SUPREME COURT.

Evening Star, Volume VIII, Issue 2502, 22 February 1871, Page 2

SUPREME COURT.

IN BANCO. Tins Day. (Before Mr Justice Chapman.) THE TELEGRAM I.ITIEL CASE. Mr Macacsey applied for an injunction restraining Mr Fulton, R. M,, from proceeding further in the case Regina v. Barton. Mr Macassey contended that while the information itself need [not supply the. rc-

quirements of an indictment there must be such certainty in it as to define an offence in law, an I as to give the defendant a fair opportunity of knowing what charge he was called upon to meet. That opinion was espresso 1 by his Honor and Mr Justice Richmond in kegina v. Strode. In that case the words upon which perjury was assigned were s*t forth, but upon the information in the present case it was'obviously impossible for the defendant to know what was the specific charge he was called upm to meet. His Honor : I concede lids much. If Mr Ba ton had not attended upon the summons, and had the magistrate nothing more to go upon, the information would scarcely allow of the framing of a warrant which would hold water. Supposing Mr Barton had been captured, it would have been scarcely safe for the magistrate to have committed him upon the information. Mr Mncassey asked if that did not really concede the whole of his argument. His Honor : But Mr Barton has appeared to these summonses.

Mr Macassey: Not personally. Inasmuch as under the information Mr Barton c -.-dd nob he committed for contempt, the witnesses might decline to give any information upon oath regarding the article in question.

His Honor: The information describes in general language what is an offence, that is to say, it asserts that a certain false, sc mdalons "and defamatory libel had been published of and concerning the Government of New Zealand. It is an offence to publish a libel of and concerning the Government or anybody. The information certainly does not give the particulars of the libel. _ The only question is whether there is sufficient in the i formation which may be the foundation of other proceedings. Mr Macassey submitted that the information should he as specific in its character as a declaration in a civil action. As it was, it would be. impossible for the Court, when reviewing the proceedings of* the Magistrate to know whether or not it formed the ground work for the proceedings—information which the Court could only decide by the article itself being set forth. 3 here were many reasons why the information sho dd contain all particulars, so as to make it like a declaration or indictment, hold water. Under the Justices of the Foace Act, the justices presiding at the preliminary enquiry were bound to take evidence on the defendant’s behalf. How could the d-. fondant know noon this information upon what points evidence would be repaired ? Supp -sing lie desired to establish justification, he might bring a number of witnesses to establish it, and when he called them, find ho had misapprehended the nature of the prosecution. The second ground w.as that the informal ion had been laid by as 1 ranger. He considered it impertinence in the last degree for a stranger, as in this case, to thrust himself “ between the aggrieved party and the ngressor. He contended libel was one of those cases in which a stranger could not move the law, Mr Brent, who laid the information, was in no way connected with the Government; be was merely a clerk in Mr Haggitt’s office. That circumstance raised an important question—could Mr Brent legally compound the present prosecution? The real prosecutor in such a proceeding as the present ought, he apprehended, to have it in bis power to do so if,he pleased. Besides, there was nothing to show that he had been authorised by the Government to institute these proceedings. He further submitted there could be no such, thing as a libel upon the Government. The Government did not mean simply its Execut ve officers, but included the whole machinery by which the public business of the Colony was carried on, from the Queen downwards. The article charged not the Government, but a particular department, with violating the recresy of that department. His Honor : I think there is something in the distinction. But the charge, if I recollect aright, whilst it was against a department. involved a charge against some mem her of the Government of dealing improperly With the department, Mr JV acassey thought it was so. His Honor : In that case he would he a party aggrieved, and would have a right of action.

Mr Macassey : Of course. In raising these objections there was nothing to prevent the Government, by its Attorney-General, laying an indictment before the Grand or moving the Court for leave to lay an information, cither of which courses should be followed. If this prosecution faded, to whom was the defendant to look for damages for malicious prosecution ? The consequence of disinterested persons being put forward to set the law in motion would be to deprive a defendant of his remedy against substantial prosecutors, and give him, in many cases, instead a man of straw ; and such a proceeding, he submitted, the Court would not readily sanction. A rule nm Avas granted.