"TRUTHS'S" TROUBLES

NZ Truth, Issue 99, 11 May 1907, Page 5

"TRUTHS'S" TROUBLES

THE MANAGER BEFORE THE COURT,

Charged witli Selling Indecent Literature.

•:•• ■ •• ; . ■■■■■ , ' ..-. . -, - .*" *■ Dr. McArffiiir Finds Him Not Responsible and Dismisses

Ttoe publication m the columns of "•Truth" of January 26, a few unwholesome yet true facts ooßeewiwig .the Fijians who were on show at the Christohurch Exhibition was the subject of a prosecution at the S;M*s Court yesterday (Friday) when John .Ihomras McKinnon,. manager. of '"Truth" appeared before ..DrMcAribhur S-M. charged with having sold fto Mariqn Thompson sundry copies of ithe paper which m part contained an article Entitled "Liked 'em Stinking" and which was, held to be of an rm>Inoral, obscene and offensive nature. Mr M. Myers prosecuted for/the jbrown, and Mj Wilford and Mr Dunn appeared for the. defendent, who pleaded.'not guilty and elected to be pumma*dly "dealt with. ' Mr Myers m opening the case re- ' marked that ' the • only point that iwould arise would he' whether the article came within the statute of the Act of 1892 J though he understood an affimative defence under the [Act of 1905 would .be radsed and m so dome: the onus rested upon, the 'defendant. The, position of the "prosecution might have been rendered iuore difficult but for the attitude of Ifche defendant m •ADMITTING' THE . PUBLICATION ; otherwise the prosecution might have fceen directed against the person from iwhom the police mud actually obtained the paper. McKinnon had taken upon himself -the onus .of the matter, and the 'formalities had been admitted, viz, . that he was manager of /'Truth" and ; that the paper was , sold. . ■ • ! ' Mr. Wilford : We admit that he is manager and that he soM it. ', Mr Myers said the prosecution .was ; under Section 3 of the' Offensive Publication Act of 1592, he tendered a copy of the paper. This was the Crown case. Mr Wilford saM he proposed with the Magistrate's consent to defer his remarks on the Law and on the question of the article until he had palled ope witness.; It was necessary for a legal defence to call that evidence. McKinnon would admit that he was manager of "Thruth" tha-t he sold the paper, the. subject: of the prosecution. He wanted to show.further on his oath' that from: January; 21" to January 29 he was absent frb.m Wellington. , . '■..'''.' ' The defendant m the box said he left Wellingbbn on January 21 of; this year .for Christchurch, ■ and returned to- Wellington on -January 129. He <Hd my\. see the 'article, cony iplained of until it was issued m the paper, nor did he have any opppr•ftindty of ■'■ -flawing =**he ... contentsaof' the paper. - From the witness, Mr Myera. ob-i stained th© information that the.; ar-! .tide was sent from ChriatehuTCh, thfj same night' that he left Welli-ngtpn. He heard. of- the subject matter m the article m OhTistchuroh, though he :did not hear of it from "Truth's" :ohristchuroh reporter, as he did not Bee hflicn. As mapager, he was res<ponsible: f oi^ the newspaper, and again ,he admitted having sold tho ...paper. . (Mr- ■ Wilford then addressed 'the jcourt and said be proposed to refer -to the legal aspect of ■■ the case.. ,He asked the Magistrate to consider, tarefuliy. sections H and 4-fll the Act of l-a&a and he further desired him to read the decision m Ewart's case of 19*05 especially the remarks of Mr. Justice EdwaMs. Af^er that be desired 'Mm to read section 2 of the Offensive Publications Act of 1905, a few which was passed to put into; (concrete form, Mr Justice Bdward's ,jaw on tbe subject.' In reference.' to 'the Act of 1892 the offence was complete m the - selling of a newspaper which contained obscene and, .indecent matter a»nd:- ; : Until the Act: qf 1905 there was nb defence given by" statute to any vendor- of newspapers which migjit be. deemed indecent or obscene, 'hut part of the statute of 1905 established a defence for". any man charged with an offence of the nature before the court and that special defence was- set out m section 2. In the Criminal Code m cases of A CRIMINAL NATURE such as rape there was^ a.. special defence' which ' provided ' that a person so charged could . estaHifih to a ■j,u'ry that he .'had reasonable belief that the girl was oyer 16 yeaars of. age. flha.t was a special-, defence, oven though there, was wrong-<doing. The defendant, instead of exercising th* 8 ■right of. takings has case before the .Supreme' Court," and he (Mr Wilford) he was" right m saying that jao jury bad had a similar, case. pe-. ~f c- re them since the Act 'Of l^flS had come into operation, had decided to place: the matter m the Magistrate's hands ' for determinaton and elected- to be tried summarily. In. doing so he asked ,the Magistrate to give; a decision sitting as a J u ry, and he did not know whether this special/defence had been taken m any other case. Mr Myers:, lt was raised m another case against "Truth." Mr Wilford : I was not m that'ease. The Statute, Mr Wilford continued was : ." , "tn any proceedings against any person under the Offensive Publications Act of 1892 or the Criminal Code -Act 1893 or m any other Statute relating to the publication or sale of indecent or immoral or obscene matter it shall riot be a defence that he did not know that the picture or printed matter oomplained of was of an indecent, immo r ai oi. obscene nature unless he satisfies the Court not only that he did »ot m f act 'knw it but had no resonable opportunity qt knowing it arid fdrther that m the eircumstancee of the case his ignorance was; excusable." ' ' . . .Mr Wilford asked the Magistrate to flay whether, m the f&ee of; the an-

