SUPREME COURT.

Evening Star, Issue 3497, 8 May 1874, Page 2

SUPREME COURT.

CIVIL SITTINGS. Thursday, May 8. (Before Mi Justice Chapman and a Snecial Jury.) ALLEGED LIBEL. Ah Chew, examined by Mr Smith: The signatures are copied in the same hand. Mr Bmith : Compare the book before you with book number three. Mr Barton objected to the comparison. By Mr Barton ; Witness did not write book number three, nor was he present when it was written. Mr Barton objected to book three, as Mr Macassey had nothing to do with it, Mr Smith submitted that book three was proper evidence, as it was an answer to a complaint by the plaintiff. He sought to show how it'bore upon part of the answer. Mr Stout followed, and showed that, ware the evidence excluded, no newspaper could possibly defend itself against a charge of libel. • -■ ■ ■ - . Mr Barton maintained it was inadmissible, as the writer could only justify himself by what was known at tbe time of writing the article. Mr Smith contended the materials were in existence at the time of writing the article. He read from the replication, and showed that the book number three was laid before the Commissioners with the rest of the books. His Honor thought the evidence was irrelevant without connecting Mr Macassey with it;. He looked over the article last evening and this morning, and unless the jury concluded Mr Macassey was charged with concocting it, which he was by no means certain they would, he could only consider the evidence inadmissible. By Mr Barton ; The petition was December 12 of the present Emperor’s reign. Mr Smith reminded bis Honor tbat the evidence of John Alloo in reference to the L2OO was t@ be taken in evidence. By the Foreman of the Jury : On the book No. 1 was “ A book for tne collection of money by many who deliberated. ” Mr Smith said be would take tbe exceptional course of asking the Court that he might j e-open the questions of the admissi bility of the documentary evidence, as he desired. The case was a very heavy one, and the expenses would be large, and. in the event of a second trial, enormous ; therefore,if he could show tbat his Honor was erroneous in his ruling, he (Mr Smith) thought he, ia the interests of his client, shoukTbe allowed. Mr Barton several times interrupted the learne i counsel, until His Honor sa d he should hear Mr Smith. Mr Smith ; I am going to pursue a somewhat unusual course. Your Honor will give me credit for the great respect I Jaave given to your ruling during the trial But the importance to my client’s case renders it necessary that I should re-open the question of the evidence taken before the commis sioucra. The question was decided before Mr Gillies gave his evidence that as soon as documentary evidence was laid ,<?n the table of the Provincial Council it became public property. Air Barton : It is not an exceptional case, excepting that it treated Mr Macassey very severely. Mr Smith :.'I claim the'right of addressing ohe Court. I thiuk my learned friend is the last person to complain of irregularity, lor I thinic my learned friend repeats his remarks tiine after time. J api not claiming anything unusual in this Court. His Honor knows that this case involves enormous expenses. A second trial would be a great expense, and if therefore I can show that in justice to the defendant the evidence ought to be admitted, your Hofaor will, I am sure, be prepared to listen to me. His Honor: I will hear you. Mr Bmith : I will call your Honor’s attention to that part of the article set forth in the declaration to which I contend tbe evidence is specially-applicable. The passage commences : The Commissioners appointed by the Council .entirely exonerate Beetham from the charges brought against him. ” Secondly, the evidence of an expert. 1 have also to call your Honors attention to a statement in the plea of justification to this effect. His Honor : The report is admitted on record, and the evidence also. Mr Bmith : The evidence is part of that on which the article is founded, and is also referred to in sfie article read. His Honor: The evidence of the witnesses ? Mr Bmith : Yes ; everything appended to the report; the viva voce evidence fcajken dowh by the commissioners ; the documents attached to the report; all that evidence with which the commissioners accompany repor,-, was .subsequently presented to the Council and ordered to lie on the table, brom that moment, the Speaker tells us, it became public property, open t) tho inspecti n of the Press or any other person who chose to look at jb. Then I submit that in- 1 asinuch as those materia s presented, form a portion of the foimation on which the ancle rests, and upon which comments were made, he defendant ought to be allowed to bring those materials into Court to prove justifies tion and to prove the propriety of the Gamm ®pt9 made. Unless the materials on which the comments are male are alowffd to be used, the propriety of them cannot be properly judged of by. u ,fc appears to me that this is so abundantly clear that it is almost wasting time and labor to make it more so. I submit chat the case of Wason v, Walter, in spirit, the same as the present case, as l'he^^ n ttep-, Q B.nch. vol 4, p. 73. to be th.® proceedings was allowed was completefiU^ olloo - fc hat ruling by the Court, which,

