LIBEL ACTION.

New Zealand Times, Volume LXXI, Issue 4075, 13 June 1900, Page 3

LIBEL ACTION.

BYRNE V. AUCKLAND “OBSERVER.’ damages claimed £iooo. Ju tlio Supremo Court yesterday before the Chief Justice and a common jury of twelve, the hearing was begun of a. libel action oetween Thomas Vin. cent Byrne, of Kurnara, Westland, barrister and solicitor, plaintiff, and Wil. limn John Geddis and William Blomfield, of Lake Takapuna, James Me Roberts Oddis, of Remuora, and George Henry A/ixon, of Mount Eden. Auckland, printers and publishers of the ‘‘New Zealand Observer and Free Lance” newspaper, defendants. Mr Wil ford, with him Mr Murdoch, appeared for the plaintiff, and Mr Skerveu, with him Mr Harold Cooper, for tin i.etendants. Mr I'. Nathan was foreman of the J ur .v '(he otalcment oi claim sot out that the plaintiff practises his profession in Kumara. At the time of the publicaiion of the libel lie was Mayor of the t urn. On the 2nd September, 1899. the defendants falsely and malicio'usly printed and published of and concerning the phiinlilf in all the copies of their newspaper the following words: ‘•T. V. Byrne, Mayor of Kumara, would appear to he rather a gay Lothario when lie gets away from his own bailiwick and meets a few friends in the metropolis. Last week he bobbed up serenely in AVellington, and after at. tending some entertainment at the Choral Hall, evidently of a. Bacchanalian character, started ' on tiis homeward way in the early hours of the morning in company with a West Coast friend, F. Michcll by name. As they passed ; down the street, when nearly opposite tho Police Station, they discovered a j couple of charwomen going to work, and j presumably thinking t hem fair giuno for I a lark proceeded to jostle them in a rather rough manner. Now, the average Wellington charwoman bbjects to j being familiarly dealt with previous to | an introduction, and tho consequence was that T.V. is alleged to have had! his hat dismembered and otherwise rudely treated, and that ho and his! West Coast friend were eventually ar- > rested and lodged in tho Police Station. Tho Kumara __ayor made specious explanations to the oeak in the morning, showing how lie had nothing to do with tho matter, aim only stopped to light his pipe, while the other follow and some chap who got away from tho constables were guilty of all tho rudeness. Tiie magistrate absorbed his story and discharged him, but his friend was fined two pounds. Nothing was done to the charwomen for being insulted, which was fortunate for them.” ' I “That if Kumara possesses anything in tho shape of a social reputation and wishes to maintain it, it would do well to keep its fleet-footed Mayor at home while tho session is on.” i Tho plaintiff said that tho defendants meant by the wouis which they published that he resemmed the character of "Lothario,” who was a person of 111ropute, a seducer of women, and a libertine. and meant Hint he was intoxicated unci was guilty or conduct unbecoming his position as Mayor of Kurnara, and unbecoming his profession as a barrister and solicitor, and that ho was guilty i of perjury in the proceedings before the magistrate’s Court referred to in ■ the publication, and that ho was guilty -of an assault upon two charwomen, not-, withstanding the tact that he ivas.nc(jiiittcd by the Court. The publication was false and malicious.. In consequence; of the pliolication the plaintiff '• has been and is greatly prejudiced and injured in his credit and reputation, . and in his profession as si. solicitor, | and in his position