COURT OF APPEAL.

Dominion, Volume 3, Issue 791, 14 April 1910, Page 9

COURT OF APPEAL.

THE ONUS ON A PRESS MANAGER. COBURN'S CASE. The Court of Appeal had under consideration yesterday a point arising out of the case of tho King v. Henry Stephen Coburn, manager of a newspaper called' "New Zealand Truth." Tho Bench comprised the Chief Justice ' (Sir Robert Stout), Mr. Justice Williams, Mr. Justice Edwards, and Mr. Justioe Chapman. The case had been heard by Mr. Justice Chapman and a special jury of twelve on Monday, February 7. The indictment charged Coburn with having knowingly, and- without lawful justification or . excuse, distributed for public Sale certain obscene printed matter tending, to oorrupt morals, namely, copies of a ' newspaper' known as "New Zealand Truth," of the date of November 13, 1909.. A second count related to a particular article in that .issue. Coburn had been found guilty. The Points for Decision. Tho statement of the case as reserved by Mr. Justice Chapman for the Court of Appeal was thai questions had been raised by connsal (Mr. Wilford) as follow: — 1. That there was no evidence that accused had distributed the printed matter in question. . . 2. That there was no evidence that accused had any control or authority over the person or persons who actually distributed the printed matter in question. S. That sub-section i of. Section 157'0f the Crimes Act, 1908, does not apply to a person charged with distributing obscene printed matter under Sub-section la of the 6ame section, and there was no evidence that accused knowingly distributed for public sale the printed matter ' in question.. thought it desirable to raise for the bonsideration of this Court," said his Honour, in stating tho case, "tho question whether Sub-Section'4 of Seotion 157 of tho Crimes' Act applies to anyone but the seller or jmblisher iii tho stribt sense; and, 'having decided- to do this, I have thought, it as well to allow the accused to raise tho more general questions as. to the bifect of the evidence." V Mr. M. Myers appeared for the Crown, and Mr. P. Levi and Mr. A. Dunn for: Coburn. "It Does not Matter who Wrote tho Article." - Mr. Levi traversed the foregoing points and want on to saj; that the words of Sub-Section. 4 of Section 157 of the Crimes Act applied only to a person "actively" publishing, and not to a "constructive" publication. Cofiurn had no control over the literary department' of his office. , The Chief Justice: That does not matter at all, does it, if he chooses to distribute the paper? It djes. not matter who wrote the article or whether the paper was printed at his office. Mr. Levi: The distribution was dono by people in tho office, of which he was manager. He wiis a mere servant. Mr. Myers: It was argued;by counsel for the prisoner that the word, "publisher" in Sub-Sccticii i was restricted to' the person called "tho :publisher" on the staff , 1 of the newspaper.. The Chief Justice: They might, have called tho office boy "the publisher." Mr. Myers: Just so, and that point was over-ruled by the learned judge. Mr. Levi:. We say that .beforo he can be said to be the distributor of the _paper it must bo shown that he. actually is a distributor, or procured, or actively aided, or abetted. ' ■ An Absent Owner. The Chief Justice: |What would be your!} reply'.-to. the, question, "Who controls' tho distribution of this paper ?" : Mr.,Justice-Edwards: Mr.-Levi jhas admitted it. -vl-,-- r Mr. Levi: I do nos know that-1 intended to admit;that. He Was what was called "the manager.." ust be some facts to show that he controlled" tho distribution.; Supposing there a libel, he i\;ould not be civilly liable. The Chief Justice: Why not? If he is the manager, the other people of' the office, are his servants.' He can' say 'to the publisher, "Don't send out these papers," and to the boy at the counter, "Don't sell these papers." The point is this: If, he is not the local manager, and the proprietor, lives in Timbuctoo, nobody can'.prosecute the .paper. ' ... Mr'. Justice Edwards: Ton mean to say that the boys who run about the streets selling the paper are tho persons to be prosecuted as distributors? Mr. Levi: No.doubt any person who. takes a part or aids in the distribution is liable.

Mr. Justice Chapman: Yon medn that it is possible to constitute a concern in suok a way that nobody can prosecute it under this Act? Mr. Levi: No., Evidence;might be adduced that the manager had actually taken part iu the distribution.. Mr. Justice Chapman: You do not .suggest that any jury would, convict the Little boys.if they knew that.there was a manager in the office? ; Mr. 'Levi: Convictions were ' entered against shopkeepers for selling the paper. "Who is the Master of tho Paper?" The Chief Justice: You say then that the only person responsible, is the owner, 'or the person who, actually- sold the paper? > ■. Mr. Levi: No. I do not go so far as that. A man would be responsible if he controlled tho machinery of distribution. There is no such evidence against accused. ,The Chief Jns'tice: There is evidence that tho publisher acted'under him. He had control-of the business part of the paper, but not of the. editorial department. The business part surely includes' the selling. ' ■ _ ... Mi-. Justice Chapman: Bis not unimportant to remember that this is a shop. They receive orders and fulfil them. The Chief Justice: Who is the master of the paper? Mr. Levi: The proprietor. The Chief Justice: Even if ho lives in Africa. Mr. Levi: I should say so. . The Chief Justice: I. don't think so, if he is out of the jurisdiction of New Zealand. Mr. Justice Chapman said that a person who went-into a shop to-buy a paper did hot bother, to inquire who was the manager of the shop. He simply tossed a penny on tho counter and took a paper. "Now, Mr. Levi," continued his Honour, "when you go to buy a paper at tho box on the Oamaru'or. Titnuru railway station, do you stop to. inquire whether the man has a power of attorney' from the owner?" (Laughter.) Mr. Myers said that the argument of counsel for the. accused was to the effect that Section 157 "aimed at' the flies and allowed the .spiders to escape." The object of tho statute, however, was riot to penalise tho boys who sold the paper in the street, and allow the man who was in charge of the business here to evade responsibility, when ho was really the alter ego of the owner, who escaped "scot free" .by keeping out of the country. That interpretation, as. had often been pointed out in tho Courts,' completely ignored Section 90 of the Statute. . The Court Affirms tho Conviction. In giving judgment the Chief Justice said that, in his opinion, the conviction should be affirmed. In regard to the first argument that there was no evidence to go to the'jury that Coburn distributed the paper for public sale, his Honour pointed out that distribution might take several people to accomplish it. The question was: "Did Coburn take a part in tho distribution?" The'.evidence was that ho had control of tho publishing, department, that tho man known as "tho publisher" was under him. If the proprietor of the paper was not in Now Zealand, and (fid not interfere, in its publication, there must be some mnnjn charge to look after the business of publication. His Honour was satisfied that Coburn was the man, and that, therefore, ho came within Section 80, as having aided and abetted tho distribution. A second contention had been that SuV .Section i did not apply to him. His Honour was of opinion that tho word "publisher" was merely a condensation of the words "nerson who distributes for I

public sale, and he considered that the section was not intended to apply merely to the man on the staff called "the publisher. Coburn came within Snb-Section i, anil it (hd not matter whether he knew the contents of the paper. The onus was upon him to prove that ho had no reasonable opportunity 'of ascertaining the contents, and that, therefore, his ignorance was excusable. The jury, his Honour considered, did not uphold Coburn on these points. ' ■ - The three other members of the Court agreed with the Chief Justice in the opinion that the conviction should be affirmed. It was arranged that Coburn should como before Mr. Justice Chapman for sentence at 10.30 o'clock on Saturday morning. J