ALLEGED LIBEL.

Taranaki Daily News, Volume LV, Issue 246, 7 March 1913, Page 5

ALLEGED LIBEL.

THE DAILY NEWS ARRAIGNED. UNCOMMON PROCEEDINGS. VERDICT FOR THE DEFENDANT. The Supremo Court was crowded yesterday during the hearing of the case in which J. C, Johnson, farmer, of Hawera, sued Thomas List, proprietor of the Taranaki 'Daily News, for £5Ol damages for alleged libel. Mr. Myers, of Wellington t.on (instructed by Mr. J. 11. liam) appeared for the defendant, while plaintiff conducted his case in person. The article in which the alleged libel appeared was published in the leading columns of the News on September 11 last. It ran as follows: Last week a Wanganui newspaper was proc-ed'd against bv the local Ma yor for printing a letter criticising his Mayoral action-. The comment was to the point, and was certainly not malicious or damaging, and this view was takes! by the presiding Judge and the jury, who gave a verdict accordingly for the paper. Yesterday, an individual sought to recover damages from our local contemporary for an alleged libel arising out of the report of a case in which plaintiff had figured at a previous sitting of the Court, the chief alleged defamatio'i being contained in the heading of the case, which read, ''Art Extraordinary Case.' Obviously, there was not the scintilla of a libel in the heading, nor was there in the report, which was disinterested, impartial and correct, and the Judge, after telling plaintill' some home truths, which we hope lie will take seriously to heart, simply I laughed the case out of court. Our purpose in referring to these cases is to point out how defective is the libel law which enables cases of such a trumpery nature to be brought against a newspaper for merely doing its duty by the public it serves. Both newspapers in question obtained verdicts, certainly, but a favorable verdict is always expensive, whatever costs are allowed. As the law stands, any man of straw may bring an impossible action against a paper and put it to the expense of defending the case, and the paper has no redress whatever. This is unjust. We have always held the opinion that before a writ for libel or slander is issued the merits of the proposed action should be investigated by a magistrate, sitting for a time as a grand jury, and be only proceeded with when the magistrate is satisfied that a prima facie case has been established. Also, it would be only right to insist that an amount of money sufficient to defray costs, should the action fail, be deposited with the Court. This would give newspapers adequate protection and at the same time would not interfere with the rights and interests of the body politic and would serve to prevent the bringing of frivolous actions by irresponsible persons. The thinskinned man with a fancied grievance or a "bee in his bonnet," or the out-and-out blackmailer, would be the only people affected, and they should be affected at the earliest possible opportunity. The Press is, or should be, the watchdog of public safety. It is its duty to expose abuses, to denounce wrongdoing, to give a lead to public opinion, to guard the community as far as possible from mistakes. But it can never adequately do its duty in these respects unless it is allowed reasonable protection. A measure of relief was granted to newspapers a short time back, but it did not go far enough. For instance, whilst protection is afforded to the publication of fair and accurate reports of proceedings of local authorities, there is no protection afforded to newspaper reporting public meetings. Both in Britain and some of the colonies reports #f such meetings are privileged. The English law. which has been in opera- [ tion for 14 years, has been proved' sound. It very properly provides a < valuable safeguard against abuse, for not only must the report be published without malice, but the publication must be for the public benefit. The state of the libel law in New Zealand is a standing disgrace to a country that pretends to be enlightened, democratic and fair dealing, and should be remedied at the earliest opportunity. There has been a persistent agitation for such an amendment for years, and it is mainly a well-defined form of political autocracy that has hitherto stood in the way of this measure of justice being granted to a responsible profession. The following jury was empanelled:— J. W. Bishop, j.T-I.'Herbert, Fred. Mattock, L. Sarten, 11. T. Allen, Jas. Harvey, M. Johnston. J. Hurle, E. Harris, w" 11. Rowe, Jas. Taylor, A. P. Lister. Mr. Jas. Taylor was chosen foreman. PLAINTIFF'S CASE. In his opening statement plaintiff said: "This is an alleged libel case. (His Honor: Speak up!) I am the plaintiff and the defendant the newspaper called the Taranaki Daily News. The facts briefly are these: I became, at a former sitting of this honorable to be plaintiff in an alleged libel action. I was counsel in that action, but was not learned counsel. At an early stage of the proceedings and while I was in the box giving evidence, the Judge pointed out that the words were not defamatory on the face of them. In other words. I had not shown on my statement of claim that the words were defamatory in fact and meaning, which is a different thing in law. In legal phraseology, I had not made a prima facie case. Of course your Honor will understand what I mean. (Laughter). The Judge said that unless I could prove that, I would not be allowed to proceed with my action. I could not show to the satisfaction of the Judge that this was the ?ase, and under the circumstances I was only entitled to be nonsuited, but taking into consideration that I was a layman the Judge gave me every possible chance and offered me an adjournment if I chose to get a solicitor and put the matter in proper order. Having to ■•hose oil the spur o_f the moment I. wisely or unwisely, did not accept an

