SECOND DAY.
10 a.m. SATURDAY; 14th AUGUST, ] Mr. JJppibn 1 ! "With tjh,e view g,f Bhortjeqipg mat-ter-s. 99 muph as possible, an,cl having the. e£§e, encted tp-day as early a,s Rfls.3l|dQ, J ppopiose. to direct yqus Hpnouy's. ftttfi^w to , tfo third ground 19 tb,© iSta^mentpf Qlaim first, and take the question of e.sfeessiive dajcqa^^ ai tejwajds, as, I " &y 11 ' "be comparatively brier on ' that head. , QUESTION OP MISDIRECTION. His Honour: You were dealing with . that; why not go pn wit^' it? tyr, Nqrtan: W§ll, 'I- tfptild ' rather take the other fir§t if your Honpur has nd' 1 objectipn. "His Honour: Oh, no, I have no ob jectipji}'. " ■ ' • . . M^. Norton, : N^w, the ground is that the judge h^s "misairected the jury on a material point' 'of law. " Up° n . tha^ ciuestipn 1 "would say" that "the material point of law is the definition of thQ lip^el. ' His Honour: Oh, but what part as 4< inis,direc|ipn" are ' you dealing with ? slr. Jiprto^i: The contention is, your Honour, that" m "(JirecfcHig the jiiry iii a libel $cti<w,~ the 'first duty of the judge if tp tejl the jury whas a libel is; nip Honour': YW are not' dealing with 1/b.e general duties of ' a judge," ' but whether' tKe judge non-difecteo or misdirected' tjjV jury. : Mir. Norton: I- am coming tp t*b«t. His Hpiptour: But ypu K«iv^ to f&> w>h«re is the error m la^r uncfer the seven counts m ynich you allege misdireptiph. You will have tp make these seriatim, won't; you? It is not $ question of the' abstract discussion of tha duties of a judge m directing a jury; it is a question of^ whether the judge did or did not misdirect the jury m these specific instances j is that npt so ? There is nothing here about misstating the law as to libel. " ■ \ Mr. Norton: Under the head of- misdirection, and the misdirection is contained m the fbllpwirie passage, first, that "m considering the matter m the article m 'Truth,' you must' not 'opk at isolated passages m the article, but upon the article as a whole, and say to yourselves, is this intended," etc. His Honour : Where is that ? Mr. Norton: That is m the copy of your charge to the jury. His Honour: "Will you confine yourself to the specific grounds 'of misdirection which you allege, not my aharge as a whole? Mr. Norton : My contention, if your Honour will permit me, is that the specific misdirection is -tha.t your Honour directed the jury to find the intention. His Honour : Where will you find that m the objections you have ma.cle to the charge as set forth here— (a) 'to (g) ? Those are the misdirections you have to confine yourself to. Mr. Norton-. Well', the material point of law is there. His Honour : Well, point it out to me. You are reading from something which is not referred to here at sIL i\lr. Norton: I don't exactly grasp what your Honpur means. His Honour: You have m your hantf the judge's charge. If you will take up the notice of motion which is the basis of the wnale of thesij proceedings, I shall bo" able to mako the matter clear tq. you. Mr. Nortpn: I have that here, yottr Honour. In the notice of mot^Hi is the fo^lowiqg a,s one pf tfre grounds— sub-heads of par. 3:' "The ju:lge directed the jury that uppn scrutiny of the article as a whole, the jury must decide whether or npt there was shown any intention tp convey to the public a motive or a reflection upon the conduct of Mr. Stringer as a public man. If the jury found that there wa? mm an intention, it must be held that thf>rf was libel and unjustified,." His Honour: In this particular caße. Mr. -Norton : «Arid a subject for I '— ftii.l ir/uifirally I yrould ta\ce it — "the imposition of damages." kli.i Honour: \Vh.at I directed was th#>t ih<- only point jury had to d'fcoilo as far a-s cmc- could say, was on Lin 1 ,]i:estion of fact; whether or not th<M(- ivas ii)\ intfiitipn to. libel. My. Slcerrott: And ypur Honpur imir.c i i;-! r-t-lv proct^HJed to explain the fcU f i'( f 'if f:vii- comment. ]!iy Honour: I explained that jn full. , Yp" illicit not- take hjt isolatetl passage, Mr Norton. I directed tJie jury very . fully 011 the point, and much of that ha* txv.ll omitted rrom $[$ report. Mr. Norton : I contend that that jb s rery grave mitjd.ircction-7-tliat is not the function of the jury m any' 'ibel . undor any circumstances whatever to ■earch for the in't#p4ipns. His Hpnour : The indention is contained m tbe innuendn, and iihe jury
Mr. Norton : But the intention is — Mr. Skerrett : Your Honour said the intention as shown by the article. Air. JNorton : But that does not invalidate ray argument at all. 1 say tho direction was wrong m law and unWir m its' effect, and I am here to argue at length, if I am to be repeatedly interrupted — His Honour: lou are not repeatedly interrupted. This is 'the first time Mr. SSkerrett has opened his lips. \ou have not been hepea teddy interrupted. Mr.. JSpxtpn : I nuvst ask your Honour to make some allowance for the fact that 1 am a layman, and therefore mo-re easily led p{f nry argument than a learned. pp\uiser. Hij* Honour: I l^a.ye m^cje a y^ry gre.at de.a^ p| allp.w^nce. I should not have' allowed counsel to go on for anythiiig like, the time you have had. Perhaps you had better go on now. It is dimoult for me. to put before you, from the legal point of view, how entirely uneatrsfaefcpry it is to take an iso-la-ted phrase ffoin a judge's charge. Stijl, I would remind you th,afc y<"jr argument is to convince the, and not the outside public. Sir. Norton: Quite so, your Honpur. His HoHour: Then- you had better take, the matter my way. Mr. Noripn : I h'ftve come a long distance, your Honour, at great expense, and the issues are very grave to me., ajid I want to dp, t|ie very best can. I contend thft that is. h,ad m law, and anything said subsequently has not overcome th,e d^if^fiulty. that it p'lqud.ed. the, mind, of the jury— w(sdirect.£.d, the-m actually 'as. to what the.y sJioulci dp, and deprived them pf what they should know, inasmuch as your. Hpnpur did not give them A LEGAL DEFINITION OF A LIBEL. Efis H^n.pjar : I diji give them a legal definition/ of a lijbel. Mr. Norton: I /ooritend I aan here to that ypu did no.t>. His Hqnpu.r ? I do np,t care, for that, This, passage, I eoaitejnd, dpss, not proy-P thsfc. I' did np,V define % Mr. Nprtpn : '% ,a.in cleaning Wlt4* tff}S part pf $-8 case/ ',-,.,., ■ His Hpupur :' It is absurd, to tafee. an isolated' passage,' and" pante.nd "that from' that passage, Mr, Nqrton :' Bjit J am coming to. the w^ple.. I say the. mifdirfi.pftpn "w.ajs repeated and, WTSL f- W&*s ..% charge.. X s*y fa first 9? &\) the mry riot concerned with the intention, —whether, it was supposed, to be disclosed m the innueiiefefes or not. I coaitpnd, therefore, ' that 't^e law is— and pi-epcdent and cases cited prove— that they are! not concerned with the intention, a^id'if there is any such misdirection given as was here given, on appeal verdicts obtained on such direction will bo upset. I' have that on the highest authorities. ,iNow, ' if : _ your Honour will p r ermit hie, here is the ground again-rperhaps, I had better read them' all. His Honour : It is quite unnecessary j \ have them before me. Mr. Nprtpn: "The .judge directed the jury upon the scrutiny of the article as a wbqle. . . '.intention to confey,*' e/tc. It- did npt, matter whether there, w.a£ any intention to convey rejections on Mr. Springer. Reflections ar£ pot legal 'lipels. ' Thjaye may be reflections fire aje. jnsulting or irritating, but there' are'\myriads of refleciipna, personally, pffensiye, that are not injuries— at any rate' m law, unqgr the legal definition of a. Jibel. E^r^aps the drift of niy ' argument will be m.ade. plain npWj yo,ur' gpiiqur. I 'invite, your Hpnour's attentipn-^jn jny p\vn behalf r^^hpr. th^n; preeilining ygi^r. Hqnpvp negd^g any. refeffiifce.; \\vfr \t j# pertinent tp ijfjy argument— to it^iidard testbfipk. This says that the of a libel is what the jury are entitled to have, and not to have thftir atteiitipiii distriict^l from it By any §upererpg^tory, inspniPPyiftiis abput divining pr fi&^ihg for the intentions of the writer. The ipo^o^--pi t^e^vrilar pf the article are. ngt material. He may intend tp da a wrong, but he msy be a moral coward > and at the la.st 'rapjneint n p^ affepi hgs inteutipn, spmething may happeari to. defeat his intentip^j and £&c ihtentioft c,an«pt he defined; yo.u cappo^; deduce it from innuendoes; you are not supposed tp deduce it; a^d if it cain be proved (a-§ I showed from" cases qited) that there is pnly. a prJesumptioii pf pqssibility that the jury may h4ve been influenped | by a dir,eptio;n pf "intention" to regard is sis, much, if not more, than the legal element, rather tjh^ft the tendency of the, article itself— then the, prpceedings are invalid.; the Courts, will' not accept a verdict so obtained unuer s.uqh misdireotion. Odgers say? pn.pfjge. 16 wh&i a lib«l j)S. (Definitipn read.)' Tlieapig nothing about the. iht^ution here ; the intpnbibn, it .gays, is'npt relevant, and the jury are not to. be seeking about for the intention, but to find the fact of iks Üb«l or nqt, %n$ to asses| tjie damages under proper direction. There is what the jury has " to find— not whether the artiole -was intended to do certain things. They were not to deduce from the article itself whether i the contejits« of the article were intended as a libel, pr what was intended. They were to decide whether the article 'WAS a libel, and had that, tendency, whether it was calculated to eftect any injury on the plaintiff, not. whether 1 intended to do a certain thing. ' With regard to the purpose or the intention: I might legitimately—perhaps not m very good taste.— cast reflections upon an individual (1 frequently have them cast upon myself, and your Honour may have), but they are not ' libels, npt things which ypu and your colleagues on thp Bench pan, with the exercise of th%t salutary arbitrary power you possess, take cognisance of and punish, '.there are reflections that you ' would pu,nish -"there are other reflections that you cannot ptrnjsh, and you would not deem it expedient to do so if you could — they' are not serious enough, they do 'not "cause any eeriqus interference with the-' administration of justice which is the ground of that power, which your Hpnpur possesses. But if that be so, why shpuld the jury be told to find out my intentionj to find out the intention of the article. They were hot concerned with my intention. My intention m that article lpight be subsidiary tp something els.c outside thp article. I might be seeking to do something by the intention there, somathmg m which Mr. Stringer himself was' not ppneerned: Of . course, f say that it would be possible ill seeking to effect one purposp not app,a,yent, or defined to dp an' injury to another; tp epmmit a legal libel; but that is not the question befpre us just now. B^?re, the jury is distinctly directed to find whettier or > npt there was shown m it th© intention to convey something to the public. I contend that your Honour should have stated whether the." article' itself disclosed a tendency to do, or an actual desiro tp accomplish any pne ot those things described m t%t legal and! accepted definition of libel that I have just read to ypur Honour. Now, on that head (tp hurry along), I will ask your Honour just briefly to let mg cite as to that : as to the difficulty of defining a libel, and one of my contentions is that that difficulty has been complicated m the mind or the jury by your misdirection : Folka,rd on Libel, Page 167. (Baron Parke's definition read.) Now, there is no oblique or roundabout reference to an intention} it is a plain ' statement of a libel : a libo.l, it jpays, does not consist m the intorition at all ; it is something without justification or lawful excuse which affects or is calculated to affect somebody else deleteriously. These two high authorities— Cidgers and Folkard — hang together; and it is under this head of misdirection that it is pertin•ent for me to point out that the jury (were not given even an inklinK of 'what legally constituted fc-4|bel. \ His Honpur : . ,, "^ou Jh^^f "ot the
guage what was a libel. It is quite useless, I suppose, for me to Mr. Norton : It is useless to His Honour: Please, Mr. Norton. It is obviously quite useless to limit you as counsel within reasonable limits. In the first place, counsel would never dream of taking up your attitude. However, I see it is only wasting time to endeavour to point out to you the real issue. I only point out to you that m stating that 1 did not direct the jury as to what was a libel, you are saying what is not correct. Mr. Norton : Your Honour will sec that I am not here to misbehave myself and waste' the time of the Court; and I shall endeavour to shorten the case. I am putting great restraint on mysolf, as I 'find it necessary to do. I make no complaint Avh^itcver as to ypur Honour's rulings. But I say the jury were, entitled to a definition, and I contend with profound respect that your Honour gave them no such definition. His Honour: You are simply misstating a question of fact. My definition of a libel was a distinct statement of the law of libel m the very language used m the book you have quoted. You can go on saying that 1 did not say so, but that does not affect me m ' the slightest ; it is not cprrecit. You are simply stating repeatedly what is not correct. Mr. Norton: I am giving my opinion. His Honour: No, you are stating what is not correct. Mr. Norton : That is a matter of ar^nrnerit. . . , His Honour: No, it is a question of fact However, on my part, 1 am only wasting time now m the endeavour to bring you within reasonable limits. JJr. Norton: Well, I shall not neglect your admonition m that respect, I nrpmise- your Honour sincerely. But I contend that the jury are entitled to have the legal definition of a libel placed before them without any niisdareotion to fish out the intention, which is not a legal matter for them to discuss ; and is hot m issue. They have nothing to do with my intention ; lpt them stick to the lav/ as laid down when properly laid 'down, by your Honour. I now come tp a decision m point: tliat p v f FAltM^Eft V. oeUPLAm 6> Meeson ajid Welsby's Reports, p. 1Q5. ! (Report read.) There is 'nothing intention there. Continuing, r - Nprton said he w ; qulif also • 'quote Bollock 1 on Torts, 1904 edition, p. 249, showing the libellous tendency 'must be probable m law and proved m fact; and he quoted this authority tp show that non-direc-tion "amounted to gross misdirection, especially wheil coupled with instructiqns to -the jury to find the intention, with which they were not concerned at all. (Extract read.) According to this authority the intention Ayas quite irrelevant, and he could cite no graver impeachment of his Honqur's misdirection than that. He Would also quote . SALMQND ON TORTS,page 386, .par. (l) and (2). (Extract read[.) Aga^n, it was npt the intention, but the interpretation conveyed tp people to whom the matter wa3 published. .It did noti matter whether his intention had been to incite people to assault 'and' battery on Mr. Stringer ; the simple question wai : Was it a libel? According to tins au-. th'D/rdty, the intention or motive pf the writer of an article had not to be. considered, but' simply whether thp. Qrtigle was lit>sllous or not. Even wlier© a. person's intentipn.is gppd, admittedly good, $P4 .Y?t a libel is' conimitited, the good intejitions are np exoneration ; gopd or evil ihtentjoiis m this sense 4re quite in-eloyant. "Thus" his Hpnpur would see- it was clearly defined wl^at a libel was, that inte.nt.ipn was no part pf, a libe 1 !, and it W^? no P ar^ °^ * 'jury's duty to search for or to find intention ; that was why he conteiided that' the words quoted from his Honour's summing-up were a misdirection. " AN ABSURD OBJECTION." His Honour: I tell you plainly, Mr. Norton, ( that this par. (a)' is,' from a legal point of view, an absurd, 'objection. I say that m attempting to support it you are wasting the time of the Court. I speak from the point of yiew of a lawyer. What you have said shows ypur entire misconception pf the principles you are referring to. You may go on citing authorities if you' please, but 1 am' "not paying the slightest' attention to yoyjr cases. 1 shall simply sit here until you have, finished. The point is' an absolutely cibsurd one ; ana ypu are wasting this time of the Court m referring to it. Jf I said that to counsel he, would at pnee drop his opurse "" of argument. You are simply wasting the time of the Court, ifou liave shown yoiir entire MISCONCEPTION OF THE PRINCIPLES involved m this point. If you continue, I suppose 1 must submit to it. Mr. Npi-ton: I suppose every counsel who takes the wrong side of a case suffers from this entirq misconception of the principles involved. His Honour: That is' not the point. • Mi% Norton: I wish ypur Honour .would oease tp bombard mo Avith intersup'tions m this manner." Hi§ Honour: I will not be addressed m these terms, Mr. Norton. I sayMr. Np.rtjpn : I admit it was a lapse;, your Honour, but— r His Honour : iTou are again interrupting me. I simp ? ly wish to state, and want np comment upon it : ypu can either act upon the suggestion by accepting my ruling or not: That this is aatn t entirely improper ppint. % If you continue, you are to continue your argument and not to make comments upon my observations. I am ruling and stating a fact, and my obser /ations are not open tp comment. If you . accept that as-, counsel or any reasonable man wpuld dp, well and good. Now, will you please proceed. Mr: Norton: Yes, your Honpur, but I would first say that I decline to accept that intimatipn. His Honour : Then all you are saying simply goes to the benefit of your reporter, and Mr. Norton : I will continue^ — ; — His Honour : Listen to me, sir. Mr. Norton: I will sit down, then. His Honour : You will be good enough to stand up when I am addressing- you. Mr. Norton : Oh, very well, if that is the etiquette of this Court. His Honour : I am not taking the slightest note or paying the slightest attention to your argument now. As far as 1 am concerned you are ONLY TALKING TO THE AIR What you are saying is probably for the benefit of your own reporter, aud your own publication. You will proceed with your argument — or what you are pleased to call your argument. Mr. Norton : And which I consider a sound argument. My contention is J that the statement cited is an erroneous direction. Now, m the first place, i one would • assume — an ordinary jury would be compelled to assume, that — CLOSURED! | His Honour : I decline to hear you further oh that point. .»ii . Norton: Will your Honour take a note upon that : that you decline to hear me' further. His Honour : Your own reporter is taking a note. You are merely wasting the time- of the Court. Mr. Norton : That is satisfactory then. His Honour: You will be good enpugh not to comment upon my ruling, 'but proceed with your case. Mr. Norton : With regard to subsection (b) of par. (3!) His- Honour: Tliat, ,H think, you have
