"TRUTH'S" TROUBLES

NZ Truth, Issue 217, 21 August 1909, Page 5

"TRUTH'S" TROUBLES

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APPLICATION FOR A NEW TRIAL

Before Mr Justice Dennistoti— Christchurch.

JOHN NORTON APPEARS IN PERSON.

Addresses the Court During Two Days,

MD QKPDDPTT V C IN PPPI Y AAAINQT

The main facts m connection with, an Action for libel brought against John Norton, proprietor of "Truth" newspaper, and heard before. Mr. Justice Denniston at the Supreme Court, Christchurch m. May last, will still be fresh m the public mind,. In that case the jury awarded the plaintiff (Stringer) the exact amount claimed, viz: £2000. Against this verdict notice, of appeal was" given by defendant. The appeal took the form of . an application for a new trial. The application was based, among other grounds, on the three following : — _ . Misdirection on the part of the judge, presiding at the trial; Misconduct of plaintiff's counsel at ' the trial m addressing the jury;. Excessive damages. At the trial m May, the plaintiff (Stringer) was represented by Mr. Skerrett, K.C., with whom was Mr. A. F.- Wright; while the defendant (Norton) by Mr. T. >L Wilford. . , On ■this v occasion the defendant (who was accompanied into Court by Mr. Alexander Dunn, barrister and solicitor, of Wellington, and who sat by Mr. Norton throughout the hearing, and occasionally advised and prompted him) appeared to support the application m person; while Mr. Skerrett, K.C., and Mr. A. F. Wright again appeared for plaintiff, this time to oppose the application. 'I-.'.-- ■.-..■.:... ■•:■.. ■.; 1,-lIV .APPLICATION FOR SWORN , REPORT. • ■•'After' the case ha.d l)een called, Mr. Norton said: I; as applicant appear m person m support of the application, and I— — - His Honour,: , One moment, if you please. . . Mr. Skerrett: I appear, your Honour ? with my learned friend Mr. Wright, for Mr. Stringer. . . ■ His Honour : Now,- Mr. Norton. Mr. . Norton : As a preliminary, matter, I would like to call your attention to the power of the Court to make an order with reference to the appointment of a shorthand writer. I understand the other side does not object to this being" done "within the limits of the Act. :••■■■ .■•■■■ His Honour : What is the Act and the section-. to' which you are referring? Mr. Norton : Section 5 of the Shorthand Reporters' Act, 1908, No. 180. That says that "with respect to proceedings m the Supreme Court, the following provisions shall apply," and so on, showing that the judge may, and even shall, order an official report to be made. . His Honour: What is your present application ? Mr. Norton : My application, your Honour, is that* you make some such order. There is hardly any need for me to emphasise the desirability of such an arrangement being made m view of the importance of the case. His Honour: The application is generally made before the hearing of the c,ase. What are youa grounds for making the application now? Mr. Norton: There is no such statement m the Act that the application must be made beforehand. His. Honour: I have not said anything about the application having to be made beforehand. I have suggested what is the general practice. What are your grounds ? Mr. Norton : The grounds are that this is the most important case of. its kind, and such as has never occurred before in' the annals of this Dominion. His Honour : In what respect is it unprecedented ? Mr. Norton: The grounds of my notice of motion submit that clearly enough. I will point them out if you wish. , His Honour : No, that is not necessary. • Mr. Norton : Well, your Honour asked me. His Honour : What other grounds ? Mr. Norton: The other grounds are m view of the possible future proceedings, if such official note is not taken the course of justice will thereby be hampered and prevented. I have gone as far as I possibly oould to notify the other side of this application. It is not an extraordinary one; it is one we are permitted, if not enjoined, by the Act Specially provided for that purpose; there is nothing extraordinary about it, excepting the nature of this Cflso itself. The -grounds — if I may on this .point be permitted, your Honour, to say it, the seriousness .of the grounds, establish the nem-rsity of this, application! as shown by the grounds of mr application for a new trial— ■ GROSS MISCONDUCT ON THE . "PART- OF THE PLAINTIFF, m . thf pnrjron of bis 'counsel, m addi>";sing the jury m an unprecedented m:i!iV)«?r m rognrcl to a case unprecedented at this Bar or-any other Bar, as 1 nm -prepared to show. His Honour: -Very-well; what then? Mr. Norton : And the issue of grievous misdirection on the part of your Honour is a subject and a serious subject of discussion. I hope your Honour will allow me to make my remarks without any suspicion of disrespect. His Honour: 1 shall indicate, Mr. Norton, whenever I propose to check you for anything which is disrespectMr.' Norton : And, furthermore, on the excessive damages laid. Apart from that, there is -this consideration: These- proceedings $o not, bar further

Judgment Reserved.

