SAMOAN LIBEL CASE.

New Zealand Herald, Volume LXVII, Issue 20481, 5 February 1930, Page 13

SAMOAN LIBEL CASE.

NELSON V. THE HERALD.

DATE STILL IN DOUBT*

ARRANGING FOR WITNESSES.

FIXTURE EXPECTED TO-DAY.

Proceedings in regard to the lawsuit brought by Olaf Frederick Nelson, merchant, -formerly of Samoa, against tho New Zealand Herald, claiming £IO,OOO damages for alleged libel, were advanced a further stage yesterday at the Supreme Court, when Mr. Justice Herdman continued the hearing of an application by the plaintiff for a postponement of the trial sine die. Counsel discussed with His Honor a proposal that a date in March be fixed for the trial, and that the plaintiff, if he could not then obtain witnesses required by him, should discontinue the action. It was stated that the plaintiff had sent a radio message to Apia the previous evening in the hope of obtaining certain natives by February 20. The chief ground of the application was that certain essential Samoan witnesses could not be obtained by the appointed date of the trial, February 20, because they were fugitives from the police in the bush. On Monday His Honor adjourned the matter until yesterday morning and directed plaintiff's counsel to prepare an affidavit setting out the names of the witnesses, their addresses and the nature of their evidence. Mr. Hall Skelton and Mr. Fiddes appeared for the plaintiff and Mr. Richmond and Mr. A. H. Johnstone for the defendants. Mr. Nelson's Affidavit. Before the hearing was resumed yesterday, Mr. Skelton filed an affidavit by the plaintiff. In this Mr. Nelson stated that he required the presence in Auckland of certain Samoans to give evidence in support of his case and in rebuttal of the evidence shown in the defendants' answers to his interrogatories. The evidence required to be given, and for which he was calling the witnesses, was, inter alia, to the following effect:— He. Mr. Nelson, had never, either before or after his deportation, incited the Samoans to resist the Administration. All his efforts for the redress of Samoan grievances had been along absolutely constitutional lines, and he had in no way attempted to frustrate the fuactions of the Administration. As chairman of the Citizens' Committee he had been the channel through which the native section pre-

sented reports to the Minister of External Affairs and the New Zealand Government. As chairman, and at all times <since, he had exhorted the Samoans to keep the peace and obey all laws of the

Administration. He had not written any circulars issued by the Samoan section of the committee, nor had he drafted the petition of the Samoans to the New Zealand Parliament.

When leaving Apia on his deportation he had begged the Samoans not to make any demonstration on his behalf, and at the request of the Administration and in company with an official he had besought the Samoans to keep the peace and obey the laws. He had not made the speech attributed to him that day, or that attributed to him at Pago Pago. Support for the Law. The affidavit specified other evidence to the effect that the Samoans, and not Mr. Nelson, had been responsible for the petition, presented through him to the League of Nations, for the employment of counsel and the collection of a fund for legal and other expenses. It stated that the policy of passive resistance had been decided upon by the Samoans themselves after the European section of the Citizens' Committee had dissociated itself entirely from the natives. The plaintiff had urged the Samoans to pay the taxes and obey the laws at all times. In his business dealings he had sought their confidence by honest methods, and at no time had he indulged in commercial rapacity. He had never solicited copra or trade from the Samoans by political influence, and he had always strongly protested to them against all rumours of a trade boycott in his favour. Copra trade or prohibition had no place in the complaints of the Samoans against the Administration. He had never advocated the sale of liquor to the Samoans or attempted to use the latter to assist in restoring the free use of liquor by Europeans. Radiogram to Apia.

In proof of his anxiety to proceed with his case, he had reduced his Sc.moan witnesses to five, and had the previous evening rent the. following radio message to his agents in Samoa: — "Nelson, Apia.—Ask Mr. Slipper apply to Administrator permission Faumuina, Alipia, Matau, Namulanulu, Leutele come by Tofua to give evidence libel Herald granting safe conduct from and to their present abode without prejudice to them with respect to present political situation. If this is granted manager merchandise department and secretary come with them, otherwise case will be adjourned and no witnesses will be required until further notice. Reply immediately, matter very urgent.—o. F. Nelson." Regarding what had taken place since the previous day's hearing, Mr. Skelton said his client was anxious to go on and had suggested that a wireless message be sent to Samoa in order to see whether five or six of the witnesses could be got. This had been done. His Honor: Have you g<?t a reply ? Mr. Skelton: No. One cannot very well arrive before five o'clock this afternoon. Mr. Richmond said that this course had been suggested to Mr. Skelton last Tuesday, but he had not seen his way to adopt it. His Honor: Then we should wait and see what answer you 'get. Date in March Suggested. Mr. Richmond said the difficulty was that all who were corning from Samoa as witnesses would have to leave Apia next Saturday. The defendant's witnesses had made their arrangements and were ready to sail. Were they to be told ou Wednesday that they would not be wanted, or only at the last moment? Counsel said he recognised His Honor's persona! difficulty about hearing the case in March, on account of the sittings of the Court of Appeal. However, His Honor himself had said that the case was supremely important. He (counsel) would suggest with diffidence that it was in some ways a case of national importance, and might be regarded as justifying precedence even to attendance at the Court of Appeal. If an adjournment were granted, it should be only until March. The plaintiff would thus have further time for preparation, and if he could not then go on with the case it could bo dismissed or discontinued. Plaintiff was a wealthy man, and the costs which he would have to pay on a discontinuance would be in no way commensurate with the disadvantage the defendants would suffer through being prejudiced by a long further adjournment. His Honor, to Mr. Skelton: Do you expect a reply this afternoon ? Mr. Skelton: About five o'clock. Mr. Richmond: So far as I can see there is no possibility that the Administrator will say at a moment's notice that he will give a safe conduct to five Sarnoans who are fugitives from justice and are in the I wilds. I

His Honor: Your proposal, then, is that we should get another Judge ? There will be one here.

