CRIMINAL LIBEL CASE.

Globe, Volume XXII, Issue 1895, 20 March 1880, Page 3

CRIMINAL LIBEL CASE.

STEAD Y. “ OTAGO DAILY TIMES ” AND “ WITNESS ” COMPANY.

[Before G. L. Mellish, Esq., R.M., and J. Ollivier, Esq., J.P.] This case was an information for criminal libel, in which George Gatenby Stead was the prosecutor and the “ Otago Daily Times " and “ Witness ” Company the defendants. The defendants on the record were Messrs James Smith, T. M. Hocken, W. Guthrie, W. H. Reynolds, James Marshall, and George Fenwick, of Dunedin, The alleged libel was contained in the following, which appeared in the “ Otago Witness” of February 7th, under the heading of “ The Dunedin Cup Race ”:— “ Mr G. Fraser’s chesnut gelding Longlands, by Totara—Marchioness, 5 yrs, 7st 121bs, was bred in Auckland by Mr James Watt, and is a very good horse, though scarcely able to hold his own with the best at weight for age. He has achieved a great reputation for gameness and speed, but is principally notorious for his two consecutive wins in the Groat Autumn Handicap. Ho has not done a great amount of work, the course observed being much the same as is pursued with Mata—score a remunerative win and then either lay him up for a time or run him totally unfit, the result being that some handicapper lets him in cheaply for another big race, and again he ‘ lands a moral.’ ” Mr Spaokman (Wynn Williams and Deacon) appeared for the plaintiff; Mr Garrick appeared for the defendants, and also for Mr Fenwick, who was present. Mr Garrick—l do not know what course my learned friend is going to pursue. Mr Fenwick is here, but the other defendants are not. I should like to know whether Mr Spackman requires to have all the defendants present, or whether he will proceed with the case as against Mr Fenwick. Mr Spackman—Separate informations have been sworn against the whole of the defendants. I am quite willing to go on with the evidence against Mr Fenwick, and leave it to the Court to say it it is necessary to have all the defendants present before them. Mr Mellish—l do not see that there is a necessity for the whole of the defendants to be before the Court now, as the article containing the libel was published by all at the same time.

Mr Garrick —I may say, your Worship, that I appear for all the absent defendants, as well as for Mr Fenwick, and I would bring under the notice of the Bench and my learned friend that if he elects to proceed against Mr Fenwick, I shall raise the point that the libel is a joint offence and cannot be taken separately. What I shall submit is, that the case should be adjourned until say Monday next. The absent defendants must be present, because though I represent them here, if they were committed for trial I should step aside. The crime charged is a joint publication of a libel.

Mr Spackmau—l would point out to my learned friend that he admits that this ia a joint crime, and yet he wants to go on with only one of the defendants present. I should oppose any adjournment. The Bench have no power to adjourn, but if the defendants did not put in an appearance to the summons issued, they were bound to issue a warrant. If I apply for a warrant to issue the Bench must grant it, but I do not want to do that. Mr Mellish—No, of course that is not necessary, but still I would point out that the other defendants should have been present. Mr Garrick—l may explain, your Worship, that the reason of their non-appearance is that they are acting under the advice of able counsel in Dunedin, who advised them that it was not necessary for them to attend. Mr Spackman—lt seems to me that there was no need for the advice of any able counsel, as when a defendant does not attend in pursuance of a summons the course of the Bench is clear—viz., to issue a warrant. Mr Garrick—-I still submit that this bping a case of joint libel all the defendants must be present when the case is taken. Hence the necessity for adjournment. If my learned friend goes on I shall reserve the right to raise the point I have referred to. Mr Spackman—But if my learned friend does so the only course left to mo is to apply for a warrant. There is no ground for such an adjournment, and if it were made the only course for the magistrate to pursue would be to issue a warrant. The Act laid this down specially that the magistrate had no power to adjourn the case except in cases of variance of the information. Mr Garrick submitted that the section quoted by his learned friend did not apply. The Bench having consulted, Mr Mellish asked what course Mr Spackman intended to pursue ? Mr Spackman—l am quite ready to go on with the case against Mr Fenwick, who is here without prejudice to my right to proceed against the other defendants. It is for the Bench, avid not for me, to say whether the other defendants should appear. Mr Mellish—Of course they will appear. There is no doubt about that. Their counsel says that he will undertake they shall appear at the adjournment. Mr Spackman—l am quite ready to go on if my learned friend will admit my right to go on against the defendant who is present without prejudice to my right to proceed against the other defendants. Mr Garrick—l shall admit nothing at all. Mr Spackman would submit that under the Justices of the Peace Act if his learned friend would persist in making it a joint matter the Court had power in summary jurisdiction to go on, though the other defendants were absent. Mr Garrick pointed out that this referred to summary jurisdiction only, Ho would

