SUPREME COURT SITTINGS.

Gisborne Standard and Cook County Gazette, Volume II, Issue 192, 6 September 1888, Page 2

SUPREME COURT SITTINGS.

[Before His Honor Chief Justice Prendergast.] CRIMINAL LIBEL. John Baldwin was arraigned on a charge of libelling John Bourke, Town Clerk, by publishing defamatory articles in a certain newspaper, of which he was editpr. Mr Brassey with Mr Watsen appeared for the prisoner, and Mr DeLautour with Mr Chrisp for the prosecution. The prisoner pleaded “ Not Guilty.” The following gentlemen composed the jury:—Messrs Blair (foreman), F. Bull, A. Barber, G. Stevenson, E. Yardley, R. Knox, L. Dunn, A. Bond, J. McFarlane, W. Miller, W. Hay, T. Faram. The following were challenged :—For the accused : C. Ferris, H. Hamblett, A. Walker, W. Crawford, O. A. Brown ; for the prosecutor : H. Partington, Courtenay, A. Tuohey, D. Tutor, R. Moore, R. Mcßretney, P. Breinghan, W. Searle, J. Waugh, J, Finlay, A. Hird, M. Hall.

Mr DeLautour, in opening the prosecution, said the jury would have to try a charge of libel upon a private person, holding au official position, upon which he was dependent for his living. It was not a libel upon a publio man, nor was it a libel of a publio character at all. It was a written defamation of an individual living amongst them, though earning nis livelihood in a different capacity. He would like them to distinguish between a slander and a libel. A slander might be the mere hasty expression uttered in a moment, but this libel was written with deliberation, considered after being written, and then continued in publication. There they had deliberation and intention centred A man might be moved by paesion and his judgment biassed. The thing was written, delioerat d upon, published, and supposing there had been repentance after the publication, the article had since been published again. The first count was that the accused person in his position of editor of the paper wrote, or caused to be written the articles complained of. The editor of a paper was responsible fir all the contents of the paper. There were three counts in the indictment. He had already shown them that thia was not a libel levelled at a public man. They heard it said that a man was in a public position and that he ought to put up with it. It might be said that the publio discounted all they heard, they said it was done for electioneering purposes. But in the case ot a private citizen it was different, there was no such cause for discount in the public mind, and there was some danger in these continuous libels on hit character. Mr Bourke was driven to the Court to seek vindication. It was sometimes suggested that the right remedy in a case ot libel war a civil action. But where a oalumniator had divested himself ot all that he possessed, there was no other remedy than to bring the matter before a jury of his own countrymen, and he would show them that this was a case in which the accused divested himself of his property, passing it over to hia wife for consideration of wages earned, and then, shielded behind his wife, aimed all this nauseous stuff at those who disagreed with him, It was the only alternative Mr Bourke had, to come into the Court. Supposing a man’s character and repute were good enough in a plane where he lived, there was the fact that these charges were disseminated over the colony, and if he went to seek employment elsewhere these libelc would greatly injure him. They would have to judge whether the matter before them was libellous or not. They should take the words used in their natural sense, and deal with them ae if referring to themselves. They must read it as being willing “to sell your soul, to risk damnation,” etc, There were oases in which persons were privileged in publishing statements, but it was impossible that a libel upon a person, reflecting on his character, could be privileged. It would be shown that there was malice, and even since the committal ol the accused he had published the whole ol the articles again. If it were true would that justify it? Supposing a man were leading an immoral life would that justify its being chalked up on the wall ? But in this case it oould not ba suggested that there was any truth in the articles referred to, and there being no truth and it being libellous they would have no doubt, and would have a very simple duty. If judges and juries were to begin to read the law as they would have it and not as they found it then were they on the borders of confusion. The liability of the accused would be undoubtedly proved and the libellous matter would ba proved, and there could ba no excuse for any but the one verdict. W. H. Chrisp deposed to purchasing the papers. To Mr Brassey : He had been asked to gat the papers, he thought, by Lewis, a clerk in Finn and Chriep's office. Had not been told what the papers were for, but was aware oi the reason from a conversation he had had with his brother, Mr E. Chrisp. From what he had heard generally he understood a libal action was pending against Baldwin. There was considerable argument as to the admissability of certain affidavits which Mr DeLautour wished to introduce. Mr Brassey objected to the admission ot tha affidavit of John Fisher, on the grounds that it had nothing to do with the case. The alleged libel was contained in another newspaper altogether—it was Flora Baldwin's paper. Mr DeLautour said the paper was the same, but it was continually changing hands. It had gone from Fisher to John Baldwin and then to Flora Baldwin. The proofs were put in to show that it was 1 the same paper with which accused was connected. It would fis for the jury to consider ot what reputs ths paper had been all along. Mr Brassey did not dissent to Flora Baldwin’s affidavit going in, but from it being put to the jury that Baldwin had anything to do with the paper. As soon as the paper was registered in Flora Baldwin's name John Baldwin’s interest in it ceased.