Mr. Richmond: Yes, though we should be exceedingly soiry not to have Your Honor's guidance in the case. Your Honor is well acquainted with the case and has devoted a great deal of time to it already. It seems impracticable for my friend to get an answer in time. Mr, Skelton: They can easily slip out and get the men. His Honor, to Mr. Richmond: What are you going to do with your witnesses ? The main trouble seems to bo with your witnesses who are here. Mr. Richmond said the native witnesses, who were most important, could be held until March. Some arrangement could b<? made about the European witnesses, who were not so difficult to arrange about. If the Samoan chiefs were sent away they could hardly be expected to come to New Zealand again; they had made great personal sacrifices in coming here. His Honor: It is a very difficult situation.

Mr. Richmond: If there is an adjournment to March and the plaintiff discontinues, he will be able to issue the writ again, when he is sure of the attendance of his witnesses. After all, one of the alleged libels is two years old to-day. Mr. Skelton: I think I see a way out. If we cannot get news of our witnesses by to-morrow the case can be adjourned to March, and then we can see how we stand. lam not complaining; we are in much the same position as the defendants. It is mainly a question of costs now. Inquiry Into Expenses. Mr. Richmond said he was agreeable to this. However, he felt bound to say that the defendants were being put to considerable expense over the Samoan witnesses who were at present in Auckland. These men had not only to be maintained in a style fitting their position as chiefs, but had also to be provided with European clothing, and paid. The payment was only a reasonable amount; the witnesses were not asking anything excessive. Mr. Skelton repeated that if no reply was received by the next day he would agree to the course suggested. The present difficulty in Samoa might fizzle out at any time. Mr. Richmond: My fjiend will be responsible for all the costs. Mr. Skelton: From the adjournment until March and only according to scale. His Honor: I will get the registrar to hold an inquiry and see what expenses have been incurred. Mr. Richmond: We shall be entitled to all our out-of-pocket expenses for these witnesses, which are far more than ordinary scale witnesses' expenses, as they have had to be brought here under special arrangements. His Honor: Then shall we definitely postpone the hearing until March ?

Mr. Skelton: I think we should wait until to-morrow. The Administrator, in view of the importance of the case, may see fit to grant a safe-conduct. Mr. Richmond: That is most unlikely. We do not know where your witnesses are. I cannot see how the- Administrator can give anything in the nature of a general amnesty, or how these, people can be got by Saturday. His Honor: I cannot, either. Mr. Skelton: There may be some means. A Paragraph Expunged. Referring to the affidavit of the plaintiff Nelson regarding the missing witnesses, which had been prepared overnight by His Honor's direction, Mr. Richmond said that it did not state what the witnesses were going to say. It contained a lot of hearsay. The final paragraph should be struck out. Mr. Skelton: The affidavit had to be prepared in a hurry. It was being typed almost up to the last moment. Mr. Richmond: The last paragraph is only an attempt to throw mud. His Honor: The paragraph will hav6 to be struck out. Mr. Richmond: My friend has more time now. I suggest thut he should file a proper affidavit, showing what his witnesses intend to say. Mr. Skelton: I have done that. Mr. Richmond remarked that in the affidavit Mr. Nelson stated in substance what he expected the witnesses to say. He gave the names of five, but did not state what each witness was going to say. If each was going to testify about all the matters, well and good. Mr. Skelton declared that the "affidavit stated what each witness would say. This Mr. Richmond denied. Warning from the Judge. In reply to His Honor, Mr. Skelton said he could amplify the particulars given in the affidavit. His Honor: Can you give a precis of the evidence of Faumuina, the next man on the list, and so on ? Mr. Skelton intimated that he could. His Honor: And you should be careful, Mr. Skelton, in preparing the affidavit, to include nothing irrelevant, scandalous or in the nature of throwing mud. You should include a brief statement of the evidence which each of these witnesses is prepared to give. You will have to arepare another affidavit anyhow. His Honor then adjourned the hearing until 10 o'clock this morning, remarking that if the case were postponed until March he or another Judge would hear it. Mr. Richmond: I am under the strongest apprehension that if it is adjourned until May the defendants' case will be very gravely prejudiced. His Honor: If you are not able to go on, Mr. Skelton, you will have to consider gravely whether you will discontinue. Mr. Skelton stated that he very strongly objected to the-action of the Herald in publishing that morning matter which would prejudice hfs client's case. It had printed a long rigmarole about the de- ; fendants' case and little or nothing about the other. His Honor: You issued a summons, lb is really a Court matter. Mr. Skelton: Still, Sir, it is not allowable to publish statements in interlocutory proceedings which may prejudice either party. His Honor: I am not sure that vou are not the last person who should make such a complaint, Mr. Skelton. Mr. Skelton: Your Honor, I said nothing which could prejudice tho cas© for either party. . Mr. Richmond: Does my friend Bay that seriously? His Honor: I .am not deciding tna u matter now. Mr. Richmond: I am sure I shall be glad to place all the newspapers before Your Honor.