ADDRESS TO THE JURY

New Zealand Times, Volume XLVI, Issue 10609, 7 June 1920, Page 6

ADDRESS TO THE JURY

BY COUNSEL FOR PLAINTIFF,

ANTICIPATING LINE OF DEFENCE.

In cases whore the defendant called no evidence, stated Air Skerrett, ho relied, as Sir John Findlay had candidly said, upon counsel’s address to the jury; anti tbat meant that counsel for the plaintiff, in. addressing the jury had necessarily to anticipate what ho thought counsel for the dcfendant would say. Ho ha cl no doubt that the “New Zealand Tunes” was well advised not to call any evidence It had admitted on the pleadings that it had made a false, and inexcusable attack upon the plaintiff; and it rested upon the address of his lop-ruecl friend to whittle down, if ho possibly could, tho effect ef that upon the minds of the jury. His learned fnend wax an able ‘and eloquent, advocate, and would present for their consideration every possible topic which might tell against tho plaintiff or excite some animosity in their minds against him. He waa a master of the arts of ooquetry (laughter), and as a master of tho arts of sophistry there was, perhaps, not his equal in the land, (daughter.) Ho was capable of explaining anything, and of justifying it. (Laughter.) Counsel invited the jury, therefore, to Ecrutiniso his learned friend’s address as it went along, and see whether it fitted in with their honour, tfteir conscience, and their reason. The first question they would have to consider was whether the letter was defamatory of tho plaintiff, and ho proposed to ask His Honour to direct them in a particular form. In tho statement of claim a meaning or meaning? wore attributed to the words used; and ho invited and asked His Honour, the learned judge, to tell them that it was sufficient for them if they found that tho words in their natural and ordinary, moaning were defamatory of the plaintiff. Tho result, therefore, was that they would have a very easy task so far as the meaning of tho libel was concerned. All they had to ask themselves was—- “ Are the words in this letter defamatory of the character of the plaintiff and calculated to bring him into disrepute, hatred, or contempt, or to Injure him in his business or calling?” Directing their attention to tho words of the letter, he declared that, in the language of Scripture, ho who runs might read. Tho first statement was that the plaintiff was arrested for a breach of tho War Regulations, and tho second that ho was to he a prisoner of war for a ptmisliahlo offence against tho realm. “AS CLEAR AS CLEAR.”

To be, by the accident of birth, a 'iGerman —to be, indeed a German residing in this country at the outbreak of the war —was not a punishable offence against tho realm; and, fur-

ther, the Trrit-cir of the letter had, as clear a-s clear, insinuated—had not insinuated, indeed, but stated that Mr von Zedlitz had been declared a prisoner of Avar for a punishable offence agiust the realm; and ho referred to Mr von Zedlitz throughout as “the prisoner. yt Sir John Findlay had suggested in the course of cross-examin-ation that, the war regulations covered such a multitudinous variety of eases that the writer might havo meant that he had commited a breach or tho anti-shouting regulation or of the regulations relative to trading; but ho hoped that his friend w.ould not have tho courage to address that to the jury. Jt would he too hard for any man to swallow. Tho letter was about tho duty of an alien residing in a country towards tho particular State in which ho resided, and which was giving him hospitality. It clearly referred to, and could refer to nothing ■but the breach of those regulations controlling tho conduct of aliens m time of war towards the British Empire and towards their own country, Germany. That governed the nature of the offence which it would be understood had been insinuated to have been committed. In all seriousness he put it to them that at the time no more serious charge could be made against a man. It was a time of justifiable excitement. Indeed, it was one of the wonders of the ages that throughout all tho perils of tho war—land God knew there -wore times when our fortunes hung in the balance—Englishmen and colonials kept their heads and struggled on and on. But there were necessarily periods of great excitement; and he put it to thorn, as solemnly as a man could put anything to his fellow-men, that there was nothing more calculated to injure n fellow-man or to hurt his feelings than the statement that he had committed a breach of tho War Regulations and a punishable offence against the realm.

