CRIMINAL LIBEL CASE.

Globe, Volume XXII, Issue 1897, 23 March 1880, Page 3

CRIMINAL LIBEL CASE.

STEAD v THE “OTAGO DAILY TIMES” AND “ WITNESS ” COMPANY. Monday, Maech 22nd, [Before G. L. Hellish, Esq., R.M., and J, Ollivier and G. Lee, Esqs., J.Ps.] The adjourned hearing of this case was called on at 3 p.m. Mr Spackman appeared for the prosecutor, Mr Garrick for the defendants. Mr George Fenwick was the only defendant appearing. Mr Hellish—l have received a letter from one of the absent defendants, Mr Spackman, which I will hand over to you to read. Mr Spackman—l also have some letters to put in so soon as the defendants are called upon. Mr Mellish—Very well, now call on the defendants. The clerk of the court then called Messrs James Smith, T. M. Hooken, W. Guthrie, W. IT. Reynolds, James Marshall, and George Fenwick, of Dunedin. Of these only Mr George Fenwick answered.

Mr Garrick —I regret, your worship, that the other defendants do not appear. I have received a telegram from one of them, Dr Hocken, to say that he is now as coroner in the middle of an inquest on the late murder cam, and cannot therefore come. Respecting the other defendants I understand that they raise some legal difficulties. I certainly undertook, so far as was possible, that they should attend, and did so in perfect good faith that they should be here. Mr Spackman I understood that the adjournment from Friday till to-day was for the purpose of enabling the defendants to appear. Mr Mellish—l have received, as I have already said, a letter from Mr Smith, one of the defendants, the tone of which is decidedly discourteous, and also wrong in the statements made in it.

Mr Spackman—The last part of it, which says that Mr Joynt has telegraphed that there is no ground for a prosecution, is untrue. I may also say that I have received a most extraordinary letter from Messrs Garrick and Oowlishaw, in which they say that if warrants are issued it will be at the peril of the parties so doing, on the ground that there was no jurisdiction in this Bench. This, your Worships will see, was after Mr Garrick had undertaken that the defendants would appear. Mr Mellish—l think Mr Spackman will bear mo out that when the question of juristion was raised, when the information was laid, he stated that the papers containing the alleged libel were purchased in Christchurch, and also that Mr Spackman showed authorities to prove that the purchase of a paper in case of alleged libel was sufficient proof of publication wherever it was printed. [Case cited, “ Regina v Burdett,” page 712, Rosooe.] Mr Garrick —I dispute that proposition altogether. Mr Spackman—l hand your Worships my authority. |_“ Regina v. Burdett.”] Mr Garrick—That does not touch the case at all.

Mr Spackman—l submit that it does not lie with the defendants to dispute the jurisdiction now that they have appeared by counsel, f Authority cited, “ Regina v Nell ” —Rosooe.] The Bench ruled that the case should go on. Mr Spackman—l am prepared to go on with the case as against the present defendant, Fenwick, and leave the Bench to deal with the absent defendants in any way they think fit.

Mr Mellish—l confess I am rather taken aback at the course which has been taken. I do not wish to reflect on counsel in any way, but where counsel undertake that defendants shall appear on an adjournment, it is a point of honor that it should bo carried out. The absent defendants must have been aware that by the course they were adopting they were placing counsel in an embarrassing and false position. lam extremely sorry that persons in the position of the defendants should have taken the course they have done, more especially in writing letters to me, which, to say the least of it, is in questionable taste. Mr Spackman—l put in letters from Mr Eeynolds and Mr Smith to me on the subject of the case now before the Court.

Mr Ollivier —Do you desire to put these letters in, Mr Spackman ? Mr Spackman—Yea ; certainly. Mr Mellish—Do you now intend to open your case as against Mr Fenwick ? Mr Spackman—Yes, your Worship.

