SUPREME COURT.

Globe, Volume XXI, Issue 1765, 16 October 1879, Page 3

SUPREME COURT.

CIVIL SITTINGS. Wednesday, October 15. [Before His Honor Mr Justice Johnston. 1 The following is the conclusion of the case of Barker v Hooves and others : Mr Harper said that this could not be, because the Crown Prosecutor was bound to proceed. Now, he submitted that though the words “miserable pettifogger” might sound opprobrious, he asked the jury to consider the facts of the case. The plaintiff had rushed off, and put the whole machinery of the law in motion without having given due consideration to the matter, and that too against a man who had served him faithfully. He, therefore, submitted that the remarks so made were intended to castigate Mr Barker, for what the evidence revealed had been the result of his suspicions. Still, though this was severe, there was ample evidence in the reports of the case that this comment, though so severe, was merited. The further remarks in the article all carried out the same idea, that under all the circumstances, and with the evidence before him, the writer was justified in commenting as he did. It was the privilege of the public Press to comment upon and criticise the proceedings of the Courts of Justice. The writer of tin article in question came forward as a public educator, and for the public benefit. Therefore he submitted that under Lord Chief Justice Cockburn’s judgment the article was a privileged one. There wore ho submitted six or seven reasons why Mr Barker should not have rushed into this prosecution, and as Mr Barker had done so of his own notion he could not complain if ho received in the interest of the public a castigation from a paper whose privilege it was to criticise public matters in a fair manner. They must remember that all they had _ to do was to consider whether the article was a fair comment on the evidence, and whether Mr Barker had not called down upon himself the severe comments of the paper. His Honor would tell them that they had nothing to do with any damage to plaintiff’s trade and business because there was nothing of that kind averred in the declaration. They had to con-

