COURT OF APPEAL

New Zealand Times, Volume XXXIII, Issue 7852, 14 July 1911, Page 9

COURT OF APPEAL

MASSEY V. THE “TIMES” MOTION FOR SEW TRIAL. J UDCI ME.VX’ RESERVED. lloarinK of tho appeal of W. F. Mapfoy aKainst (lie ekeisiun of tho Supreme Court in refusing him a new trial of his notion for lital against tho “New Zealand Timer'* Company, J-Ul., \va-s eoneluded in the Court of Apical yewtorda.v. Tim lioneli v.as occupied hy .) itslK-rs VViiliaum, itcniiislon, Eduards, ami Sim. .Mr It. I). 8011, K.C.. with him Mr A. Gray and Mr U. Jl. Fell, appeared lor the appellant: MrS. Solomon, K.C., wiUi him Mr A. \V. Elair, for the deh-ndant «mi.pauy. A;D,\l ISSiniLITY OF EVLOBNOEAir Solomon coatinned hin arpimcat in reply to opposing eouiir/ol’o contention that, ovidfuoo had bt'Cii wrongly admitted. lie submitted that the evidence complained of waa relevant apart Horn the question of whether it was a<nnit~ aiblo b>r the purpose of testing Uio rcliability of wiUi<X'*h*»- W;uj it the evidence that, was objected to, or was it the methofl of proving the fact? If it nar» the evidence then ho submitted that it wiis relevant; if it was the method o. proof of a fact, thm ho Hn&aiiittod that difficulty was got ever by tlio fact that Dm pliuntiflVs council put tho very. 6;u, , iC questions to Air and obviously it w:us open to the defendant to cixfcfcr uxanunc on Dial question. A* to the relevuucy of tho evidence ho submitted tixat plaintiff had in his pleadings made reference to vho debate in. parliament an one of the dreuin stances surrounding tho libel. lie had tho right to question tho witness as to what they know of tJio Kurroutiding cireu.msUuic.cfc. How otherwiso could he test the value of their evidence on what was admittedly a matter of opinion? Even as.su.rnin# that evidence \va« wrongly admitted, it was truck that it could not possibly have had a prejudiced effect on tho jury. ITS EFFICT ON THE JURY.

B, far as the evidence of Mr Massey ;likl Mr Jfm.ser was concerned their evidence as to what look place in the debate was perfectly admissible. Outside of tho evidence given by tliem there was no evidence which could possibly have affected the jury. Such its was given was rather in favour of plaintiff. The real question for the court was "What was the effect on the jury in tho case?'" Not "What might have been tho effect?" His Honor who presided at the trial was not bound to direct tho jury (as Mr Justice Denniston suggested) that if tho cartoon was capable of a libellous construction plaintiff' was entitled to a vordiot. His duty was rath or to inform tho jury that they had to determine whether the meaning sought to bo put upon tho allegedly libellous matter \ran the only reasonable meaning; and that if they so found it was their duty to find for the plaintiff. Tho question of deciding whether certain matter was or was not a libel was for tho jury, and they could properly disregard any amount of evidence as to the meaning of the libel if they did not, accept that evidence as giving a true and reasonable meaning. This being tho duty of the jury, tho court ought not to invade their province unless it could bo assumed-that the verdict w r as perverse. WHAT IS THE INNUENDO? Ho pointed out again that tho cartoon and the inscriptions were meaningless without innuendo. The words "Hitch your waggon to a Ho” had no meaning, taken literally. In cases where an allegation was relied, upon without innuendo, explanation w-as not only unnecessary, but unallowable. If this cartoon had been submitted as defamatory without innuendo, it would have been the duty of the court to withdraw the case from tho jury. A certain meaning was urged by plaintiff, and his Honor ought to have told tha jury that they must find that it would be impossible for any reasonable man to come to any other conclusion than that that is what it did mean in order to find for plaintiff. A. soon as thero wag room for doubt as to the meaning, the question os to the meaning to be put upon it became one for the jury. And the onus was upon plaintiff to show that tho meaning _ he urged was tho only possible meaning. Thero were, on the contrary, reasons tor supposing that this was not tho meaning. In an article appearing in the defendants newspaper there were statements made which were not in accord with the meaning ascribed to tho cartoon by the plaintiff. Mr Justice Edwards interposed that the article referred to stated that the pamphlet was being "carted round the colony from the North Cape to the Bluff.”

