SUPREME COURT. Before Mr. Justice Stephen. Friday, August 27, 1852.

New Zealand Spectator and Cook's Strait Guardian, Volume VIII, Issue 739, 1 September 1852, Page 3

SUPREME COURT. Before Mr. Justice Stephen. Friday, August 27, 1852.

THE QUEEN V. ROBINSON. His Honor delivered the following Judgment :—: — In this case an order was made on the 21st day of July novr past, calling upon the defendant to attend " this Court on the 24th July to answer for unlawfully and contemptuously publishing in the Wellington Independent, on the 17th day of July, a certain letter signed S. Robinson charging his Honor Mr. Justice Stephen, a Judge of this Court, with partiality and corruption in his office as Judge, in respect of a certain fine imposed by his Honor on the said Samuel Robinson for non-attendance as a juror on the 2nd of June now past." His Honor said the order was made on reading the affidavit of R. R. Strang, Esq., Registrar of the Court, that the letter in question was 'published in the 'lndependent, and which set forth i the letter in full, of which the following is I an extract : ~^^^^^^^^^^^^^^^^^^^

' On the 24tb the Court sat when Mr. King* 1 appeared for Mr. Robinson and pressed for a postponement of the case in order to be more fa] 'y prepared to argue his objections to tbe proceedings. His objections were, that there was no attorney, in whose name the proceedings were instituted : that they should have been taken by the Attorney General, as the officer representing the* ■Court : that the order was not properly drawn, as. it professed to be merely "on the reading of Mr. Strang's "affidavit" whereas it should have expresstd, that it was made also on the reading of the Wellington Independent in which Mr. Robinson's letter appeared ; that no process of contempt could be had where there were no proceedings pending. That the proper course would be. by indictment or action His Honor refused his application on tbe ground that he had had two clear days notice, and that the object for his requiring it was nut one to entitle him to the favour he sought. On this be declined to say anything further. Mr. Robinson was then called, and did not answer, on which an attachment was issued against him. It suhseqently appeared from a petition and affidavit of Mr. Robinson, that Mr. Robinson's non appearance to the order of the Court was occasioned by Mr. King's advice. The Court having been adjourned to the 27th on the application of Counsel for Mr.'M'Kenzie, charged as the proprietor and managing conductor of the newspaper in which the offensive matter was published; on that daf Mr. Robinson was brought into Court on the attachment, when Mr. King moved, that Jie should be discharged out of custody, on the authority of Lech mere Charlton's case reported in the Law Journal of 1837, N. S. p. 185, where a similar motion was made, and he was proceeding to argue that the affidavit, on which tha original order of July 23rd, was granted, was irregulat ; but his Honor refused to hear him, except to answer the matter charged. For this purpose, his Honor directed Mr. Strang's affidavit to be read, and then read Mr. Justice Blackstone's remarks on tbe subject of attachments, citing from 4 Stephen's commentaries 348, «}5O, in which he says :—: — "To this head of summary proceedings may also be properly referred the method, imraemorially used by the Superior Courts of Justice, of punishing contempts by attachment, and the subspquent proceedings thereupon. The contempts, which are thus punished; are either direct, which openly insult or resist the powers of the Courts, or the persons of the Judges who preside there, or else are consequential, which, (without such gross insolence or direct opposition) plainly tend to create an universal disregard of their authority. The principal instances of either sort, that have been usually punished by attachment, are of the following kinds, &c." He then mentions several which it is unnecessary now to refer to, and proceeding to the 7th class of cases of contempt, he tays: — "Those committed by any persons in the way of disobedience to the Queen's writs, or other disrespect to the Court's authority, some of these contempts may arise in the face of the Court ; others in the absence of the parti/, as by speaking or writing contemptuously of the Court, or Judges acting in their judicial capacity ; by printing false accounts, or even true ones against the prohibition of the Court, of cases then depending in judgment ; and by any thing in short, that demonstrates a gross 'want of that regard and respect, which when once Courts of Justice are deprived of, their authority so necessary for the good order of tbe Kingdom is entirely lost among the people." His Honor proceeded to quote further from the same author, p. 350. " The process of attachment for these, and the like contempts, must necessarily be as ancient, as the laws themselves. For laws, without a competent authority to secure their administration from disobedience and contempt, would be vain and nugatory. A power therefore in tbe Supreme Court of Justice to suppress such contempt!, by an immediate attachment of the offender, results from the first principles of judicial establishments, and must be an inseparable attendant upon every superior tribunal. Accordingly, we find it actually exercised as early as the annals of our Law extend, and tho' a very learned author (Gilbert Hist, C. P.) seems inclined to derive the process from the Statute of Westminster 2, 13 Edw. 1 c. 39, yet he afterawards more justly concludes, that it is a part of the law of the Land, and as such is confirmed by the Statute of Magna Charta." His Honor then stated the course to be pursued in cases of contempt, quoting from the same author, p. 351 — " If the contempt be committed in the face of the Court, the offender may be instantly apprehended, and imprisoned, at the discretion of the Judges, without any further proof, or examination. But in matters, that arise at a distance, and of which the Court cannot have so perfect a knowledge, unless by the confession of the party, or tbe'testimony of others, if tbe Judges, upon affidavit see sufficient ground to suspect, that a contempt has been committed, by either making a rule on the suspected party, to show cause, why an attachment should not issue against him, or in very flagrant instances of contempt, the attachment issues inthe first instance. This process of attachment is merely intended to bring the party into Court, and when there, he must ehher-stand committed, or put in bail, in order to answer upon oath to such interrogatories, as shall be administered to him for the better information of the Court, with respect to the circumstances of the contempt. If the party can clear himself upon O«tb, ht is discharged, but, if perjured, may be