“NOTHING TO DO WITH THE ' CASE,”

If he had convinced their minds on that point, Jbeil the only question was the amount of the damages which they had to award. But it was difficult not to embark upon a variety of topics which really had nothing to do with the question, and which, perhaps, His Honour would tell them had nothing to do with the case. The reason was that they. were all hifman, being all affected by the atmosphere of the community in which they lived; having the hopes, and thoughts, and aspirations of that community, and having, pf course, its prejudices rooted in their minds. As a result, both Sir John Findlay and himself had thought it necessary to embark upon topics which had really no bearing upon the matter, but which might influence the minds of the jury when they camo to consider- what damages the plaintiff was entitled to. As a matter of abstract right and justice, these issues had little or nothing to do wital the question of damages. NevcrthcI less, they must ho inquired into, for they ought to know what manner of man was this who had come to seek a remedy at their hands. Vo Englishmen were proud of the fact that when anyone, bo he rich or poor, came ■ n the tribunals of our country for justice, even-banded justice was meted out to him. It would bo a blot upon the glorious history and tradition of justice in our laud, it would. he a blot upon the escutcheon of the juries who controlled and wore the judges in trials of that kind, if that practice should be in the slightest degree departed from. He did not believe that it would be. - Ho had the proved confidence that they would do their duty; and that was all that was asked for. They did not ask for favour, but simply for fair play and justice. “NO BED OF HOSES.” The plaintiff had been in the wit--11 cv;s-b ox, and had submitted to crossexamination, by one of the ablest cross-examiners of the day. The wit-riess-box was no bed of roses, particularly when the cross-examination was conducted with the magnetic force which his friend fortunately possessed. The jury would notice that ho had almost imposed, or endeavoured to impose, his will upon the witness in the argumentative cross-examination which was indulged in. But ho (Hr Skerrctt) put it to the jury that Mr von Zedlitz came' unscathed through tho ordeal, and that he was the witness of truth, with an honest intention to tell the truth, the whole truth, and nothing but the truth. The plaintiff might hq a German by nationality hut counsel ventured to put it to tno jury that he was at least a man. They had heard the history of his life, and he asked them: Was there anything in it to entitle anyone to point tho finger of scorn at him? Ho had lived throughout the life of an honourable man, engaged in an honourable profession, and devoting all his energies and talents to tho education of our sons —a profession which ho dearly loved) and in which he had, gained the high approval of the Council of Victoria College. More than that, many of his students had fought at tho front, and ho had gained their confidence, tho confidence of men as patriotic as any of them there, associated with him in their tcndcrest years, in tho growing years of manhood. No man was more capable of judging the character of a man, and ho had secured their confidence and esteem. After tho war, _ counsel asked, was there anything in the plaintiff’s conduct . or demeanour ns to which his learned friend could fairly attack him? Had ho by word or deed done anything that ought to merit tho disapproval of honest men? A. HARD. HOW TO HOE. Plaintiff had had a hard row to hoe since tho war. No non-combatant bad suffered more through tho war than Mr. von Zedlitz. Tho war had ruined his just and legitimate ambition. He had attained a prominent position ns a professor in tho college, and ho had the right to look forward

to long years of usefulness, and, indeed, to tho possibility of promotion to tho chairs in other and higher universities. That was all struck away by tho declaration of war. Did ho whimper about it? Had ho whimpered about it in tho witness-box? Not a whimper. Ho had borne it as a man; and when he found that by Act of Parliament his occupation was taken away, ho went during the period of tho war practically to manual labour for a living. lie was, it wan true, a nominal German. Wo could not choose our country by birth, but wo could our -country by adoption. From eight years of ago till tho present time plaintiff was not in Germany. except for ono year passed at an educational college at tho ago of fifteen. His mother was to all intents and purposes an Englishwoman, though of Dutch ancestry. Plaintiff had married a New Zealand girl, and had growing up around him a young family. Hi« learned friend, in spito of all this history, had tried to make out that Mr vou Zedlitz possessed and had expressed German sympathies. NEVER. HAD GERMAN SYMPATHIES.