as Mayor of the town. Wherefore the plaintiff claims from the defendants £IOOO by way > j , damages. ' I In their statement of defence, the defendants said that tho words complain, cd of are incapable of any defamatory meaning; and that the words are fair and oona fine comment in good -aitlrt and without malice upon the actions and conduct of tho plaintiff, which wen; matters of public interest. They deny that the publication was false or malicious, and assert that the \yords, accord-; ing to their natural and ordinary *igni-| fication, are true in substance and in' fact. They deny that in consequence of the publication the plaintiff has-been or is greatly prejudiced or injured in his credit or reputation, or in his profession as a solicitor or in his public positions. _ | His Honor over-ruled an objection by, Mr Wilford that the defence was too general. Mr Skerrctt admitted that the “Ob-J server” had a circulation throughout; New Zealand, including Westland. j Mr Wilford, in opening tho case fo\' tho plaintiff, commented on an article published by the defendants in April. | after a change of venue had been obtained. Ho laid stress on the defend-! ants’ statement in that article that 1 they had rccciveu offers of pecuniary assistance, which they had declined, in connection with tho action. ■ By the publication of that article the tnalico of which the plaintiff complained haci, been accentuated. counsel held that I the defendants would have a hard taskj to justify what they had published. He] did not think lucre could have been a grosser libel. . 1 T. V. Byrne, the plaintiff, said he' had been Mayor of Kumara for five or six rears. Ho was also a member-of, the Westland County Council and chair-i man of the Charitable Aid Board for the! district. He visited Wellington at the end of August or the beginning of September last year. While in this city he was arrested on an information for committing a common assault on Mary Davis on the 24th August. The result of the case was that the information was dismissed. Ho obtained a certificate of dismissal on the merits under tho hand of Mr Haselden, S.M. Subsequently witness saw a copy of the "Observer,” which contained the articles set out in the statement of claim. His attention was called to the articles in Hokitika and Kumara. A member of the legal profession drew his attention to them on one occasion when ho was in the Supreme Court library in Hokitika. '■ Witness instructed his, solicit ois. Messrs Parker and Murdoch, of Houiuka, to write to the proprietors of the “Observer,” claiming damage? and an apology. At a later date instructions wore given for the writ to bo issued. A change of venue from Hokitika to Welling! ou was granted on tht; application of the defendants. Witness subsequently had his attention drawn to a leaderette in the “Observer” of the 21st April. At tho hearing of the information against witness in the Wellington Magistrate’s. Court the facts were thoroughly gone into. On tho night of the alleged assault witness was hrrcstbd. He was bailed out at about 8 a.m., andj after obtaining advice conducted his owni case in the Court. He heard n witness' mimed Ellis make a statement in-.Court.' Tho information against witness was for.' assaulting Margaret Hicks. The cer-' tiiicate of dismissal named Mary Davis as the person assulted. Mr Skerrett : The certificate is wrong, but we make no point of that. His Honor: It is admitted that' tho information' was dismissed. - Cross-examined bv Mr Skerrett. the ulaint iff said that the night in question I

