NEWSPAPERS AND THEIR DUTY

New Zealand Mail, Issue 1664, 20 January 1904, Page 19

NEWSPAPERS AND THEIR DUTY

THE PREVALENCE OF CARGOBROACHING.

THE “ TIMES ” ARTICLE.

EDITOR AND PUBLISHER PROSECUTED.

■ Mr J. L. Kelly and Mr M. E. Bannister, editor ancl publisher respectivc,ly of the “New Zealand Times/’ were, at the instance of one James Wiggins, prosecuted on Friday before Dr Mc- ' Arthur, S.M., in the Magistrate's Court on foul* informations, charging them v l) with ' conspiring to obstruct the cure .. course of justice in certain prosecutions by the New Zealand Shipping Company against J. Wiggins, <*• Glau, C. Edwards and A. Erdman; (2) that they did compose, print and. publish divers matters headed “Oargo-broacliers Arrested,” with intent to obstruct the due course of justice; (3) that they did, on December • SOth, 1903, y to obstruct the due course of justice, publish in alii the issues of the “New Zealand Times” “Car-go-broach ers. Arrested”; (4) that they committed an act calculated to pervert the -due course of law and justico by publishing in the “New Zealand Times ’ a column of matter headed “ Cargobroaeliers Arrested.” Counsel for the prosecution said that the case was one of the gravest importance. The charges had been laid against the editor and publisher, Jointly, under sections 120 and 121 of the Criminal Code. t Counsel referred to the arrest of five men under section 225 of the Criminal Code on a charge of stealing from a ship—an offence punishable with hard labour for fourteen years. Tho ‘New Zealand Times,” under the special head-line “Cargo-broachers Arrested,” composed and published a column. of matter calculated not only to produce prejudice, hut to prevent the accused from obtaining' the benefit of an impartial trial by poisoning the minds of persons who might bo called upon to act as jurors. He submitted, further, that the publication was not only oalculated.to inflame the minds of jurors, but was calculated to produce uas against wharf hands generally. Counsel then read the publication complained of under the headings ‘ Cargobroachers Arrested,” “A Smart Capture by a Detective,” “Estimates of Losses 'bv Shipping . Companies.” _ Counsel proceeded to quote authorities in yupport of his contention that it was preferable in such cases to proceed crimmahy rather than bring an action for contempt of Court. He went on to say that the representatives of the shipping companies who made the ex parte ' 'statements to the reporter were largo advertisers m the lime.-, and that the statements appearing in the “Times' .tf 30th were mr/te to achieve an enci. In the case of the King v. Tibbetts the law on the question was fully discussed. There it was shown that any attempt to publicly prejudice a ease by publication of the evidence, comment or theatrical exhibition was an offence and a serious misdemeanour. After the criminal informations were preferred against the editor of the paper and the secretary of the company, the following local appeared in the “lime® : “ The editor and publisher of the ‘New Zealand Times ’ have each been served with three separate summonses, calling upon them to appear at the Magistrate’s Court on Friday, loth hast., to answerinformations laid against them, charging them with committing acts calculated to pervert the course of .justice. Hie ‘head and front of our offending’ appears to consist in; having zealously catered for the public information, in promptly publishing details of tho five arrests made on 29th December last on charges of broaching cargo, and in obtaining interviews from merchants on • the subject of cargo-broaching, the losses suffered from it. and the punishments inflicted for the offence.” On this statement lie presumed , the only excuse for tho publication of the matter was that they wished to cater for the public information. Counsel went on to say that ho did not wish to impute any greater wrong-doing on tho part of tho defendants than many - other persons- similarly situated had been guilty of., The practice liad grown up gradually in the press throughout the colony, but the general wrong-doing of tho press —oven if such practices had now become common custom —ooulcTnot be allowed to break down any of tho common safeguards which, secured for accused persons, whether guilty or not a fair and impartial trial. Chief-Detective McGrath was the first witness called for tho prosecution. He stated that on the 29th December Charles Edwards, Albert Erdman, James "Wiggins, John Glau and Thomas v . Nicholls wore arrested on a charge of stealing from a ship in port. One of the accused men was hailed out the A might after they were arrested. Counsel: Had you any communication with a representative of the .New Zealand Times”,?— Witness: I think I had. ,„r' _ ; Do you knjow his name ?—No. ! Would you /know hiiii. again? —W* l ® - ness answered ,th# he would, and being requested to pick out the person from the reporters who had been subpoenaed ; to attend in Court, pointed to Mr J. J. Greailish, ■ ■ • •’ _

I suppose he came to interview you? —Yes. ■

You gave him some information ? Nothing more than he could have ob-tained-from the charge-sheet.