His Honor said it appeared to him tha affidavits could only be shown for the putpose of the Act. , Mr DeLautqur said that was what fab wished to do. Hia Honor: You want to prove that Flora Baldwin is proprietress and Baldwin is thq person appointed as manager ? Mr DeLautour said the Act enabled them to dispense with proof of the actual sale of any paper if that paoer was duly registered and such registration was before the Court, otherwise the accused editor or printer might say ho was not liable because it had not been firoved the paper was bought from him. At t happened in the two libels complained of they were able to prove that the paper had been circulated, but in the case of aggravating libels published previously they were not able to do eo. His Honor said the accused was responsible for anything be put into the newspaper; Mr DeLautour : Or allowed to be put in ; I think there is plenty of authority for that. His Honor remarked that Baldwin hadgoha through the process of making an affidavit that he was not the proprietor. Mr DeLautour said he must prove the papers, and gquld qnly do it by statutory proof, His Honor pointed out that the proprietors of a paper were generally the persons to be proceeded against. In the late action against the Times, for instance, it was the proprietors and not the writers that were proceeded against. It was only in a small place like Gisborne, where everybody know each other’s business, that they could know a writer. At present they were proceeding against Baldwin because he actually sold ths papers. He was responsible for what he had himself written. Mr DeLautour; Surely then no editor would be responsible, as it would be Impos Bible to prqve it. His Honor said the printers were sometimes called on to give evidence, In a case against the Otago Daily Times they had been oalled on to endeavor to obtain from them who wrote the articles. Mr DeLautour said in this case they relied on the publication bv the editor himself, The cnly object of putting in the affidavits objected to was fo show the jury the serin ot aggravated libels. ’ ■ ' t On Mr DeLautour saying he would press for the admission of Flora Baldwin's affidavit, showing her proprietorship, and the corresponding affidavit of John Baldwin divesting aimself ot the paper, His Honor said that did not show that John Baldwin was proprietor now, or editor, Mr DeLautour: I wish to show that on • certain day he divested himself ot the proEerietary, and Mrs Baldwin was installed in ls stead.

