NELSON SUPREME COURT.

Westport Times, Volume III, Issue 420, 4 December 1868, Page 2

NELSON SUPREME COURT.

APTED V. KYNNERSLEY.

In the Nelson Colonist of Tuesday there appears a more lengthy report of the civil case of Apted v. Kynnersley than that which we have already quoted. The address of Mr Buttou, and the summing up by the Judge, as thus reported, are especially worth reading, and we give in full all but the evidence, which is, of course, identical with that already published. The Colonist has also a most able article on the whole case, but neither for it, nor for any brief remarks which we intended to make on the case, can we at present find space. The following are the counsel's address :

Mr Couolly addressed the Jury for the defence. He said the sole question for the consideration of the Jury was whether the sum paid into Court was sufficient to compensate the plaintiff for any injury he had received. That was the ' question, not whether the defendant had committed the assault; that was admitted by the mere fact of the payment of £7 2s. into Court. The case was one which should never come into Court at all; for the plaintiff, he contended, was amply compensated. The defendant was well-known, having held the office of Commissioner of Goldfields for years. He was Commissioner of the Goldfields, Kesident Magistrate, and Justice of the the Teace, and, therefore, held a position of a very high and responsible nature, which should have shielded him from unjustifiable and cowardly attack on his private character. The Jury was called upon to

consider, not only the extent of the assault, which was only a common assault, that should never have gone further than a Resident Magistrate's Court; but they had also to consider the amount of provocation which the defendant received. IN o, doubt the law laid down that no amount of verbal provocation warranted an assault; but sometimes there was provocation which impelled a man having the feelings of a gentleman to take the law into his own hands; and, unfortunately, Mr Kynnersley took this course. It was to be regretted, but the provocation was great under which he acted. Mr Button had brought out in the evidence of the defendant that he (Mr Kynnersley) was present in the booth in his public capacity, and of course his learned friend in his address would make the most of that admission. But it must be remembered that he said he never spoke to the woman, the gay Florence, who was a common prostitute, and who, the article or letter, said was seated beside him in the booth. That booth was a perfectly public place, to which this woman had a right to go, and he swore positively that he never even spoke to her. There was no pretence for saying that in the conduct of these women while in the booth there was anything that cauld be found fault with. Mr Kynnersley had nothing to do with the fact of their presence, either as a man, an officer, or a private gentleman ; and his conduct had been grossly exaggerated by the plaintiff, who in the most cowardly manner had written this libel. [The learned gentleman here read and commented on the part of the letter having reerence to Mr Kynnersley, denouncing it as an unwarrantable interference with private character, and with bein°- a gross and uncalled for libel on a public man.] The article, he said, and he drew the special attention of the jury to the fact, had attracted the unfavorable notice of the proprietors of the paper in which it appeared, and they called on him to resign on the grounds, of course, that the writer of such a gross libel was not fit to occupy the responsible and inportant position of editor of a paper. The articlewasavile slander on Mr Kynnersley. In justification, or rather in defence, of the assault, for although no justification was pleaded, yet the provocation must be considered, and so far viewed as such, he appealed to our common feelings. "We were all flesh and blood, and there was a certain amount of insult, especially a public insult, which flesh and blood could not tamely bear, and it might happen to all of us. that under great provicotion we might do something we regretted; the provocation was dwelt on in mitigation of damages, and defendant did regret it, and had paid this money into Court as a sufficient compensation. No doubt, Mr Kynnersley should have done nothing. He should have let the slander alone, let it die out, and have lived it down! But the assault was committed, and this Apted, who had not the spirit to resent the assault like a man and a gentleman, who had not even the miserable excuse of malice to plead for his libellous attack this, man was actuated by mercenary motives, and brought his action simply to try and and get money out of Mr Kynnersley. This slanderer of men and women, who had been punished for his slander, and did not resent it, but called' for help, now came before this Court and ■Bsked for heavy damages. He believed he would not be successful. Was there anything whatever in the case which rendered it necessary to bring it before the Supreme Court, when the lower court would have sufficed for all that the ends of justice required? He believed the Jury would agree with him in saying there was not. £7 2s. had been paid into Court, and the Jury would say whether, in paying that sum, his client had not amply compensated the plaintiff for all he had sustained, especially after the provocation he had received.

Mr Button expressed grave surprise and litter astonishment at the course of defence taken by his learned friend. It would have been better, far better, if the defendant, recognising his position and how he had disgraced it, had come into Court and said he had made a mistake, and left it to the leniency of the. Jury. There might then have been some ground for treating _ the case more mildly than he felt disposed to do, and there would have been some evidence of regret whi ;h it was pretended the defendant had experienced. Had the letter been actually a slander upon the defendant he might hare pleaded provocation ; but not a single attempt had been made to show that the charges contained in tbe article were not substantially true. All that was done was to make an effort to tone down the facts, to make it appear to the Jury that a high magistrate had been