sider Mr Barker simply as a man of the world, standing as it were alone. Now he would ask the jury to consider the course before them. They had to decide whether the defendants had falsely and maliciously published a libel of the plaintiff. If they found that in the affirmative they would bo stating that the defendants had published an article from sheer malice against Mr Barker and that they had heaped upon him contumely and obloquy utterly uncalled for by the facts of the case. He admitted that the article was severe, bnt he submitted also that the occasion warranted it, and that the evidence of Mr Barker himself furnished fair matter for comment. There was no imputation on Mr Barker in the whole article except that he had, without taking proper precautions, rushed into a prosecution. He asked them, on all the facta of the case, to give the defendants a verdict. Mr Joynt then addressed the jury for the plaintiff. His learned friend had labored to satisfy them that the defendants, in publishing the article, had only faithfully, truthfully, and fairly commented on the evidence as contained in their own issue. He should have to comment on the law of libel, and should also endeavour to satisfy them that the article in question was not a comment on the case at all, but simply a tirade of abuse against Mr Barker for Barker for having dared to prosecute Mr Greenwood. The learned counsel on the other side bad said that the article was a set off for the pain of mind endured by Mr Greenwood, so that it seemed that the article was not intended, as his learned friend had stated, as a public educator, but to put, as it wore, the knife of the writer deeply into Mr Barker with a view of making him feel somewhat of the pain he was alleged to have caused Mr Greenwood to suffer. The law of libel had been very shortly stated by Baron Park, and he would quote the woidi of the learned Judge. [Quoted.] Now the question for them to consider was whether the article cime within the privilege of a f ir comment on the proceedings. It was not correct that if a person commented on the conduct of another in proceedings before a Court of justice if he believed the basis of his information to be true that he was not liable to consequences. If a writer went on to use invective, or to even highly color the statements, then he lost the privilege afforded to public comments on proceedings in Courts of justice when fairly done. [Cases cited Campbell v. Spottiswoode; Henchman v. Blackwood.] The question now was whether the article was a fair comment on, not Mr Barker’s evidence, bnt the whole of the proceedings in the Snnreme Court. It was not as a balm for the feelings of Greenwood, nor to hold up Mr Barker to reprobation, it was for the jury to say whether the article was a fair and moderate comment on the proceedings in the Supreme Court. They said no ; but that it was a false and scurrilous attack on Mr Barker. _ It was strange that the paper though professing to comment on the case did not Bay one word on the question of the guilt or innocence of Greenwood. In one of the cases a clerk of Mr Barker’s saw the money paid to Greenwood and a receipt given, but this had never been accounted for. Now tbe reason why this case broke down was that the woman paying the money could not swear to it. The paper in commenting upon the case had not said one word on this. It simply said it was owing to the suspicion of Mr Barker. Then, with regard to the transaction of the embezzlement of .£5 ss, Greenwood, on being taxed with it, said that there must be some mistake. The writer then at once jumped to the conclusion that this was a proof of Greenwood’s innocence. There was no notice taken in this fair comment of the strong criminatory features of these two cases. And yet this was hold up as the perfection of fair comment on the proceedings. The article went on to say that Mr Barker had at once jnmped to the conclusion because his clerk was JSS 5s behind in his accounts that he had embezzled it. Now. was this borne out by the evidence. He said it was not at all. Morahead asked him what he was going to do, as, if he did not take proceedings, he should. Did Barker precipitately rush off and lay an information as inferred by the article ? No ; he said he would go through the books, and if he found no farther discrepancies he would give Greenwood the benefit of the doubt. Was this the action of a precipitate man ? It was only when Mr Barker, after going through the books discovered other discrepancies, and Greenwood treated him in a cavalier manner, that he took action. With the two cases before them, as men of business, he asked them whether they would not believe that there was a strong aspect of criminality about the two cases. Even when Mr Barker discovered these cases, did he at once lay information ? They found not. They found that Mr Barker went to the detective office and obtained the services of a detective, who probably advised him as to laying the information. Was that, he again asked them, the action of a precipitate man ? The language of the article might have been excusable if Mr Barker had rushed off and laid an information against Greenwood without giving him an opportunity of explanation. Bnt as ho had shown this was not so. So far as the cases with regard to Mr Blackburn and Mr Morshead appeared on Mr Barker’s books, there was no other course open to Mr Barker bnt to suppose that there had been a criminal misappropriation of that money. It must be remembered that it was not until the cases had passed through the hands of the detective officers, the Resident Magistrate, the Grand Jury, and his Honor the Judge, that the jury were enabled to arrive at a conclusion on a merciful putting of the matter to them by the Judge. Was it therefore likely that Mr Barker, without a scintilla of light was thrown upon the matter, could have come to any other conclusion than he did. They would see that Mr Barker, so far from being precipitate, had taken time to allow of Greenwood explaining, and had not laid an information until Greenwood treated Mr Barker cavalierly. Then the particularly verdant editor who undertook to instruct the public, asked “What possible reason could Greenwood have had for taking £5 55.” He (Mr Joynt) supposed that this was because he had not taken the .£IOO,OOO. Then the editor said that Greenwood had served Mr Barker for three years for his sins. Was that a fair comment. It seemed to him that there was no ground for such a comment. He now came to the words which his learned friend himself had admitted to bo severe, and which ho (Mr loynt) had taken the trouble to look up in the dictionary, and he must say that he was somewhat surprised, because it was to be inferred that a writer who was using the language every day knew exactly the force of words. The meaning of the word “rancour” was explained in Webster’s Dictionary as deep seated and malignant spite and hostility, implying the deepest possible malice and malignity, and as being one of the strongest words in the English language to express spite and hostility. Was that a fair comment ? If the writer had searched the whole English language for a word to use which would be the moat opprobrious, he could not have selected one so full as this. Was that, he asked them, only fair comment ? Then there were the words “ miserable pettifogger.” which bad been endeavoured to be explained by his learned friend in a very ingenious way, but which was a very grave attack. The meaning of the word, whether applied to law or not, was that the person to whom it was applied was conducting a business in a mean way, and was stooping to do mean things. Then, it was also said “ That Mr Barker would acquire a savoury reputation.” Was that a fair comment on the proceedings in the Court? The fact of such an article as the one now under consideration oppearing might have the effect of subverting the ends of justice. Would they, if they had evidence before them of their clerk having misappropriated money like to be told that they had acquired a savoury reputation ? Now then let them see what was the reason of this grossly scurrilous attack. His learned friend had given them the cue. It was intended as a solatium for the wounded feelings of Greenwood. Was that he asked then a proper reason for so gross and violent attack on Mr Barker. To sum up he would ask the jury to consider whether this article was in any way a fair comment on the proceedings in the court of justice. Let them look at it. It was nothing but a tirade of abuse of Mr Barker of the gros-est possible description. What would Mr Barker’s friends here think of him when they read this article, or what would those elsewhere in those parts of the world where the “Lyttelton Times’’was road and the English language spoken when they had before them this tirade of abuse. He said that Mr Barker had nothing else bnt to come to the Court to vindicate his character, and ho asked them, as the article was a vindictive one, to give substantial damages. The “Lyttelton Times” might have taken advantage of the law, published an apology, and paid a certain sum into Court. But the paper had not done this. They had carried the matter with a high hand, and had come into that Court to justify the article as a fair comment. He asked them to give Mr Barker such damages as would show not only to the people here, but to all parts where the article had gone, the opinion of the jury. The article was an attack of the grossest possible character, and ho asked them to give such damages as would vindicate Mr Barker’s character from the attack so wantonly made upon him. His Honor summed up and laid down the law of libel to the jury. The law held that, with regard to certain matters of public interest and the administration of justice every subject had a right to comment with moderation and truth on it, and on the conduct of public men, provided the comment bo founded on unquestionable facts and does not go beyond the grounds of fair 'comment. If it did it became malicious libel, and this was a far more serious wrong than any that could be inflicted by one man on another. He would now read a few passages to show the light in which the so-called privileges of the Press wore regarded by the law. As he had before stated, the privileges of the Press were only those of the whole of her Majesty’s subjects. (His Honor then quoted from Lord Cockburn’s summing up on a libel case to show the law with regard to the privilege of public writers.] With those principles in their minds they would have to go through all the bearings of tho case. The case upon which the article was founded was

