COURT OF APPEAL.

Dominion, Volume 1, Issue 161, 1 April 1908, Page 4

COURT OF APPEAL.

YESTERDAY'S PROCEEDINGS. The sittings of tlio Court of Appeal wero resumed yesterday morning. . In the unavoidable absence of the-Chief Justice (Sir Robert Stout), Mr. Justice Williams presided. Thero were also present Justices Donniston, Edwards, Cooper, and Chapman. . FIXTURES. It was decided to'tako the ease of the Grey Lynn Borough v. tlio King to-morrow, the case of tlio Fcildiilg Borough Council v. the Feilding Gas Company on Thursday, Crown cases on Friday, the Otokaikq cases on Monday and, subsequently, the eases of Rikirangi and others v. the East Coast Commissioners, Donnelly v. Meinertr,hagen and tlio Phoenix Insurance Company v. the United Insurance Company in that order. Other. fixtures will bo made when foreign counsel are in attendance. CLAIM FOR SPECIFIC PERFORMANCE. ; Argumont was heard relative to the caso between Kato Peers (appellant) and John M'Menamin (respondent). Mr. T. Young (with him Mr. W. F. Ward) appoared on behalf of appellant, and Mr. A. -Dunn for the respondent. Appellant, in the Supreme Court at Weliingtoh, sued respondent for specific performance of a contract to purchase, apiece of land at Island Bay, being part of Section 26, for-tho sum of £586 10s.- His Honour the Chief Justice, who , heard the caso, decreed that the contract should be carried out by respondent provided _ that appellant was ableto make a good title.' Appellant' tendered a certificate of title Under tho Laiid Transfer Act, but the respondent contended that the land was subject to.dedication of land for the purposes of a 06ft. road as tlio land in question had no frontage to a street which had been- recognised by the Corporation. His Honour held that the. land having been acquired by a Mr. Somcrvillo by reason of his being the owner of:the adjoining land, Somerville was unable to transfer again without making a dedication for the purpose of a 66ft. road. -Appellant now appealed from this decision', and asked tho Court of Appeal to' find that no'dedication was necessary. After hearing argument at length tlio Court reserved its,decision. THE BEESON CASE. 'ALLEGED DEFAMATORY LIBEL. 1 . IMPORTANT LEGAL POINT. A Argument was then heard on the, points reserved for the opinion of. the Court. ill connection - with the case of the King (on the pi'osccution of William James, Pollock) against Arthur Beeson.- ; .- ,- vl. 1 . .Tlio case, as stated by Mr. Justice Cooper, was as follows: — , ,j ~ •i . " The i prisoner was.'.' tried.: beforo 'mo. at Wellington on Noveiribor 29, 1907, upon an indiotniont under tlio Criminal...Code* Amend-, inent Act, 1901, charging him with publishing a defamatory libel, tender Section .6. of tho Act he '.pleaded'.'justification of the alleged libel, and that .it, .was for tlio public .gpod that such matter 1 should be published and iunder subsection, six of., the. .section he also- pleaded tribL. guilty.' The prosecutor replied generally, denying .the truth of;, .the alleged libel. 1 . . • • .' . ! . I : No evidence was given that any' Older pernuttiug ■ tho prosecution -of the . prisoner ft'fV.tW alleged libel had; hc-en roado under. th ! P provisions l of "subscctioii. two offlection 1 five of .tlio Act. Counsel for the jrisdhor atthe glose of. the .case for the Crowil . con-, tended ,-that thero was -iio-case for tne prisoner to answer, and -applied to;tne, to ( dii'cct tho jury to >cqui.t, .the., prisoner. _'. V T ; ;did not do so, but' reserved'-.tho question for 1 ' the - Court; of'-'Appeal.-' -.JEyiden'tfe;, iras- shell* .cfiJlctl on ; behalf of the ..prisoner, iii; support of ".the., plea (if, justification." ' . The alleged lihel .'charged the. prosecutor (a) with having 'committed crime';. against a girl; (b) commit an • offence.'against a girl under tlio age ;of sixteen, years, and at a time, when she was unconscious; 'arid '(c)' "with . having been stigmatised , by the Stipendiary Magistrate at Christchurch by an opprobrious, .name. ..' , - " , , ' "The jury found that charge (a) was not true',, but- that'charges (h) and. (c) were, and .that: it. was 'not''for the""public; benefit- that the- matters in the alleged libel should be published l to the person to whom they, were published. .On these findings I directed the jiiry to" find the' prisoner; guilty, and -a ver-. diet of gitilty waS ; accordingly: given.'. 1 ■'I postponed sentence pending the dficisioh of the Court, of Appeal upon, the question- reserved, and in tho l meantime l admitted: the prisoner to bail. .flip questions for tile - opinion -.of the, Court >of Appeal- aio: " (1) Was proof'of-an order having been mado under Section 5--of the Criminal CodeAmendment Act,- 1901, tssential? < .;. •' (2) In the absenco of such proof, client ;i; to .hav.o 1 directod' thp . jury lo Acquit .the ■prisoner?.' l " - :' J' ' Mr.' Wilford, appeared on , beivilr of the prosecution, and Mr. Gray, for the piisoner.Mr, Gray stated. 1 that the point at-issue was whether tlioro was '.any case to go., to the' jury in the : absence of a'iy kind or proof tliat tho prosecution had been ordered either bv a Judge of tho;Supremo Court; or by a Magistrate; The. case, which 1 ra-sta-ted i by His' -Honour, Mr. Justico Cooper, showed that prisoner was charged with having published libel. JJnder tho; Criminal Code Amendment Act, 1901, which was passed' ill consequence of tho decisionof the Court: of' Appeal'-in Rex: v,* Mabin; it was provided-'that no prosecution .for' allowed defamatory libpl could be commenced without either the order of a ! Judge or a Magistrate. Ho. submitted that, upon the point being .'.raised, . Mr. Justico Cooper should have;',withdrawn: the] case; from- the, jury. - - i ! . . ' Mr. Justice-Cooper: I could not have with-' drawn tluf.citse, from the .jiiry;-.all ! 'I could hayo dono',*,if I-had considered siich .a step, necessary,'-'was to have directed the jury to acquit theprisoner. .' ' '. ltesumingj.. counsel submitted, that. an ordferdf aJiidgo or a Magistrate was .-essential to give jurisdiction. In the case,:' Regina v."-; Allison and others, which' was brought under tlio Newspaper 'Libel Act,'. 1881, it was decided that'it was not siiffi--cient/tbat which authorised the prosocution should Only describe the defendants, but' it must : ,;also namq. them./ . Under - tho'. Act the order was required to be' given- by tho Public Prosecutor,- but that clause had been repealed, and it was not provided that' the order shall be given by a Judge in Chambers.ln the ! present caso there Ws. no proof\'of any order..whatsoever. ' Tlio de-' fenaant in a case of alleged criminal libel was, in the: event of'being acquitted, entitled' to recover costs, from tlio prosecutor, but it might be difficult to ascertain • who was the prosecutor unless the - requisite order, .was' put in. MorcbvOr, tlio Statute made ■' it imperative that no ' proceedings shall be commenced without-an rorder. Mr. Justico Chapman:. In tho case you have just quoted was the question-of the. necessity of producing a fiat'discussed?' Counsel: Tlio point at issue was the': validity of tho fiat, which was found -to 'bi» defective, and 'tlio 'conviction was quashed. Resuming, Mr. .Gray -urged that' the order was the foundation:of the whole proceedings. The absoncoof ;'tho'order was, hp contended, analogous to a caso of want of proof , of of an action,-, Mr. Wilford. in reply, pointed out, with' reference to tho English caso quoted, that tho. form of procedure in England was ox parte, whereas, in New Zealand..it was undbr. notico: also that in England the order could only lie mado by a Judge in -Chambers, whilst in tho Dominion, it might bo mado by. a Magistrate, as. well. 1 This was .a ease where the objection was that the order had not been put in;, the English case was ono in which tlio order' was put ill and afterwards found-to bp defective. When were tlio proceedings commenced ? 110 submitted that tho case was begun under tho Justices of tho Peace Act before a Magistrate, and 'the proceedings in tho Lower Court wero coiiiplotod without objection, Mr. Gray: You don't know that?> Mr. Wilford: As fur an wo'- know..-Con-tinuing, counsel' contended that as an order