Mr Solomon; But that does not mean that Mr Massey did it. Mr Justice Edwards: Then yon would have been wiser to put another carter there. I understand you don’t dispute that the carter is Air Massey, and if the cartoon moans anything it means that Mir Massey is carting the pamphlets round from the North Capo to the BluffWHAT THE JURY FOUND. Mr Solomou contested this view. He submitted that tho bundles on the cart were the stock in trade of tho Opposition, and tho reference was a general one to the policy and tactics of tho Opposition. In conclusion Mr Solomon said: “I'lafault says that he, or he with others, were responsible for the free distribution of this pamphlet. It may be that that is what tho jury could have found, but that is what the jury did not find. Tho jury said that that is not what the cartoon meant, anti 1 submit that it is impossible for your Honors to say that it has been proved that that is what the cartoon did mean." NOT PERSONAL, BUT POLITICAL. Mr Blair, in support of the contention that tho jury meant by their verdict to exclude personal reference to Mr .Massey, referred their Honors to Mr Bell's opening of the case to the jury. Mr Bell went to the jury with a complaint, not that this was a method of political warfare, not complaining in, any way that the cartoon was aimed against the party, but claiming that it was aimed against Mr Massey in Iris personal capacity—that Mr Massey had been personally concerned in tho distribution of the pamphlet. That was the view Liken in the progress of tile case as shown by Mr Justice Chapman’s summing up to tho jury. Mr Bell had not complained that it was a class libel; ho took exception to tho cartoon only in so far us it affected Mr Massey personally. Mr Justice Chapman, in summing up, said:—"A great deal has boon said whether it is a libel on him personally, or os leader of the Opposition party. If tho actual imputation that Mr Massey had knowingly and willingly taken a hand by means of money, advice, or co-operation in the free distribution of the pamphlet—if that is what is meant —then that is a serious imputation to make against a mon, whether it is made with reference to him personally or as a carrier or a farmer. But you must bear this in mind: That the case made on' in the statement of claim is a case which is not made out unless you hold that it imputes to Mr Massey that he had takou part—an active part—that means Tinowiugiy'—in the distribution of tho pamphlet in such a sciiso that ho ought to be stamped as guilty of a mean and dispicablo act..’’ APPELLANT IN REPLY. MEANING OF THE VERDICT. Mr Bell, in reply, said that plaintiff’s objection to tho summing up was that it may have led tho jury—not that it did lead tho jury—to assume that a libel upon a politician was free. Plaintiff’s objection to the verdict was that the jury did so assume, and said so in their

answer—that tho cartoon was a political skit, and that it was not libellous. On tho question of the admission, of certain evidence ho stated that certain circumstances had to be pleaded to give a meaning to "Pamphlets Free.” But Hx° circumstance of what took place in a debate in Parliament was not of the peculiar nature that could be called '‘.surrounding/' It was open to defendants to prove that a debate took place in Parliament, and even to prove tho subject matter of thy debate, but it was certainly irrelevant to introduce ivkat any member said concerning Mr Massey and the pamphlet in the course or the debate. - Air Justice Sirn: Might it not have a hearing on the question of how the public understood it? , _ , Air Bell admitted that he could not appreciate opposing counsels argument mi that point. Blumf-iff's mam contention was that tho verdict of the jury was not a verdict for the defendant because tho jury had explained the ground on which they found the document not to bo libellous, and that ground was a ground bad in law. , . Their Honors reserved decision.