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and a still higher Court. I 3ay with regard to the nature of the proceedings and the interests of the community which are involved, this case is so important as, I submit, will m your Honour's superior judgment make it highly necessary that a full record of theso proceedings should be taken. May I just on one further point, your Honour, point out how grievously disadvautaged I am m making this present application, owing to the absence of some such report being taken a-s I ask to be taken now. I am prepared almost to admit that the other side will have me more than at a professional disadvantage, but at a disadvantage on the question. of fact, as to the exact or full extent' rather of the learned King's Counsel . His Honour : I do /not think we can go into that. , Mr. Norton : Then, I will just say that it places me m this respect at a great disadvantage here, and m view of the serious nature, tho increasingly serious nature, of the proceedings m view of the verdict obtained, and of the question of appeal, and of the possibility—perhaps more than the possibility — of its having to be taken ta other and higher Courts, andj as I was proceeding to say, the seriotis nature of the case as it affected myself as a subject of the King; and as a taxpayer, and employer of labour. A PUBLICIST. A MEMBER OF PARLIAMENT— His Honour : We have nothing before us to indicate that you are any, of these things. ■ ■■<•"• ?:('/('<«■. •■» ; ; -,..'• 1 Mr. Norton: Some of them are indicated on the .'recoiKls.' 1^ • •w"*' ■•■>"<■ • n,.< His Honour: That will do, Mr. Norton. 1 ■ ' . ' . Mr. Norton: What will dp, your Honour? lam only saying, and I will say.it m one or two words, . that m view of the. seriousness of the issues as. regards myself and to the public generally, and briefly, your Honour, with regard to the serious nature of the case generally, and as it affects tne whole community, both as regards the conduct of a judge on the bench, both as regards the conduct of counsel m Court, the privileges of counsel, and the effect of undue indulgence of that privilege for the manifest prejudice of myself or of any other applicant or defendant m Court. I ask your Honour 1 to be pleased to agree that this is a case -m which you will exercise your powers . under this Act with' regard to the appointment of the shorthand writer. I believe the other side are not prepared to object. Mr. Skerrett: Oh, are we not? Mr. Norton: I understand that the other side were prepared to agree. . His Honour : Have you finished ? Mr. Norton : For the moment, your Honour. • His Honour : Have you finished what you have to say m regard to the appointment of a shorthand writer? Mr. Norton: Subject to' what the learned : counsel m opposition to me may say. His Honour : Do you wish this appointment made, Mr. Skerrett? Mr.. Skerrett : No, your Honour. His .Honour-: According to the Act, a judge may make an 'order for an official shorthand writer, it is m the discretion of the judge. I have heard nothing to show that this case is entirely , different from other cases. The application for a new trial is upon grounds . frequently 'brought forward. The object of this rule is to provide that there be a record m cases of trial, where 1 evidence is forthcoming, m order that this report -may be submitted to the court for the guidance of the court. That is . the sole object of the rule. It has not been asked m any case m which the matter is simply one 9f argument or questions of law. The judge takes a note of any of these if he thinks it necessary, and that is all that is -necessary. In the case of any further proceedings, the matter begins de novo, all the same material will be brought before • the Court, and the judgment of the Court will be upon record. There is no reason for making the order. Mr. Norton : In view of your decision, is there any means now that I have a professional court shorthandwriter here, — His Honour : I do not wish the matter pursued. Mr. Norton: I am not pursuing the matter. It is another application that I am making. His Honour : This case is ripe for argument, and I am here to hear the case. If you are returning to the application already disposed of, I cannot hear you. PROCEED WITH YOUR ARGUMENT, MR. NORTON. . Mr. Norton: I was about to ask your Honour if there was any means hy which I could have the record of the official reporter here. present made a-. 'sworn record for ulterior use? His Honour: I know nothing about that. I decline to hear any further question about the reporter, and I ask you to be good, enough . to comznpr.uc your argument. Mr. Norton : Before- you force me to go on .v/.ith my argument, I ask your Honour to permit me to ask a question: ' ' His Honour: I am not here to be questioned. 1 refuse m any way to vary the order of the court m the way of appointing an official reporter, arid I now request you to proceed with your argument.. Mr. Norton: Very well, your Honour. As your Honour is aware, this application is tho ; outcome of a trial for libel m which I was defendant, att_&r,v^v]iifch jS&^.erdict of j£!£pj.QO

application under Rule 276 of the Civil Code, it 5s contained m the schedule of the Judicature Act. I do not suppose it is necessary for me to go into that ? His Honour: Oh, no. Mr. Norton: The Act of 1908. It is there provided that a new trial may bo granted on any inter alia, or among other, the following grounds : — That the judge misdirected the jury on a material point of law ; secondly that the damages are excessive, and third that the verdict has been obtained by any unfair, or improper practice of the successful paity to the prejudice of the opposite party, that is to say THE IMPROPER PRACTICE on the part of the learned counsel acting for the .plaintiff. Now, all these among otbev grounds, those three as being the priucipal, are alleged m support of this application, and as to the practice ruling m such cases as this it may be pertinent to point out that the Now Zealand practice is 'different from the English practice m regard to applications for new trial. I think it pertinent to call your Honour's attention, to that, because m the course of my . application, I shall have to cite a number of English cases on all-f oxirs with this, and other cases not on all-fours with it, but analagous and going to support generally my contention or contentious. English orders of practice' make no mention of the ground that the . verdict has been obtained by any unfair or improper practice of .the successful party : to the prejudice of the opposite party, but as I shall be prepared to snow m the /course*" of. my arguments, there sro numerous and powerful cases where the courts have granted new trials and interfered on that ground, and on that ground alone. Nevertheless, . applications for new trial m. England have be.en , taken on appeal to the Court .of •■ Appeal,- and no judge can sit on the hearing of the motion who ha.s presided at the hearing of the trial, but the practice is different here, because (as I am doing now) the motion is mad© before the judge who presided at the trial. If ' he refuses a new trial, then the person' aggrieved by bis refusal can, of course — I >don't" know whether there is' any need to go into that; I am subject, to being checked if 1 am irrelevant? , . ■ His Honour: Quite so. , • ... Mr. Norton : I have tried to have my notes drawn so as to avoid repetition. Then there, is, I say, this matter : it is a question of argument whether subsequently to what might be your Honour's decision, there is not also the right or privilege to appeal generally on the- whole of the case on grounds not set forth m the case. His Honour : That will arise at a future time perhaps ; you need not trouble with it now. Mr. Norton : Very good, your Honour. Then I will' pass that subject over which I was prepared to go into rather at length.. With regard to the application itself, your Honour, I should like to point out, and, m a sense, ANALYSE THE STATEMENT OF CLAIM of plaintiff m this case, m order that the facts and real nature of the case may be. fresh m your Honour's mind, and that ■ I may have my mind refreshed, as I confess that, having been away m Europe at the time this alleged libel was committed, and at the time the trial took place, I am somewhat at a disadvantage, and though 1 have gone through the facts I find it necessary, such has been the small leisure at my command, to go into them again without any undue repetition. Now, the statement of claim of the plaintiff is as follows: — That he is a barrister and solicitor of the Supreme Court of New Zealand, and is Crown Prosecutor for the judicial district of Canterbury, and the defendant js the printer and publisher and proprietor of a newspaper called "Truth," which is circulated m Christohurch and elsewhere throughout the Dominion of New Zealand, that on the 4th day of March, 1908, at Christchurch aforesaid, the defendant published m his newspaper the "■ following : — n "i?To % Uges ? oth er. Was Brown -Bribed :•— The brilliant energy exercised by the honourable costs profession withdraw the charge." It is not necessary, I suppose, your Jaonour, for me to read every word of this statement of claim? His Honour: Quite unnecessary. Mr. Norton: Then I will confine my contention to the points I think essential m tho course of making my application. Now, here, if there is any basis tor a libel at all, m my opinion— the allegation of a libel— it would have been here established, as your Honour yourself, m your summing-up, seemed to dwell, and the learned counsel as well, by the-se (I will admit) peculiar words m the article: "With a desire to be as insulting as possible," etc., and so on referring to the need for an inquiry. This is an innuendo attached: that the plaintiff had been a party or pm-y ie one payment of the sum of £400 for the purpose of suppressing the prosecution of one Francis Henry Bruges m the said newspaper mentioned and defeating the ends of justice, and that the plaintiff hud been guilty of dishonourable and unprofessional conduct m connection with the prosecution of Bruges on a criminal charge, and the said publication was alleged to be FALSE AND MALICIOUS, and the plaintiff claimed £2000 damages. Against, this \ there is the stateVthpt 'o^dofence . set/up^throu^h my