the cases m which the duty of the courts was referred to. & Mr. Norton : Will your Honour bear with me while I read that par. ? If your Honour will permit me to direct your attention to the latter portion of that subsection, (portion read), your Honour will s-ee that there is quite a dilierent phaso of the issue involved. The misdirection MISDIRECTION OR NONDIRECTION. His Honour : It is not a misdirection at all; it is a non-direction. Mr. Norton : It is immaterial m your Honour's mind what I call it. A nondirection is a misdirection to me. I consider that non-direction a very serious hiatter, and I am justified m contending that the jury were induced into error because the question ' they had to consider was not the general conduct of tho paper, or the character of the defendant's paper, or the personal pr public character of the defen d ant. That applies, .1 contend, ta totally different phase of the mattar, although I admit for the purpose/ of placing tho matter fully before ypur Honour it is not necessary to renew my long arguments — or whatever youv Honour pleases to regard them as — but this goes to the conduct of the counsel. Your Honour gave no directions with regard to counsel's misconduct. I should like, within reasonable limits, to be permitted to place my views before your Honour upon this phase of the question : THE NON-DIRECTION TO THE JURY not to regard to the outrageous misconduct of counsel m his references to myself and my newspaper. I showed that, m the cases cited, such conduct is regarded so seriously by the Court that m cases where it is indulged m the courts will upset the verdict perhaps on the single ground that the prejudice was not cured or removed, not removed or modified by tho intervention of the judge; I say the conduct of counsel m this case was so gross and grievous that it called not only for the intervention of your Honour at the time of the occurrence of the misconduct, but also especially and much more strongly when your Honour was charging the jury. .Now the language used is qn record, and I h-ave sK-own that the courts condemn suoh language, and will afford a re?medy, and take cognizance of the fact that' whether' the judge did or did not charge the jury in' that particular.. My conteiitipn "is that ypur Honour 4id not charge the jury, and therefpro J claim it as grievqits' a matter f par me as the' failure" of your Honour to Refine a legal libel to the jury, or as serious a matter as your actual misdirection ill asking thena to the intention. I think % shall just just close "Vf Uat c ar^iiment t have, your Honour, pn the whole of the grounds before I commence to cite cases. I would like your Honour to enlighten me upon this point : I dpn't wish t--contravene youj ruling that you will not hear me pn this ppint : I presume that your refusal tp he ar Pie further pn subsection (a) does not prevent my citing the cases? His Honour : What cages ? Mr. Norton : Cas.es on that ppint. CLOSURE! His Honpur: Certainly it does. Ypnr whole argument is based on an entir.e misconception. I decline- to hear any cases on the point also. . . Illr.' Norton: That places me m a 1 very awkward position. His Hoiuraf : " I don ? t want any comment oii my rulings. If your ars p-, §atisfied with them ypu have your remedy m another Court. Mr. Norton : And you can take i t from me thsib 1 shall sep^: t|?«* remedy. Your ruling ig ; 1 Hi§ Honpur : My rulings are not t< be discussed. I dpii't want to hear any ppmmgnte. Mr. Norton: Your Honour provokes them, by your constant ihterferenco. His Honpur: You are not to address me m that f a?hiph,' sir. Mr. Norton:' I am m your hands, of course, b.ut will conduct— — '■ His Honour: Mr. Norton, y^ou will — Mr. Norton : Ypur Hohpur-— — His Hpiipur. : Mr. N,ortoii, if you proceed after "I tell you to stop,' I shall punish ypu. have your remedy, and I dp not wish to have any further comment. The matter is disposed of. My- Np ; rtpn: Dealing, your Honour, with ypur sumniirig-iTp generally. -I will go through these ground? to see if I am ablp to place my" case as I think it ' ! pughY to '\ys placed' before jT)ur HpnoUr', an 4 yet m conformity with ypqr Hpnpur's rulings: j : contend that there is' a further gvqu.nd fqr' misdirection'in'that m dirGctmg.the. jury ypur Honour §ppkp nierely of a reflecton. His Honour: To what are you referring now? Mr-. Norton: To (c), your Honpur. His Honour: Oh, there' is nothing about here, Where is sTour5 T our authority for saying that I did not say so-and-so ? Mr. Norton: It is a fact. His Honour: OH, pardon me, no. Mr. Norton : Does your Honour accept these affidavits as a fair report of what your Honour did say? His' Honour : I decline to disouss that question. You state that' l should have done certain things, according to this notice of motion, and did not do them. I did tell the jury the things you allege 1 did not. There is nothing about the subject of intention m that— are you dealing with (c) now ?• '"Mr. Norton: Yes, your Honour. Your Honour has declined. to hear me further on ground No. 1. His Honoxir: Yes. Mr. Norton : And I have not been able to cite a caso there. His Honour : Yes; I have told you that the whole point is an absurd one, and shows entire 'misconception of what you are discussing. Mr. Norton : And that closes further argument as to the nature of a libel f? iriis Honour : Quite so. Mr. Nortorf: On the two grounds as to the intention and the nature of a libel. His Honour: Yes. Mr. Norton: And I am. precluded from touching on this by citing cases? 1-1 is Honour:. Yes, most certainly". REFLECTIONS NOT INTENTIONS. Mr. Norton : Mj r contention is your Hohpur, and I think this will be admitted by your Honour, that m no case throughout your .direction to the jury did your Honour dwell upon the necessity or the duty m finding (I am not gping to argue the question of intention) reflections. His Honour: I told the jury nothing of the sort. I told the jury m language perfectly correct, tliat the first question they had to consider was : What inference they drew from these- statements m the article, whether they treated it as being m effect what "was stated to be the innuendoes. If so, I stated to them that, as there was no evidence given, the matter was libellous, and there was practically no defence. If they agreed with blio innuendoes, that that was the intention of the article, and there was no proof to the contrary, tliat amount to libel. Mr. Norton : I contend that that ib a misdirection. His Honour: Very well. Mr. Norton: And a reflection. ( i have no remembrance of your Honour's ruling m that direction. His Honour: That is a very great pity, of courso, but it catinot bo helped; you were not here. WHAT WERE THE JURY TOLD? Mr. Norton : But the jury by the direction that they were to find whether it was tho intention to rdloct on the plaintiff His Honour : r' You have exhausted that question. ] ' I the.y shp.u>ld I
Hjs Honour : They were told that. Mr. Norton ; I contend that they were not told that. If one part of yqtir Honour's charge was calculated to mislead and prejudice their minds against the real issue, then it amounted to a misdirection. His Honour: What are you dealing with now? What paragraph? Mr, Norton : 1 am dealing, your Honour, with paragraph (c). His Honour: ''In the direction of the jury, the judge should have left it to the jury," etc. Well, the jury was told what you say, they were not. I si\y the jury were told definitely that they iyere to decide whether the things were facts pr cominen|is. They were tqld gq" distjnctly. Mr. Norton : Very well, of my own volition and as advised, and this not being a Caurt pf last resort, I shall for the present cqnfin.e my argument to th*e last subsection, paragraph (f). His Honour : (g) is the last subsection. ■' Mr. Norton : Yes ? but I am going to dispense with arguing that paragraph. His Honour: If your counsel (whom I am not supposed to recognise, but whom I see sitting beside you) has directed your attention to the case of PETER WALKER AND SON, LTD., AGAINST HODGES, quoted m the February number of the Law Reports of this year, you will find that the latest authority is so clear that that paragraph necessarily falls to the ground. Mr. Norton : Now, dealing with (f)— that the judge did not direct the jury as to the definition of a libel, and thereby misdirected the jury. His Honour: What did I direct the jury as to then? In what does the misdirection consist? Mr. Norton: By omitting to do certain things,.; that is sufficient for my argument. His Honour : Very good. Mr. Norton : And I say that ypur Honour was bound to tell them precisely what a libel was — not to leave therrt to deduce it. His Honour: They were told it. Counsel, who are now present m the Court, will be able to tell you so. The first thjng I did was to read out to the jury— to state exactly — what was said; and then to tell them what was a ljboj. Mr. Nprtpn: There is no such passage m the summing-up, which was, I understood, accepted as a fair repapt. His Hpnour : By whom is it acpepted ? Mr. Norton : I thought the other side accepted it. Mr. Skerrett: We have not accepted it. I never sppke tp you about it at all. Mr. Norton : I beg counsel's, pardon ; I stated I "understood" it was accepted. Mr. Skerrett: Well, guess again. His Honour: I know what I told the jury, and I have not sat here twenty 3'ears and directed juries as to what they were to do m case of libel not to know what I said. Mr. Norton : I haye had a good many libel p^ses, too, your Honour. His Honour : No doubt. Mr. Norton: I conteud that it is vejry vital that the jury are entitled to have the definition before them oii several grounds/ They have no conception of tho law, and are not judge's. There would be no need for judges, or even for lawyers, if iurymen *h|<l a'prpj>er conception of the la^r apd obeyed ' it j but where the interest^ of contending citizens are concerned, as m an action for damages for libel, tiie jury" gre'entitled to h^ve' the" striptly circumscribed legal sphere, s-p to 'speak,' m which theff "judgment isto op.erp.te.' defined. It is/ only . fair to them and fair to tTie- parties iljat they b.e directed upon those headsV and as showing the importance "pf ' that^ y6*ur Honour .-■■''■ ' .' ".'' ' His Honour : They we so directed. You were not m Gpurt, and cannot know exactly' What was said. If I chose to appeal* to^'counsel now sitting m Court, and who were present then, too, they would confirm my words. ' Mr. Nprtpn: I have here a CASE OF FISHER V. CLEMENT, 10 Barnewall and, Gressw^li's Reports, p. 105 and 108.' "■■■■" •■' His Honpur: The jury fpund that the Jibel ingfant (finding read). Is there any suggestion that tjiat is not a libej? If so., what "nepes'sity wa? there for. directing them as to tjie nature of a libel? '. The article is a grpss; libel on the f^ce. pf it. The. only necessity fqr directing a jury ie >vh'ethpr the words meant tp be }i^e}. If the jury put that' con s.trgc/tip'i} URpii the wor^s., is'jt n'p_t qn' t^e fape of it a gros§ Jibel p ' ' Mr.. Nprtpn: I ppntend that on the face of it, it is npt. His Honour": Ypii are debarred, as I ppiiil>pd put, from ' challenging npw thp f^ct of the correctness of" that finding, because ypu have no issue on that point before me. You are not askiiig for relief on the ground that the verdict was against the weight of evidence. The jury' have found that that was the meaning of what you said. What is the use of contending that that was not a libel? The jury wpre told if the. words bore the meaning m the innuendoes, then it was a libel. What other direction did they want? " ' . . ' * ..Mr. Norton : My contention is that the possibility of doubt is raised whether they found that at all, m view of your Honour's direction. His Honour: The jury did, find that, and there is an end of the ma.tler. There is no necessity for telling them what a libel is. However, there is no more to be said about it. Mr. Norton : Admitting for the sake of argument that your Honour's vipw of the case is correct, I contend that ypur direction to the jury, and tho vordict found — His Hommr: But I am dealing with your present point: that I "did not define a libel. I see exactly what you want to do, but the only point you are now discussing is whether \ did np.t cprreptly direct the jury as tq what was a lip-el. That being so, if the jury were told that if they found — if the jury actually- fpund the innuendoes— then i'i> was quite clear thfvt it was unnecessary to give them directions as to what was a libel. It was sufficient to tell thqm that if the words were capable of that meaning }t was libellous. Mr. Norton: I p.erceivp what your Honour says. His Hpnpur : The jury were told repeatedly what was a libel j there is. not a third of what I said to the jury there m that report you ' referred to. I said that if the jury found that tho words were capable, of that meaning, clearly that meaning, as alleged, was libellous. Why then waste time over the matter? Mr. Norton : The jury may have thought the article cast reflection on a person, and — His Honour: The jury .found specifically that the words had that meaning. If so, it was clearly libellous. To say that the words, with that meaning, are not libellous is absurd. Mr. Norton : But, -your Honour, that is an assumption. His Honqur : ' li> is not an assumption. Mr. Norton : It is diving into fchp minds of the jury. His Honour : The jury have found for the plaintiff, having been told what the innuendo was and the meaning attached to it, and being told that if they found the words had that meaning, they were libellous. I first ruled, as a matter of law (which is not challenged he-re) that the wordp weire capable of a defamatory meaning ; that is not challenged. I then told the jury ohat, assnming them to bo capable of defamatory meaning, it was fot-Jthcm to say if the words had, that mei'iiing j spt out m ti>p innu/mfloeß ; and, Jf so, '■.ii.wi^.liKo yv -m' ; J^ •v- «•(!«!■! •,«y*-- v ;%^? feay>3^u^*ey?x? '-'• ■' ?.";',-•'•'• : "' ■ - ; '-■-'■" '■*" ■■'-■'■■ *-■*■ "■■■■
counsel; and then I said it was entirely for the jury to say whether the words had that meaning ; and, if so, as there was no evidence givon about them, then they were libellous. That . is an absolutely correct definition. That is what the jury were told. They were tqld m the plainest possible manner that the words m my opinion were capable of ' A DEFAMATORY MEANING. Mr. Norton : In my opinion the jury were not told all this. His Honour : You are stating what is your opinion. I am. stating what I did tejl the jury. If 1 condescended to appeal to the counsel, they \vquld bear me out. Mr. Norton : It i§ a matter quite immaterial to me whether the counsel bears' you but or not. .His Honour: l£ ought to be, because I have told you whaft is the tact. Mr. Norton : As to the opinion of counsel, who is opposed to me — I really dpn't care what they say. His Honour: I told you what I said to the jury ; and that being so, id is an absolute waste of time to say that I did nob direct them as to the definition of a libel. They were told that if those words had that meaning, it was a libel. Mr. Norton : Then of what value is it to put on record the affidavit of Cowan V (reporter). His Honour : Absolutely nothing, I i should say myself. Mr. Norton: Can I not read the notes of the affidavit? His Honour: 'I will put on record here and now what I said. Mr. Norton: And I am putting on record what is Cowan's report of what you said. His Honour : You will be good enough' to base your argument on this fact that I .tell you wliat I directed the Jury m the cleaa*est possible language. Surely you do not suppose that I can sit hero for this length of time without knowing what my words are. You will base your arfument on that statement of fact I aye made. Mr. Norton : Then I must obey your HonouT, I presume ; but my contention is that you wqn|t allow me to argue the case as I wish. His Honour: I am telling you that I must go on that fact I have, stated. Mr. Norton: Then I miist go over the ground your Honour chooses for me. But are we tp ignpre the case cited hi the- judgment of Baron Barjce? , His Honour : I will ju§t write down what I say I told the jury. These points are always' down iii writing, but unfortunately I have destroyed "niy memoranda. I told the jury that ij; was for the judge to say m the first place whether the words were capable of a defamatory meaning, and that m my opinion they were capable of such a meaning : That it was entirely for them to decide whether they were defamatory, and had the meaning attributed to them m the statement of claim. I explained to them the difference between facts and comments on facts, and told them that if they believed the comments m the article had the meaning given to them m the statement of pleim, then as there was no evidence that the facts m the article on which they were based -were .true, the comments were clearly libellous, s,nd. the question for them would then be only that of damages. Mr./ Skerrett : And subject, of opursg, to t)ie defence of fair comment. His Honour: Yes, I went fully into the qu.