for committal to the Supreme Court was made, 'it must be presumed that all the. necessary preliminaries were complied with on the doctrine omnia pracsumuntur rite esse acta (all things arc presumed to havebeen done rightly). .. .... Mr; Justico: Cooper:' Your contention isj that the Magistrate had jurisdiction to com-.,i mit prisoner.'' • Mr. Wilford, who replied in the affirma-.' tive, urged that tlio fact that the Supreme., Court had proceeded with the' hearing of 1 , the charge was prima facie evidence that the necessary preliminary, steps -wore • taken.. When a case came before the Supremo. Court on committal it was 110 part of the duty of. the Court to inquire whether the. proceedings in the Lower Court were regular. /The preferring of the indictihent Was; the commencement of proceedings in theSupreme,' Court. Counsel submitted ■ that the whole matter narrowed itself,into this: It'did not matter whether the prosecution commenced under the Justices of the I'eaee Act or by the preferring of the indictment in the Supremo Court, as allt the essentials to the completion of tlio processes before the Supromo Court eitller by the making of the committal order in the Magistrate's Court or. tho finding of a true bill in the Supreme Court must be presumed to have been validly done. Finally, if a Court of ebmpetent jurisdiction, completed a matter before l it, the decision must be presumed to bo warranted by law, and Valid. The Court reserved its decision. ; Y . •