LIBEL CASE.

Lyttelton Times, Volume LIII, Issue 5951, 23 March 1880, Page 6

LIBEL CASE.

(Before G. Iv Mellisb, Esq., B.M.j John Ollivier, aad G. L. Lee, Esqs.), The case of Stead t. the. Directors. of the Otago Times, and Witness Newspapers Company (Limited), which had brfeh adjourned from Friday, for the appearance of the six of the defendants, was called on at the Ilesideht "Magistrate's Court at 3,20 p.m. yesterdav. ’

Mr Spackman appeared for the complainant, and Mr Garrick appeared for; the defendants, only one of whom (Mr Fenwick) waspresent. 1 The Bench Landed to Mr; Spackman a letter which had been received hy the’ magis-; trates'from the absent defendants. i Mr Spackman perused and returned it wilt a “ Thank yon, your Worship." t ' His Worship called the defendants, i Mr Garrick said he appeared foij thein. Mr Fenwick was present j, of the others Dr HOcken had informed him that he was in the middle of an inquest at Dunedinthe 'remainder had raised tlio'question of liability. ; His Worship said he had received a letter from Mr Smith, the tone of which showed the' scantiest courtesy, and its statements were hot in accordance with facts. i Mr Garrick said he had undertaken as far as ho could to be responsible for the appearance of the defendants. He did not know what the Court would expect of him. ’ ’ Mr Spackman said he had received telegrams from Mr. Smith stating that the defendants would not appear. He had also received an extraordinary letter from ; Messrs Garrick and Cowlishaw, drawing his attention to the 42nd clause of the Justices of the Peace Act, and urging that the offence charged had not been committed within the jurisdiction of the Christchurch Besident Magistrate, and that the defendants did not reside within it either, and concluding by cautioning him that if a warrant were; applied for it would be at the peril of all the parties concerned. , Ho. referred the Bench to a case in Eoscoe, “ Begins v. Nell,” as a guide to the course the Bench should now pursue.’ His Worship expressed his surprise at the course adopted by the absent defendants. The letter he had received was, to say the least of it, written in very questionable taste. Mr Spackman hero handed to the Bench two letters from Messrs Beynolds and Smith, which he said were “ contempts of Court.” His Worship asked if Mr Spackman wished to put the letters in. Mr Spackman thought the Bench should know their contents. Mr Garrick asked to see them, and they were handed to him. Mr Spackman said he was prepared to go on with the case if Mr Garrick did not object.

Mr Garrick did not object. Mr Spackman then opened for the prosecution, reading extracts from tbe Otago Times of Sept. 13 and Nov. 1, which he contended led up to the libel, the subject of the present action, and showed the animus of the writer. (The libel, published on Feb. 7, appeared in pur issue of Saturday last.) The “G. Fraser ” of this libel was well known to be the prosecutor, who had taken all the necessary steps to secure that be should not proceed against the wrong persons. The Directors of the newspaper company, however, had persistently refused to give up the name of the writer, and the present criminal proceedings bad ultimately been taken. In the correspondence between tbe legal advisers of the prosecutor and the defendants, it was suggested that the writer had added to his libel the additional insult of posting the newspapers containing them to the prosecutor, marking the passages. This, the prosecutor contended, was a further proof of malice. Mr Stead had expressed bis willingness to be satisfied with a public apology from the writer and the payment of £25 to a charitable institution in Dunedin. Learned counsel, after quoting tbe law of libel as laid down by Chief Justice Mansfield and others, stated that even now prosecutor would withdraw the information if the defendants would give up the name of the writer and pay the costs of these proceedings ana furnish the necessary proof of the writer’s identity.

Mr Garrick would like to have time to consult his clients upon tbe offer now submitted. He did not think it likely that the defendants would accept tbe terms offered. Personally, he might say that he would advise his clients to give up the name of the writer. He had, however, been taken by surprise by the proposition.