€B'tiq,n of fair comment. ' To say that this thjng put m is a verbar tim cqpy of my charge, is ridiculous. Mr, Nqrton: Evidently ■%? sopner the Courts have sHo/ftttaiyl-writea-s t»he better. ' His Honour: I quit<e agree with you. $ir. Norton : I have seen these difficulties arise before, and from the same cause. His Honour: Probably. Mr. Norton: Ypu have practically ruled against" any further argument. His Honour:' l have declined to hear further cases and arguments on certain points. Mr. Norton : Tp do as much justice as $ layman pan do to his case, I must ask your Honour to allow me to refer to the article itself. His Honpur: Oh what point? MVIr. Norton : On the point that you did not direct fchje j ur y properly. Hi's Honour: 0n what point? Mr. Norton; With reference tp this passage: "With a desire to be as insulting as possible." His. Hpnpur: There is np reference tp that m the notice. Mr. M,or.tpn: But* 1 m your summingup there js. His. Hpnciur : Yqu have npthiiig to do with that. You have pnly to deal with the points raised m your notice. Mr. Norton: If your Honour has allowed me to look at . your summingup as a whole, 'I am surely allowed to show where your Honour's direction misinterpreted the manifest meaning. His Honour: I again ask you to confine yourself to the points m your notice. It is a question as to specific misdirection. The only point you have left unopened, and the only point you have now to deal with is that the judge did not correctly direct the jury as to what is libel. The finding of the jury is evidence of that. I did tell the jury exactly— l used the very words of Odgers. The jury have found what the words meant/ and that being so it is absurd for you to go on as you are doing. '. Mr. Norton : AVith a view to facilitating proceedings, I will simply ask a favour. Do you decline to allow me to cite thesp pases? His Honpur : I decline to hear cases as to paragraph (a), because I say 'it is absurd. I know what a libel is, and I know what I told the jury. You tell me I should have defined a libel to the jury. Why? If I pointed out that the words are capable of defamatory meaning, and that if they consider that thh words have the meaning alleged, that is libellous — that is sufficient. . Mr. Norton:- But the jury is not bound to accept your definition of a libel. His Honour : Oh, but they are. Mr. Norton : Not, if His Hono.ur: If they found the innuendo, it was libellous. That is a "question of law: it is libellous. Mr. Norton : You also told them other things which clouded their judgment and raised prejudices m their mind. His Honour: We. have got over that, I thought. Mr. rQorton : Very well, I will pass from this ground altogether, and ask your Hono.ur to take a note of the oasp I wish to cite' on that point. His Honour: On wha.t point? Mr. Norton : This is a very serious point of my case, your Honour, and I wish to quote the cases. His Hpnpur: If you cite cases which are irrelevant I shall not take the ' slightest notice of them. Mr. .Norton: But, your Honour, I contend that they are not irrelevant, but nipst relevant tp ANY FUTURE PROCEEDINGS. His Honour : Your future proceedings have nothing to do with me now. Mr. Norton : But ? your Honour does not know what proceedings I am going to take, and how necessary these cases are. His Honour: Yooi may cite oases if you like, but I won't note them, and I won't read them. You can cite them m the other Court if you think them necessarjr. Mr. Norton: I want the other Coairtto know that iv my humble judgment your Honour did not permit me to inform yon of the arguments and the points I wished to raise. His H«w*ur: If you say that you will be vfe'ry shortly dealt with. You will be gi^Bh.a very short shrift at tihe hands %-^S«v'ptb©r Court. ,^_^ •■_**'-
His Honour: I know what would have happened if there had been four judges here instead of one. Sir. Norton: I think one is quite enough for me. His Honour: Perhaps so. But I tell you, as a matter of tact, that while I gave yesterday full attention to your arguments, which seemed to be pror perly directed to a proper point and very fully argued — and, apart from the unnecessary citation of cases, very effectively stated— -yet I tell you now that m my opinion the points you are now raising are absurd, and I deal with them accordingly. You may cite oases, hut I won't read tthem or note | them. Remember, when .you ges tq the Court of Appeal yoii start quite afresh, and with merely my judgment to go upon. When you get t/o tihat Court you yril] find that the whole thing begins afresh. Any expressions of the judge here don't affect the matter, only the judgment. If _ they choose to listen to you at all, it will begin all afresh. Mr. Norton: Your Honour, may I take it that your attention to my rer marks yesterday, and your favourable comments upon them now, as a partial intimation that yoxx are against the other side? His Honour: Oh, no. Mr. Norton : Then why raise my hopes only to blast them? His Honour: Yesterday there was relevant argument, I say j to-day there is not. If I have raised your hopes falsely m sas'ing that, it is unfortunate. What you have said to-day on this point is quite irrelevant, and I don't want to near any more of it. »Mr. Norton: That is like professing to love one and then kicking him downstairs. His Honour : That is .not the exact quotation ; however, it does not matter. Proceed, please. Mr. Norton : Going back to Meeson and Welsby's report on that head also, here was the CASE OF O'BRIEN V. CLEMENT, jp. 435. (Head-note.) I did intend to invite your Honour to consider it at length, and I would specially like your Honour to consider it. His Honour: Very well, I will give you a special promise to consider that lone case if ypu will give jne $ note of it." MV' Norton: Pe^ha-ps it is yery unusual for a dayman fe jiave the latitude I have tteeii given h.ere; but m view of the faos thai> X am attaching weight to what your says, I' a^k 3'^u still to. take a n<>te of the case. pi^ Hqnpur: Very welj. Qf course, if the questiqii had he^en raised generally a« to the weight of evidence and, so on, your casjes might have been considered ; if you wish to cite some cases, and it will satisfy you I wiU take a note of th.em. Mr. Norton: I <>vish your Honour to note this case specially— -O'Brien v. Clement; Meeson and Welsby's reports, VoL 15,' p. 435. • His Honour;, I will make a special note to read that. Mr. Norton : And also His Honour)! No, I won't make any further promises. • Mr. Norton : Then will your Honour make a mental resolution, if you won't give a promise? His Honour : I cannot . even promise that. Mr. Norton: I want to quote REGINA V. HICSLIN, Law Reports 3 Q.8.D., p. 360. His Honour: Intention there means "motive." Nobody suggests that the motive of the parties has nothing to do witlh the matter; the intention means the intention— that is, the glandrous intention if there was one, to be gathered from the libel. Mr. Norton : My argument was based on the assumption that your Honour's misdirection w^s calculated to put them off the' proper track. And 1 tried to make this argument clear to your Honour by the aid of such lame oratorical embellishments as I considered, to be helpful. Then there is the case of CAPITAL AND COUNTIES BANK V. 1 HENTY, Law Reports Appeal Cases, Vol. 7, pages 780 and 781; Haire v. Wilson, 9 Barnewall and CresswelL p.' 645 ; also tibe case of' B ra y v - Ford (1896), p. 44, Appeal Cases. And I feel sorely tempted here to interpolate, a quotation. liis .Honour: I shall be very happy to hear it. . Mr. Norton: But, 'yquir Honour, 1 will not trespass on $ouu' unexpected benignity and liberality. His Honour : I cannot understand the word "unexpected." • Mr. Norton -. .1 quite appreciate your Honour's action. There is a graceful method of skinning a .victim, the eel is said to like being skiuued m that way. Similarly I have no objection to your Honour's treatment. I now cite Praed v. Graham, I quote that again on the ground of excessive damages. His Honour: Qh,"l see, but Mr. Norton : Oh, yes, I have to argue that. But I urcmise to conclude before 1 p.m. if possible. Is that propitiatory? His Honour: Very well. Mr. Norton: I can- be MAGNANIMOUS, THOUGH MARTYRED. Then there is the case of Fisher , Barnewall and Cressweli"s reports, p. 472; and also that of M'Grath v. Bourne, 10 Irish Reports Common Law, p. 160. Another important case is that of Watt v. Watt/1905 Appeal Cases, p. 115. EXCESSIVE DAMAGES AGAIN. And now, your Honour, gladly, like. Bunyan's Pilgrim nearing the end of his journey, and going to drop his burden, I come to argiie the question of excessive damages. Of course, It is useless for me to urge that no reasonable men outside a jury could contend on the whoie of the facts of the case that the damages were not excessive; but that is not relevant; but I contend that they are excessive m the sense that no twelve reasonable men, even looking at the case ancl scrutinising the whole article as they were invited to do by your Honour, could have found such damages. This is an entirely different ground, and iiogs not merge itself into any of the others directly, as did your Honour's misdirection with the misconduct <.. counsel; but it is, at the same tiinp, A CONTRIBUTORY AND CUMU^ LATIVE (so to speak) portion of the case. 1 admit this, your Honour: thai it is difficult to obtain a new trial solely on the ground of vindictive, or, perhaps, the better term would be punitive damages ; but there is no moral or legal standard by which adequate or inadequate damages may be accurately measured. I"" admit that to a large extent they must be within reasonable limits, and the legitim.ats exercise of the functions of the jury decide the damages '; but the jtiry are not allowed to ruai amok, to lose all sense of proportion and the effects of the 'aw as applied to the case, and to (possibly unde^ the excitation of counsel or a misdirection of the judge— personal bias, trade rivalry or a thousand and one other things) allow themselves to be improperly influenced; there must be no possible suspicion that the assessment of damages has been come to under the influence of any oaie of those feelings. And looking at tibe whole of the facts of this case, my contention is that the damages are excessive. 1 may be allowed toajeuA^aif large, to to speak, and jCo base my v «jggument on pmbabvlitigs, and having briefly done vS*£T~fo ofite cases to shoy? under what jciroumstknoes the opuris have intervryod to .tecjuce tlamag^ Mtf;' *" redw \thein v*ry apppeciaJ^gW ie-re
OUT OF ALL PROPORTION | tq the probable or possible damage \ that the plaintiff may have sustained by the alleged libel. But I must point out to your Honour, and I ask your Honour to give this argument the weight to which it is entitled: that I don't rely here solely on + Jae grourid of mere excessiveness. That would not, I admit, be sufficient,' m view oi the difficulty there is m establishing grounds to get the verdict of a jury reversed on ' the ground of excessiveness alone; but I rely (a $ I said just now) — and your Honour will bear with me if I am a little involved, not so much from the conception of my argument, $s from the difficulty of expressing it La proper form — m this applied tion. to have tihe verdict reversed on the ground of excess, with more oonfir dence than if it stood on tthat ground a-jpne, because there has been, I allege, misdirection on the part of the Bench, and misconduct on the part of counsel; and m that sense these effects are cumulative, and have to be considered (without going, into a lengthy repeid-'j tion of past arguments) jointly ; the ', contention is that they cannot be separated] they MUST BE CONSIDERED TOGETHER. They depend one upon the other. •-' won't oopsideT any of them irrelevant, tihat no reasonable jury would be justified m finding the amount. We take the . actual amount itselJf , and we say it is excessive ; but I point to t&e /^ conduct and th^e misdirection as fejfting .J causes leading to the impo*itsi<j£ of wiiat I term, with deference, JpT outrageous penalty. If I may I will^u't^t this way: each ground is to be ) taken _^ on its own mer-ite. fctut ihen I cooife^^j' it is 'legitimate to argue tihat m §>:W^ I to a conclusion as tjp the exce^si^ of the damages, all the^e ground* to be taken together ; and I niijj cidentally refer here, your S (I have come to th,e conclusion ijs of what your Honour stated as \ preoiousness of time and tiie, ] amount of work awaiting your Hoi Court with thje opening of fcfre W3%, confine very greatly my ajgujc/ tpder tiiis fiead), that I wart y f Honqua- to iiote tjhat I rely on "\ . other ground^; but I don't argue, &&§ at tjiis s^age. I wish it to he undjjjffl , stood,- w»t" »? wy paini'i T yxm- ypw i Honour to take a note that I typ" waive m,y right to argtie them nere, 03 to argue tftjßm elsewhere; put J isaj that each case, wjule being ta.ken on vg own merits is entat}ed, m view of fc|pE ■cumulative effect on tibe damage^ ojM JUDICIAL MISDIRECTION ANt* I MISCONDUCT ; | on the part of counsel, to be considerec jointly. Thj^t is to say, on all grounds) taken together, I as]c your Honour ti thus consider this question of exoessiv^damages, because they cannot be \ separated. Your Honour's decision, of I course — and I submit" the argument j subject to correction— will not be solely J. and rigidly based upon strict ~l&r£r^\ grounds. Your Honour will give diie j % weight to my" presumption and' my i argument m favour -o.f that presump- 1 tion, that the 4 jury has been influenced 4 by the misconduct of counsel. What- .' ever view your Honour may take Ss Ij to the ground of misdirection, and I am | not urging that particularly strongly ,S here, there is a certain moral function, v to be exercised apart from tie strictiyjl legal exetroise of your Honour's $WP®£s tions m considering tha^; aspect of 'thS? ? question with regard to exctessf^^l damages : the mj^condupt of cbunfißTJ and its effect on the minds of the juj#sj ;i •phie contention is that such misconijuci-j —without reverting toy my" old,!haye had some effecf ? 1 on" the jury adverse to me, and its ;] effect was the enormity of tihe damages ] m which I was cast. On tiiat accounts there is no dqubt a very delicate fun<> tion cast upon your Honour. In com- j ing to your conclusion/ upon this, paint, J y<ipr Honour will, I belieye, : , not only from your indulgent attitude, but th* i kind reference ywi made to my argu- | menjt this morning — : which I shajl__rez 7 gard m my laymaii'a career as^ifche 1 LEGAL VICTORIA CROSS OF MY :> . STORMY LIFE— r f I say I uhink your Honour will be jaf tified m giving your decision apj?' from the strict and rigid legal asp" of this question: to give that -mil aspect of the question its due wei/ m making that appeal-to your Hot I am making a perfectly legitin. one, because we know that jurors/ swaj'ed m a^is&^sjng damages and j ishing people by oon&ideratipn§ tlmn those of being the mere jiigi ments of justice. I do not tjt{in\ am going too far jn saymg thgt " un] they are an exceptionally jnl^Jifc jury, and used to the practice or t Courts, especiallj' m the delicate dutl of adjudicating m a libel case, thpy $ apt to be swayed by extraneous circu| stances; and your Honour knows he flagrantly they sometimes ignore dirj! tions from the Bench, for ignoring whit their verdict is upsot on the grourl that they have 2J v en excessive damage lvhich the iaisfbruciiions from l-Jib Se^a would not warrant them m giving* Their mind may be swayed by niani considerations, \ By DENSITY, OR IGNORA.NCE, OR^, OBSTINACY, or by cussedness — to use a vulga.r wordf for want of a better. ' This is not suclk a raw and el&ar-eut issue as it might atf first sight aj>i>2ar. I repeat that juries? are not the absolute judges trf S£b*U amount of costs: that they might grw\ £2000 simply because that amouait .is \ laid. If it is probable^— if it could be A shown — thai this particular jury, for yj instance, would have given £10,000 or H £nodo had the amount been claimed, U the presumption is thai they gave the | £2000, that being all tha.t was claimed, '.j on account of soine extraneous matter ' (it is reasonable to conclude this, l<?av- f, ing out your Honour's dir<?ction, right i or wrong) — solely, I contend, on ac- % count of learned counsel's address. It is reasonable, m discussing this quos-.f^ tion of excessive damages, m asking 4J your Honour to the verdict aside or }. reduce the damages— rit is not irrcle- fvant, I pay. tha.t I should point out A that plaintiffs m practically all actions j for damages develop _ .£ A" POSITIVELY HEBRAIC "—°- M INSTINCT: they always ask two or . three times more than they expect to get. They are quite Semitic m that respect. And it J is not ail outrageous presumption, I sub- % mit, within the experience of the Court, to say that my goocf friend, Mr. Stringer, woul^ have been very well satisfied for the purpose of vindicating his character, and removing what little k-irm he had sustained. No grievous harm had been done to him — 1 say this ox ; cathedra, which, mmy case, is not = a very holy place iij the legal mind ; i he would have been very well satisfir^L . * with far less damages. At any-fafe, ]: he was content to ri-p away for nine i months and leave this sore to rankle ' and fester, and he knows that I was '] m Europe at the time, and he knows j that while he M r as away I was away si too; and that so far there could be i no personal animus. There was j NO BAD MALIGNANT PERSONAL ASPECT m this libel — m fact, I think I might \-\ urge on the Court that Mr. Stringer .-'< would acquit me of any personal abuse. .^ I believe he had the pleasure of lis- , v tening to my impassioned oratory m .'i the Drill Hall some two or three years ; ago ; otherwise. I don't know him" per-^? spnally at all. I mention this to \ show that this libel is absolutely de- 3 void of those ugly features of vile per-.*^ spual, vindictive malicei that very justl3' justify juries m giving punitive darHages. Here, your Hoik*Jiij, it ' V is npt for the simple cash agpecu of .Iv.' *th^ case aloije that I urffiJjkr^^^-'piej**' upoif. youjTbiit ' hcCßtts*^^ s^^^^^
