"TRUTH'S" TROUBLES.

NZ Truth, Issue 139, 15 February 1908, Page 8

"TRUTH'S" TROUBLES.

AN IMPUTED INDECENCY, Clara Butt and Kennerley Rumford. THE WALLACE DIVORCE SUIT. Pleader Pennefather Pertinently Places Points. The " Tinies' " Obscenity m Harcourt's Speech.

At the Perth Police Court on Monday, January 20, before Mr A. S. Roe, P.M., Frederick James Dawson, printer and publisher of the Western Australian edition .of "Truth" newspaper, was charged on summons with having sold certain obscene printed matter. The proceedings were taken by the Crown Law Department, under section 204 of the Criminal x Code Act of 1902. Which reads : 204.— Any person who knowingly and without lawful justification or excuse :— (1) Publicly sells or exposes for sale any obscene book or other obscene printed or written matter, or any , obscene picture, photograph/; drawing or model, or any other object tending to corrupt morals ; or • (2) Exposes to view m any place to which the public are permitted to have access, whether on payment of a charge for admission or not, any obscene picture, photograph,- --> drawing or model, or any -other ob- • ject tending to corrupt morals, or (3) Publicly exhibits any indecent show, or performance, whether on ■ payment of a • charge for admission to see the show or performance or .; not ; '.'■'.' J* guilty ol "a m-isdemeanor, and is 1 liable to imprisonment for hard labor for TWO YEARS. It is a defence to a charge of any of the offences defined m this section to prove that it 'was for the ., public benefit that the act complained of should Joe done. ■■ ; Whether the doing of any such act is or is not for th 6 public benefit is a question of fact. .. CASE IN COURT. The prosecution \?as conducted by acting Crown Prosecutor, G-. T-; Wood, and defendant was represented by Mr R. W. Pennefather, X.C, with Mr W- D. Forbes. The defendant occupied a seat alongside his counsel, at, the ' barristdrsj 'table. In outlining the case for the prosecution Mr Wood stated that the defendant Was charged, under section 204 of the Criminal Code, with having sold obscene printed matter, to wit, a copy of "Truth" newspaper, dated , December 14^ 1807, to one Harry Wallace, knowingly and wittingly, such paper containing a certain indecent, or obscene paragraph referring to Miss Clara Butt and Mr TCp-nnerley Rirmford. It would be necessary to put into the witness box tho person to whom vthis particular ropy of the newspaper was sold, and also to give formal evidence as to the identity of the accused as the printer and publisher of the allegedly offending newspaper. The paragraph which was 'the subiect of the prosecution appeared m the fourth column of pace Rof the "Truth" -of December. 1.4. It had reference' to Miss Clara Butt and Mr TCennerley Rnmford, who, a few weeks bank, 'had been .on a Visit' to Perth. It "would be obvious . fto any person of common sense what . the" nreamijic of that paragraph was. Though the meaning: of the words roiirbt be partially hidden., it must be clear to anyone who read the paper. Tf the \Court was :of opinion that the paragraph under notice was obscenr— and he did not see that the Court ■p.miM bold any other opinion — then an offpnee had undoubtedly been committed against section 204. of the Criminal Code. OFFICE-KEEPER'S EVIDENCE. John Pickering, office-keeper m the Colonial Secretary's Department, stated that he had charge of the newspaper files m that department. A file of "Truth" had -been received at that office under section 10 of the Newspaper and Libels and Registration Act (4.8 Vie: No; 12). Under the provisions of the section quoted he produced a copy of "Truth," dated December 14, 1907. It was signed over the imprint by F. J. Dawson as printer and publisher, though he personally did not know Dawson. (The file was here tendered and marked as an exhibit in' the case.) Frederick James , Dawson was the printer of "Truth" for John Norton ; he knew this, of his office knowledge. In column 4 of page 3 m the issue of December 14 he ' had noticed a certain paragraph having reference to Miss Clara Butt and Mr Kennerley Runvford. The P.M. here read the par., which at no time during the proceedings was read aloud. Mr Wood : In the same issue, I would refer your Worship to a paragraph having reference to the Wallace divorce case, to .show . Mr Pennefather, K.C. : Surely there is wanting a certain amount of delicacy on the part of the Crown ? There has been no mention of -any^. 'thing efse m the paper referred to. This is the first time on which we have heard anything else. Mr. Wood : In cases of forgery we can give evidence to show intention. I am not alleging that this is the matter complained of — -. Mr Pennefather, K.C. : We have a decided objection to being taken by surprise. The P.M. : You won't be taken