the information.

contradicted oath of McKinnon, viz., that, he 'did not know - that the article was published, and that by itself was not an excuse, but also that he had no opportunity of knowing- and, therefore, m the circumstances of the case that felS IGNORANCE WAS EXCUSABLE, •'' he could'' be held responsible. In dealing with that phase of the question and the only other admitted issue before the, Court was that the paper was sold by the- defendant, who was manager of '"T)ruth," the defence raised was the only /one. .possible -m law,, apart, of course, from the distinction wheth--. er the article was indecent or obscene, and that the .Court was to be •satisfied not only that be did not know it to be so, but that he did not have a, reasonable opportunity of knowing it. • He asked the Magistrate, by virtue, of the fact that there was no contradiction of McKinnon's evidence that he. left Wellirigton.-ori. January 21 and did not return -from Christchurch till January 20, and did not see the publication till it. was sold, iio dismiss the information*. It seemed to him that this was a case that the Legislature had m its mind when. thG Act was framed.. After dealing with the discretionary power vested ih the Magistrate Mr Wilford contended that the words "any reasonable opportunity of knowing" meant that a defendant .'must have been m a position to. have been able to .know the; nature of the 'matter published. McKinnon's uncontradicted statement on- oath showed that he could not have possibly known that it was written or printed, and m the face of that how could the Court hold that he had a reasonable opportunity of •KNOWING THE ARTICLE WAS PUBLISHED m the paper.' f *.';.. Mr Wilford y.ext dealt with the article itseif. 'He said it was i a difficult. t^ing where there we're no defiMtions under the Statute of obscenity aiid indecency- to know where : the, Jibe of demarcation should be drawii between words: : Dr. McArthur :It is virtually impossible! Mr Wilford ;: It is impossible. ;. If Webster, s ' dictionary, or * any other d^ctiopary, was searched the words would 'be defin^ m many ways. Some words would hardly' be regarded as obscene &t all. If quotations were taken from standard (authors they;." would find themselves just ias farrfip-.rt as if they dealt witli ctir-rqn^i..eraitoe-of.';the. day, -or cttrn-'irt-j advertisements of the day. The -,iudgpient b^ the Court would, therefore,, have, to rely on the view taken by •trie' Magistrate'' in his ; interpretation of words. It was quite possible for -a man of hypersensitive, or ,ultra-Puritanical views to' . define .W'hsrt was obscenity or indecency, and those, views would not lind favor, in the mind of the ordinary rfnan. ..'• Again ' remindine; the Magistrate that ho help could be obtained from .she 'perusal of ista^daj-d, or any other authorities m "the definition OF OBSCENITY AND INDECENCY Mr Wilford remarked that it bad been a great m\atter of wonder to the defendant as to who instituted this ' 'ind-igatiki-n, " / a word, counsel explained, ta)ken from the Latin "indigatio," and meaning investigation. Dr McAxthui; : Weil wte have to live a*d yet learn. -„ . ; l Mr Wilford : There is one thing of great concern to JVTcKinrion, and this is the reason of tlhe investigation irvtp this particular article. Counssel •' ■' went f on to say that he was entitled to criticise the whole and not part of' the article, and see whether it (Same within tlie category of Mr Myer's -contention .that it came within the meaning of the Act *'-of 1892 It was -headed, lie said, "Liked 'Era' Stinking.'' He supposed it would be admitted by - anybody who visited the Exhibition that both the Fijian compound, and tlie men themselves, were stinking. He did not suppose that the word stink was obscene or indecent. H it was, hardly a man who travelled between Kaiwarra and Nauharahga Sad not 'been guilty of USING OBSCENE LANGUAGE/ and the word stinking. There, could be ._ no question that the Fijians smelt, and 'the 'pap^r or anybody else coald hardly he deemed to be obscene for using the expression that they were stinking. A Public Health Officer , .'had recently . t^old -hjm (Mr Wilford) that a. lot Of sausages aiid hams were found piled up m aw.C, and that the w.c. was used and the hams and sausages were used m a shop and he, therefore, tpought the hams 'and sausages we're kept m a stinking place. The next line was "Woman's Cra/.e for Black Stuff." What were the meaning of those words ? If we had a lot of Fijians m this Colony, or Chinese, as m fact 'we had' m this country, debauncbing or ruining, • or desiring to debaunch or ruin young girls m every way described could that not be called a craze for black stuff. Every man who went to Christcihtocch heard some statement thttt the Fijians had misbe- : hayed themselves. Aiiyhody who read books of the present day knew that such a Craze did exist m minds diseased, and even where the people . were brought up well or educated they did fall so low as to prefer ! nig-ers, Chinamen, and men of that kind m making or marriage. These were facts, everybody knew it, and "TRUtH" DARED TO SAY IT. At this stage the Magistrate ex-pressed-a d'isirc to hear Mr. Myers on the leq;al question raised. Briefly, i Mr. Myers contended that the de- ■ fe»dant, having taken, the responsH

