DISTEMPERED DENNISTON.

NZ Truth, Issue 158, 27 June 1908, Page 4

DISTEMPERED DENNISTON.

A LIVERISH LAW-GIVER.

Last Tuesday week this paper, properly called •■N.Z. Truth," but more popularly known as "John Norton's Truth," was nominal defendant m a libel suit m which one Charles Boxshall, a person who seems to have played many parts m his career, but who is more likely to go down to posterity as Charley Boxshall, the crack cricketer of Christchurch, and "the man behind the stumps," sued, for publishing a libel alleged to have been contained m the issue of "Truth" of May 2 last, one Adolf Sdhlesinger, a newsagent of Christchurch. Tho result, as has already . been published, was that Oharles Boxshall, by the back-door entrance, not only "cleared" his character, but got a cash consolation of £100 and costs on the lower scale. Therefore, it is presumed that Charley the cricketer, having had his bespattered reputation washed ' as white and as beautiful as the driven snow, is content with the £100, and is still

further content with having had a pot shot at an agent anil will perforce cease from troubling this offending journal, the name of which m some quarters, not excluding the Judicial Bench, is as a reU flag to an enraged bull, the very mention of which is provocative of such harsh and certainly ill-founded assertions "that it is a scurrilous, libel-disseminating jolurnal," and that news-agents who sell such a notorious paper owned by such a person as the notorious Norton, take a risk of being cast m heavy damages. As "Truth" remarked, it was nominal defendant m the recent Ohristchurch suit ; it indemnified Schlesinger, as it indemnifies all its agents. Schlesinger has not. lost a penny by the deal injustice; it caused him no sleepless nights, if anything, it has proved a thumping an-d thuning big advertisement for his Christchurch shop. Moreover, "Truth" being the nominal defendant, and bearing all cost and responsibility, is not crying out as a voice id the wilderness, that all is lost. It relied on a certain line of defence ; the very ground was taken, figuratively speaking, from beneath its feet. It will pay up and look cheerful and trust for better luck m future legal jousts, and what is much more to the point, it will. pray for a presiding Judge who will not manifest feeltings of antagonism. * « ' * The divinity that doth hedge a king does also lend to the occupant of the earthly judgment 1 seat a radiance, the lustre of which! is seldom and has seldom been dimmed by an outrageous and scandalous abuse of a Judge's prerogative. English history is certainly tarnished .witih the "blackened records of corrupt judges. She has had her Bacon, her bloody Jeffries, her Scroggs, and she has had m India's coral strand her Impey, the too pliable tool of that arch scoundrel, but nevertheless loving character, Warren Hastings. But it has ever been found that most of the Judges of the British Empire of this and the previous century have lent to their office an austerity, a dignity and a manliness that has excited the admiration and the envy of rival nations. It has been to the Judges of England that the English-speaking race owes the splendid liberty it enjoys to-day. In a measure also is due the unparalleled freedom that is . enjoyed by the Press, but it must never be forgotten that it is to the juries ot Great Britain, right m the teeth, as it were, of partisan Judges , that mart© Heroes of John Wilkes and Hone, and established, by their tenacity for Justice and liberality, the right of the I'ress to play the part it plays to-day m forming the character of national life. The Juds-e who usurps the functions of a jury by abrogating to himself the right ol deciding libel suits, both on' the law and on facts, is 'acting m a manner repugnant and repulsive to British Justice: It is not within the scope of this article to deal critically with the Law of Libel as it stands today m New Zealand, nor is it our present intention of glancing down the ages and to review and resurrect the glorious fights for freedom that the Press has had to maintain, and still fights -to maintain, against any , particular judge. This i paper, "New Zealand Truth," has ever held our Supreme Court Judges m respect and almost reverence. But Judges, perhaps, at this stage of their lives, have yet to learn that they are but the servants of the people ; they have, perhaps, to be taught, that their actions and their conduct as .Judges are open to scrutiny, ; ; and they are not immune from criticism, though we are mindful of the fact that very often an ignoble attempt has been made to judicially .and legally twist honest criticism into gross contempt of Court. Mindful, 'therefore, /of the risk that might be run, "Truth," with becoming respect, offers to the public its comments on Mr Justice Denniston's attitude m the recent suit of Boxshall v. Schlesinger. If these comments can be honestly construed into contempt, then indeed' must we pay the penalty. . Incidentally, may we ask what has become of the threatened proceedings against "Truth" for contempt, which a few weeks back th« dishonest and dirty daily press proclaimed throughout the land \eere to be taken '! Is thjs yet another of the lying canards which this conscienceless acid bowelless daily press are so expert m brguiting round the Dominion ? "•■*.• • When "Truth" declares that Mr Justice Denniston presided over the Boxshall v. Schlesinger case, prejudiced against tfie paper alleged to have published a libel on Boxshall, it recalls to mind the innumerable occasions on which Mr Denniston has, from the Judicial Bench, indirectly referred to "Truth" m terms which left no doubt as to their meaning. If "Truth" was the sort of paper which Mr Denniston takes it to be, and has declared it ! to be, if .the matters dealt with are not I of quite the best taste, if the language (for our purpose well-chosen), is not m good taste, if, m a word, "Truth" is a paper distasteful to Mr Justice Denniston, he would have shown an infinitely superior taste if, aware of his repeated and reported utterances too significantly indicating prejudice, he had declined to adjudicate and called on a learned brother whose prejudice was not so pronounced, to sit m judgment on what, as w* have hastened to emphasise, more greatly cV^cerned "Truth" than the j news-agent Schlesinger. In the past, m Australia when Mr John Norton, the proprietor oT "Truth," conducted his own defence, he invariably made it a practice to appeal tp the conscience of a possibly prejudiced Judge, and to challenge Mm, if he could, m the face of previous, and reported utterances and criticisms m "Truth's" columns, conscientiously and [without bias decide m a matter where John Norton was defendant. With no desire to cast reflections on Mr Denniston's integrity and uprightness and impartiality as a Judge, "Truth" is determined, if at any time it should be so unfortunate as to figure before Mr Denniston, to appeal, on th© floor of the Court, or through these columns, to Mr Denniston's conscience and ask him if m view of his repeated utterances and perhaps unconscious bias, he pan, without . giving grounds for grave suspicion, conscientiously and impartially adjudicate ' m any cause to which "Truth" is a party* The same "New Zealand Truth" that he (Mr Justice Denniston) <" judged by the character of the article (the Boxshall article) m question," and added that "a man who sold a journal like 'Truth,' which indulged m that sort of article, took the risk of disseminating any libellous matter." Was there ever a more direct intimation to a jury that the Boxshall article was libellous and that the newspaper "Truth" existed solely for the purpose of libelling people ".' n v b "Truth" will be pardoned tor the assertion, as the summing-up of Mr Dennhton

