THE CARTOON CASE.

Dominion, Volume 7, Issue 1893, 30 October 1913, Page 11

THE CARTOON CASE.

DEFENDANTS ESCAPE. COARSE, INSULTING PRINT. OPINIONS OF JUDGES. "TO VILIFY RATHER THAN TO CORRECT."

Judgment was delivered .yesterday by the Full Court in the cartoon ease, in which the Attorney-General applied for the committal for contempt of Court of William Ulomfield, printer and publisher, Auckland, and William John Geddis, printer arid publisher, of Napier, part-proprietors of tho Auckland "Observer)" in which the cartoon objected to as a libel on Mrl Justice Edwards, was published on September 6. Tho Chief Justice (Sir Kobert Stout) presided, and associated with him were their Honours the llight Hon. Sir Joshua Williams, P. 0., Mr. JusticoDen-r uiston, Mr. Justice Cooper, Mr. Justice Chapman, and Mr. Justice Sim, each of whom read his own judgment. Tho result was that tho motions for committal wore dismissed, their Honours being unauimous, except that Mr. Justice Sim differed in so far as to say that this cartoon showed a desire to vilify rather than to correct, and that Mr. Justice Cooper's reason for dismissal was that the Crimes Act took away the Court's jurisdiction to entertain the motions upon summary process. Chief Justice Favours Dismissal. His Honour the Chief Justico commenced his judgment as follows: — "There are two motions by the Attor-ney-General before this Court for the committal of William John Geddis and William Blomfield for an alleged contempt of Court. Tho persons charged are proprietors of a weekly paper called "The Observer," published in Auckland. The issue of the paper of September 6 contained a cartoon holding up His Honour Mr. Justice Edwards to unmerited calumny and abuse. The applications to this Court are for the exorcise of the Court's summary jurisdiction to commit thqso proprietors. That the offence, so far as the cartoon is concerned, is a gross one cannot ho denied. Tho leading article of the paper dealing with tho subject matter of the cartoon canhowever, be deemed objectionable. It is a criticism which, if rnado bona fide, cannot be challenged as illegal or improper. The cartoon, thought it may not mean what the Solicitor-Gencral urged it meant, is, from my point of view, indefensible. It purports to deal with the conduct of the learned Judge in a divorce suit of Paterson v. Paterson and Kronfield, and it charges His Honour with bias towards tho respondent. At tho time the cartoon appeared tho trial of tho action was over. Judgment had been delivered in favour of the respondent and 00-rospondent, and no new trial had been moved for. The proceedings in the suit had ended. Several interesting . questions have been raised. First, it has been said that this kind of contempt—if it. ever was contempt at common law to libel a Judge— has been abolished by Section 5 of the Crimes Act, 1908. That- section is as follows "Every one who is a party to any offence shall bo proceeded against under some provision of this Act, or under some provision qf .some statute not Inconsistent herewith and not repealed/ and Bhall not ho proceeded against at common law. . "The definition of 'offence' in Section 2 is as follows: ■' includes any act or omission for which anyone can be punished, either on ' indictment or .summary process.' " If this contention is correct, it will mean that all criminal contempt is abolished : the only contempt remaining would be civil contempt, which tlx© rules of civil procedure provide for. It is •plain, howovor, that the Legislature has assumed that the Supremo Court has still left to it the right to punish for tho offonce called contempt, and to deal summarily with contempts. Continuing, His Honour sjiid that in his opinion tho Legislature hud conferred upon tho Supreme Court jurisdiction to punish for contempt; and tho enacting of Section 5 of the 1908, had not deprived tho. Sui&eme Court of this jurisdiction if it was previously enjoyed. Tho Crimes Act, indeed, _ assumed that there was such a jurisdiction. It was necessary before such libel or abuse was deemed contempt of Court that it tended to interfere with tho administration of justice. 'I'ha.t was clear from two cases in the Privy Council. The question, therefore, that the Court had to decide was: Assuming that this cartoon is a libel, was it clearly shown that its publication is calculated to interfere with tho duo administration of justice?' In his opinion that had not been established. Tho cartoon dealt with only one case. It had no reference to other cases, of to tho general conduct of the learned Judge. Tho caso it referred to had concluded. The criticism, however gross, was a criticism on one caso only. Ho was of opinion that, if the Court were to hold that the cartoon was a contempt of Court,.it would bo deciding the matter in a way that would conflict with tho law as laid down by tho Privy Council; and he was, therefore, of opinion that both motions must be dismissed.