by surprise because this matter won't come to finality here. Mr Wood : I direct the court's attention to the first paragraph on column 3, page 2, of the supplement of the same date— December 14— and ask your Worship to (note it m the depositions. The P.M. : lam a little m doubt on this point. The witness says he hasn't read the paragraph. Mr Wood : Yes. The P.M. : The more credit to him. I myself don't attach much invportancc to this Wallace affair. I didn't read the case through ; I grew siok of it. If the matter published Was a correct report of what actually occurred m , court, the defendant: would certainly: not 'be liable;." - "■ y ■' Mr Wood ' Certainly not;:! •• [} The paragraph relating to the Wallace case was not admitted as cvi- ■, dence. Mr Pennefatlier, K.C. (to witness): Who drew your attention to this paragraph about Clara Butt '—l can't really say. I heard about it, but never read the paragraph until someone showed it to me. And put a construction on it that you didn't see ?— No; I made no comment. ' , / The acting Cro\wv Prosecutor at this stage submitted a certificate of the registration of "Truth 1 " as a newspaper. -'■•'•■ HENRY PATRICK WALLACE, plain-clothes constable attached to the Criminal Investigation Branch, and stationed at Perth/ 1 deposed that on Saturday, December 21, at the office of the, "Truth" newspaper, Haystreet, he purchased a copy of. "Truth" dated December 14, 1907. The door of the office opened on to the street, and anyone couk\ go m. Behind the counter was a man, who k on being asked for a copy of the paper, took one from under the counter. Witness read the paragraph complained of and also another one. In his opinion, both were obscene. Plain-clothes Constable John Jones deposed that on the 13th inst he laid the , complaint against Frederick James Dawson, the printer and publisher of "Truth" newspaper. He did not know Dawson till the morning of the 13th inst., when he- served the .•summons. He was directed to Dawson's office, and when witness asked him if ' he were Mr Dawson, the latter replied that he was. Witness did not ask him if he were the editor of the paper. A short conversation followed, but it was not important. Defendant asked witness what particu'nr paragraph contained the alleged offence, saying that he presumed it was m connection of the report " of the proceedings m the Wallace divorce suit. Witness told h'"m that he thought it was m connection with a paragraph tjva'ti bnd heen .printed regarding Clara Butt. Defendant said he had read a paragraph concerninc the impending prosecution of "Truth" m the "West Australian" that mormng and also m the "Sunday Times » M>- Pennefttther, ICO., asked no auestinns. This rnnstituted the case for tb<» prosecution. -SfYMHR RTTBTLE POINTS. Tn answer to the Police. Magis-. trate the defendant intimated that he liad nothing, "at that stage, to say, m answer to the charge. Mr Pennefather, K|.C. : There is ab--solutely no evidence before the Court that the defendant sold this paper. Plaiin-clothes Constable Wallace never attempted to show that defendant w-as the man who sold the paper to him. The P.M. : Dr. Hackett does' not go round selling the "West Australian," nor, presumably, does Mr T> .v---son go round selling this paper. That point, I am afrafd, is not worth considering. Mr Pennefather, K.C. : No evidence has been adduced that the defendant either personally sold the paper or authorised the sale of it. There is another point, your Worship, which, I think, is absolutely fatal to this ; prosecution. The prosecution is under sec. 204 of the Criminal Code, and the. Code came into operation early m 1902, and the section referred to has been impiiediy repealed by the Indecent and Obscene Publications Act of 1902, an Act passed later m the same year. Your Worship will see that that Act was passed Tn December, 1902, and that the Criminal Code came into operation at the beginning of that year, on January 1, Iflfl2. This suhsenuent Acjfe was passed Ijxnresslv to meet eases { of t*"'s character— wh ere something indecent has appeared m a newspaper