The learned counsel then proceeded to say that this was an information for criminal libel laid against the defendant, George Fenwick, as one of the directors of the “ Otago Daily Times” and “ Witness” Company. For the past few months Mr Stead had been attacked by writers of sporting articles in the “Otago Daily Times” and “ Witness,” with reference to racing matters. Me Stead had been engaged in running racehorses for many years, and he had been, as ho (Mr Spackman) had said, attacked for the way in which it was alleged be ran his horses. In the “ Otago Daily Times” of September 13th and of November 11th, articles had appeared of this character with reference to the horse Longlands. [Articles read.] Though these articles did not apply to Mr Stead personally, they still led up to the libel appearing in the “Otago Witness” of February 7th, 1880, which was the ground of the present case. He should be prepared to prove by evidence which he should call that the horse Longlands referred to was the property of Mr Stead. The libel for which the information on which the present defendant was before the Court was laid, appeared in the “ Otago Witness ” of February 7th, and was as follows —“The Dunedin Cup Bace. —Mr G. Fraser’s ohesnut gelding Longlands, by Totara— Marchioness, 5 yrs, 7st 121 b, 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 Great Autumn Handicap. He 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.’ ” He thought that it would be perfectly clear to the Bench that any person reading this must come to the conclusion that Mr Stead was in the habit of letting his horses run in such a condition at times as would prevent them taking any place in the race, so that the handicapper for another race when they were in good condition might let them in easily. This, as the Bench would see, was a very serious charge to make against a gentleman engaged in racing as Mr Stead was. Mr Stead, believing that this libel was written by a writer on sporting subjects who had a sort of animus against him, and having no quarrel with the directors themselves, had instructed his firm to write a letter asking for the name of the writer, and requesting an apology. This, however, had been refused, and there was no other course left open to Mr Stead but to take proceedings against the directors to put his character right with the Jockey Club, racing men, and the world generally. He would now read several letters which had been written by his firm to the directors, asking for the name of the writer, and also requesting an apology. These letters contained the dates of the papers in which the libels complained of appeared. To these letters they received a letter in answer from the defendant, the managing director, asking for particulars as to the libels complained of, though the dates of the papers in which the libels appeared had been forwarded to the directors. Particular attention was drawn to the article appearing in the “ Otago Witness,” of February 7th, which was the foundation of the present proceedings. The letter went on to say that if the name of the writer was given up, an apolojy inserted, and £25 paid to some local institution in Dunedin, Mr Stead would nob proceed further in the case. To this a letter was received from Mr Fenwick declining to give up the name of the writer, as this would be dishonourable. This, it appeared to him (Mr Spackman), amounted to this, that Mr Fenwick, though thinking it dishonourable to give up the name of the writer, did not deem it dishonourable to publish libels. From this correspondence the Bench would see that every chance had been given to the directors to take advantage of the offer of Mr Stead to stay proceedings. This, however, they declined to do, and there was no other course for Mr Stead to pursue but to lay "these informations. He had waited for some time, even after the date of the last letter, but nothing had been done. He should now proceed to prove the printing and publishing of the libel. [Mr. Spackman then proceeded to quote the law of libel.] He might say that now he was prepared on behalf of his client to aceept an apology, provided the defendant gave up the name of the author of the articles and paid costs. He made this offer now, and if it were accepted, the prosecutor would withdraw from the case.

Mr Garrick —I must ask the Bench to grant me time to communicate with my clients. At t.iie same time, I think that they would not do so. Mr Spackman —I think this is more than the defendants are entitled to receive from us. Mr Garrick —Personally I should advise my clients to give up the name of the writer, but whether they will do so or not is another matter. _ ... Mr Hellish —Of course Mr Fenwick, though managing director, would hardly like to decide upon a question of such importance as this without consulting his brother directors. Of course, also, this means an adjournment, Mr Spackman—l should oppose any adjournment. Mr Garrick—l can do nothing without an adjournment. My learned friend must go on. Mr Spackman—l shall, then, proceed to call evidence. ttiorge Qatonby Stead — I am a merchant residing in Christchurch, and a member of the