Opinion of Sir Joshua Williams. His Honour Sir Joshua Williams, after reading the law on contempt of Court, set out in the judgment of the Privy Council in the case of Jl'Leod v. St. Aubyn, pointed out that the power to commit for contempt continued to oxist in England, and that Court had all the powers of the English Coart. The power to commit for that class of contempt still remained (though, happily, it had nover been exercised during the 72 years of the existence of-that Court), unless it- had been taken away by Section 118 of the Crimes Act, 1908. Ho was not satisfied that that section replaced the power to oommit for that or for any other class of contempt, and tho question was whether in the present case tho powor of the Court to commit should bo oxerciaed. Thef picture in quostion was ono which any decent journalist would bo ashamed to publish, but he (His Honour) did not look upon it in quite the samo light as tho Solicitor-General suggested. No doubt, tho picturo was coarso and insulting, but ho could find no suggestion of corruption on tho part of the learned Judge, who tho picture seemed to suggest, had shown impartiality and bias, induced by the sox ami appearance of tho respondent. Looking lit all the circumstances attending the publication, had it been mado to appear that the publication so tended to obstruct the administration of justice as to call for the interference of the Court by its summary procedure? Continuing, His Honour s.nid 'hat in the principal contres in New Zimbuid tho Judge was not a stranger, but a resident, and a well-known personage. He was constantly engaged in administering justice, and the proceedings of the Court were published in the newspapers. With tho exception of sport, tliore was perhaps no subjcct in which the maBS of tho people interested themselves so much m that country as in tho administration of justico. 'ilio kind of man the. Judgo was, and. the way lie administered justice were matters of public knowledge, In such circumstances he failed to seo how a single imputation of bias in an isolated oaso sublishod in a light,.

