STEAD v. “OTAGO DAILY TIMES” COMPANY, LIMITED.

Globe, Volume XXII, Issue 1909, 7 April 1880, Page 3

STEAD v. “OTAGO DAILY TIMES” COMPANY, LIMITED.

The foliowing letter appeared in this morning’s issue of tha “ Press " : TO THE EDITOR OP THE PRESS. Sib, —I have just read the correspondence which appears under the above heading in yonr issue of to-day, and I wish, with your permission, to state as shortly as is compatible with clearness, the facts of the case, so as to set myself right with the public. In my letter of the 12th February I advised on the only question then submitted to mo, namely, “ is the article libellous ? ” and “ Has there been a sufficient publication of it in Christchurch to enable the proceedings against the writer to bo carried on in this city?” Both questions X answered in the affirmative. It appears that the notien of prosecuting the writer of the letter was abandoned, and the next question submitted to me was —“Will a criminal prosecution for libel lie against the directors of the company?” This question I, in my letter of 9th Match, also answered in the affirmative. Now if this had been all, and that on further reflection I had found reason for changing my opinion on this latter point, I should have been neither ashamed nor afraid to have said so, but of course it would havo been my duty to havo said so at once, and not wait until the preliminary investigation had actually taken place, and the day of trial was at hand. It happens, however, that my opinion on the point has not undergone any change, and that, rightly or wrongly, 1 still hold the views expressed in my letter of 9th March. My opinion, however, on a point intimately connected with the abstract question, and one which materially affects the whole case, underwent considerable change, as you will see if you will k:ar with me. You will also see that I took the first opportunity of communicating to Mr Stead’s solicitors the fact of that change and the reasons for it; and you will also see the effect of that communication on the minds of these gentlemen. The catastrophe which has been brought about you have already seen. Of cour e you know all about Lord Campbell’s Libel Act, but as, perhaps some of your readers do not, I may in few words say that it contains a provision for the protection of proprietors of newspapers, &c., and the effect of the provision is that if on a criminal trial for libel where the defendant pleads ‘ not guilty,” a prima facia case of publication by some person with the defendants' authority is made out, it is open to tho defendant to prove that the publication was made without his authority or knowledge. I think I am right in saying that until the decision of tho case “Tho Queen v Holbrook and others ” (which was given in December, 1878, and was published sometime during the year 1879), the prevailing idea on the subject among lawyers was,that a general or plenaryauthority by a newspaper proprietor to his editor to publish articles at his (the editor’s) discretion was sufficient “ authority ” to pnblish a libel so as to deprive the proprietor of tho above-mentioned statute, and so far as I know the case of Kegina v Holbrook was the first that placed the law on tho subject on a different and, I think, a much more satisfactory footing. The effect of that decision, as I understand it, is that snch general authority, though plenary, is not sufficient to take away the prot. ction of the statute, bat that, inasmuch as it is presumed that tho authority to do a lawful thing carries with it an implication that it is to be done in a lawful manner, and ought not to bo taken to be an authority to commit a crime, it must be shown that the authority was a special one to publish the particular article. Until that decision, many very eminent lawyers held the opinion that a general authority to an editor was sufficient to take away the protection of the statute. Mr Justice Lindley, on tho first trial of the Queen v. Holbrook, Mr Justice Grove, on the second trial, so held and so ruled to the jury, and that Mr Justice MelJor on both the first and the second motions for a new trial so held, and supported his opinion by some admirable and apparently unanswerable arguments. Now, having sail so much in explanation, let me pursue the story of this case. Before I left for Dunedin Mr W. H. Spackman (from Messrs Wynn Williams and Deacon’s office) told me that he intended to conduct the preliminary examination himself. I ought to say that the case of Regina v. Holbrook being so' recent I bad not met with it, and I was unaware of its existence until I went to Dunedin. The law as laid down in Kegina v. Holbrook is not hinted at in any of our latest text books, such as “ Folkard on Libel,” published in 187 G, and “Bnasell on Crimes,” publish “din 1877. However, shortly after my arrival in Dnnedinthe case was brought to my notice, and after reading it carefully the principal established by tho decision, and the reasoning of Lord Chief Justice Cockbnrn and Mr Justice Lush, appeared to my mind so satisfactory and so applicable to the , ease of Stead and the ‘‘Otago Daily Times” Company, that I determined at once to draw the attention of Mr Stead’s solicitors to it. I think I read the case on the evening of the 16th March (Tuesday), and on the following morning before going into Court I telegraphed to Messrs Wynn Williams and Deacon, ns nearly as I can remember, in the following words: “See Regina v Holbrook (giving the reference). I apprehend that it the defendants prove that they appointed a competent editor to conduct the literary