SLANDER ACTION

Dominion, Volume 12, Issue 121, 15 February 1919, Page 5

SLANDER ACTION

GRIERSON-THACKER CASE

VERDICT FOR THE PLAINTIFF

100 GUINEAS DAMAGES

The hearing of the case Alexander Hugh Grierson, of Wellington, lieutenant in the New. Zealand Expeditionary Force,, against Henry Thomas Joynt 'Thacker, of Chris.tchiirch, medical practitioner and member of Parliament,'-a claim for ,£SOOO as damages for alleged slander, Was resumed in tho Supreme Court yesterday morning before Mr. Justice Chapman and', a jury: of-, twelve. - The words of the alleged slander weie contained in paragraph 3 of the statement of claim, which read:- On oi about February 27,-1918, and whilst the plaintiff was absent from Ne« on active service, thb./defendant, at a public meeting held in Hall at Wellington, spoke and published the folowing words: — - . , "A. few of us, Madame B9eufvo and others, were suspicious of Grierson, and had his boxes'searched. ■ We found evidence that he was an arrant German 6dt. Sir-James Allen told usahat-he was an' elegant English gentleman of four hundred .years' standing, but ho had scarcely got to front. when he went over to the enemy. An amended statement of defence was put in. Instead of a mere denial-, of the rfords which were - the''basis of the complaint, defendant stated that ■ > Ins words in the speech were.:— Boeufve and others examined Grierson s boxes at his lodgings, and found articles which led'thcni- to believe that lie was a German. Tho Anti-German League and certain members of Parliament voicing what t-hev regarded as strong public opinion, tried to induce tho Minister'of ■Defence to.> prevent Grierson going to the front, but Sir James Allen assured us that he was an English gentleman of 400.years' standing, and Grierson left this country with one of the reinforce-, ments, and now fresh criticisms of him are coming from the boys at the front."' Mr. T.-Ycrung and Mr. T. Neave appeared for the plaintiff, and .Sir John Findlay and ' Mr. F. W.. : Johnston for the defendant. Further evidence was given for the .plaintiff;

Witnesses for the Plaintiff.. Garnet-G; Eoriayne. clerk, employed at Defence. Headquarters, said that he was present.at Dr. Thacker's meeting. Dr. Thacker described how Madame, Boeufve and the. landlidy searched'. Grierson's boxes and found evidence that h'e was-a German spy. He ended by saying that Grierson lad gone , over to the enemy.; Witness thought this, assertion a strange one at .the.time,' as lie. had known'just previously that-Grierson was ; in hopital. There was no doubt that Dr. Thacker's remark referred to Grierson. .

Cross-examined' by Sir .John Findlay, -witness 6aid that he noti.ced no reference in. Dr. Thacker's address to any other man having gone'over to the enemy. The meeting was a rowdy one, held as it was .just .on the night .before an election. ' '

Leonard Dorke, a carpenter, who was another member of Dr. Thacker's audi--ence, corroborated the previous witness's description of what. Dr. Thacker. said, and was;equally positive/that the latter spoke of Grierson. . ' Sir John Findlay, cross-examining: Did you read the findings of the Commission regarding Grierson?—"No, I did not; but I know that he was found innocent."

Do you know or not that the Commission found that Grierson had been doing his best to pass for a German?

Mr. Neave: The . Commission i never found that \

Witness: I never read tliat..

Sidney. Percival Hudson, q returned soldier; 'employed by. the Defence' Department, ' said. that, he heard Dr. Thacker make a statement that Grierson had gone over to tho endmy.. He also was sure that this allegation was made concerning Griereon, and no one else.

G. G. G. Watson, barrister and solicitor. said that Dr ; Thacker made a pretty vigorous attack on.tho/Government and on the Defence .Minister' in particular. Dr. Thacker said ;o£ Grierson that certain discoveries had been made which had led some 'people to believe that Grierson was a German spy; that ho (Dr. .Thacker) had-made representations to the Defence Minister regarding Grierson : that in spite of these representations Grierson had 'been' sent to : the front'; and that on getting to the front Grierson had gone over ,to the enemy. There was no possibility, that witness had mixed up a reference by Dr. Thacker to a inan, named Nimot with the reference by the 6ame speaker to Griereon. Sir John Findlay: A witness named Magnus Badger has told lis that Dr. Thacker's. speech. was one of those frenzied,' hysterical- denunciations that no sensible man would, take any notice of. How do'you think that runs? Quite good, isn't it?—"l think if6'rather overdrawn. The speech was certainly vigorous from start to finish."