ility of the sale on his shoulders, he could not . shelter himself behind the hedge of ignorance of the publication. Further, a threat was made. that. !if Mr Wilford's point was upheld proceedings would be directed aeainst Mrs. ■•, Thompson or persons m" •"'Truth'*, office who had delivered the papers to her. ' . Mr. Wilford'- resppnded that- the ithreat of such, prosecutions was . iio answer to his ; largumeht.. Continuing his 'remarks on the article he said he would ask the Magistrate ! to point out any obscene or indecent words. Reading the article he de°.it with the il wOrd ravish, which coum! not be construed i.s obscene or indecent, and he ?id not think it possible to more '-.carofuliy veil\ what was meant. Every man would agree with what was . said if a Woman knocked aibout with niggei's, and -if she did not behave herself—she did not deserve any. consideration-; m. fact, most men. would be inclined tb say "Hear, Hear" to it. Ho wanted to say. moreover, th^.t there could be no .rjuestion of the good this ' kind of paper had done. It did a lot of. •rood. It. exposed and denounced quacics and frauds" from the Dowie type upwards or downwards . It was ever on the -track of ouacks. particularly the religious ejuacks and cranks, and all lands ot jmen whp im-' posed on the ignorance of the credulous and effected to, cure cancer and every other ill .that it was imposs-; il'jle to ! get rid of. It 'had done much < m the prevention of crime, arid' none knew better than those engaged m criminal- cases, how people dreaded an exposure of their wrong-doings m the columns of "Truth." It had rip doubt come under lifs Worship's nbtice^ under the notice of the people that the paper created A TERROR AMONG WRONGDOERS especially young girls, boys and women. They knew that the perpetration of v.*rong on ; their part would he brought before the public. Swindling companies, and other snipe fin-ari-; cial ccrieeras . had "wver turned on th'ean the search-light of the paper, and numerous undertakings of this, kind .had ..been burst up. Such a concern was exposed by them but a few' weeks ago. What was the reason that this article was picked out as being indecent or- obscene Was it that the individual indicated was seeking ah opportunity to get back on the paper that had written o.bout him. Statements made to the -paper were always investigiated, Tne writer of i&iy article always made investigatiioris.f..Tht ro was a ease of criminal libel against "Truth" sometime ago, and the paper was prepared to prove what had' been printed and it was always prepared to prove its assertions' if /the party concerned desired to 'go into court. Every- care was exercised before an article was pubHs-hed. This vvas a case peouiiarlv "for the Magistrate to v decide upon. O^ the public platform and m other discussions where the dark ptyrase of life were considered, sfcrongier words— what would bo called plain talk would be used. He could honestly say that it would require a good stretch of the imagination to say- that .the words employed;. i.n the article were obscene or indecent. He asked Dr McArthur to rememher that he was sitting/as ■ a jury as well as a judge ami that he would hot hesitate to say that on the "question of law the informiatiioai _di'Ould he dismissed a-nd that the wording of the article did not come within the limits of the act of 1892. MR MYERS REPLIES. Mr Myers said that the article was one entirely for the consideration of the tribunal whether it was composed of a Magistrate or a jiury : The article had! to foe taken m 'the whole/ The headings had to be taken m conjunction with the matter. If the headiiiig "Woman's craze for b>lack stuff", was not obscene or ijidecent he could- not suggest.' what was. His' Worship had to remember that this was not a scientific work but that it was a newspaper and publisQied and sold on tbe streets and m bookseller's shop and was purchased asttd reaid by persons of 'both sexes, and of all ages. That v.vis a matter which ougjit to be taken into ' consideration im deciidirvg whether the article came within the section. He further submitted that the test to be applied was whether the article' was what an ordinary man of the world or any ordinary individual would consider as being within the. oanoms of ordinary /decency and reasonable good taste. '-.-■% . Dr MoArthur S.M. reserved- his decision till the following Monday. Dr.- McArthur, S.M., ori Monday morning gave his reserved decision ifc the case of the Crown v. John Thomas . McKinnon, manager ' of "Truth," m connection with the sale of a paper containing .matter alleged to te of an indecent, immoral and obscene nature. The following is the text of the decision :— _ .- This, is an information laid against the manager of , the newspaper "Truth" for selling certain printed matter, to wit, sundry copies of New Zealand "Truth" newspaper of January 26, 1907, which as to part thereof, to wit that part under the heading, "Liked 'Em Stinking," was of an indecent, immoral and obscene nature. The Statute Law having reference to the information is contained m sections 3 and 4 of "The Offensive Publications Act, 1892." The parts of the sections, material to the information are as follows. Section 3 of the Act of 1892 provides that - — Whoever sells any printed matter which is of ari indecent, immoral, Or ObsGeiie nature; or which the

