SUPREME COURT.
This Day. IN BANCO. • (Before Mr Justice Ward.) BOOKLESS V. PACK HAM. His Honor gave his decision as to the other points raised by counsel for the respondent, and to which he had not referred in his previous judgment. He now held that the cases cited by counsel for the respondent were not applicable. This decision does not affect the decision given on the previous occasion, REGINA V. HENNINGHAM. His Honor delivered judgment in this case as follows : In this case a rule had been obtained by Mr Macasscy, counsel for Mr Driver, calling on Mr Henningham to show cause why an attachment should not be issued for contempt of Court, on the ground that subsequent to Mr Henuinghani’s committal, ami while the prosecution was pending, Mr Henningham published a cert dn article iu his newspaper, the Echo, commenting on the case, which was calculated to pervert the course of justice. It was contended by MiBarton that the rule should be discharged on the following grounds Firstly, that the rule did not specifically point out the alleged contempt; secondly, that Mr Driver had no locus standi; and thiicily, that there was no issue before the Court. Those of the cases cited by Mr Barton, which were in point, referred to certain specific rules which were prescribed, setting forth the rule itself and the grounds upon which such rule was granted; hut those specific rules do not. refer to cases of contempt. Bat as the form in question had been previously sanctioned by the Court, he must presume it to he sufficient in the present case. Respecting the question of locus slandi, he was of opinion that contempt of Court in a matter relating to criminal proceedings might be brought before the Court by anyone, whether personally interested or not. With regard to the third ground of objection, the New South Wales case—Ho veil v. riteele—showed that subsequent to the committal of a person for trial, the publication of articles more or less calculated to bias the minds of cither the Court or jury at the coming trial was a contempt. Lord R-milly had held that “the principle is quite established in all those cases that no person must do anything to pervert the source of justice orthe proper flow of justice —in fact, they ought not to make any publication or to write anything which would induce the Court, or which might possibly induce the Court or the jury to try the matter to come to any conclusion other than that which is to be derived from the evidence in the case between the parties, and certainly they ought not to prejudice the minds of the public befoiehand by mentioning the circumstances relating to the case.” There could be no doubt that the article in the Echo constituted a contempt of Court, but, in deciding the penalty, the peculiar circumstances or the ease should be taken into consideration Mr Henningham had received notice from Mr Macassey that it was not intended to prefer an indictment against him at the sessions then coming on. No doubt the proceedings were pending until the defendant was discharged for want of prosecution ; but with the knowledge that he would be so discharged, and that no issue iu the case would come before the Court, it must be taken the repetition of the offence was a minimum. The article was a foolish one, both as a contempt of Court, and also on the ground that in the event of another indictment being pre-
ferred asraimt Mr Henningham in respect t.) the original libel, any subsequent publication might be given as proof of malice. He thought that the justice of the case would be fully met by due submission being made and an apology for the contempt of which the defendant, had been guilty being given, cither-personally or by counsel. If such submission and apology were made, the rule would be discharged. Mr Barton stated that Mr Henningham had no intention of offering tire slightest disrespect to the Court ; neither bad he any desire to intentionally pervert the course of justice. Mr Henningbam, through him or personally, if his Honor ro desired, wished to apoloyi.se for the contempt. The Judge : I receive the apology, and the rule wi'l bo discharged.
Mr Maca-scy submitted that the only course consistent with all the previous proceedings was, that the defendant should be called upon to pay the costs.
His Honor said that the circumstances of the case were peculiar, and he scarcely thought that ho should be justified in inflicting costs upon the defendant. Air Barton asked his Honor if be would state whether or not the prosecution was at an end. His Honor observed that Mr Barton was entirely out of place in asking the question. Mr Barton desired to know if the public press was now at liberty to comment on the case.
The Judge : As a matter of course ; as there is nothing before the Court. Mr Heuuingham was discharged for want of prosecution, and the whole proceedings have fallen to the ground. But, as I have already stated, if hereafter the prosecutor should prefer an indictment, any subsequent reference to the matter may be given as evidence in proof of malice. But, -Mr B rton, if you were to ask me whether the publication of an article now, commenting on the case, was a contempt, I should decidedly say no. CRAW,SHAW AND ANOTHER V. THE MAYOR AND CORPORATION OF PORT CHALMsKS. On the application of Mr Macassey, a rule nisi calling upon the defendants to show cause why the rule already granted should not be set aside, was granted. mTNTOSH V. FRANCIS. This was an argument on demurrer. The d- murrer was allowed, leave to amend being given on payment of costs, and conditionally that the trial should take place at the next civil sittings of the Supreme Court at Invercargill. Mr Macassey was heard in support of the demurrer, and Mr Kenyon against it. The Court then adjourned.
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Evening Star, Volume VII, Issue 1998, 30 September 1869, Page 2
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1,006SUPREME COURT. Evening Star, Volume VII, Issue 1998, 30 September 1869, Page 2
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