guilty of only a venial offence in brually assaulting a newspaper editor. Mr Kynnersley knew, none better, ;hat, if this letter had been the gross ibel it is. pretended to be, the writer lad laid himself open to a criminal lotion; and a very serious one it vould have been for the plaintiff had t not bee 1 true. Plaintiff knew that le wrote this, that he did so at his )eril, if it were false. It was true, md plaintiff told Mr Kynnersley at ;he time that he had his remedy at law, f it were false. But Mr Kynnersley lid not dare to try that issue; he preferred to break the law. These per. sons he was beside were notoriously md characters ; and Mr Kynnersley vas amongst them, occupying the ugliest public position in that part of ;he Province, under the eyes of a thousand people. Mr Conolly had said ;hathe (Mr Button) would make use jf the admission that Mr Kynnersley nade that he was present in that booth in his public capacity as ComUommissioner of the Goldfields. Of course he (Mr Button) would refer to that admission, for it completely warranted the plaintiff in noticing the public conduct of a public official, with this Mrs Bussell, whose character, like that of the gay Florence, was uotorious. Out of pure pity for him, be (Mr Button) did not press the question as to what character this woman bore in Westport. It was repeatedly asked, and Mr Kynnersley did not reply, and of course the jurywould draw their inference from that significant silence, as they also would from his miserable answer to the question whether Mrs Bussell was his housekeeper. In the full gaze of the public, this chief Magistrate of a large district, invested with great powers, sat day after day in company with disreputable women, while in the opposite booth, were ladies, the wives of officials and others of the place ; ladies of unsullied reputation, and spotless virtue, to whom it was a deliberate insult for Mr Kynnersley—who could not, if he would divest himself of his public office—to sit in such company as he chose. It was not for Magistrates to seat themselves beside harlots in a public place; it was their duty to set a public example, and the proper place for the chief Magistrate was among the ladies and their friends ; he was the centre of attraction from the position he occupied, and he should not have caused the public scandal he did. If he bad beeu in his proper place, if he had respected the society he lived among, the letter would never have been written, there would have been no occasion for it. . Mr Conolly had spoken about plaintiff having slandered men and women. Could you slander a harlot ? Slandered the women ! He was surprised his learned friend could have mentioned the word in connection with such women. Mr Kynnersley would not attempt to say any of them were slandered, and he did not dare to bring any of them into the light of day, as women whose characters had been slandered : they were too notorious before, and Mr Kynnersley knew, and was silent in the witness box. He was not surprised that Mr Kynnersley felt the force of the article. Its force lay in its truth; and it was intended that lie should feel 'it, that Westport, that Nelson, that all New Zealand should feel it, so as by its exposure to prorent the recurrence of such disgraceful exhibitions on the part of a high nagistrate, a Commissioner of the Groldfields. He admitted that Mr ipted was physically a coward; but le possessed moral courage, which was i higher attribute, aud was considerably above that courage which thus mimated a responsible magistrate in jreaking the law, and assaulting a nan ; that was a courage which most nen shared in common with the srute ; and its exercise was nothing to joast of. The article, he acknowledged, vas a strong one, but it was so because she offence it referred to was also strong, and was a public offence by a public man. _ Had Mr Kynnersley been only a private person, the article had no right to be written. He admitted that there were certain offences, certain sins against society which should be tried in the court of conscience, aud which no law could properly reach, and in which law really had no right to interfere; because it would become tyranny. If a man were guilty of sin privately, if he did not bring it before the public so as to outrage any of the laws, then no man or newspaper had any right to interfere. There was a matter between a man and his own conscience. But there was a vast difference between the case he had supposed and the case nowbefore the Court. It was not as a private gentleman, but as a public j character, a man high in authority, the i centre of power on the Nelson gold- 1 fields, that Mr Kynnersley seated him- i

self amongst the disreputable company he preferred to any other ; and then he wantonly and deliberately committed a violent assault, forgetting what was due to himself as a magistrate and gentleman, bound to respect the law and public opinion. There was, concluded Mr Button, a kind of spurious feeling to be found among some classes, a sort of night-errantry of immorality. He believed none of the jury, he hoped none in Nelson was imbuded with such a feeling ; for that spurious knight-errantry which would defend immorality and law-breaking arose from a person feeling at once from thetonebf bis own debased moral sentiment, that the occurrence roused in some minds a feeling of sympathy to undertake the championship of the delinquent. He did not believe there was any such feeling among the jurv; he had too high a respect for their character than to suppose they would be influenced by any such sentiment. In considering damages it was important that the position of the defendant should be taken into account; and he would read an extract from Addison on Torts, —on wrongs and their remedies where the law was clearly laid down:—