Mr Spaceman said the Managing Director had had a similar proposal made to him more than once. His Worship considered that, the Managing Director would of course not think of accepting the terms without consulting with the other Directors. , Mr Garrick supposed the case would have to be adjourned. Mr Spackmanj.would oppose an adjournment. ■Mr Garrick s I can do nothing without an adjournment. My learned friend must go on. ' Mr Spaokman then called the following evidence: — Mr Stead, merchant of Christchurch, deposed: I am a member of the Canterbury ■Jockey,Club; I run racehorses. My registered name is Mr G. Fraser. I pay an annual fee at Dunedin for registering that name. ‘ Mr Garrick: I object to that, unless it can he shown’ tkat this was- known to the Otago Daily Times. Witness: The horse Longlards belonged to me on Feb. 7, 1880. I have since sold him.

jo, I purchased-a copy of the paper produced in jf Christchurch.- i Mr Wynn : Williama has the id paper I purchased. ----- „ ■■■ bo Garrick! r Y6uoanpotsaythat. , jf WlthossV Ycßil oaii.' > ■ ■ >e Mr Garrick TNo, you cannot, , i io Witness': .TspeaJc from memory. Mr Garrick i It has nothing to do with a, your Memory. The popor must bo proved in n the proper way./ ... , r> Mr Spaokman here put in affidavits to make e the newspaper admissible. . i o' Witness: I purchased two copies,; one of j, which I have. ' ' 11 ; , d Mt Spaokman: Never mind. [.; Mr Garrick: He'must talk, e Witness : So must you. > Mr Garrick: At the proper time. i> Witness : And now, too, it seems. : - Mr Spackman handed in a copy .of the s paper. t a Mr Garrick objected. , Mr Spaokman rend an authority iff support r of his Potion, ,1 .. . b Mr Qprriok objected till it was shown that the paper was published within tho jurisdiction of tho Court. ■ , Mr Spaokman was prepared to provq that. Witness: The libel produced does pot con- • tain a particle of truth. At least, portions of' it, such as my owning Louglauds, are true. • Cross-examined : The latter portion is untrue. I am registered at Dunedin as “ G. Fraser,” instead of in my business name. It is a family name. It is a common ‘thing to, ■ do in England. 1 have run horses in Mol- ; boiirne and Sydney Under tho same name. Bichard Shannon, bookseller and; newsvendor, of Christchurch,.deposed: lam the agent in Christohuroh for the sale (of-the Otago Witness. I don’t know of any other authorised agent. , S ’ Witness to His Worship: I have lost two davs, your worship. . ! His’ Worship: Ah ! that is another question. (Laughter.) , ; ,1 Mr Beeves, newppaper proprietor, deposed s I have been connected with newspapers about; 20 years. I have road the article in question, in the Otago DailgTimst. Mr Spaokman; "What do you,consider it? ’ Mr Garrick : What, do you well written? s His Worship: I. suppose you want to know what impression it would make on the mind of a reader.” , | MrS pack man: Do you consider it libellous ? What charge do you think it makes ?; , • ~ Mr Garrick obj ected .that this was a' question for the Bench to answer. . • :Mr Spaokman wanted to learn what a dis- ■ interested person thought of the article. Mr Garrick uigod, that another I person might have a different opinion as to the meaning of the article.. , ’ His; Worship thought-it very easy to arrive at tho meaning of the - article, but was it fair ttf ast ; a; witness what his idea was ? I . . ‘Mr Garrick read from Koacoe to shoW that it was for the Bench, not for the witness, to ‘ decide the meaning. Perhaps the whole point lay in tho meaning of! “ landing a moral. , Mr Spackinan wpuid put it another jway. His Worship thought it competentfor the learned,counsel to ask the meaning landing a moral,” but he did not think there could be apy doubt as to the meaning of the paragraph! ‘ It was perfectly clear ; to his mind, so long as “lauding a moral” meant “ a certainty.” ! Witness, totho Benclil take it that landing a moral is synonymous with “a certainty.” i His Worship: I cannot see any doubt that the article reflects very severely on tho prosecutor’s character. s . Mr Spaokman: That is the case for tho prosecution. , , , 1 Mr Garrick subsatted that there was no evidence of ah offence within tho jurisdiction of tho Bench to justify a committal, and quoted section 42 of /the Justices j of the Petice Act. Mr Shannon had proved'thatie was agent, but no evidence had been given that the paper had been’ purchased at his place. There was also ho evidence to connect Mr Stead with. G! Fraser. Nolibclcould be oommUted. against an alias unices it was shown that the writer knew that the. person libelled bore the nom de guerre. No evidence had been given to show that the defendants knew “ G. Fraser” to he .Mr, Stead. The. Bench , should be careful /that there was a primd facie case proved. ■ There, was technically no publication proved; and no proof that the defendants knew that Stead and Fraser were the same (persons. 