and slightly flippant periodical, though in a coarso and insulting manner, could tend to shake tho confidonco of tlio people of Auckland in the learned Judgo or obstruct tho administration, of justice. The publication of similar imputations in a serious way in a daily newspaper in Auckland would be far more likely to have a detrimental efff?ct upon tho administration of justico by the learned Judge than a publication of that nature. The sting of this publication was tho imputation, and not tho insulting way in which it was conveyed. The learned Judge was no party to the present proceedings, and the Soliei-tor-G-encral did not represent the J udgo but tho public. It was the public interest alone that was in question, and they had not to treat the case as if tho learned Judgo were a prosecutor in respect of a wrong done to himself. If a person was charged with making imputations on a Judge.beyond tho hounds of criticism and fair comment, it should be open to him to bring forward evidenco in justification, aiid to show whether and how far his imputations were justified. Whother ho siiould be punished at all and tho measure of his punishment would properly depend upon that -evidence. It should be open for the defendant to show what took plaeo at tho trial, and what was done and said by tho Judgo in the course of the procoadings, That had never been done and could not bo done in summary proceedings for contempt. The Court did not sit to try the conduct of the Judge. There was thus a difficulty in- a motion like this of doing complete justico between the Crown and tho subject, even if they were of opinion frorn the materials before them that the publication was calcujated to obstruct the administration of justice.. Ho was not, however, satisfied that the publication. in question was likelv to have that' effect. There might possibly he extreme cases where the Court might ho compelled, in the public interest, to exercise its summary jurisdiction to punish tlioso who scandalised the Court or a Judge after a case was over, but he did not think this was one of such cases. The summary process in all classes of contempt was a weapon to be used with the greatest caution. As to the class of contempt heforo them, it resembled some antique weapon which would probably do more harm to those who used it. than to those against whom it was used. He thought the defendants -were entitled to judgment. Mr. Justice Denniston. His Honour Mr. Justice Denniston, in a lengthy judgment, commenced by remafkmg that the subject matter was a drawing and a cartoon obviously intended to hold up to publie contempt a Judgo of that Court by, impugning his impartiality in his conduct of a judicial proceeding in the Supreme Court, which was at the time of the publication no longer sub judico. It may bo that, as jthe author of tlio cartoon assorted, it 'was not intended to convey the oven grosser aspersion alleged hy tho prosecution. If so, he had, by the gratuitous coarseness of his presentment, only himself to thank for tho imputation. What tho Court had to consider was: Has it jurisdiction to deal with this libei by summary procedure for contempt, and, if it has, should it exercise such jurisdiction. Tho scandalising of the Court itself was what tho Court was coiicorned with. It was common ground that a mere libel on a Judge as an individual and not "for his conduct as a Judgo would not bo tho subject of a summary proceeding for .contempt. What they had to decide therefore was: Is this-Conrt, when for the first time in tlie 72 years of its existence, it is asked to apply this jurisdiction, to accept or refuse the invitation of the Privy Council to treat such jurisdiction as out of date and inapplicable to tho present-day conditions and sentiments, to decide that they must consider the grounds which were at the root of tho dictum of tho Privy Council as to the inapplicability of the procedure to modem conditions P Those, as ho understood thom, were: That the proceeding was a summary one, heard before a tribunal consisting of Judges, which may include, or consist of, the persons libelled; that it deprived an accused of tho right to trial by his Peers, and subjected him to fine and imprisonment to an extent limited only hy the discretion of tlio tribunal, without appeal, and without tho right to tender cvv donee to show the truth or the justification of the alleged libel. Tho last element was disputed by the SolicitorGeneral, who had, however, cited no ease in which a defence had been allowed. The Solicitor-General addressed a forciblo argument on the inconvenience*of compelling a Judge in such cases to fall back upon a criminal information or indictment. It would not however be a Judge or the Court which would put tho law in motion. In a' ease involving an outrago so scandalous as, if unpunished, to affect or to tend to affect the administration of justice by lowering tho respect paid to those administering it tho proper authorities may be invoked to talco tho neeo.ssary action. After citing so-Veral legal cases, His Honour said he had gone fully into those cases because they were so much relied on ,by_ .tho Solicitor-Genera-], though to 'his (His Honour's) mind' they were of little value as authorities. j Ho "was not, however, concerned for authorities. He had the authority of the Privy Council for the proposition that the jurisdiction of that Cburt to deal with tho particular class of contempt ought, in colonies with an organised | judiciary and an educated and independj out population, to bo treated as obso--1 lete, as being unnecessary. It. must always he remembered that it was not the offence, but the jurisdiction, which was held inapplicable and therefore obsolete. TJio_ contempt still remained an offence, _ liablo to punishment by tho ordinary tribunals, civil or criminal. Public opinion nowadays had a strong and, in his opinion, a wholesome suspicion of privileged, self-constituted, and co-optative tribunals. They could not compel public respect for the administration of justico by flouting public opinion. Judges, like all other public men, must rely upon their own conduct to inspire _ respect. He, admitted that they wore in one respect! ill a different position from that of most other public men. They were practically denied' the right of replying to criticism —they must suffer "in silence. While ho thought the Crown was justified in having these important questions of .law determined, lie was of opinion that these motions should be dismissed.

Mr. Justlcc Cooper. His Honour Mr. Justico Cooper, in delivering his judgment, said that tho grounds of the motion were that the cartoons imputed to tho Judge partiality, bias, injustice, corruption, and impropriety in the conduct of his judicial office,, and were calculated to obstruct and interfere with the due administration of justice, and therefore were a contempt of Court calculated to obstruct and interfere with the due administration of jjtistico therein. Counsel for the defendants, whilo denying that the cartoons were incapable of any other meaning than that alleged in the notices of motion, submitted two important questions of law which they contended must be decided in favour of the defendants, firstly that a libel upon a Judge was not now the subject of summary 'procedure for contempt, and secondly that the only procedure was by information by the Attorney-General under the Crimea Act or by indictment under that Act. He thought there was no doubt that a libel upon a Judge was a criminal offence, punishable by summary process whether in reference to a pending caso or one which has been determined. As to the second question of law, ho thought tho jurisdiction of tho Court to deal summarily with that class of contempt had been taken away by tho Crimes Act, which ho thought had, removed from the summary jurisdiction of the Court contempts which had by that Act been erected into.

specific statutory crimes. It had, lio thought, loft untouched tho power of tlio Court to deal summarily with nil other classes of contempt. Section 432 of the Crimes Act was not inconsistent with that conclusion. It did not make the disobedience of tho order forbidding publication a crime; it merely placed it on tlw same footing as tho disobedience of any other order of tho Court. Ho agreed with what Mr. Justico Sim would say in his judgment as to the nature of the cartoon "Justice is not Blind," and while ho thought the motions should ho dismissed, they ought, in his opinion, to. bo dismissed on tho ground that tho effcet of tho Crimes Act was to take away from that Court tho jurisdiction to entertain thom upon summary proccss.

