JUDGE CARTOONED.

Dominion, Volume 7, Issue 1878, 11 October 1913, Page 3

JUDGE CARTOONED.

CHARGE OF CONTEMPT,

THOSE AFFIDAVITS AGAIN.

SEVERELY CRITICISED.

PARTS THROWN . OVERBOARD.

Hearing of the alleged contempt of Court case —the Attorney-General v. William John Gfiddis and William Blomfield, proprietors of the "Observer" — was oontinued yesterday, after having lasted all day on Thursday, and was eventually adjourned over the week-end. The first hour qnd a half being devotod to the relevancy of certain, paragraphs in the affidavits filed by the defendants, two of which were eventually struck out. His Honour Sir Robert Stout, 0.J., again presided; and was associated by the Full Bonch, with the exception of Mr. Justice Edwards. The Solici-tor-General (Dr. Salmond, K.G.) represented the Crown; Mr: C. P. Skerrett, K.C., Sir John Findlay, K.C., and Mr. G. Samuel appeared for the defendant Gcddis, and Mr. T. Cotter, K.C., with Mr. G. H. Fell, appeared for the defendant Blomfield. At the outset, the Chief Justioe re- 1 ferred to the affidavits filed by Geddis and Blomfield. The Solicitor-General had taken exception. to these, and had asked that they should bo removed from tho file. His Honour asked Mr. Skerrett if he had anything moro to say about that. Mr. Skerrett: I have said nothing about the affidavits so far. Tho Chief Justico: You admitted that tho paragraphs are irrelevant. Mr. Skerrett: Only ono-paragraph 8. The Chief Justice: What about paragraphs 16 and 19? Aro they not irrslevant? Mr. Skerrett: I submit not, but 1 desire, before you donj with tta matter, to address argument on the point. The Chief Justice: Supposing that you admit one paragraph is irrelevant, and should not appear on the file, what thonP Mr. Skerrett: It must be both irrelevant and scandalous; there is clear authority for that proposition. - The Chief Justice: Would it not be better to settle this Question of affidavit before going further? Mr. Skerrett accepted this suggestion, and contended that it was clear law that the Court could not remove an affidavit from the file if it was merely irrelevant, unless it was also Bcandalous. That was settled in the caso re Jessop, a solicitor, which appeared in' "Weekly Notes," 1910, page 128. Mr. Justico Chapman: Does that deal with part of tho affidavit P Mr. Skerrett: Yes; the words are "strike out from tho affidavit." Affidavits— Part Thrown Ovarboard. Continuing, Mr. Skerrett dealt with paragraphs 16 and 19, which ho submitted wero relevant. Ho was entitled, he said, to assume that their contontiou was correct that the charge involved tho consideration, as to whs.tlier the commont was 'fair and reasonable, made bona fide and in tho public interest. Although that would not be his argument upon tho main ground, it was open to defendants to show that the publication was a pictorial comment upon the conduct and actions of tho judge, and that it was fair and reasonable comment and uttered bona fide without, malice and in tho public interest. Mr. Justice Denniston: Do you agree with the Solicitor-General ill that? Mr.' Skerrett: I do not, but that is the Solicitor-General's argument. Tho matter is relevant if it bo' relevant to any question raised by which he might suoceed. Evidenoe was not irrelevant if it bo directed to an attack by the plaintiff. and in tihis case they wero attacked bv the Solicitor-General on tho ground that their comment was neither fair, reasonable, bona fide, nor in the Interests of tho public. Therefore it was relevant to show that the comment was not wholly groundless nor malicious but bona Mo. Furthermore, it undoubtedly went to the character and nature, of the offence and of the punishment which £hat Court might mete out. It was a relevant and instructive fact that thero was some considerable dissatisfaction with the administration of the Judge in that district. The Chief Justice: Paragraph 8 does not refer to that. Mr. Skorrett: I have no objection to paragraph 8 being struck out, but the onus rests ' upon tho defendant to establish the bon* fides of his aot. n Sir Joshua Williams: Is not the only way to do that to show what took place at the trial, and not flay what other people thought? Mr. Skerrett: No doubt that is the real way of justifyinc the plea of comment. ' Continuing, Mr. Skerrett contended that neither paragraphs 16 nor 19 could be regarded as soandalous, and ftddod thai the fact that it referred to a learned Judge made no difference to tho principle upon which the Court should deal with the application. "/ibireo of Prooess of Court to Put That Stun In." Mr. Cotter: It is the intent Whioh has to bo considered. The Chief Justioe: Y6u cannot"suggest tihat paragraph 19 has anything to do with intent P Mr. Justico Cooper: Yon try to get In a general ohaTge of mal-administra-tion. Surely thai is scandalous, and 1 has nothing to do with the case at all. Mr. Cotter i I was dealing with paragraph 8. Mr. Justioe' Denniston: That Is the lugging in of oomment by a newspaper. That is absolutely irrelevant. Mr. Justice. Cooper: Soandalouß matter ought not to remain on the file. The Chief Justico: Unless it is relevant. Mr. Justice Denniston: Then we are to be assisted in ooming to a conolu- ■ sion by tho opinions of a number of journalists .Who have come to an opinion. NVhat i 3 tho value of them? Mr. Cotter: Simply that a person who happoned to bo a journalist considered that the..dictum of the Judge was wrong. It ft- not to assist your Honours in coming to a conclusion, but to show that the dofendants were acting bona fide. Mr. Justice Denniston t That someone else thought ho was. Mr. Cotter: No; that someone else came to the same conclusion from the Judge'b remarks that a newspaper had tho right to critioiso the conduct of the Judge. Mr. Justico Cooper: That is admitited; a newspaper has that right. Mr. Cotter added that it was put in to show thot defendant did not act with an evil mind, but that he had the right. At tho most, defendant acted under n misapprehension of law, and therefore that Court should not exercise tho jurisdiction which was now being asked foi by tho Solicitor-General. Mr. Justico Denniston: Mr. Skerrett agreed that paragraph 8 was irrelevant, You don't agree with him? Sir. Cotter: No, I don't. Mr. Justice Denniston: Well, I do, Is it not an abuse of the process ol the Court to put that stulf in? 1 The Chief Justice: What is meant b) scandalous? Mr. Cotter: Somethinz not only do-

