SUPREME COURT.—NISI PRIUS.

New Zealand Times, Volume XXXIV, Issue 5553, 15 January 1879, Page 3

SUPREME COURT.—NISI PRIUS.

Tuesday, January 14.

(Before His Honor the Chief Justice, and

Juives of Twelve.) GOLLOP V. ATCHISON.

This was an action to recover £2OO for alleged defamation of character. Mr. Travers, with him Mr. Edwards, appeared for the plaintiff ; Mr. Buckley, assisted by Mr. Stafford, for defendant. Jury ; Alfred Jackson (foreman), Thomas Hoggard, Charles Bonnington, Arthur Warburton, Jas. A. MoTavish, J. 11. George, Geo. Wm. Dutton, H. E. Logan, Jas. T. Hirst, Chug. Tringham, W. O, Chatfield, C. H. Ellaby. In opening the plaintiff’s case, Mr, Travers said plaintiff, a publican, of Napier, sued defendant, Inspector of Police, of Wellington, for £2OO, for that defendant had defamed his character by a telegram forwarded by him to Inspector Scully, of Napier. His Houor : Do you rely on the publication to Inspector Scully ? Mr. Travers : No ; we rely on the publication to the Telegraph Office here, but say that the farther publication at Napier by Inspector Scully, under implied authority from defendant, was an aggravation of the original publication. His Honor expressed some doubts as to whether that would be sufficient.

Mr. Travers then proceeded to call evidence. Dr. Lemon, General Manager of New Zealand Telegraphs, was sworn. Mr. Travers : You have received a subpoena to produce a telegram dated Wellington, 16th April, sent by E. Atchison, of Wellington, to Inspector Scully, of Napier I —Yes. Do you produce it ? —No, Why not ?—Because I have no authority either from the sender or receiver.

Your subpeena authorises you to do so ? Mr. Buckley : Oh, no. Mr. Travers : I don’t want my friend to interfere. The general manager is objecting to the authority of the Supreme Court.

His Honor : You must find out whether he has possession of the document. Mr. Travers (to witness! : Is the document in your possession ?—AH telegrams are in my custody. This one particularly *—l cannot answer that.

His Honor : Have you been subpoenaed to produce it?—Yes; but I have no authority to do so without the written authority either of the sender or receiver.

Mr. Travers read the Electric Telegraph Act of 1875, which sets forth (20th section) that “no clerk, operator, or other person employed in or about the working” of the telegraphs shall be compellable to produce telegrams in evidence, except (21st section) when the receiver or sender “ notifies to the Commissioner or the general(manager in writing that he desires that such officer, clerk, operator, or other person may give such evidence or make such production as aforesaid.” He contended that the general manager was excluded from the operation of section 20, because he did not come within the definition of the words “ clerk” or “ officer,” and that therefore he could produce telegrams without consent. The 6th section also made a distinction between the appointment of general manager and the appointment of officers. Mr. Buckley asked his Honor to look at the 24th section of the Act, which provided that privileged communications conveyed by telegrams are not to be deemed malicious publica - tions.

His Honor, after looking at the various clauses, said he thought the 24th section gave absolute protection against the production of the documents. The clause would amount to an absurdity unless it applied to the person who had custody of the telegrams, because be was the only person who could produce them. If the person who alone had power to produce was not protected the protection would be useless.

Mr. Travers supposed he would have to go upon secondary evidence. Mi’. Buckley : To which I shall have to object. Mr. Travers asked witness if all the telegrams handed into the various offices were not for a time at any rate in tho possession of the clerk taking them in ? Hr. Lemon replied no. Under an Order-in-Council they were all in his own possession. Mr. Travers objected that tho order in council did not support that. His Honor did not take that view.

Mr. Travers inquired if defendant would give his consent to the production of the telegram ’ His Honor : You may take it for granted that he won’t, Mr. Travers ; Very well. I will call Inspector Scully. Inspector Scully sworn. Mr. Travers : You’have been applied to for your written consent to the production of certain telegrams ?—Yes. Did you refuse ?—Yes. And still refuse ?—Yes. Mr. Travers: Oh, well, we shall have to sue Mr. Scully. He published at any rate. Examination continued—l received the telegram produced. I cannot say from whom. I believe I found it in my office, opened in the ordinary way by my clerk, I presume. ’Charles Eraser, sergeant of police and clerk to defendant, deposed : I was clerk to defendant in April, 1878. My duties are to keep the books, write letters, and send telegrams. The books are still in my possession. Will you produce them ? Mr. Buckley: I object. Mr. Travers : I insist on their production. His Honor ; Have you subpeenaed him to do so ?

_ Mr. Travers ; No ; because we did not anti' clpate these difficulties.

His Honor: I don’t see how I can direct the production of a book nnder the circumstances. I am willing to grant plaintiff all facilities in the way of time, but I cannot go beyond my duty.

Mr. Travers ; Well, I will ask for half an hour’s adjournment, in order that a subpoena may be issued. A course of regular obstruction is being followed out, and if we are nonsuited we can go to trial again on the same issues. It will only be a waste of time.

Mr, Buckley : We will consent to the pro. duction of the book.

Witness : I produce the book. I keep copies of all telegrams. lam aware that on the 16th of April, 1873, there was a telegram sent from Inspector Atchison to Inspector Scully, of Napier. Telegrams are generally sent direct to the office. This, no doubt, was sent in the ordinary way, but I don’t remember.