prosecuted for the perjury. If be confess tbe contempt, the Court will proceed to correct him, by fine or imprisonment, or both, and sometimes, by a corporal or infamous punishment. The Defendant may be admitted to make an acknowledgment ol the fact, and receive his judgment, without answering to any interrogatories ; but if he wilfully, and obstinately refuse to auswer, or answers io an evasive manner, he is then clearly guilty of a high,' aiul repeated contempt, to be punished at tbe discretion of the Court." His Honor then desired the interrogatories to be read which merely enquired whether Mr. Robinson was tbe writer of the letter in question, and whether he had caused its publication in the Independent, of I7«h" July. These Mr. Robinson, on consulting Mr. King and Dr. Evans bis professional advisers, declared be would not answer, whereupon bis Honor ordered he should be committed to jail for one month. On the 29th Mr. Robinson, having been two days in prison, presented a petition praying to be discharged, and ultimately he was discharged on the Ist on giving bail to appear before the Court this day (27th August) to receive judgment. Mr. Robinson's petition among other things stated :— " That your petitioner, in writing such letter, solemnly declares, that he bad no intention of committing a contempt of this honorable Court, but considered that be had full right and liberty to express his sentiments on the subject of the said fine, inflicted on your petitioner, he feeling aggrieved therein, and your petitioner humbly apologizes for the manner in which he so expressed himself, and for having imputed partiality and corruption to his Honor, in inflicting such fine, and your petitioner regrets, and is sorry for the writing and publishing such letter." His Honor having read over Mr. Robinson's petition, proceeded to examine the objections and arguments of the Counsel for the defendants, and the cases quoted by them. In answer to an objection by Mr. M'Keuzie's Counsel, his Honor referred to Bagley on chamber practice, p. 1, who says : — " The authority of a Judge at chambers is tbe authority of the Court itself. Upon any other principle it would be difficult to demonstrate tbe validity of many of the acts done by Judges in cases, and under circumstances, in which the Legislature has not specially invested them with power in their individual capacity. In many instances, however, and especially under recent statutes, authority is conferred on a Judge at chambers, in express terms, by Legislative enactments, and, iv some cases, tbe authority is impliedly given." To the objections to the form of the affidavit, and of tbe order, his Honor said a prima facie case is sufficient to put the party to his answer, in proceedings of this kind. In ex parte Bayley, in the matter of Harper, 9 Barn, and Cres, 691, which was a case of summary jurisdiction, as this is, Lord Tenterden says, " I am of opinion that this case is not to be decided by any strict rule of law. The Court exercises a jurisdiction over attornies, and that is to be exercised according to law and conscience, not by any technical rules." And in a case which occurred in this Court some years ago, in which Mr. Spain, was applying for a, criminal information against Mr. Fox for a libel, tbe affidavit merely set out the libellous matter, which it alleged Vas contained in tbe New Zealand Gazette and Wellington Spectator, without annexing that paper to the affidavit, and the order purported to be issued on " on reading the affidavit" without adding upon reading tbe libel in question, or the newspaper." Tbe very objections moved 1 by the affidavit and order in this case, but those objections having been taken, were overruled. The cases referred to by defendants' counsel were Lechmere Cbarhon's case ; King against Faulkner, 5 Tyrwh. 915 ; Vansandau v. Turner, 6 Qu. B. 773 ; Tomline's Law Diet., title contempt ; and Dean's case in Cro. (Eliz.) 689. These his Honor commented on at great length, and in support of his judgment referred to Mr. Serg. Hawkins PI. Cor. Brok. 2, c. 22, title attachment ; the King v. Clement 4 Barn, and Aid. 218, and Martin's case reported in 2, Rup. and Rep. 674. Having concluded the legal argument his Honor said : — "Having now gone through all the facts of this case, and having shewn that the Court possesses the power to punish the defendant for the contempt of which he has been guilty, 1 think it almost unnecessary to make any further observations upon it. It is only because of others that I have been so careful to collect the authorities upon the subject. As far as the defendant himself is concerned, the simple question is, has he been guilty of an offence, or not? For, whether be was punishable by action, as unadvisedly contended by one of bis counsel, or by indictment, or criminal information, his conduct remains the same, flagrantly improper. Had I proceeded by either of tbe two last mentioned courses, how would tbe defendant have been profited by it ? Does he suppose that any jury could have been found, who would have violated their oaths so" far as to say' that he was not guilty of a gross libel ? and would he have escaped ! punishment at the hands of any other judge. To have proceeded in either of these ways, the defendant must have gone to Auckland to be tried I there ; was that a preferable result ? would the loss of time, and the expense, and inconvenience, occasioned by an attendance at such a distance be more desirable for the defendant, than that the matter should be disposed of on the spot ? For myself, I can most truly declare that I should infinitely rather have bad the matter so settled, and nothing but the firm conviction, that it was a duty I owed to tbe high office I fill, not for the sake of myself, but of the whole community who are interested in the maintenance of the power and respect belonging to that office, that I engaged in this painful duty. But now the task is over. I have pointed out the consequences of such a contempt, and I have no reason to suppose, that there will be here, any more i than there was in the Australian Colonies, in which I have practised for above 24 years, though stigmatised as they have been as penal colonies, any desire to obstruct the due, administration of justice by attacks like the present. If they should be repeated, tbe party offending must not expect that the same lenity will be displayed as in tbe commission of a first offence. It is in this bope, but at the same lime with this determination as to the future, that I pass now so lenient a sentence. But let it be understood tbat the offence now to be punished is, the sending a false statement of what the Court de-

