Untitled

Otago Witness, Issue 1588, 29 April 1882, Page 9

because he would havo been unable to pay damages. , That alone was a sufficient reason for proceeding criminally against him, wjc'iitf that in no other way could lie be punished. .The falsity of the .charges against Mr ('lain was now discovered ; but, unfortunately, 'up to well on in March Mr Hitchcock did not make the discovery which his counsel how said was so transparent and obvious. That the. discovery should how be' made reflected great credit upon our criminal jurisprudence, seeing that it had brought' about by the prosecutor taking criminal proceedings. The question was whether, looking at tho.evidenee, they could believe that at thetime the libel was published the defendant had'a"6o;ut jfMe belief that the'statoments were true,' or whether he had not snatched at vague' rumours as something to convert hitq a charge— as something, to gratify his malice against " M» • Quin. If' the evidence -of Agnes' Johnston 'was true, then the accused . couldinot have -believed the statements in the libel were true. Could the J ury believe that the document signed in the Young Men's Christian Association Rooms had been' dictated by Agnes Johnston? *H* would put that as a test. Was it credible that, being taken by surprise by a Eerfect stranger, I she deliberately dictated to im the words it was said he had written at her dictation ? Could they believe she had' made the statement she had been entrapped into signing, and which had been made the, basis of the accused's actions? As proving' that the girl did not dictate what was on the 1 paper, he mentioned that it had been J cbpied" between quotation marks in, the letter ''sent to Mr Green'; but the quotation erid'ed' before the fir'pt signature ; the supplementary statement did not appear at all. ' The girl' had said that she had only signed the paper once,' and he asked the Jury to believo that tlie addition was made afterwards and her signature forged to it. The document, he con tended, which was the foundation of the charge had been obtained by fraud and added to by forgery. If the accused had not been on the watch i'or a weapon with which to attackSir' Quin, his conduct was' wholly inexplicable. /*fhen the'letters he had written showed that ' he was frothing over with hatred and malice towardsMr Quin. No explanation had beengiven of the precautions He had attempted to take, the care with ;which he avoided using Mr Quin's name, or of the fact that in two instances he had struck out Mr Quin's name and substituted some term for it. Would he have done anything of the sort had he been anxious for a proper inquiry, and if not influenced by motives of' malice why should he have sent a letter ' containing the- same charges to' Mrs Quin,with directions that it should be given into her own hands ? He would ask' the Jury to look at the expressions used in the ■ letters, and 'judge ifthey were the expressions of aman anxious for inquiry, or of one anxious to throw dirt. The whole case might be summed up in malice and deliberate hatred against Mr Quin. In the ifirst instance there was a snatching at , any . gossip that could be found, and when he found that Mr Green treated the matteiywith contempt, then the accused raved, on every opportunity about the ..charge. - The' Jury had nothing to do with the question 1 of punishment, and on the evidence he asked them.to convict the accused of one of the most deliberate and malicious libels that ever ' dis- 1 graced" a court— a libel- which showed an extent of malice' hardly credible. , . ', His'! Honor said that there was a great deal of jevidence in the case, and, a document. ( He would like to; go through, the_ evidence before summing,, up. >THe case was ,'one that would' require considerable;, attention both from himself and from the, Jury, and he thought it would be '.advisable, 'to .adjourn .until the following morning,' As the' case was a misdemeanour,, there "would* be no -occasion for the, Jury to be locked up/ „ , „ „ j . . . .The case was then adjourned until the following? day, 'tjhe.