Will you produce a copy of that telegram ? Mr. Buckley : I object to that. Mx-. Travers ; I ask for the copy on the ground that we cannot get the original. Mr. Buckley : I object on the ground that it is a privileged communication—this being a letter from one inspector of the armed constabulary to another. There is a case in IF. and F., 1-18. Then there is Beatson v. Skene, L.J., N. 8., 29. His Honor : Mr. Travers will not contend that a communication from Inspector Atchison to Inspector Scully, with regard to the application for a license by a person not a proper person to hold a license, is not a privileged communication. Mr. Travers : Yea ; because there is no duty.

■ His Honor : I should have thought there was a duty. Mr. Travers : No ; the Act is very clear.

His Honor : Then are we to assume that when these inspectors appear time after time in the Licensing Courts their action is purely voluntary, and not a matter of duty ? Mr. Travers : No ; but this communication is purely voluntary, and not in pursuance of any duty. The question as to whether the occasion was privileged however will come afterwards. That is entirely a different point.

His Honor thought lie could not shut out the communication on the general principle. If the name of an informant would be disclosed, or if it appeared that the public service would be injured by the production of the copy, it would be a different matter, but that was not the position; It might be that the occasion privileged the communication, and he thought it would take a good deal of argument to persuade him that it was not so; but that did not occur at this point. Examination continued : This, produced, is the copy of a telegram I wrote. It was dated 16th April, 1878, and was written by Mr. Atchison’s authority. It was sent to the telegraph office in the ordinary course. Mr. Travers said he had now received the written consent of the receiver to the production of the original telegram. His Honor : Oh, well, that gets rid of the difficulty. Dr. Lemon then produced the original document, having received the written consent of Mr. Scully. Charles Fraser, recalled; This telegram (original), produced, is in my handwriting. It is signed “F. Atchison ” by mo on the authority of defendant. Inspector Scully, recalled, stated that he had received the telegram, and that he had attached it to his report laid before the Napier Bench.

To Mr. Buckley : It was in reply to one I had sent to defendant stating that Gollop had applied for a license, and asking for information on which to raise the objection. To His Honor ; The first telegram which passed was one from defendant, stating that if Gollop applied for a license I had better ask for an adjournment till I could communicate with him (defendant) about his (Gollop’s) character, which was bad. I then telegraphed stating that he had applied, and taking for information.

To Mr. Buckley : If I know of objections to persons applying for licenses in other parts of the colony it is my duty to communicate with the chief officer of police in the district in which the application is made. I have frequently done so, and have also received information from other inspectors. If I knew of objections I should make them. Re-examined ; Gollop’s license was granted eventually. The house has been well conducted-

Mr. Travers read the various telegrams, and said that was the case for the plaintiff. _ The following is the telegram on which the action was brought : “ Wellington, April 16, ' 1878.—Inspector Scully, Napier. —Re Gollop’s application for licence. A robbery was committed at the Pier Hotel here about two years ago by three men. One of those men was convicted at the Supreme Court. Gollop, I believe, was implicated in the robbery, and I told him so. I have no reason to change my opinion. Subsequently ho kept an hotel in Nelson, and refer you to police there respecting transaction which occurred between himself and a bank official. Gollop is not suited to hold a license. I have told him that I would oppose his application here."

Mr. Buckley submitted there was no case to go to the jury. It was a privileged communication, because it is the duty of the police officers to inform one another as to the character of applicants for licenses. It was not even necessary that the duty should be legal:; if moral, it was sufficient (Harrison v. Bush, 5 E., 1 8., N.S.) But under the Licensing Acts 1873 and 1874 a legal duty, was imposed. But apart from details there was the consideration of general public policy. Certainly if police officers were not allowed to communicate with one another in matters of this the public interest would be injured. Plaintiff, he submitted, must therefore be nonsuited. Mr. Travers : Assuming that the occasion was privileged, the communication must be honest and bona fide. Non constat, that there might not be malice. His-Honor ? That is for you to show. Mr. Travers : An inference of malice arises from the language of the telegram. His Honor : I don’t think so. To raise the inference the language must be extravagant. Mr. Travers : He sets forth no facts to justify his belief that Gollop was implicated in the robbery at the Pier Hotel. How do we know that his belief is well or ill founded ? Therefore it must be shown that it was honestly believed. His Honor ; I think not. Where the occasion is privileged the burden of proof is thrown upon the plaintiff, Mr. Travers : In the absence of any evidence which shows that the communication was honestly made. His Honor : It is presumed to be honestly made.

Mr. Travers ; There was no prosecution nor any action taken which might be supposed to prove tho veracity of the belief. An indictable offence is charged, without any to warrant the charge, and therefore the language of the. telegram is extravagant. Was the telegram sufficient to justify a refusal of the license ? Assuming the occasion was privileged tho communication should have been addressed to the Licensing Bench, and not to Inspector Scully, In that case the matter might have been inquired into. This was a purely voluntary statement, and it is no part of a police officer’s duty to send out such statements all over the colony. There is no duty cast upon the police to transmit such statements one to another, and a very dangerous state of things would arise. A man may have his character blasted by such communications, and the person injured has no redi’ess. It will make the police a kind of Star Chamber. His Honor remarked that if the occasion was not privileged, and the police had not a right to exchange information, the result would be that the Court would be flooded with libel actieus. It seemed to him that public policy favored such a practice so long as it was not abused. He held that it rested with the plaintiff to prove malice, which had not been done. After some further argument plaintiff accepted a nonsuit. The Court then adjourned.