LIBEL CASE

Wairarapa Times-Age, 13 December 1939, Page 3

LIBEL CASE

ALLEGED MISCONDUCT BY JURYMAN. MOTION FOR NEW 'TRIAL DISMISSED. (By Telegraph—Press Association.) WELLINGTON. December 12. A motion for a new trial of the libel action for £l6OO brought by John Robertson, M.P. for Masterton. against Garnet H. Saunders. New Plymouth, and Harry Thompson. Napier, motion picture exhibitors, was refused by Mr Justice Johnson in the Supreme Court. Wellington, yesterday. The grounds for the application were that the foreman of the jury of 12 which heard the claim was guilty of misconduct and that the verdict of the jury for defendants was against the weight of evidence. Mr H. F. O'Leary, K.C., and Mr J. S. Hanna appeared in support of the motion; Mr O. C. Mazengarb opposed for Saunders and Mr John Mason, Napier, for Thompson. In the weekly bulletin of the New Zealand Motion Picture Exhibitors' Association, edited by Robertson, who is also secretary of the association, a list of candidates for the Film Control Board was published, together with biographical notes, but the names of defendants were omitted. Defendants then sent an open letter to all exhibitors, and it was passages in that letter that gave rise to the action. Plaintiff's explanation was that defendants’ names had been on the second sheet of copy—the names were arranged alphabetically—and the sheets had become stuck together. The jury found by a majority of 10 to two that the words complained of had not been defamatory to plaintiff, and if they had been they had not been actuated by malice.

The misconduct of the foreman of the jury alleged yesterday was set out in the affdavits of two law clerks, not engaged in the offices of any of the counsel. They said that on the third day of the hearing the foreman was lunching in the same restaurant, and expressed his views on the case to them. He said that the mistake with the copy could not possibly have occurred and that the jury was of the opinion that the case was not genuine. Argument was heard as to whether the affidavits in 'such circumstances were admissible, counsel for defendants contending that they could not be read in support of the application.

Mr O’Leary submitted that the foreman said, in effect. “I don’t, care what the pleadings are, I know there could not have been a mistake; it's been deliberately done.” He was acting on something that was not in issue and not in evidence, and his action was a misconduct that entitled plaintiff to a new trial, counsel submitted. Mr Mazengarb said the allegation that there had been “filthy intrigue" (these words were mentioned in the open letter) had been justified, but it was not said that they were applied to Robertson. The words were not defamatory of Robertson, and they were not actuated by malice. His Honour: “As far as I remember there was no evidence of ‘filthy intrigue’." Referring to the action of the juror, Mr Mazengarb said it might have been indiscreet but it was not misconduct. If there had been any misconduct the two law clerks would have warned him. The most extraordinary part ofit was that the irrelevant matter which the foreman was said to have acted upon was objected to by defendants but was persisted in by plaintiff. Mr Mason contended that the Court was not justified in hearing the affidavits. In refusing the application, his Honour said there was nothing to lead him to say that the jury had been wrong on the question of identity. The observation of the foreman had been made before the summing-up, and his Honour had made it clear to the jury that the sticking together of the papers was not really an issue at all. Following on that the jury had deliberated for some four hours. None of the authorities cited by counsel went so far as to suggest that a juryman who spoke of a case with strangers at mealtime was guilty of misconduct, and one could not altogether be blind to the fact that jurymen might meet someone and discuss a case without Committing impropriety. In this case the affidavits should not be admitted. The finding of the jury that plaintiff was not defamed must be allowed to stand, as that was entirely in their province. The motion would be dismissed, with costs of 12 guineas to each defendant.