adjournment, and the case was? noil-suit-ed! For the time being I was put out of 'action, so far as the statement of claim was concerned. This statement was a very crude affair and drawn up by myself. As you are aware, the papers are permitted to publish reports of law cases, and the local papers published my case. Oil September 11, the day following' my action, contemporaneous with the report, there appeared in the leading columns of the defendant's newspaper an article entitled "The Law of Libel," ostensibly dealing with that subject. This pliper had a grievance of its own, and made use of my action, as well as that of another person (the Mayor of Wanganui) as a text to refer disparagingly to me. It published as facts certain matters which, it said, occurred in the case. These facts, opinions. expressions and deductions expressed cast reflections upon intelligence, veracity, integrity and sincerity of purpose, and the article, by statements, allusions and innuendoes discloses to the public a state of mental incapacity which, if true, would leave much to be desired. The plaintiff alleges that this

/is false and malicious. The plaintiff further alleges that the defendant seized this action as a favorable opportunity to make a demonstration for its own purpose, and by such false and malicious publication exposed the plaintiff to contempt, ridicule and reproach, which is against moral and civil law. • The plaintiff also alleges that this libellous article was published without lawful excuse, inasmuch as it commented disparagingly on tlie plaintiff and put forth certain matter which was not disclosed by the evidence. The plaintiff also contends that in view of such publication he has been caused much distress of mind, and his business seriously interfered with. His Honor: What is the particular libel on which you rely? —The fact*, your Honor, are,' first of all, all incorrect. His Honor: Which facts? The plaintiff here read an extract from the article in question, traversing tht article as far as the words "An Extraordinary Case." His Honor: A portion of the matter is somewhat personal, but is there anything that you allege which could be said '.o he hv any constn> -l on libellous? Plaintiff: Well', it show- me to be an irresponsible person. His Ilofior: No; that is where you are wrong. It is merely used for the purpose of general criticism, which doe-; not deal with you at all. It is just as if the case were in England. Asked to go on. Johnston read that part of tlie article containing the words, "to prevent the brinyiiiL' ot frivolous actions by irresponsible persons.'' His Honov: That doe- not deal with you.—lt takes me as a text. His Honor: Nothing more! I'or the present, under the circumstance, you had better go into the box. IN THE BOX. Plaintiff then went into the box, describing himself as a farmer, residing near Ilawera. His evidence was as follows: —On the occasion of September 10 last, when I was present in connection with another action, I was duly sworn and. proceeded to give evidence. By way of statement and in connection with giving my facts 1 read some correspondence that transpired between me and the defendant in the last action, the Taranaki Herald. After I read it, I proceeded to read something from the newspaper. Of course it was irregular, but I did it. His Honor: It is impossible to go into this matter (the last case) ~ I have read the last report, and I know what it is without you telling me. What Mr. Justice Edwards must have pointed out was that on the faee of the statement, without innuendo, the words were not actionable, and that it would require some innunedo giving some definite ; I meaning.—Mr. Justice Edwards said ' j that it was merely a technical point. | His Honor: It was more than that. It affected the basis of tlie action. Plaintiff: I simply did not comprehend the position, on account of . the teehni- .j calities. His Honor: It is not a question of technicalities. He gave you an opportunity to see a solicitor, in order that ; he might tell you the same thing, only with more leisure and ease. In other words, that a solicitor might be able to put in the statement on innuendo. I Plaintiff: I don't know. He may have' said that. His Honor: It is no use goirtg over the ground of the previous action. In effect, the Judge told you that in the J face of your statement your action was absurd-. If all amounts to this: You ,■ j brought an action against a man and . you were non-suited. Plaintiff: It is not what the paper (the News) published. They comment- . ed as if my case had been investigated/ and is if I "went under on its merits. As a matter of fact, my case lias never been ; finished. His Honor: It said nothing of the sort! They are not bound to carve their article to suit you. Plaintiff: They published facts which were not true. His Honor: Head it over, then, and if you come to anything let me know. ' " The plaintiff read the article, halting | when he came to the words, "yesterday an individual." His Honor: If they had said "Yesterday one J. 0. Johnston," it would have been much harder than calling you an individual. Plaintiff: I am not putting that in my claim, although I consider it libellous. This (reading from an excerpt) makes me absurd. His Honor: Tf every time a newspaper made a man absurd a libel action ensued the courts would be kept very busy. What about the words "An Extraordinary case"? Plaintiff: I say that the alleged de- } famation of those words was not iiil vestigated. His Honor: It is not necessary to investigate to find out that these words are not, libellous. Plaintiff: I refer you to the words,. "The Judge, after telling the plaintiff some home truths . . . laughed the case out of court." These are false and libellous. His Honor: Probably tiie Judge said that the man who was Ms own lawyer was vcrv foolish. I wjII say the same thing. However, I will see what this means. They arc the only v ords out of which libel could be construed'. The rest is simply discussion—very strongly, from a newspaper point of view. The case was not lost on a technical point. The fact was that Mr. Justice Edwards wanted to let you down as lightly as possible. He told you that on the face of the alleged libel there was no case. Plaintiff: I did not know that at the time. To return to the article: the Wanganui case and my case were -Shot, as inferred, analagous. His Honor: That is not libel if they are not. Confine yourself to this case, as I do not want to trouble the jury with your previous actions. Plaintiff: I want to ask your Honor this question: Can a newspaper publish exactly what it likes? Must its comment be fair and correct? His Honor: You go on and produce vour facts for the jury. Plaintiff: Instead of stating that a non-suit was granted, they published it as if I went down on my statement of claim. His Honor: You are here to state