^cc'us'ed' being allowed to go ayarge.o'n his fo'rm'erj bail., ,i v , ( , •Friday 21811 Apbii^ ■•/ ■" , " ChWles D.- Hitchcock again appeared before Uhe Court, charged with libelling Richard-Quin, the master and secretary of the Benevolent Institution^-'' j • 1 "» l '■■■ '' ■'-,'■ y A 1 'Mr ©enniston' appeared for the prosecution, and Messrs' Adams 'and >Fitchett -for the defence.- ' '' • ' . I' 1 " 'I'! 11 " '! " His Honor, in' Summing-up, said : In the first place I will dispose of a' point which has been taken 'by the' counsel for- the defence 1 as to the mode 1 adopted by (the proseetition in the present case in bringing the 'matterbefore the_ Court. It has been objected that the prosecutor, instead of bringing -the matter before the Court in its criminal, jurisdiction, , should have brought a oivil action. The law provides that in cases- of libel there shall be' a remedy on the criminal qide of, the Court as well' as on the-civil side. And, I need hardly ppint out to' ; you that if a gra.ve,pharge is made against a person,, and that charge is without foundation, it,is just and right, in the interests of society, that a person who makes such a charge, knowing it to be untrue or without due ground, should^ suffer punishment. It is a matter not so much between the par tie's as between society and the accused. ' Ido not say £his fe the case in every case of libel— very much, i to the contrary';" but I confine my remarks to a case like the present," where a very gross charge is made against the prosecutor. ' If' the -law in its criminal jurisdiction did not punish crimes of such a kind it might reasonably be expected that the, parties who were, so libelled would take the law 'i,mVtheir own hands' ; and the object of prdviding a renl'edy in the Courtis that such" an unhappy contingency 1 may be avoided. ' If in the present case, for instance, it be' the cjase that this libel has been published by tlie accused, he not honestly believing it to" be true, then I think jn'.'such a case, gentlemen, you will with jh'e that the 'penalty which I , the law provides in guch a case— namely, fine and simple' imprisonment—would hot be too great a penalty.' It may be a defect in our law that the ' accused cannoij'give evidence in . his own behalf, but with that we "have, nothing to do— we have to take the law in criminal base's as it stands. Now what you have to try in the present case is not whether Mr Quin is guilty or innocent of the charges which are made against him in' the document which' you have to ,consider, for the law presumes in favour of his innocence — the law presumes that these libellous statements are untrue, and there is 'no plea on the record .that he did commit the acts which were charged in the libel set out in the indictment. We have to start, therefore, by assuming that the offence charged against Mr Quin was not committed by him. The question you have to consider is as to the j lona fides of the accused' in writing and publishing this document to Mr Martin. The indictment charged that he wrote and published it knowing the statements contained in it to be untrue. "You have to consider in the first instance whether these statements were made by him, he knowing them to be false, and you will probably consider that if he did not honestly believe these statements he must be taken to haye known them to be untrue, The question, however, would not be as- to whether he Reasonably believed them, but'as to whether he ■honestly' and honafide believed them. He may have been foolish or 'mistaken or indiscreet, or he may have come to ■ the belief on insufficient grounds j yet if he honestly believed the charges *' wbi b are contained in this document he could