I fondant admits allegation set out lin paragraph 1 of the statement of j claim, but denies the other applica- ; tions, that the words, if published, j were published without the knowledge or consent of the defendant, the defendant being at the time resident m England ; defendant denied that the words were written or published falsely or maliciously, and denied the particular meanings ascribed to them m the innuendo; said that the article was published by defendant as public journalist on a matter of public interest, dealing. with a public officer of the law. and was published without malice, and for the benefit of the public?, and the defendant denied that the plaintiff suffered any damage to his reputation or character. The statement of claim and statement of defenca as read are before the Court. With regard to one ground upon which this application is made, that is your Honour's summing-up. . I should like to read that. I believe it is on record? His Honour : What you have quoted as on record i 3 what purports to be a vorbatum report of my summing-up. It is not a verbatim report. Apart from the matters referred ■to as having been omitted Intentionally, ifc omits a great deal that was said, particularly a great many directions to the jury. Still I do not dwell on that. The statement of my summing-up j 7 ou can, so far as it goes, treat as accurate ; it is on record to that extent. - Mr. Norton : Very well, your Honour, I will deal with the record directly. Here is the summing-up of your Honour, which is on record, and which I shall use, as your Honour says, for what it is worth, so far as it goes. 1 will now read it. (SUMMING UP READ BY MR. . NORTON.) His Honour : You are limited to the particular points m your application ; you must make these the grounds of your pleading. The points arc that the •judge directed the jury, and so on as , stated. You are not entitled to discuss the summing-up generally, butlimited by the notice of your lawyer to the propriety m law, the legal propriety, of certain directions contained therein: "that bhe judge at tho trial misdirected or non-directed the jury m the following directions," etc. Tho fact that you have chosen to put on record the summing-up does not entitle you to refer to the whole summing-up, but only to the points you have stated yourself, as to the propriety m law of certain definite directions to which you object. Be good enough to confine yourself entirely to them. I have no objection to the summing-up being read, m one sense, but it would be a useless waste of time. It is not before the Court as a whole, but simply the specific points as to which the judgo j directed the jury- These and these alone are tho points as to which the charge of the judge is before tho Court. Mr. Norton : I confess, your Honour, not only as a layman biit as a lawyer I should find it very difficult to discriminate what parts of your Honour's summing-up — the report of it — were involved m these grounds of alleged misdirection as set forth, because they seem to be part and parcel of the sum-ming-up itself. . His Honour: Oh, pardon me, it is perfectly simple. "Trie judge directed the jury upon scrutiny of the article as a whole," etc. These are the specific words which are alleged to be quoted from the suuuning-up. It is really a negative statement. The object of this motion is not to criticise or attack the summing-up as a whole ; that is utterly immaterial; but you must confine 3'ourseif to these specific cases and points as to which the summing-up m law is wrong. It is perfectly simple, Mr. Norton, perfectly simple. Mr. Norton : I see no reason to vis- . sent from anything that your Honour has said, but there are various directions and remarks throughout your Honour's summing-up that are instructions to the jury, as to *ho.w they shall decide .whether it is a libel or not. His Honour : Not at all ; and you are limited by your notice of motion to certain SPECIFIC ERRORS IN LAW of the judge m directing or not directing the jury-; j r ou have nothing to do with anything else. Be good enough to confine yourself to them. There is not the slightest doubt about that. You have certain specific statements : misdirection from the judge when summing-up, there is another statement that the judge failed to' direct the jury, and that the judge should h.ave left it to the jury, etc. Mr. Norton : It is just as well I should understand what your Honour did say. I have an affidavit here of Mr. Cowan., an experienced newspaper reporter His Honour : Don't go into that ; I have, nothing to do with his experience. You have a record here, but putting something on record does not entitle you to go into it m detail. Here are certain statements you say are mado ; it is not contradicted that they were made; please confine yourself to them. I have nothing to do with the fact that you have chosen to file the judge's charge; that does not make it relevant. I ask you to confine yourself to the statements you say the judge made. Mr. Norton: I have to call your attention as to what I have on record ; that it is a part of that record that you yourself revised the report of the summing-up, and His Honour: Mr. Norton, you will be good enough not m any shape to make any reference to myself m that manner. It is A VERY GROSS IMPROPRIETY. Do you think a judge would condescend, to notice what is said m that way m a matter of that sort. Shortly, let us understand each other. You will ha good enough, without further argu- . ment: I am ruling — not discussing the matter : to confine yourself to the five subjects which you have here m your notice of motion, and make no othei reference to the judge who tried the case. The mere fact that you have chosen to put on record the report of the summing-up does not entitle you to refer to it, except as to the points mentioned m your motion. Mr. Norton: I think, m view of the manner m which your Honour has reprimanded me, I owe you an apology. His Honour: As you please; I am indifferent as to*that. Really, I have not reprimanded you. Mr. Norton: Still, I would like to apologise for- • . His Honour : Your best apology is to obey my direction. Mr. Norton: I considered that having been allowed to place it on record, I might be allowed to refer to it. However, I will say no more about it. Then, with regard to the relevant portions of your summing-up— — His Honour: You will be good enough to take your notice of motion for a new trial, and confine yourself to the grounds— the allegations and objections to the charge— there contained. v . -, Mr Norton: My mam ground—perhaps m this way I shall be able to submit myself more readily and intelligently "to your Honour's direction— my main ground of misdirection is that YOU MISDIRECTED THE JURY m telling them not once, twice, or thrice, but six or seven times His Honour : I have no record or that. Confine yourself to the particular language m your notice of motion: "the judge directed the jury m law." These ten lines are the sole grounds of your objection, and you must confine yourself to them, you having chosen ,to make them as they are set .forth ; and you must, not make use of such expressions as "once, twice, thrice, | ancltsp on. _. i ;Mr. . jt^r^^SP^^^fc^^