A. Stanley Eea, clerk, said that ho had distinctly heard Dr. Thacker say that Grierson had gmo' over to the enemy. .

To Sir John Findlay: Witness could not remember . what Dr. Thacker said about Nimot,', but he dealt with Nimot's case firsth and then went on to Grierson's. ,So far as witness could remember. there was only one reference in the speech to a man. going over to the enemy; Witness had seen an extract from- "Truth" previous to the meeting stating that Grierson had been in hospital, and was on leave. He therefore knew that it was impossible for Grierson to have gono over to the, enemy. .

Nicholas Brazendale, clerk in the Public Service Commissioner's Office, quoted Dr. Thacker as halting said that he and Madame Boeufve had been instrumental in bringing Grierson's . case ..before the public;, that Grierson had been acquitted at the inquiry j and that no sooner had Grierson got to the front than he had deserted to the enemy. :

Walter James Helyer, monumental mason, said that when he hoard Dr. Thacker say that Grierson had gone over to the enemy he was so surprised that ho turned to the previous witness, Watson, who was also present, arid commented on the matter, 'fliero was not the faintest possibility that witness had'made a mistako as to what, Dr., Thacker. had said.- 1

Mr. Neave: If Dr. Thacker says that the reference to a man stoiiifj over to the enemy concerned eno Nimot.. and not Grierson, it is false?—" Yes." To Sir John Findlay: Witness-could not recall precisely what Dr. Thacker said about Nimot.. This- concluded the case for the plaintiff. • The Defence Opened, , Sir John Findlay opened for the defence. 111 tho course of his speech lie said to the jury:. "I think you have 'probably arrived at tho conclusion that, whatever was said at Dr. Thacker's meeting, 110 one took it very seriously. Most people went there for the. fun of tlio thing, to enjoy themselves,'and 1 one of my friend's witnesses regarded what Dr. Tiiackor said, whatever he did say, as an hysterical, vehement denunciation winch no sensible man could take any notico of. /And yet it is now the subject-matter of an action at the instance of Lieutenant Grierson, who is claiming. JfflOO. Now,. gentlemen, how did all this thing arise? Luckily for our'administration, of justice juries take a broad view of a case like this. They do not follow tho narrow, technical and very often absurd path of tho lawyer,' examining words with nicety fa see whether, defamation, can be extracted from them. You havo the fact that Dr. Thacker did not know Lieutenant Grieriion at all. He had never seen th. 1 man in his life. He had no; more feeling against him as Grierson than he had against the man in the. moon. So there.is.no.element, of malie. bad blood, or anything of that kind. This is not a cose of one man sitting down and intending to'' defame another. _ This is a case of a member of Parliament who conceived that it was his 'duty to carry out a campaign against tho administrn-l, tion of the' Defence Department, to,en-'J 'deavour to expose its blunders and prevent, in the interests of tho public safety and national propriety, Germans, either • full-bred or half-bred, persons with Germaji antecedents, or those with marked German sympathies, from finding their, way' 1 into our military forces. Do you not-immediately- agree: with-me that to the extent,to which lie was able 1

to chqck this drift into our military forces of persons with German blood or sympathy, he- was a benefactor to tho country and tho Empire? ... It ivas under tho clearest call of duty that Dr. Thacker embarked•, upon the campaigu ho did embark upon.

; "This,was tho usual case," continued Sir John, "of a, political meeting before an election. ,Most. pcoplo go to such meetings with the intention of getting as much fun out of them as they cam* Apparently Mr. Magnus Badger (a witness for the plaiutiff) regarded tho whole thing as 'specially farcical. It . is'a pity .that Mr. Magnui Badger had not had a few minutes' confidential conversation with Lieutenant Grierson and persuaded him that whatever was said no sensible man would take any notice of. Instead, however, we havo now a claim for ,£SOOO. On tho face of tho words alleged against us, they are plainly contradictor}'. The one charge is that wo called this man ail arrant German' spy—a German coining hero to spy in the interests of his people. The next charge is that we havo said that as one of our own soldiers he deserted to the enemy. Ho was not deserting to the enemy if lie were a German spy—ho was going back to .his own people. Is it, then, conceivable, on the face of it, -that a public speaker should use a phrase which contained within itself these mutually contradictory references? This only illustrates what kind of memory people carry away from such a public meeting as tins"

Sir John Findlay went oil to suggest that Dr. Thacker was dealing with a, number of cases to illustrate the laxity of administration of which ho was com,plaining. Two of the witnesses for the plaintiff had said that as far as they could recollect the reference to going over to the enemy concerned only one man; If that evidence were true, it was clear that the reference was to Nimot alone, because-Nimot was the man who did go over to the enemy. The witness Rea had said that there was a publication showing that Grierson could not have gone over to tli£ enemy. Therefore, was it likely that Dr. Thacker was going to make a statement which was plainly contradicted by what had appeared in the public Press?, The statement'was ab-, surd of Grierson, who,, apparently everybody who read the papers knew, could not have gone to the enemy at all.

