RESIDENT MAGISTRATE’S COURT.

Evening Star, Volume VII, Issue 1948, 3 August 1869, Page 2

RESIDENT MAGISTRATE’S COURT.

This Day. (Before James Fulton, Esq., 11.M.) FIGHTING IN THE STREETS. Thomas Bar ry, for disturbing the puble peace by fighting in the streets, was fined L2 and costs. Samuel Cork, on a similar information, was discharged. INFORMATIONS BY INSPECTOR NIMON. Several persons were fined for various petty nuisances. BREACH OF THE IMPOUN INC. ORDINANCE. Young v, M‘Donald.—The defendant was fined 5s and costs for not having sufficient fence to his ground. REGINA IN PROSECUTION. —MACLEAN V. HENMNGHAN. Mr Macassey wished to correct statements that had been made in a public journal, that he had read the letter addressed by Mr Driver. This was a misreport, uninieutially, no doubt, but one that, in justice to himself, required contradiction. His Worship said he recollected that Mr Macassey had not read the letter. George Turnbull, m reliant, Dunedin, examined ; He knew Mr Driver and Mr Hcnningham, the defendant. He remembered the Sun newspaper coming into existence. He thought in about October last year. The defendant was the proprietor of that paper. Mr Driver, himself, and othirs, agreed to assist in establishing that paper. Messrs MM.andress, Hepburn, ami Go., Wright, Robertson, and Co., Driver, Maclean, and Co., and himself, assisted to start it. Mr Driver and himself took the principal part in the negotiations that ensued with the defendant. " The paper stopped, he believed, within six mouths after commencing. Mr Driver, himself, and others, lost money by the paper. Before the paper stopped, additional assistance was given by himself and others. He meant more than was agreed to be given at first. No direct application was made by Mr Menuinghatn for lurtber assistance, but intimation was given that, without such further assistance, *-be paper could not be eaarried on. He did not recollect auy special occasion on which he saw Mr Henning:.am, nor t-iat he claimed assistance as a matter of right. After the paper ceased ho recollected seeing an announcement that the history of the Sun newspaper would be üblished by the defendant. [The advertisement in the Echo to that effect was read.] The passage read referred also to the Star newspaper. He knew tliat paper, and was beought in contact with the defendant in connection with that journal. Before the sale of the Star took place he was at one time mortgagee of the Star ; of the plant, not the copyright. He transferred that mortgage to Mr Fulton, Mr Driver, and others bought the plant. Mr Driver was the nominal purchaser. The sale of the Star took place after the Sun c-ased to exist. Mr Heuuingham continued managing as previou ly, with Mr Driver's consent, for six weeks or two months. He had not called a meeting of his creditors, he believed, at the time of the sale He was present when Messrs Driver. Wright, Heuniugham, ami, he believed Mr Fulton, had an interview, when certain propo-als were made to defendant to continue the management of the paper. Reference was made to certain letters between the defendant and Mr Driver respecting leasing the plant. Certain proposals were made to Mr Henningham in the Star office. He should think that was six weeks or two months after the sale. At that time he had not been removed from the management of the paper. He did not remember the dati of the meeting of his creditors, but believed Henningham had stopped payment before th t. At that interview Mr I /river explained what had passed between Mr Hi'inuiighain and himself, and read let fers relative to the leasing or purchase of the paper. Certain terms vere offered to Mr Hemiingham for the purchase of the plant. He objected to t e terms ; he wanted easier terms and the meeting broke up without any arrangement being made. Immediately after the interview, the property that had been offered to Mr Henningham was sold to another party. As soon as the sale of the Evening Star was effected, Mr Henningham'a connection with it ceased. He did not recollect how long afterwards the first number of the Echo was published. [The second number of the Echo was presented to the witness,] The sale took place on the 12th uue, and tin refore the first number of the

cho must have b en publi-h d about a fortnight afterwards. Mr Dtfvcr was absent from the Province a'- the time the article complained of was published, on the 30th June.