f|c personal malignant feeling m this ! |jfctter ;, toward the plaintiff. And that j™fing sp, I will urge that aspect of the aKaestiofe because it is a true and valid JEme, m, submitting that the damages excessive. I am quite sure that M£ Mr; Stringer had got £25 or £50 E|br £i^oj. that was all a man m his gjpositioa m bringing such an action re■puirecfr' There was If NO] FLAGRANT OUTRAGE DISH <j.. CLOSED; phe hpas'elf did not say so. I am not Ifodnt&ting that the jury found that it itwasjjJL libel, and consequently called for pdahmges ; but I do say that it pwasfnot a libel calling for excessive ||danijages m the full amount claimed, pit Inay be urged by counsel with a show of that on the IP* M- r - Stringer's departure he m a letter addressed to my mana|jjgepor to myself an opportunity to apolo-?i'-i&$P or explain, which opportunity was ava^l©d of. Well, it is m evidence litffikt I never saw the letter or -knew K*|ything about it — and I am not losing jMjlht of my legal responsibility m any |pay, I am only trying to bring what jijpguments I can within the latitude ijiyou allow me, to endeavour to • legitimately influence your Honour's mind jfto my view of the case. I contend, jpiaving regard to the whole of the cirpbumstances of the case and the whole jfof the article, that the damages were I excessive. It was admitted at the F trial that I was absent, but that, is j not an element to increase the damages tf&gainst me; that I, away, and that 1 j^nd net the opporunity of personally FjudgingH whether it was right and f proper (# dorrH express my own opiu- \ ipn)4 to feave accepted Mr. Stringer's I know that I am legally ij&fle for the acts of my agents, i >M this is, I submit, your Honj to consider: the i }CE OF THE ELEMENT OF J / ' MALICE, . ■ j actual knowledge , of active pari jn m the perpetration of the i bn my part. It is a legitimate i Jto offer against the great j ,jSt W damages. With regard to i /Stringer going away, lam not i %o arjfue that he is to be deprived 1 «*&> volition as to the calls of duty ! fcfileasure m other parts of the ! Md; but he did go away, and he I Sight the question would have been j b-.'by some explanation or apology, ; y.ho went away for some eight or • fe months. I am not saying that , It away or mitigated m any way- the j ing, *but it does give some inkling j &&* the idea Mr. Strin£er -had — ! ac estimate of Mr. Stringer's own j a of the damage which he had susiied. It did not seem to be one of J ise obnoxious, personal, offensive, an, despicable things that pry. into L*inan's private relations, that bring Ajihiand his family matters into pubuqityj, that bring up malodorous mci his present career (I am not Mlying ajay .imputations that these did Ssjgftr''have existed m Mr. Stringer's He;: 'I merely use this by way of illuspation); there was nothing of the find, nothing malignant or ignoble, no fc£y?ng into private affairs. It might ; £ksqnably be assumed that the article Ipiiough written m error, though rasing as to facts and conclusions, and mly 'justifying a verdict of guilty for [feel— nevertheless, looking at the ar-' rele^ itself as a whole, it was a BON*A>FIDE DESIRE TO GET AN t -j INQUIRY ;ntw>' matters which perhaps I eragger-; ffceTin saying had .shaken Christchurch fociety to its moral foundations. That s rather more fitted to the platform bhaii'! to the Court, but that sort of . oratory goes down very well on the platform, your Honour, I can assure jrou. However, it was a matter, ' if lot so widereaching and moving as tihai^ language would imply, yet it was a matter that had occupied public jbpiriion, had called forth a lot of comment; there were matters that I could [hayS dealt with myself m Mr. Strin'ger^jc.qnduct, matters of mere opinAon as $0 his, propriety, not bearing .ans^ 1 . professional ' imputation, merely 'Cmtvof propriety, that might have been inched upon m a perfectly courteous I'w'.v Perhaps this tells against me, J Jt ? it was not done; but my argu- ) V is directed now solely to the exI. te character of the damages on the j" deration of the whole of 'the cirt faiices.^Gf. the. ease. In that rej J your Honour, I admit you did tthan once ask the jury to scrutiIhe article as a whole, and I will lispute it that they did ; but I J revert agan, and say that they ■ pt even . have adhered to your ftur's legal direction m jrcas^, as is shown by their bringing mese excessive damages. Now, I Sk I have made that point clear, j? Honour. You have gathered what f contention there is # ; that there hb no really aggravating features for he punitive damages, looking at all } I circumstances, and those are one j/twb of the important circumstances ifiefcpseem to me to sustain the conptioETor the interpretation of tlje verjpt, that it accorded excessive damJee brought about more probably (I /py willing to concede probably) by the Aoolent abuse, WrSE UNCALLED-FOR ABUSE OF V COUNSEL, fean- by anything else. Now, m this fatter, your Honour, I have to subpt that you are-:«JiHr-Honour : May I ask here, Mr. rffiiorton., when you expect to be &nMhed? . ■ ' t r -' Mr. Norton: I shall try to conclude, Pby 1 p.m., your Honour. r His Honour: I don't wish you to re- : Strain your argument by any question of time, so long as your arguments 'are relevant. . -L -"■•'. Mr. Norton: I am very glad to asfrom that that I am ON TO SAFE GROUND, I YOUR HONOUR; i&paid I shall try to make the best use of the good gifts the judicial gods send. Your Honour will admit- : that we are not called upon to decide on one or two grounds. You, m considering whether it is necessary to revise the verdict m the interests of jusi> Jace, ha-vje^tcr-oenisider whether the surrounding circumstances justily it. These circumstances will' be taken into' 'consideration, and m doing so your Honour will not even pause at calculating the probabilities. It is not necessary for your Honour to be convinced that it was not probable. The cases cited do not require your Honour to be convinced of probabilities. _ Your Honour has to be convinced v that there is just a possibility that 1 ,may have suffered injustice m the damages given; and there are various ways, better known to your Honour i than any counsel even, as to how you will come to the conclusion whether it ~-*Vfs3. possible that I" had not justice. Here'- again, may I say, your Honour, if there., is any doubt, even A SHRED OF THE SEMBLANCE OF A SHADOW OF A DOUBT that 1 had not justice, your Honour will help me by your decision to obtain it. I nave said enough for the present; I really don't — unless I am subsequently compelled by any reply—intend to allude to the article m. detail. I will proceed at once to ask your Honour under this head to permit me to cite to your attention the case of Praed v. Graham, Law ReportE, Q.B.D. Vol. 24, pages §53 and •jjo (head-note read). According to this, if the Court can see that the jury m assessing damages have been « guilty of misconduct or made some ?' cross blunder, those are undoubtedly sufficient grounds for interfering with the verdict, etc. I cite that* case to apply- my remarks as to the' , EFFECT^ OF CjO^*
word* had any effect at all, if the status of the learned counsel had any weight with the jury, (where due respect and probably more than due respect is sometimes shown to his status and undoubted abilities)— there can be no doubt that these "words must have had f.n adverse effect on the jury's mind m assessing damages ; and it will be for your Honour to say, coupling that with other circumstances, whether the damages were not excessive. I might point out that m this case (Praed v.. Graham) the only ground alleged was for excessive damages ; it was the crude bare question ; there was no allegation of misconduct of counsel, nothing but the pur© and simple question. I . don't think 1 ought here at any rate to lay much stress upon the- allegation of misdirection, m view of what your Honour, has let fall from the Bench : it would not be courteous or of much weight. That is the explanation of why I am directing my attention rather to the cumulative effect of counsel's misconduct on the verdict than to the conjoint effect of the misconduct and the alleged misdirection. The other case I may be permitted to cite is that of M'GRATH V. BOURNE, 10 Irish Reports, Common Law, page 160. That is on all-fours with the case of Praed. Here, too, the only ground of appeal was the excessive damages, and 1 refer particularly to the second section of vthe headnote and part of the judgment. These cases show that there is no sacred or sacrosanct prerogative on the part of juries to punish defendants with vindictive damages; their, functions don't extend, to that ; the Court will restrain them m the exercise of the powers they possess if these powers be carried to outrageous, scandalous, or grossly extravagant limits. That is on all-fours with the other cases, and I quote it as reinforcing the other authoritative case that your Honour was the first to refer to during this hearing yesterday. The ouly ground — there are no aggravating circumstances, to support the application, no other ground than that of . excessive damages allegedin either of those cases, and the judges made no mistake about it*. The jury are not entitled to be regarded as the sole and .ultimate tribunal to decide the damages. Well, is it not reasonable, your Honour? Does not" our own experience tell us that this revision of verdicts is a most salutary reservation of authority, to a trial judge, for instance? 'It is most salutary that a. revision of this verdict should be referred to your Honour. Who better? I admit that the judge who tried the case, who was cognisant of the whole of the circumstances of the case, such as the misconduct of counsel, is a good authority to revise a verdict m the first instance. And is it not right that this reserved power of the Court to revise the verdicts of jury should be' reserved, and operated for good reasons' shown? Otherwise m times of EXCITEMENT AND- HIGH POPULAR ANIMOSITY against certain defendants, and for a thousand-and-one reasons this power of juries, if unlimited and unrestrained, unrevisabie by judges, might be exercised m the most calamitous "manner to the limit of persecution and ostracism, martyrdom, moral or real, such as tlhe learned counsel invited the jury to inflict > upon me by wiping out. my paper, my life-work, my occupation, that by, which I grub money.' It is -open to me to argue that he must not' abuse those abilities he possesses ; he must not make those powers the means of attack outside 'the merits of the case being tried} and that is a very large element m the case. I say that I ask your Honour to take that into consideration, especially m those two oases cited, where I have shown your Honour that it was on the . ground of excessive damages alone that the Court interfered. Thef.e was nothing aggravating about it. It was not alleged that the excessive damages had been procured bj' misconduct of counsel ; it was simply a question of excessive damages, and the Court did not hesitate, did not pretend that they' were setting up any new jurisdiction, but they exercised their power to revise judgment on that ground alone — merely exercising the time-honoured and immemorial prerogative of the Court to further the ends of justice. ■ In the case of WATT V. WATT, Appeal cases, 1905/ p. 117; a reduction of £50,00 to £1500 was raade. Though not' on all ,four§, with the two cases just cited, there is, a very close analogy, arid it can be pertinently, and, I think, helpfully, applied to the facts of this present appeal. This was m" an action of tort, foT the sum which the Court of Appeal considered unreasonable and excessive. There is also the case of ■■■•■•■: FLEMING V. BANK OF NEW ZEALAND/ 18 N.Z. Law. Reports, p. 1. By more than one implication that sustains the right of the Court to intervene on the ground of excessive damages. Your Honour made a suggestion from Wellington to- London that, the plaintiff should consent to the reduction of verdict to £500, and that is all he got m London— whether the lawyers left. ■him any part of that £500 I cannot say. I see your Honour does not smile — His Honour: I don't think that is any part of my business. Mr. Norton: Well, I feel more secure when, you do. His Honour: Very well, I shall avoid it m future. . Mr. Norton: The next case I have to cite is that of Chattell v. the "Daily Mail." , , / His Honour: . Yes, you went , very fully into that. ' ■ Mr. Norton : 1 merely want generally to apply that to the excessive damages as well. That c.ns<? differs from the others I have just cited, inasmuch as conjoined with exrassjve' damages, amounting to misconduct on the part of the jury, there is the cumulative effect similar to What I urge here m making the allegation. This misconduct was something conveyed merely by way of V INSINUATION, OR DOUBLE ENTENDRE; the insinuation was present, at anyrate ? that one of the parties kneAV what blackmail was. This was nothing so direct or disastrous, as the charges made on assumed facts by. counsel m this case, when he knew there was no evidence to support them, and when he also knew there was no opportunity to reply except subject to the manner m which your Honour pointed out yesterday. However, that method was not adopted ; he was neither checked nor reproved, and the jury were not warned against it, as they were warned m other cases cited. There is also the case of FARQUHAR, NORTH AND CO. V. LLOYD, 17 "Times'' Lavy Report, p. 568, a.nothor casein which a new trial was ordered unless the plaintiff agreed to accept a smaller sura than given by jury. In the opinion of the Appeal Court the damages were .held io be excessive, and the Court had no hesitation m peremptorily setting aside that verdict so far as the total damages were concerned, and they named what they thought the person was entitled to. In the case of ( CHATTELL V. THE "DAILY MAIL," the damages were cut down from £2500 to., £1000, I believe, and yet the Court sard, th.is was a grave libel. There i*>no doubT"as" s JJo the readiness , and willingness of , down or reverse verdictF v« T i4n?lfelight-*. Palid ground. In \™3 aTd J& Far " i^nd+Obr v Lloyd* <<^ f° r
against a butcher that he had sold rotten canned meat ; it was at tlie time of the Boor War, and it was suggested Lhat this rotten meat would give the Boers a nr.sty jar, would wipe them out quicker than Gatling guns, or — His Honour: Cannister! Mr. Norton: A new-kind of cannister, certain \y. Perhaps the real intention of this libel may not have been any worse than that which I allege to have been the case m this libel of mine; but I say that m the very nature of it, taking. a view of the plaintiff's calling, it was calculated to injure him much more disastrously, permanently, to ruin him, than anything that was said directly or. by way of implication against Mr. Stringer m his personal or professional capacity; an d> there were many different circumstances between Mr. Stringer's position and the position of (his poor ■ butcher dependent on this DEADLY BOER-KILLING CaNNI.S--TER . for a liyslibxx d, and having it described m that manner ; and yet * verdict found for him for £1900 was reduced on appeal to £500. There was the man's whcle livelihood and ev!?'ence, at stake, and that cannot be urged ev-an now m regard to MiStringer. On the question of excessive damages, I ask is there any basis of comparison of damages, probable or possible or actual damages, m the two cases — the case of Mr. Stringer, K.C., and the case of this poor butcher whose livelihood was so . ruthlessly attacked at its very base, so to speak,, m this manner ? Yet. here . the Court intervened and cut down the verdict by nearly . tworthirds. . I think that is a very powerful argument m favour of your Honour adopting some such course that your Honour may think, proper for relieving me from what is an unjust verdict, that more than fills the real demands of justice m. this matter, giving to the plaintiff just damages m view of the public vindication of his character .by the verdict, such damages as will meet the ends of justice and no more, that will not satisfy any possible vindictive feelings on the part of the jury that it is reasonable to presume, were raised against me by the misconduct of counsel and the state of mind into which these men • were thrown. 1 p.m. Court adjourned till 2 p.m. 2 p.m. COURT RESUMED. Mr. Norton : When the Court rose I was ref erring to that case of the butcher. It was a flagrant libel, and yet- the verdict of £1900 was cut iown to £500. The case of Fleming v. B.N.Z. I quoted, mainly because it Is really THE ONLY NEW ZEALAND CASE AVAILABLE, and shows the policy of the Courts here. It was a case, of breach of contract — wrongfully dishonouring cheques. (Report read.) Continuing', Mr. Norton contended that this was a case m which there were n<» flagrant aggravating circumstanoes, directly calculated to exas-. pirate, aoid yet the Court interfered with the verdict. In his own case, the damages were altogether excessive; be contended again, especially m view •jf the fact that the article was written for the purpose of "demanding an nquiry. This was an aspect to which due weight should be given. The a-r ticle was found to .be a- libel,, but it should always.be considered that its. primary., purpose was- to bring about an inquiry. The jury,., were behind , to take into consideration that matter. Unless they did so they could" not fairly be said to have taken the wholo article into consideration, and that was therefore a ground for their giving moderate damages. His Honour: If they believed that. Mr. Norton said that was so. However, he would not argue now what was the purpose of the article ; ; ie merely argued, having regard to that purpose, and all the other circumstances, that the libel was not one calling for excessive damages, damages to the extent of £2000. The cited cases fortified that argument, ;.nd proved by analogy that ' HE HAD A RIGHT TO A NEW TRIAL. So long as there was the remote possibility of this aspect having been ignored by the jury,- and thereby t.he full scope and operation of the' article not taken into account, that was ground for the interyen.tion .of his ,Honour. .The case of /Fleming showed that, m such circumstances as his own, the judge had power to; reduce' the damages, by the consent of the parties. He would also cite the case of PHILLIPS V. LONDON AND S.W railway; co. Law Reports, Q.8.D., Vol. 5, p. 78: here the Court ordered a revision of the jury's verdict by consent of the parties, or m the alternative a new trial. That showed that the reduction of damages was m the, discretion of the Court. The case showed that 'he Court should interfere .i n. the case of a verdict for excessive I damages , which manifestly by their enormity showed that the jury had not as directed taken into' consideration the whole scope and tendency of the ~ article. He looked upon the last case cited as one showing the peculiar all-round unrestricted unreserved power of the Courts wherever they deemed it expedient, to restrain the unlicensed exercise of a jury's powers. If the Court , had not that power, and did not exercise it, citizans would have to SET UP VIGILANCE. COMMITTEKS to protect themselves against juries, and the. influence on. juries of powerful, and influential counsel. If juries could do absolutely as they liked, and there was no power of- •revision ., above them,, to take constitutional legal objection to their findings, a trial for libel might degenerate into reckless prejudiced decisions on the part of juries m consequence of malignant or outrageous attacks by counsel, ' unwarranted, .non-permissible by the rulas of evidence, and therefore doubly outrageous: If it could be assumed ihat there was undue exercise of this power of punishment on the part, of the jury m the way of excessive damages, the. Court. could remedy the injustice. Hd would, before closing his argument on this point, like to cite two or three more cases. The one' New Zealand one he had cited he regarded as an auspicious augury; it showed m a remarkable decision of the present judge (Mr. Justice Denniston) the willingness of the Court to intervene to cut down excessive damages given by a jury. li<» (Mr. Norton) regarded the unearthing of that case by himself as a prvidential coincidence. Probably the . learned counsel opposing him was tod hardened to regard the incident as singular, muob less providential; nevertheless he quoted it as such. He would also refer to the case of JOHNSTON V. GREAT WESTERN RAILWAY, Q.B. Reports, Vol. 2, 1904; p. 250; it was another case of excessive damages wrongfully given by a jury. (Case read.) Here again the question of the cumulative effects of counsel's diatribes were ground for interference with the verdict, even without any imputation of perversity m the minds of the jury. He did not know that he might be permitted to go now into the question of whether the learned counsel was referring to the particular i.ssuo of the paper or not, to the character of that particular issue, or the character of the publication as a whole; it was really immaterial to his argument ; he had only to consider whether , the words jvere contributory/ to these I Gxoessi ye" dSni ages . ■ i. F so V"fthen th u damages were unjust, aiiw the Court should iiit3rfere^'*T^ l^Sfsr^iJ«iossible to i -minds'. <bfi '«& su*7iiaiid