as I stated yesterday, placed the publicati tv of the proceedings of a deliberative body like the House of Lords upon very intelligible grounds, that the balance of convenience is on the side of publicity, even although such information may reflect most severely on individuals. IV ow I do respectfully submit that the principle on which Wason and Walter was decided, applies expressly to the present case. he materials on which the newspaper comflßo lea<iiu g article in the ‘ Times ’ were rounded, were words spoken in debate, therefore, in order to justify the comments, it was necessary in that case to show what bad been said in that debate ; namely, to produce the report of that debate and prove us correctness. I submit that is the same thing in, principle that I propose to do here. 1 he writer of this article takes for the foundation of his comments what is public property —namely, the report of the Commissioners and-the evidence connected with it. Un th s the article is based, and the materials are not read, as in Wason and Walter, but written, and thus the circumstances are in favor of the defendant. His Honor : Excepting that it is tbe erideuce of witnesses who may be called. Mr Bmith : One of the documents is a translation from Victoria. His Honor to Mr Barton : You acknowledge that yourself ? Mr Bmith : Some of the documents, of which Mr Hodge’s translation is one, were obtained by the Provincial Government and afterwards appended to the Commissioners’ report, and together with other evidence laid on the table of the Provincial Council. Your Houer sees that it is not the question of the truth,or falsehood of what these documents contained that is the issue here to day. It is the question whether or not any journalist who wrote an article, or gave insertion to one in his paper, had materials before him which justified the comments complained of. A portion of those materials consisted of -documents laid on the table of the Provincial Council accompanying the Commissioners’ Report, [ submit, therefore, that there is no distinction whatever in principle justifying comments in the ‘ Times,’ by reference to reports, as was done in the ease of Wason v. Walter, on the ground that the debate bad taken place in the House of Lo r ds, which it was of public importance should be commented on by the public journals. And what is the present case ? The journalist, in the discharge of his duty, comments on a matter before a deliberative body which concerns the public conduct of a public man. To show the consequences of your Honor’s ruling, if persisted in, I will put this case : supposing very serious malversation in his office had been urged against a public servant, and that those charges were conveyed in, voluminous documents which the Executive Government had allowed to lie on the Table of tbe Legislature or tbe Provincial Council of this Province, Are the newspapers to refrain from drawing public attention to those charges, or from insisting upon their being investigated, or making such proper comments upon the conduct of the official in question, as disclosed by the documentary evidence, on the ground taken by ray learned friend that the official was not present when the documentary evidence'was talked about ? Or, take the case my learned friend, Mr Stout, put so aptly yesterday. Suppose a long correspondence to have taken place between the Superintendent and the Immigration Agent at dome. In the course of that correspondence, the Superintendent thinks he has cause to bring some serious charges against tbat officer for having neglected his duty. Suppose the correspondence is laid on the table of the House, that the pleasure of the House may be ascertained on such a matter. Is it to be said that the public journalist is to refrain from taking any interest whatever in this correspondence, in. its bearing upon the conduct of the immigration agent, because he was 16,000 miles away, and was pot present when the letters were read ? His Honor : As to tbe matter of comment, the only question for the jury is whether it is fair. That does not include any state meat of fact, there is a distinction between assertion of fact and mere comment, Mr bmith ; Of ae there i«, but a newspaper ought to be entitled to show there was a foundation for the comments which have appeared in it How is a journalist to show that in such a case as this, where these comments arose and are made in respect of matter which becomes public through the instrumentality of the Provincial Council ? Why should the jury in this case be the only portion of the public who may not see those documents on which the journalist professes to 'have founded the article complained of ? Why should they be excluded ? I maintain they ought to know, in order to put themselves in the position occupied by the journalist when he penned the article complained of. I will assume, for the purpose of this, argument, that the writer was acquainted with the purport of the documents appended to the commissioner’s report, and it was on the faith of and in reliance oh its accuracy that that part of the article which has that foundation was based. 