Mr Macassey asked the counsel for the defence if he produced the number of the Echo issued on the Ist July. John Davie, auctioneer, called and examined ; He was earn ing on business in Dunedin, under the (iiuiqof M‘Landrcss, Hepburn and Vo. He remembered the Sun newspaper coming into existence. He and several others contributed to stait it. The contributions were not editorial but pecuniary. Mr Driver was one who assisted. Additional assistance to that originally promised was given. The paper had a short career. M r Henningluun assigned as a reason ior its stoppage, disappointment with regard to the success it met with, —that is, he was disappointed with the reception it met at the hands of the pvblic. Before it stopped, he and others declined to advance any more money He had asked for more, and said that if not advanced the paper must stop. It was refused, and it did stop. Mr Driver was for the most part the medium through which the negotiations took plage, and took more interest m the matter than any of the rest, and was more frequently in communication with Mr Henningham than any of the others. He (the witness) had nothing to do with the Evening Star, after the fall of the Sun.

Cross-cxam'ned by Mr Barton ; He was acquainted with Mr Driver’s handwriting—(A 1 tier was presented to the witness) — Mr Macassey objected to the letter being put in as evidence, as the question had been already raised and decided. Mr Smith said the question as to the admissibility of the letter was to remove all doubt as to the comments being made upon a genuine letter by Mr Driver, and that Mr Henoingham was aware of the existence of the letter at the time he wrote the article.

Mr Barton said the question was, whether they had a light to put the question to a witness who could ident fy the handw. iting of Mr Driver? He maintained, in crossexamination, such a proceeding was quite justifiable. Mr Mac ssey replied that the question had already been decided, and the circumstances under which that question was then decided were unchanged. When a witness

was present and heard conversations, it might be right to question him to get at the facts, but in the present case such would not he the result. In order to prove the letter, Mr Treweek m'ght be called by the defence, and he would have the a Jvan'ag ; of crossexamining him—whereas, if that letter were proved by the witness under examination, he should lose that advantage. His Worship said nothing to alter the opinion expressed on Thursday as to the admissibility of the letter in evidence, and ruled that it was not admissible.

Cross-examination continued —He and his friends refused further advances t the Star. tie did not give the last money he was asked for. He c-iuld not say the application was made personally by Mr Henningham. He c-iuldnot swear be did not give m-mey when the last application was made to him for it. The firm after having previ -usly given bills, gave a cheque for LSO at Mr Henningliam’s request- At a meeting held, when and where he could not tell, it was stated by Mr Henningham that unless more money was advanced the Sun must stop. He was not referring to a meeting at which each party agreed to advance LSO. The bills and 1.50 were supposed to be worked out by advertisements ; they were not to be considered gifts nor loans, but payments in advance for advertisements. He knew the Sun stopped because of not being able to pay its way. He believed the end of the Sun was sudden, probably because the workmen refused to print the paper because they were nob paid their wag-s. lie-examined by Mr Macassey; Before the paper stopped it was reduced in size, and appear diu a diminished form. The bills were in the course of being worked out iu advertisements when the LSO cheque was given. The firm advanced L 350. When the Sun stopped, they claimed from the estate L2OO and odd.

H D. Ma'block, solicitor, had been iu Dunedin about seven years, and previously carried on business iu Melbourne, Victoria. He was there in June last. He knew Charles Edward Jones, a member of the Legislative Assembly in Victoria —not persona ly, but by repute. He had beard that charges had been made against him. Mr Smith objected that it was hearsay' evidence.

Mr Macassey maintained that rumors iu cases of libel were adruissab’e as evidence. He did not offer evidence of that kind at present for any other purpose than showing that a comparison was instituted between the Otago Driver and the Victorian Jones, and that according to public repute certain accusations had been made against him. Unless that were shewn it would not be possible to shew what the intention of the writer of the article was.

Mr Smith said that any evidence that Mr Maddock could give as to the affair in Victoria was beside the question. His Worship considered the question should be, what was the fe ling of the country in reference to Mr Jones. What was the common repute in which he was held?

Mr Maddock : In common repute Mr Jones was held to be a very bad man, and one who deserved to be expelled from the House. A man whom he should not be inclined to trust with a large sum of money', aud certainly' not as a representative. Cross-examined by Mr Smith : He did not understand Mr Jones to be a robber.