rogatory to the Judge, but bringing his decision or judgment into contempt. I Judge, Journalist, or Wharf Labourer? 9 Mr. Justice Chapman: Would it be relevant if it was submitted by a resolution of wharf labourers? { Mr. Cotter: No; because o wharf la- , bourer is not competent to deal with the matter. Mr. Justice Chapman: Who is dealing with tho matter f , Mr. Cotter: Your Honours are now. Mr. Justice Cooper: This affidavit 1 goes mucli further; it is a general f charge of mal-adminisbration. Surely it is scandalous to lug in by imputations a greater charge which cannot be considered in the present case. Mr. Justice Demiiston: And it goes | rery much beyond the extremely limited ; construction put upon his action by j your client. £ Mors Affidavit Jottlsonoa. J Without retiring, their Honours de- 1 oided to strike out from tho affidavit \ Clauses 8 and 19, the former containing j a lengthy comment from the "Triad" < and the latter tho result of a meeting ] of solicitors at Auckland. 1 Part of Affidavit Scandalous. £ The Chief Justice, in announcing this decision, said that they in New Zea- 1 land bad no jurisdiction such as was j possessed in England to strike out part j of an affidavit, out they had tho general ■ power. Paragraph 8 was irrelevant and ' an abuse.of tho Court to quote in an affidavit a comment of a newspaper 1 after the alleged contempt. Paragraph s 1.9 was not only irrelevant but scan- ) dalous, as it brought in a fresh charge ) having no relation to the charge beforo the Court, and which could not ho held , to be any excuse. t Their Honours all concurred, Mr. Justico Denniston adding, that the inser- j tion of an anonymous opinion of a ! journalist as to tho duty and obligations of a Judga was scandalous, and an abuse of the process.of the Court. j 1 DEFENCE RESUMED. ADDRESS BY MR. C. P. SKERRETT. , Mr. Skerrett,'taking up tho thread of ] his argument on behalf of tho defend- 1 ant Geddis, said that whon. tho Court adjourned on the previous day he waß < dealing with the cartoon. He would now remind their Honours .that tho cartoon was accompanied by a leading article dealing with tho same topic, and that article explained the meaning to • bo attributed to tho cartoon. J Mr. Justice Denniston: Many men would' look at the cartoon who would- , not read the leading article. Mr. Skerrett asked how many people ■ looking at the cartoon would really ■ havo their minds affected by it. Tho Chief Justice: At any rate, the article is not complained of. . Mr.' Skerrett complained of the suggestion that the' cartoon implied any ' impuro motive with rogard to Mr. Justice Edwards, as that was neither sue- [ Rested nor justified. Even if it did, however, the suggestion was withdrawn and apologised for. The cartoon was a pictorial comment which imputed a leaning by the Judge towards the respondent because she was a woman, and for no other improper reason. "A Leering Satyr." Mr. Justioe Denniston: Is it necessary to depict a Judge as Bort of leering SatyrP Mr. Skerrett replied that ho could not dony that the representation of tho Judgo was offensive, but claimed that it would not to the public mind sujicont a lowd motive on the part of Hia Honour. Tho, artist made some endeavour to prevent that, as tho respondent wns not presented as having any great personal attractions or allurements, but as an extremely plain and unattractivo person. ■ Mr. Justico Denniston: You think tho artist has toned down tho temptation