cided, and the grounds of that decision, from which the defendant made out a charge of partiality and corruption. Had the facts been truly stated, he might have asserted that there was partiality, but every one would have seen that there was no foundation lor such an imputation and his remarks would therefore have been harmless. No man can wilfully make a false statement in any matter, without certain loss of character. To attempt to mislead another by a falsehood, is to offer him an insult. How much more then ought the public at large to require truth in all communications of a public nature ! I will not believe in all sincerity I say it, that I am at a loss to believe that the defendant was the author of the letter in question. ,Ko man, of the slightest_pretensions to respectability, could have so recklessly determined lo propagate such an unfounded untruth. But I blame the defendant for not making further enquiries from those who were present, and whose statements would hav,e entitled them to credit. Why not have appealed to the Registrar for such information ? or to the party himself who was alleged to hare been unjustly favoured. And I blame the defendant still further, now that he has had the opportunity of knowing that hit statement of facts was untrue, from having seen the affidavit of Mr. Strang, for not mentioning candidly in his petition, that he was mistaken. Why does he so express himself, as if he still would maintain, that the facts were such as his letter represents ? He has not dared to controvert Mr. Strang's statement by any other affidavit, nor does he even openly avow that he still believes what he {asserted to be true. This he should have done, if he meant to do it, openly and manfully. But how badly does the writer's cqmplaint of partiality to another come from one, who himself could . write a letter to the Sheriff, requesting as. a favour lo be excused from attendance ! How low must be his opinion of those, who are entrusted with the administration of Justice , that he should be excused as a personal favour, on grounds, which could be urged by every other juryman in the district, and with greater reason than by himself ! The defendant, living but a few hundred yards from the Court, fails to attend even for a few minutes, for three whole days ; his only excuse being, that he has no one to whom he could entrust his shop, and that be would have to close it. It was not shewn that be would have lost any thing by closing it. How many mechanics are there, to whom a loss of three days would have been a serious injury f How many are there, who living at a distance would have had to leave their homes and families and employments for all that time, wholly without the protection of their presence ? How many might have pleaded some indisposition, which would make it desirable that they should not be exposed to the consequences of attending? How could any one of such persons at any time hereafter be fined at all, if the defendant had been fined less than the sum imposed on him by the Court ? The Court must administer justice agreeably to law. The law has established the amount of the penalty. If the Legislature thought £10 was a proper fine in any case, where coald there have been one, more thoroughly. requiring such a a penalty, than the defendant's case ? And yet, it was reduced by the Court to £5, and for this the defendant says he felt himself aggrieved/ Much more might suitors at a future time have complained when their witnesses, being brought down at a heavy expense nnd other preparations made for trial, they found, that there was no jury in attendance. And bow would it then have been just to fine the absentees 1 Men are to be blamed for their acts, not for the consequences of their acts ; and having once established that it was excusable for a juryman to stay away, whenever he wished, the whole jurisprudence of the country might soon have been brought into a state of uncertainty and confusion. I need add no more. I have shewn lenity in more instances than