Dr. Thacker in the Box, The defendant entered the witness-box. He said that in Parliament and on the platform outside he had-been conducting a vigorous campaign against tho administration of the Defence Department and the Defence Minister. He had been subject to various imputations as a Tesult. He ,had been doin# his best to uphold the rights of the soldiers. He wanted.to get Mr. Poison into the House, as he felt that Poison had had. personal experience of local camp life, and would be able to,assist him. His first reason for .attending the meeting was that he wished to get an opportunity of voicing his sentiments regarding the Defence Department and the Defence Minister. He had no personal animosities at'all, and yesteflday was the first time he had seen Grierson. In his S'pijech, witness referred to three cases of "sympathising Germans in our midst."

"As far as Grierson wa.s concerned," said witness, "I said that/ Madame Boeufve and others had searched articles that he possessed in his lodgings and found articles of such a character that led them to believe that he was German, and'through them and tho efforts of members of Parliament'a'commission of. inquiry was sent up, but Sir James Allen assurred that inquiry : and the House that Grierson was a gentleman of 40 generations, or-' 400 year's, und that he'had 1 quietly left the Dominion with one of the reinforcements. Then I said, 'And now.'we' hear fresh rumours of him coming from the boys at the front/ That is, to the best of my recollection; At no time have I ever said that he was a German spy, or that he had deserted to the. enemy. . ... I followed him with Ae case of Nimot, and said that Nimot had no sooner got to the front than lie deserted to the enemy. Thait was followed by a casualty list of our men. It was in connection. with. Nimot that I made that reference."

Dr. Thacker Cross-examined. ■ Mr. Neave cross-examined Dr. Thacker at some length. • I . Mr. Neave: I think at 'one of'your meetings* you referred to Mr. Poison as "my man Poison" ?—"I may have." . Tou _ took the whole conduct of the campaign on your .own shoulders?— "There were other candidate." No, but on behalf of Poison?' Ton were his generalissimo, were you not?—"I was his chief, supporter." . My_ learned friend Sir John Findlay describes you as a man it ■would take ft team of mules to stop once you start. Is that an accurate description?—"l don't describe myself. I leave my per ; sonality to the public to describe." Perhaps it would not be inaccurate, Dr. Thacker, to describe you as Mr. Poison's"mass of manoeuvre." Did you provide the sinews of war?—" Some of-them." And I suppose you are very disappointed that you did not constitute tho army of occupation^—"That will come later on." A Matter of Rent. But. you were in occupation of part of tho electorate?—"l was stajing at tho Koval Oak, if that is what you mean." But you had rooms in Willis Street, did you not? Didn't you fail to pay the rent?—" No. the rent has been paid. Mr. Poison paid the rent."

Did ijot Mr. Badford sue you for the rent?—" No." •

Mr. Neave referred to a report of Court proceedings that had appeared in the "Mercantile Gazette," and he submitted it to' Dr. Thacker. Dr. Thacker's comment was:— "Yes, that was done bghind my back, while I was in Sydney." Mr. Neave: Do'you mean to say that you were oiot served with the summons? —"No, I 'was not."

How comes it, then* that judgment was entered, against you?—" Because I was away. It was done without' any service, behind my back."

His Honour suggested that there would be an affidavit of service, and that it might be produced: . The matter lapsed pending the production of the documents, but it was pursued further when tho affidavit of service was obtained.