undertake that the other defendants would be present on Monday. The Resident Magistrate said that he thought that the proper course would be to issue a warrant to bring up the other defendants. Mr Garrick said defendants were not absent from contumacious motives, but from a misapprehension. He should submit that it was not necessary to issue the warrant as proposed by the Bench.

Mr Spaokman would submit that the Magistrate had no other course to pursue but to issue a warrant. A summons had been issued to the defendants to appear, but they had not done so. Hence the Bench had no alternative but to issue a warrant. Mr Garrick submitted that if the Bench issued a warrant the adjournment would have to bo made. Where, therefore, was the reason for opposing the adjournment, because this delay had to take place. The defendants, by their solicitor, gave an undertaking to appear on Monday or any other period when the Bench might adjourn to. Mr Mellish said he could not see why the adjournment could not be made, as the Statute was clearly permissive. Mr Deacon, who said he appeared with Mr Spaokman for Mr Stead, submitted that if an adjournment was made they could not compel the present defendant before the Court to appear, Mr Mellish said that the defendant now before the Court could be admitted to bail. Mr Deacon should contend that the defendant was not in custody. Mr Mellish said that the defendant now before the Court was here to plead to an information for criminal libel. Mr Deacon would contend that the Bench had no power to adjourn the case, and to make the defendant now before the Court appear. Mr Mellish entirely differed from the idea of Mr Deacon. If a fraction of evidence was taken, the Bench could then take bail for the appearance of the present defendant. Mr Deacon—ln that case, if the matter falls through, the whole responsibility of the matter will rest with your Worships. Mr Mellish—We are quite willing to accept the responsibility. Mr Spackman—Then, sir, I presume we will take the evidence which may be forthcoming. Mr Garrick—We might take the evidence of the Registrar as referring to the present defendant, and I am willing to take it as against the other defendants as if given in their presence.

It was agreed to have the case adjourned until 3 p.m. on Monday next. F. R. Smith, Registrar of Joint Stock Companies, was called. The witness, after being sworn, said that he desired to make application for his expenses. He was put to a vary great expense, and he did not know to whom he was to look to recoup him. Mr Mellish—But you have been sworn. Besides, this is a criminal case, and you are bound to appear. Witness—l was advised not to appear unless my expenses were tendered. Mr Mellish—lf you had not done so, I should have had to have sent a warrant for you. You would then have travelled free of cost, but in custody, which would not have been very agreeable. Witness —It is very hard lines for me, your Worship. Mr Mellish—There are a good many hard cases in the colony. There are such things as witnesses who refuse to be bound over being kept in prison till the trial of the case. Mr Spaokman then proceeded to examine the witness ns follows : Witness—l am Registrar of Joint Stock Companies for Otago. I produce a memorandum of association, articles of association and shareholders’ list of the “ Otago Daily Times and Witness Company (Limited) Dunedin.’’ I have not received any disclaiming affidavit under the Act from any of the defendants. They appear in the annual list as shareholders, I believe. I do not know whether they are directors of the Company. Mr Spackman asked that the defendant Mr Fenwick should be hound over to appear on Monday next. _ Mr Garrick—Certainly. I have no objection at all. I suppose your Worship will take Mr Fenwick’s own recognisance. Mr Mellish—Certainly. Mr Fenwick having entered into his own bond to appear on Monday next, the case was adjourned to that day at 3 p.m.