one to this defendant, in the course of these proceedings, from the passing the fine to this moment ; and he might have suffered less, bad he acted as any man, who does wrong, should act ; had he at once acknowledged his fault and requested forgiveness. He has brought all that he has suffered on himself, and yet be has shewn injustice and ingratitude in blaming the Court. I shall not, however, act vindictively. I will yet again deal leniently towards him, more so, perhaps, than I ought. But I must not wholly pass the matter over. I have a duty to perform, and I will pet form it. I must guard the administration of justice from such attacks, and from any thing else that may operate as an obstruction to its due course. I shall not imprison, though there are many persons, now under sentence in the gaol, whose offences are not of so aggravated a character. They are confined for breaking the public peace. This is a higher misdemeanor, it is an injury to public justice. The fine too will be perhaps less than the defendant has voluntarily inflicted on himself by bis unwillingness to acknowledge his fault. The sentence of the Court ony»u Mr. S. Robinson for the Contempt, for whicb you are now before the Court, is that you do pay a fine to her Majesty of £20, and that you do find surpties, yourself in £100 and two sureties in £50 each, to be of good behaviour for 12 calendar months. We regret that the length to which our report has extended obliges us to compress in a brief compass his Honor's remarks on Mr. M'Kenzie's case. His Honor, in commenting on the proceedings that had taken place, and on the memorial that had been presented by the Defendant to the Court, observed, that if a person lends himself to an illegal act, he must be responsible for it, and referring to a subsequent number of the Independent, he said, that in the observations that had since been published, there was a further aggravation of the offence. Dr. Evans rose to object to his Honor's referring to any subsequent number of the Inde> pendent as a most unusual proceeding. His Honor after noticing and overruling Dr. Evans' objection, said, he should. not allow those observations to influence his proceedings, he had no disposition to act with harshness, but should pursue the even tenor of his course ; since he had acted in this matter, not for his own sake, but for the sake of the public. After referring to the remarks in the Independent, in which the writer states :—: — "Is, a man to be grossly libelled, it will be asked, and not to seek redress? Decidedly not. A man unjustly accused through the columns of a newspaper can clear himself from the accuta-

tion and denounce his accuser through the same channel ; rr if he thinks fit he cv enter an action for libel ami c btain damages for the injury which the publication of the libel has inflicted upon him." His Honor observed would it be at all decorous in a Judge of that Court to descend to a personal altercation in a newspaper ? Would it be right for him to degrade his office by engaging in a newspaper squabble ? The Editor in effect said " You cannot try me because you are a Judge." But was not this in effect to say " t I will tye your hands and then strike you?" and was such a course consistent with the manly spirit of an Englishman? If they had published the truth he would have been the last person to object to it, let them publish the truth, however unpleasant it may be to any one to hear it, and let the public be the judges of the truth; but it was most unfair to publish what was not true and tken to comment on it as if it were true. His Honor observed that the liberty of the Press was best guarded by being kept pure ; let them publish the truth, and then the bolder they were the better. After some further observations on the necessity of protecting the Court, his Honor said he should not in this case visit the offender with fine, but should require the defendant to find bail for good behaviour for twelve months, himself in £100 and two sureties in £50 each.