PRESS PRIVILEGE.

NZ Truth, Issue 146, 4 April 1908, Page 8

PRESS PRIVILEGE.

JUDGE VERSUS JURORS,

The Triumph of Common Sense.

;(From W.A!, "Truth.")

There is \o greater safeguard to the liberty of the subject than the system of trial by jury. -if it is not actually .a direct product of the An-glo-Saxon genius it undoubtedly has reached its highest development among that people. It is not within the scope of this article to treat of the history of trial by jury, through ,all its evolutions from the Witanagemot of4he Saxons to the machine m service to-day. Nor shall it be inpumbent upon us to make more than passing reference to those atrocities of the Middle Ages— trial by Wager and trial by Ordeal. Possibly those usages of superstition were but the apt precursors to the system now m vogue. British jurisprudence, the product of centuries of virile struggling, recognises two prime essentials—that a man is to' be deemed innocent until he is proved guilty, and that any accused man is entitled to be judged by a jury of his peers. Time was whan the jury counted for | little enough, when it could be overawed into a spirit of proper docility by a Jeffreys or a Scrogg. But those '■'♦good old days" are now" happily gone— gone for ever. In/ no Englishspeaking comnuunity dare a judge now usurp the functions of a jury. though occasions' have not been recently wanting on which a judge has strenuously endeavored to do so. The jury empannelJed and sworn to try an issue are the judges of fact ; the ■ presiding judge is merely their director as regards points of law and responsible for the decordus conduct of the court. . When a judge exceeds these functions he undoubtedly errf# and seeks to usurp powers and privileges that of right are the undoubted prerogative of the jury. British jurisprudence provides no parallel to the French "juge d' instructione" m which the presiding judge is practically prosecutor as well as judge. Nor are there any indications that, on the part of the masses of. the people, the advent of such an official into our recognised system of court procedure is ardently yearned for.. Excellent though it be, the jury system, m the eyes of many, by no means 'represents the apex of judicial attainment. Time and again it has been mooted that for the system of trial by jury there should be substituted a system of trial ■by judger-that a single judge, unassisted by jurors, should' determine each and every issue. The proposal is riot without" its advocates; but are those advocates altogether disinterested ? In no empire that tliis aged world has any record of were the rights of . the people more securely fenced in -and guarded than m the empire of which the Commonwealth of Australia forms no inconsiderable portion. And no quarter of His Majesty's extensive dominions can point - with a more righteous pride to the probity, the honor and the lore of her judges. Like the exquisite Chevalier Bayard they are "sans peur et sans reproche"-^with-out fear and without . reproach. * But under British rule the judges are but the interpreters of the law. , • When they exceed that function they are trespassing upon a province that is, was, and is intended to be, solely the jury's. The jury is the buttress between the accused person and the Majesty of the Law. v Judges, especially judges of the superior courts, are vested with extensive powers, powers so extensive that a judge is practically king m his own court, and his sway within the limited realm ' that bows him obeisance is quite as --autocratic as that of the Emperor of %11 the Russias. And because he. is enveloped with.these powers and prerogatives only persons of proved probity and approved intellectual and educational attainments are nominated to judgeships. ♦ * • , A judge is appointed for life—pending good behavior, and can only be removed on the joint motion of- both J Houses of the Legislative. But it has too frequently happened, and perhaps particularly m Australia, that a judgeship has been the reward of political partisanship. Two cases recur to us prominently m this connection. The democratic world of Australia has not yet' forgotten the peculiar circumstances under which the present Chief Justice of the High Court of Australia— Sir Samuel Walker Griffith— became Chief Justice of Queensland, nor the circumstances under which Sir John Madden was politically hoisted over the heads of senior puisne judges like Sir Hartley Williams and Mr Justice Holroyd, into the highest judiciary seat m. Victoria. The circumstances attendant upon these appointments,were,.nothhig less than scandalous, and people began to wonder whether, after all, it might not be better to revert to the system m vogue m some of the. S (sates of the American Union where State judges are elected m the same fashion as Mayors and Aldermen. Happily, m both these instances, the, character and quality of the men. chosen has amply vindicated their political appointment. There are few men m his Majesty's dominions whose probity and judicial worth are more generally recognised and esteemed than those of Sir Samuel Griffith, and few more successful judges of the Supreme Court than Sir John Madden. But this notwithstanding, that the system of the appointment of political partisans to seats on the judiciary is pernicious to a grave degree is 'beyond all successful challenge. Political partisanship, like religious belief, dies hard, and it is expected m a j(idge m a court of English law that he should be above all influence from without, that he shall have cast aside all the hampering i trappings of tradition and adjudicate upon an issue purely upon its merits. * * * ■ . The vast powers with which judges, peculiarly judges of the Supreme Court, are endowed, possibly beget a yearning for still less restricted ar.d further-reaching power. In no other way can be explained the too frequent incidence of judges usurping or attempting to usurp powers and privileges that are essentially the prerogatives of the jury. Although the jury are the ordained JUDGES OF THE FACTS of an issue, it stall