facts. ; Witness then read to the jury the.portion of the article in which the words "an individual" occurred, meaning him. His Honor: It is for von to it is you. Plaintiff: Then again the statement that the heading, "An Extraordinary Case" was the chief alleged defamatjjm is contrary to fact. ' His Honor: Obviously there was, as the paper says, no scintilla of libel in the heading. Plaintiff: Tt was not sufficiently investigated. His Honor: Because on the face of it there was 110 libel. Plaintiff: There was no evidence brought in Court to show that it. was a correct heading. Therefore the Court could not adjudicate on it. I further allege that the article took my Cifee as a case in point on which to base its criticism of the libel law, and my case was described as of a trumpery nature. ITis Honor: There is 110 evidence to show that your case was described a 9 such. Tt is merely a comment on buy.

l'];iiniiff: Tllc article also refers to tlie thin-skinned man with a grievance,'' niciiliin.u nit', ut' course. Jli< Honor: J (1 o!i"! know whether il concerns yon miicli. hot. | will rend it through myself. After reading; if anything 'if all. it is a libel against the Legislature. ( Laughter). Anyhow, are those nil the facts you have to show? Plaintill': Yes, I think my statement covers them all. I think tliev are sufficient, to establish libel. His Honor (after plaintiff had been rebuked for introducing extraneous matter) : It is quite useless to endeavor to explain to a layman to the contrary, but you can go on till Mr. Myers objects. Mr. Myers: I saw that he was a layman and have not objected. The plain til!' remarked (in going over the whole history of the previous case): I tried to reason with the Judge, but it was of no avail. He said that there might be something in my ease if it were in competent hands. The plaintiff was then cross-examined by Mr. Myers. Mr. Myers: Do you object to being associated with the Mayor of Wanganui in this article? The plaintill': I only object to his ease being made analagous with mine. Mr. Myers: You don't mind, then, being associated with him? The plaintiff: Not in the least. T like to rub shoulders with that class of people. (Laughter). •'' THE DEVIL'S GLEN." Mr. Myers: Where do vou live, and what is the name of your place? The plaintiff: There is no name. Mr. Myers: Come, I would like t» know what you call it? The plaintiff: It is not a fair question. His Honor: Be good enough to remember that you are in the witness-box, giving evidence, and being cross-examined, which is sometimes a verv trving matter. Plain!iff: Very trying! Mr. Myers repeated his question, and the witness then ejaculated: '"The Devil's Glen"! Are you the wiser? Mr. Myers: Ts that where you prepared this statement of claim? Witness: What is wrong with the statement of claim, and what business is it of yours? REBUKED BY THE Jt/DfiE. His Honor (rebukingly): Mr. Johnson! I have allowed vou far more latitude than usual. Be good enough not to argue with Mr. Myers. Answer his questions, otherwise I will have to adopt a somewhat different tone. You understand that!