His Honour : In your own notice of | motion. (Notice of motion read b}' his* Honour.) Mr. Norton : Well, your Honour. I shall then first of all proceed to discuss, if you will allow me to take it m this order His Honour : In any order you please. Mr. Norton : No. 2 : That the verdict has been obtained by unfair and improper practices of the plaintiff with prejudice to the defendant, m that at the trial the plaintiff by his counsel m the address to tho jury made a general unjustifiable attack on tho defendant and his newspaper, there being no evidence to justify such general attack, the plaintiff's counsel said, among other things: "What was the reason for the existence of such a paper? He would ask the jury was there m the paper any high mission, any pursuit of respectable ideals, was there anything but sordid moneygrubbing and wickedness m it? Let this sort of paper m, and as sure as I stand here," said the plaintiff's counsel, "and you will," etc., etc. I will ask your Honour if I am entitled on that ground to refer to the affidavit on record? His Honour : As to what ? Mr. Norton : As to the amplification of this. It is not exactly fully reported, and I can corroborate that the contents of that allegation, or grounds for the application, are valid and borne out by other than MERE NEWSPAPER REPORT. His Honour : There has been no contradiction, and nothing to impugn the statement that the counsel of plaintiff did use that particular language ; therefore you may take it for the purpose of this argument that it was used. : You are not entitled to deal with any application or anything else that is not within the four corners of that paragraph. Mr. Norton : Very good, your Honour. That, I contend, your Honotir, - is a very serious abuse of counsel's privileges, calculated to inflame — not only to prejudice the minds of the jury — but to inflame them against tho defendant, to draw their minds off the real issue, to distract their minds, to throw them into a state of excitement, to deprive them of that judicial state of mind that ought to, as your Honour knows, resemble the judicial state of mind of j the judge on the bench. I contend, your Honour, that THE CHARACTER OF MY PAPER had nothing to do with the matter at all, that the learned counsel wa-s not entitled to put it to the jury that unless they punished me, unless they did something more than your Honour told the jury they might: to give- real damages if they came to certain conclusions His Honour : Pardon me, I told the jury they might, under certain circumstances, find punitive damages. Mr. Norton: There is no record of that. His Honour : The report states that ■reference was made to it. "After explaining the nature of real or actuol and punitive damages, his Honour went on to say," etc. Mr. Norton : Where is that, your Honour ? > His Honour : From Mr. Cowan's affidavit. Mr. Norton : And your Honour says that is not accurate. His Honour: Oh, no, I said it was not full. I merely call attention to it to show tnat omissions were made. As a matter of fact, I did say that I thought the jury Avere entitled to give punitive damages. Mr. Norton: Assuming that your Honour did say, or did not say it, I sball proceed to show that not only is such conduct as . this — this license, as I shall presume to call it — doubly or trebly wrong, m that your Honour never checked > . His Honour: That ia a criticism of the conduct of the judge. Mr. Norton : It is, your Honour. His Honour : You are entitled only to deal with misdirection. Mr. Norton : I will leave also the failure of my counsel at the time to draw your Honour's attention to that. His Honour: I see no reference to your counsel's failure. Mr. Norton : I presume I can , refer to that by way of illustration ? His Honour: There is no record- of your counsel not objecting. Mr. Norton : It is a fact that he did ( not. His Honour: It may be. When you come to the question I will rule. Mr. Norton: Well, these words at j any rate intended to distract the minds of the jurj\to make out that the defendant was A MORAL MONSTER suddenly let loose .upon the immaculate community of Christchurch and of the Dominion. His Honour : Not suddenly. Kr. Norton : No, not suddenly; they are getting accustomed to "To gradually, and they will be more accustomed later on. His Honour: Proceed, please. We will not go into that, Mr. Norton. Mr. Norton: Oh, no, that was merely a courteous 1 reply to your Honour's obiter dicta. I. would like to say that it is not to be presumed that these twelve jurymen are to know so much about me as even the learned cotuisel m charge of the case, and the learned counsel went so far m abusing his privilege — and none could have known better, if, m the heat of argument, he had taken time to reflect, that ho was ABUSING HIS PRIVILEGES, and that for a gentleman m his high position and of his status at the Bar — that he was inflicting a double wrong, that the words complained of corning from him were calculated to do more harm, to more readily warp the minds of jurymen : ordinary sensible business men, but subject to human prejudices, liable to be influenced by possibly well or ill-founded prejudices against the paper which had nothing to do with the issue then actually being tried. Mr. Skerrett, above all other men, preeminently — and I- say it to his face without any attempt to win his courtesy, and I know he is not a man to be flattered — I say "pre-eminently," and I say it for the purpose of influencing your Honour, as showing the enormity of his offence, pre-eminently the leader of the New Zealand bar, he having that pre-eminence, above all other men his indulging m that license was calculated to warp the judgment of the jury, to distract r their attention from the real issue, to prejudice me personally and judicially m their minds. And, furthermore, no better lawyer, there being no more experienced advocate than the learned gentleman opposite, he ought to have known, and undoubtedly did know, that he was doing what has been frequently condemned, as I shall show, m the Australasian Courts, and m the Courts of the Old Country and of America : the practice of addressing the jury on imaginary facts of which there was no evidence beforo the jury at all. Perhaps your Honour will permit me to point out here that tho learned gentleman did not argue the case on so much evidence as had been adduced, but gave little or no atteution to that. His Honour : We have nothing before us m regard to Mr. Skerrett's sum-ming-up except the phrase before the Court. Mr. Norton: Just so, and I will endeavour to keep within your Honour's rulings. That was a mere parenthetical remark, and your Honour knows what weight to attach to it. His Honour : It is merely a question of time. Mr. Norton : I have very solid and sincere reasons for not prolonging tho time, too ; very important matters are calling me elsewhere, though none more important than thiaiv^n these remarks, your HonoftTv-fti putt.it an-