His Honor a?ked did be understand that it was to be submitted that the evidence that Baldwin had denuded himself of the property to his wife was evidence of malicious motives—that Baldwin was conducting the paper with motives of malice ? C Mr Brassey said he would object to anything of the kind being submitted. His Honor said he could only admit any act done by Baldwin himself. Anything done by himself was evidence against himself if it proved anything. Mr Brassey : Can it be evidence if it is not pertinent to the question before the jury ? His Honor : I cannot see bow I can exclude it. Mr DeLautour may make reference to it in his address to the jury. Mr Brassey : If Mr DeLautour gets another opportunity. I will have something to say to that. His Honor: Oh, yes; he will have another opportunity. Mr Brassey : Only the Attorney General has a right to sum up in a criminal action. His Honor: I had a civil action on my mind at the time, but I think Mr DeLautour may be allowed to again speak to the jury. His Honor then ruled that he could not exclude anything done by the accused that might have a bearing on the case. Thomas Smith deposed that he had left Baldwin’s employment a week previously, having been in that employ about three years. Accused was editor on August 12th and 14tb last, having been editor as long as witness bad been in the office. Accused was also manager, and conducted the whole business of the paper. Baldwin wrote the locals. Mr Brassey objected to witness being asked who wrote a local with reference to Mr Bourke. He contended that the writing itself would have to be produced. Mr DeLautour said it was quite clear in a criminal case it was impossible to produce the writing. Chief Justice said it might be possible. DeLautour said the libel was the paper. i Ks Honor supposed that one man would K the type op from copy, another man would print it, and some other person publish it. They might have given notice io have rhe copy produced. Mr DeLautour said it was impossible to Compel a person t • produce a criminating document. He would burn it. Mr DeLautour continued: Smith told US the locale were written i>y Mr Baldwin. His Honor : It might have been an improper question to have allowed, but you have got that. Mr DeLautour: That paper now in his ha ids contains one of those locals— Mr Brassey : He does not say so. Mr DeLautour : I am asking him. Mr Brauey : I object to your doing so. Mr DeLautour: I know that; I am now id I rearing myself to His Honor. His Honor: This is not written, it is printed. Mr DeLautour did not know whether Mr Brassey wanted an adjournment to allow of notice being given for the production of the Writing. Mr Brassey said he certainly did not want an adjournment; if no notice had been given that had nothing to do with them. By law they were entitled to notice. Mr DeLautour waived the point, which Was not really material to the case—of course it would be for the jury to weigh it all. In reply to His Honor the witness Smith said he did not say he had seen the paper from which the type was set up. ’ John Coleman, accountant, read the paper, and unde, stood article to refer to Mr Bourke. By Mr Brassey: Had seen references to cooking accounts made in the columns of prisoner's paper. Did not recollect seeing them in other p .pers. John Bourke, Town Clerk, deposed that he was the person referred to in the articles. By Mr Brassey : Had not heard anything about co king accounts, except from prisoner's paper. Might have .een the report of members' words in other papers to that effect. Mr Brassey argued that as no witnesses . had been called for the defence, the counsel the prosecution could not address the Honor did not think the law was very strict as to libel. He did not think there would be any objection to Mr DeLautour ■ummi ~ up the evidence. Mr : I do not wish to take any advantage. My friend seems to obj ct. I think the case may plainly go to the jury ' without any address from me, Mr Brassey in addressing the jury for the defence, contended that the action taken should have been a civil one. His friend had Stated that the prisoner had divested himself of all his properly, so that he could not be reached by a civil action ; but he wished to point out that where the proprietor of the paper could be reached, there was no necessity for a criminal action. The Courts had discountenanced criminal actions of this nature. He quoted from a report of a case which was heard before Lord Chief Justice Coleridge in England lately, that of Wood v. Cox, for libel published in the Licensed Victuallers' Gazette. In this case the Public prosecutor granted his fiat that a criminal action should be taken, but the Lord Chief Justice disallowed this. His Honor; The Licensed Victuallers' Gazette is a responsible paper ; ia it not ? Mr Brassey: It is suggested that this not a responsible paper. His Honor: If your argument is going to have any weight, you will have to show that the proprietor has property. Mr Brassey : They have put in a bill of sale to show this. His Honor: Yes, but is that property ? For instance, the properly might be mortgaged. I am not at all disposed to say that there should not be a criminal prosecution where persons are libelled in a public capacity, and I say that it should be otherwise in pri I do not agree with the Lord Chief JuWce. It seems to me rather absurd to say that there should not be a criminal prosecution where a person is libelled in private life. If something had been said about someone, and it was something for which a person might take a stick and beat the person making the assertion, that wa? a case where the prosecution should be a criminal one. Mr Brassey, continuing; said the first count was for publishing the paper, and the racond count was for selling the paper. As to the aecoi.d count a person had been sent to the office te buy the papers and the accused bad thereby been entrapped into selling the papers containing the libel. He said the paper was the only one in the district that had advocated the stoppage of the Harbor works, and he believed if the harbor works had not been stopped the action would never have been taken. No one would say otherwise than Mr Bourke was straightforward. Before they could find accused guilty they must be satisfied that he wished to injure his private character. His Honor, in directing the jury, said the defendant was indicted for publishing on the 11th August an article about Mr Bourke. He was also indicted in the second coqnt for publishing au -article on the 14th August, and fhen in the third count be was indicted for again publishing on the 20th August the artiole of the 14th inst. The evidence against him in the first and second counts was that of a witness who had been in the employment of Baldwin, and who told them that defendant was the editor of the paper. That was the whole of the evidence against him as to the editorship of the paper at that time. It was for them to say whether they were satisfied on that evidence that the accused published, or was a party to the publishing of the articles. With regard to the third count Which was confined to the article of August 14’b, a witness proved that he purchased a piper of the 14th, and also of the 11th August, from the defendant. The learned counsel called attention to the fact that Mr Chrisp want there and purchased the papers tor the purpose of bringing sn action against the accused, and that he described as entrapping him. He thought as ths accused was the person really responsible for the articles, that it was fair to take any steps for the purpose of bringing home the offence to him. S There was no evideoce to show that La was Unknowingly the publisher of the articles, and it was perfectly competent for him to prove that be Was quite ignorant when he ■old these papers that they contained these articles, and had st;cb evidence been brought thay would have given weight to it. The LySvidence against him was that he had pubthe article, and there was no evidence Io the contrary. They had also the evidence of Mr Smith who told them that accused was editor at the time, and the question was whether they could come to any other conclusion than that he did publish the articles. Supposing they did come to that