The plaintiff: T prepared it myself. Mr. Myers: 1 thought so. '(LnHiter). -Mr. Myers: You told the jury in the ■last action that a solicitor prepared it. Is that correct? r The plaintiff; Tt is. and it is not. He merely put in the formalities. He did not look into it. Mr. Myers: How many libel actions have you had during the last five years? The plaintiff: Xofc many. His Honor: Answer (lie question. ■ Plaintiff: Three. Mr. Myers: I asked vou within the last five years, which will make it three in oije year. The plaintiff: What aliout that? Mr. Myers: Any more in prospect? "ANYTTUXn TS POSSIBLE? .. The plaintiff: .Anything -is. possible! - Ml- Myers: Do you object to being called thin-skinned? Plaintiff: I object to it being shown that I am unreasonable. His Honor: f should object to being fialled thin-skinned. ■ r : Pljiintiff: Does his Honor object? Mr. Myers: His Honor has not been :qalle'd that. Apparently it is only Mr. t/ohnson. His Honor: I might be called thinskinned. Mr. Myers: You remember the report in this same newspaper of your prfevious case, That was a fair report I suppose? Plaintff: It was not. It was touched up. Mr. Myers: Was it defamatory of you? Plaintiff: I have made no claim against the paper. Mr. Myers: You could not have any complaint about the report, or you would have claimed against the paper. The plaintiff: Not necessarily. . y Iljs TTonor: You mean that you have not been told to put a construction on words that would make the report libellous? ■ ■ The plaintiff: I have not brought an action against it. His TTonor: You could scarcely blame people, then, for saving that you could not show any libel. Have' you any witnesses to call, Mr. -Johnson? ,-Pbi in till': My principal witness is ill and T had to release him. His Honor: Have you any further witnesses?

TIT J? SICK WITNESS Plaintiff: Do T have to fail aiiv to prove my case? His Honor: Most people do. Plaintiff: T have another man in the Court, but he cannot give you much He can only give yon what 'he saw in the. Court. His Honor: Evidence of that sort is not allowable. Plaintiff (after searching the Court with his eyes): .My principal witness is not ill now. I will call him. •7olin Adams (the "principal" .witness) then smilingly made his war into the dock. , 'Jjhe. plaintiff then assumed the role of an examining counsel, asking the witness whether he was in Court on the day of the last case. "Certainly." was the reply. "I was -tiuliil;- ill-< by yon."' Plaint ill: on have an understandinc mind? n witness (smilingly): There is no doubt about that. Mr. Johnson. A DIALOGUE. The following dialogue, punctuated with much laughter from the body of the Court, then ensued: Plaintiff: Ho you remember me going into the box and making a statement? —I remember all that . Plaintiff: What happened there?— Why. the Judge cheeked yon. Plaintiff: Why did he check me?— Because the Judge said a layman was not supposed to understand, and that yon had not shown libel on the statement of claim. Plaintiff: Was T pulled up on a technical report?—T have seen many a lawyer (pulled up on a technical point, let alone a layman, and T have been 20 years a native interpreter. Plaintiff: Well. T am not so bad then. Was it a fair article?—! was very sorry to see it. Plaintiff asked witness whether he thought it was libellous, and the reply was: Well, T have been in the courts long enough, as an interpreter, to know that T know nothing about law. (Loud laughter). Plaintiff: Bid we go fullv into the ca>e or was 1 pulled up?—No; you were checked. Plaintiff: Did T have it, ail my own wav? -No. certainly you did not! Plaintiff made some observations, whereupon witness, with a very apologetic air. remarked: "T beg your par- 1 don: T did not mean to be so abrupt." Witness was proceeding witli further