I dence ; there is no evidence to the alleged facts referred to. Let us look at the words as they stand m this mild form : "What is the reason." he asks, "i'or the existence of such a paper?" What is the reason for ti.u existence of any paper? Not, as -.mie people m a high position seem t-j think, FOR THE SORDID Pi/RPOSE of money -grabbing, not a! vays ; that is not assumed m trying an issue of libel or no libel, m which ihe jury are to maintain, ami it is to bi- maintained by the Court, mid assisted by King's Counsel m maintaining, a judicial frame by mind. Tho question is not whether a man may make money or | try. to -make money. The dispute is this : is the libel of such ;i character ' as to injure, as to sustain the innuendoes or allegations alleged — is it a libel or no libel? As such, did it injure the plaintiff? In what way and \ to what extent? All this, strictly confined to the evidence. These arguments of counsel as to extraneous matter aro turning counsel into a machine or vehicle for false- evidence, for conveying false impressions to the minds of tho jury, and .nothing else. What is the object of it? There must be a purpose. The object is to influence the minds, of tho jury, undoubtedly. It is the privilege of counsel to influence the minds of tho jury m every legitimate way, but they must do that within legal limits. Outside those legal limits, learned counsel has no more status than the poorest defendant. Indeed, he is more strictly confined m the scone or exercise of his functions than 1, as a layman. Your Honour may be inclined Jto look more leniently upon ESCAPADES OR BLUNDERS I may indulge m or make ; it is tho time-honoured practice of the British courts of justice to allow more latitude to laymen; m fact— if I may, without risk of appearing somewhat ■ demagogic—to claim the full benefit of that Magna Cbarta, where we are- all invited to come into court and do our best for ourselves and for the King's subjects. But, mark the position of tho honourable and learned gentleman, the leading King's Counsel — a look at his fee-book would show that; that is on daily record m the courts — the Beau et Preux* Chevalier of the Dominion Bar, and yet he so forgets — His Honour: He is not the doyen of the Bar. Mr. Norton: Oh, no, no more than we may say that William Pitt • was the doyen of politics, or Napoleon the doyen of military generals, as your Honour says. His Honour : I did not use th-o phrase. I thought you applied it to Mr. Skerrett. Mr. Norton : No, it would be very inappropriate; he is nearly AS YOUNG AND ENERGETIC as I am! I would rather call youi Honour the doyen of the Sench. His Honour: Thank you. Mr. Norton : But at the same time bo express the hope that I shall not hay« often to appear before you. And that is no depreciation of your Honour's legal acumen or judicial tone of mind, i promise you. Mis Honour : Proceed, please. Mr. Norton: I must ask your Honour to permit me to enlarge on the enormity of the words used,, m view of your limitations, .Take the words of the learned counsel himself, ■to show how far the learned counsel departed from the line of judicial conduct laid down himself. He said, m his opening address : "His Honour will probably point out to you what a libel is." His Honour: Where is that? Mr. Skerrett: Par. 4 of Mr. Cowan's affidavit. His Honour: Yes, but how can you F Mr. Norton: I do • not ask your Honour to take any particular note of it. His Honour : I wish to give you the utmost latitude, but m What sense is that matter before me?. Mr. Norton : If your Honour will read it, .fl'ou would see that I could make it applicable. His Honour : Why ? Mr. . Norton : I want to show His Honour: I am sorry to limit you, but 1 must limit you to the subject matter of your motion. It opens up so much fresh ground that I must ask you to confine yourself to the grounds m your motion. Mr. Norton: Then I shall say, incidentally, bearing m mind your Honour's ruling, that he gave ample evidence to show he was oblivious of his own course of action. And there is another and still more serious phase of the matter, and ifc is this : With the adroitness we should expect from a gentleman of tho legal calibre of Mr. Skerrett, he chose the most opportune time from his point of view for doing this — and when j MY INDIGNATION BUBBLES UP, I say this dastardly deed — when I had no opportunity of reply. Your Honour will remember, and permit mo to remind you, that my counsel iv liis discretion, of which I say nothing — perhaps you will deem that more discreet— I see no intimation that your Honour agrees with me, so I shall not go on ; I shall say nothing about it. But my counsel having intimated that he did not intend to call evidence, the learned gentleman knowing that no evidence could be called after the case had been closed, left his severe attack •to tho end, when no reply by evidence m rebuttal could be given, even if it had been made before, when opportunity would have been afforded to have called evidence m rebuttal, your Honour would have rejected it as irrelevant; your Honour would not have permitted it, but would have ruled it as foreign to the case. If the learned counsel considered he had a right to use this language: "What vgas the reason for the existence of such a paper? He would ask the jury," etc. That was not a question for the jury They have no reason to inquire, as suggested, into my right to run a paper, no move right than I have to ask why they run a grocer 3 s or butcher's or sausage shop. Their duty was to inquire whether I used my privileged position to injure some citizen. "Was there m the paper any high mission?" What was that to do with the jua-y? It may be possible that all these jurymen — and I am going to show we are not supposed to be able to divine how far "such remarks as these, your Honour, may } or may not, have influenced tho jurj% on the highest authority I shall show that we are not supposed to know or to presume to know, it is not m the- interests of the due administration of justice to do so, not even to presume to know how far such remarks as these may, or may not, INFLUENCE THE MINDS OF THE JURY : The question really is the possibility of their prejudicing the minds of the jury. I say he-re tUiere is presumption of probability of their prejudicing bhe mind of the jury m a most deadly and direct manner; but, as I shall show, and the cases I will ask your Honour's permission to cite at some length will show, there has only to exist the pre•sumption of the possibility of such remarks ; much milder remarks, much less calculated to influence the minds of the jury, m order that the Court will interfere with the verdict obtained under such possible influence. I shall show, however, that the Court will interfere with the verdict obtained practically under similar circumstances, even though the Court itself, though counsel for the defendant, took objection at the time, and the judge told the jury they must not allow such remarks of counsel (being beyond the scopfc of his -legitimate functions) to influtence • Ihoir judgment, and again re-tunning to the subject, and again warnfeg - ..thom_.ib.at_.they ) , niusi-not at-