1 therefore very respectfully, and, at the same time confidently submit that to shut out this evidence from the jury is really to deprive the defendant of that which by Jaw he is entitled to, to show that he \yas fully justified in making the comments. His Hpnor: I am inclined to think the comments are perfectly justifiable, were the statements true. Mr bmith : But in order to allow us to shoiv to the jury that the comments are'fair, the jury should be put in possession of the imfurmation, and also to show they are justifiable. ' y * His Honor ; The whole tenor of the article shows that if the foundation is true, the comments are by no means too strong. Mr Bmith: But unless .those documents are allowed to go before the jury, they cannot judge. His Honor; You cannot prove facts affecting the plaintiff unless you c ill witnesses. Mr _ Snij fch: What I subedit is this: we have the same fight to lay before the jury the materials bn which the article was partly based, as the de eadant had in the ease of Wason v. Walter. The propriety of the comments which form the subject of the Second count could not possibly be judged of by a jury unless they had the report of the debate on which the article was founded. I submit it would have been as reasonable for the Chief-Justice, who presided at that trial to shut out all the evidence of the report on the debate, as to .shut out the documentary evidence on which this article ic partly founded. Your Honor recollects in the conrag of the debate several noble lords expressed themselves in terms of the strongest animadversion, and the article in the * Times’ comment-, on that very language—upon the whole of the debate —and therefore the question of the truth or falsehood was pot faised in the action. It was not the issue, i fie theory of the defence, which was supported ‘by tjie judgment of the Court, was From the fact that sugh a debate took place in the House of Lords, that certain noble lords expressed themselves in sijch and such terms ; then ; comments mad.e by the newspaper writer, so : long as they did. nnt e.xceed fair priticlam, were fully justified. We ask to do what is precisely similar. Certain comments wer made in this article pi’ofessing to be founded on information supplied by documentary evidence. Therefore 1 submit the jury should see that evidence. ’ Mr Btout : t here is only one ground which has not been mentioned, and that is the document, ought to he placed before the jury in

mitigation of damages. It is clearly laid down iu Addison on Bills, and Taylor, 153 In that instance it was pleaded that he copied the article from another newspaper. ’ his put this case in the worst possible Ugbt for the defendant; that is supposing the commissioners’ report and the documents appended to it are libels on Mr Macassey. The case nearest in kind to this is the case of Charlton v. Walton, 6, Carry and Rye, 085 and the marginal note. Now that case is the nearest to this because of the simi larity in this respect. The report and evidence before the commissioners form the foundation of this article. Excepting the proceedings that took place in the Provincial Council, this case differs from that against Walter, as the newspaper did not comment, bnt published the report, and that went in mitigation of damages. His Hmor ; Yes, that it was a libel publish'd by somebody else. ■ t htoafc ; 1 here is a’so the case of Sanders v. Mills in 6, Bingham’s reports. His Honor : I think I remember one case that it was allowed that it had appeared previously in other papers. Mr Stout: 1 submit that in this case, to put it strongly for the plaintiff, the commissioners’ report and the documents appended to the report are libels on Mr Macasrey, even supposing them to be admissible to be given in evidence, the defendant was not the original publishers of the libel. His Honor : it is plain he was nob, for one paper was stated by the Star to contain aa article quoted—l think the ‘Arrow Observer.’ Mr Stout: On this ground we say the whole of the papers, laid on the Provincial Council table are admissible to show that, if Mr Macassey was libelled, it was not first by Mr Bell. His Honor ; That appears on the face of the declaration. It was the ‘ Arrow Observer, ’ Mr Stout: The jury cannot see from the article itself how much is original and how much is borrowed. I put it hypothetically: suppose the first paragraph in this pointed to this fact, that one of the Chinese met Mr Macassey iu front of Mr Powell’s stables ; that Mr Macassey was the first to mention the petition—he did not mention it to Mr Macassey; tint in fact this evidence was given before the Commission. His Honor ; Call a witness to prove that. That is necessary to make what witnesses hear available. They must be called. Mr dtout: .Suppose the witness when called into Court denied every word he said before the Commissioners. His Honor : You cau call evidence to contradict him. Mr btout: If the witnesses have libelled Mr Macassey befera the Commissioners, the defendant can plead he was not the originator of the libel. The jury must have some evidence of that. I cannot see the slightest difference in principle between a thing written and printed. Suppose all this evidence and the Commissioners’ report had been printed in the ‘ Daily Times,’ and the 'tar commented on what was printed in the ‘ Times’; could it he said on authority of the case cited that what the ‘ Times’ published would nob given in evidence in mitigation of damages. There can be no distinction between publishing in a newspapeir and in Mr Gillies’s handwriting. His Honor: Lying on the table of the House is not publication. Mr -tout: If the documents were banded to another person, with permission to read them, that is publication ; and if that is publication His Honor: If anybody takes them it is publication. Mr Btout : Mr Bell took them, and therefore he was not the original publisher. His Honor: I will take evidence