A LIBEL CASE.

Evening Star, Issue 4271, 3 November 1876, Page 4

A LIBEL CASE.

After a variety of preliminary flourishes, the great libel case of Regina v. Smith has eome to an issue. Briefly stated, the ciraumstances out of which the action arose are as follow:—Some time ago a number of letters appeared in the ' Advertiser' on the subject of the administration of justice in South Australia. These were suggested by the fact that Mr H. E. Downer, the commissioner of insolvency and presiding magistrate of the local court, has three brothers—all lawyers—two of whom practice in the courts, over which h"e~presides, and by the impression that he was unduly biased in their favor when they appeared before him. Two of the letters signed "V." levelled such serious charges of nepotism, , and entering into a "family compact" against Mr Downer, that he felt bound to take notice of them. He instructed his solicitor to demand the name of the author, who turned out to be no less I a personage than Mr Villeneuve Smith, for- j merry of Melbourne, but more latterly of the Northern Territory. The proceedings were initiated in a novel sort of way. As a rule, the preliminary hearing in libel cases takes place in the Police Court, whence they are ordered on to the higher tribunal. In this instance, however, application was made direct to the Supreme Court to file a criminal information, and this being granted, the action was brought to a trial on Tuesday and Wednesday last. The Court was thronged, all the lawyers of the city being Sesent. Mr Ingleby, Q.C., and Mr ann, Q.C., appeared for the Crown, who prosecuted, while Mr Smith conducted his own defence, with Mr Boucaut, Q.C., and Mr Pater to assist him in arguing any law points that might arise. There was a preliminary challenge to the array on two points—first, that the Master of the Court, who was prosecuting, was also the Deputy-Sheriff, and therefore had summoned a jury to try his own cause; and second, that the jury, having been summoned to hear civil causes, was not the jury ' that defendant was entitled to have to try a criminal charge against him; but Mr Stow, who was the presiding judge, over-ruled both, objections. The passages on which the alleged libel was chiefly based are as follow:—From the first letter—"The gist of the insinuations referred to is that the special magistrate indicated is frequently in fiuenced in his decisions, both in the local court and in another court in which he presides, by feelings of nepotism rather than by the law applicated to or the merits of the • case. It is only due to him that I should say that during my experience I have seen nothing to warrant the allegation." And from the second letter :—" But, sir, the insinuations I have referred to, which are and have been reiterated by many in and out of the legal profession and in Parliament, would lead to the supposition that there has been evidence for years past of 'appearances'— to use Lord Campbell's term—indicating the existence of a family compact for indirectly participating in the profits of a practice in the two courts referred to, the success and degree of emolument of which practice must depend in no inconsiderable measure on the judicial decisions of one of the parties to the assumed compact." Mr Mann, Q.C., for the prosecution, contended that the libels were a tissue of vile imputations. SSHe said the construction placed upon the letters—and he believed it was the true construction —was that Mr Downer had so far departed from his high' functions and his oath as a judge as not only to corruptly decide in favor of his brothers, but also that he had done so with the view of increasing the profits of a business in which he was interested. The only evidence brought forward in support of the prosecution was the acknowledgment by Mr Smith that he was the writer of the letters, and that Mr H. E. Downer, the commissioner of insolvency and local court magistrate, was the gentleman referred to in them. Mr Smith then addressed the jury on behalf of himself, his speech spreading over two days. He sought to show that he was not actuated by malice; that whathe had written was in the way of fair comment, and in the interests of justice; and that by a colloquial corruption stronger meanings had been attached to the words "nepotism" and "compact" than he intended them to bear, and than the best authorities warranted. He quoted from Webster and *e Epistles of St. Paul to prove that nothing wrong was imputed by the term nepotism unless it were distorted, and with reference to the word "compact," he appealed to Shakspeare, who, he said, used the term fourteen times in the sense in which he had used it, and only once as a sort of compact or intentional agreement. He solemnly assured the jury that he never meant the word to imply that there had been any aetive participation by the prosecutor in the profits of his brothers' business. Mr Smith, at the close of his speech, called evidence to show that the rumors concerning Mr Commissioner Downer's being influenced by his brothers were matters of public notoriety. Mr Ingleby, Q.C , then replied, and Judge Stow summed up m a masterly address to the jury. In refere?°&tesm # word," nepotism " employed in the Honor remarked that the defendant "had gone from Timothy to the dictionary and Shakspeare to show what the signification of that word was. He (the learned judge) observed, however, that in his lengthy address, much of which was eloquent and impassioned, never once did he come'to-a point. He took the word > without regard to its context, and by twisting it round and round tried to show that nepotism did not mean nepotism. Nepotism in the passage in the letter meant that the prosecutor had been unduly biased by the influence of his brothers '» And again:-"The defendant had been most inconsistent in his efforts to explain the meaning of the words nepotism and compact. Applying their own knowledge of the English language and their own common sense to the words, the jury, he thought, must say that they contained an imputation. The- defendant f took/ihe. .words irom .their surroundings and the context, and then called attention to their meaning—a meaning of Which he (the learned judge) felt they could hot be susceptible; and, as he had pointed out when the defendant was seeking to explain the meaning of the words complained of, people, in reading a newspaper or any publication, did not usually go to the dictionary or any other authority to study the signification of certain words that might be used." "Looking," the learned judge added, "at the letters as they stood, he thought they went beyond the fact that there was a widespread feeling that the prosecutor was unduly influenced by his brothers appearing before him, and therefore the jury were called upon to decide whether the defendant was actuated by malice in writing the first letter or second letter, or both of them." The ' jury were absent from the Court for the short space of twenty minutes, and then returned a verdict of not guilty on the first letter, and guilty on the second letter On tie. following day Mr Smith thought to , upset the finding of the jury on the ground that during part of the judge's summing up he had been locked outside the Court, but the point was overruled, with liberty to lay it before ijhe full Bench. The full Court recused to grant a rule nisi for a new trial to the defendant "m the case of Kegina v. Smith. The defendant intends to apply for leave to appeal to the Privy Council. >