1 With regard to the question of jurisdiction,; learned counsel quoted Judge Chapman in “The Queen v. Strode.” It was not at all clear that the defendant now before the Court was connected with the libel. He quoted “The Queen v. Holbrook and others,” &c., Tor the purpose of showing that for a facie case the fact of the directors appointing an editor did not show that, they were criminally responsible for his publishing a libel. They only appointed him to act lawfully. This was, however, a question, he admitted, which could only arise on the trial in the superior Court, but he quoted it as an indication of the state of the law. In a civil action intent was not necessary, but in a civil case such as the present it was essential. He submitted therefore that no primd facie case had been shown. . Mr Spaokman could not see how the other side could raise the question of jurisdiction after having asked for a' remand. : The Bench said that it had hot yet been proved that the paper containing the libel had been purchased in Christchurch. Mr Spaokman said that all that tvas necessary was to prove the publication in Christchurch, This had been done. With regard to jurisdiction he quoted several cases. His Worship said there was a sort of hiatus in the depositions. Mr Stead did hot appear to have sworn" that he had purchased the paper in Christchurch! Mr Spackman said it had been omitted from the depositions. Mr Stead had certainly said so in his evidence. His Worship thought Mr Stead bad better be re-called, Mr. Stead (re-called) ; I purchased two. copies of the Otago Witness of F«b. 7. One of them I gave to Mr Wynn Williams, the other one I have in my possession. It has never been out of my possession. Mr-Spackman continued his address. He quoted “ Begina v. Burdett ” on the question of jurisdiction. As to the liability of the defendant Fenwick, he quoted the Act. With regard to the identity of G. Fraser with Mr Stead he quoted “Begina v. Cobbett” to show that it was for the defendants to show that the identity did not exist. He concluded by quoting the law of libel as laid down by Folkard. , Mr Garrick rose to address the Court, but ‘ Mr Spackman objected. Mr Garrick asked for leave to reply upon a case cited. , Mr Spackman contended that he had only i replied to the objections made by his learned friend, who could not again address the i Bench. , The Bench thought it not necessary to keep very strictly to the rules. , Mr Garrick submitted that as a matter ofi law he had a right to reply to a case cited. ~ The Bench overruled the objection of Mr i Spackman. , Mr Garrick submitted that the other side • had not ehown that it was, unnecessary to prove that Stead and “ G. Fraser ” were • known.to be the same person, » Mr Hellish considered that a person writing on racing matters would be presumed to ; know who“G. Fraser” was. That,however, • would probably be a matter for the Judge of i the Supreme Court to decide. He did not feel any hesitation in saying that a primd i facie case had been made out, and the defendant must go for trial. . • Tho depositions were read over, and tho defendant having been duly cautioned was i asked what he had to say. , Ho replied that ho had nothing to say at ; present. . ■ Ho was committed for trial at the next ,- session of the Criminal' Court., in Christ- ’■ church. ■■ ■ - ■, ■! i ■ i . ■ ■ ■ His Worship: Now with regard to the L other defendants. . Mr Spaokman: Idon’t know yvhat course t your Worship intends to [pursue. ? jW’otddjpn-. > .allow me, two or three minutes for .consultation with my client ? > After a brief absence Mr Spackman re- . turned and said : With regard to the cases