Canterbury Jockey Club. I own racehorses. I run them under the registered name of Mr George Fraser. X pay an annual fee to the Dunedin Jockey Club for the registration of that name in Dunedin. Mr Garrick—X object to that evidence being given, unless it is shown that it was known to the “ Otago Daily Times ” Mr Stead—l can give evidence of it being registered. The horse lionglands belonged to me on the 7th February, 1830. I have since sold him. I see the paper produced. It is the “ Otago Witness ” of February 7th. I purchased the paper in Christchurch. Mr Garrick—Did you purchase that particular paper ? Mr Stead—No, I don’t say I did. But I purchased two papers—copies of the “ Otago Witness ” of February 7th—and gave one to Mr Wynn Williams. The paper I purchased had the same paragraph in it as this one. Mr Garrick—You can’t say that, Mr Stead. Mr Stead—But I can. I know it. I can remember the paragraph. Mr Garrick—You cannot. However good your memory is, it cannot be taken here. Mr Spackman—l shall be able to prove the purchase of the paper in Christchurch. Mr Stead—l purchased the paper, and it contained a paragraph exactly similar to that in the one now produced. I know every word of it.

Mr Spackman put in office copies of affidavits as to the proprietorship of the papers. He then said: —l now propose to put in a paper bearing the same heading as that mentioned in the affidavit. Mr Garrick—l object to that. Mr Spackman read the section of the Act referring to the proving of the paper being published without it being necessary to prove that it was bought at the office of the publishers. After some discussion, the Bench agreed to admit the paper de bene esse. Witness—l see the paragraph referred to.. It refers to me. There is not one word of truth in it, Mr Garrick—ls there any truth, Mr Stead, in the concluding portion of the paragraph concerning Mata? Mr Spackman—l object to this. Mr Stead —I have no objection to answer the question, I want to conceal nothing. Mr Garrick —You are registered, you say ? Mr Stead —Yes ; in Dunedin and Christchurch. Mr Garrick—You do not then run in the name of an actual G. Fraser ? Mr Stead—No, it is a family name, and I preferred running under it, as is frequently done in England, instead of my business name. I am registered in Dunedin, and I have also ran horses in Sydney and Melbourne under the name of G. Fraser. Bichard Shannon—l am a bookseller and newsvendor in Christchurch. I look at the paper produced. I am the authorised agent for the sale of the “ Otago Witness” in Christchurch. Witness —I have lost two days, your Worship. Mr Mellish—Ah! that will have to be settled by-and-by. William Reeves —I am a newspaper proprietor. I have been connected with newspapers for about twenty years. I have seen the article in the “ Otago Witness,” on which this proceeding is founded. Mr Spackman—What do you think of it ? Mr Garrick —What, that it is well written or otherwise ? Mr Spackman—Well, I cannot ask Mr Beeves if it is a libel. Mr Mellish —No, that of course would be leading. Mr Spackman—Well, what effect do you think that article would have on a man’s character ? Mr Garrick—l object to that question. Mr Spackman—My business here is to ascertain from an unprejudiced person what effect such an article would have on the character of the person named. Mr Garrick—But it all depends upon the opinion of that person. I may get some one out of the Court who would say that it was not a libel at all. The question we are here to try is whether there is a prima facie case for commitment.

Mr Mellish—l don’t see that the question can be put in the form you have put it. Mr Garrick quoted from Boscoe to show that the question now sought to be put could not be asked unless. there was something which required to be explained beyond the ordinary meaning of the words. ■ Mr Garrick—There are the words “ landing a moral.” That seems to be ambiguous. Mr Mellish—The only ambiguity seems to be the words “landing a moral.” The other part of the paragraph is plain enough. I don’t think you can ask the question as it now stands. The paragraph is perfectly clear in my mind except the words “landing a moral.”

Mr Spackman —I shall withdraw the question.