been influenced to some extent m assessiug the damages at such an excessive amount. In saying this, it was not necessary to attribute MALIGNANT INTENTION, OR PER-. VERSE PURPOSE, or wrong motive of any kind of the jury; but simply to assert that the language of counsel incited the jury to give those excessive damages. ]f this was so, the damages could not stard, .because the jury were wrongly influenced m assessing them, went outside the true scope of his Honour's direction by considering something extraneous to the case, something not supported by evidence, something that would not have been introduced if permission had been asked. He would also refer to the CASE OF HARRIS V. ARNOTT, 26 Law Reports (Irish), p. 55, and > footnote p. 57. There was here an absence of actual malice, there were apologies made, but excessive damages, were given. (Ropcrt read.) In this case the jury had found that the libel was inserted through gross negligence. A verdict of £1000 was found, and subsequent^ set aside. In this connection he would also refer to the CASE OF HICKS V. GREGORY, brought up yesterday, and m that respect he would call attention to a slight mistake he made m regard to the amount. His Honour : I thought, you corrected it. Mr. Skerrett: But the "correction" was wrong. . , His Honour: What should it be? Mr. Norton: It should be £2750 reduced to. £1000. Continuing, Mr.. Norton said that he claimed the facts of this case were all m favour of himself ; m spite of the official capacity of the party appealing, and the serious nature of the charge, the Court intervened and . cut ■ down the damages by . three-fifths. Looking at his own case m the light of the facts of this .last-cited case, it could not possibly be contended that the. damages of £2000 were not excessive. Mr. Stringer, as he had said, did not name the amount he expected to get; but, like the chaffering Hebrew, had named many times more than he expected- to get, many times -more than would compensate him for the injury sustained, if any. Ho submitted that if, m .circumstances such .as those of j the Hicks v. Gregory case, the Court would reduce the. damages, he himself was much more entitled to a reduction or a new trial m the alternative. In that case counsel had merely mentioned incidentally a f act: remotely connected with the. case: the dismissal of Hicks — a fact which was m no . way calculated to have such a disastrous effect on the mind of the jury as the words of Mr. Skerrett ; and yet these words had recoiled on the head of the man who ' uttered them, forming a. ground for a new. trial. He would now try to be as brief as possible, m conclusion, though he did not. waive his right to argue various points else-, where. There was another, and. he; would hone an equally indulgent Court to go to m case of need. lie rejoiced m. the opportunity he had had to show the profundity, of. his legal knowledge and .research, and he . thought he had placed before his Honour arguments and citations powerful a.nd . overwhelmingly strong enough to show that the misconduct of counsel and the consequent excessive damages were reasons, for a new trial. He knew by whom he was opposed, but-- he. relied on -his Honour to protect him from any reflections which opposing counsel might choose to make; he thought he should be protected from the escapades, ambushes, ambuscades, alarms, and . excursions m which learned counsel had indulged m his address to the jury; and*finally he would implore and beseech the learned counsel to keep within the strict legal limits when addressing his Honour. Mr. Norton concluded by thanking his Honour for the courteous and patient hearing that had been accorded him. MR. SKERRETT IN REPLY. At 2.55 p.m. Mr. Skerrett, X.C, coui'sel for Mr. T. W. Stringer, addressed his Honour as follows: — May it please your Honour: I propose to deal with the grounds urged ' m the following order: — (1) To deal with the suggested ' ground that the damages are excessive; (2) with the suggested miscondvet of counsel which it is alleged produced the suggested excessive damages; (3) with the suggested misdirection's of his Honour the presiding judge: I . adopt this order because it will- facilitate my argument, and tend very much to shorten it. Upon the first ground} viz., bhe' suggestion that the damages were excessive: as far as I can 3iidge there is little or no difference between the de-.l fendant's appreciation of the law and that which I propose to submit to your Honour: It seems to me that, the PRINCIPLES WHICH ARE TO GUIDE . . your Honour m the determination of this question are clear, and well settled by a long line of : authority. If your Honour will . permit me very briefly to cite them, not so much for the benefit of your Honour, as to enable the defendant to follow my suggestion that the principles which I iur vite your Honour to apply are those which he himself invites jour Honour* to apply. These principles can be stated m two paragraphs — (1) that it is not enough that the amount of the verdict should be such as would not have been given by the presiding judc;e had' he been' himself trying the case, without a jury; but m this class of action the damages must be so large that- no jury could' reasonably have found such a sum ; (2) that this Court is entitled ' to look at the libel itself, the position of the defendant, all the circumstances connected with the libel, arid the conduct of the from the 1 time of the libel down to, arid- including, the trial, m ascertaining whether the jury were not justified m the exercise of an undoubted' jurisdiction to award the sum tbej T did. With much of what the defendant has said one must be m complete agreement'; and it is a matter or regret that he should have wasted so much time m over and over again urging points which were hardly likely to be dissented from by your- Honour, and which I think the defendant could hardly have expected me to dissent from. There are, no doubt, two important jurisdictions involved : one is the right of the jury TO PROTECT PUBLIC AND PRIVATE CHARACTER, and to mark m a reasonable way their disapprobation of a wanton and unjustifiable' attack upon private character. It is undoubtedly to the interests of the community and to the interests of " the State that that jurisdiction should subsist, and should not be weakened or overstepped by the learned judges who preside over the Courts and assist the jury. I agree with the defendant that there is equally a jurisdiction, and as important a jurisdiction on the part of this Court to supervise the decisions of juries, even as to the question of amount, and to interfere where they are satisfied that the amount must have beon produced either by passion or prejudice, or by misconduct or some untoward happening during the course of the trial. But I do desire to point out to your Honour that it has been the practice of judges for a long period of years to exercise with the greatest caution this supervising jurisdiction, and they have always hesitated to trespass upon a right which juries are entitled to exercise. May I also point out one FARTHER IMPORTANT CONI • SIDERATION,^ «t.,mJ *•£<; is. /that/ ' a)W '?^^[S5 5 p v njj.t>; i
are sound grounds for disturbing the verdict of the jury. There is one other point to which I desire to call your Honour's attention m this matter ; the defendant m- this case is not domiciled m New Zealand ; he has a paper and probably a printing-press m New Zealand; he is a mere stranger m this country — here to-day, and j. gone tomorrow ; it is only while he is here and so far as he may have property m this country that he is subject to our latvs. His Honour : Pardon me, what is the application of that ? Mr. Norton : You cau follow me to Now South Wales. Mr. Skerrett: I think this is an aspect of the matter for consideration, for the imposition of certain conditions. Just now, I am merely referring to the matter because — Mr. Norton : May I just here remark, your HonourHis Honour: Would you mind reserving your remarks till later. Mr. Norton,: It will be useless later ; be should not try to influence your Hon-. oiu's judgment by extraneous considerations. His Honour ; I will see to that. Mr. Skerrett : I merely mention the pomt — I propose to advert to it later on.. It is necessary, therefore, m determining the question as to whether the damages are excessive, to consider the gravity qf the charge, the position of the person against .whom thecharge was made, the publicity given to the charge,, the circumstances under which . AND THE APPARENT MOTIVE from which the charge was made, and the whole conduct of the defendant subsequently to the making of the charge. The charges made m this article against Mr. Stringer, as found by the jury,, are: that he, being Crown Prosecutor, m breach of his duty, had been party to the payment of £400. out of moneys which he held as trustee for the person accused, for the purpose of stifling a criminal prosecution . • His Honour: I don't think the jury found the annpunt of £400 was paid out of trust funds. Mr. Skerrett: Thai; is unimportant. Mr. Norton: Oh, is it? His Honour : Now, Mr, Norton. Mr.. Skerrett : I think, that is the inference. His Honour : You are entitled to put it to me that it- is an inference I am entitled, to draw. Mr. Skerrett: Very well, I will put it that way. I withdraw the reference to the payment being made out of -moneys which. Mr. Stringer, possessed as trustee, and I am perfectly content with the innuendo . that Mr. Stringer, was party to the payment of £400 TO STIFLE A PROSECUTION, for crime, and that he was guilty of:- professional misconduct.. Now the defendant has shown a curious obliquity to the gravity of, this charge. He said : It is not flagrant, it is not exasperating, it is m not humiliating. I must confess that I do not understand language if this charge against Mr. Stringer does not answer each and every one of the epithets which he chooses to use. It is quite true that it does not charge Mr. Stringer with murder; it is quite true that it does not interfere with his family or domestic concerns; but m- its own particular line, and within its own ambit, . I can imagine no more grave charge against a counsel, 1 and no more grave charge, against a Crown Prosecutor; May! point, out that if the allegations m this article, were true, the Crown would have, been justified m removing Mr. Stringer from his office as Crown Prosecutor, and the Supreme Court would have been JUSTIFIED IN DEALING WITH MR. STRINGER under the disciplinary jurisdiction which it possesses over its officers? If, that is not a very grave charge against a public official and against a counsel, . then I am unable to appreciate language. Now, this article was published throughout the colony: that was the inference which the jury were entitled to draw from the evidence : to every class of reader. We have no notion what the readers were, but it may be assumed that they were every class of reader: some who know Mr. Stringer, others ' who knew not Mr. Stringer, neither his reputation nor his character. I desire to remind your Honour of a few dates which came out m the evidence, and which show, how this topic was resurrected wantonly, as I was entitled to submit to the * jury — and as I submit the jury have found — wantonly, for the mere purposes of an attack upon Mr. Stringer. The trial which, according to the defendant, shook THE MORAL FOUNDATONS ■ OF CANTERBURY, . took place m August, 1906-^the conviction of Goodman. The Court of Appeal proceedings took place m October, 1906 and. the retrial and acquittal of Bruges took place m November, 1906, before your' Honour. This article was not published until the • 14th' March, 1908— i6 months, after this event had occurred, and long after the topic had ceased to excite piiblic interest or public discussion. I submit that the jury were entitled to find that it was resurrected wantonly, as the mere vehicle of an attack upon a public man. Now, your Honour, another circumstance, which is of the utmost importance: the charge was without' the slightest foundation — or to use Mr. Norton's .own language: without the shadow of a foundation of truth. There was no proof even that Brown was bribed, or that a criminal charge had been stifled. - IT WAS POSITIVELY DISPROVED that Mr. Stringer was, as alleged m the article, at the time of the occurrence a trustee of Bruges or any part of his estate. ' It was positively disproved that he had anything to do with the payment, of £400, or was concerned m any degree with the prosecution of Bruges at the instance of Brown. It was proved that so far from any professional misconduct on the part of Mr. Stringer, m the course of this prosecution he had gone out of his way. to take steps which would ensure that no suggestion should be made against him for impropriety or favouring Bruges, m consequence of the slight connection which had subsisted between Mr. Bruges and himself. Now, your Honour, that is a very material consideration. This article as I pointed out (I desire to give your Honour a few more dates) was published on 14th March, 1908, and a letter written on 16th March, 1908, put m evidence, m which Mr. Stringer quite politely but quite firmly pointed out his objection to the article, arid DEMANDED A RETRACTATION AND APOLOGY. The defendant has said that Mr. Stringer ought to have postponed his departure from New Zealand. His Honour : No, he said he could not do that. Mr. Skerrett: I am sorry to have misunderstood the defendant. In any case, no other course was open to Mr. Stringer tlian to continue his journey. It was perfectly clear it was easy for the defendant to have retracted the charge — and here it is impossible, I may remark, for the defendant to disassociate himself from those whom he places m charge of his paper. If he takes tho profits of a business he niust also take the risks and tho liabilities. It was easy for the defendant or his servants to ascertain the absolute falsity of the grave charges made, and to ' have retracted the charge ; but APPARENTLY THE LETTER WAS IGNORED; h|s. servants did not exon have the politeness to reply to it ;] ! it wass,ifr ; no.red,y and it' is submitted, from .the course
