THE CRIMINAL LIBEL ACTIONS.

New Zealand Herald, Volume XXVIII, Issue 8670, 12 September 1891, Page 3

THE CRIMINAL LIBEL ACTIONS.

SHORTLAND V. KELLY AND BAULF. VERDICT OF ACQUITTAL. SHORTLAND. NOT ALLOWED TO ' PROSECUTE. ' There was a large concourse of the general public in addition to waiting jurors and witnesses assembled in the Supreme Court yesterday, and they exhibited very great interest in the charges of libel pending against Mr. J. L. Kelly, editor and part proprietor of the Observer newspaper, and more especially in the action against Hugh Shortland, solicitor, charged with criminal libel on an unmarried women. ■ •

John. Liddell Kelly, who surrendered to his bail but was not placed in the dock, was arraigned on an indictment charging him as editor and proprietor of the Observer newspaper with " publishing a libel on Hugh Rutherford Shortland, solicitor. Mr. Hugh Campbell, who appeared for the 'defendant, said that there was a similar indictment against Mr. Henry John Baulf, publisher and proprietor of the Observer; the evidence was the same in both cases, and he appeared for both defendants, and had no objection to both cases being heard together. * His Honor asked what counsel appeared to prosecute. Mr. Shortland : I appear personally Your Honor.

His Honor : You cannot appear personally in this Court, and you ought to know that. Mr. Shortland: I did not know it. _ His Honor: Then you are densely ignorant of the rudiments of your profession. You should be aware that only counsel can conduct a case in this Court. Mr. Shortland : I have been advised Your Honor that I could do so. His Honor: Whoever advised you can have known nothing of the matter, and is wrong. It is usual in the Lower Court for the police to conduct prosecutions. Do you •suppose that in the absence of the Crown i«nsecutor I should allow a police officer to conduct a case here. If there is no counsel for the prosecution I shall have to conduct it myself from the depositions, but I will not allow anyone but counsel to appear before me to conduct the prosecution. Mr. .Shortland: I respectfully wish to argue, Your Honor. His Honor : You arc not entitled to argue at all here. No person can be heard here except counsel or the defendant in person. Air. Campbell said lie had no right to intervene, but the matter was perfectly clear. His Honor : I can allow no one but counsel or the defendant to appear in this court. The indictment against Mr. Kelly was then read over. It charged him, as editor and proprietor of the Observer and Free Lance newspaper, with having, on the 31st ot January, written and published or caused to be written and published a false, scandalous, and malicious and defamatory libel in the words following ;— Miss Annie Wynn, who figured as the another of a little stranger in search of a father, has a pleasant outspokenness of manner which is quite refreshing to meet with in these days of sham, humbug, and conventionality. The other day she addressed Mr. Hugh Shortland, solicitor, in her most polite manner, calling him a blackguard, and saying he murdered his wife." The accused pleaded not guilty. Henry John Baulf was then indicted as publisher and proprietor of the paper in similar terms, and pleaded not guilty. A jury was then empanelled, Mr. Campbell exercising the right of challenge pretty freely. His Honor called Hugh Rutherford Shortland, who deposed that he was a solicitor of this Court, and produced the Observer and Free Lance of the 31st of January, containing the matter complained of. Defendants were described in the paper as J. L. Kelly, editor, and Kelly and Baulf, printers and publishers, and proprietors. On page 0 of the paper there are extracts from a letter written by witness to the Herald of January 27, which lie produced. Mr. Campbell objected to its being admitted as evidence. There was no reference to this letter in the indictment, lie could

not object to the Observer of January 31 being put in. This was, accordingly, put in, and the paragraph containing the alleged libel was read. Cross-examined by Mr. Campbell : Witness remembered appearing in the Police Court, in a case against William Baker, for failing to provide for the support of his child, of which Annie Wynn was the mother. Dr. Giles, R.M., presided at the hearing of the case. Witness appeared for the defendant. Anne Robinson .was called as a witness, and gave evidence. .She said that on Monday evening Annie Wynn had behaved very badly to Mr. Shortland, calling him a kviv blackguard, and that he had murdered his wife. She said something to that effect. Mr. Campbell handed "to the witness the Herald of the 22tid of January, and lie asked whether the words reported there as having been used were used. Witness said something of the kind was said, but he'would not 1 ike to swear the words were absolutely correct. He did not remember anything else being said against him by any of the witnesses during the proceedings of that case. Witness himself drew out the evidence, lie did not deny the statement, looking on tiie whole thing as the statement of an angry girl, ami it was absurd, He did not proceed against the projectors of the Herald, for theirs was a judicial report whereas the paragraph in the Observer was an isolated one.