conclusion, the next question was whether the libels were defamatory of the prosecutor, and that they referred to the prosecutor. They would have no d fficulty in coming to the conclusion that where the “townburker ” was mentioned and in some other passages, that Mr Bourke, Town Clerk, was the Bourke referred to. As to whether the articles were defamatory or not, the jury were the judges of that. It was hardly contended that they were not defamatory, and it was for them to say whether they imputed misconduct to Mr Bourke. If they did so, then no doubt they were defamatory. Then as to the word “maliciously.” “Maliciously ” meant that there was no lawful excuse. The learned counsel urged very fully that, supposing the articles were defamatory, they were published in the public interest. It was for them to say whether the libels could be looked upon as such. There could be w* doubt that the way in which a town clerk performed his duty was a matter of public interest, and it rested with them to say whether the articles were a fair and reasonable expression of opinion on the conduct of Mr Bourke. His Honor again dwelt on the argument of Mr Biassey that it should have been a civil action, and again expressed his opinion that libels of a defamatory nature on a pub ic officer should be mad© the subject of a criminal action. He was not prepared to say that it was right for a man filling a pu’ lie postition, to go to a jnrv, and ask them to give him damages, after his having been defamed. The jurv retired at 1.10 p.m. to consider their verdict.

The jnrv returned several times to ask His Honor’s direction on points upon which they were not quite clear, and about 9 p.m. returned with a verdict of “ Guilty ” on the third count. The following written verdict was given : — “ The libel containei in the first and second counts i« mal’c’ous, def<»mat »ry and altogether untrue of Mr Bourke, but he jury disagree on the point of sufficient evidence having brought forward to prove that the prisoner knew of its publication except his being editor of the paper. We find prisoner guilty on the 3 r d count.” His Honor then directed that a verdict of “ Guilty” he entered up on the first and Fecond counts. Sentence was deferred until ten o’clock the following morning. On the Court opening at ten o’clock yesterday morning, Hi« Honor said he thought that instead of his directing the verdict on the two counts, he should have given.the counsel for the prisoner an opportunity of arguing as to how the ve r dict should be civen. If he wished to do so he could. It was not of any importance as the jury found a verdict on the 3 r d count. He would be willing to hear argument on both sides. Mr Brassey, after consulting with the defendant, said he was willing to leave the mat er as it stood. His Honor said that would decide the verdict against the prisoner, and for the Crown. On being asked if he had anything to say why sentence should not be passed upon him, The prisoner said he did not suppose that anything he could say would alter rhe position. He felt that he had not received the consideration that he believed every prisoner in an English Court was entitled to —that was the benefit of a doubt. With respect to the libel itself, he usually took care to read over everything carefully, but at the time the libels were published he was laid up with sickness, and did not give it that attention he should. He took it as a matter of public interest; Mr Bourke’s private character was attacked, he was only attacked in his official capacity. It was never his intention to as°ail any man’s private character. During seven years residence in Gisborne he had done nothing which could bring a blush of shame to anv honest man’s cheek. Before God Almighty he did not think he had done anything wrong intentionally. He repeated his as c ertion that he had never assailed any man's private character No man in Gisborne had been more libelled than he had been, and he had brought civil and criminal ac’ions to vindicate himself, bnt he had failed, and now he stood there for no crime for which any man had any reason to blush or be ashamed to look any other man in the face. He had had a very hard life lately, and he could say that he had been