was moonlit. It was fairly bright at about 3 o’clock in the morning. Witness was then staying at No. 2, Wel- .• lington terrace, ills wife wr<3_ also in the city. On the previous night the Garrison Band were playing in the .streets, and v/itness went out at about naif-past 7 o'clock- He met ITiank Michcll, who was a friend of his. near tho wharf. They stopped there listening to tho music for about an houi. During that time Ellis met them. Michell introduced Ellis to witness. They went to a dance at the Choral Hali. It was quite possible that witness left his wife at the Post Office to meet Michell. Michell, Ellis and witness went into one hotel on their way to tho Choral Hall. Witness could not remember how many more hotels, if anv, they went into on their way. They reached the Choral Hall at about half-past 10. W'itness was dressed in a In-o .n suit of clothes, with a black, hard hat, with a short fawn-coloured overcoat, lie carried a walking-stick. He was wearing a beard. Witness believed that Ellis wore an overcoat, but he was not positive about it. To the best of witness’s belief, Ellis did not carry a walking-stick. When they reached the Choral Hal! wjtness was not under the influence of drink. He was not in that condition all that night. At the hall witness was introduced to several parsons. He dance.'! and enjoyed himself. Ho would swear he did not fall down while dancing. He did not remember who he was introduced to, or whpther a Mr Bust was one of the persons. If anyone said he was wearing a brown felt hat at the hall, he would deny it. For tho last nineteen years he had worn nothing but hard black felt hats. Micnell, Ellis and witness left the hall at about half-past 2 o’clock. During tho dance- thev had some drinks at a hotel. On their way from the hall they ! called in at one place, and had throe 1 drinks each. If he sum in the Magistrate's Court that 'they Had two drinks ieach, his memory would be fresher then, i He would say now that ho had two or I three drinks. Witness knew the Na- | tional Hotel. When he passed that | hotel Michell was walking on one side I of him arnct Ellis on the other. They. 1 wore not walking arm in arm. Witness I was quite sober. About sixty yards on ' tho south side of Mee’s chemist’s shop | they passed a constable. They were walking abreast. Ellis stopped, and said a few words to the constable, about its being late. Michell and witness walked on in the direction of Mee’s shop. Ellis did not come up to'*'Michell and witness before they arrived at Mee’s corner. Ellis might have remained 1 for a minute talking to the constable. Witness did not remember looking back to see whether Ellis was coming. About five or six yards from tho corner, Michell left witness suddenly, without one word of explanation, and passed down the | street ahead of him. Just previously to going, Michell asked witness for a match. Then Michell ran straight away. Ellis came up, and asked “ Where’s luichcll gone?” _ Witness said “He’s gone ahead.” JEllis said, “This is ray turning home.” W'itness said the same. Ellis said, “I’ll go and get him.” Witnes did not then know where Michell lived. Ellis went north, in the direction of the Gear Company’s shop. W'itness went into the right-of-way to get shelter to light his cigarette. Just then he heard a woman scream, to the north. Ho a- seen some women previously, walking ahead. They were about thirty yards ahead when the constable passed, and about twenty yards ahead when Michell left witness. When witness heard the scream ho hurried off home. Witness could not see round the corner when he was lighting his cigarette. Before Ellis came up, witness could not see ; where Michell ha gone to. There was a dark verandah where Michell went. Witness *mw Michell again, about five minutes afterwards, but that was when witness was in charge of a policeman. Witness saw Michell pass the women. Tw,o women were walking side by side, close together. .-iicheH passed between them and disappeared. Ellis had not come up at this time. The-scream was after Michell had-passed between the women There was lots of room for Michell elsewhere on the footpath, without his passing through the women. Witness did not mention to Ellis tho xudencss shown by Michell to the women. Michell had had about five drinks. Ellis came up a second or two alter _,chell had passe., between the women. The scream was a loud one. Witness ran towards diis home. His first impulse, being in a strange town, and near a row, was to run home, seeing also that there was a constable sixty yards away, and a police station opposite. He was a stranger in a strange town. He did not then or now see any impropriety in . his conduct in running away-. When he reached the Terrace he heard the voice of a boy saying, “Here ho is.” He had heard no steps,pursuing him along tnc lane or up the steps. He considered that what the .boy said applied to him, and ho stopped. He did not see Ellis till next morning. When the constable came up, ho said ho wanted witness tor an assault. Witness said, “You are making a gross mistake, constable • theie are two other men who probably may have none it.” Witness did not say anything about prostitutes;. The boy was standing by at the time. VYitness went down the stops wi.-i the constable. Two other constao.es were talking with the women * m tho street. Michell .was there.. Witness had a stick in his ..and. At the police station witness asked to have tho women whom he was charged with assaulting produced before, him. ; they came and looked at him. Hne of them pointed to Micnell and said, “That is the man who first interfered with us.” When witness asked them, “Have you seen me oo.ore , to-nignt r they made no reply. Micuell used improper language; he was arrested. Witness was also arrested. Neitner ot the women identified witness at 'that interview. They identified him next day in Court. Witness said to tho constable who arrested him on the Terrace, “I have a position, and my wife is in* town, and any reparation i can cret or any influence I can bring I will do so.” Witness did not think he said to tho constable, “I am a man of great influence, and I will make it warn for you.” In the office at the police station that night witness did not mention Ellis’s name. He said there was a third man, and that if anything had happened it must have been committed by him. For the time being witness had forgotten Ellis’s name; W'itness had no sympathy with the man who committed the assault. Michcll was admitted to bail at eight o’clock, with witness. Witness had no communication with Ellis till eleven o’clock in tho morning. While in gaol together .Michell had told witness all about it. The case against witness was hoard on Friday. Ellis was subsequently brought up for the assault and fined. Witness sent a telegram from Kumara to either Michell or Ellis. The trial of Ellis had not come off then. Witness did not pay Ellis’s fine. _ Witness know nothing about _a nosi-office ■ money order for £lO from Reef ton. He knew' something' about the payment of the fine. Witness believed a money order was sent by his solicitor in connection with it. A certain number of persons, seeing how Ellis had conduct-; ed himself in Court, and how he took the onus on himself. had subscribed the. 1 money and sent it to him. i