I the face of it, MUST Have been^-no possible may have been — brought about by the conduct of a counsel against which the judge twice warned them, and whereas it js possible that judge's intervention may have MITIGATED THE EVIL CONSE- , QUENCES, then nevertheless ' the Court has intervened on the presumption of the possibility that the administration of jus- , tioe may have been prejudiced and an j injustice rlov-r-. But hero, your i Honour.- if that bc> so m cases to j which I shall oit-~- your Honour's no- j tice, how irraoh r'uicwr prround is | there here for inter; triug with the ver-■lir-t, and I shall cite cases furthermore I to show that, the status of counsel has a great deal to do with this; that the -highest courts of the Empire, m. London, have ootne to a derision that rorrMets must be disturbed on this j particular ground, and have taken into | account the status of counsei. Now, your Honour, I am going to contend, with your permission, that supposing some barristerial nonentity had used thoso words, I am prepared to admit and contend that tihey would not have j any such serious bearing on the case ; as I contend they have now, when uttered by tho honourable and learned gentleman, Mr. Skerrett. Ho is a man , who is known and admired and dreaded throughout tho Domin:ni! — a sort of DREADNOUGHT of the profession of the Bar, yoxir Honour. I hope your r Honour wi?i not take exception to this phrase. : His Honour : I was under the imEression that you had almost exausted your eulogies of Mr. Skerrett earlier. Tho phrase seems to be rather gilding gold now. Mr. Norton : I will try not to do t that, nor to paint tho lily ; this is a i very serious matter, i His Honour": I quite realise that; i but I thought you had dealt with Mr. Skerrett' s eulogies sufficiently at i length. ; - . Mr. Norton: Well, I am putting it • that this gentleman carries more i weight than nine out of every ten men 1 at the Bar; mid when be comes before a- jury -of ordinary men, who are not , acquainted with THE LIMITS OF THE PKIVILEGES , of counsei, or a real meaning of a libel, [ nor are too bright and brilliant as to the functions they have to exercise; who, without the direction of the judge would be absolutely at the mercy of the counsel (and there aro counsel \ here equal to the counsel of the Aus- ! tralasian or English counsel, leaders of the Bar, and J don't know of any .higher position than the status of a gentleman of Mr. Skerrett' s position) : his words certainly do carry more than ordinary weight. But there was not a tittle of evidence to found them on ; no objection was taken by counsel or judge, and this tirade, this diatribe, was launched against the defendant to the jury. He might just as well have said: "Look here, gentlemen of the jury" (it would n.ave been no more | improper), "you know this defendant Norton is a notorious scoundrel ; if he has not been guilty of libel here, he has been guilty of libelling somebody else elsewhere ; and, therefore, according to the Harold Skim pole theory, better haug him than let him escape for what he might have been guilty of I ■.somewhere or other, at some time or , another." And so on. He asks: "What is the reason for the existence of the paper ? Was there m the paper any high,, mission, any pursuit of ;respectable ideals, anything but sordid money-grubbing and wickedness ?•" And then comes the climax : ' 'Let this sort of paper m, and as srire as; I stand here, you will have a different state! of things ;•■ you will have a degraded press, and a degraded moral tone, and i you will have an unclean community." Now, -whether 'that be true or not of . the paper, I say absolutely — and I • challenge .contradiction— that . was -not-., the issue 1 before : the jury, and „.„?$£ , learned counsel, had no right, directly '. ox indirectly ybO' refer hy these terms to the character "of the paper. I say I it would be impossible to; utter such a diatribe, to T make such allegations, to convey such innuendoes as these allegations' milst convey, without distracting the minds of the jury, with- ; out drawing them away from the real issue, and clouding their judgment; all this purposely instilled/ into, and purposely placed m, their minds with the object of winning a verdict. I say that there is no other conclusion possible. Now, the -issue, after all, as to what is a libel is, ,y,ery... simple. : At; one time we know that- the- judges themselves claimed to-say.i what was a» libel; but since the passing of Fox's Act it has ', been generally acknowledged and adhered to and recognised that the jury are the judges of the law m fact, subject to the direction of the judge. They must not exercise their powers recklessly, or IGNORE THE JUDGE'S DIRECTIONS, but neither must they be influenced by irrelevant, careless, unwarranted directions m the coiirse of counsel's address to the jury, m opening or reply, no matter whether made inferentially, or parenthetically, during tho hearing of a case — not even allowed to draw unwarranted inferences. Because the conduotor of a newspaper might have made- many mistakes is not a reason for condemning him. I have made many mistakes; all papers do--and my mistakes are not profitable tome ; hut there are papers of the high-" esfc order that have made mistakes; but they arc not tried, any more than I was -being tried, for past mistakes, or what they may have done "to others ; that would be altogether beside the question, as; it was to hold me up as a scoundrel to the jury, as a sort of moral marauder — I, a member of Parliament; I, a man of status and property ; .1, deliberately come here to j New Zealand to start a paper for the avowed purpose (so it is alleged) of making a few paltry pounds by poisoning the minds of the community. I aninot going to say that 1 am any better than any other newspaper proprietors ; I am just as good ; I have done a great deal more good than many others m righting public wrongs,-' and I have paid the penalty of it. And then to be held up to obliquity! To come to New Zealand to invest thousands of pounds m freehold property — I am not r a man of straw— and I am not here to have lawyers get it out of me. When I feel I am punished rightly I have never winced or cried about it; but I say it is utterly- wrong for me to be held up as a moral monster. The learned counsel says: "Was there m the paper any high mission? 13 Is there any "high miss-ion"- m any newspaper, even a religious paper? That lias a sectarian mission only. Are the daily papers endowed with a "high mission?" I saw over the portal of one of their offices the other day : NIHIL UTILE QUOD NON HONESTUM. As if I believe m the honesty of that particular paper any more than the honesty of any other paper which publishes quack advertisements, and palmist advertisements, and advertisements of preventives of child-birth, and so on. His Honour : I think you ought to realise a little more that you must contine yourself to facts. Mr. Norton: Very well, your Honour. It is not within the province of counsel to hold up what he conceives to be his view (there is no evidence about it), and he is riot entitled to' bring "to the jury circumstiances that may be fact, but which ho does not approve of, and m respect of which he must have known that had he attempted to give Gyid<avwie4s\»ir Honour would have "/ruled as irrelevant. There coiries m j , ' ' ;THE HEjINOUSNESS ,OF V V^omJ OFFENCE, ;' \ 0T"-- : : vlu(j^'^*^>»ioix,.- : tn'ere.ii^J. r isJ^fef ! plea