not be convicted of having .published the libel knowiug il to bo false. Hoforo a simple verdict of ," Guilty" can be found on the present indictment you "hftvo to be satisfied that, ho published i this libel knowing it to ibe falbo. . Another question, however, .irises on th,e, | indictin,enfc., As I have already .said, in. order to -find him guilty simpUcltcr you must, find. that he published it knowing it to be false ; and if he is «o found guilty "pi publishing it kno/iving if, to bo false, then that entails a heavier degr.ee of punishment. However, it is possible far, you on this indictment to find hj m guilty of publishing a defamatory libel, and in that case .somewhat diif event questions arise for your consideration. The first way in which ,1 ask you to consider, the case would be to consider, Did he,. know, .# to be false? Is ho ; to, be found guilty .or nptj guilty simply ? Thou if you .think, you are. not satisfied that he know it was falsc ?J yon have, to consider whether, though he did not, know;, it to bo false, he was guilty. of .publishing-, a def an uitory libel. The docmnent wassa^dressed by the accused to Mr Martin (tlie president of the institution), ,and at.,, narrated, pertain occurrences which , ■were pretended, , ]jb6 have taken , place \in j. connection, with; the Association. If a complaint, of .this kind is made honestly to a person jn Mr .Martinis, position by. any member of , (the irubljic — as tlie institution is a public institution — such a; coin,-, munication would, be privileged, and it would not be a defamatpry^libel,, except there w.ag malice in the person writing it. The question for you; in considering whether it was a defamatory libel or> no, would be to say, Was I 'the' letter written honestly 'for 'the public benefit, and for tho purpose 'of /getting an iWqujry into tlie facts instituted', or'Vas if 'written maliciously — and malice here is 'not a technical term but means malice 1 , in the'- ordinary and common sense of the word — was it written' maliciously, for the purpose of injuring Qitin, or from any other improper and unrighteous motive ? Of course, in considering the question as to whether it was published with proper motives or not, you will properly take into consideration tho extent of tho bond fide belief of the accused in the statements he made',- and also you will ,have to take into consideration the other letters and papers written by the accused ( in order for you to weigh and determine , whether he was actuated by evil motives, or whether it was for the public benefit that he took the course he did. His Honor, during the course of reading the evidence and commenting on it, said : The accused, in the firat instance, wrote a-tempe-'j rate letter to ■Mr Green. Now if _ a person hears remarks 'of such a nature 'as it appeal's, the 1 accused did " hear, ' his natural and proper course would.be to write a temperate letter to a persoii connected with ' the institution, for the' purpose of promoting an investigation. f Yb'u will have to, consider this particular part of the case very carefully in considering the question of subsequent malice. It is for your 'consideration whether or;, not a person who has made in the hrst instance a temperate complaint, ■ ,and finds no attention paid,, to it, would, t notj, nave naturally waxed very indignant, and whether in such a case the .expressions, he used should .be criticised too strongly. A f s to the first letters, Mr Martin sai,d/ they, were .not so offensive as the subsequent betters re'eeiyed by, him. The accused .having certain information before him before he, published the alleged, slibel, wrote, a number of letters.^ Tne f ifirst, communication in ■ which. /there was anything offensive suggested is the, envelope of Decem-, ber 21&t,, addressed toj' The Cavershaini£>oar,.", ;The next communicatipn is the, Jetjfcer of, January] ISJth, addressed ,to the institution;', ".to be,delivered to the matron personally." .The, matron was, of course,, Mrs %rin. , You,, will «. have, to read that letter .jpj&refully; ...genger men,. in .considering , the motives 'whiph actuated the accused.' ' JTMen, 'on the!,' 25th Jahuarv/ there is! 1 an 1 envelope addressed'W " Sir, Richard' Gassef 'Kmeanirig'Qum^^Th'en 1 damb 'the lißel, arid ' subsequent tb thafthfift; were' other letters' addressed to ! ®aHin J M3; Eennie-.'