Mr Skerrett : Who got up ..*e subscription ?—I have heard it was done. His Honor; The fine was raised by subscription?—So I understand., Mr Skerrett: Do you know anything of the raising of subscriptions to nay the fine?—l heard casually that die money was being raised. From whom did you hear it ? —From a number of persons. Can you tell me one?—Well, I be:-rd it from Mr McEnnis, the Clerk of ;he Warden’s Court. What did he tell you?—He told mo casually that the money for Ellis’s fine was being found, and that it was going to be sent to him. Do you know anyone who subscribed to this fund?—l do not. Where was the money raised? In Kumara?—Yes. . That is a small place, is it not ? What is its population?—About 2000. Can you tell me tho name of any single individual who subscribed? —No. Did you know that Mr Murdoch had sent tho money order?—(A pause.) Well, I don’t know—-~ His Honor: You have s;u~ you believed it was sent. —Yes, I was told that. I thought you said you believed it was sent by your solicitor? —No. Mr Skerrett: Do you say you did not hear, till I put the question just now, that tho money was sent by Mr Murdoch ?—I may have heard it. But did you?—-I cannot say positively. Oh, really!—l heard it casually. His Honor: It was a case you were interested, in.—l cannot say positively when I heard about the sending of the money. Mr Skerrett; Did you take an interest in the matter? —Of course I did. What did you learn about the money ? —Only what I have told you. Did you speak to anyone about it ? No. Did you not got a verv indignant letter from Ellis' saying that yon find not paid the fine, as you promised you would?—No. Will you swear that?—l dou’t remember. His Honor said tho witness was a solicitor. It was absurd for him to say he did not remember about such a thing. Mr Skerrett: Did you get a lei ler from Ellis? —I swear I did, not. His Honor; Did you see one from him ? —No. Mr Skerrett: Were you informed that a letter had been received irbm him?— No. Do you know pf any letter at all about tho fine?—Yes. Can you explain why the gentlemen who raised tho subscription and desired to forward it to Ellis should not have sent it themselves r—l do not know anything about that. How many actions for libel have you! threatened to bring in connection with this matter?—Two others. How much money have you got out of it already ?—On each action taken the sum of £l6O has been paid. So you have got £32o?—Yes. Those actions were compromised?— Yes. One was against a Dunedin paper?— Yes. And one was against an Australian paper?—Yes. How many more actions, have you commenced? —I am not aware of any. How many more do you propose to j commence?—l will bring actions against any other papers that do the same as these papers have done. , | Have you threatened to bring other! actions?—No. r j You were elected Mayor of Kumara, after the publication of these articles? : Yes. , i You were appointed chairman of the, Charitable Aid Board after the publioa-1 tion?—Yes. | And also elected a member of the County Council, i believe? —Yes. I You are sti}l a oarrister and solicitor, and still in practice?—Yes. By Mr Wilford: Witness’s hat was taken from him at the Police Station. It was entered in the property sheet. When he was released the hat was returned to him. it was the black nard felt hat now iu Court. By Mr Skerrett: At the Choral Hall ho 'met one person whom ho already knew. , Constable Thomas Wilton deposed that the plaintiff was in a cell at the Police Station, and was bailed out. John Peak, secretary of the Chant, able .Aid Board at Hokitika, gave hia opinion as to t-ne meaning of the aiticles in question. ■ After some discussion, Mr Wiltorcl decided to call further evidence. Henry Ellis, hairdresser, said that he left Byrne at Mee’s corner, and went on . in the direction in which Micnell had gone. Witness heard a woman scream. Byrne could 1 not have been near her. When the woman screamed witness ran hack and wont up the lane. He saw By me running ahead. Witness went up the lane, but he tui ned fo the left instead of going ait the way up the steps. oomeone passed him. Witness was not discovered. When an information was laid against By rne, , witness came forward and said what he’ had done. He was fined £lO for as- ; saulting the women. He was wearing; a soft brown felt hat on the niglit in ; question. Witness had the money for the fine sent to him from Kumara. The telegram advising the sending of Hie money was signed uy Mr Murdoch. Hie Original got tom up in his pocket, ii typewritten copy was taken of it by Spencer Ambrose, in MoTavish’s office. Inis was the copy now produced in Court. It was a correct copy, and was made three or four months ago. . By his Honor: W'itness generally kept correspondence of , that sort. ,t might come in useful at some time or another.