meaning or they have none. If t&ejfk' have a meaning, they were uttered %jg§ a purpose. No learned counsel maket^ a statement of that character inadvert-# ently, but with a specific purpose, and If he knows what weight to attach : tt>| these words, and the probable weagh^ with the jury, or even with that paruUvL cular jury, as he is entitled to, and to-(, know that such knowledge is not y-a J crime. (I myself, when being tried criminally, as I frequently have beenf; ; and I am here being tried again to- "q day, though not criminally: my exist- ? ence is a sort of living monument 'to I th© justice of judges m Australia^ and I hope it will be the same m CNew Zealand. That is only a parentbi?*^' No counsel can be accused of a cf because he happens to know of the jury is composed and what mj their prejudices, but what is conf able is to fit his argument' to svdv he might know to be tho prejudi* the jury; and it would be equally demuable for him to presume to and think he knew what wpre thei tical predilections or social surrc ings or other circumstances, likeJi have an influence on the case, aU fit his arguments to that jtijjy, in-fc to suit their prejudices^land di their prejudices against an adv| party, if m doing so he waifimpdrt irrelevant matter, such a&'.the I rageous allegations and irujtendoee the learned counsel, which Hbere j no evidence to support. %h&a tc; on: just one other ref eren^e,K ; anj will proceed to cite a case. *or> tw< support of my contention, because; arguments, as tho argument^ of "anlearned layman, can uct) %;*-$£ JV except m so far as they d^s>o\ vine grounds for the applicsVifo? 1 > Honour will be much more jHcelfcii' influenced by cases that snoto' j arguments than by tho C^ themselves. Now, then, t# had he to ask (and, your H<* in:orde'r that I may request 1 our to keep this m mind, I > words) "was there anything^ money-grubbing and wickednf paper ?" What h ad the jury I that? It was altogether o^ libel or evidence before, the/ might m. the days of my yof should not like to confess « beeji m my youth, now that T^W, come bald-headed >, I may have'^M, most immoral young man; buttle] since have come to the piffliitcfit: ft and may now be well fitted to^on] a newspaper ; and because (if J youth, am I to be. denouneed>tb] jury as a money-grubbing monster,! for wickedness, and because myJTsuj dinates (I shall ndb be travelling* side jour Honoifr's ruling if I ren you that I wiis absent, though course, I am legally if not morally sponsible) make a; grievous blunder,' oausc they may ignore all possible! structions to ca;ution — am I then\ be held up as a yricked man? l^eir? no evidence of tjhat before the jury A I MAY BE A VERY GOOD MAiy and before my God, I ant c^tajn tk ■ it your Honour knew the whole" of tl circumstances of my life and the cij cumstances of the average man yd would call me a good man. . I am nl to be judged by prejudices. lamto H ■judged by facts: not by these diatribl against me. Then he assumes- as I proved that I am a morial mdnstel that this paper is a vehicle for the dj liberate dissemination of immoral!f { disastrous to the moral tone 6f^| community— the moral tone offj country very properly called, on U tual and material grounds, "God's t Country. s '. After he had made? that I am a monster of all that isjf he proceeds to assume thatr-b* satisfied the jury. "Now," he^ inferentially, "I have made out wji this man is; and let this sorij...'paper,"' etc. What sort of papei Why this immoral paper, this /c| without a high mission, this one wiii out any respectable Meaifi, nothing^ "sordid money-grubbing' "a!id • wickednel within it. Now, a man who rules? paper of, that sort is K| A WICKED MAN. A BAD MAuM DANGEROUS MAN ! Whether true or not, thatr was-ni the issue before the jury. I repel had that evidence been preferred, $ Honour would promptly have rutaf as inadmissible. WelL ..havJDg-M lished to his own satisfaction, / probably thought — and with mos vantage for his client than beritf me— in the minds of the jury tha| position: that the paper was $* paper, and had such "a low a^ graded mission, dangerous to st he goes on: "Let this sort ofv\ in"— that j B < Tr U th," the defent — "let .this sort of !paper m, l as sure as I stand here"— j ALMOST APPEALING TO T& DEITY! | And this from a Kins's Counseljj] all the responsibilities of his ofl with the noblesse oblige of the pir sion from time immemorial — "I, haj made these tirades a mair. a papj&r f o-r which there is not a ti of evidence; I, like a guardian qfr morals of the community*^ -I^u Skerrett, who, for fifty guineas a\ would swear a hole through a b\ wall " (that is only a skit from an A song) "I nevertheless think it nece, sary to go out of my way and aimo; invoke the Deity, and say: Leti V* sort of paper m," etc., etc. Le-£ m! It is m. What he means is:'-J ■less you destroy *: it with destruci, damages, - • WITH VINDICTIVE DAMAGIS/, unless you try the same dodges, \t they have tried futilely m Australia and will try futilely here, yoR will let the community down into tije\ depths of moral degradation ! I say A these are words that counsel should. \ never have been permitted to use, your I Honour, and with deference I say that "So sure as I stand here," continue^!* the learned frentleman. "you will haVA a different state of thhigs! The lam is. not strong enough to restrain suchf a paper here, and you are therefor* to destroy it by your verdict, and bjr[ the aid of such arguments, unwar^j ranted, unsupported, as I presuming' on my privilege as a counsel for the ' plaintiff see fit to use," and so ori.~j That is" Mr. Skerrett's advice ; you { will have a degraded meval t-one._aru]L^ an unclean community if you don't de-t stroy this paper. Now, I ask yourf? Honour, m all seriousness, % WAS EVER LANGUAGE SO i IRRELEVANT, | so entirely unsupported by evidence, sc I calculated to influenco the mind of the f jury ; and your Honour will probably j know as much about the state of .pub- «• lie opinion with regard to this or any \ particular paper as the honourable and learned counsel ; you will be able to J judge, as he seems to have accurately/ judged — and we can only go by results/ — what was likely to be the' probabl<=f effects of his remarks. It is for-'yrsg honour to say, sitting there coolly an^ dispassionately, if there is a possibita ity (it is not necessary to establish thoi probablity, as I shall show), even the"^ remote possibility, that onlj r some of.' those remarks may have influenced tho \ decision of the jury, either m coming \ to a verdict at all, or m the assessment ] of the damages. On either of thesg^J grounds you have only- to be satisfied^ that possibly the learned counsels-; language may have influenced them;^ and* if you come to that decision, that? they may have possibly been influ-t enced, you can come to no other con-;, -elusion than that they were adversely ? influenced. They were adversely .in? V fluemoed^ as you see by the result of | the verdict, and illegitimately, wrongly! j falsely, because, ther& was not a^ttlej* of evidence^ to support. -. 1^ ALL TH#INFAMOUS INNUENDOES f upon which this learned counsel built / up his dastardly diatribe. ,; I say jda^ . ■ irtaEdly,- because there- was vi^^rpossifc^

