THE CRIMINAL LIBEL CASE.

Waikato Times, Volume XXVI, Issue 2150, 20 April 1886, Page 4

THE CRIMINAL LIBEL CASE.

This case came on for hearing at the criminal session* of the Supreme Court on Tuesday last. Mr Hudson Williamson (Crown Solicitor), and Mr W. MacGregor Hay appearod for the prosecution, and Mr T. Cotter instructed by Mr P. A. Whitaker, for the defence. The accused five natives named respectively, Ngakura, Tint Waata, Kapu te Kohika, Te Paehua and Ngatau Hoani were arraigned on an indictment charging them with the publication of a false, scandulous and malicious, libel tending to injure the name, fame, and reputation of John Munro Fraser. The accused pleaded not guilty. Mr Williamson said that the council for the prosecution hud determined before opening the case to apprise his Honour of a difficulty which they felt as to the production of the original telegram. They had applied to Commissioner of Telegraphs for his consent to the production of the telegram under' nub section 2 of Section 24, of the. Electric Lines Act, 1884, but had been refused, and had also given the other notice to produce it, but they understood that it was not to be .produced. The contention of the prosecution wai that section 25 of the Act, which mode a transcript tele gram prima facie evidence "in every court of justice and io every judicial or ministerial proceeding," applied to the present case. The original telegram would hare been more satufactory ; but according to section 25 the transcript was sufficient. The lenders, namely, the accused and the addresses, wen the only persons who could obtain the telegram. His Honour aaid he thought there was a greater difficulty than that in the case. Was not the telegram privileged as being a petition addressed to Parliament ? However false and scandalous might be the contents of a petition to Parliament, were the content* not privileged! Parliament wa* the highest Court of Justice, and he thought it was for Parliament, not this court, to deal with this matter. It was his impresssion that the Supreme Court had no jurisdiction, but he would, if Counsel wished it, adjourn the ' ease until Saturday morning, in order that counsel might look into the point. Mr Williamson quoted from Folkard oh libel and slander in reply, and Mr Cotter said he relied on the case of Lake v. King. 1. Sanarder's reports (3) which was, he contended, the leading case on th* subject. The court then adjourned till 10 o'clock on. Saturday morning, when Mr Williamson resumed the argument for the prosecution. He said tbat no doubt all parties would agree to the projwsition that false and scandalous matter in a petition to Parliament was privileged, but what wa* before the court was not a petition but a telegram commenting on the petition and therefore not privileged. The telegram could, not be a petition as it did not conform" to the standing orders of the House of Representatives. He cited the case of Dunn v. Anderson. Ridgway and Moody's report 287 in which it was held that although a person has a right to comment on the subject matter of a petition to Parliament he has no right to attack and vilify the private character of the petitioner. His Honour then called on Mr Hay for his argument. >Mr Hay., said that His Honour bad veiy properly made a comparison between the High Court of Parliament and a court of justice. He thought the parallel was complete and if so comments on petitions were no more privileged tbatj comments on the proceeding* of courts of justice. He cited a number of casts shewing that reports of proceedings in courts of justice were not always privileged. As to the case Lake v. King relied on by the defence be contended there was a prior case King v. Lake (Hardress Reports 470.) The circumstances of the cases were as follows : —Colonel King petitioned Parliament in libellous terms concerning some abuses in the diocese of Lincoln, of which Sir Edward Lake was Vicar General. Sir Edward Lake sent an answer to the petition, also in libellous terms. King sued Lake and obtained judgment against him for £200. Lake then suad King, and it was held that he could not recover, as any false and scandalous matter contained in a petition to Parliament was privileged. Mr Hay contended that the telegram in the present case was not a petition, but was 'more in the nature of an answer to a petition, and for a similar answer Col. King had obtained damage* to the amount of £200. Another contention was that the prosecution did not rely only upon the publication of the telegram in Wellington, but his Honour would see by the depositions that, according to Mr Moon's evidence, there had been a previous publication to bin) before the sending of the telegrams. ] Mr Cotter replied, stating that he had many authorities to the same effect as* Lake v. King, but he felt sure his Honour would not require them to be produced. He' contended that the. telegram was in. the nature.