speaks for itself, when it declares that iiis* Honor's charge to the jury could easily be mistaken for a second edition of the learned Alpers' harangue' to the jury. Poor old Schlesinger, or properly speaking, poor "Truth,"' to use a racing expression, was left . at the barrier ; it was heavily handicapped from the declaration of the weights and wasn't even allowed to claim the sex allowance. Not at one stage of the summing-up was a word uttered capable of being interpreted as a leaning to the defence. What Mr Alpers left unsaid Mr J ustice Denniston said for him. Was it to rebut Mr Wilford's on^ slaught of the -two youths, who, it was claimed, were sent 'to trap the newsagent into making an admission, but did Mr Denniston endeavor to put them right with the jury when he spoke m the following manner : — Two young men had been brought before the jury tp give evidence. They been subjected to. the attacks, sneers, and suggestions of counsel, but they were merely doing what they had been told to do by their employers. The defence set up by the defendant , was that he did not have any knowledge of the contents of the article m "Truth" complained of, and the solicitors acted with perfect propriety m that they sent persons to buy copies of the paper and they made no attempt to elicit from defendant anything; improper. They did their duty properly and judiciously and there was nothing to justify the sneers of counsel. Later on; his learned Honor observed That he would , not say anything concerning the character of the -paper himself, as he didn't read it, but it would ; be Tor the jury to say whether a man who had sold the paper foB three years would know nothing of the fact that it 'might contain anything libellous. Which is somewhat contrary to previous assertions of this Judge, whose utterances concerning "a certain, paper" indicated that "Truth" and its contents were not favorably viewed by his Honor. Asrain. to quote the learned Jud<re : — The article spoke for . itself it was* mere vulgar abuse— it "was a ratter of taste. And "Truth's" previous rc'u n the matter of taste is commenuol to Mi Denniston for future reference •! necessary. "Why," asked "Truth's" counsel "did not BoxshaJl go for 'Truth ?' "Mr Justice Denniston supplied the reason. They had been told that John Norton * was the proper man to attack, but he resided m some place with an unnronounceable name near Sydney. "Why do you not go for John Norton ?" the plaintiff was asked. It seemed to his Honor that there was no reasonable ground for suggesting that if a man had been .libelled he should not be at liberty .to select some person actually guilty of tbe publication to proceed against m his own town and to , vindicate his character m that place. Could counsel for tho plaintiff have bean more pointed and direct to the jury. We must also point out Mr Denniston's condjuct when the learned Alpers quoted the celebrated Mudie case, and which the learned Alppers only partly quoted. Mr Alper's ouotation apparently was material to the issue; he got the case m to the jury, or a one-sided aspect which suited the case for ,the plaintiff. When, however, Mr Wilfora supplied the suopressed portion of the case, the portion which suited the case for the defence, Mr Denniston was alert and quick enough to inform the iurv that it was all beside the question. Now, Mr Denniston supplied the reason why Schlesinger and not John Norton should be proceeded against. . What did it matter whether John Norton , lived m some place with an unpronounceable name near Sydney ? Perhaps it misrht enliehten this learned Judjie to know that Mr A. Dunn, of Wellington, wrote a letter, withdiut prejudice, to Boxshall's attorney intimating his willingness to accent service of a writ on John Norton's behalf, and offering to pay all expenses m connection with the writ served . upon. Schlesinger if action .were taken against John Norton. Why Boxshall J or his legal advisers, refused to. abandon s the suit against SchlesinKer and not proceed against "Truth" is a matter best known to Boxshall's legal advisers. * * * Another great point which might have afforded his Honor an opportunity of saying a word for "Truth" was on the question of Boxshall declining to enter the witness-box and submitting to crossexamination. "Samson is tired and refuses to make sport for the Phillistines" ejaculated the epigrammatic Alp-, ers. but his Honor the Judge supplied the reason : — ! As no attempt had been ■ made to justify the libel, the jury must conclude that the statements, made m the article could not be substantiated, and as there v/as no denial, the plaintiff was entitled to go to the jury without giving evidence, on the ground that it was admittedly untrue. Counsel had treated with contempt the idea that a man would not go into the witness-box because he was afraid of cross-exami-nation, but his Honor quoted Judsce Cockburn, who once made reference to "that torture miscalled cross-examina-tion." A sensitive man might run risks rather, than subject himself to it. The whole case for the defence seemed to be summed up m the auestion, "Why does not Charlie Boxshall ro into the witness-box?" The nlaintiff had the right to say, and did say. that m the absence of justification of the libel there was ' no necessity for him to co into the witness-box, and the fact tlv>+. he had not eiven evidence did not affect the case, but merely the question of damans so far as loss of character was concerned. . . . Boxshall could have vindicated his character het+er. possibly. by going into the witness-box, but he had don* what he had a nerfpot right to do m the absence of any attempt to justify the statements. * * ( *. So much for Mr Justice T>nnniston and his attitude towards "Truth " which, on more than one occasion^ has drawn public attention to his eccentricities on the Bench. He is irritable and crochety, m fact, a bear "with a sore head. "Truth" is quite able to take care of itself, and it is quite within its rights to object to Mr Denniston and his eccentricities on the Bench. It surely is a serious matter, a matter requiring grave reflection when we find that the members of the Honorable Costs profession are practically frightened tfut of their wits at the very mention of the name of his Honor Justice ' Denniston. Kccentrtcities on a Bench of Justice, where such eccentricities consist m an ungoverned temper, a disposition that is sour and distempered, a disposition that is easily rendered irritabJe, must have attention drawn to them. Mr Denjiiston's easily irritated disposition manifested itself several times during tbe hearing of the Boxshall-Schlesinger-cum-"Truth" case, and it was almost always that Mr Denniston's scur and easily^ irritated nature manifested itself against