-Ali;these letters' are'of the h'fghe'gt lift- 1 pb'rtahce'to' you t in'consideftng u; fhe''cJu l e§E|6n' as to the motives 1 by which the'aqedse'd' wd's 1 actuated, in putting forward the charges -'Ke'did!' iThe letters are exceedingly l*>ng ( ; they assail tlie Committee of 'tne ( ' ( 'ihstitiition pnd-'a'/great 'number, of. other ' persons. " Thus 'yc-u Sjfill 'see i tjti'at ihitlie' : first mstah'fce ,the ' accused" tfe'ceiVe'd' certain information, a'tid'tHat'the" fjrkt stejl he. took was a moderate .and r'eas'oriabi'e ( oiie J ; l ,but' after the .first .letter 'he' became veryl'ab^sij'ej and he wrote amon{jsi' ; ' other letters' '.tlVe'/d'ocii'f 1 ;ment \yhich is. now complained o'f.'^As toHb'e ' inferyi^w with ' Agnes' Joh'risWri, if you believe,' ' her evidence, it almost follows that the accused, ' could riot ha^e be}i'e'yed the charges 'wliioh'h'e^ subsequently made against Quin were' ti/ue. J ■ You will have to say whether "yb'ii believe ilier evidence, or whether the evidence given. by, the. witnesses in contradiction !of it is sufficient to discredit her testimony;. '' First we* have' Mn Green. He commences hisevidence by. saying, what is his opinion of the, accused. It, will be proper for you,,to|consider his' evidence, in -vyeighing tlie motives which actuated accused. "Then, .there is^the, evidence of Mrs Denriistoun, „whi9h, direcjijy' contradicts thipij; of . Agnes J, phnaitohi Then Alexandej: i Graham speaks of .an interview' whiphjie Kad^with her on the Bowling street steps 911 the 15th January^ and he details statements jwhich she x penies ( having, ma,de., The" e^idfenpe. ofijfljp m . r anl Mrs, Ranting als.o/borjtradictSj, th^, girl's' testimony, Gentlemen, ,' I' thjbtfijl.'haye^pufc before yovi tl^e greater part of ,the evidence, and, if there i's any,jporf;ion of it'youwo.uld^yish.rea^ over and explained, I.wul do so." jYpuw|ll hay ( e an opportunity of ; consjdering, the dopiji'm.erits fii your own room.. 'I.wpuld just re i p^at I tp.'yq.u again the questions wl}iph,'are' for you.r deter^ mination. As I have 'already said, 'th.e guujb or innocence of Mr Quin of the charges contained in the, libel is not.in.questioii now/ 'You may assume his innocence j : and the fact- of- 16 iiot being in question now is 1 very well illusJ trated by this : that 'the 'evidence ob Agnes' Jbhn'stqn is ''cbntentied by^the accused to 'be' unreliable. If 'it' is the case, that 1 is in favour of the accused, but it is also in favour"df Quins complete innocence of the charge made' against him ; because if the statements mad^by A.gnes Johnston to the apcused are unreliable, then certainly her statements made to other. perspns of any improprieties committed on her by Quin are equally unreliable. I simply mention that as an illustration to show plainly th.a.t tlie case you have to try is not ,the guilt or innocence of Quin, and that the evidence which would show that the accused was innocent would also tend to show that Quin himself was innocent. In order to find the accused simply guilty of the offence charged in the indictment, you have to find that he made those statements knowing them to be untrue ; and if he did not honestly believe them to be true, that perhaps would be a ground for your coming to the .conclusion that he knew them to be untrue. The question is, however, one of honest belief, and not of reasonable belief. As was put by Mr i Adams, you are not trying the accused be,cause he is a fool, or because ho is overzealous—he may be wrong-headed,: that lis ' not the question. However, there' is another phase 1 of the inquiry... i If you should not) be satisfied that- the accused ;is guilty , of i publishing the libel, knowing >the statements made to be false, still the question may be 1 Was . he' guilty of publishing a defamatory libel? and if you thought he was guilty of