Witness was asked whether he contributed anything to the Observer. Witness asked His Honor's ruling as to whether he was bound to answer any questions which might criminate himself. His Honor said ho must answer whether

he ever contributed to the Observer, but lie could decline to answer whether he contributed any specific matter. A document was handed t" the witness, and he was asked whether it was ill his hand writing. Witness : Without prejudice, I decline to answer.

His Honor said ii Mr. Shortland was in the habit, with the consent of the proprietors of the Observer, of publishing, libels, how could that affect the matter? It would only lay him open to prosecution as well as the publishers, but that would be no excuse for publishing a libel on linn. Mr. Campbell: Then your Honor docs not think I should proceed in this line of evidence.

His Honor said he could not see how it affected the present ease. Provocation could only be pleaded in mitigation of sentence, and that was not a matter for the jury. To His Honor: I have 110 doubt I. am the Hugh Shortland referred to in the paragraph. I do not usually use my second Christian name. Mr. Campbell said he did not seriously contest the fact of publication. There was prima, facie, evidence of publication. The affidavit of the Registrar as to the registration of the paper and names of the accused as proprietors and publishers was put in. Arthur Souter, a newspaper runner, deposed that he got the Observer for sale from the office in Wyndham-street. John Quinn, jun., was called but did not appear. The names of two other witnesses were on the back of the indictment, but they were not called.

Mr. Campbell called as evidence for the defence Norman Edwin Burton, a reporter on the Hkkat/I) staff, who deposed that he •.vao in the Police Court on the 2lst of , January last at the hearing of the case against William Baker, of failing to provide for the support of a child of which Annie Wynn was the mother. He reported the case for tho 11 era Lit, and read the report on the following morning after it was in print. That was his report in the paper produced, and it was a fair report of the proceedings in that case. Similar words to those alleged in the indictment were in the report in the Herald as having been used by a Miss Robinson, a witness in the case. He heard nothing said in the Court which would qualify the words. The report in the Herald was fair report of the proceedings. The paper was put ill evidence. His Honor said he should direct the jury that if this libel had been published in 50 papers and Mr. Shortland did not choose to prosecute them, that did not prevent him from prosecuting in this instance. Mr. Campbell addressed the jury, and said the crime of libel like any other crime must be supported by intention, and the question whether or not this was a libel was purely a question for the jury, and it was tor them to consider whether criminal intention had been proved. Unless there was the wicked mind, the wrong intention, there could be no crime, for it was the intention or motive which created the crime. He asked them to consider the whole circumstances of the case. The paper was published on Thursday, although dated on Saturday, and the same words appeared in the Herald on Tuesday. The Herald was entitled to publish them as a report of a judicial proceeding, and lie contended that the Observer was also entitled to publish them, although without the context, subsequently. He concluded by submitting that it was a case in which the jury were entitled to bring in a verdict of not 'jcuilty. His Honor summed up the case, and explained to the jury what in law constitutes a libel. That anything printed or written which tended to expose another to contempt, hatred, or ridicule, was a libel; but there were different degrees of libel, and in this instance Miss Wynn; was spoken of in terms of praise for her outspokenness in making the statement that Mr. Shortland was a' blackguard, and had murdered his

wife. It was not for them to consider whether or not the publication in the Herald was a libel, but to consider whether the publication in the Observer was a libel, and the fact of its having been published before did not justify the republication of a libel. The question for them was, were the word 3 libellous tending to bring Mr. Shortland into hatred, contempt, or ridicule. Mr. Shortland was not asked why he had not taken proceedings earlier, but that did not affect the question whether or not this was a libel: Mr. Campbell: Your Honor did not inform the jury that a newspaper is privileged to publish the proceedings in a Court of justice. His Honor : This is not a report of the proceedings in a Court of Justice, nor does it purport to be so. The jury retired at half-past twelve o'clock to consider their verdict. At two o'clock the jury brought in a verdict of "Not guilty" against both defendants, and they were discharged. Mr. Campbell applied to have judgment entered for defendants, pointing out that the question of costs was involved under Lord Campbell's Act. Judgment was accordingly entered for the defendants.