Henry Wise, printer, produced a copy of the Echo No 2, published on the 29th June. It was published by Mr Henningham’s authority. He did not know who gave the copy of the adveptisemen s, but they' were given by Mr Henningham or his assistants. The last paragraph in the first column of advertisemexts was not published by his instructions. The advertisement had not the advertiser’s name. He did not know who gave the manuscript of the advertisement. From his knowledge, as a newspaper reader, he should describe the “ Notice to Correspondents” as an editorial note. He had been connected with newspaper offices for fifteen years. Mr Barton objected that Mr Wise did not necessarily know what the nature of the matter in the newspaper was. A little boy, who called the Evening Star lustily, had been five years connected with newspapers, but he could not state what the of a paragraph was. Mr Macassey pressed his question. Mr Barton thought Mr Macassey too dictatorial. and again objected. Mr Macassey was not going to submit to such remarks. He asked that the quo. tiou might be decided.

The objection was ultimately withdrawn. Examination continued—During those fifteen y'ears witness had been iu the publishing aud commercial business of a newspaper ; as accountant for seven years. He never had anything to do with what appeared in the paper. An advertisement spoke for itself He could tell what was an advertisement and what was not. The notice to correspondents in which Major Croker is request d to call Mr Smith objected to the paragraph being read, and contended that the prop actor was responsible for the article in question, but not for every paragraph bearing upon it, which must be proved otherwise than by writing it in the paper. He afterwards withdrew his objection. Examination continued—The paragraph was, “ Major Croker is request', d to communicate with the editor of this newspaper (the Echo) at his earliest convenience.” That was not an advertisement.

Cross-examined by Mr Barton: He did not remember whether the notice was inserted after the threat of prosecution. It might be that it was asking Major Croker to call, to give him employment, or to receive a letter in answer to an advertisement. He knew Mr Vogel. He could not say by whom the history of the Sun newspaper was to be written. It might be by Mr Vogel, or MiDriver. Mr F. A. Roberts, advertising clerk on the Daily Times office was examined. The case for the prosecution then closed. Mr Smith addressed the Court for the defence. He said that his learned friend on the other side, had stated the law properly—that his Worship should be satisfied that a prima fade case had been made out, to justify him in committing the defendant for tria for the libel imputed to him. In order to make out a prima facie case, it was necessary that two things should appear clearly Firstly, that the occasion upon which the alle"ed libel was published by the defendant was°not a privileged one ; and, secondly, that the defendant, in carrying out his privilege as a public journalist, was actuated by aid had shown actual malice; that was to say, that he had exceeded the privilege which the law allowed a public journal, in commenting upon the acts of public men. The law of England very happily allowed very