published a, .defamatory , libel, you would have to find that, specially. In , order to find hiiij guilty of a di-fam.itory Jtypl, there is i nq hood for you to be satisfied tliat.'/ifi, pnP-., lished the.statenients' knowing them to be untrue. But you wilr.haye to tie, satisfied J;hat he, was actuated by, malice (malice, in ilje ordinary . sense of 'the word-^bad motives, ii; you like to put it; in that way), bad motives when ho published 1 what he did:* •' Of; course, -in ' considering whether-: ''he '•"• Was' 1 actuated' ' ' 'by • ''honest motived; or the contrary, in'-piiblisliiilg this, document, the ques'fcion,of 'the' reasonableness of tlie ground of his belief 'WOiild bo an- element of -consideiation— not the 1 "sole element by any means, "but 'ah element of consideration. And yon will klso ' pf djberly take into^consideraa tiontohfeexpVesfcions^m'the'lefcte'iya'nd'the expreSjsionH'used in 'other 16Lters;'!and the whole fcoWi-MO nf-tho conduct 'ofHho aatasoel-iiv.tho-transnetirtii'frbm boginm'nej'-to 'end.'' Am was very properly put''<by"tho'ilearncd counsel foi" the accused, persons who • attempt to expose public abuses hay;e a very thankless task, and the» steps .fhey take,' in attempting 'to^ expose them.dughti not tp.bp,to# l 'S.ey l erely criticised. The greatest pubjic ,beiiefactors are those who |do their best, if abuse' exists, to show jit up for the purpose of dpiug. away, with it.. It is, one pf the most ,uni)leasan.ti, ) taskSi Borneo-are, qualitjf^. .,( persons .w,hp JJ ondeavo,u l r 't,a expose'pubUpjjabuses are. ptjto .inakc n^is,-, ta,kes,,aro.aptj i to be,l?,d ,away by thejr, zeal into aci^,of,mdjs,cTOtiou; v bu(; u&Jjess' the^ , arc actuated, not •b'y I >vrong-l)eadedness only, but by bad ' motives, .they.do not, as a rule render themselves pme'na^ls,.to,{the,ci;iminE>l, law,., jHoweyer, on the' pther.sidej; gei}tle?ne,n,.J I thinlf j^i.^vill agree witlime,in th)s : that a map can h.ar'dly i iio a.greator public miscTiief than out, of wrong motives or ill-will,- or. for thp, purpose of grati1 fying his evil passiqijs, to make, untrue_statements respecting .persons in public .positions, and 'to do ,'this, under, the pretence, of promoting the public good. I think, gentleThe Jury retired at 11.5Q a.m., and,eauie back into Court at 12,55 p.m.. They found the prisoner "Gruilty of .publishjmg a defamatory libel,", with this addition:,' "We wish to add, this rider, that we are of opinion that on public grounds an inquiry, .should be held into the , .working of the institution." . - , Prisoner, on being called on, said: Your •Honor, I can, only state that I have had no other motive 'but -purely 1 the interest of 'the inmates of the Benevolent Institution an-1 of ithe public generally. 1 ' I havn spent Mom'c coiv ; Isidcra'ble time— now abolift' l'4 months—purely : Jin the interest of the public, and have con{ducted this, ihquiuy at personal. sacrifice to my ' [own business. The whole time -I'was employed, [in ithis .matter Ii met with nothing but direct abuse from.t hose persons who.. from their iposijtions should havejaidecL me— the.- clergy, ilrom . ;tho bishop downwards, and the Press. -|Ex- • pressing .my, own feelings, I will, take my .sentence cheecfully, conscious that I- have done, ! right. - 1 say, rgentlemen, , that- the matters- con- ■ ■ tyeyed.ta, me demanded an inquiry and public investigation. o i) - i i > 5 . Mr, Adams, constantly urged his , client to , abstain from these remarks,: but, with out effect. I ■ Mr J£)£lnnißtoni 'intimated, that, as Mr Hitch- • cock's, family- were , likely,to lf b.e injured by the. , .of hisvact, the prosecution wer,e j undesirous that any special degree of punishr ment should be awarded. He had been given t6''un'dorstaud thali'My HitchcoqkHvas prepared to'make'Kom'e expressiond'of regret for'^his'condu'c't;"and to 1 give' ait assurance as'to Ms" future [behavi6u.lv' But ( of'Jcdti ! i i se', !< from the line of con(du'ct ado'ptod'b^ the 1 'accus'e'd^lie was precluded' i fronra.|kiti# ' that' s'eivtence -'should not^be'pasced | at present. < There wad' np. 1 personal feeling by i Mr Quirf towards Mr Hitchoock in r the matter. | ' The'Prisorier i'A'ndl'have no personal feeli ing ag ! ainst I . ) Mr Quin'/ ''l-'would Jike if I Wld todb'hilxi'good'tb'-mVOTOw;' I .'"- " ! -^ ■' I'Mi^Den^istoii'i'lfennot believe -that: • • '"His Hoilor :' Prisoner', have you 1 nothing fursay ?• 'I'^iSh'to give you Wery oppor*' tiiAity. "• YOllY 011 haS r e lib business to comment on tlie^ doridu'dt!^ of ;j ßthers i , but anything further 3'ou have •tO" l Say'ih" : mitigatio'n' of" sentence' 'l .shallbe yery, glad to, hear. ,H'.-'-., H '.