of a petition, and that nnth o petitions did not require the Hame formalities as European ones. His Honour snid that tho point rai«ed was a very dilh'cult question in constitutional lnw. and he rrgrrttcd that it had not been raised before tho accused wetc given in clinrge to the jury, as then no doubt the opinion of the Ontrt of Appeal could have, boon had upon, tho subject. He was now afraid that nothing in the way of appeal uonld be done. He himself had on one occasion been grossly libelled in a petition' to Parliament, and after having carefully considered the libellous petition he found lie had no remedy at law. The case of Wason v. Walter, L.R. 42, B. 73, wai the most recent cn.se on the subject, and he must hold in conformity with that ai well ai Home of the other* cited, that any false nnd scandalom matter contained in a l>ctitiou to Parliament is privileged, and also that the telegram to the chairman of the committee on native affairs wm virtually a petition to Parliament He regretted, however, that the point could not go for final settlement to a higher court. His Honour then referred to the pom} which Mr Williamson had alluded to the previous evening, as a question of difficulty in relation to the evidence. Mr Williamson stated that the prosecu* tion had done all in their power to secure the production of tho original telegram, which he considered tbe best evidence, but the Commissioner of Telegraphs would not consent to its production, nor would the defence, who could compel production produce it: Under the circumstance* they were thrown upon Section 25 of the Electric Linen Act. Mr Hay contended tbat even if they had not taken any step* to secure tho production of the original telegram, the transcript w«s by the 25th Section of tbe Act, mad* prima facie evidence in every court of justice, and in every judicial or ministerial proceeding. Surely this was a court of justice, and tho caW wm a judicial proceeding. The words were comprehensive enough, and not ambiguous. The rale of construction of statutes' was in such eases that the words must receive their , plain and ordinary meaning. Sections 24 and 25 of the Act evidently meant that in order to prevent trouble and expense tho production of the transcript telegram was made prima facie evidence. This was no hardship on the accused, because they being the senders were entitled to have tho original telegram produced, and if on production the signatures were found not to be genuine there was 'an end of the case. Sub-section 2 section 24 distinctly stated that on an indictment the original telegram could be produced with the consent of tho Commissioner. Tho Commissioner refused bis consent EvoH if they could not- in tho present instance have produced tbe transcript in evidence they could, after exhausting -all methods of obtaining tho original, produce any secondary evidence of it. Mr Cotter did not argue. His Honour said the construction of section 25 was by no means an oany matter. The words in the section Wire certainly wide enough to bear the construction put upon them by the prosecution, bnt ho thought it could not have been the intention of the Legislature to change the burden of proof so as to throw upon prisoners in the dock the onus of proving themselves innocent. As prisoners their months were closed, and iv some eases they might be convicted on a telegram they had never oven seen. Such legislation would be unconstitutional. The only way he saw of construing section 25 was to treat it as not applying to criminal proceedings, and this construction he availed himself of the more readily as he found in section 23 and in the sections following 25, when criminal proceedings were intended, the words " civil or criminal " were used, He must hold that section 25 does not apply to a criminal charge. Mr Hay : Not at any stage ? Not for the purposes of the preliminary inquiry before the magistrate ? His Honour: Yes, I should think the section would apply to the preliminary inquiry. His Honour then discharged the accused, and desired the' interpreter' to inform them that even if they had sent the telegram they could not be punished by this court. Mr Cotter then applied for cost*. His Honour had no power to give costs. They must be recovered by action. He would make an order for taxation of costs. Sections 24 and 25 of the Electric Lines Act, 1884, are as follow:— 24. The provisions of the last-preceding section shall not apply— {l). If the person by or to whom any such telegram as aforesaid shall have been sent or addressed notifies to the Commissioner or the Superiutondont, in writing, that he desires that any such officer or other person aforesaid may give such evidence or make such production as aforesaid : or ; (2) To the case of any indictment, information for treason, felony or perjury, or of any preliminary magisterial inquiry into a charge of treason, felony, or perjury, if the consent in writing of tbe Commissioner be first obtained to such evidence as aforesaid being ;pven, or to such production ac aforesaid. 25. The transcript of every telegram after transmission shall, before the delivery there* nf to the person to whom the same is addressed, be stamped and initialled by the officer receiving the same for delivery, and mch transcript telegram purporting to iiave been so stamped and initialled ahall fee idinissible in every court of justice, and in svery judicial or ministerial examination ir proceeding as prima facie evidence of bhe matter therein contained being the same is that stated in tho original telegram left [or transmission, and of such original tele* tram having been duly signed and delivered for transmission by tho person by whom >he same purports to be signed, and it "hall lot be necessary to prove the signature of ;he person purporting to have signed such >riginal telegram, or that the same was left it any telegraph office for transmission, tor to prove the stamp or initials of the >fficer receiving such transcript for ieiivery.