Court shall be satisfied is intended to halve an indecent, 'immoral or . obscene, effect shall, on summary conviction, be liable to a penalty, etc, f .%. Section '4 of the Act of 1892 provides that, Whoever gives or delivers to any person -any such printed matter as mentioned m section 3 of the -Act, with- the intent that same, or jjome pa£fc or parts thereof, should be sold ; as theirein mentioned, shall on summary conviction.be liable to a penalty, etc. Section 2 of the £ct of 1905 pro-'vi-des that : ' • In any proceedings against any person under "The Offensive Publications Act, 1892," or "The Criminal Code Act, 1893," Or any other Statute relating to the publication or sale of indecent, immoral or obscene matter v it shall not be a defenoe that he did not know that the picture or printed matter, complained of •'''was of an indecent, immoral or obscene nature, unless he satisfied the Court not only that he did not m fact know' but also that he had no. 'reasonable oppprtunity of knowing it, arid further, thai; in' the circumstances of the case his ignorance was excusable; ; The Act of lflOf, w,as -passed immediately sutsecfucut* to the decision of the Court; of Appeal m the* case of the K»ing v. Ewart, where- it ttas ''held that; "In .the absence of 'mens - rea ' it is ltpj^an offence uaidelr .Sec. .3 • of , ' Tiw^ i '-'';(?iferi's'iV6'' t tPub'li^ati'6ns ,v|A'ct,. U(92,' ■• L; ..to';S< i y:'"^' I |ie*_fSpaper contain-' ing ii. decent, . immoral > en: obscene matter : i.u.t' r.s; the : Statute hi&v'riot expressly made wilfulness '• or inowledge an ingredient'; o!f the o&riceV-the-on*s of proving the abljencev djf a guilty mind is on the a«cljjspcl>'V>.; Williams, J., m his jud*in , imt*said : >.. "■■'*■■ r y til . "The general rule :was- stated by. Brett. J. ■ m. Reg. v. Pririce,j that it, would seem that there must be broof to Satisfy -a jury*, ultimately that, there w,as a'' criminal 'mind .or , "mens rea," m every o rtence really charged as a crime. In some cases ,the proof of the committal of the _ ac'lis .-/may,- prima facie,, either by . reason- of their Own nature, or by reason of the form of -the Statute, .;■ 'imr-ort the proof t ! f the metis, rea. But even, m these case's' it is open to the. prisoner to rebut the..prim.a facie evidence, so that if m the ertd the .jury are satisfied that there - Was no criminal mind or mens rea, ' there cannot, he', a eon/iction m 'EnsLrnd- "for that which is by the law considered' to, he a crime. . In the iuesent case, therefore, although the net is made an offence without (qualification, yet if the de-fend-ipt can show honest ignorance of -what he Was .doing, he is entitled to, be ao-nutte'd unless, the .cast comes, "within some class of exception simit. v v to. those mentioned hy Wright J. Sherrns v. De I . Rutwn, oi- unless there is somethin"?; m too scone of the enactment itself he v- ond the, mere- absence of ••>•• ual i ''....;! tion, fo . make, it an excep- -.. tion tp the: rule." '( Edwards,- J., m his judgment said : "'ihe act charged is, I think, clearly- nn act, which upon the true • construction of the,. Statute, ,is made m itself 'prima' facie to import, a. guilty mind, but as to which the presumptiori arising from the doin-: 1 : of the act Anay be rebutted by .'vidence r.dduced by . the person „ . ch-u'eed ... ,TJib':.,_J:ihinls, is ; .the..; re-*. suit 'ef the authorities, ;*.nd it is one which will ensure justice being done m"i n "' all such cases. I desire to guard m) r sel| from appearing that a person cbafgpd with this offence can m all c.