When tho jury considered tho evidence they would see quite clearly that ho never had any. His position was declared in a memorandum published Jong before tho trial was thought of —‘‘When Germany declared war upon Franco and Russia. I had the gravest doubts of what I ought to do, and for a moment conceived! it as my duty (in entire opposition to my iulierest and inclination) to go to Germany. When a, few days later Great Britain entered into the war, I clearly realised that the bare clams of birthplace and paternal ancestry could not create for mo a duty to act in any way that might conflict with the interests of tho country of my adoption, to which I am bound by every tie of habit, association, and gratitude.. That was in the first days of August, 1914. Since then much had happened after making every allowance for possible distortion and exaggeration) to fill me with shame and horror at acts committed or sanctioned by responsible German authorities. These very acts, meanwhile, wore creating that popular opinion which clamoured for-,-my punishment. Could anything mora than that show the unswervingly honourable character ot tins man? Remember, said counsel, he had been educated as an Englishman at an English public school, and had graduated at an English university Ho ventured to put it to the jury that plaintiff’s conduct was exactly wiial they would! have expected from a man so educated and brought . up. When Germany declared war against 1 ranee, ho had' a problem (to consider Ho might havo been under a legal obligation to serve Germany in a war against France, but he found that i that was the case it was impossible for him to do so; and when Gieat Britain came into thei war, and Geimany had made her unwarranted ent™to Belgium, ho at onoe made up his mind that his .duty lay, a-s,_hls sympathies and his interest, wnh Oreat SrTtaim with the Empire m which he had lived all his man s liie. “THE CHIEF WEAPON.”

Describing tho conditions under which Proflsor von Zedlitz wrote the letter to Mr (now Sir. Bell onoted in Saturdays Times, Mr Skcrrctt said: “Little did this highminded gentleman think, when wrote that as a matter of fairplay and honour to Air Bell, that >t would bo used, as tho chief weapon to attack him and run him down. As to bur John Findlay’s demand why hc d.dnot on receiving Mr Bell s letter, ho Seed tho jury to picture Sir John, comfortable and enjoying a big practice, and this man who, if ho had resumed, would have had to go, as no did eventually go, to manual labour to earn his living. . Ho wanted them to contrast tho position of the maker of this code of honour, with that ot the victim of tho code ho set up. Tho ease of Prince Henry of Battcnbur„ was not at all a parallel case, ho contended. Prince Henry only retired under considerable pressure, and lie certainly did not have to take up manual labour for a living.. Dealing with the question of naturalisation, counsel summed up tho views of tho plamtilr as stated in tho witness-box, and pointed out that, whereas in England a nominal German could ne naturalised during the war if iho Government were satisfied of his bona fides, that could not bn done in New Zealand. Tbo plaintiff could not be naturalised hero even now, but he would be m a few months. His learned fnend m his strugelo to injure tho plamtitt he. did not mean that to refer to Sir John Findlay personally, who, on .me contrary, had performed, an unpleasant duty with great courtesy mid moderation, hut to tho .‘ Now Zealand Times,” under whose instructions .10 acted—had asked ,Mr yon Zed htz, m an obvious effort to damage him .as much as possible, whether j?is cousin or some other relative, had been a Governor of some part of Belgium doling the war. He might as well have asked him what his aunt or his great grandmother did during tho war. As to compensation, Mr von Zedlitz ieccived a. year’s salary, only ho would have received had ictona College chosen to (terminate his employment; and counsel asked the jury not to allow that to influence them in considering the question of damages. Then, counsel for defendant, had put it to the plaintiff that ho said that ho had been persecuted for many years bv anonymous letters and other communications in the Press; yot this was tho only action he had brought. looplo, stated Mr Skorrott, were entitled to attack plaintiff by urging that ho should bo interned as an alien, and ho had never resented that. But that was a very different thing from, a statement in a well-established paper with a largo circulation that he hid committed a breach of tho M ar Regulations and a punishable offence against tho realm. That was a very different matter, "and was defamation of character. Reading tho letter sent bv the plaintiff’s solicitors to the “Times,” and tho reply of tho manag-ing-editor to that letter, Air. Skerrctt maintained that tho former was .perfectly fair. It emd that tho plaintiff would not accept a bare withdrawal and apology, and nothing was more insulting than a bare withdrawal and apology; hut it distinctly intimated that they would accept a proper withdrawal and apology. All they wanted, was that the defendants should say that they believed that this man had not committed a breach of the regulations or a punishable offence, and had acted honourably throughout Counsel asked His Honour to direct tho jury in tho words of Odgcr, one of tlio greatest authorities on libel and slander; “The sufficiency or insufficiency of an apology is peculiarly a question for tho jury; but a statement cannot ho called an apology unless it both unreservedly withdraws all imputations mid expresses regret for having made it. Defendant must .not try _to exculpate himself or to justify his conduct.” They must judge tho defendant’s letter by that. “BAD AS THE ORIGINAL LIBEL.” "He said deliberately that tin's letter was as bad as tho original libel, ami he would have no difficulty in satisfy-