to show he was not the original publisher, but I cannot admit these documents. . Mr Htout: Your Honor will see we are not allowed to put in the petition received from Victoria, and we have not beqn allowed to show we have only copied from another paper. His Honor : You can put Mr Bell iu the box to prove that. Mr Btout: Your Honor will see that the translations are set out as libellous, On that ground there can be no distinction between publ cation iu a newspaper and publication by Mr Gillies, and therefore it is proper evidence in mitigation of damages. Mr Barton : The point of addressing the Court has been ruled against mo by a monstrous irregularity which I shall take advantage of. His Honor; My opinion is unaltered. This evidence is not admissible. Part of it is evidence of witnesses who are capable of being called. As to the evidence in mitigation of damages, this, too, taken from the paper, you can give. evidence simply that it was taken from other journals. I am certain these documents are not admissible, aa the witnesses can be called. Mr Smith: We can put in the Victorian interpretation. His Honor: It is admitted that this first article was copied from the * Arrow Observer.’ Mr Barton : That is admitted. His Honor : About the other—the longer one, you characterize that as the Victorian translation. Mr Barton: I do not recollect agreeing to that. His Honor: I think there can be no doubt of it. . ' After some further discussion, John Alloo, Government Interpreter, was subpoenaed by the plaintiff’s solicitor. He remeinbe ed the election at Queenstown, and meeting Mr Macassey at Powell’s Hotel. He said “ Good morning,” and sjiook hands with him. Mr Macassey said he had cqme up two or three days before. The Chinamen had petitioned to put Mr Beetham out two years before. Mr Macassey said he knew nothing about it. He did not say anything about a petition that Quan Hay had been getting up. He had never made a, different statement, not even before the commissioners. The signature shown to him was his. Mr Gillies wrote down his statement. By Mr Barton: He came down with Mr Wesley Turton, and was telegraphed to by Mr Kettle about his expenses. Mr Wesley Turton asked him to come down with them altogether. Mr Barton wanted him to go by Invercargill, and Mr Wesley Turton asked him to come down with him. They came down by different coaches. By the jury : He could not read all the document. There was nothing about the collection. It was on the top, “ Any one that pleases may sign his name.” By Mr Barton: He was not called by Mr Beetham to give evidence for him Mr rurton called him, and Mr Turton cross-examined him. Ho heard Chinamen complain since against him, and since against Mr Beetham about two years before. I Ja Tu d a , b °’' t , hi “’ and k “kcd up a row because they lost their cases. Mr Smith ; That will do, Mr John Allno. congratulate fcfig Government bn having such an interpreter. 1 ’ 6 Mr Maitlaqd, recalled ; The last witness appeared before the commissioners. John Alloo on that occasion gave different evidence from what he gave to-day, when he said he never spoke to Mr Managsey about' the petition Quan Hay was concerned in. G. K. Turton said the present was the first action in which he had been employed as defendant’s solictor. He declined to say whether he wag solicitor to Charles Dudley Ward, J

Mr Barton argued that an attorney might So called to prove the real defendant. Mr Smith asked that the jury might withdraw daring the argument. Mr Barton maintained he had' a right to call t he attorney to identify the-hand-writing of the party, or to state by whom he was retained. (Lewis v. Cox, Jurist 1865, p. 263.) An attorney had no ri ;ht to withhold the name of the person for whom he was acting. (Brown v. Waters, Jurist 1865, p. 235.) It was decdded an attorney had a right to answer the question. In * Culling’s Law of Attorneys ’ it was said he might generally be compelled to declare by whom he was retained in the action. Mr Smith submitted not one of the cases cited bore on the present case. Mr Tnrton had stated he was solicitor to the defendant. In reply to bis Honor witness said Mr Bell, the defendant, employed him. M r Barton asked who drew the pleas. ■ Mr Smith objected to an answer being given, as the subject was privileged. - Mr Barton submitted he was entitled to ask the question ta get at the real defendant. . hlr Fmith considered the question one of privilege and would not waste the time of the Court by replying. His Honor ruled the matter being between attorney and client was privileged. [The rest of our report is held over.] BY ELECTRIC TELEGRAPH. Wellington, May 7. Mr G-illon, the editor of the 1 Evening Post,’ was last night entertained at a dinner, and presented with a testimonial and a'purse of sovereigns by the publicans of Wellington in recognition of his journalistic services. The passenger traffic, receipts of the Hutfc Railway, from the 14th to the 30th April inclusive, .were over L3OO. It is stated that Mr Lemon, superintendent of telegraph, is perfecting a system of his own for sending two messages simultaneously upon one wire. The experiment has been successfully tried between Wellington and Napier. Messrs Steele and Keogh have commenced an action for damages for libel against the ‘ Evening Tribune.’ e , , , Nasbby, May 8. Several stacks on Mr Preston’s station at the Kyeburn were destroyed last night by fire. Incendiarism is alleged to be the cause.