Nothing more-than that? —Not that I recollect.

I suppose (handing witness the chargesheet and asking him to-carefully note what it contained) you would liot be likely to give any reporter information which was outside the public records ? I would use my own discretion; I might in some cases. If I remember correctly, in the present instance tho reporter desired to obtain the correct names of the persons arrested. Did you give the reporter any of the information contained in the first two paragraphs of this article? —Not all. I want you to tell the Court how much of tho information you did give tho reporter?—The names of tho persons arrested; I also told him who arrested the ’men.

Anything else ?—Not that I can remember.

Further questioned, witness said the men arrested for alleged cargo-broach-ing had been committed for trial at the next criminal sessions of tho Supreme Court on February Ist-. Mr Weston, counsel for the defence (to witness): You have read the firet and second paragraphs of tho report. To your knowledge arc any of tho facts there stated incorrect? —T don’t think so ; the statement is substantially correct. In re-examination, witness said that no doubt the report had reference to the trial of the men arrested for cargobroaching. Walter William Samson,. Deputy-Reg-istrar of the Supreme Court, put in the affidavits filed in the Court by Mr Kelly and Mr Bannister, as editor and publisher of the “Times ” respectively. Sydney Rawle, Acting-Detective stationed at Wellington, was the next witness called. He said he, had not been waited upon by a reporter of the “Times,” neither had he interviewed a representative of the paper. Ho made no statement of the case to any of the “Times” reporters.

Mr "Weston: The statements made in paragraphs one and two of this article camo out when the accused were committed for trial?

Counsel for the prosecution objected.

Mr Weston: Well, a report of the evidence given at the Magisterial hearing of the case appeared in the “Times” of January 9th? Prosecutor’s counsel again objected, and Mr Weston intimated that he would put in the depositions and copies of the paper containing the report, to which counsel also objected. Mr Weston asked witness if it was not a fact that the facts published in the “Times” were common property on the wharf the day of the arrest?—Witness: Yes.

Counsel objected to this answer also, and his Worship ruled that it should be left out. Mr Weston: Are the facts stated^ in the second paragraph correct? —Witness: Substantially so. Witness in re-examination, said the statement, - “It is alleged that they knooked, boards off the sides of a couple of boxes . . .in full view of the po-

lice officer ... .” was incorrect

Mr Weston pointed out that the witness’s reading of the report was not correct. What was stated was: —“It is alleged that they knocked boards off the sides of a couple of boxes, and in full view of tho polioe officer proceeded to pocket goods . . • ” Witness 'V 3 ® ordered out of Court while this discussion was going on, and on returning to tho witness-box admitted that he had incorrectly read the statement, and desired to amend his previous answer. James Henry Napier .Anderson Bnrn.es, manager of the New Zealand Shipping Company, was asked to identify the reporter who had interviewed him, and pointed- to Mr Grealish. The informaton given by witness was in answer to questions put by the reporter. The men charged with stealing from the Paparoa were then in custody. Witness was.asked to read from the report of his statements and point out anythin g he did not say to the leportei. The published account of the interview, he said, was correct, except the remark about “smashing..tup oases.” He had no recollection that the reporter told him what was to be done with the information, but he took it for granted that it was to be used for publication. The Paparoa. belonged to the New Zealand Shipping Company. He did not know who the goods on her belonged to. Mr Weston did not question the witness.

