GREAT LIBEL CASE

Tuapeka Times, Volume III, Issue 158, 16 February 1871, Page 6

GREAT LIBEL CASE

ALLEGED DEIVER-TEEWEEK LETTER,

No. 2. (From the " Daily Time 9," Feb. 13.)

John Dick, of Dunedin, printer, appeared in answer to an information issued at the instance of Henry Driver, of Dunedin, stock and station agent, charging the defendant with having at Dunedin, on or about the 4th inst., falsely and maliciously printed and published a libel against the said Henry Driver. The libel consisted in tie printing of a placard, which was afterwards posted in different parts of the city, and purported to be a copy of a letter written by the prosecutor to one John Treweek.

Mr. James Smith and Mr. Macassey appeared for the prosecutor, and Mr. Barton and Mr. Bathgate for the defendant.

When the Clerk of the Court had read a few lines of the information,

Mr. Barton : Tour "Worship, I appear with Mr. Bathgate for the defendant in this case. 1 have to ask that it be adjourned for eight days on this ground : The summons appears to have beei? issued on the 7th inst. ; but for soms reason, of which I am not aware, the parties did not choose to serve it until the day before yesterday. I got it, as I am informed, immediately after it was delived to the defendant. I received it when in the Supreme Court, engaged on business, and immediately after leaving the Court I took steps to ascertain the facts of the case, and to make myself master of the situation. In cousequence of there being a holiday yesterday, on account of the Volunteer Review, the offices of this Court were closed, and therefore I was not able to get subpeenas. The Magistrate : After two o'clock. Mr Barton: "Well, my clerk attended at the offices shortly afterwards. However, I have an affidavit made by him, shewing that an application was made, and tiiat the offices were closed ; the result being that I was unable to issue subpoenas. This is a case, your Worship, of considerable magnitude and importance, and it is my intention to ask for a full Bench to hear it. In the next place, it is my iutentiou to call a great number of witnesses — twenty, at all events. I asked that this case should be adjourned, but the application wus refused, and now I ask the Bench to grant the application for an adjournment, because it would be unwise and improper for me to proceed when 1 am unprepared to meofc the case for th? prosecution, and also to cross-examine the complainant's witnesses. 1 repudiate the idea of this being a Crown prosecution, and I ought not to be asked to proceed uucil I havo made myself n: aster of my own situation, and of the facts of the case. I, therefore, ask you to adjourn the case for a week. I may state that one of the witnesses is John Treweek, to whom the alleged libel letter was sent. He is, at present, at Wanganui, and I shall be compelled to send for him, so that under the circumstances it would be most unfair that I should be asked to go on, There was another caae of the same character brought before this Court, and in which one of the learned counsel who now appear for the complainant, appeared for the defendant, and that case was adjourned in consequence of a similar difficulty as to witnesses. That case has been remanded from time to time to meet the requirements of justice. Of coui'se, I need scarcely point out that it would be entirely unsafe and improper for me to go on with this case in the absence of the witness Treweek. So far as my instructions go, I believe that we shall be able to prove, beyond the shadow of a doubt, the authenticity of this letter, and very much more, I am afraid.

Mr. Smith ; I submit that my learned friend has shown no grounds for making the application for an adjournment. There is no reason why the complainant in this case should be allowed to lie for a day unnecessarily under the imputation cast upon him by the publication of this libel, If at the close of this case the Crown, or the complainant, my learned freind can show any reasonable ground why a remand should be asked for — as, for instance, that his witnesses are not present such a request will not be opposed. But at present he has shown no ground for postponing the hearing of the ease. My learned fri3nd has adverted to another case, and which, he said had been adjourned several times. But he was mistaken as to to the ground on which the adjournments were granted. On two or more occasions adjournments took place expressly by consent, and consequently that case cannot be quoted in support of my friend's application. He has referred to the fact that he contemplates having a full Bench to hear the case. I do submit that this is no ground for asking for a remand; it should rather be a reason why you should at once proceed to discharge your functions as a magistrate chai'ged with the preliminary investigation of this ease. It is an unheard of thing, and I hope it is a practice which will not be commenced in this province, that when a case of this kind comes before the Court, the Bench is to be — I was going to say packed — but that, at all events, magistrates will be required to take their seats upon the Bench to assist in an enquiry which only requires the attention of the Magistrate who usually occupies that place. The presence of the other magistrats on

that Bench during preliminary enquiry like this would give rise to grave suspicion ; and I trust that the reference .y learned friend has made to his intention of securing the attendance of other magistrates upon the Bench will alone induce you to refuse the present application.