far more wronged against than he had wronged. There were plenty of men in the world standing in the same unfortunate, position as he was, from endeavoring to do right. His Honor »-aid it was evident the prisoner d'd not understand, or professed not to understand, the nature of the offence he had been guilty of. The article not only assailed Mr Bourke in his private life, but in his position (which was of a public character) as well. It would be absurd for him to read over the articles for the purpose of showing thatevery kind of impropriety and dishonesty was imputed to Mr Bourke ; every kind of falsifiction of accounts and documents, and abstracting public money, and every other kind of thing was imputed to him.. Of course no one believed it. The probability was also that a great many persons read this, and probably were amused at it, and possibly had bought the paper for the purpose of reading it. They, no doubt, were more to blame than the prisoner, who got his means by writing these articles. Some persons must be reached. Those foolish persons who bnnght the paper we r e more guilty than the prisoner, but they could not be reached. The propretor could only be reached, that was the prisoner’s wife. Who ever heard of a man professing to have a manly character

when he pit bis wife in the position of being brought up to the bar nf a criminal court on a charge of ‘his character? Could a man profess to have a manly character who nut his wife in that position ?It might have been done for the purpose of preventing any damages being given against him. leaving that out of consideration the manifest result'was that any person taking the ordinary course of prosecuting the newspaper must pnt the wife of the prisoner into the dock charged with a criminal offence. Any husband who proposed to dn that could’not have a manly character. That it was a most gross attack upon a person whn in prisoner’s counsel verv properly at once admitted was known to have a very high character was evident, and the prisoner had not since denied it. Prisoner mentioned the fact that his counsel did nnt think it necessary to occupy ’the time of the jury with the evidence of witnesses who might have been called for the defence, but he had a much better appreciation of his position than the prisoner seemed to have. No one could read these articles, without seeing that they could not refer to anyope else but Mr Bourke. Prisoner had also said he had been libelled himself. If Mr Bourke had been the libeller that statement of the prisoner’s would have had some weight, but the fact of tying libelled was no justification, His Honor said he had been considering sentences which had been passed in England for much lighter attacks upon the character of persons, and he felt disposed to pass an ordinary sentence. It would be the first sentence which he had passed in a criminal case, and it was he hoped that it would be the last. He could not treat it too lightly ; 'that would be to encourage fn«Vad of discourage such tactics He did not wish to pass too heavy a sentence, but at the same time it should be a substantial one. The sentence of the Court was that prisoner should be confined in the cntptpan gaol at Napier for six calender months bn each count, the sentences to runi concurrently. The prisoner was then removed, CIVIL BUSINESS; Madder v, Finneran claiming damages for defamation of character. Judgment was given for defendant bv consent, the matter having been arranged between the two parties. The Wellington Press oanoludes an article denouncing the House ot Representatives and lauding the Council, as follows In thia emergency, the Legislative Council have been faithful to the end. Thev have refused to be a mere machine for registering the edicts of the Atkinson Ministry ; they have resolve < to do the work that has to be done as thoroughly as they have done the work that is done ; and they are preparing, if need be, to support a prolong- d struggle, in accordance with the rights and the duty of Parliament, against wrong-doing of any kind We hope yet to see the remnant of the House of Representatives exercise a powerful check upon the Ministry ; but we fear the best hope <>f the country is in the Legislative Council,