ing them on that point. Dealing with the letter point by point, counsel said that it stated, in tho first place, that “although Professor von Zedlitz was under careful surveillance for sonic period of time, he was not actually arrested.” But there was no evidence that ho was under careful surveillance. Then tho letter stated that the statement complained of “was not incited for tho purpose, of doing tho professor injury, but in. illustration of a sound principle that is being violated.” In other words, a false statemen was given as an illustration of a sound principle. The lie was justified by the most Jesuitical reasoning. Tho letter added, “wo decline to offer an apology, and for these reasons.” Counsel ridiculed the idea that these reasons should, ns described by the “Times,” accompany an apology printed at tho plaintiff’s request. He contended, inter alia, tluit reason (4) — “That in our. country certain, persona of enemy origin were trusted for a time, and that tho Government eventually found it necessary to place them in confinement. No exception should have been made in tho case’ of Professor von Zedlitz”—was an insinuation that the plaintiff was in the same class as those referred to; while rea--son (o) —“That though the authorities did not actually intern Professor von Zedlitz, they could not have been wholly satisfied concerning the freedom extended to him, or they would not hare subjected him to strict surveillance”—was an . insinuation that he had done, something which canned a suspicion of him in tho minds of the authorities. That was what the plaintiff was to request the “Times” to publish; and if lie had asked them to do so, probably they would havo introduced it as follows:—“We publish this letter at the request of the German professor.” Even in that moni-inp-’s “Times” a paragraph describing tho evidence >n this case had been headed, “German Father —-Dutch Mother.” Was that true? It was, hft contended, a false heading. Sir John Findlay protested that that should not be said. The “Times” had given a very full report of the case. Tlie evidence was given in full; and tho suggestion that a false heading had been made was not fair. “MADE BAD WORSE.”

Reason (8), continued Mr Skerrctt, was—“ That -tho visit to our coasts by German raiders, and tho successful laying of mines in tho approaches to this and other New Zealand harbours was a further strong and sufficient reason why every person of enemy origin should have 'been kept in confinement, with no opportunity of signalling from our coasts until tho war was ended.” That was to bo published in tho apology that Professor von Zedlitz was to ask the “Times” to publish. The defendant know that the rumour hficT got into tho Press that signalling had taken place from the plaintiff’s house; and yet ho was to request that that should be published 1 Was that, asked counsel, a fair apology? Could any reasonable man say that it was a fair apology? Tho defendant’s letter, ho contended, made bad* worse. He put it to tho jury with great confidence that it was impossible for them to treat that as a fair apology, or ns in any wise mitigating the damages asked for. Why, ho asked, should not the “New Zealand Times” have published a proper apology? Were they above the law? Wore they to have some inherent right, not posses»ed hy others to attack character and decline to apologise? Ho hoped that the jury would hesitate long before they allowed to any newspaper, or to any person, such a privilege., ABSOLVED FROM PERSONAL MALICE. His client had absolved the “New Zealand Times” itself from any personal malice towards him; but ho (counsel) was bound to put it to them that that did not affect this question. Tho question was —“Ought the ‘New Zealand Times’ to have given a frank apology and a frank withdrawal of the letter published in their paper?” They were not responsible for the writing of the letter, and could, without loss of honour, or of dignity oven, have published a proper retraction and apology. They refused to do so. It might pay this well-established paper with a wide circulation better to have proceedings in court and show what valiant follows they were, what valiant defenders of their country. But he hoped that tho jury would not mark with the seal of their approval that class of journalism. If they did it in one case’ it would be done in other cases, and private character would be at the mercy of slander. Ho had told tho jury tho previous day tho circumstances under which they made the claim for £IOOO. They did not ask nor expect the jury to give damages of £1000; but they asked tho jury to give judgment for a substantial, moderate sum, to mark their opinion of the fact that, though the “Times’’ knew that this statement was false and could not bo justified, they refused to apologise. They did not, he stated, require the consent of the’ plaintiff to an apology. They • could have published such apology as they desired in, tho paper, and have pleaded that apology in* court. Ho put it that the plaintiff had been driven to ‘fheur the great cost of proceedings, and. bring tho jury from their homes and businesses to consider the matter, and that they would bo lacking in their duty to their followcitizens and to private character throughout the country it they did not mark hy some moderate but substantial sum their sense of tho position. He asked them for such damages as they, as men of honour and as Englishmen, thought should bo given. They were not asking of their generosity, only for fair play and justice at their hands.