Mr. Barton : I submit I am entitled

The Magistrate here read a memorandum handed to him by the Clerk of the Court, shewing that the Clerk did nob leave the office on the day when it was said Mr. Barton's clerk attended to take out subpoenas until half-past four o'clock p.m., and that Mr. Street did not leave until four pm. That when Mr. Barton's clerk called, he saw both those gentlemen, and they stated that the offices were supposed to be closed; but had he said his business was anything of a special nature, it would have been attended to. He (the Magistrate) remarked that that ground, therefore, was not sufficient on which to grant a remand.

Mr. Barton : I submit tliat the oath of my clerk, Mr. Sanders, is superior to ths statement of Mr. Morse, or anybody else. The ipse dixit of the clerks should not be allowed to interfere with this case ; they should not make any statement except ou oath, and if they think they can indite Mr. Sanders for perjury, let them do so if they dare. I will force a remand in spite of anybody.

The Magistrate : I cannot allow you to use such lanfuao-e

Mr. Barton : I intend to use strong language throughout. It is a case of great importance, and I will have it tried justly and properly.

The Magistrate : I will not havo any imputations cast upon the justices.

Mr. Barton : No imputations have been cast upon the justices.

The Magistrate : You said that you would see that the case was fairly tried.

Mr. Barton said his remarks were not directed against the justices. His intention was that everybody should bear their fair share of responsility. He would show the necessity for a remand by the statements of a witness on oath.

Mr. Smith : The only q uestion is whether my learned friend's application should be granted. I submit that he has shown no ground why the complainant should not enter upon his case. It is perfecily irregular to put a witness in the box before any evidence has been given by the prosecutor. I have already stated that if, at the close of the complainant's case, my learned friend shows any reasonable ground for granting a remand, ;he application will not be resisted.

Mr. Barton : Then I will shew a reasonable ground at once. I shall also take good care when the case comes on that it shall come out in its entirety. I now merely ask that a one-sided view o' the case shall not be allowed to go forth to the public, 1 wish, in asking ior a full Bench, to state that I did not intend to insinuate that the Court would not try the case fairly. I wish your Worship to disabuse your mind of that idea, if you entertain it, You have always shewn yourself as just as I believe you will prove in this instance. I am aware that the Bench in this colony acts fairly and justly. But this case is a most important one, as it involves the credit and character of persons in the highest possible positions of public trust and responsibility. Under all the circumstances, I now ask that a case of this magnitude and importance should not bo dealt with without care being taken that the whole of the facts come before the Court. I have heard it stated that there is some misapprehension with respect to the duty of the Bench in dealing with such a case as this. I have heard it said here and elsewhere that the simple duty of Magistrates is to ascertain whether a prima facie case has been proved, and if so, to commit the defendant. That, however, is not the only duty of the Bench ; and Gfod forbid that it ever should be in a preliminary enquiry of this kind. It is their duty, when a private prosecution is brought before them, to do more than ascertain whether the witnesses are worthy of belief. They must act as a protection, as it were, to the general public, as well as to the individual attacked ; it is their duty to prevent unjust and improper proceedings being' investigated ; to prevent a slur being cast on a man's character ; and to prevent his being committed for trial upon a charge which ought not to go. The duty of the Court now is similar to that of the superior Courts in England when an application is made to file an information for libel. In such a case, an enquiry is made as to whether it is a fit case, and if not, it is not proceeded with. The Court will consider whether this ease, considering the conduct of the complainant throughout, is a fit case to send to a higher tribunal. That I am not able to prove to-day, but I am able to shew sufficient reason for a remand. I don't intend to depend upon the mere statements of counsel ; I shall put a witness in the box and prove that the letter in question was seen by her ; that she knows Driver's hand-writing ; that she took a copy of it, and compared it with the original. If after that Driver will refuse to assent to this case being remanded, I hope that the Bench will not refuse the application. I shall

call Mrs. Croker to prove wh..: I L.ye stated. 1 Mr. Barton then ffafrd r--'3r --'3 affidavit of Mr. Sander'"^^ C J. .-I:, showing that the latter attends 1 ;i: ;ho office of the Resident Mi'-oiictes Court at about 3 o'clock p.n on the 9th inst., for the purpose o. I-. -.'lir; subpoenas. Mr. Barton then sail. : I demand a postponement litei-Jlv as a. right, and I protest again -t iv.rj attempt of the other side to br..i^ iorward their case until I am preirir: 1 10 bring forward mine, and to civsiexamine the witnesses.