"In all cases of malicious injuries and trespasses accompanied by personal insult, or oppressive aud cruel conduct, juries are told to give exemplary damages, although the actual personal injury, measured by any pecuniary standard, may be but small. ' It tends,' observes Heath, J., 'to prevent the practice of duelling if juries are permitted to punish insult by exemplary damages. I remember a case where a jury gave £SOO damages for knocking a man's hat off, and the Court refused a new trial.' Where,' observes Gribbs, C. J., ' a man is disposed to disregard every principle which actuates the conduct of a gentleman, what is to restrain him except large damages? ' '' The measure of damages ranged from £7 2s to £1000; and he asked the jury to find no vindictive damages ; his client did not look for that; but such a sum as would prove to be exemplary damages, suchasiun as would mark the just condemnation of the jury, not only for the offence committed by a magistrate, but also to show their dissatisfaction with the defendant in daring to set up, as defence for his fault, so-called provocation, when he himself had outraged public decency. All the surrounding circumstances, the position of the parties, and the character of the offence had to be taken into account by the jury, as well as the fact that it was necessary to prevent the occurrence of such breaches of law and order, especially by a magistrate; for if that were not done we should descend into a condition of rowdyism, which wc had hitherto avoided, and the existence of which would be very much to be deplored. It was a question in which the well-being of society was concerned, and he left the matter in the jury's hand, in the confidenco that they would mark their due sense of such an outrage as had been committed by the defendant.

The Judge in summing up noticed a few general principles. Some of the ohservatious of the counsel for the defence seemed to tell to a certaiu extent against his client. In certain passages in his address he had spoken of the conduct of gentlemen, and said that defendant had acted like a "gentleman in making the assault. jSTow, the idea of a gentleman came down from feudal times ; and it used to be considered part of the business, and duty, and practice of a feudal gentleman to make a personal physical retaliation himself, so that the qnestion of the conduct of a gentleman in its ancieiat meaning did not tell in favor of his case. As had been said, there might no doubt he some cases of assatilt,°in which justification or provocation might be pleaded ; but this was not a legal test, nor a just one. Thei'e were grave reasons for maintaining the principle that no man was warranted in taking the law into his own hands ; and that principle was a sound and safe one. It was true there were some injuries which made a man's blood boil, and produce a sudden passion which led to assault. But there was no such case before the Court at present. Perhaps there was some stinging injury, an accusation of a peculiarlyirritatine; kind ; but that was all | and on the grounds of sound policy assaults of this nature must be held as highly improper. The public, no doubt, might be delighted to see a little man whip a big one, but it was not always the little one who had right on his side, aud it was not probable that when he had it he would win in such encounters. Therefore, these engagements were not for the good of society, and should not be permitted, unless indeed we intend to decend into such a state of society as was to

be found in Texas, and to introduce rowdyism, which would certainly ensue if cases of personal insult, or supposed insult were to be punished by the strong hand of the person who supposed himself insulted. In all cases, without exception (leaving great and Hpecial cases out of view, and this belonged to neither), the proper course was to allow the law of the laud to pursue its course, and not to take vengeance in one's own hand. Self-defence was another thing, but that was not before the jury. In the present case defendant did not seek to justify the assault, he could not justify it; but only brought forward provocation on the ground of reducing damages. The defence he set up was that a libel had been published against him, written by the plaintiff. Now, was that an unjustifiable attack on defendant's character ? It was admitted, that with the private conduct of public meu the public had nothing whatever to do, so long as it was kept out of sight. The public and the press had nothing to do with the amours of ministers and generals. All knew that great public services had been rendered by public men, whose private lives were most impure; but the press had no right to intrude on their private lives, and the class of papers which did, and professed to do so in order to denounce immorality, were generally themselves in truth the most immoral. But he did not think on the other hand that public vice had not the same immunity from criticism ; and, with respect to an important public office and its holder, one thing was clear; the office stuck to the office-bearer, and the office was degraded if a public man degraded himself. At the same time all decent journals weuld be caution in interfering in such matters, for public morality was rarely advanced by the mention of such subjects, and it was better generally that they were passed over in silence. It was true that it was different when the immorality of public men was openly and ostentatiously displayed. As regarded the article or letter, and the libel it contained, the old law viewed every libel as wrong ; and from that view arose the old phrase " the greater the truth, the greater libel," because if it were true it was often so much the more likely to provoke a breach of the peace. But that doctrine was now obsolete ; and, in a case like the present, the proper test of the libel was, was the charge made for the public good, and for the public benefit, so that there would be some justification for its publication in reasonable and truthful terms ? It might be the charge was perfectly true ; but it appeared to be a highly colored account of the actual facts ; and if so there was clear provocation ; and he was of opinion that there was provocation to give at least mitigation of damages. But the Jury must not for a moment suppose that in saying this he (the Judge) held there was any justification of the assault. The defence, or rather the pleading, for defence it could not be called, admitted that there was no justification of the assault, and there was noue. At the same time, the tone of the article was not that which judicious journalists would employ. A journalist should confine himself to strict fact, and not descend to the tone and spirit of the old exploded papers, the Satirist and Paul Pry. If the press did that, aud interfered hi matters of private character, it became a social degradation, and an organ of oppression. His Honor concluded by saying that this case was eminently one for a Jury ; and that the Jury must go to its work in a calm temper, not with a temper of sympathy with either side ; they were to dismiss all angry sentiment, and not sympathise with' it. If they saw their way to give damages beyond the sum paid into Court, they should put their verdict on purely public grounds, and give no force to the merits or demerits of either side.