-'-., h v. . ,i-, ! ,' Tlje Prisoner:*! can bhl^'ea^.that I^had hq-. statement JL feel that Ijhaye had tp j njgeti nothing. b'uti^eflojea,,^.',',^',,^^!' o,f .tin's, Jnquiryi, ! However. I have" ,dQne' sbnife'gpod in.toe direc-, tic)n.l wipqed, and^haVje to.tpank u-od (tor that, Success." I take piy[puni§H%)n l t witli clieprful^ j ne|ss, knowing that,in'the'future,|when,l havje ' gone^'^.bene^tjW^jT^ejpnferrecl^dn tbe'ihmafeSj' qi ,'flic ins^i,tu(jion'— , b'6dy ( qf ( „'!_ .'■„'[./, nn n,/.v n ,/.v 'is. ".iA. „,' Ja Sl(^ Houra-,; ;O|ear the Qo.u^imined^ately ,if r any^'nois^, pi^the ( jcind'takes,place. .If 'anyone is"seen"makmg a'ho'i'se, policeman',, please turn! The jPrisbner':" J^'lppked jUp'qii it that 'a'dut;^ \ was'impjosed mo, ajad, 'enjoying 'tjios,^ • faculties' wln'ph '(^p^_pnd^Y ( cd''me', withjl'v/as cojiscious uiaV I','was impelled' f towards that, c'ourse^which.lshoijld. guide '(everyone— " Loye, tny u neighb,our as thyself, |" and'thsjit ha's'beeh my desire. v rnave',be'eij a^ton'i's'hed at'hot meeting with 'syi)3Patliy t ai fl ih'e hands 'pf" those, who led L , Ae'mto.th'is'matterf-^the Press 'goaded me on, aiid J the Herald saicf that it'^'wai-'absolut'ely' necessary for me to com'e'fonVar'd and substantiate the charges/I The Press ridiculed us. called us alltsorts df-naihesjalndjif -we couldliave withr di'awnfrom'outfpHsitiori^e w-oul'd have! done ( sb f . Air'that''l ! haVe donte^has beerf'purely in'tho ihtereat • bfl'the'T 'institutiom; My. foiling "has always beeti'thaftßhave bebn<-tbo sympathetic^ and inyfamilyhave suffered' in His Honor': 'I'ohly'wisli^to' give'the 'accused a' full f 'oppor | funity / bf ' riia'k'iiig' ari explanation; If h f e' r ,wereto'give ! a l .pro'mise'as you '{Suggest; 'l wbuld'at.once adopt? the proposal. M ■'••'• ''■ JTh'e Prisoner : ,I J will most 'readityadmit -that I- 'have' 1 ndtf'wilfully "acted I'm writing 'those lettei'S,'and"l ) will'apolctgis'e to everyone conn'ecfcd'witH'th'e in'stitu,tiorti I Utn sorry fdr thb'course'l'have'take^ 1 , a^d I oato; assure' you evoryohe Avill see ! it "will be 'a guaraiitee ' that'' l neyer'will' entßr' f mtd- anything' of ''-th^-'^drt again.' I should felel that m^boi m den'dUty't6 my, family and rtiyyelf- atid' the ''other side.' I do riot feel equal 'to the ta : sk 'l undertook. -Had I had' legal advisers ; and' gentlemto 'who understood the 'matter, it Would' have been different. 'I was led on' , and led 1 ' on, ' and had the utmdat cbnfid'ence in the gentletae'ri (the '-persons who gavo ,him the information): The Oommission 1 tpok their own; course, and I mistook them. I nia,de the mistake. ' • ' His Honor: As the Jury have hot foundyou guilty of 'publishing' the statements: knowing them to be'false, but 1 have 'found you 1 guilty only of publishing a defamatory libel ; and- as the prosecution 'have stated that they do hot wish to insist upon any punishment ; and as you have," somewhat late > I must say, ''apologised for'the statement you have put forth respecting the master of the institution,' 'l think that I should be justified in riot passing judgment at the present, but in ' cpmpelling you to enter into securities to come up for judgment when called upon. If you conduct yourself a,s you I ought toiconduct yourself judgment will, never 1 be,. 'passed., If,, however, any ■ repetition of those slanders is,put .forw.ard you will be liable to be .brought up for,isentencc, ,an,d then a.sjib,;stantiahsentence will, be passed., upqn you, ! Therefore, judgment will not be passed, a^pre- , sent, but you will, have, to enter into securities), ■ yourself in -the .spin of £lQo,,an.d tw> other securities of £5.0 each,, I suppQSß.yQiwUl hay^

no difficulty in securing these to come up for judgment when called on. I'mopr ; Yes, your, Honor. '(After a. pansi-.) ; I than I: the prosecution. ' l i His Honor,:' Ky all ihhans. , His Honor continued to^ho Jury: Rofer'rfrig^ to your rider.' 1 quite concur with you that it! is just as w<*ll when theso'ma'tters 'are .started, '.whether they are true or not, that there should be an inquiry;' .' \ The jurors were then discharged, and the Court adjpumed'till Tuesday, April 25th. >