that an estate agent found that an error existed in his clerk’s accounts, and holds an investigation into them. A further appointment was made for continuing the investigation, but was not kept. As this was an investigation into the honesty or otherwise of the person implicated, would not any one feel somewhat indignant at the non-appearance of the clerk ? It would be for them to say whether it was fair comment to say that Mr Barker jumped hastily at the conclusion of the guilt of the clerk. The cases were before the Resident Magistrate and the Grand Jury, who found that there was a prima facie case. It was true, also, that the Judge, in summing up to the jury, told them that they might consider the large amount of money passing through the hands of the prisoner, and give him the benefit of the doubt. Had it been said that Mr Barker would have done no harm to himself or the world if he had passed over such a small thing as this, that would not have been cavilled at. That might have been fair comment. The question for them was whether there was vexatious, frivolous, and malicious prosecution not arising from ill-temper, bnt from a rancorous and malicious desire to do harm, as stated in the article, carried out by a miserable pettifogger. That was the effect of the words of the article. They would have to be satisfied that this had bean established, and that the words so written came within the bounds of fair comment. If they did this then they must find for the defendants. If they could not do so, if they found that there was no grounds for such statements, and that it was removed from fair comment, then they must give a verdict for the plaintiff. As to damages, it was a matter of the greatest importance that they should possess a free and independent Press, ready to speak out when it was necessary to do so, and therefore he should never advise juries to give vindictive damages, except in cases where the Press, as was sometimes the case, had been need as the _ vehicle for private slander, thus pandering to the worst passions of a community. They might look at this case in this way, to see whether, even if they thought the article had gone beyond the grounds of criticism, it had not been written without malice, though somewhat hastily. He would now leave the case to them, merely calling their attention to the law as laid down in the cases quoted, that the writers in the newspapers had no greater privilege than any other of her Majesty’s subjects, which was to express their opinion upon matters affecting the administration of public justice or public affairs so long as it was done fairly and truthfully. His duty was to read over and comment upon the evidence taken, but if the learned counsel on both sides were agreed as to the manner in which he had stated the case to the jury, he would not trouble them with this. The learned counsel on both sides having expressed their acquiescence in this course being followed, The jury retired at 3.20 p.m. At 3.45 the jury returned into Court, and through the foreman asked whether they could not find on the first and third issues, only leaving out the second. Mr Joynt then applied to have the second issue struck out. Mr Harper objected to that being done. His Honor then ruled that it would be competent for the jury to return “ No finding” on the second issue, no evidence having been led to prove damage, and the declaration not containing any averment of special damage to trade or business. The jury then retired, and in the course of a few minutes returned into court with the following verdict on the issues as submitted: — 1. Did the defendants, on or about the I2th 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 ?■ — Yes. 2. Has the plaintiff thereby been greatly injured in his reputation?—No finding. 3. What damages (if any) is the plaintiff entitled to to recover from the defendants in respect of the said cause of action? —Five pounds. The Court then adjourned until Monday next at 10 a.m.