PjOotorioua John Norton, prejudiced [ixlwci against the paper they did not {[approve of ji ami they might' consjeieaj fciously. . jbelieve that the. community Would be benefited- by wipiiig it out, a WE? 80 constituted possibly m opinion mp and the paper, having their .- l|pjudice§v reinforced by. the vehement aSthorityjr-I won't say the coarse and* TOWgar language., because the lanJguag*' might be moat proper if? the t^ideiice! ;was there ; but the evidence $gg. not ithere. i am* sut:e that pes--|#aaUy.-'ho doe* xw>t eu.fceutain fencse M>inioiisjai} all: Is have- good* i-ea;sori ; to. aowife : Wo. know nothing about jk./Xonx point is merely' wha^fae* 'is%il»g«i is i jiiisijiftcd) or not. i Dygb.t be, put uxueh shocijeu, ll do. n»£ like* to ioiitejiryipt sou. fe point ig. » vei;y si(m(plbt oii,e ): Mfe. 1; SuKoly nothing is. ty>: be gained) ig yato it at sucli length. pJorfcon: Ojh,, J\ don't know-; this, ray important point m; my arg-u- --\ Honour : 1 have given you- the. \ liberty, Mr. Norton. ' :* Norton : Ji thank your Honour »*r kindness. Still, I would' say L think the learned counsel; shouM' given, tho ditfiiui.tujn of libel', and 1 sp:, aud voux Honoyr 3ajd) it was $ 'djefiiuitioui, and) tb«n he should 1 ■.ajwltwd the facts m- evidence, to gardjefi.niti.on of a, lib«l, andj have, tsuch. arguments for iibe pl&intiff f fapts, warranted, and* npjihiug z&pdi not, ha vet iaujitftyedt pn£. iin< Wipleji.^ attacks, as: iilipse, cited,, li*v*»> lio^hiiag t)0) djo> with; the F' 1 . /