or tho tamptresß? Mr. Skorrett replied that it'was difficult to believe that tho artist was depicting tho temptation of tho Judge. The cartoon was at least open to doubt as to whether it expressed that the motive of the Judge in not holding even tho Scales of Justice was a lewd or a form or bias not dictated by wilful or improper motive. If thero was a doubt as .to the moaning of the oartoon, the Court had to give tho dofendant the bonefit of that doubt. Continuing, Mr. Skerrett pointed out that this species, of offence was specially provided for in the Crimes Act, in the form of proceedings for seditious libol, punishable by indictment. Why, then,_ preserve tho form of summary jurisdiction now adopted? When Comment Is not Contempt. - On resuming after tho luncheon interval, Mr. Skerrett said: Upon consideration, I don't' think I can usefully add anything to what I have ojready said to the Court. Sir John Findlay, K.C., who followed on behalf of the defendant Geddes> opened by remarking that contempt of Court was dealt with veir fully in HalsS*rry r s "Laws of England, ' and. v proceeding, said that it wa-s important to distinguish at once the ossentinl dif- ' ferences between contempt of Court in respect of something done beforo the Court and of litigation ponding—which 1 stood on the same basis —and contempt of Court in respcct of something done \ after a case was over. It was essential ' that nothing should be permitted to ob- ■ struct the aotual proceedings or pro--1 judice a fair trial. In practico news--1 papers recognised that while a matter ' was sub judice it should be treated, with silence so far as comment was concerned. That silence was not only bidden by law, but by fair play. That distinct-ion could be brought into vivid ! view if they remembered that what would be contempt of Court where a . case was pending would not be conr tempt of Court when a case was over. ' They could properly say when a case * was over that it was a class, of case which ought never to hare been |i brought, but they oould' not say that while the case was proceeding. To say ; of ft learned Judge, after a case was over, that throughout the trial he showed partiality or favour for one side would not give riso to proceedings. The Solicitor-General: Even if it was . malicious? ' 1 Sir John Findlay: I will come to that later. Continuing, Sir John snid that in praofcico newspapers waited 1 until the case was over, fifitl tli€>n passed coin* ment freely upon the conduct of the t suitors, jury, or Judges, The reason that marked distinction was established was that when the case was over the interference with justice was over too, but while the caso was pending it might imperil a fair trial. If commont was 3 passed upon tho highest Court that the [ Judges were incompetent, or weak, or * something elso derogatory to their eflj- " cicncv and 1 qualifications, while* it would be a slander upon the Court it " would not give riso to proceedings for oontejnpt or Court. There niust tbe 5 something in the contempt which 5 puted or tended to impute the actual J administration of justice. Tho ecandal- * ising of a Judge whon a case _ was over was not contempt unless it interfered " with or obstructed the Courts of Justice. Tho Solicitor-General had ad- ■> mitted that the libel must be a, libel-, 1 on the Judge as Judgo. That admission * was tantamount to this: That it must * bo an insult to the office, and not to 0 the man. Tho Judge's Aura.