Captain Edgar Evans, marine superintendent of the Shaw, Savill and Albion Company,, deposed to having been interviewed by a representative of the ‘‘ Times ” on Tuesday, the 29th December. He thought the gentleman he now. saw .at the end of the reporters’ desk (Mr Grealish) was the reporter who had-interviewed him. Witness had heard on the wharf before tliat that some men had been arrested for cargobroaching. The reporter . called upon him for information regarding the losses sustained by tlie company through pillage.. The - published account, of witness’s remarks in tlie “ Times ” of Deoamibsri 30th was sub-

stantially correob. Witness’s observations with regard to men convicted of cargo-broaeMng “ invariably ” escaping with very light sentences was intended to be “ generally ” escaped with very light sentences. The- reference to light sentences came around in course of conversation. >

The witness was not cross-examined. Walter Nathan, managing director of W. M. Bannatyiie and Co., agents for tho Tyiser line, denied that he was> interviewed by - a reporter of the New Zealand Times” on December 29th, or t hat ho made any communication to the paper on that elate. There was no other person of the name of Walter Nathan that lie was aware of connected with' Bannatyne and Co. At the tune tho report appeared he was on lis way from New Plymouth to Wellington. _ Cross-examined by Mr Weston: His son, Mr Robert Nathan, was in charge ,of the shipping department, and might have been mistaken for him. The statements in the paragraph attached to his name set forth what were positive facts in tho experience of his firm. Certain facts were admitted by tho defence, such as tho publications of December 30th ancl January Gth, the official positions of Messrs Kelly, M. E. Bannister and Grealish, os editor, publisher and reporter respectively. This closed the oase for the prosecution.^

THE DEFENCE.

Mr Weston, in opening the "defence, observed that the cases quoted by his learned friend had reference to what was a. misdemeanour at common law in England. In England it was a misdemeanour at convhion lav/ 'to publish anything which could ho held to constitute a contempt of Court. Ho explained that in such cases it was competent to adopt either of two courses—to move the Supreme Court for an order nisi to attach tho publisher and printer for contempt of Court, or to obtain tho consent of tho Attorney-General . to send up a criminal indictment against the parties.' Ho desired to point out that the offenco was a misdemeanour at common law, arid under the 'Criminal Code statute that offenco at common law had been wiped away. The only thing the other side could roly on was section 121 of the Criminal Code, and he desired to make tho formal objection that the wording of the section had not been followed in the charge. Having quoted the words of the section, counsel went on to say that it was quite clear tho defendants could not be proceeded against on a criminal information for any offence at English common law, so that it was necessary tho charge should bo brought within either of the sections of the Criminal Code referred to. With regard to the charge of conspiracy, it oouid hardly bo intended seriously. To allege that two men of tho standing of Mr Kelly and Mr Bannister had deliberately put their heads together and conspired by the publication of the .articlo of December 30th to wrong t hese men who. iiad been arrested was monstrous, and there was not tho slightest tattle of evidence to justify the suggestion. Both would bo put in the witness-box, and Mr Bannister would tell the Court that his connection with the “Times” was purely with the business department, and that ho never saw the article before publication, while Mr Kelly, beyond a hasty glance at some of the reporters’ slips in 'the sub-editor's room, knew nothing at all about it. let, in spito of this- fact, his learned friend asked the Court 'to held that they had been guilty of orimina-l conspiracy, which implied a common and deliberate intent to wrong these men who were now awaiting trial. With rcgaiyl to the charges under section 121, there should bo intent on the part of the defendants to establish these charges. It should be shown that tho intention of the defendants was not to burnish information to the general public to keep them ahead of tho events of the day, but as counsel on the other side had suggested that they were actuated by isuoh a miserable motive as to want to curry favour with advertisers, who, as a matter of fact, must advertise; and that for that purpose, the defendants put in their paper matt ere of public, interest with the intention of injuring the five men awaiting trial. Counsel proceeded to refer to several decisions quoted from the English Courts to show that they had no analogy to the present case. He cited a decision of the late Lord Russeill of Killowen, Lord Chief Justice of England, in the case of the Queen v. Payne, in which liis Lordship stated, in refusing an application to commit for contempt of C-cturt: —“No doubt'the power which the CoUrt possesses in such cases is a salutary power, and it ought to be exercised in cases where there is real contempt, but only where there are serious grounds for its exercise. Every libel on a person about to be tried is not necessarily a contempt of Court; but the applicant must show that something has been published which either is clearly intended, or at least is calculated, to prejudice-a trial) which is pending.” Counsel went on to say that he had gone into a long list of authorities bearing on the question, back as far as 1770. Originally the 'Courts held that the publication of preliminary. proceedings before Magistrates was not admissible. Then they he 1/1 that suoh proceedings might be pub-