evidence, when tin* plaintiff ejaculated: ''lop! Slop! Stop! ' in tlie course of further evidence, wit- ' ne- said tli.it In* remembered that Mr. ' Jul'-'son did not seem to understand I'm i his Honor what tlie word "technical' meant, and lie knew that the plaintill' refused an adjournment, for, as a in;' :cr of fact, he (witness) had told hi; i not til accept it. '•WAIT A MINUTE." Plaintiff: Do not speak too much, Adams. Wait a minute. His Honor: T think we have had enough of it, Mr. Johnson. The jury will decide Plaintiff: May T ask another question ? TTis Honor: Well, what is it? Plaintiff: Does he know me? His Honor: T should say from what we have gathered this afternoon that ho certainly does. FREE ADVICE WANTED. Plaintiff: What evidence do I have to put in. your Honor? His Honor: Really, I cannot assist von. I cannot conceive any evidence to call that would assist you. But it is not my case. COUNSEL FOR THE DEFENCE. Mr. Myers moved for a non-suit on the ground that no libel had been made out, and that the words complained of had no defamatory meaning. It was absurd to think that the whole of the statements in the article referred to the plaintiff. Counsel then touched on the words, "laughed out of court." They were, he said, not libel.

His Honor: We have had direct evidence of plaintiff's own witness to-day that the learned Judge laughed. . The Judge may have treated it lightly. Mr. Myers continued that no doubt what happened in that case was. pretty much the same as what took place in the present case, to which his Honor rejoined: "I think we have all resisted from laughing a great deal more than we desired to." Mr. Myers went on to emphasise that the words in question could really have no defamatory meaning. The plaintiff: 1 combat all what the counsel has said. The comment was not made in the public interest. It was absolutely biassed, and was written in order to serve their own end and to mis- : state the facts. The public would nnI derstaml from the statement in the leader that the judge told me "some truths," that I was getting a of fa time! His Tronor: Sir, will you use a little more moderation? The plaintiff: I have heard many a counsel use worse. His Honor: Try and copy their better j faults and not their worst. What is i your definition of "home truths." 1 The plaintiff: Let sleeping dogs lie. . j . . . You will get over it old man.— ] These are home truths. I His Jfonor: Really, these are very senI siblo observations'! 1 The plaintiff: T was trying to put it j a little more favorably than yours. Can I put it my own way? • His Honor: Oh. certainly! i AN ERRANT SOLICITOR.

The plaintiff: I had a solicitor, and he nearly ruined me. The idea of this article was to blackguard me and satisfy their own purposes. If I had had the best case in the world T could not have succeeded, on account, of this technicality. It has sli&wn'to be an idiot, a" fool, a suspicious person. I don't believe any jury in the country would throw my case out. Many cases that have come before the Court have not been half as clear as this. Look at it (this to the jury) in a sensible manner. There is not a solitary word in the paper that is true. If they can be allowed to do this thing, they can do anything in the world. His Honor: Allow me to tell you that I think yours is a very good review. You are reviewing the case very effectively—from your own point of you. I must compliment you. You may go on addressing the jury, oh■ tlte''understanding that T am not going to have your speech over again. The plaintiff: It is hot'a speech. His Honor: On the Contraryi I think it is a very good speech.'.' " Continuing, the plaintiff remarked: It is all very well for the learned counsel to come along with quibbles, but the jury are sensible men. The plaintiff: If I should be nonsuited I shall certainly , look'into the matter, Tn my other case I was not ■tried and found wanting. My alleged ease agniiwt the Herald is'as 'good as ever. Will your Honor admit that? His Honor: I do not propose to submit myself for cross-examination! •'■OKTTIKO ROUND" HjS HOXfrR. The plaintiff: T think I am getting around His Honor. (Laugl)ter.') His Honor: All right, Mr. Johnson. Talk iiwi'.v. !

