SUPREME COURT. IN BANCO.

Evening Star, Volume VII, Issue 1979, 8 September 1869, Page 2

SUPREME COURT. IN BANCO.

This Day, (Before His Honor Mr Justice Ward.) ' DRIVER V. HEN KING HAM. Argument of rule msi, calling upon the def aidant to show cause why a writ of at■achment should not be issued against him for an al'eged contempt. M r Macassey moved that the rule be made absolute, Mr Barton appeared to show cause on behalf of the defendant. He said that he felt a little embarrassment arising from a desire

to abstain from any endeavor to interfere with a legitimate exercise of authority by die Court, while on the other hand ha wished to av-fid even the semblance of relinquishing what be hoped to show were public rights not to bo jeopardised on any grounds whatever, either p ivate or professional. An apical had been made by Mr Driver to the 'behest and most irresponsible power the Supreme Court possess d— viz., the power of c nmnitt.il for contempt. He did that he was entitled to presume, as a suitor whom ca e was prejudic d by some wrongful act, and he was also entitled to presume that he had upon his affidavits pointed out to the Court what was the issue and how it had been jeopardised ; and how the fair trial of it has been interferred with. The charge being a grave one, Mr Heuiingham had a right to ho informed of the pr 'cisc nature of his offence. He ought not co have been left in the dark on that matter. r he rule, instead of giving an exact statement, described ihe offence in these words—- ‘ The contempt committed by him (Hen ningham) as disclosed and alleged in the itli lavits of James Macssey.ind Edward Thomas Collinson.” By the rule the defendant had been left t<> gather the nature of this offence from the affidavits, as best he may ; and he {VI r Barton) submitted that chis general reference to affidavits was insufficient, and especially objectionable when copies had not been served. But presuming the general reference to affidavits sufficient, what did they show ? They simply set out the article, a letter reprinted from the Mount Ida Chronicle, and an editorial statement of Mr Heniiingham’s respectfully declining at that stage all public aid and subscriptions and giving his reasons for so declining. Mr Macassey, in his affidavit, made the g ueral statement that these matters and things were in his judgment calculated to embarrass the prosecution. He (Mr Barton) was put to defend every line an 1 every word ■ >f the artic e, letter and statements hut he wasn't to hi who Mr Driver was or what was ihe issue to he tiled. He happened to know that Mr Driver was not a party to any prosecution, not even a witness —one John Maclean was the prosecutor. He was left in the dark as to the issue that w..s alleged to be prejudiced from anything that appeared upon the affidavits, which took for granted that there was some issue pending in the Court between Mr Driver and Mr Henningham But the affi davits showe-I distinctly that at the time i f the publication of the article, no issue was pending for trial before the Court, for the letter of Mr Macassey set out in the affidavit distinctly declared that no indictment, would he preferred at the only sittings at which Mr Henningham was bound over to appear ; and after appearing at which he was free to leave the country. It was true the letter stated that Mr Driver intended to prefer some indictment at the December sittings, buf. Mr Heuningh m was not bound to stay in New Zea'and till Mr Driver chose to C'lmmenoe a pr 'Sedition by indictment. He submitted as technical object ons to the rule—lst. That Mr Dryer had no locus standi, he having failed to show that he was a suitor in the Court. Her Majesty the Queen, when her rerresentative pr fers an indictment, is the suitor, Mr Driver was in fact not a prosecutor or a witness. 2nd. That th rule did n< t point out the contempt with which he stood charged. 3rd. That the affidavits did not show what were the issues whkb the publications were calculated to emharras; hut they showed that there was no issue in whi hj Mr Henningham. would be concerned except at some future time in some future prosecution, Having called attention to those preliminary objections, he would enter upon the defence of his client’s publications. He would defend no particular passage, her cause no particular passages were singled outHe should defend them in the one aspect of an allegt d contempt, and in their supposed hearing upon some supposed pending issue iu a presumed existing prosecution. He respectfully submitted that the publications by Mr Henningham in no way came within any of the mischiefs contemplated by the Courts in the cases cited on the other side, in applyfor the rule nisi. No improper attempt, had been made by Mr Henningham to influence the decidon upon any issue pending in the case. Pie proceeded to argue that the Court could not interfere, because no case was before it. Could it he pretended, he asked, that because a private prosecutor of his ow mere motion, and without the authority of the Crown, or the leave of the Court had initiated in an inferior court the proceedings preliminary to a prosecution in the Supreme Court which proceedings he laid down on the threshold of the Court and endeavored to keep alive for an indefinite time—would it be presumed, he asked, that by the mere fact of this commencement of an enquiry, Mr Driver and Mr Macand ew could utterly silence for an indefiiuite thus the press of the Colony and prevent all comment or even allusion to a matter of the highest public interest andfimportance. Had they power to p ohihit all discu-sion so long as they could hold up before the Court the 2)hantom of a prosec-ith n ? When a matter was bnug‘ t to light which seemed to affect the whole administration of government and justice, and which involved the charact r and i üblic acts of men in the highest public p sition, was it to be tolerated that the machinery of the Court should be used by them to enforce universal silence for a period to be determined by the suspected parties themselv. s ? When a letter was published tending to show that corruption had influenced the administration of Government in this Province, was the Court to be asked to take up the position of shielding from enquiry all who may be implicated ? Such was the position taken up hv the English Courts. The English press di cussed widiout hindrance all matters of great public i terest, whether pending before the Court or not. In prqof of this he referred his hon >ur to the comments of the English press on theQverend(Gurney case (his Honor said that he could not take judical notices of the papers). What Mr Henningham did, was simply this.—He had stated in the do iug number of the journal that an attempt had been made to postpone the prosecution. This was true, and it was the assertion of Mr Driver’s solicitor, and if the assertion was not a contempt, it < repetition was not Mr Henningham’s contempt Mr Henningham also stated that this threatened postponement had caused the stoppage of his paper and credit, which was true but were it false it had nothing to say to the merits of the prosecut on. If it were urged that this statement amounted to contempt, inasmuch as it was a sL tumult that the postponement was an abuse of the process of the Court, then he ausw r d, Ist, that is not a question iu issue in any case, and, secondly it was an abuse of the process of the Court, and one which the Court, in the guarded language which became a Court, had

declared to be a hardship. He Hen referred at some length to the prosecution, alleging tha*-. it was a mere pretence to crush the defendant. Mr Macassey replied at considerable length, urging that the effect of the article was to prejudice the prosecution, and create sympathy for the defendant, and was therefore a contempt. He did not pr’ss for a severe punishment; but should his Honor consider it a contempt, that the rule should he made absolute with costs. His Honor reserved judgment. The Court then adjourned.