which might have escaped the attention of the person responsible. The particular section of the Indecent Publications ,Act (2 Edward VII., No. 14) to which I wish to attention is the last section' It reads :— In reference to any indecent or obscene matter or advertisement appearing m any newspaper, the fol-. lowing provision shall apply :— r No person shall be prosecuted under . this Act for printing, selling, publishing, distributing or exhibiting any such newspaper unless — „ (a) He has been . first warned m writing by any police officer above the rank of corporal that he will be so prosecuted if thereafter he prints, sells, publishes, distributes, or exhibits any copy, of suchv newspaper, whether before or after such warning containing the matter or advertisement of a like nature or effect ; or . . (b) tfti'rter the written authority of the Attorney-General; INTENT MUST BE PROVED. The P.M. : If I remember aright it was Dr. Backett who had that clause added to the Act m the Upper House. Mr Pennefather, K.C. : Yes, your Worship. That entirely changed the procedure under the Criminal Code ar.'l very fairly set out that indec^ut paragraphs must have been printed designedly before an offence could lie. His Worship might recall the ' incident when the "Times" m London allowed an obscene word to creep m, m a report of a policy speech by Sir Willram'Vernon. Hareourt and the enormous sum 'of money it cost the proprietary to rectify the mistake. The Criminal Code, of course,, covers every class of printed matter ; this Act only applies to registered newspapers. The words "No person shall be prosecuted" were mandatory. The P.M. :You claim the provisions of the indecent Publications Act. Does that provis'. jn iinpliedly repeal sec. 204 of jA\e Code? Mr Pennefather, K.C. : Yes, I would refer your Worship to Maxwell on the Interpretation of Statutes (p. 151.) :>—' "It has been laid down generally that if a later statute again describes an . offence created by a former statute,/ and affixes a different .l punishment to it, varying the pro-.'] ceedvngs, giving for instance, an appeal where there was no appeal "before ; directing something more or ■) something different, something more comprehensive, the earlier statute is impliedly repealed by it." We contend that sec. 204 of the Code is repealed by the later Act. The former makes no provision, but the latter does, m the case of registered newspapers. WAR OP WORDS. ; Mr Wood : Then there ,voaM he nothing to prevent any newspaper publishing indecent or .obscene matter. They -would only be punishable after notice had been given them and they repeated the offence. I submit that tfie subsequent" Act is on'v dealinjr witli repetitions of the offence. Surely, my friend is not going to suggest that they should escape Soot free for the first offence '?. There would then be no remedy against a first publication. I submit we are entitled to succeed under section 204 of the Criminal Code. . The P.M. : Supposing a copy of "Truth" had been read the very morr ning of publication by a sergeant of police, who thereupon warned the publisher m writing : "If you distribute or sell any more of these papers you will be prosecuted ?" Mr Wood : Are they to escape prosecution m the first instance ? The P.M. : There is one point that must not be overlooked, a point brought out, by the Crown—that the defendant when he received the summons even did not know vitoat the " obscenity was. Mr ■ Wood : There is nothing inconsistent m the Code and another Act citing the same offence. We are seeking to punish '■the defendant for the actual publication v f obscenity m the first instance. > ' Mr Pennefather, K.C. : In the subsequent Act there is a protection m tavor of newspaper proprietors and managers. , The P.M. : It is an interesting point of law that has been raised. The Code was passed m February, 1902", and the InYlecent Publication^, | Act m December, 1902. But section 7 !of the Code says tha-t prosecutions j may be made under the' Code or any other Act. Mr' Pennefather : The words are "shall not be." The P.M; . That is the manifest object of the Act— -"there shall not. be" any prosecution, etc. However, it is too serious a matter for me to decide. I will not take the responsibility of deciding it. I have a very strong opinion that your argument, Mr Pennefather, is a very good. one. His Worship smilingly intimated* that he had first heard the joke that constituted the alleged obscenity at a motor picnic. Most of those who heard the joke enjoyedv it, but, of course, he had no idea whence it originated Mr Pennefather,' K.C. : I would ask your Worship to find that there is nothing indecent m that paragraph. The P.M. : That is a question ol fact for the jury to decide.

Mr Pennefather, K.C. : There must? be "prima facie" evidence before— The P.M. : It had better be Lett for the jury-to decide. Ma- Pennefather, K.C. : If it geta that far. • - • Mr Wood (sententiousLy) : Oh, it'U get that far. The defendant was then bound over m his own recognisance m £l!ffi. to appear before the next criminal sittings of the Supreme Court, to ' b« held m March next.