ilr. Neave quoted from the affidavit the assertion .that the summons and a copy of the statement of claim had been bro'ught to Dr. Thacker's notice, he refusing to accept service. Mr. Neave: Did.the bailiff attend and offer you that?—" No." Then'the bailiff has made a false affidavit?—"lt may have been left at my house." . ' - . You say you knew nothing whatever about this claim, that it was made in your absence—that while you were in, Sydney judgment was entered without service? Did you pay it?—"l paid money to Mr. Poison's secretary, but I do not know how ho disbursed it." You have paid it?—" No. I didn't pay it; Mr. Tolson's executive may have paid it." Don't quibble about-words. Dr. Thacker. Out of your funds?—" Out of Mr. Poison's funds." Do you deny that this money was paid out of your funds?—"l can't say." A Note for the Speech. Mr. Neave then referred to a note that Dr. Thacker had made for his speech. You say this is tho note you had written in anticipation of this great speech? -"I said 'speech.' not 'great speech.' That is tho note." 1 You say you knew all about Grierson's case, although you did not know him personally?—"l don't know all about his caso now." As a member of Parliament, and as a pubiic man, did you Tead the findings of the Commissioner upon the Grierson inquiry? You did? The subjects of tho inquiry - were, first, whether ho was a German or an Austrian; and, second, whether at any time amongst his antecedents thero hod been persohsof enemy strain or origin, and (lie findings of the Commission. 011 those points wero "No." and it, was proved beyond the possibility of doubt. ' a Dr. Thacker: Does it say that there? -< Mr'Neave: Yes. • Did you know that? —'T did, not know that. _ I look upon these ■ Commissions as whitewashing." ; ' Do you mean to, confess that a man in your position, the guardian of the public safety, did not take the trouble to ascertain whether this man, accused (practically of treason, was acquitted or not?—"I knew, that he went away. ' That is not the answer I am asking for—"He - could not • have .gone away ■unless he had been acquitted." 1 Then you knew he was acquitted of

being a man of enemy origin, and that he was acquitted of being a German or Austrian himself?—"That,is what the Commission found."

,1' think in tho preparations for this speech' you say deliberately and carefully ...that Madame Boeufve and others found articles of such a nature that they were, led ' to believe that ' Grierson was an alien Hun?—"So they were;"

Was not your object lo induce the Audience to believe also that -he was an alien Hun?—"No, io lead the audience to beiievo that it was a wrong tiling to allow any man to go away with our forces .who was not aljove suspicion of having enemy sympathies."

Later, Dr. Thacker said: "I think my reference to Grierson was quite legitimate.'"

Mr. Neave: Although you know that he had been acquitted absolutely of the faintest suspicion that he was a Gorman or Austrian, or of German or Austrian sympathies, you go to tho meeting having previously put into black and white your intention to say that he was an alien Ilun I did not say that. 1 said that Madame Boeufve and her friends were led to believe that, and not myself/' Did you believe it?—'"No." Then why did you not tell that audience that you did not: believe it ? Why did you not say, "Madame Boeufve said so; but I don't think so"?—"I did not know the man—l had never seen him:"

Later, Dr. Thacker said of Grierson: "Ho was a mere nar,ie to me that night." Mr. Neave: Any stick is good enough to beat a dog with?—"l never beat a dog." :

L am now going to repeat tho words in the charge we lay against you: "A few of us, Madame Boeufve and others, were suspicious of Grierson, and had his boxes searched."—"l did not have anything to do with that."

Bui according (o some of the wit'nesses'ff statements here to-day, you must have desired to claim some of the credit for discovering this horrible German spy?—"l :did not look upon him as a German spy, nor have I ever said that he was a German spy'or a deserter, nor have I ever written it down."

You deny that in that speech you made this .-alleged reference to Grierson? -"I do."

A Newspaper Report. Mr. Neave produced a newspaper report of Dr. Thacker's speeph. Referring to tlie report, he proceeded:— .. You deny that in that speech, you made this alleged reference to. Grierson? -"I do." If the reference to Grierson had been as you allege it was; is there any reason why that report should exclude' any reference to it under the heading here of "Damnable Scandals"?—'"But that has reference to the contracts. The damnable scandals were in the matter of the mattresses supplied by a certain firm to the' Defence, Department." . . Mr. Neave quoted from the report an assertion that those responsible for the mattress scandal should bo "set up against a brick wall and shot." .. He proceeded:—

; What punishment'. would'- you •' reserve for the man'who slanders a soldier who! is at that moment fighti™ in the tl'ench'es, if ynu will put up against a j brick wall and shoot the man who puts into pillow-cases supplied to the Defence Department something not in the contract?—"l should think that the people who are consulting on the Kaiser's fate would be able to deal with him."