Counsel for the defence. If such a disposition is natural m a Judge. "Truth" deeply regrets the fact, because- it might mean possible miscarriages of .Justice and the infliction of severe punishments such as that imposed by this Judtre on the unfortunate young man Clempson at Invercargill. who,' m order to secure work. to kee< his wife and family from. want, forced some sort of a certificate and whose 'hitherto honest and irreproachable life, should have induced this lawgiver to exercise mercy and the Probation Ac*, but who, instead, gave what is properly held to be a savage and sharp sentence of three months' caol, and for the remission of which sentence a petition, signed by a large number of citizens, whose feelings were outraged by the Judge's mercilessness has been presented to the Government. "Truth" need hardly mention the case of a man named McClusky. who at Christchurch. recently was convicted of a sexual crime, and the jury who found him guilty can hardly be blamed m the face of the torrid observations that Justice Denniston poured at them from the Bench. After that verdict of guilty was delivered, Mr Denniston seemed to have calmed down somewhat. Fearful lest there might be a miscarriapr of Justice, sentence was suspended pending the oninion of the Appeal Court on the conviction of a man dpscribed m Justice Denniston's summing ud as "an animal," and "a blackguard." Still, this matter is sub iudice, but "Truth" promises to have more io say on the ■taatter at the. proper ■ moment. In having dealt with the eccentricities of Justice Denniston, this paper trusts that it has 11 not been m any way disrespectful m its style or language. Nevertheless, it is very much m earnest. '