THE CHARGE AGAINST HUGH SHORTLAND. DELAYED APPEARANCE. Hugh Rutherford Shortland was called on at two o'clock to answer the charge of publishing a criminal libel in respect to an unmarried woman named Blanche Good. He did not appear, and at ten minutes past two o'clock Mr. Campbell asked that* a warrant should be issued for his apprehension. The defendant was then called on his recognisances, but he did not appear, and his sureties were called. Mr. Piatt did not appear, but Mr. James Rae, the other bondsman, appeared, and was informed that if he did not produce the defendant quickly his recognisances would be forfeited. Mr. Rae went hurriedly in search ot the defendant, who at twenty minutes past two appeared at one of the side doors, and apologised for the delay on the ground of sudden illness. He was then called forward and asked by His Honor whether lie still wished to raise objections to the indictment. Mr. Shortland said he di».*, and the first was that no private person had the right to lay on information for criminal libel.' His Honor: That is all nonsense. You have laid two informations yourself. Mr. Shortland said the law was laid down in the case the Queen v. Labouchere, 12 Q. 8., p. 320. Mr. Campbell pointed one that this was not an information, it was au indictment, and His Honor said he understood when Mr. Shortland used the word information he meant the information before the justices. He overruled the objection. Mr. Shortland asked should not the informant conic into Court in the first instance. He had askctl for this in the lower Court, and the right was denied to him, but he claimed that if she did not do so here she should be debarred from proceeding. He quoted the case Regina v. Marshall, which he admitted did not go directly to the point, but it went to this that according to Hodgers, p. 010, it' the proceedings were not regular then they must fail. His Honor : Where is the irregularity? Mr. Shortland : The informants in all cases are brought into Court. His Honor: No. In criminal cases the police generally lay the informations, and they need not necessarily call the prosector. He should overrule the objection. _ Mr. Shortland said iiis next objection was that the words used were not a libel. His Honor said the grand jury had found that they were, and it was for the common jury to find whether they were so or not. He could put that matter to the jury, but the points he had over-ruled could not be raised. His 'Honor: I understand you abide by your plea? Mr. Shortland : Yes, your Honor. Mr. Campbell raised certain objections to the plea, stating that no reason was alleged why the publication was for the public benefit.

His Honor : That is a question for the jury. A reason such as ifc is has been given. The indictment was then read, the charges contained in which have already been published in our report of the proceedings in the lower Court.