I lies within. the power of a-judge, Massed either consciously or unconsciously, to very effectively sway them m the course of the precis or summary of the evidence which he presents to them, m what is technically termed his "summing-up." It is among the common things of the world to hear or read of a judge haying "sumtned.up" FOR or AGAINST a party m his address to the jury.. Nevertheless, it is patently beyond the province of any judge to exhibit bias m one way or the other, , either m favor of, or against any accused person. The functions of the judge are to act as arbiter m the matter and to assist the jury to arrive at a correct conclusion by presenting to : them the facts elicited m evidence m clear and systematic sequence. TMiere..; the judge's functions cease— w should cease. In practice, however j it too frequently occurs that a judge— safely enthroned behind the : pallisad.es of^unchallengeable power with wlidoh ;a trusting people has endowed him— aspires to a power little less than Omnipotence, and brow-beats and bul-ly-damns a jury into a servile acquiescence m his own. individual view of the matter at issue. In these days of intellectual advancement, these days of the printing press and -the piVb'lic school, however, judges find, it increasingly difficult to over-awe jurors. Nevertheless they repeatedly; try and too frequently succeed. And '', every such effort is a direct - infringement of the powers, privilegea and prerogatives of the jury. t * • . . ■ t • . . . ■ Mr Justice Rooth last week had a matter before him m which tlie publisher of this journal 'was charged vith having published and uttered an indecency. From the very outset the charge was farcical and as futile as lit was farcical. The prosecution put us to a certain amount of bother and to some' expense, and m that regard it succeeded m the purpose for which it was designed. Although a legal gentleman named Wood was the nominal prosecutor, this paper feels no rancor against him. Seemingly Wood is but the abject megaphone of a more astute and less courageous entity behind the scenes. There is a story related m Genesis that recurs to its just here with added significcance. The blind and aged patriarch Isaac had occasion to murmur, "The hand is the hand of Esau, but the voice is the voice of Jacob." Similarly "Truth" has quite a lively recognition of tlie actual instigator and instrument of the recent prosecution. It was nothing more or less than a dubious political dodge to down a democratic paper under the cloak of a pseudo-sanctity. Perhaps it would be too much; to expect that we should be altogether devoid of partisanship m criticising this matter, but that we are not alone m our demurs at the equity and justice of the recent prosecution may be evidenced by the following suggestive paragraph from an esteemed contemporary : ■•';■ ' "The prosecution , of "Truth's" manager for indecent publication was chiefly remarkable for the savage manner m which Judge Rooth , dealt with the defendant. The imported judge summed up dead against tho accused, and fairly let himself go m denunciation of the newspaper, ,but the jury only took a few minutes to make up their minds that Dawson was innocent. Which was a cruel bump to Rooth. By the way the English judge never misses an. opportunity of getting home on the prolonged Crown Prosecutor Wood, who once charged up his Kalgobrlie drink Will and tipping account to his suffering country. But m that respect Roothless is decidedly not to blame." — "Kalgoorlre Sun." ■■* • , • From the very outset that prosecution was palpably unjust and iniquitous. It was not instituted to promote the public weal or to do anything further than discharge a private grudge which the present Government may fancy it has a right to bear towards "Truth." And the head and front, of "Truth's" offending has been a journalistic candor and outspokenness that possibly verged upon the borders of a commendable rudeness. It has rarely happened m the history of Western Australia that such an adept at the making of balls as Attorney-General Keenan should have at his command a creature so ready and willing, and withal so abjectly feeble m firing, as Mr Crown Prosecutor Wood. Had that gentleman confined himself to his office as prosecutor for the Crown there would have been no just reason for demur. But he entered upon the fight with a vigor and enthusiasm that must have been either personal or splenetic,. tenth, a persistent alacrity that was worthy of a better cause. His enthusiasm m the service of his Ministerial pirompter, Mr. Attorney-General Keenan, <led him into a course of procedure that was highly indiscreet, if indeed it was not dubious. The Crown Prosecutor was as well aware as any juryman that the nominal defendant m that case was not m any measure responsible for the matter relating to. the Melbourne-heard Wallace divorce case. Nevertheless . he did his undoubted best to make that the primary count m. the Crown's indictment against the publisher of "Truth.'.' And m this laudable endeavor to smother the "people's paper" this learned gentleman was consciously or unconsciously, aided and abetted by his Honor Mr Justice Rooth. We are not m any way imputing to the learned judge any conscious impropriety, or unfairness m his deliverance on the issue to the jury. It was a de-. cisively one-sided and unjust sum-ming-up and of this the. emphatic declaration of the jury— after a'few minutes' adjournment and m face of his Honor's most pointed instructions—, furnishes the most convincing confirmation * « ■ His Honor summed-up m a spirit of judicial asperity that almost speltspite. It is to the crowning glory of the jury system that the "twelve good men and true" refused to bow down to his Honor's undoubted dictation. "Truth." like all other fasts

fight hard— and dies' hard, and had the innocent publisher m this instance been sentenced there would have been an. uproar that even Mr Justice Rooth might have heard. There were certain points pi law that were reserved and would have been submitted to a higher tribunal, had an intelligent jury not so scornfully thrown out the '-'information." The actual points reserved were there :-*- --1. That there was no evidence of "mens rae" present, that is Ik> say, that the defendant had no reasonable knowledge of the alleged impurity m the paragraph. 2. Sec, 20-i of the Code is repealed by necessary implication by the Indecent Publications Act, 1902. 3. The learned judge was wrong m rejecting evidence by the defence to Show the construction placed on the paragraph (the subject of the prosecution) was not indecent. ** - ♦ The resultant consequence of • that trial has been the triumph of com-mon-sense over.- judicial tradition. The jury very properly resented the undoubted trespass of the judge. Our judges are embellished with a power that is almost autocratic, but they are not permitted to usurp the functions of the jury. That they can unduly influence a jury— and that they \ do so— cannot be denied, but the salvation of the ordinary sinner lies with the jury. Precisely who was the originator of the system of TRIAL BY. JURY is lost away back m the twilight of fable, but whoever he may have been, Democracy has more than one reason to bless him. N He is blessed hereby: