SUPREME COURT.

Globe, Volume XXI, Issue 1764, 15 October 1879, Page 2

SUPREME COURT.

CIVIL SITTINGS. Wednesday, October 15. [Before His Honor Mr Justice Johnston. | The civil sittings of the Supremo Court was resumed at 10 a.m. BARKER V REEVES AND OTHERS. For the plaintiff Mr Joynt, with him Mr Holmes. For the defendants, Mr George Harper. The following gentlemen were sworn as a special jury:—Messrs B. W. Mountfort, C. N. Bell, H. B. Webb, C. E. Tribe, Thos. Cano, W. Chrystall, George Taylor, J.P. Jameson, F. A. Bishop, J. Anderson, J. Henderson, G. F. Bitao.

Mr John Anderson wna chosen foreman of the jury.

This was an action in which Charles Frederick Barker, auctioneer, &c.. of Christchurch, was plaintiff, and William Eseves, William John Warburton Hamilton, and Thomas William Maude were defendants. The defendants are registered proprietors of the “ Lyttelton Times” newspaper, and the plaintiff sought to recover damages from them for the publication, on 12th July, of an alleged libel on him in that paper, commenting on the case of Eegina v Greenwood, in which the plaintiff was prosecutor. For this the plaintiff sought to recover the sum of .£3OOO damages. The plea to the declaration of the plaintiff was a general denial of all the material allegations. Mr Holmes opened the case for the plaintiff, and read the declaration, setting forth the libel complained of.

_ His Honor pointed out that the declaration did not set out with sufficient clearness the connection of the plaintiff with the libel. Mr Joynt submitted that the declaration pointed to the plaintiff. The fallowing issues were sent to the jury:— 1. Did the defendants, on or about the 12th day of July, 1879, falsely and maliciously print and publish of the plaintiff in a newspaper, called the “ Lyttelton Times,” published in Christchurch, in the said district the words and figures, set out in the plaintiff’s declaration ? 2. Has the plaintiff thereby been greatly injured in his reparation? 3. What damages (if any) is the plaintiff entitled to recover from the defendants in respect of the said cause of action ?

Mr Joynt followed, and said that this was an action of such solatium as they might consider the plaintiff was entitled to recover from the defendants for the publication of an article in the “ Lyttelton Times” which he alleged was defamatory of his character. The jury were well aware of the standing and position of both the plaintiff and defendants. Mr Barker had occasion to prosecute an of his for embezzlement, of which he was acquitted. The defendants through their paper had held Mr Barker up to public reprobation as having not prosecuted but persecuted his clerk. It would be for the jury to say whether it was right for newspaper proprietorst o impute to a prosecutor in a criminal case which might fail, improper motives. Mr Barker contended that the comments of the defendants in the article referred to were beyond the functions of a critic for the benefit of the public, and could not be taken to come within the grounds of fair and moderate criticism on a case before a court of public justice. It would be for the defence to show that the article complained of was a fair and moderate criticism in the interests of the public on a case before a court of law. He (Mr Joynt) should contend that the article went beyond this, and was a slander upon his client. He would read from the judgment of a learned judge on the subject to show that it was open to comment on proceedings in a court of justice. His Honor said that there was no doubt that comments could be made upon Parliamentary proceedings, but the question was whether the same priviledge extended to proceedings in a Court of justice. Mr Jovnt said that really the remarks of the learned Judge, to which he was about to refer, arose out of comments on Parliamentary proceedings, but the Court held there that comments on the proceedings in Courts of justice or on Parliamentary proceedings stood nearly on the same footing. [Quoted Stackie, pp. 200— 201. Wason r Walters, C.E., 49 8., 93, to shew the length to which public writers might comment on proceedings to entitle them to claim privilege on the ground of public interest.] They would see what the principles were that should form the comments of the defendants on the proceedings. It was for them to consider whether the expressions in the article were those of moderation, truth, reason and justice, then they would extend to the writer that privilege which the law’ laid down should bo extended to a public writer coming within these conditions. But if they thought that the writer had travelled beyond the fair bounds of the law in this matter, and had vilified Mr Barker in terms which were in themselves beyond fair and moderate criticism, then the article was a libel, and it was for them to consider what amount of damages Mr Barker was entitled to receive. He should now proceed to prove his case, which would be very short, as all that was necessary for him to do was to put in the article and prove the registered proprietors of the paper in which the article complained of had appeared. Mr Joynt put : n the certificate of proprietorship and registration of the “ Lyttelton Times,” and a copy of that paper of the 12th July, 1879. Under the Act it was not necessary for him to prove more than that the names of the printers and publishers in the imprint of the paper corresponded with those contained in the certificate put in. His Honor asked whether Mr Joynt desired the libel read.

Mr Joynt said the jury had heard it once. Perhaps it might be taken as read. Mr Harper said ho should request that the whole of the article in question should be read. He was entitled to have this done. His Honor said the request was a proper one, and the whole article would be read by the Deputy Registrar. The article was then read to the jury. Mr Joynt then called the following evidence :

James Wilkin—l am the publisher of the “ Lyttelton Times ” newspaper, and was so in July last. The circulation of the paper at that date was between 4000 and 5000. The_ circulation of the paper extends all over the civilised world, I suppose wherever the English language is spoken Cross-examined by Mr Harper—l was the publisher of the “ Lyttelton ” Times of July 9th. The paper now produced was publishedby me. It contains a report of the trial of Kegina v Greenwood in the Supreme Court Charles Frederick Barker—l am the plaintiff in this action. Xam an estate and commission agent in Christchurch. Mr Joynt—Does your reputation extend over the whole civilised globe ? Mr Harper—l think that is a question for cross-examination.

Witness—My business is an extensive one, extending beyond New Zealand. Mr Harper objected to any questions as to the extent of tho business of the plaintiff. There was no averment of the plaintiff’s business having been injured. It was merely as a man of the world.

His Honor said that be should direct the jury that they should not find damages on the ground that tho plaintiff had been injured more than as a man.

Witness—l was prosecutor in tho case of Regina v Greenwood, for embezzlement. I prosecuted him on one charge in the Supreme Court. Thera were two others in the R.M. Conrt, that is three altogether. I recognise myself as alluded to in the article in the “ Lyttelton limes.” I consider the article injurious to me. His Honor—That is for the jury. Mr Joynt—Tes, your Honor; hut I think the jury should hear what Mr {Barker thinks about it.

His Honor —I shall tell the jury, Mr Joynt, that they need take no notice whatever of Mr Barker’s opinion as to this. You see it might be that a very thin-skinned person might say that so and so was a libel.

The question was not pressed. Cross-examined by Mr Harper—l gave evidence on the prosecution of Regina v. Greenwood. Mr Joynt objected to his learned mend going into the truth or otherwise of the charge against Greenwood. His Honor said that if Mr Harper intended to prove the truth of the report upou which the article was founded there was no objection to it. Mr Joynt said what Mr Harper had to prove was the fairness of the comment. His Honor said that, not referring to this paper or this case, he might say that it was unfortunately the practice for many papers to comment upou reports which were not correct. For instance there was a case which had occurred to himself in Timaru. Ho had had occasion to use the words cni lono, and the reporter,imperfectlyhearing him, had stated that he used the word kyebosh. [Laughter.] Whereupon ths paper there came out with an article commenting on the use of improper language. The cross examination was then continued.

Witness—l have read the report of the trial in the ‘ Lyttelton Times.” It is incorrect in many respects. I do not know that X have compared it with that appearing in the other paper. Mr Harper read the report of the evidence. Witness: The evidence as to Morshead’s cheque is so reported as to imply that the cheque went forward in the ordinary w T ay of business. The report is not correct. His Honor —W hat do you mean by that. Is it not correct in what you said '( Witness—The words “ I ascertained that the cheque for -£5 5s was passed to my account” do not go far enough. His Honor—Mr Barker has said that the evidence is not correct Mr Joynt, and it is for him to show that it is not.

Witness —It is exceedingly difficult for me to say at this remote date the exact words I nseu when giving evidence. It will perhaps be as well for Mr Harper to read the whole of my evidence Mr Harper then read the of Mr Barker’s evidence as appearing in the ‘ Lyttelton Times.”

Witness—The portion which I say is most incorrect is the portion of the cross-examina-tion commencing ” I know W. A. Brown of Chortsoy.” Ido not consider that the report is a fair one of what took place. Mr Garrick put several questions which elicited replies, but they are not correctly reported. JThere are several other discrepancies! but this is the m st important. Mr Harper—l will take the words commencing “ I know W. A. Brown of Chertsey. I did not say that I should not have prosecuted unless Greenwood had acted in such a cavalier manner.”

Witness—l cannot say at this lapse of timewhat were my actual words, but I am of opinionthat this is not correct.

His Honor—But I would point out to you Mr Barker that the effect of your evidence is that this must have been fabricated by the reporter.

Mr Harper asked the witness whether he did not say that .£IOO,OOO had passed through Greenwood’s hands during the three years he had been in ILs employ. Witness—Yes; I think I did. X do not think there is any other part of the report to which I object as being utterly incorrect. Mr Harper then read the remainder of the report which had appeared in the “ Lyttelton Times.”

Witness—f have read the report carefully. I might have read the report of the Press,”' h at .1 am not sure. I know I did that in the 1 I think it is most probable that I read it or glanced through it. Ido not remember seeing any omission which would call my attention to it.

Mr Harper read the report in the “ Press ” on the cross-examination of the plaintiff, to show that the report was almost identical with that appearing in the “ Lyttelton Times.” Witness—l can point out where the diff.-rcnce in the reports are. In referring to the answer given by him to Mr Garrick the “ Press” reported as follows :

“ Mr Garrick—Did you not tell Mr W. A. Brown that, lal prisoner not treated you so cavalierly, yon would not have prosecuted him ? Witness—No, I did not say that. Mr Garrick—Did yon not say that through indignation at prisoner not keeping his appointment on April 22nd, you had placed the matter in the hands of the police. Either that or any words to that effect ?

Witness—That was part of the conversation with Mr Brown. But having found ont other discrepancies made witness more determined to act.”

The “Times” on the same subject said—“l know W. A. Brown, of Chertsey. I did not say that I should not have prosecuted had prisoner not acted in so cavalier a manner. I might have said something like it. I won’t swear to the exact words. 1 may have said that through indignation at prisoner not keeping his appointment, I put the matter in the hands of the police. That conveys more than I said. I did not say that it was entirely through that. That may have been one of my reasons. When I found ont these other discrepancies that added to my indignation. I admit that some words to that effect were part of the conversation.” He said that the Press report was likely to be the more correct of the two on tV* matter. I think it is probable that I read the reports of the case in the Magistrate’s Court.

Mr Joynt obje ted to this. There were no comments on the case in the E.M. Court. It was on the trial in the Supreme Court. Mr Harper submitted that the article dealt with the whole case in the both counts. His Honor allowed the question. This was the case for the plaintiff. Mr Harper then opened the case for the defence. The defence which he should set up was that the article was a privilcdged one, as a fair comment upon what hat taken place in the Courts of Justice. He should call evidence to show that the reports of the case in both counts was substantially correct. He shonld then submit to them that the article was a fair comment upon the reports of the proceedings. He proposed to call the editor of the paper to answer certain questions connected with the matter. Eobert Andrew Loughnau—l am the editor of the “ Lyttelton Times,” a paper published by* defendants. I have the active management of the editorial department of the paper. The defendants were not aware of the publication of this article.

Mr Joynt objected to the question. His Honor upheld the objection. There were only two questions, libel or .no b'bel, fair comment or not fair comment.

Mr Harper was only going to show that therewas no malice. However, under the circumstances he would not ask any further questions. Ho should now proceed to submit to the jury that the article was a fair comment, and that therefore it was privileged, fQuoted Wason v Walter, C.E. 4, Q, 13.] As Mr Joynt had admitted the substantial correctness of the reports appearing in the papers there would be no necessity for him to call evidence to that point. Now his learned fiiend quoted the latter part of the judgment of the Lord Chief Justice in the case of Wason v. Walters, and he wou'd now endeavour to show that this case came with’n privilege. [Quoted bisk Allah Bey v. Whitej hurst and others, 18 law limes, N.S. vol. 18, Ip. 615 ] The report of the case quoted in question, as well as the article founded thereon, were in question as libel. He would quote to the jury the remarks of the Lord Chief Justice on the law with regard to reporting proceedings in courts of justice, showing that they must be a fair epitome of what took place. Then the Lord Chief Justice went on to say that the public good arising from the discussion in the public press of matters connected with the administration of justice was so great that even if the basis upon which the comments were founded, turned out to be untrue. The writer, so long as he had commented on the facts as alleged with fairness and good faith, should be privileged. He would also quote a judgment of the Lord Chief Justice in the case of Woodgate v Whitehead, 4 F and P2O 2. [Case quoted.J He would now ask their attention whilst he sought to show that the article they had heard read was a fair comment on the evidence in the case. First, then, as to the charge against Greenwood by the plaintiff. He submitted that the evidence throughout justified the whole of the comments made, because it was shown in evidence that when charged with taking this money Greenwood at once said there must have been a mistake. Then again there was no suggestion in the evidence to show that Mr Greenwood had not served Mr Barker faithfully, and it was further proved that there had passed through Greenwood’s hands during that period nearly .£IOO,OOO. It was thus proved that nearly word for word of the article now sought to be put in as a libel was a fair comment. As regarded the words that Mr Barker was of a most suspicious character, this was more than borne out by the evidence given, to which he invited the attention of the jury. He charged the clerk with embezzlement before Mr Morshead, although the clerk stated that it was a mistake, and was willing to make up the deficiency. Then an appointment was made between the plaintiff and Greenwood, and they then went through the books. A second appointment was not kept by Greenwood, and thou Mr Barker rushed off to the police, and laid three informations. He met Greenwood in the street on the morning of his laying the informations, and yet he never t Id him that he had done so or asked him in any way to explain the reason why he had not kept his appliniment. Ho would read them the evidence on the Court below te show that the comment in the article as to Mr Barker being a very suspicious person, and being very rancorously disposed towards the prisoner, were justified by the evidcnc". [Mr Harper then read the evidence of the plaintiff in tho Magistrate’s Court, both from the ‘ Times” and the Press.] The fair inference to be drawn from both these reports was that the plaintiff was piqued at the non-appearance of Greenwood. There was no evidence of Greenwood keeping out of tho way ; therefore he said a writer in the public Press, having that evidence before him under the circumstances of a person haring put the machinery of the law in motion was quite warranted to call such a person suspicions. Then the plaintiff was called “ rancorously inclined.” The word “rancorously” was a very hard one, but he submitted that the comment was fair on the conduct of a man who would undertake the prosecution of a man for embezzlement, partly from indignation, and partly from having found other discrepancies. This was the evidence of Mr Barker himself, and ho (Mr Harper) said that with this before him the writer of the article had a perfect right to comment upon such conduct. As to Mr Barker being likened to a cat on hot bricks whilst under cross-examina-tion, he (Mr Harper) dirt not know what was in the mind of the writer of the article, but he only treated that as surplusage. It might be that Mr Barker did resemble a cat on hot bricks, but to say so was no libel. Then going on still farther to the next paragraph, referring to Mr Barker as championing society, and here again tho same fair comment on the evidence was apparent. The evidence was that Mr Barker might have taken far more care before set’ing the law in motion and inflicting pain on Greenwood. Therefore Mr Barker was one who could not claim much generosity or much public spirit, and tho words so applied were fair comment. iho words “mi erablc pettifogger” were very severe, but be would point out that this was a phrase sacred to lawyers only. It was laid down by lexicographers that it was on'y referable to lawyers. Webster said that “a pettifogger was an inferior attorney employed in mean or potty eases.” Mr Barker, in his evidence, said that he wis engaged in preparing contracts of sale, &e., but it would perhaps be too much to say that the writer thought Mr Barker was a lawyer of potty type. What the idea of the words as he took it was that Mr Barker had in a petty manner instituted proceedings, which if any solicitor had advised being taken, after the facts had been laid before him, he would have been a pettifogger. His Honor pointed out that Mr Harper was reflecting on tho counsel for the proseention. [Left sitting.]