Tho telegram, which was read, stated that £lu was being lorwardecl which had been subscribed by Kumara residents who applauded tn© high moral stand taken by Ellis and his oonducfc m protecting an innocent person who was wrongfully accused. By Air Skerrett: Byrne, Michell and witness reached tho Choral Hall at anout a quarter to ten o’clock on the night in question. Witnesswent from the hall to a hotel three times. He was in hotels with Byrne and Michell that night. It was a habit of Mich ell’s to run away from persons in whose company he was. w hater ar happened to the women witness did it. He knew that the women said, that‘the man who assaulted them threatened to strike them with a stick. Neither Michell nor witness had a- stick. The assault hap. pened about ten to fifteen yards from bice’s lane, in the direction of the Goar Company’s shop. It did not happen in front of that shop. He did not remember what shop it was in front of. He had been over two years in Wellington, ancf lived in Sydney street. Tin affair took place under a verandah. Witness’s hat was seized by one of tho women. He seized her hat, and she screamed. There was no struggle. When 1 she screamed witness .ran. Vhon ho was hiding lie hoard men coming down the steps. He told the Magistrate he did not know of the arrest of Bvrno and Michell till next morning. Witness wrote a letter to Byrne after ho (witness) was fined. He had not t kept a copy of the letter. He had not shown the letter or what purported to , bo a. copy of the letter to anyone; In 1 the letter witness told Byrne that he had