By the Bench—l understand the words “ landing a moral” to be synonymous with a certainty. Mr Hellish—l don’t see the utility of the question now. Mr Spaceman—l won’t press it. This was the case for the plaintiff. Mr Garrick would now submit that there was no evidence of the jurisdiction of the Bench to deal with the case. The 47th section of the Justices of the Peace Act provided that a warrant could be issued if within the jurisdiction, but not without, and he should contend that there was no evidence of the publication of the paper within the meaning of the section of the Act so as to give jurisdiction. Mr Shannon, it was true, had stated that he was the agent of the “ Otago Witness ” in Christchurch, and resided here, but no evidence had been given of the purchase of the paper hero. Besides this, he would submit to the Court that there was no evidence to connect Mr Stead with Mr Fraser. It was a perfectly clear principle of law that no libel could be written on a person under an alias unless this knowledge Was proved to have been known to the persons writing the libel. The principal ingredient of criminal libel was malice, and the presumption of malice was rebutted when it was a case in which a person chose under an alias to carry on racing, or any other business, unless it was proved that the person who wrote the alleged libel knew the nom de guerre under which the individual alleged to be libelled waged war. There was no evidence to prove that the managing director, who is the defendant in this case, knew that Mr George Gatonby Stead, who had set the law in motion here, was Mr George Fraser, who was racing in Otago. He submitted this as a reason why he contended that there was no case for a committal to a higher court. The Bench, in dealing with the case should be jealous in seeing that the necessary preliminaries had been complied with, which would constitute a prima facte case for committal. If the defendant wan before the Supreme Court would it be for one moment contended that there would be sufficient evidence. He would sum up his contention under three heads, as follows—That there was no evidence to warrant a committal (1), because there was no evidence of jurisdiction ; (2) that there was nothing to show that the was aware that Stead and Fraser wore one and the same person; (3) that there was no evidence of the purchase of the paper in Christchurch. Regarding the first point he would quote the judgment of Mr Justice Chapman in the case of Regina v. Strode (Macassey’s Reports), which was an application for a mandamus to compel the magistrate to hear a summons against Dr. Lemon, Superintendent of Telegraphs. [Judgment of Chapman, J., read.] On the second point it was not clear that the defendant now before the Court was in any way connected with the publication of the alleged libel. There was a leading case, which he, however, had no right to quote on a preliminary inquiry, but ho would quote it to show that to support a committal for trial a prima facie case must be made out. [Case cited Queen v. Holbrook and others, 48 L. J. QB. 113.] The point in the judgment was that where the libel was published without the knowledge and consent of the defendants, they were not liable criminally to be prosecuted for libel. This question, however, could only bo raised for the present defendant should the Bench decide to commit for trial. But he wished to draw the attention of the Bench to the fact that the intent was the ingredient of the whole action. He therefore submitted to the Justices that the present defendant was not in such a position as would lay him open to a criminaliprosecution for libel. On those grounds he submitted there was no case to go for committal.

Mr Spackman said he would take the points raised by his learned friend seriatim First as to point of jurisdiction. Ho desired to point out that his learned friend had appeared on Friday last for the defendant now before the Court, and the ether defendants, and obtained an adjournment. How then

could he come there that day and sot up a plea of no jurisdiction. Mr Mellish—l think, Mr Spackman, that there is a want of continuity in your chain of evidence, You do not connect your witness Shannon with the purchase of the paper in Christchurch.