It bccatno of oatdinal importance to seo what tho policy of tho earlier law was witli regard to libel oil tho office. Tho Judge represented the King, and' there must bo kept'around him a. blazo of glory; that was the survival of tho Divmo right of Icings, and had I,ow passed away from tho law- Mero scandalising of tho office, which was the reason for the earlier law, mn no longer an axis tine reason for oontompt.

Mr. Justico Cooper: What about the procession of Judges at Homo? Sir John Findlay: That is a survival of tho pomp • and circumstanco which in tho olden days was deemed to bo essential to power. Mr. Justico Denniston: Tho old. doctrine waß: The greater tho truth, the greater the libel.

On Insults to Judges. Sir John Findlay, continuing, said that it would bo amazing if these proceedings were brought, as they could bo brought, before the very Judge who had been slandered. He contended that if tlio criticism of the Judge in this case was confined to one case, and could not directly affect, interfero with, or obstruct the administration of justice in future, thoso proceedings must fail. The Solicitor-General seemed to be qualifying for tho House of Representatives judging by the way in which he used epithets in describing that cartoon. His (Sir John's) submission was that the cartoon could not interfere with the future administration or justico. If bo, any such libel on a Judge would expose the critic to similar proceedings. Sir Josnua Williams: You say that although the comment is insulting it is still only comment. Mr. Justice Cooper: You may insult a Judge after a caso is over, and it is not contempt so long as tie slander has not tho effeot of interfering with the administration of justico by that Judge. Sir John Findlay: Supposing that instead of this cartoon a leading article said: "In tho divorce ca6e yesterday the presiding judgo showed a leaning towards the respondent." Would tho So-licitor-General say that was oontcmpt? The Solicitor-General: I should like to see tho article first.

Mr. Justico Denniston: So gratuitous an insult of tho learned judge cannot bo considered as fair comment no matter what imputation is conveyed. Sir John Findlay remarked that some of the drawings of that honourable' Court which appeared in other papers wero not always correct. Mr. Justico Denniston: I agree with you there. Sir Joshua Williams: We havo all suffered in that respect, but we admit that tho artist has done his beßt. (Laughter.) Mr. Justico Sim: The Bar have not escaped either. A Faint Legal Joke. Mr. T. Cotter, K.C., then addressed tho Court on behalf of the defendant Blomfield and remarked that these proceedings were like bringing out a Dreadnought to punish a pleasure steamer or using a sledge-hammer to crack a nut. Mr. Skerrett (referring to tho smaller cartoon entitled "Worloy the Knut"): Did you say a knut? Mr. Cotter: You leave out tho k in this caso. The Court then adjourned until 10.30 on Monday, when Mr. Cotter will continue his address and the Solicitor-Gen-eral will reply to tho arguments againßt the motion. The Court of Appeal will thon proceed to hear tho case of Bloomfield v. Bloemfield, which will bo followed by an Auckland appeal, John/Thomas,Stembridge v. Donald Ewon Mornson, the order of hearing of theso two cases- being transposed.