large latitude to public journalists when commenting on the acts of public men -that was to say, when men were clothed with a public character, so that their conduct, in whatever respect or relation their public character might be sustained, became fair matter for comment. In that capacity, and in that capacity alone, Mr Driver’s conduct had been commented upon by the editor of the Echo. The article was based on the letter from Mr Driver —upon the hypothesis that the letter was a genuine one—that Mr Driver’s letter was actually written by him and sent to Ur Treweek. The letter was first published in the Tuapeha Times, and there was a reference in the article complained of, which was to this effect : “ But we do emphatically affirm that if the letter is not a forgery, he stands self-convicted of sins against the state equally censurable.” That expression in itself showed that the writer based the observations he made on the assumption that Driver actually addressed the letter to Mr Treweek —he assumed it to be genuine because it was published by a very respectable authority, a journal published elsewhere. The writer, supposing the letter to have been genuine, guarded himself in making comments upon it. This was showed by the correspondence that took place afterwards. The real questions which his Worship had to decide, before he came to the conclusion whether or not a prima facie case had been made out, were these —Was it a privileged occasion? was the defendant exercising fairly that privilege which the law concedes to journalists in commenting upon the acts of public men, when he wrote this commentary ? and, in the exercise of that privik-dge, had he shown any actual malice ? Now he submitted that upon the hypothesis which the article made which hypothesis all the evidence given ou the point by the other side confirmed—that the letter was written by Mr Driver. He submitted that the article, although, as it was, caustic in its terms, and a very severe admonition on the flagellations of Mr Driver —V* t the commentary was only such as Hie letter itse'f, supposing it to be gen ine.deserve 1. "What did the letter disclose ? That Mr Driver, who had never been a member of tlie Executive, represented himself to Mr Treweek as having a thorough understanding with the Government of the Province ; that he had quite moulded them to his purposes. inasmuch as through his endeavors Mr Macaudrew, with whom he projected a tour through the country —that he would exercise his influence so as to prevent the people obtaining any portion of the Bellamy Station, or that the public might settle on any portion of it. He did not hesitate to say that that act of a man in Mr Driver’s position showed that at all events he was concerned and disposed to exercise, if he was allowed, an influence over the head of the Government, which was lierfcctly foreign to his position; it would be improper, and savored indeed of _ political corruption. That was the aspect pointed out by the writer of the article He might state that the article, although written with the defendant's knowledge, was not written by him ; it was written by Mr Jabez Ham, who had been employed by the defendant to write up matters which might be proper y dealt with by a public journalist. The subject was selected by Mr Ham, and the opinions contained in the commentary on Mr Driver’s letter were entirely his. If he proved this, it would enth ely negative any scintilla of evidence adduced showing on th ■ part of the defendant. He submitted that taking the firs- part of Mr Driver’s letter it di’dosed a most improper—scandalous, he might almost say—intention, on Mr Driver s part. Whether it was indulged* ju by the Superintendent, it was not for him to say. He submitted that the allusions to the letter, although strong and pointed, were justified. He referred his Worship to the following passage in Addis ai on Torts, pp. 683-4- ‘ ‘ When a communication is fairly made by one person to another in the discharge of some public or private duty, whether legal or moral, or in the conduct of his oyjTj affairs iu matters where his interest is con* •erned. the occasion,’ observes Baron Parke, ‘ prevents the inference that malice, which the law draws from unauthorised communication, and affords a qualified defence, de* pending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society, and the law has not restricted the right to make them within any narrow limits. It was to the latter part of the dictum of that learned judge, Lord Campbell, that he directed especial attention. To make comparisons as had been done iu the article v as, to use a proverbial expression, “odiouq but it was necessary, in order to give point to the commentator’s meaning, to make them. It was in that sense that the comparison to the Victorian Jones was to ho taken. Mr Driver was not pronounced to be absolutely similar in point of sentiment or character t6 Jones. He was skated to resemble him, to be of a kindred spirit. The idea of Mr Driver taking bribes as Jones did, was expresly negatived. He submitted, that a man who used his influence with the head of the Government, as he said he could, or at all events was disposed to do — or had shown himself capable of using his position as a publie man for the purpose of carrying out any pr+vati schemes, there was great reason fop the gravest reprobation on the part of the public journalist. It would bj cowardly on his part if, when called upon to exercise his duty in commenting ou such a letter as Mr Driver’s, he shrunk from giving expression in strong language upon the gross impropriety of Mr Drivers proposal to get rid of a public officer —as every one of common sense could see, and as Mr Fulton, after considerable hesitation he was sorry to say expressed it —because in the discharge of his duty he had been making communications about the run to the 1 overnment; and sought to get rid of him by bringing pecuniary pressure to bear on him. It was a discreditable action, aud reflected indelible disgrace ou Mr Driver, and ought to have subjected him to the strongest condemnation at the hands of every public journalist. He submitted therefore that the comments on the article did not transcend the limits of the journalist’s privilege. After referring at some length t«» the want of prpof of malice, Mr Smith concluded as follows ; —He would submit, after Mr Ham’s evidence, and after showing that ’ r Driver was never a member of the Executive, and that it was never proper for him to occupy the position he stated he filled towards Mr Macaudrew, that his Worship must come to the conclusion that a prima facie case was not made out; that his Worship would only be discharging his duty towards the defendant, a service to society, iu not allowing the case to go beyond this