business of the paper, it will he necessary for the prosecution to prove that tho defendants gave the editor specific authority to publish the article complained of.” To this T received no reply, not even an acknowledgment of its receipt, and I confess that I was very much surprised to see some days lat r from tho newspapers that the case had be n n brought on, notwithstanding my telegram. But I took it for granted that Mr Stead’s solicitors hold views different from mine, and I said nothing. The case came on, I think, on Friday, 19 th March, and after some skirmishing was adjourned to Monday, 22nd. On that morning, in replying to a telegram from Mr Stead’s solicitors as to another matter connected with the case, I took occasion to say something to this effect—- “ Have yon considered the case roferre i to in my telegram to yon of 17th inst?” To this ’ again received no reply. On my arrival in town a d -y or two later I met Mr Spackman in the street, and ho broached the subject of the case. Whereupon I said—“ Did you receive my telegrams?” He said, “We did.” I said. “Have yon read the case of the ‘ Queen v Holbrook,’ and if you have how do yon hope to succeed in that case ? ” for I had reason to believe that the defendants did not know of ‘the article in question until it appeared in print, and also that Mr Stead’s solicitors were aware of that fact. Mr Spackman smiled nicely and said “ Oh, that case docs not apply to this at all.” I said, “ Oh very well.” Of course, I thought I had been dismissed, but I boro with it (I may say that that conversation took place in the presence of another solicitor). Some days later 1 suffered another surprise..Mr Spackman called ou me at my offico, and asked me if 1 would conduct the prosecution. I said, “ But, Mr Spackman, hare yon really read the ease of the Queen v Holbrook, and if you have may I ask why you are going on with the prosecution ?” He said, “ I haven’t read it for it is not in the library, but I know what it is_ all about ! ” (the note of admiration is mine). I said, “ Well, before saying any more about proceeding, will yon go and read it and let mo see you again?” Ho went away and returned that day or the next and tried to persuade mo that that case did not apply to this case, urging as his reasons something about our local Printers and Newspapers Registration Act I sa d I thought his reasons were fallacious, and that the case did apply to ours, and settled the question. Ho said be thought tho matter was arguable, and requested me to consider it more carefully. On Thursday last (Ist April) Mr Spackman sent me the draft of the indictment to settle, and on next day he called ou me and asked me if I had thought further of the matter. I said “ I had, and that tho more I thought of it the more convinced I was that we could not succeed in the face of the decision in Regina v Holbrook.” He said “ He thought we ought to go on.” I said, “Ton can conduct the prosecution yourself if you like, but 1 certainly will not do so against my own judgment.” He said, “ Then I suppose we must withdraw the case.” I said, “You ought not to have gone on with it wh-:« you r u ceived my telegram.” He said, " Tt was too late thou to withdraw from it.” I said, “ Wo ; I telegraphed on tho morning of the 17th March, and the case did not come before the Court at all until tha 19tb.” Ho said, “Mr Stead will be wild!” This remark presented the whole matter to my mind in so ludicrous and contemptible an aspect that I am afraid my succeeding observation —which was of an ejaculatory character, and consisted of but three words —was somewhat irreverent, so that I shall refrain from recording it. However, the whole tenor of Mr Spackmsn’s remarks led me to suspect that terror of Mr Stead’s wildness had impelled his solicitors to conceal from him the advice which I _ had given them, and that something sinister was intended to bo said with a view to throw upon me the responsibility of producing an abortive prosecution, to I said “ I think, Mr Hr*'knian, I ought to write a letter to Messrs Wynn Williams and Deacon, stating my reasons for ad rising the withdrawal of the case,” and then and there I wrote my letter of 2nd April. Now, sir, yon havo tbo who’e of it—of the ingenuousness or otherwise of the sympathetic expression of regret on the part of Messrs Wynn Williams and Deacon, “per W. H. Spackman,” “that Mr Juynt bad not advised to this effect earlier, but as matters havo turned out there is no help for it,” your readers will be, perhaps, better able to judge am. I suppose these gentlemen did not think when they wrote theirl etter of 2nd April that 1 should bare an opportunity of seeing it. Perhaps I ought to say that my interviews as to this matter were with Mr Spackman alone, and that I had no communication with either Mr Wynn Williams or Mr Deacon personally, save on one occasion, I thick about the beginning of 1 lust week, when the latter gentleman in 1 tha street and said, “ Are you not soin;; to

prosecute iu S.eud's cue?" I suid, " I have uo objection to do ss> it' i am supplied with tho evidence 1 requiro." It I hi.ve misquoted tho telegrams to Messrs Wynn Williams and D.-acsn perhaps they will kindly set me right by publishing them in exlenso.

1 cannot concludo without expressing my regret that I have beea dragged before the bur of publ c opinion to defend my professional r,)j utation, but I feel that I had no alternative than either to appear before that tribunal in my own vindication or else to remain misrepresented and misunderstood. Yonrs, Ac, T. I. Joint. Christchurch, Cth April.