The Magistrate to Mr. ]?;<rlon : 1 am quite willing to accept yoav ou^iapology for what I presume to b« a want of courtesy to the Bench. Vqu have made statements which wore hot, becoming, and which might be i-.is-judged. Had this been the first ecc.ision, I don't think I should h:ive <-;. !<i anything, but it is not the first occ-i=icn, With regard to the question of obtaining a full Bench to hear the civ.p, I may say that the matter has been v,--?ll considered by me within the las.t t—o or three days, and since I heart! tae summons was issued; and had tKi-o been any desire on my part to h;i . j :i full Bench I could have made an. :r- = - ments within the period that I h°vz been in town. However, I though it, would be much wiser, rather than lWs the possibility of its being said :.^ political or other influence was m up in the case, that it should be ht by a person who was altogether out?. Cj politics, who, in fact was preclm J from taking any part in politics ; c sequently I have asked no gcntlen. ... to sit with me except Mr. Wil-jv.. Gray, who is, I believe, altogether 01 - side politics. It does seem to me th..-. it is fair in a case of this kind to as. for a remand, particularly as th^ summons has been served within vLr last few day?. Under the circumstances, therefore, I think it only fnir that a remand should be granted, in order to give tho defendant an opportunity of procuring the attendance of such witnesses as he may think necessary. I i-ecognise that hardships will be experienced by the complainant of being obliged to sit under the imputation contained in the letter, but I cannot help it.

Mr. Smith : Will youx- "Worship name an early day in respect to the adjournment 1

Mr. Barton : I ask for an adjournment for eight days. Independent of any difficulties I was under from noc being able to subpoena witnesses, I find that I should have been compelled to apply for a remand in order to seaure the attendance .of John Treweek. It is also possible YfctaJ^^ present he is absent from War^^^B and I may therforo have to cSB search to be made for him. Consequently if I should be unable to procure the attendance of Treweek in the course of a week, I shall ask for a further remand. He is, of all the witnesses, most essential in this case, because he is the person who is probably in possession of the original letter.

The Magistrate: A remand for a week will be granted, but I say nothing as to what will be done at any future time.

Mr. Barton : lam not pressing your Worship on that point. I merely referred to the probability of mv making an application for a further adjournment in tho course of my reply to what was previously said eoneei'nir.g the adjournment.

Mr. Smith : I give my learned friend notice that any application for a further remand will be strenuously resisted. It will be a monstrous thing if this matter is suspended until Mr. John Treweek is discovered, or until he pleases to come here. He may never come. Those who publish a libel should consider the cost.

The Magistrate : I have made no statement as yet regarding the attendance of Treweek. It is, however, simply fair to give more than three days for the subpoenaing of witnesses in such a case as this. This case will be adjourned for a week. I may state, however, that it is not usual to hear criminal cases on Friday. I think it Avill have to stand adjourned until Thursday next.

Mr. Barton : I feai', your Worship, that it will be impossible for me to secure the attendance of Treweek by Thursday, and it is also probable that the steamers will not leave in time to enable him to attend on Friday. As the Resident Magistrate's Act only provides for the remanding of a case for eight days, only eight days can bo given, but in reality I shall have to apply for a remand for a longer period. I will ask you, under the circumstances, to name Friday. If Treweek is not here then, I shall certainly ask for a remand of another eight days ; and if he should come in the meantime, it will be easy enough to ask for a remand for two or three days, or to anyday that will be convenient to the Bench to hear the case. This is a case for such magnitude and importance that I think it would not be too much to ask the Court to hear it on a Friday.

Mr. Barton: I suppose that ball will not be asked. The defendant is not yet in the charge of the CourtJ Mr. Smith stated that bail war**^ required, \ The case was adjourned until Fri« day,