article were true or not. Now, your Honour, there was a defence put m, which, although it did not plead justification, did plead that this was a fair comment upon the conduct and actions of a public man, for an honest purpose, and m the public interest.: a plea which, it is submitted, connotes that the facts stated therein are true, and that the inferences drawn from these facts are reasonable, warranted inferences. Your Honour knows that throughout the trial the charges were not withdrawn, not a solitary expression of regret was used by counsel for the defendant; indeed, to some extent the charges were persisted m, because "if your Honour will remember there was a cross-examination of Mr. Stringer as to his connection as trustee of Bruges's estate. Now, your Honour, I must confess that I have been wholly unable to follow defendant m his attempt t to mitigate or palliate this article. I submit to your Honour with confidence that there is NOT A SOLITARY CIRCUMSTANCE Ol<' PALLIATION or excuse from the first to the last, neither m the article nor m the conduct of the defendant's servants when they received the letter, nor m their conduct at the trial. Now, your Honour, is it to- be suggested that when a defendant comes into Court with a grave and wanton and unjustified charge against a public officer, without tho slightest attempt to make good, or remedy that charge (and the charge is one of so grave a character as would justify the Crown m dismissing the plaintiff from his emoluments and office and to render him subject to the disciplinary powers m jurisdiction of this court,) that this Court is to revise the verdict of the jury, and to say it is too much ? Your Honour, the defendant has done, very ably done, all that he could to urge m his own behalf for mitigation of the penalty ; but has he, apart from the words and expressions used, been able to urge one solid substantial matter of palliation or excuse? We submit not. Now, your Honour, you will remember, that the defendant said this, though not m so many words perhaps : "I do not suggest," he said, "that the mere amount of £2000 m this case was not such an amount as '- ' ■TWELVE REASONABLE MEN could arrive at." 'He said so quite oan T didly during the course of his argument. He, however, said tihat a difference was made • because of the alleged misconduct of the counsel who acted for Mr. Stringer. Mir. Norton did not suggest to your Honour that the verdict and the amount of the verdict was not such as twelve reasonable men could not have arrived at. If . so, then it is submitted, standing alone, and aparfc from the second consideration, there is not a- shadow of a ground (to adopt the phraseology of the 'defendant) for the suggestion that thjs Court could exercise its power of revision over the -verdict of the jury. 1 desire to make one or two short observaions upon the cases cited, and perhaps very shortly to .refer your Honour to one or two more upon the .point. I desire for 'your Honour's convenience to give the citation DAVIS AND SHEPSTON, 11 APPEAL CASES, page 187, where it was ]aid # down by the Privy Council that- the jury , were m cases of libel entitled to give punitive damages.. May. I refer to a pas-s-age iii Odger, 4th cd . p. 349, where, there is an accurate statement of the law. (Extract read:) May ' I also remind your Honour of the well-known case of BELT y. LA WES, 12 Q.8.D., p. 386, where a verdict was given m iavour of a plaintiff m an action for defamation m the suni of £5000. The learned judge reduced it or gave the option to the plaintiff to consent to j its reduction to the sum of £500. The plaintiff then _ appealed to thi>. . Court of Appeal, which confirmed the original verdict of £5000. I also refer to GATTY V. FARQUHARSON, 9 "Times" Law Reports, p. 593. There the verdict was found for the plaintiff for £5000, and the case was one iii which F. accused G. (both being candidates at same election) of improper practices while at school, and suggested that he had been expelled from Charterhouse School for that reason. The verdict was ultimately reduced from £5000 to £2500. I also refer to JOHNSTON V. G.W. RAILWAY CO., 1904 Reports, 2 X.8.D., p. 350. 1 only do so because the headnote of the case is entirely misleading/ as, oddly enough, very often happene with the English .Law Reports. The headnotes are not by any means as carefully prepared as they might be. His Honour : I have just had to deal ■ with an entirely misleading note m another case. Mr. Skerrett: During my short visitto England, 1 had some experience of how Privy Counsel reports axe not prepared as carefully as they deserve. However, your Honour will, m looking at this case, see that Praed~v. 'Graham was not disitinguished at all. Johnston v. Graham was not a case of punitive damages; it was a railway accident, and the headnote is quite misleading, because what Lord Justice Vau^han Williams said m this case, referring to ROWLEY V. LONDON AND S.W.R , was that it was not necessary that the amount of a verdict s-iouiu snow the verdict to be perverse, if the amount or the circumstances showed that a direction of the Court as to the measure of damages had been ignored. Your Honour will recollect that Johnston's v case was that of a young man of promising abilities, but with a small- salary, who, it was suggested, had a prospect of getting a position abroad at a larger salary. It was , suggested that it was a very common tiling for suoli a man to receive £700 to £1000, and sometimes as much as £1500. At the time of the trial the gentleman was earning temporarily 50s. a week, and. his ordinary salary was, I think, £150. (Report read.) Respite the large sum of £3000 damages, the Court of Appeal unanimously came to the conclusion that they could not say that the rule laid down m Rowley v. London N.W. Railway Co. had been transgressed, and refused the motion for a new trial. That is an illustration of the great reluctance the Courts have to interfere with verdicts of jury as to amount. IN HICKS V. GREGORY, to which so constant a reference has been made, I desiro to point out that, although the jury found that this gentleman, who occupied a judicial position,- had not been guilty of partiality m his office, and had not. himself committed a breach of the provisions of the section whioh prohibited . him from being interested m leases within the Warden's- District over which ho had control and jurisdiction, yet upon his own admission an interest m the Fingal lease was given to his wife, and he himself had received part of the proceeds of that gift. Now, your Honour, surely it cannot be doubted that tho learned Chief Justice who delivered the judgment of the Court was quite right m his observations when ho said that this magistrate lid not come into Court with a clean reputation as had been suggested by liis counsel. He came into Court with an admission of what it would be monstrous to contradict was A GRAVE ADMISSION OF MISCONDUCT. for a person holding a judicial office, no matter how small ; and for that reason the learned judge reduced the verdict to a very substantial sum, iz., £1000, but with/a perfectly clear !n---..tim«T,tipn: that, bat for the defendant's ijiiscoMucfc'wibh [regard to, the Fingal ■ 4s%^*t^&o^.&P&¥^iJ&&?®Bt tinereij},. .
Honour will also remember that f he defendant lias suggested over and over again that this is an instance m which the verdict was reduced upon the ground, of misconduct of coun-sel. Nothing of the kind. In that cascr, counsel had referred over and over again to the fact that the man ha 1 been dismissed; but he said that the jury were not entitled to take that into- account. His Honour: Yss, but you know, Mr. Skerrett— Mr. Skorrett: No doubt, your Honour, the effect of that was to invite the jury to include m their estimate SOME SUGGESTION OF THE DISMISSAL. But the ground of the reduction was that the judge's direction that they were not to include it had plainly been disregarded. His Honour: Yes, but it does not follow that it was not a matter of comment that had been made an influence with the jury. Mr. Skerrett: They concluded that the jury, m arriving at the damages, had taken into consideration the dismissal of the plaintiff; as the learned judge said, he doubted whether he was successful m getting the jury not to include anything of .the kind. His Honour: I think there is a clear indication m that that he thought the counsel should not have made the suggestion. Mr. Skerrett: Possibly, your Honour; but there: is no expression of disapproval. His Honour: One. judge said, he was sorry counsel was not there to hear what he was saying — which certainly suggests "disapproval" at the least. Mr. Skerrett : Now, with regard to Farquhar and Lloyd — .the CASE OF THE HONEST BUTCHER, your Honour. Your Honour will find that it is no assistance whatever, because this honest butcher, as Mr. Norton calls him — Mr. Norton: I said "poor butcher." His Honour : Poor, but honest. Mr. Skerrett : Your Honour will see . that the report deals purely and entirely with a question of costs upon the plaintiff taking £500 out of court. The -report contains no statement of the circumstances at all. It contains a statement of the libel, however, but not of the motion on which the- damages were reduced to £500; and if your Honour, looks at. the case, your , Honour will find the details. (Report , read.) THEN, WALLACE V. ' COOK, is a case which, rb is submitted, can hardly be of any assistance to your Honour at all. There the learned counsel, m opening, intimated that the defendant had been accused of blackmail herself . . His Honour: I think it was a very improper statement to make. Mr. Skerrett: It was repeated several times throughout the case. His Honour: Certainly it was an improper reference. Mr. Skerrett: HARRIS V. ARNOTT, IRISH LAW REPORTS— Your Honour will see here that this was a. case of puTe mistake. If the jury found it was, wilfully inserted, they would be finding contrary to the weight of evidence. The matter was correctly published m many editions, it was wrong, m one. Mr. Norton : There was gross negligence proved. Mr. Skerrett : There is no analogy between that case and this one. My. submission, your Honour, is ;■ thai there is no ground for yielding to the defendant's application upon the grounds that the damages are excessive. Now, I deal with the second branch, viz., THE SUGGESTED MISCONDUCT OF COUNSEL, which it is suggested produced the verdict for <t3xc<2ssiye damages. I desire to make just one or two preliminary observations. ._. I ..desire, if your Honour pleases, to pass by the. somewha-t wearisome personal references to' myself, made with a hyperbolic^exuberance of language ' which ' was almost grotesque; I desire also, if your Honour pleases, to pass by the defendant's' interpretation of my remarks m which he seems to have attributed to them all the adjectives and epithets which could have been produced from a very wide and extensive vocabulary. ]t would be wrong of me to waste the tim-e of the Court by answering the suggestion that any of the remarks quoted by him could possibly bear the interpretation that he was a moral or ' immoral monster, that he was. a moral or immoral marauder, a scoundrel, a public puryes'or of immoral literature. It is submitted that it would be childish for me to take any notice of these observations. Addressing myself to the argument now, I desire to point out that there is ONLY ONE ISOLATED PASSAGE, divorced from its context, m a speech of about an hour's duration, which is objected to as "misconduct on the part of counsel." This was. not objected to by the competent counsel who represented the defendant at the trial. It suits Mr. Norton, by innuendo perhaps, to disparage that gentleman, who certainly loyally protected the defendant's interest, just as it suits him to wildly exaggerate my status and my influence with the jury. I desire, further, to point out that it is ha>rdly likely that the observation would have escaped your Honour's attention had it been apparent that it introduced to the consideration of the jury matters wholly extraneous to the evidence. May I remind your Honour — and this is important— that your Honour took a groat deal of trouble to direct the jury as. to the limits and extent of reail damages, contemptuous damages, and of punitive or exemplary damages. Your Honour carefully explained the extent and limitations of the powers of the jury with regard to these classes of damages, so that it was difficult, and indeed impossible, for the jury to have gone wrong, especially as they paid the utmost attention to your Honour's observations. I desire to submit, first, before dealing further with the matter, WHAT ARE THE TRUE PRINCIPLES upon which the Court acts m matters of this kind : (1) If your HoiK-or pleases, we submit that this doctrine which the defendant is invoking is not a separate or independent ground for a new trial, but it is merely a branch of the doctrine that the Court will revise the verdicts of a jury where the damages are excessive, or where on a cognate ground the verdict is against the weight of evidence, and take into consideration (where such exists) that there has been misconduct on the part of counsel by the introduction of extraneous matter; (2) and alternatively to this, it is submitted that it must be, m order to furnish ground for the interference of the Court, the introduction of matters into the case not proved must be such which the Court can plainly see did lead or must have led the jury to give an excessive award of damages, or >fco arrive at a verdict against the weight of evidence; (3) we say that the ground can never apply where the observations objected to are founded or based upon comments or •inferences, no matter how erroneous, on facts 'vhich are m evidence ; (4) and lastly, we submit that according to the almost unanimous opinion of the American Courts, and according, it -is* submitted, to well-established principles m English Courts, the objection must have been taken by counsel at or during the trial, and that if it is not taken the object will not be allowed to prevail. Of course I DO NOT DISPUTE THIS PROPOSITION : that even if the objection be made and"; the judge corrects ;the act of miscon-. duct, on the- yet if, it^ap-rl
jury, of course there is a distinct T a proper ground for interference. If your Honour will observe (I desiri refer briefly to the first ground) tthe defendant seemed to feel the ye difficulty that I suggest. He sai{ "It is perfectly true you could nt. deal with excessive damages and mis-" * conduct as separate and distinct grounds." They were what he calls cumulative, he said, and his process of reasoning was this — plainly illogical. The queston, he says, for jour Honour is this: were these remarks of counsel contributory m any degree to these excessive damages? THAT IS BEGGING THE QUESTION. I would agree with his statement, provided he proved his premises. If you find that the damages are excessive, then a proper matter for consideration and a proper ground for the interference of the Court, is the misconduct of counsel m the course of his observations. I desire to show that there is considerable authority for the view which I take, although it probably will be unnecessary for your Honour to consider the matter. If your Honour will look at all the cases cited, the learned judges have first applied themselves to the question of whether the damages have been excessive and then they have supported that result by explaining how it occurred, by some MISAPPREHENSION ON THE PART OF THE JURY, by some misconduct on the part of counsel; but it is always and m every case not a substantive ground for a new trial, but a mere explanation of the interference of the Court m a case of excessive damages. Certainly Lord Esherputs it m ,the way I suggest to your Honour (Praed v. Graham, p. 55 —extract read). The larger rule of conduct is that juries must not give unreasonable and. excessive verdicts. Your Honour will see that Lord Esher expressly puts it that these cases of misconduct of counsel, or blunders of the jury, come . within . the rule which limits the discretion of the jury as to damages, viz., that they must- find - such damages as reasonable men could have found. As your Honour will see, Lord Esher goes out of- his way to express the rule as I have ventured to submit it to your Honour. I shall not. trouble, your Honour with Chattell v. "The Daily Mail" except to remind your Honour of what the defendant seems to have overlooked m regard to the amount of the claim : it was only £1000. • Continuing, Mr. Skerrett said that he would not trouble his Honour with further . details of the trial before the Under-Sheriff , but would merely point out that the teamed judges first ascertained whether the damages were excessive or not, and then supported their judgment by the observations of Marshall Hall (the counsel), which produced or were expressly calculated to produce the result. There was an apology m thie case, and a letter indicating that the apology would be . amplified if desired j the allegation of unchastity was not so much what the lady objected to, but the exaggeration of her age. His Honour: Yes, I observed that. Mr. Skerrett: I don't think I need refer, your Honour, to the CASE OF DUNCOMBE V. DANIEL: that was a case where a document waa referred to m the opening, and the counsel for. the defendant desired to put m secondary evidence. without producing it. Counsel for the plaintiff said it was an unfair advantage. His Honour : It is a well-known rule. Mr. Skerrett: The case has no application, at any rate. PONTING V. HUDDART, PARKER AND CO. ; that was a case of gross misconduct on the part of the solicitor. Mr. Norton: No, no. • : ""-Mr. Skerrett : 'After 'the jury had 1 retired, there was — — •' His Honour: It was very gross misconduct. Mr. Skerrett: Wallace v. Cook has not got the whole of the facts, but m that case I venture to suggest that the same process of reasoning arrived at the result: that there was a slander, damages were excessive, and must have been produced by outrageous conduct on. the part of counsel. .Now, I submit, at any rate m the alternative, my second observation is at least a correct one : that there must be extraneous matter, and the judges must be reasonably satisfied that it led or must have led to the injustice complained of. It is not enough that it contributed, m no matter how small a degree, to the result. To hold such would produce disastrous results m our. litigation. In the controversies of this Court, whether it be a civil action relating to the most prosaic contract or whether, it relates to a claim of libel or defamation, WHERE FEELING PERHAPS RUNS HIGHER, there must be casual observations by counsel which go beyond the precise lines of the evidence; but to suggest that after the trial and remaining silent throughout, with no attempt at correction, the. defendant is entitled to make this the ground for re-open-ing the whole matter, it is submitted, is preposterous. The result would be that there would be never : ending litigation, and the gravest injustice don« to litigants. On the third ground: that objection must be taken at or during the trial : fortunately we have the whole of the American practice m our favour. The defendant was careful to avoid citing the particular passage, although he referred to the same volume; buc he did, as your Honour will remember, cite a passage where it was assumed that objection was unnecessary. Your Honour will find m Vol. 2 of the Encyclopaedia of Pleading and Practice (an American book), page 753, reference to the practice (references read.) I would 'also refer youi Honour to the case of THE ALHABAMA RAILROAD V. FRASER, 30 American State Reports, page 34 par. 11 (passage read). I submit that our own practice agrees with the American practice. Your Honour is aware that m Praed v. Graham, Lord Esher expressly says that the analogy of this verdict for revision is to the granting of a new trial where the verdict is against the weight of evidence, and so the analogy also is to cases of misdirection. Here the objection is tantamount to an objection that your Honour ought to have directed the jury that counsel's remarks were improper. His Honour : Non-direction, and therefore equivalent to misdirection. Mr. Skerrett : Yes, your Honour. Where non-direction is complained of, the party cannot by his counsel sit by without asking for the direction which he requires, and afterwards claim a motion for a new trial. I simply cite some cases : — FINE ARTS CO. V. NEVILLE, 597 Appeal cases, page 76, Privy Council ; Wilson v. Kisiri, 18 N.Z. Law Reports, page 81S : judgment Fine Arts v. Neville and Begg v. Naujoks, VI. Gazette Law Reports, page 19] (that is a judgment of Mr. Justice Edwards, expressly adopting the two previous cases) ; and I would also refer to the judgment of the Victoria Full Court m Speight v. Symes (Melbourne "Age"), 21" Victoria Law Reports at page 681. In this case the,. Full Court appears (if, I may say sor ; with respect)^ to allow a little more lib->\. : erty to counsel than I think is the practice of English Courts, or than I think is advisable should be allowed to thorn ; but that does not affect the value of the sentence which I desire to refer your Honour to. '. MR, JUSTICE HOLYROYD SAQ)
