SLANDER CHARGE.

Otago Witness, Issue 3886, 4 September 1928, Page 5

SLANDER CHARGE.

BROWN v. HERBERT. JUDGE’S STRONG COMMENT. . His Honor Mr Justice Ostler gave judgment on Thursday morning in the action under which Thomas Hchiv Drown claimed £5OO from George Augustus Herbert for alleged slander. When the case was heard Mr A G Neil! appeared for the plaintiff and Mr S . ,nclair for the defendant. The judgment, which was very leimtliy contained the following:— I his is an action for £5OO damages for slander. The plaintiff is a company manager. and the defendant is manager of Todd's motor garage. The plaintiff alleged that on December 30, 1027, the defendant falsely and maliciously spoke and published to Frederick Carter, of Dunedin, motor salesman, the following words of and concerning the plaintiff:—” The car has done a bigger mileage. Henry Brown got me to wind the speedometer back 5000 miles before selling it. He told me he was to demonstrate it that afternoon.” . The defendant admitted in his pleadings that in substance he spoke these words, to one Stedman and another man. and he pleaded justification. The first question for decision therefore is whether the defendant has discharged the onus resting on him of proving that these words were true in substance and in fact; after closely studying the demeaour of both the plaintiff and the defendant and of the various witnesses when giving •T ir - and after carefully conA sidering the whole of the evidence given, F I have been forced to the conclusion, not only that the defendant has failed to justify, but that, as intimated at the hearing he has been guilty of committ*og perjury and suborning at least one other witness to commit perjury in order to induce the court to believe that the words that he uttered were true. It is necessary that the relevant facts should be stated in order that the true significance of the words used should be understood and the reasons for the conclusion 1 have reached fully stated. Those facts are as follows:— . - On January 30. 1926. the plaintiff purchased a new Chrysler motor car from the Todd Motor Company at Dunedin. The speedometer when he took delivery showed on its record of miles run that the car was new; The plaintiff used the car very freely, for by the end of March, 1927. i.e., not more than 14 months after the delivery, the speedometer showed that the car had travelled some 17.000 miles. The car was not used for business purposes. such as those of a commercial traveller, and therefore a mileage of 17,000 in 14 months is unusually large.' It means an average of 40 miles a day. There is clear evidence, which I accept as’ true, that late in March and early in April, 1927, the speedometer showed this record’ Not only- does the plaintiff so swear, but two witnesses are able to corroborate him with evidence which, to my mind, bears the impress of truth. It may be asked, what motive had the defendant for making this false statement about the plaintiff, seeing that he had no-animus against him at the time? I think his motive was apparent. It was »ot malice against the plaintiff at all. The Todd Motor Company had been trying to sell; Newall a new car. They were unsuccessful. Their trade competitor succeeded in selling Newall a rival 'car. The defendant was annoyed, and he made the statenjent to Carter to .induce him to think that "he had made a bad bargain, by allowing too much for the Chrysler car he had taken in exchange. The defendant at the same interview led Carter to belieVe that he was not sorry he had not “got the deal.” This explains the reason for the invention of the story. I should like to say that no blame whatevCi- rests on the defendant’s solicitor or counsel in this matter. They were entitled to believe their client, and to build their defence on the truth of his statements. It is probable that they did not know the strength of the evidence that the plaintiff would be able to produce to prove that the defendant’s statement was false. The responsibility in the matter rests with the persons who have given false evidence. I now proceed to deal with a legal defence raised on behalf of the defendant, ,i viz., that the words uttered do not im--'piite a crime, and. therefore, as there was •no proof of the plaintiff having suffered any special damage, his action must fail. With regard to the words themselves, apart from the innuendo, I have come to the conclusion that they do not impute a crime. The words certainly' do not impute a completed crime, but the question is, do they impute an attempt to commit the crime of obtaining money' by a false pretence. An attempt to commit a crime is in itself made a substantive crime by section 93 of the Crimes Act, 1908, but it is always a question of law whether an act done with the intent to commit an offence constitutes an attempt or is only preparation for the attempt, and too remote to constitute an attempt in itself. So far as the crime of obtaining money by false pretences is concerned, that question of law has been decided by the Court of Criminal Appeal in England in Rex v. Robinson (1915), 2KB 342. It was here held that in order to constitute an attempt to commit that crime the false pretence must be communicated to the person whom it was intended to defraud or his agent, and that until that stage was reached any act done for the purpose of making that false pretence, although it clearly showed a fraudulent intent, was no more than preparation for the offence. The ratio decidendi of this case is not very clearly stated, but I think that it must have been decided on the principle I have stated. It is difficult to reconcile the case with the decision of our Court of Appeal in Rex v. Barker (1924), NZLR 865, but it is directly' in point in this case, and as it is of high authority I think I ought to follow it, and regard it as an exception to the general rule laid down in Rex v. Barker—an exception applicable to the particular crime with •which it deals. For the reasons stated, the words used do not in my' opinion impute a crime, but at the most only fraudulent conduct preparatory to - the commisnion of a crime. Slanderous words conveying such an imputation are not actionable without proof of special damage.