not tho money to pay the fine, and he asked Byrne what he could do in the matter. He wrote to Byrne because he thought he had the money, wluc, witness had not. Witness wanted to get the money from somebody. The letter to Byrne was not in indignant terms. Before witness was fined he got a telegram from Byrne. It was a telegram asking wnen witness’s case was coming on. It was only a L-.w words. Witness was fined on the Ist September. He wrote to -uynie next day or a couple of days afterwams. Ho had no arrangement with Byrne. He got a telegram from Mr Murdoch about the £lO. The money came by telegraph money order. He had not heard the names of the persons who contributes the money to pay his fine. Mr Murdoch (to Mr Skerrett); You can get their names if you ask for them.

By Mr .erretfc: Michell and witness wore moustaches and had their chins shaved.

By Air uniord: Witness’s hat was torn to ribbons by _rs Hicks. Witness threw her hat over Mr Mantell’s lence in Sydney street. By his Honor; Witness had never kept a copy of a telegram before. Frank Micnell, hairdresser, now _of Waihi, said that at the time in question ho was living in Courtenay place. He left Byrne at Mee’s corner. Almost immediately afterwards a woman screamed. Witness was walking on the Terraco side of Lambton quay. When u 8 heard tho scream he crossed towards the Police Station. He mot Sergeant Shirley in the street. Witness remembered uiiing the word “prostitutes'" about the women. Byrne and witness did not pass the women. Byrne stopped. Witness walked between the women. ~,e did not see any assault. By Mr Skerrett: Byrne, Ellis and witness had three or four drinks before they went to the dance. He did not know how many drinks they had while at the dance. After leaving the Choral Hall they had one drink. His Honor: You all disagree as to tho number o, drinks. How do you account for that?

Witness: It is a long time ago. He walked away from Byrne—walking fast to keep himself warm. This was tho plaintru s case. Mr Skerrett, in opening the case for defence, said there was nothing of private, or personal, or poliiical bias or spite in the articles complained of. They were never intended to impute anything like sensuality on the part of the men concerned in the affair. They were not written in a style that was to be admired, but they gave roughly a summary of the evidence given in the Court. The most that the articles meant was that tho men were on a “spree” that night. Mrs Margaret Hicks, Queen street, said that at the time in question she was employed as a charwoman at the Parliamentary Buildings. She was on her way to rue Buildings, in company with Mrs Lewis, between 3 and 4 o’clock. When they were between the old and new shops of tho Gear Com,pany a man pushed roughly between them. One of two men who followed him did the same. second man caught hold of witness by the back of the head. She caught hold of him. He lifted a stick, and said he would hit her with it if she screamed. This man had a beard. She caught hold of his hat, bit a hole in it with her teeth, put her fingers in the hole, tore the hat in pieces, and throw the pieces on the ground. It was a. brown felt hat. She did not catch hold of his beard. She identified Byrne at the Police Station as the man who caught hold of her. By Mr Wilford; Witness never saw her hat again. The third man did nothing to witness. She 'never saw Ellis that night. By Mr Skerrett: Byrne called her and her companion some horrible names when they were in the Police Station. By Mr Wilford: Michell said the same things. Witness was not asked about this in, the Magistrate’s Court. Constable E. C. Collett said he was on tho beat between Woodward street and Government House on tho morning in question. Three men passed him near the National Hotel. They were “ jolly.” Two of them were walking! arm-in-arm. Witness was walking towards the Police Station. When hei was between the National and A 1 Ho-| tels he heard a woman scream. He; went put on to the road, and saw there were persons having a scuffle. He ran along towards them'. He saw a man turn, into Mee’s lane. He pursued him up Axason’s steps, and gained on him. Witness had been calling to tho man to stop. Tho man turned and came towards witness. He was carry- j ing a stick., Witness arrested him at | the top of tiie steps. The man said it; was a nice thing for a respectable person to _be mixed up with d prostitutes, and threatened to make it very, very warm for witness, as he had plenty of influence. When he got to the light witness noticed that the man was hareheaded. He was wearing a fawn overcoat. At the watch-house, Mrs Hicks put her hand on Byrne, and said he was the man who had assaulted her. Witness denied certain statements made bv Bvrnc. Witness found two portions of a brown felt hat, one portion at Mee’s corner, and the other near the Gear Company’s shop. (Those exhibits were produced iu the Magistrate’s Court, but they have since been mislaid.) By Mr Wilford: Witness saw the two men go between'the women arm-in-arm. The last time he saw the men they wore arm-in-arm. After going between the women they separated. The men were Byrne and Michell. Witness did not know that Ellis went up the lane. He did not know anything about tho third man. He could not explain how Mrs Hicks saw a third man looking on at the assault.

Bv Mr Skerrett; Witness saw the scuffle from tho A 1 Hotel. His eyes were following tho men and women from the time they passed him. The Court at 6.25 p.m, adjourned till this morning at 10 o’clock.