NO SEDITION?

New Zealand Times, Volume XLVII, Issue 10956, 19 July 1921, Page 4

NO SEDITION?

APPLICATION TO EMPIRE HICKKY-GLOVER CASE BEFORE FULL COURT. CROWN APPEAL UPHELD. The Full Court was engaged yesterday morning in hearing the appeal‘of the Crown against the finding of Mr F. K. Hunt, S.M., in the case in which P. H. Hickey and J. Glover were charged with the printing and sale of a seditious pamphlet. The court comprised Their Honours Mr Justice Sim (Acting-Chief Justice), Mr Justice Hosking, Mr Justice Stringer, Mr Justice Reed, Mr Justice Adams. ALLEGED SEDITIOUS PAMPHLET In the case stated by Mr Hunt, S.M., he stated: “I determined, as a matter of law, that no offence had been committed, because the said pamphlet had expressed no seditious intention against the New Zealand Government. The question for the court is whether my determination was wrong in jaw.” The facts, as disclosed in the depositions in the lower court were that, cn April 12th, Constable Ambrose purchased from Glover copies of a pamphlet -written by John McLean, and published in the office of the “Mainland Worker,” of which Hickey was the printer and publisher at the time of publication—October, 1920. The magistrate dismissed the information alleging the publication and sale of pamphlets of a seditious intention —“The Irish Tragedy, Scotland’s Disgrace”—against P. H. Hickey, publisher, and J. Glover, manager, of the “Maori! and Worker.” Mr P. S. K. Mgcassev appeared for tlie Grown: Mr P. J- O’Regan appeared for the respondents. CASE FOR THE CROWN. Mr Macassev, in presenting the case for the Crown, quoted €he War Regulations, 1915, and the Continuance Act, 1920, .and pointed out that the present Act • contained no definition of “seditious intention.” The based its case on three grounds—(a) There was intention to excite disaffection against the British Government ; (b) There was intention to create disaffection, amongst His Majesty’s subjects ; (c) There was intention to promote a feeling of ill-will and hostility between classes of the community. The magistrate, said counsel, thought that seditious must refer to New Zealand. ‘ It should ,be pointed out that although the pamphlet was dangerous, it was not so violent as other pamphlets. The police were very anxious that these pamphlets should not be circulated in the Dominion. Counsel read extracts of the pamphlet, which made 6erious charges against the British Government, and urged direct action by the working classes against capitalists, and fostered bad feeling between sections of the Irish people. There was only one question, a simple point of law, before the court.

1 CASE FOR RESPONDENTS. “ NO SEDITION AGAINST DOMINION.” Mr O’Regan said that the pamphlet complained of had not been published in the "Msuxriland Worker.’ ’ A member of the public went into' the "Worker” office and asked for a quotation for printing copies of it. He ordered 1000 copies of it while respondent Hickey was .acting in the absence of Mr Glover in England. Mr Justice Stringer: Those facts do not affect the question of sedition. Mr O’Regan: No. Rut I wanted to moke them clear to the court. The magistrate found that the reprinting of the pamphlet, -which was written in England, and criticises rather forcibly the British' Government, did not. prove sedition, because there was no criticism, seditious or otherwise, against the Government or the public of New Zealand. If he had been dealing with it in England he would no doubt have decided otherwise. But he meant that its publication did not prove sedition, against the printer. DOES SEDITION APPLY TO EMPIRE? Counsel referred to section 118 of the Crimes Act, quoted by the Crown counsel, which dealt rather with the bringing into hatred or contempt the presence of His Majesty. Mw Justice Stringer: Do you contend that sedition must be expressed against the New Zealand Govern-

ment? Mr O’Regan : War Regulation 4 refers to violence in New Zealand. Mr Justice Hosking: You say we Should hot construe the regulation as widely as the Crimes Act—that' the War Regulation was for New Zealand only ? Counsel: Yes, and that matters outside New Zealand are not within the ambit of the War Regulation. The subsequent enactment of a definition was an admission that a definition was necessary. Mr Justice Stringer: Where would you go for a definition of sedition if there were none in the regulation of September, 1915? To the Crimes Act? Counsel: Yes, possibly. (Laughter.) DEFINITION IN COMMON LAW. Mr Justice Hosking quoted tho terms of the regulation—"insulting, annoying, or discrediting the subjects of any State in alliance with His Majesty in the present war.” "If you insulted an Italian or a Frenchman under that regulation, it was sedition,” he said. "There was no such thing as that in the Crimes Act.” Mr O’Regan; I think we will hare to fall back on the common law of definition. It is the definition of sedition, covering the reprint of a pamphlet referring to conditions in another country, not Now Zealand. It does not incite violence. Mr Justice Stringer: That is a point of law. . If it does .pot affect New Zealand, does it necessarily follow that it is not sedition? I know of no precedent that it should refer to tho New Zealand Government, rather than any part of the British Empire or any Governmente of the Empire. Mr Justice Hosking: In common law, it K against the State, and the State, I take it, is the British Empire.