But plaintiff has pleaded the following innuendo: —“Meaning thereby that the plaintiff and the defendant had agreed to wind back and the defendant had wound back the speedometer of the said car 4>efore the plaintiff sold it, thereby to induce the purchaser of the said car to believe that the said speedometer had not registered more miles than appeared on the said speedometer, and that plaintiff had been guilty of the crime of conspiracy to defraud.”

The question is: Could the words reasonably' be held to impute a conspiracy between the plaintiff and the defendant to defraud?

The definition of that crime is contained in section 259 of the Crimes Act, 1908. A person is guilty of the offence “ who conspires with any other person by deceit or falsehool or other fraudulent means to defraud the public, or any person ascertained or unascertained, . . . whether such deceit or falsehood or other fraudulent means would or’ would not amount to a false pretence as herinafter defined.”

There are many sections in the Crimes Act dealing, with conspiracies to commit crimes, see sections 89. 94. 97, 118, 119, 136, 137. 189, 219, 239, 347, and 348. But nowhere in the Act is ‘conspiracy' ’ defined. The essence of a conspiracy to commit a crime is an unlawful agreement between two or more persons to commit that crime, or it seems even do some act lawful in itself if that act is for the purpose of committing that crime; see 8 Mod. 320. In this case if the words spoken had been true they would not have proved any agreement between the parties to defraud anyone. The agreement must evidence a common intention in both or all the parties to it to commit the same crime before that agreement can amount to a conspiracy to commit that crime. Here the words spoken, if true, would have shown at the most a fraudulent intention on the plaintiff's part, but no agreement by the defendant |o join in that fraudulent purpose. The mere fact that one person does a lawful act for another person for the purpose of enabling that other person to commit a crime which only that other person has formed an intention to commit, does not render the first person liable for conspiring to commit that crime. To render, him liable it must be proved that the intention of committing the crime had been formed also in his mind, and the fact that by doing a lawful act be makes it easier for the other person to commit the crime, is not sufficient evidence in itself .that he had formed any similar intention. For instance, if a burglar intending to use it for the purpose of his trade procured a locksmith to make him a skeleton key', then even though the locksmith knew that the key was to be used by' the burglar to commit crimes, so long as the locksmith had no intention, of joining in those crimes, he would not be guilty of conspiring with the burglar to commit them,.- and the mere fact that he made the key would not be sufficient evidence to prove an intention on his part to join him in the commission of these crimes. There must be the common intention to commit the same crime, and the words published in this case are not reasonably capable ef showing any' such common intention, tine person cannot alone be guilty of a conspiracy. Therefore the -words are, in my opinion, incapable of the meaning ascribed to them in the innuendo.

For these reasons judgment ariust be for the defendant on the action, . but, in the circumstances, without costs.