Mr. H. Campbell appeared for the prosecution and opened the case. He deeply regretted to find himself in tlie unusual position of prosecutor in this Court, as lie hadjahvays hitherto been engaged for the defence. He proceeded to define the law of libel, and then explained that the charge against the defendant was that of attempting to sully the reputation of a pureyoung girl. There were three counts in the indictment on three separate publications, each of which constituted a libel. He would have been glad to have confined himself simply to proving the publication, but unfortunately for the defendant he had pleaded the truth of the statements, and also pleaded that they were privileged, and therefore he would be compelled to call evidence, which lie otherwise would have been glad to leave out. Mr. Campbell then gave a brief history of the case, the facts of which our readers are already acquainted With, and then referred to the evidence which he meant to adduce, submitting that the pleas of the defence laid on him the obligation to lay before the jury evidence to answer the charges which the accused made against the prosecutrix. Christie Walker was the first witness called. _ She received the letter produced, in -July, from Mr. Hugh Shortland, and read it. The letter was put in and read. This was the letter containing the words included in the indictment and quoted from the letter to Miss Walker. Witness said she received I the let ter in Auckland, and she understood by the words "for delicate reasons" contained in the letter that Hugh Shortland meant that lie had seduced the prosecutrix. At the time she received the letter she had no acquaintance whatever with Shortland. She subsequently received a second letter from Shortland, on July .'loth. This letter was a retractation of the statements contained in the first letter, and attributing it to his beinjf under the inlluenee of drink when he wrote it, acknowledging that the whole of the statements in the letter were false. "By the accused : She did not receive the apology by post; it was given to her by prosecutrix, who told witness Shortland implored of her to accept an apology. She swore positively that prosecutrix did not say she got that letter from him by strategy. The letter was given to her by the prosecutrix, and she subsequently returned it to her brother. She did not remember whether it was that or the subsequent evening that her brother called for it. She remembered a letter of accused requesting her to call at the | office. It was an inquiry as to whether the prosecutrix was at the Star Office or not. Accused was a stranger to witness, but she had heard of him from the prosecutrix, and she (witness) had never complained that lie had dogged her steps. She made no complaint to the detective department, but she complained to Mr. Leys, the Editor of the Star, that Shortland was writing to her, and he said it would bo stopped. She did not remember prosecutrix having left the office efren for a day to get married, but witness understood from her that the priest would not marry her to Shortland, as she was too good for him. The witness's depositions in the lower Court were put in and read, at the request of the accused, but they did not in any way contradict witness's statement, except that she had forgotten to state in the lower Court that the priest, when refusing to marry accused and prosecutrix, had said that she was too good for him. She was also cross-examined as to the meaning which she took from the words in the letter, accused seeking to establish that they might mean something else than what they conveyed to her mind. She was also examined as to her knowledge and acquaintance with the prosecutrix, and said that they worked in the Star Oliice together, witness having been there for six years, and prosecutrix tor five years. James Cowan, reporter on the staff of the Star, recognised the letter put in his hand as one he received from the defendant Shortland, and which he believed to be in his handwriting. This was put in and read. It is the letter quoted in the indictment. At the time witness received the letter he had no acquaintance with Shortland. He received the letter some time in July last year as far as he could recollect, but it bore 110 date, and it might have been in August. Accused had never in any way acted as solicitor for witness. His Honor: Is this the letter which it is claimed is privileged as a communication between client and solicitor. Mr. Campbell: Yes, Your Honor. Witness : He has never been my solicitor at any time, either before or since. In crossexamination witness denied that he had ever been to Shortland's 011 any occasion, and he did not remember ever having seen the letter placed in his hands at all. He had seen a second letter produced. Accused showed it to him in the street over a year ago, and he subsequently saw it in the Police Court. Shortland had sent his clerk for him requesting him to come to his oflice, but he did not go there, and lie reiterated that he had never been in defendant's office on any occasion. They were not quite strangers, for witness had spoken to him two or three times. His Honor considered that the examina tion was a shameful waste of time, what could it matter whether witness went to accused's office or villa before this letter was sent ? The question was, did the relationship of solicitor and client exist when that letter was sent, and that had not been shown; in fact, the contrary was shown. The witness was further cross-examined as to an assault

made on the defendant by the mother of the prosecutrix, on account of his refusing to retract certain statements, and he admitted that there was something of the kind, but he did not remember the conversation. He believed accused did not retract, but lie was not certain. The witness's depositions were put in and read._ His Honor said he was sorry the time of the jury was wasted. The depositions exactly corresponded with what the witness said here. In further cross-examination witness said that he had taken prosecutrix, to the circus, and he took her home afterwards. She told witness afterwards that there had been a row because he took her to the. circus. She said Shortland had quarrelled with her because he took her out, but she did not tell him her mother was angry. He denied that he had ever told accused disparaging things about this girl. To Mr. Campbell: He had never heard anything disparaging about the prosecutrix, except what he had been told by the accused. Christine O'Gara deposed to receiving the letter quoted in the indictment from Shortland's messenger, and which was signed Hugh Shortlaud. She did not read it, but she learned its contents, it having been read to her. (Letter put in and read.) She understood the letter to refer to the prosecutrix. She had known accused by sight, and had spoken to him once before she received the letter. He had called at her house once to tell her what prosecutrix and her mother had been saying about witness and her daughter. She could not say in what month she received the letter, but she sent it to prosecutrix's mother. In cross-examination Shortland tried to get in the letter alleged to have been sent to him by the prosecutrix, which_ was the subject of two prosecutions which were dismissed in the lower - Court, as accusbd could not prove the hand writing. ... Mr. Campbell objected to the letter being put in until the handwriting was proved, and his Honor ruled that until the handwriting was proved the letter could not be received. , , To his Honor : She sent the letter to the prosecutrix's mother as soon as she received it. ' . At this stage the jury decided on an adjournment of the case until next morning. Accused by direction of his Honor was detained in custody. Ho had been late in appearing when called, and his bondsmen were released. The prisoner was then removed in custody.