INCITEMENT OF OTHER COUNTRIES. Mr Justice Stringer: According te your argument, it would not be seditious if directed against the British Government only. Mr O’Regan: No. unless it was printed in Now Zealand for distribution in England. Suppose New Zealand and England were foreign conntrio;, it would bo a matter of mutual arrangement between the Govern-

ments, and such things have been done, to prevent the publication of seditions literature. I don't think tho argument would carry to the lengths suggestt-d by Your Honour. Mr .Justice .Stringer. You say tho incitement of any amount of bloo&thed by Irish against English, nr English against Ir;«h. d<>e< net, apply to New ; Zealand ? People could go Home, and carry out the teachings they had learned here. Tim "incitement, encouragement. and advocacy of violence” is tho offence. It it wa- advocated againstthe Australian Government, you wonld ■ say it was sedition ? Mr O'Regan: It would he liable to punishment. Mr Justice Stringer: Then, why not here? A man may not go to Australia. and say it could not be published here. Mr O’Regan quoted the offences of section 118 of the Crimes Act section teferred to. LAW OF BRITISH UMPIRE. Mr Justice Hosking: It also refers to ‘ 'discontent or disaffection amongst His Majesty’s subjects in any part of the British Empire.” Mr O’Rega n: There *is no doubt about that. But it is largely qualified by- what follows in sub-section 2. Mr Justice Hosking: That is going into a question of fact. Mr Justice Reed refers to "inciting His Majesty’s subjects ' o any alteration of the constitution, other than by lawful means.” Mr O’ Regan: The constitution of New Zealand. Mr Justice Hosking: Or any other part, of the British Empire, I* should think. Mr O'Regan: That ip the crux of the matter. Mr Justice Hosking: Was the seotion of the Grimes Act brought. to the notice of the magistrate? Counsel: Yea. , Mr Justice Hosking: The whole point is the removal from trial by jury, and placing the matter in the hands of the magistrate. The Crown has tw« courses open. MAGISTRATE’S JURISDICTION. Mr Justice Stringer: Do you really contend .that the magistrate was right in law? He asks our opinion, but it is still open to him to deal with the matter under the Crimes Act. Air O’Regan: The magistrate has no jurisdiction tinder the Crimes Act. Air Justice Stringer: Why not commit for trial ? Air O’Regan quoted powers that had been included in the Justices Act, that were also in . the function of roagis,traxes. Mr Justice Hosking: They are put in the Justices Act simply for the justices’ reference. Mr Justice Stringer: So that they won’t have to turn up the Crimes Act. Air O’Regan: The pamphlet is undoubtedly seditious in intention, and would be a breach of the 1916 Act, but, when you go to the definition in the Crimes Act, you have a direct interpretation. “AN ADOPTED CHILD.” Air Justice Stringer: We are nut concerned with the question of the pamphlet. We" are concerned with a question of law. Who suggested to the magistrate that it was not sedition if it did not apply to New Zealand? ' Mr Macassey: It was the magistrate’s contention, but it was supported by Air O 'Regan. Mr O’Regan: I thank my friend for cominc tp my assistance. Air Justice Stringer: It was the magistrate’s child, and you are adopting it. (Laughter.) JUDGMENT OF THE COURT. , Their Honours conferred for a few moments, and His Honour Mr Justice Sim announced the judgment pf the court. His Honour said: The Regulations of December. 1916, having bc*m repealed, the court, for the purpose of ascertaining what is meant by "seditious intention” within Regulation 4, is entitled to go to section 118 pf the Crimes Act, 1906. There is nothing in tliat section which justifies the view taken by the magistrate, that seditious intention, expressed in the document, must be seditious intention expressed against the Government of New Zealand. The appeal in the case must be allowed, and the case sent back to the magistrate to be dealt with. . Air Justice Hosking: I agree with, the observation of the Chief Justice. Mr Justice Stringer: I agree that " the case should be sent back. It seems to me that the case for the respondents is quite unarguable. Air O’Regan has been set to make bricks without . straw. (Laughter.) Air Justice Reed and Afr Justice Adams also concurred. The Crown was awarded £5 5s costs