The plaintiff: The press say they are the watch-dogs of the public. I, am the watch-dog of myself. At this stage His Honor intimated that lie would reserve his decision on the non-suit point raised by Mr. Myers. COFXSEL'S ADDRESS.. Tn his address to the jury, Mr. Myers said that the case was not without its pathetic as well as its serious side. A person got an opinion into his head that lie had been done an injury. It so far preyed on him that he worked himself into believing that he had a grievance. Friends might encourage him in this fancied grievance, and the result was that in the end he would bring an action for damages for alleged- libel, which had not a leg to stand on. This was what had happened in the present case, the result being that the whole of the machinery of the Court was taken up with ventilating his fancied wrong. Wh:i t had the plaintiff really to complain of? "Newspapers existed for something more than commercial purposes. They existed for the purpose of directing and leading public opinion. It was their duty to criticise public opinion, so long as they confined themselves to what was in law called fair comment. Any proceedings in a court of law were matters of public interest, and it was quite proper that they should be, because there was nohing more important to the general public than the demonstration of the law and justice in a community, and that a frivolous case should, be brought before the Court The plaintiff: Your Honor, is that a fair statement to make? His Honor: Mr. .Tohnsou. you have put your case before the jury at very great length, and you said a great deal that was open to criticism. Mr. Myers has stated his case very fairly, and there is nothing that calls for comment. The plaintiff: Is that a fair point? His Honor: Will you hold your tongue while I am speaking? Have vou not any sense? Continuing. Mr. Myers said that surely the juv could not spell libel out of the word:- "home truths!" Occasions of the kind before the Court that day were to be deprecated, and should not be encouraged by juries. He would put it. to the jury, and strongly too, that this case was not without its pathetic side, and the sooner a man with a "grievance"' came before the Court and was shown that juries did not encourage excursions of the kind, the better. He failed to see how the jury would have any hesitation whatever in bringing a verdict for the defendant. The Court was open to the public, and a newspaper had a per-

feet right to pass such comment as it pleased, so long as the comment did not exceed the bounds of what the law considered was fair comment. A considerable amount of liberty was given to newspapers in the publication of reports in matters of public interest, and if that were not so lie was afraid that the newspapers would be of very little use to the public. Proceeding, counsel ridiculed the suggestion that the whole of the article referred to the plaintiff. It was, in fact, a general commentary on the law of libel. Plaintiff was quite incorrect in contending that the matter complained of was not of public interest. All matters in our public courts were of public interest. Johnson's previous case had been dismissed on its merits, not because of a technicality. As for the complaint that the case was laughed out of court, had not the plaintiff himself admitted that the judge had laughed? No doubt there was, as in the case now before the court, a certain amount of ground for amusement. There was, as that day, a certain amount of merriment in the body of the court and among the jury. Johnson had disclosed no cause for action whatsover against the News. Tt was perfectly proper for a newspaper to express the opinion that a case was a frivolous one. The News, however, had not even gone as far as thtst. If had made no such comment. What it had stated on the subject had no bearing whatever on the plaintiff's case. Mr. Johnson had brought a case before a judge which had been simply laughed out of court, after the judge had administered a few home truths. This was all the News bad said. This certainly was not libellous. Those in Court in the case now before the jury had heard some home truths from Mr. Johnson himself, but counsel was afraid that he (Johnson) did not even now r understand what was meant by technicalities and what the difference was between technicalities and merits. (Laughter.) Plaintiff had failed to establish any suggestion of innuendo. It was ridiculous to say that what was contained in the few sentences referring to the plaintiff was a. libel. HIS HONOR SUMS UP.

In summing up, His Honor said that j the only part of the alleged libellous < article for the jury to consider was the following: "Aiui the judge, after telling j the plaintiff some home truths, which we hope he will take seriously to heart, simply laughed the ease out of court." The rest was undoubtedly fair comment, or else without any bearing on the case. As regards the words in quos- j tion, it was for the jury to say [ in the first place whether they were r fairly accurate and next fair comment. Tf they could be held to he derogatory, ! then they wore entitled to award damages, whether contemptuous damages or otherwise. To laugh but of court did not simply mean for the judge to laugh at a party, ft reallv meant to dismiss contemptuously. He ventured to say i that if this case had been led by a mem- ; her of the Bar it would probably have f been described in much stronger language. The jury then retired, and after five i minutes deliberation rehired with a verdict for the defendant newspaper with costs,