*-s-es discharge himself ' from the cojnse.iuences simnly by swearing that.lv>.' did not know the contents of what he was sellino:. In ?ny ense it will l-.o'for the jury to 1 decide y/hether they will believe, the prisoner's evidence upon that point or nqit." Chapmton, J., sajd : "There is now ; reoognised a third Class of 'case? m which the person charged may he convicted without any further ; proof of knowledge than is inferred fi'om, his doing the forbidden act, but with respect to which he is entitled, to give evidence ; negativing knowledge. . . . The result, iri my opinion, is that the jury ought, to have been told that, if they were satisfied, that te believed on proper grounds that the publication was an innocent 'one, he was entitled to be acquitted." It is admitted that the defendant was manager of the paper and sold -it. His evidence is : "Journalist and manager for 'Truth,' eight' years < manager,' journalist, twelve years ; lef,t hsre January 21 for 'Christchurch and returned January -29, I9t>7. Never saw the article before it appeared." On cross-examination, "J beard about the subject riiatter of the article at Christchurch. I did not see any reporter m Chiristchurch. I am responsible for the paper and sold it." . , • . j Taking into consideration the judment of the Court ' of Appeal m Ewart's case, and the evidence of the defendant, this Court has to decide whether or not it shall lie a defence that the defendant did not know that the printed matter complained of was of an indecent,; immoral, or. OBSCENE NATURE. It cannot. be a defence unless he satisfies the Cpurt first, that he did not m. 'fact, know it, second, that he had no reasonable opportunity of knowing it, and"" third, that iri tthe circumstances of the case his ignorance was excusable. It must; . be *remembered that this' is a criminal proceeding. The defendant was. 'away "from Wellington several days before the article complained of appeared, and "for a few days after its appearance. He admits that he heard ' something about the subject matter of tho article m Christchurch ■;. but he denies that he *ever read the article before it appeared, or saw any reporter m Christchurch. Had he been m Wellington when the article appeared, or had be read the article before its appearance, or even had he seen a reporter iii reference to the article before its appearaiice, I think he would rot te allowed to raise, his present defence. He certainly was MANAGER OP. THE NEWSPAPER, but he was away at tlve time of publication for eight or. nine days, and m his .absence' beard of the subject matter of the article. For the prosecution Mr. Myers contends that this, is rot the. class of case the Legislature had m mind when .passing the Act , of 1905, and tßat tfeis is s-hWit by ihe' 'feet tm% this

Act follows immediately on Ewart's case, that Ewart w*s an ordipary seller, and that the Ast was for the protection of a vendor and not of a publisher. The defendant is before mo as^i. vendor and not as a . publisher, "'and I consider that he is as much entitled to the defence as is AN ORDINARY VENDOR if he can comply with the requirements of the Statute. I do not think it is incumbent on me to conclude that those m "Truth's" office did not know of the nature of the article m order to allow the, defendant to avail himself of the defence. I repeat that this is a criminal proceeding, and, therefore, all the circumstances must be considered m each case m order that justice may be done. . * Tn my opinion the defendant did not know that the written matter complained of was of an indecent, :r.moral or 'obscene nature, that he had no reasona-ble opportunity of knowing it, and, further, that m the circumstances of the. case his ignorance was excusable. Such being my opinion as to the knowledge of the defendant, it does not become necessary for /me to I »ive my opinion as to the nature of the article. I think the information must he dismissed. McKinnon was accordingly discharged.