cvnngh
is not availed of, the judge's cbargo cannot afterwards be impeached on that score." Now, your Honour, it fras to mo (if I may venture the >icism) that the right of counsel to the jndgo to refer to a circnmnco which ho (the counsel) thinks fe judge has jsasscd over, 13 rather wider range than m practice is allowed, or ought to bo allowed. His Honour : "Well, it has never been called a "right, 11 always a "privilege." Counsel has no right to interrupt the judge m. summing up. . Mr. Skorrett: I think it is better it should fee so, for the proper conduct of trials; if it is converted into a tight, counsel will bo very apt to get m an observation to the jury. Now, having made my submission as to what the law is, I venture now to refer to the effect of. what counsel said at the trial. Your , tho first relevant observation is: the stage of the trial at which' these words were used. They were used by the counsel 111 his BUinming-up of tho evideuce, and before, the .reply, of counsel for the defendant ; the '. defendant counsel had th'e last word to the jury, or the right of. reply- The second observation, your" Honour, is : that these words wire uttered by counsel at a stage of the case when it had been proved that THE/ATTACK UPON MR. STRINGER WAS WANTON, made at 'a belated time long after the matter commented upon or referred to was of public interest, and when counsel did submit- to the jury, as he was entitled t6 do, that the attack upon Mr. Stringer was not only wanton, but wicked, and that tho character of the article showed that it was made not m tho public interest) but for the purpose of selling the newspaper. Now, your Honour, there is this observation, whioh is also preliminary, and which I' am addressing to your Honour subject to .your Honour's recollection of the matte*': it is -not true that counsel at any stage of the trial, leaving out this present matter, it is not ' true that counsel at any stage of the trial referred to ■ THE GENERAL CHARACTER OF . "TRUTH." ' newspaper to .toe- jtixy. . His Honour : That is correct. There was no reference to the newspaper generally, unless this observation does that. • . Mr. Skerrett : There was no reference to the nioral or immoral tone of the paper. The- third fact I desire to bring before your Honour is: that there was not even any reference to any other article m any issue or the issue of the newspaper, but th© article complained of, unless this passage is a reference. The defendant denied the publication of the newspaper, and wo had to prove the publication of the newspaper, and the newspaper therefore went, m without objection to -the jury. " ' ' His "Hondur: Quite so, that was troated as a matter" of .course. Mr.' Norton.: But there is no proof of that. • — Mr. Skerrett: ' The reference m counsel's speech was addressed to the question or damages, and m anticipation of what counsel .for tho defendant might legitimately and properly urgo m the performance of his duty m support of a lenient treatment -, ..of the defendant m the . assessment of damages. . It was IN ANTICIPATION OF ARGUMENTS not tihen addressed to • the Court,, but which might be addressed to the Court, and which if not anticipated then tbe opportunity of referring to them would be lost for ever. Now, these arguments which were anticipated were: that the article was written from a sense of public duty and a desire to provoke a sea-robing inquiry, or aii inquiry into t.he matter of the charge. That was said by Mr. Wilford .(counsel for the defendant) ; it was said twice at least by the. defendant. to-day. The second observation • was that counsel might have urged that the informa-tion.-upon which, the article was. based was incautiously inserted through acting . upon erroneous ■ information. Thirdly, that - . . MR. STRINGER'S CHARACTER AND POSITION were so well known that he could not have been damaged by the attack ; that was used by counsel for the defendant as was anticipated. And then, your Honour, what is more important still, 'the weight of the defence rested uptin the plea of ' fair comment, ft was a misconceived defence, surely, but nevertheless the weight of the defence, such as it was, Tested upon the defence of fair comment. Now, your Honour, that necessarily involves that the comment was made with an honest purpose. If it was made otherwise than for an honest purpose, otherwise than In public interest, then it failed m being f air comment. Then the question raised by the plea was: What was THE MOTIVE FOR THE ARTICLE? Was it an honest desire to expose a grievous v/rong? Was it, as we have heard tho defendant say m the course of his arguments, to right wrongs? or was it a wanton and wicked attack made recklessly for the mere purpose of tickling tho palates of the newspaper's customers, and enabling it to be sold? Now, we submit that the counsel's observations "which were used consisted merely of inferences and comments from the article put m ia Ihe evidence. It does not matter whether tho inferences or comments were r'g-ht or wrong, whether they were justified or unjustifiable, whether they were m good taste or bad taste, whether reasonable or unreasonable, so long as they were comments upon facts or upon, the article given m evidence, then it 's submitted they were proper, and their vaiuo was entirely for the jury and not, it is submitted, for tho Court. Now, your Honour, there was 10 other material offered to or suggested to the jury as the basis for determining these inference than the 0110 articlo which was "placed before them. Would your Honour be kind enough to see the text, even the portion of the text which is shown IN MR, COWAN'S AFFIDAVIT. After a short interval Mr. Skerrett continued r I was addressing myself to tho question of the plea "of leniency. ' The observations which are complained of are stated m Mr. Cowan's report. (Report quoted.) What is the reason j for the existence of such a paper, counsel asked — that is, of a paper containing such tx libel. It is contended that that refers, and was so understood j by jury and counsel for the defendant; only to the article which alone had been called to the attention of the jury- Then there is a perfectly general observation, with which I presume 'ho defcTjflant docs not agree: "We have a , Jtip*h-ela««s press m this country," etc. Mr. Norton: What i« the learned cc!ir.-..i*l rending from? His Honour: From Mr. Cowan's affidavit, that part of your motion for a htitr trial and th« portion of th« report qrvtt^A h«r*. Mr. Skerrett: Th© whole purpose of m 7 observation was to -anticipate th© .•nnr/'rrtion that this paner and thia article wm published with s Ixma tide 'tr-sirc to expofip vice, and m pursuit of ITS MISSION TO RIGHT WRONGS, a? -.'.1 to resist an appeal for undue leniency. Then, after a perfectly general observation about the character of the press m this country, couivsel opntin- , ues, "Let this sort of paper m, and I you will have a different state of f things," etc. Surely that is tho plain \ moaning of the language, and not the i distorted 'meaning attributed to it m the most ; lurid language by the defendant. Then I ventured upon prophecy (which is always dangerous), and said: "You will have a degraded press an unclean community." Ido not know of anything of greater inlport-
ancc to the community than the pri-va-to character of public men. Hi a Honour: I rather fancy you nje.ro not dealing with. that aspect of tho question at that time. Mr. Sko-rrett: Possibly, your Honour. The defendant seems to think tiiat it is the duty of counsel (o occupy a judicial position. But that is not so. Tho principle at the bru:-is of our proceduro is that truth m eviscerated, and justice arrived at by weighing" the contending statements r.nd arguments of opposite parties ; it is for the jury and judge to nold tho balance evenly between the 'opposing parties. Mr. Norton: No, your intention is to let them have a free go with bare knuckles. Hi,s Honour: Perhaps Mr. Skerrett':; meaning was the same, but he was putting it m more elegant language. Mr. Skerrett; Perhaps counsel used f-entimeiitn more high-flown than used m the conversation of ordinary life, because to uso them would be to stamp one as a prig or a hypocrite. Nevertheless the observation made m- this ca«e was an observation, priggish or otherwise, perfectly relevant t<s a wanton and a wicked attack upon a man whose official position ought to have made the defendant pause before making an attack without the slightest foundation m fact. I have no doubt, if one' could get at the defendant's mind, UNTRAMMELLED BY HIS UNFOR- . . TUNATE CALLING, he would agree with me that no State is saie, and no State can get the best tvork out of ife servants or out of the individual, unless there is protection for private character and tho respect and self-respect which that creates. Then, your Honour, I say that m tho present case leniency woitld be wasted. There are times when leniency is a virtue, qnd other times when it ia a weak-nc-i'i? and a vice. The present is not th<' time for leniency ; the crisis has arrived, and you cannot escape saying tyhother "that sort of thing" : the . libel : is to go on or not. Those are counsel's arguments. There is m the whole of the paragraph no suggestion that this paper should be crushed ; the suggestion is that it should not be encouraged to '-wantonly attack private character or public character by any undue- leniency of the jury. I suggested no .amount to bhe jury ; I suggested that it was their responsibility, and it would be impertinent on my part to suggest an amount ; I neither suggested tno full amount nor any amount; and to say that this paragraph invites the jury to take ~ into consideration the general character of the, newspaper or that it refers to the genera] tone of .the newspaper is, I "SUBMIT, AN ABUSE OF LANGUAGE. That this is tho true view is shown hy what took place' at the trial ; it is shown by the attitude of Mr. Wilford. Mr. Will'ord had the duty of " replying ' to my speech, and he did reply. He did not, either during my address or during his own speech, make any reference to this observation as beinp; imp roper, and I submit that he did not traat it-^-nor can.it be seated that the jury treated it — as a general attack upon tho paper. ' It is . true he challenged the foundation for my in_- ' ferencos. .Ho sakJ there was no liboi. He said : Take the words as they are they do not say anything defamatory of Mr! Stringer, and that, they v/ere fair- comment; but he never suggested that there had been an attack by oouii-sel upon the general character 01 the paper. Moreover, your Honour laid down, a-s I pointed out before, tho true principles of the assessment of punitive- . damages, whi«h ueosss&rily excluded froni tho mind of the jury any inference, which they could have drawn from the observations of connsol to award, damages, because the paper had a bad. rep.UtajjfJn.,, . v Yoiiy,, Honou r pointed but' precisely .rate liiii,- v ! its of punitive damages. \ .„,.?.;..,, ..., 1( , '. Mr. Norton:'. 'There' is ' "no . '"■ evidenc e: that the paper had a bad reputation — nothing tfut your remarks. Mr... Skerrett: I did. not say no, aiicl I am not saying so here, not becayso of ray own , personal opinion.,, but because it is not proper to do so here. At the very worst tftie observations of counsel are AMBIGUOUS AT THE VERY . ' MOST ; .. and it* is submitted that where lanfuage 'is ambiguous, and as capable of oing understood . either m a proper sense or an improper sense, the. Courts will always construe • the language ac 'being .used m the proper sen.se; and, moreover, ' it is of importance to cou • edder that, both ac to the duty of counsel, to intervene and also when your Honour comes to consider whether it had any effect at all on the verdict of bhe jury. Ybxir. Honour will see that bhe defendant, for purposes of bis own. has chosen to attribute to me an •influence with- juries which it is fortunate that neither I nor any other counsel m the Dominion possess. It would be a bad day for the administration of justice if a condition of things such sis that which tho defendaat assumes to bo tho condition of things m this Do-, minion, did. really exist. Now, your Honour, as to THE EFFECT OF THESE REMARKS upon the jury: It is ridiculous to urge that they had any such effect upon the jury. The Courts of Justice are not now purblind. Mr. Stringer's character was assumed both by counsel for the defence and counsel for the plaintiff, and, though it was not proved, Mr. Stringer's character was known to the jury, and they were entitled to act upon that knowledge. Probably, your Honour, it is impossible to . escape the conclusion that many of the jury knew or gsrhaps some were subscribers to this " paper. IF THIS PAPER IS A MORAL PAPER, a paper with, the pursuit of any respectable mission, that ounht to have told m its favour. The defendant ought to have been glad to be tried by his readers and subscribers; I do not know what better tribunal the defendant could have if his paper bad been a proper paper. Your Honour, it is impossible to escape, it is submitted, 1 that the references of counsel were not to the general tone of the paper, but were confined to the article, and that AT THE VERY WORST THEY WERE AMBIGUOUS and could not have produced the enormous result (I am using the language of the defendant) attributed by him. There is one observation I desire. to make, and it is this : it is very probable that the jury were entitled to look at the >whole paper. The .matter was not without consideration by counsel for the plaintiff, but it was thought safer not to refer to any of the contents of the paper, other than the articlo sued upon, and no reference was made otherwise. It is submitted that the paper being put m, as it was, th« jury were entitled to look at it. Hia Honour : I think that is rather dangerous ground. No objection has been made to its going m, and it is m. I think it would bo better to leave the matter there. Mr. Skerrett : I only want to call your Honour's attention to a statement of tho Master of the Rolls m Chattell v. "The Daily Mail," where he looked at the title of the column "Green Room Gossip," and expressed his disapprobation of that class of literature. Mr. Norton: That was part of tlie article; it was the heading. His Honour : Precisely. Mr. Skerrett : Possibly. May I refer also to MOORE AND HAYNES, 2 N.S.W. LAW REPORTS, p. 3271 That was a case m which the plaintiff sued the "Bulletin" (it is a historic case) m respect of two ar-
ticles relating to picnics or alleged orgies which were held at C-ontarf, situate on Sydney Harbour, and it ->vas sought iv that case- to put m two articles not connected with the plaintiff, not referring to the plaintiff, nor referring to any picnics or act or conduct whatever upon the ground . that tho plea, »s in this case, was fair comment; arid it was said, that m order to establish tho defence of fair comment you must establish tho honesty of the purpose with which you made the allegations, and the evidence was allowed. His Honour.: I am not at all certain that if the question of the honesty of fjommonfc was raised, it might be admissible to put m evidence to show the general character of the paper ; but that question was not called on. Mr. Skcrrett : I aiiree that the QUESTION IS ONE OF DIFFICULTY, and there, was a difference of opinion among the judges ; but, at any rate, tho judgment was the judgment of the majority of the Court. Mr, Norton : That was a case where tfhere was evidence adduced ; this is a case without evidence at all. His Honour : Precisely. Mr. Skerrett : Now, as to THE QUESTION OF MISDIRECTION His Honour: I do not , propose to ask you to deal with that.. There is nothing to object to m the charge properly road. Mr. Norton has an entire misconception of the word "intention." "Intention is entirely different from motive, and the other section is gov-r crncd by omission or non-direction of the judge to direct or caution them against language used by counsel. As to tho question of fair comment, I have heard argument ; and (g) is abandoned. , The case of Queen y. Peter Walker is actual and conclusive, and (g) must therefore be omitted. I am quite pertain that on all these questions there can <be no fault found with tho judge's chargeMr. Skerrett : I would like, however, to- , ■ Mr. Norjbon: Should not your Honour's ruling be binding upon the counsel? Your Honour insisted that I should not pursue citing cases. Mr. Skerrett: This is on the first branch of my argument. This is rather a.' striking and - ; INTERESTING CASE, JONES V. HULTON, reported only m tho weekly notes, unfortunately — June 12, 1909— tho current vol.' No. 24 j and I refer particularly to the dissenting judgment. His Honour-: It is certainly one of tho most convincing arguments on the part of a minority I have ever heard. Mr. Skerrett: In this case apparently, -it- was - »•' - v stone- thrown into & crowd, which hit an individual for whom it was riover intended, but tho verdict was £1750. ■ . ■ His Honour : But the dissenting judgment v:ns very powerful. Mr. Skerrett: But the other two judges did nob agree with that, and their opinion is entitled to Micro v/eijehfc than the judgment of the dissenting judge. His Honour: It is a new terror to jurists certainly;- the tendency of one's mind is rather m favour of the dissenting jud^e,' perhaps. Mr. Skerrett: That is all I have to say, your Honour. . : Mr Norton : I. do not think, your Honour; that I need detain the Coiut with a detailed reply.. What I have said must stand ' in _. spite- of tho ingenious and subtle process of FORENSIC RATIOCINATION— not reason, not that pure. reason which is the spirit of the law, which ■ the great ' Coke or Powell beforo him declared to be the . "essence, of reason.',' oEhe.. .learn ed .gent.lejn.an,, .wjth .a subtlety that sustains his