: egainst the other HWoiors I am, quite “/sure that your Worships satisfied that -M? Stead has been solely wiau to set his character right with his From ■the very beginning, this le%r» jwhwh.have, nid will show that it was not his intontion o more than show that, „thero not a morsel of tnith in' the .aoquaatiqn# made against him. The defendan^who. has appeared has been committed for trial, and, under.the oiroumstancos, 1%; Stead oohsideri that ho will have every opportunity of haring his bharacteir set right when the trial oomes 0n.., He also considers that if he insists upon proceeding against the other defendants it : will be thought that a certain amount of animus will bo shown by him.. AftePith(» way in which the other defendants haVq treated you, are your Worships willing to allow the oases against them to be dismissed? Mr ,is filling to ask for the withdrawal t of .thh ; informations. After the contumacious riay in which they have treated you it is for you to say .whether you will allow the mthdrawol, Or will; show the defendants that they catanot with.impunity treat this Court mjthe manner they , have. done.' Seeing that , the other ! Directors have appointed; a Managing Director, and, that, they are not responsible to .the same; extent: that he|;is, ,r r would ask your Worships touse your discretion's to the withdrawal of the other informations.! ; Mr Hellish said t ; The. Benoh, is .willing to, ’allow-; the course, suggested to, be -adopted, and I have, only to, say that,had that oourse! not been adopted, warrants would have been issued fort the; arrest of the i remaining defendants, and they; would.have been'brought up in ouetodyunless. they obtained ,bail. ,One of them: certainly,. Df Hooken, does . give some explanation ,of his nomattendanco through, his solicitor. I presume the statement made is correct; aB.l knoW;he:ißf Coroner, jin JhiHj case, therefore, probably a warrant would not have been! 'issued. i But' in the case lof the others it would. Mr ■ Smith; lias seen fit to write a letter,’which can only bo/charaetarjsed as a gross piece.of • I presume he! has not been aooustomed ; to .much, courtesy, and therefore does nob know how to write a courteous;letter, 1 I do not wish, to: speak vory gtronglyof it, or to treat it as contempt, of Court. I can only cay. it is a gross piece of bad taste in a ’person in', his position.. I understand that ho is in a tolerably good position; and I afli only surprised that ne should! have been jguilty of so gross a piece ;of bad taste. The charges.wiil be withdrawn in the, other oases. ■■■ ... Mr Fenwick was bound over in his oWn recognisances .to come up for trial. j

NATIVE LANDS COURT, KiIAPOI. '

This Court again sat at 3 p.m. yesterday in the Resident Magistrate’s Court,: before. His Honor Judge,' Symonds and Mr Uoani Taipua, the Native -Assessor. Mr Edward Hammond acted as Native Interpreter. 1 The question 6f admitting-G.-P. Mutu as one of the claimants was then considered, and in reply to His Honor, the Natives,: stated that they bad had a meeting and had decided not to admit him. ■ ; >

The Court informed G. P.'Mntu that as he had no standing on the land according to the Act, an 4 as his friends had declined to admit him from Ardha, his name would have tpbe struck ofiE-acpprdihgly,... , . . . j .-.,,,i The Court then proceeeded to find put those, Natives who were suffering under disability, as infants and insane persons, and the nature of the disqualifications, together with their ages, was marxed; against their names in the, lists already given. <> The .lists pf the claimants from . the following, hapus,. viz,, Ngatihuwhia,„ Ngatiwaewae, Ngsitamahaki, Tuapaoa, Teataumarewa,.Ngatijiikbata, Terangiwhakapufa, Tuteukuha, Ngaiteroki, Tahupotike, and Egaiterangimoa, showed the total number to be. 159. The Court adjourned at 4 p.m. till 10 a.m. to-day. 1 ; '