SAMOAN LIBEL CASE.

New Zealand Herald, Volume LXVII, Issue 20668, 13 September 1930, Page 12

SAMOAN LIBEL CASE.

CONVICTION OF SLIPPER.

FAILURE OF APPEAL.

LETTER DEFAMATORY.

JUDGMENT OF THE COURT. [I)Y TELEGRAPH. —OWN CORBESPONDENT.] WELLINGTON. Friday. By a unanimous decision the Judges who heard the appeal in the Supreme Court lust July by Thomas Benjamin Slipper, barrister and solicitor, of Apia, Samoa, against two convictions entered against him by the High Court of Western Samoa, affirmed one of the convictions, and held that tho other, taken under section 154 of the Samoa Act, could not stand, as the section contemplated spoken words only, and therefore the letter written' by Slipper to the Administrator of Samoa would not constitute an offence under that section. After judgment had been delivered this morning, Mr. H. F. von Haast, who, with Mr. S. W. Fitzherbert, appeared foi the appellant, asked that leave should bo granted to appeal to the Privy Council. The Chief Justice, Sir Michael Myers, said he thought the Court had no power to grant leave to appeal. However, it was agreed to allow the matter to stand over, to enable counsel to consider the position. On February 14 last an information was laid against the appellant under section 153 of the Samoa Act, 1921, charging him with having published a libel against tho Administrator of Western Samoa, Mr. S. S. Allen, and on the same date another information was laid against him, under section 154 of the same Act, accusing him of using abusive and insulting words toward and in respect of a member of the Legislative Council. Contentions of Appellant.

The judgment of the Chief Justice, Mr. Justice Reed, and' Mr. Justice Adams was delivered by the Chief Justice. Mr. Justice Ilerdman gave a separate judgment, concurring with that of his brother Judges. It was stated in the judgment delivered by the Chief Justice that it was contended on behalf of the appellant that neither conviction could be upheld. Alternatively, it was contended that the appellant had been convicted twice in respect of the same offence and the same subject matter, and, at the worst, therefore, so far as the appellant was. concerned, only ono of the convictions could stand.

If the appellant's first contention failed, but tho second succeeded, said His Honor, his position for all practical purposes would not be improved, because although in respect of each charge he was sentenced to three months' imprisonment, the terms were concurrent. Dealing first with the second contention, Their Honours said they thought it was without substance. After reading all the statutory provisions together, they were unable to conclude that the Administrator was a member of the Legislative Council. They thought, however, that ho was a member of the Samoan Public Service. Surplusage in Decision. The reference in the decision of the Chief Judge of Western Samoa to membership of the Legislative Council might, it was thought, be regarded as surplus-, age, and the decision might be regarded as a conviction of using abusive and insulting words toward and in respect of an officer of the Public Sen-ice, and a conviction could now, if necessary, be drawn up accordingly. If the subject matter of the charge had been spoken words, the conviction, in Their Honors'" opinion, \Tould have been perfectly good.

As to the information tinder section 153, the judgment set out first of all the material circumstances leading up to the publication .of tho letter complained of, and continued:— That the letter is full of the most objectionable and insulting (if not. perhaps, seditious) expressions is obvious, we think, to anyone who reads it. The learned Chief Judge has held that several of the statements in the letter, and particularly those contained in tfce italicised portion, are defamatory of the Administrator, and are false. With this view we are in entire agreement. Publication of Libel.

The letter then was published to the commodore (Commodore Blake, of If.M.S. Dunedin), a copy of it being sent to him by the appellant, or on his instructions. There was also a'publication to some of the Samoan women, and als,o the interpreter. But- with this publication we do not propose to concern ourselves. It is contended on behalf of the appellant that the publication to the commodore was one to which at least a qualified privilege attached. We are unable to accept this contention, and indeed its refutation is, wo think, contained in tho letter itself.

The privilege can only attach if the commodore had a common interest with those for whom the appellant was acting, or was under a duty and in & position to act, in the matter.' But-, in fact, the Commodore had no authority himself, and was indeed under the executive authority of the Administrator. No Privilege in Law. That is recognised by the letter itself. The letter speaks of terrorisation of women and children " being ordained to continue under the Administrator's authority." It then refers to the intimation that had been given by the commodore at the meeting of the 11th. that there would be no further shooting, then to the fact that civil government, still remained, and proceeds: "It is for Your Excellency and not the commodore to say whether or not there shall be further shooting." The letter seetns to us to recognise that, if there had been a common interest and a duty, such common interest and duty had ceased. In such circumstances we think the authorities show that no privilege exists. Even if a qualified privilege did attach to the letter, by reason of the fact that it was written by the appellant as solicitor for the Samoan women, the privilege is lost if the solicitor chooses to introduce a defamatory statement of his own; and it seems to us that this is exactly what lift has done. Actual Malice Found as Fact. The privilege is also lost if actual malice is shown. In this connection the Chief Judge finds as a fact that the appellant had no genuine belief in the truth of his statements, and further that the language, particularly the portion we ha\c italicised, is so violent and insuiting, and so much in excess of the occasion. as in itself to import malice. With regard to the argument for the appellant that the Court could and should reduce the penalty, in the event of its coming to the conclusion that the appellant was properly convicted. Their Honours sard that in their opinion the power did resido in the Court, in a case like the present, to vary the penalty. But, assuming that view to be correct, they were not prepared to van* the sentence. Tlu> libel was a very gross one. " In our opinion," concluded the judement. " the conviction under Section 154 cannot stand, and the appeal to that extent should be allowed But the conviction under Section 155 should be affirmed, and the appeal to that extent dismissed." In his judgment, which arrived at (he same result as that of the other me*r.bers of the Court. Mr Justice Herdnun said that from beginning t& end the communication of February 12 was full of reckless assertions, couched in extreme terms.