reputation, ha a ■evaded.' tho. issues, the legitimate v.iigsues and "brought m cases that are not j upon all-fours. Of course, the learned gentleman will say : There you are ; I produced 'cases m a contrary direction ; but the question is : Row closely do his esses Apply? "^°" they;countervail the -citations I have brought to your Honour's notice? I say most decidedly not. In justification of that, tho learned counsel said — nnd here ifc is impossible to impeac.li. the .learned counsel's ignorance.; therefore., I accuse., his. rashness, his intrepidity. Ho says that this misconduct of counsel cannot be taken as a separate , and independent ground, nover is sotakon, THE PRACTICE OF THE COURTS FORBIDS IT. I say. the practice of the Courts, does nothing Of the kind. Tho practice of the Courts is to recognise and encourage by that recognition applications "based on this ground of misconduct, of counsel as a separate and independent ground. I am not going to North Carolina or to an}' of those States that have no great weight, but am coming to God's Own ; Country.: this 'Dominion: and I have the "Practice of the-- Supreme Court and the Court of Appeal of New Zealand," by Sir R. Stout and W. A. Sim, judge of the Arbitration Court of New Zealand, third edition, published at Christchurch, bore m our midst, by Messrs. Whitconibe and Tombs, Limited, m 1909. There is therefore no doubt as to the armoury and source from which I draw, the weapon to overwhelm and confound the learned gentleman. • On page 169 we havfi n, side-note, giving the grounds on which a new trial may be granted, or choice or possibility of this : that the verdict has been obtained by any unfair or improper' practice ,of the successful party to the prejudice of the opposite party. Now what .sort of a reliance are we to place upon . the citations of the learned gentleman, when he can make as ho did only a few minutes ago the statement that it was not out recognised practice to recognise or permit applications on the misconduct of counsel as a separate and independent ground. There is that citation, and if it can be bowled out and contradicted so flatly, what about his others? That is acting upon his own argument to the jury: if a man will pub-, lish an article like this m the issue we have seen, what else will he publish m the papers we have not seen. In spite of this book, with which he is as well acquainted as a schoolboy with his elementary arithmetic, he can come and make that statement before your Honour—well, I don't know * to what] lengths his intrepidity will lead him. I should not like to meet him m an argument on the deck of the Maori to-night. His Honour : You are replying to Mr. Skerrett, I believe? Mr. Norton : Really, your Honour, I feel inclined to leave the case where it stands at present. You have ruled so emphatically . about the misdirection that I . can't go into that ; but I will just make n few remarks with regard to the extraordinary proposition put forward by COUNSEL AS TO AMBIGUITY. He says, your Honour, the learned counsel has presumed that your Honour will tako his interpretation of it ; but I submit that your Honour will not only not accept the learned c<:iriisels interpretation of his own words, or his version to their probable effect on the minds of tho jury; but with deference I will go further, and subrait that you won't take your own impression of the words, and their probable effect. HERE I DRAW A DISTINCTION: there is no parallel between the effect they might make on your Honour's mind and the effect on the jury's mind ; and that is why m nil the decisions I have quoted it is not the probable effect, as logically to be deduced from the words themselves, and tho ignoranco of the jurors. But it is the pos-
Bible effect, your Honour, that runs through all the decisions! have cited: I is there a possible effect? And among those, casc-3, although' the discussion was not permitted to proceed on misdirection, your Honour will find AYE ARE NOT HERE TO SPECULATE, indeed, wo cannot speculate, as to ivhat is the probable effect of the words on ' the minds of the jury, say tho judge — . Eis Honour: What case is that? Mr. Norton : Bray v. Ford, I think. I did cite it, bub did not proceed to quote- it — Bray v. Ford (1896), Appeal Cases, page 44. It was Lord Herschel speaking, I think. His Honour : This is put much more strongly m a Sydney case, by Mr. Justice Windeyer. Mr. Norton : His decisions have been very seldom upset ; m that they ressinble those of your Honour. His Honour: Oh, really, Mr. Norton Mr. Norton : "Well, your Honour, what about, the case to tlie Privy Council ? His Honour : Go on, please. Mr. Norton : But surely there is a little credit due to me for finding ouc that the Privy Council backed up your Honour's decision. His Honour: Oh, Mr. Norton, Mr. Norton, you must really cease these blandishments I Mr. Norton : Well, j-our Honour, I always like to wind up these little affairs gracefully. However, inasmuch as I have gone into the case fully and cited an overwhelming array of evidence- m regard to the views I was allowed to put at length. — misconduct of counsel, and ■excessive damages — I really will not tako up the time of tbß Court except to say that WE CANNOT SPECULATE, as the learned counsel claims, after fc^e exhibition of such conduct, as to what will be even tho probable effect upon the mind of tbe jury. Wo have to allow for the possible effect, and it seems to me a most extraordinary dictum to come to the Court and tell a judge of your Honour's experience that because tlie language is ambiguous the counsel who was gufljoy of tliat language is to have the benefit of fcho doubt ; that it is not to bo treated as misconduct, but your Honour is take tho best view possible; you sire not to regard the language as more than ambiguous, not to regard what |--h<j possible effect of this ambiguous ibnguago may be; you are to aasuiuo that this outrageous 'language, because" it is ambiguous, has had a b'&n-efk'ia l effect on the mind of -the. jury ; and you are" to make this -as-suniption simply because ho has indulged m ambiguity, has surrounded his misconduct with a certain ambiguity of phraseology, and that tl^refore t won't be prejudicial on th ; o mind of '-he jury. They are such wise, discriminating men that they will ■make^tke proper choice between this ambiguous alternative. I zaj that is AN OUTRAGEOUS ASSUMPTION, your Honour J that is wonso than speculating. If it is laid down as a 1 ard-and-f-ast r\ile, counsel would bo x : ' J ' r ' mitbeel to continue this conduct and ■would be a menace to the administration •of- justice. I do not .hesitate to say that if the American dictum is not considered valid and acted upon — of. frowning down this- practic-3 and punishing counsel through their clients — t-liei. 1 * cl-kaits must suffer to the' extent that, the Court thinks the- misconduct m-srits — there is no knowing, where Uie misconduct will. end. It is useless 'or counsel to &ay that even, if his remarks were intended-. 'to apply to th«it single issue of tho paper beforo fche jury, that, that was any justification or mitigation of his. arguments. HIS. ARGUMENTS V/ERE INGENIOUS, they were subtle.,.. they, .were worthy of ; his reputation, but were they not reasonable, they were not -directly •'o tho question. Tho question' ■<vas': Wore these remarks calculated., to' wrongly influence the mmd of- the. jury? Wero they relevant, £©rm_ain, pertinent to th© issue, the. h?«:al issue of libel, and its effects upon Mr. Stringer.; that was fch-3- point at issuo,. Let me refer to th-3 document. Talk aWut LURID, FLAMBOYANT, ORATORICAL PYROTECHNICS — rriy lurid language— vreLl, I don't len-OAr ho-vr thjs learned counsel . .would describe my language, with a J:'u!l head of. steam on. a public platform, >f tJicse are tho words he. uses for roe hero and now. There, aro times, he says, when. • leniency is a virtue. Leniency is always si virtue —^'The quality of mercy is not strained" ; and even a convicted libeller, as practic.illy I stood beforo tho jury, is entitled to oorvsid-eration. Counsel are not «■/]- --titicd to throw jurors into an unjudicial state of mind; they are to leave them, so far as t-beir -legitimate arguments can leavo them, m a judicial st-ato of mind. There aro times, lie saya, and ho sounds like Solomon Eagle on tho top of Old St. . Paul's, denouncing: " Woe, woe, imto the city!" And .1 oaai imagine with what dramatic effect the learned, gentleman would speak from.' that high and sacred point of vantage. Talk about my * 'lurid language I" Listen to this: "Tbcre aro times when leniency is a virtus ; but there are times when 1-andency is a weakness, a vice." He might havo delivered m a fierce and menacing .manner, ( thus : "The present i-s not tiho time for leniency." His Honour : Your real audience, Mr. Norton, I would remind you, is a single judge. Mr. Norton: I am not forgetting that, your Honour. I may just ask if the learned counsel was likely to be cool, to be judicious, to speak w'th' whispering humble-ness, holding Ins hands meekly by his sides? "THE CRISIS HAS ARRIVED,' h© saya. What crisis? Because that on© issue of the paper was published? No, but because th© paper . was established m New Zealand ; and the wajthe learned gentleman asksi tho jury to deal with that cx-'isis is to wipe the paper out, and to begin by .giving heavy punitive damages. I think it is presuming too much, on tho credulity of the .Court, and on the k>ng-con-tinu«d success of the learned counseil, persistently indulged perhaps Hi-s Honour: You must remember you are m reply. Mt. Norton : Yes, your Honour, and I am only referring to the remarks of the learned gentleman where ho tried to justify them on tho ■ ground of ambiguity, that it was ambiguous, and if ambiguous that he was entitled to come to the conclusion that the jury took tho best view of the question, Avero not prejudiced, influenced adversely by it; and, further, I am nmv arguing that this language, taken sectionally, piecemeal, or a whole,, cannot by any process of reasoning be accepted as merely applying to one issue of the paper. It would oe BELITTLING THE JUDGMENT OF THE COURT to do so. It would be denying to the learned counsel that keen appreciation of tli© value of words he does possess to say that ho did not know that thoao words would bo accepted 'adversely, and that it ia a reasonable assumption that they would Iks accepted as applyin? to the whole of the paper. His Honour: I think it was tho late Queen Victoria who once said that Mr. i Gladstone addressed her as if she was a public meeting. Don't yem think I may tako up the same, attitude P Mr. Norton : Well, it would bo very detrimental to your Honour if* 1 treated you thus! I do not say timt public platform oratory is- the best form, and that tlift raucous methods; acquired on the platform and the political arena of Parliament cultivates a stylo that recommends itself to tho
Court; but I am not wilfully indulging m any way ; and I havo almost concluded my reply — which is perhaps the moat grateful word I have said to your Honour for a very long time. His Honour : Perhaps so. Mr. Norton : I say, taking the words piocuincal, it is evident the remark does not apply to the one issue of the paper*; tho contents of th-© innuendoes proclaim the scopo and sweep of its application tn society, and the demoralising effect must be taken as re^i'airirifr to the paper as a publication published m New Zealand. He reverts to THE BEAUTIFUL, THE GLORIOUS. THE IMMACULATE" PRESS OF NEW ZEALAND. No doubt his eulogy was fully justified; but it was only made for tho purpose of making hiscondsmnation of my newspaper as a whole more severe, more condemnatory, m ore damning, by comparing it with the press of New Zealand as a whole. There is no mistake about that. Thoro can bo no mistake that those words went to the jury as applying to "Truth" as a publication generally, and not as applying to one isolated copy of it m the hands of the jury ; and I ray it with deference and every respect to tho learned gentlnman, and without any intention to false flattery, while I do appreciate him as a gentleman and as a lawyer, I really do think that his answer to my argument and to the cases I have cited has not been pertinent, and is m no way an answer to my case, to this application for a now trial. And I say emphatically that so far as his remarks . were intended to justify tlie language 'he had used, it was the weakest argument I have ever heard. .At no stage of .his argument did he appear to such disadvantage — if he can appear- at a disadvantage at all— than when he was trying to escape behind i THAT STALKING-HORSE OF AMBIGUITY. That is not an argument worthy of counsel at all. The real issue is : would reasonable men, ordinary citizens, having that, language addressed to them, directed to leave the Court with that language ringing m their ears, unchecked by Bench or counsel, be likely to be uninfluenced by it?. To that real issue counsel did not address himself. . He addressed himself to a justification, and I don't consider that he succeeded m justifying the use of the words, because, I repeat again, if such language as that, altogether foreign to tho real issue, is to be permitted on the part of counsel, unchecked-, and unpunished, there can be no regular and due administration of the law, which exists for the sole purpose of securing justice. It was Lord Brougham, I think, who said that the whole aim and object, the ''beginning and the end, of the whole struggle of British constitutional' history, was to i get twelve impartial honest men into the jury-box. ~ And THEY ARE TO BE KEPT IMPARTIAL. , They am not to be brought into tho arena of personalities, not to have prejudices aroused m their minds, even though to the cij'cumstaiicos j of tho case — most decidedly they arc hot to- have th-cir prejudices excited by attacks based upon suppositions facts "irhicli arc really only , false allegations. And then when vordicfc is ! obtained by such processes, proves to be excessive, and is appealed' against, " punishment for such gross -misconduct' is sought to be evaded by setting up A TRANSPARENT, DIAPHANOUS SUBTERFUGE: . "My language, your Honour, was •unbiguous." . Why, tho very ambiguity might have been intended to nlislead ;tli6 jury, to leave them , wandering .about like legal lost .sheep'' among tbo very ambiguities 'which tho learned gentleman set up. -"I.am not concerned, really, your Honour, m replying to that phase of tho learned counsel's extraordinary' nddress^ — especially f extraordinary at that particular sta^c : .as I am 'confident that, so far as my imiiKl has been able to grasp it, I, have placed before your Honour a sufficient number of cases of sxifficiontly high •authority to show that this practice ! has boon ■ . : UNIFORMLY AND CONDIGNLY CONDEMNED by tlie highest Courts 1 m the past; you ; havo those, examples before' you, your Honour, and with the facts of this case fresh m your mind, and perhaps refreshed by the discussion that lias gone on before you — as much and '-more by the. arguments of the learned eoimEel titan by mme — you will hot only bo justified m following those precedents on that ground alone, as well as on tho grountl of esc&ssivc damages. And even if those authorities did not cyist, you would be justified m creating a precedent for futuro guidance m such cases. And why should not Now Zealand havo its precedent m this case ? It has its own" Courts, it is going to have its own Dreadnought His Honour : Mr. Norton, you are again becoming Parliamentary. Mr. Norton: I say that this is a question that £oes to the foundation of the constitutional 'rights ' of Iliiigants; whether they are to have their' case? tried by cool dispassionate justice, or whether by tho gross misconduct of counsel, their judgment to bo warped and distorted, and their verdicts rendered vindictive rather than dispassionate. His Honour intimated • that m view of possible future proceedings, and the largo number of citations made, ho would reserve his judgment, and take fcho earliest opportunity of submitting it m writing;. Mr. Norton's argument booro the ' Court occupied ten hours and threequarters, six and a quarter hours on the first day (Friday),, and four and a half hours on the second day (Saturday). Mr. Skerrett' s reply occupied considerably less than two hours. "Oritic" learns that a man who suffers from gout has been recommended to live entirely on apples. Another point for the colfl tea pusli. If the poor devil hadn't drunk he wouldn't have, had gout and thus be drawn to this awful alternative. "Critic" makes no extra charge to the Prohibs. for this. Public opinion, at least m Melbourne, has narroWed down the probable candidates for the Federal High Uommissionership m London, with £5000 a year hanging to it, to three— George H. Reid, Sir John Forrest, and Sir John; Madden (Lieutenant-Governor and, Chief Justice). The latter is not likely to accept the post under simple' conditions. He has now been Chief Justice for 16 years, and is entitled to retire on a good pension. If that were assured him after has term of High Commissioner— probably live years— he might accept. Hut the choice will lie between: Reid and 'Forrest ; and possibly the Wcstralian will get the post. From another source, conies the rumor that the present. Australian Chief Justice, Sir S. W. Griffiths, is m tho running for the rich plum. Poor old Alfred Dampier ! It seems passing strange that no move has been made m the matter of erecting a monument over the grave of this "finished" actor, whose remains lie buried at Waverley (New South Wales). Alfred Dampier was ever to the forefront m assisting others ; and had anybody at all known m that profession of which Dampier was such an ornament, hot-h as a pcntlcman ana an actor, placed hinisolf at tlie head of a movement, the Australian playgoers -would have lovingly oinL-raced tho opportunity thus af--lorrtrd them of payinp; a text tribute to their dear old dead and roiio favorite. i This unpardonable forgetfulness only I .serves to ram home Avith sledge hammer force- tho old spying that the unexpected always happens m tbißworlu'j
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NZ Truth, Issue 217, 21 August 1909, Page 7
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26,236SECOND DAY. NZ Truth, Issue 217, 21 August 1909, Page 7
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