To Stand or Fall By. Your defence is that the reference to some person who ivent over to the enemy as soon as he got to the front was made by you regarding Nimot and not Grierson?—"That is 60. I stand or fall by the statement that I never at any time* said that Grierson was - a German spy or that he had deserted to the enemy. Other. Witnesses for the Defence. Henry S. Thompson, Wellington, agent for the National Mutua* Life Association, was then called. He said ho had listened very carefully to Dr. Thacker's speech on the. night befoi'e the election. He remembered Thacker saying that Nimot had deserted to. the enemy. Dr. Thacker certainly did not say that Grierson had deserted. Thacker made remarks about Grierson that were much' the same as witness had previously seen in the newspapers. He did not say anything so sensational as that Grierson was a German-spy. -.. To Mr. Young: Witness knew Thacker slightly. Witness'had a grievance against the Defence Department that had yet to be rectified. He understood from the newspapers that Thacker was taking his case up, but he had not had any communication from Thacker about it.

Poison's Evidence, 'Aliens N. Poison, land agent, residing in Wellington, said that he was a candidate for election to the Wellington North seat at the ..by-election. Hd sat by Thncker at the meeting held on the night before the election. Timelier said that Nimot had proved himself to be a German' spy and had gone over to tlio enemy. He mentioned Nimot while speaking of the "German menace in our midst." At the same time he said that Lieutenant Grierson had been sent/to the front before, proper inquiry "had been made into certain ugly rumours that were going about concerning him. Thacker referred to discoveries of Madame Booufve, and finally said that even after Grierson had gone to the front rumours had come back about him there. Nothing was said about Grierson having gone over to the enemy. The talk of going over to the enemy had reference only to Nimot. Mr. Young asked the witness whether he had said to the witness' Badger that lie (Poison) was on the occasion in question "so jolly excited that ho never lieard what was said."

Poison repudiated the suggestion. He said that it was "absolutely ridiculous."

Frank Newman, a Government employee,, gave evidence that he was present at the election meeting. He heard Dr. Thncker say that Nimot had gone over to the Gorman lines. He heard practically .all of the speech, but heard nothing to the effect that Grierson had deserted or was "an arrant German spy." There was a-.good deal of noise in the hall at times. To Mr. Young: He would not. like to say that he heard everything that was said. ■ The Rent Question Again. James David Martin M'lntyre, land agent, residing in Wellington, was also a witness for the defence. He was first examined by Sir John Fimllay upon tho question of the. payment of rent for some committee rooms. He said that'he had informed Mr. Radford that the money was available, but that there was. a question of so'me extra items to be adjusted —lighting and some tables.' The. money had been paid long Ago.

Referring to Thncker's speech, -witness asserted that Thncker did not say that Grierson went over to the enemy, but said that a man named Nimot did. To witness's recollection, Thacker said that Grierson's rase should bo properly inquired into, bu,t not that he was a spy or a deserter.

Mr. Young: You appear lo have been agent for Thacker in the hiring of a hall?—" Yes." ,p ■

William Thomas Adair Loiigliurst, who had formerly held ,:the rank of pecone lieutenant and had served , witli the forces, said' that he was prssent at Thacker's meeting, and had not heard Thacker say anything about Grierson goini* over to tho enemy. He heard all that Thacker Slid about Grierson.

To Sir. Young: 'Witness assisted Mr. M'lntyre in connection with Mr. Polson's candidature. He helped' in any way he could. About a month ago ho was first asked to recall what he hail heard at tho meeting. Ho did not pretend now to recall the exact words used by Thacker. Witness thought, however, that liis recollection was as good as a nolo taken at tho timo by a reporter. This concluded tho evidenco for the defence. ' | Addresses to the Jury. Sir John Ij'indlay, in his address to tho jurors, said that if they returned a verdict for (lie plaintiff they must find as a necessary, preliminary that Dr. Thacker liad gone into tho box and perjured himself. On the Other hand, a finding for the defendant would cast not tho least aspersion upon the plaintiff. Mr. Neave-delivered' the final address on behalf of the plaintiff, and in reply to Sir John Findlay's last contention said that if Grierson failed in his action it would be tho end of him. >

In summing up, His Honour said that ther'o woro only two questions in the main: Whether the utterance_ attributed to Dr. Thacker by the plaintiff was actually spoken, and what.amount , of damage? Bhould be awarded' in tie event' of'

the answer to, tho first question being ill favour of 'the plaintiff. There was not-the additional question that .often occurred in libel and slander cases whether the words alleged, to, havo .been used wero-defamatory. - It. would be very difficult to say that the utterance alleged in this case was not defamatory. It was eminently a matter, for a jury,' and ho would leave the whole matter to 'thein; "

; The jury, retired at '1.35 p.m., and at 5.20. returned a verdict for tho plaintiff, with an award of 100 guineas as dam-

age?. Judgment was entered accordingly, aitl the usual costs were allowed.