Mr. Justice Chapman—"A Grossly Improper Cartoon." His Honour Mr. Justico Chapman,' in the course of his brief judgment, said that this case stood on a very peculiarfooting, and proccoding, said: "The cartoon is a grossly improper production. The' apparent purpose is to excite or influence public feeling among ignorant people to tho prejudice of the Judge who is caricatured. The author of it claims by his affidavit some different purpose, but I can only judge by what I see. However coarse a production it may lie it must bo borne in mind that it relates to past litigation and contains no' general attacK or imputation upon tho impartiality of tho learned Judge. I do not think that it is made out that it is'likely prejudicially to affect tho interests of future litigants, and if that bo tho caso it would bo difficult to say that it amounts to an interference with the administration of justice. To justify us in acting summarily if we now have jurisdiction, so to act .we ought to require an affirmative caso, making it clear that the publication had a tendency to prejudicially affect the administration of justico. For these reasons I think that in the existing circumstances an indictment for seditious libel and not a proceeding of this sort is tiro proper mode of dealing with such an offence. While thus recognising the incidental effects of certain expressions in tho Crimes Act, I am by no means certain that that Act does not really go further, though I am quite satisfied that it cannot be inter, preted as having so wide an operation as to transfer to tho category of indict' able offences to bo dealt with exclusively by indictment all 'ordinary contempts of Court for the punishment of which it has made no special provision." To Vilify Rather Than Correct. His Honour Mr. Justice Sim, in. his judgment, said colonial Courts of Record had tho power of punishing summarily contempts of Court committed by scandalising tlio Court, though it had been said that committals for contempt of Court by scandalising tho Court itself had become obsolete in England. Ho thought the jurisdiction of the Court to punish that kind of contempt by committal had not been taken away by Section 5 of the Crimes Act, 1908. If the power to punish tlioßO contempts summarily had been taken away then they could not be punished at-all. That there was power to punish summarily for contempt of Court was recognisod, however, by the Legislature in Section' 432 of the Crimes Act and in other statutory provisions to which reference already had beon made. If tho Court's power to punish one class of such contempts had not been taken away by Section 6 then it followed that the power to punish summarily in all other cases remained also., Ho could not agree with the reasoning that made any distinction between tho several classes of contempt. Tho question was whether the present ca.so was a proper one for tho exorcise of tho jurisdiction. The aiiswor depended on whether tho cartoon, which was &n attack on a Judge in his judicial character, was calculated to obstruct or, interfere with the course of justice or the due administration of the law. It was clear that when a trial had taken place and tho casd waß over'the Judge and jury were given over to criticism. The right to criticise must be exercised, however, with dccency and,candour, and to publish an article containing scurrilous personal abuse of a Judge with rcferenco to his conduct as a Judge was not an exercise of tho right of criticism and may be punished as a oontempt of Court. To say of a Judge that his conduct in tlio trial of a particular oaso was not impartial may be quite within tho limits of fair criticism; but a charge of partiality may be mado in such' ail insulting and offensive manner as to go beyond those limits. There were modes of comment which showed a desiro to vilify rather than an attonipt to correct, and tho mode of comment adopted by the cartoon in the present case seemed to belong to that class and to be calculated to interfere with the course of justice.

Costs Not Allowed. The six judgments having beon read out, the Chief .Justice remarked: Both motions are therefore dismissed. Sir John Findlay: Will the Court conaider the question of costs? Tho Chief Justice replied that it was a question whether the Court had power to grant costs where tho Crown had lost, but, in any caso, they did not think this was a propor case where costs should bo allowed. At tho hearing tho Solioitcr-Gou»ral (Mr. J. W. Salmond, K.C.) appeared for tho Attorney-Gehoral (the Hon. A. L. Herdman); Mr. C. P. Skerrett, K. 0., and Sir John Findlay, Iv.C., and Mr. G. Samuel represented Mr. Geddis; and Mf. T. Cotter, K.C., and Mr. G. H. Fell represented Mr. Blomfield.