Mr Spackman —We have proved your Worship that Mr Stead bought the paper in Christchurch,

Mr Mellish—But where ? Mr Spackman—lt is not necessary, your Worship, under the Act to prove this so long as wo prove we purchased the paper in Christchurch, which is held to be publication. On the point of jurisdiction he would quote a case, the authority cited Eegina v. Nell, Boscoe. Mr Mellish—l see, MrJSpackman, in the depositions that there is a Mat s. Mr Stead does not appear to have said that he purchased the paper in Christchurch. Mr Spackman—l think Mr Stead stated that he purchased the paper in Christchurch and gave it to Mr Wynn Williams. Mr Stead, re-called, said—l purchased the “ Otago Witness ” of February 7th in Christchurch. In fact I purchased two copies, one of which I still retain. I gave one copy to Mr Wynn Williams. Mr Spackman then proceeded to quote cases in support of his contention that the Justices had jurisdiction (Begina v Nell, Begina v Burdett). The evidence, ho should contend, was by the Act conclusive against the defendant Fenwick, because it stated that all that was necessary to be done was to produce a certified copy of aflldavits of printing, and a copy of the paper bearing the same title as quoted in the affidavit. It was further, ho should contend, not necessary to prove that Mr Stead was Mr Fraser. [Case quoted, Begina v Cobbott.] In conclusion, he would quote from Mr Folkard’s “Law of Libel ” to show that where a prima facie case was made out the Justices must commit for trial. Mr Garrick asked leave to address the Court. Mr Spackman should object to his learned friend having a reply. _ Mr Garrick should contend that he had a right to reply to the case quoted by his learned friend. Mr Spackman submitted that his learned friend had had his say, and could not be heard. Mr Mellish said that there need not be that amount of strictness which characterised other proceedings, as it was merely a preliminary examination. Mr Garrick submitted, as a proposition of sound law, that ho was entitled to reply to a case cited by his learned friend which had not been referred to in his opening. He would contend that there was no law whatever to support his learned friend’s contention that it was not necessary to show that the writer of the libel was aware that Stead was Fraser. Mr Mellish was with Mr Garrick on this point. The only question which might be raised was before the Judge that a person who was writing on racing matters would be supposed to know that Mr Stead’s racing name was Fraser. But this would be a question for direction by the Judge. He did not think there could be any doubt about the case. He was clearly of opinion that there must be a committal for trial. The defendant having been duly cautioned, declined to make any statement, and was committed to take his trial at the ensuing session of the Supreme Court at Christchurch. Mr Garrick Will your Worship allow bail? Mr Mellish—Yes, in defendant’s own recognisances. Mr Spackman—What course does your Worship intend to pursue with regard to the other defendants. Mr Garrick said that he had suggested to Mr Spackman that he should not proceed on the other informations. Mr Spackman—Will your Worship allow me to consult my client on the matter ? After a short interval, Mr Spackman said that their Worships would see that the prosecution had been forced upon Mr Stead to vindicate his character. Now that the managing director had been committed for trial, there would be ample opportunity for the vindication of his character by being brought before the Supreme Court. If his client proceeded against the other directors now thatthe managing director had been committed for trial, it might bo said that there was animus, which Mr Stead desired distinctly to deny. Therefore Mr Stead, if their Worships would allow it, would desire to withdraw the remainder of the cases. Of course it would be entirely for their Worships to say if this should be done, or whether the absent defendants should not be brought up to vindicate the right of this Court to enforce.its mandates. If their Worships thought that justice had been done by the committal of the managing director, his client would ask them to exercise their discretion by allowing the withdrawal of the information against the other defendants included with Mr Fenwick.

Mr Mellish said—The Bench are willing to allow the course suggested by Mr Stead to be adopted, and I may say that if this had not been adopted, warrants would immediately have been issued for the arrest of the defendants who have failed to come up, and they would have had to come up in custody. It is true that one of them—Mr Hocken—gives a sufficient reason for his absence, on the ground that he is engaged in the discharge of his public duties as coroner, and as no doubt this is the case, no warrant would have issued in his case. But it is not so with regard to the others. Mr Smith, I may say, has seen fit to write a letter to me which seems to imply that he is not used to exercise much courtesy, or he would have written a more courteous letter than he has done. I don’t wish to treat his letter as contempt of Court, and I will only say that I am very much surprised that a gentleman in the position Mr Smith evidently holds should have had such gross bad taste as to write such a letter. The other defendants will now be discharged from attendance. The proceedings then terminated.