THE New zealand Herald AND DAILy SOUTHERN CROSS. MONDAY, SEPTEMBER 27, 1880.

New Zealand Herald, Volume XVII, Issue 5885, 27 September 1880, Page 4

THE New zealand Herald AND DAILy SOUTHERN CROSS. MONDAY, SEPTEMBER 27, 1880.

o ; The proprietors of the Sydney Evening News have beehfined .£2soby , the full Court for comments in a leading' article on Mr. Justice Windeyer's summing up in the case of Moy Mow v. the Sydney Daily Telegraph, and the circumstances and the largo public question the matter involves, are such as to call for comment. The decision raises the issue whether the Judges should possess the power they have exercised in this case, and the mode of its exercise. Two extraneous subjects were introduced into this question which, however, had better have been omitted— that the temporary .appointment of Mr. Windeyer had been objected to by all the Sydney papers, as showing n reason for his summing up against the Telegraph, and that the Evening News, having, on several previous occasions been cast in damages before the Judge, seized the case of the Telegraph as an opportunity of " taking it out of him." Imputations of this kind cannot be provedj and their consideration would only weaken the facts. That the summing up of Judge Windeyer was grossly unfair to the defendants it would be impossible for anyone rending the evidence to doubt. Material facts favourable to them were not alluded to, the points that told against them pressed on the attention of the jury with remarkable persistency, and the Judge adopted the indefensible course of suggesting to the jury, and. without a scintilla of proof, that the habits of the defendants' chief witness might not be what they ought to be, and insultingly commeEited on his personal appearance. There is no question that he is a respectable man and a capable reporter. It may be stated that Moy Mow brought his action against the Telegraph, alleging that words appeared in a report of a case of his which were likely to injure him, and had not been used. It will be seen, therefore, that the insinuations of the Judgo against tho reporter were likely to discredit him in the eyes of the jury and seriously injure' the defence. • The Evening Neivs, commenting on the summing up, charged Mr. Windeyer with "judicial incapacity" with delivering "once more a bitter and one-sided ad\'ocate's speech," with "demonstrating his utter unfitness for the judicial office," remarked that his speech " was a degradation of the judicature of tho colony," and concluded by remarking that justice could not be expected to result from a trial before Judge Windeyer. This last remark had perhaps better have been omitted, but the others appear fully justified by Mr. Windeyer's proceedings. Only very exceptional circumstances can over justify such stringent comments as these on the conduct of an occupant of the Bench, but no other conclusion can be arrived at on the facts than that the Judge had not a leg to stand on. It is not disputed that the journalist is entitled to condemn tho proceedings of a Judge, but that he exceeds his right when he imputes corruption. Mr. Wendeyer's associate was instrumental in bringing the proprietors of the Evening News' before the other Judges for contempt, and counsel for the defendants disavowed all intention of imputing corruption, held that the article; did not do so, but offered, if the Court thought otherwise, to apologise. They, at the same time complained that they did not know what they had to answer, that there was no allocation as to what constituted the contempt, and so they were robbed of all opportunity of making a defence. It was insisted that the course taken against tho Evening News was obsolete, and it was pointed out to the Benoh that they occupied the anomalous position of prosecutor, judge, and jury. It was urged that if the disavowal of the imputation of corruption was not accepted the defendants ought to bo allowod to justify. The conduct of some of the Judges on the occasion of the first appearance before them of the defendants to a great extent justified the remark of counsel that they could not be considered an impartial tribunal when one of their number was concerned. The Chief Justice showed marked asperity, and Sir William Manning made the astounding statement that '' he would stand by a brother Judge," an avowal which Mr. Justice Fawcett for his part instantly repudiated., Such a statement from Sir William Manning is a conclusive proof that so far as he was concerned, he was not in a frame of mind that made him fit to sit on the Bench. On that point, we apprehend, there can be no doubt; he ostentatiously allied himself with Mr. Windeyer. The decision of the Judges by which the Evening iVeius ia amerced in the sum of

£250, is one which it is to be hoped the I Press of New South Wales will not allow to rest where it ia. If there is any esprit de corps, any adequate sense of the privileges of the public journal-only another name for the public-it will with persistent and steadfast courage pursue this matter to the bitter end. with the object of limiting the power of the Judges in dealing with such a caso as this, it is imperative that they should possess the power of committal for contempt ; it is unfortunate that it should be so but it is inevitable. It is not inevitable, however, that they should possess such power as they have exercised in this case, or possessing it be permitted to exercise it after such a fashion. It is true that the English Judges possess it ; but there are two other truths, that they have ceased to use it, or never use it, in the form adopted in Sydney, and—with all respect to colonial Judgei—that there is a vast difference between their fitness to possess the power and the eminent men who grace the English Bench. We are far from desiring to disparage colonial Judges, but they would be the last to claim a similar eminence. The wisdom of bestowing so great a power must depend upon the calibre of the persons who will have to wield it, and we are disposed to think that this calibre is frequently wanting in the colonies. Respect for the Bench, a firm conviction of how important it is in the public interest that its authority should be upheld, and the position of its members be kept unimpaired, does not preclude us from giving expression to what must be deemed an obvious truth. But were colonial Judges the equals of the English Judges in all the qualities required for the Bench, it is unfit as regards the Press that it should be placed utterly and entirely at their mercy, as was the case of the Evening JVeivs. The men have yet to be born to whom such a power could safely be entrusted ; indeed we should want a new creation. The commentator on thfl conduct of a Judge, however imperative the duty, discharges it at the peril that he will have to appear before his fellow Judges with all the probability of their bias and sympathy being against him, and without the power of justifying his remarks unless the Bench choose to concede it. Every word that may have been written may have been true, and the publication necessary, and his only absolute privilege is the mockery of apologising for that which it was proper and right to say. Any Judge has thus the power to oppress or even ruin a paper, and since the Evening Neivs has in this way and under these circumstances been fined ;G2sfl, the Parliament of New South Wales, should be.called upon so to limit the power of the Judges as to permit defendants justify, hedging round the limitation with all the restrictions necessary to maintain the position of the Bench, for it is quite as necessary to maintain this, as the journalistic privilege of independent comment. The journalist has no greater privilege than any other member of the community, not one whit, and so he is entitled to no less, which includes that of defending his proceedings. Wβ by no means say that the comments of the Evening News were discreet. All that was written might have been expressed with equal force in different terms. But the rights of the public journal were not exceeded, its privileges not exaggerated, and the provocation could scarcely have been greater. It was strong language to apply to a Judge, to describe him a3 unfit for his position, but such, and so overwhelming were the facts which induced it, as to afford an ample justification. The paper has been punished, but the evidence and the Judge's summing-up remain, a lasting impeachment of his conduct and a proof of his judicial incapacity.