his statement, the damages plaintiff would have been entitled to must necessarily have been nominal in my opinion, for her character has been proved to have been bad; she admits that she swore at her children and used certain words that could onlv be classed as obscene to them. She admits Corr.igan lived in her bouse one week whilst her husband was away, when only herself and "children were there, which would indicate that she did not value her reputation very highly. Her sister. Miss "Walker, says she complained to her sister, but plaintiff says she can't remember what the complaint was. The only other, fact proved which I think shoald.be referred to, is that Conigan is paying, if not the whole, a considerable part of plaintiff's costs of this action. In answer to a question he says "I dou't know whether 1 am going to get some of the damages." The witness Standish says Corrigan

said to him, when he asked if plaintiff was bringing an action against defendant Garden, "Yes, let the old b prove his words; I have a parson and a bobT>y on my side, and stand to make £200, which was better odds than horse racing." T mention this matter, as it appears to me the evidence runs very close to proving a case of maintenance or champerty, which is a public offence. Corrigan, on his own admission, benfrs a shocking character for immorality, and .the evidence convinces me that plaintiff was aware that his moral character was not good. For the reasons above, I give judgment for the defendant." The costs are to be fixed on Thursday morning, Mr O'Dea to have the right of appeal. Ho intimated his intention of doing so.