lished, if the result 'was in favour o.f the accused. It was only in 1893 that the English Courts hold that such proceedings were entitled to be reported by newspapers, although the Irish Supreme Cmirt had so decided in 1866. The earlier Judges, before newspapers began to become a power.and to enter* into the life of the people, looked with suspicion on reports appearing in them. Counsel dealt with the different paragraphs relating to tire subject of cargobroaching in the matter published on the 30th December. He pointed out that the first two paragraphs simply set out matters which attended the arrest of tho five men, and which must necessarily have been reported at tho hearing of the case before the Magistrate. How could it bo vsaid that such publication was an attempt to prejudice the case? Then, with regard to tho interviews with snipping agents, they afforded some material on which the five men arrested could base their defence, as they went to show how difficult it was to fix whether tho cargo was tampered with in London,- on the docks there, on the voyage cut, or when a ship was discharging. In the case quoted by Captain Evans, it was Stated that the cargo was broken . bytwo seamen. In these interviews there was no singling out of wharf-labourers at all. Moreover, in what way could it be said that the interviews bore on the charge as regarded the five men? There was nothing, he submitted, in what had appeared likeily to influence any British jury. The question before the Court was whether there had been a clear and deliberate attempt on the part of the defendants to use the columns of the “Times” for the purpose of influencing the trial of the five men, and he submitted that there was nothing to show that such was the case. Counsel for the prosecution having replied, Mr Weston said his Worship had also to consider whether, under the circumstances, he would be justified' in submitting the defendants to the indignity of committing them for trial. His Worship said lie would hear tha evidence for the defence. John Liddell Kelly, editor of tha ‘"New Zealand Times,” examined by Mr Weston, said he knew of the article published in the “Times,” headed “Cargo-broachers Arrested,” inasmuch as ho saw the manuscript on the subeditor’s table before it appeared in print, and glanced through the first three slip* He saw' it referred to a charge of cargo-broaching, but did not read through it. Witness had no discussion or conversation with Mr Bannister about the article until lie received the summons. The assertion that tho articlo was inserted to conciliate tho Shipping companies was a consideration which would not have the .slightest weight. Cross-examined: Mr Grealish was one of the “Times” reporters. Wiyggss was responsible for what appeared in tha columns of the “Times.” He endeav® oured as far as possible to supervise what was published. The reporters® work was supervised either by the subeditor or witness. The sub-editor supervised the work of the reporter in this particular instance. Witness liad no intention of disclaiming responsibility for publication. If witness had read it through in the manuscript, he would have published it with possibly one or two modifications. He would have left out the words: “The desire to inspect the contents of some of the oases which passed through their hands was too much for five of them.” AH the rest, he would have allowed to go in. Witness certainly claimed the right to follow the practice of reporting criminal arrests. As a journalist he also claimed tho right to publish the matter. Witness received his summons on tho sth January.

Did you write the paragraph which appeared on January 6th? —-Yes. Therein you state your excuse?—No; we state what the alleged offence was. Did you write tho paragraph on the 4th January, commencing “More Cargobroaching,” and referring to a consignment of tobacco received by Mr Batbin? —I believe such a paragraph appeared; I neither saw it nor read it.

At the conclusion of his evidence Mr Kelly siaid he would like to have it recorded on the depositions that the reason ho stated he would have omitted the sentence commencing “The desire to inspect, etc.,” was that it was not a statement of fact, but was reading into the minds of the persons charged, and was attributing curiosity to the whole of them.

M. E. Bannister, publisher of the '•'Times,” said he had nothing to do with the literary work of the paper. He knew nothing of the article in question until he read it in the paper. This concluded the evidence for the defence, and Mr Weston pointed out to his Worship that it was quite competent for the “Times” to publish a fair and impartial report of the case. His Worship reserved his decision until Tuesday morning, when he said he would also decide the question of the admissibility of the depositions put in on defendants’. behalf, as well._ as the published evidence given at the hearing of the prosecutions against, the alleged cargo-broachers* •> *•.