245
[14]
The Acting Attorney General considering this plea of justification to be informally framed, filed a demurrer to it, the argument of which was impending when I returned to the Colony last December.
During the progress of the case up to this point, it appears that many regrettable wrangles between the Bench and the Bar had taken place, as well as scenes in Court such as that which occurred on the examination de bene esse of Governor Da Ponte e Horta and became the subject of an official representation to this Government from that of Macao.
Upon my return to the Colony, I thought it my duty to bring the whole affair formally to the notice of His Excellency the Governor. The official correspondence which then took place and the documents annexed to it explain the whole case in its legal bearing, and show the grounds upon which the Executive decided upon proceeding with the first of the informations.
C.S.O. Nos. 147 & 867.
In reference to the course adopted by the Executive, I wish to draw particular attention to a letter from the Chief Justice to His Excellency the Governor dated the 8th August, 1868, in which he strongly urges that the proceedings should be continued with a view to the opinion of a jury being obtained on the merits. See Appendix A.
The whole question received the most careful consideration, which resulted in my addressing a letter to the Crown Solicitor, intended to be made public and thereby prevent any misconstruction as to the basis upon which the proceedings should be carried on and as to the views and objects of the Government. A copy of that letter will be found in the Appendix marked B.
The Chief Justice appears suddenly to have changed his mind, for notwithstanding the views expressed in his letter to His Excellency the Governor above referred to, he repeatedly urged me to enter a nolle prosequi for reasons which appeared to me insufficient and he was greatly irritated upon receiving a copy of my official letter to the Crown Solicitor, which I had sent him with a friendly private note for the purpose of letting him know beforehand the decision that had been arrived at, and in the hope of thereby averting any recurrence of unseemly discussions in Court. He immediately addressed a letter to me which caused me no little surprise. It will be found in the Appendix marked C.
Appendix B.
Appendix C.
On the day appointed for the argument of the demurrer (10th of February) the Chief Justice took his seat on the Bench. I proceeded to inform the Court of the course which, with the approval of Government, I proposed to take with regard to the prosecution and after considerable opposition on the part of the Chief Justice, the case was once more set in motion. On the 12th of March the Chief Justice delivered his judgment a copy of which is enclosed, together with a copy of the record. Appendix D, Enclosure.
That judgment, I contend, is inaccurate as to its statements of fact and erroneous as to its conclusions of Law.
The Chief Justice has decided that the Attorney General of this Colony has no power to file an ex officio information for libel.
That if he has that power, it is, at all events, not vested in the Acting Attorney General.
He condemns the Crown in costs without argument and notwithstanding my protest, and this is all the more singular that even if the record disclosed a private prosecution the only costs recoverable by the Defendant are those of his plea of justification where he has obtained a verdict in his favor upon it. See note at the end.
[15]
Further, the Chief Justice has taken upon himself to decide that the gross charges against Governor Amaral published by the Defendant are no libel—and if only on this ground, I think it is due to the Government of Macao that an appeal should be prosecuted.
I think it is very unfortunate that when the Governor of the neighbouring and friendly Colony of Macao is grossly assailed through the medium of English and Portuguese Newspapers established in Hongkong and proceedings are taken to vindicate his character before a jury, the Judge should himself decide the question of libel or no libel and the plea of justification and instead of confining himself to the points of Law raised on the record, should turn his judgment into an address to the public and import into it attacks upon individuals who have no opportunity to defend themselves.
One consequence resulting from the judgment, is that the Defendant has published an unfair report of the proceedings avowedly for the purpose of circulation among British Colonies in the shape of a pamphlet with the "sensation" title of "A Crown attempt to crush a Newspaper" and I am deterred from taking any steps to restrain him by the conviction of their utter futility, a conviction which must be shared by every one who has read the judgment delivered by the Chief Justice.
In every point of view, as a Member of the Government, as a Member of the Bar and as a Member of the Community, I hope this judgment will be appealed against, and as Attorney General, I have no hesitation in recording my opinion that it is erroneous in every point of Law.
31st March, 1869,
JULIAN PAUNCEFOTE, Attorney General.
Note.---Since the date of the above Report, I have noticed that the passage now struck out contains an error as to Costs in Libel cases, though it is one that does not affect the case under consideration in the least degree. It is the Prosecutor and not the Defendant who can only recover the Costs entailed by the Plea of Justification, under Sec. 8 of Lord Campbell's Act. But it still remains a question whether even in a Private Prosecution, the Defendant can recover his Costs where he has not obtained a Verdict of "not guilty." Lord Campbell himself says in the Case of The Queen v. Latimer, 20 Law Journal, Q.B. 129, speaking of the operation of his own Act as to Costs: "It is not unreasonable that the Defendant should be "reimbursed his expenses, brought about by a Prosecution which proves "unfounded, and in which the Defendant has been found not guilty by a Jury of his Country."
J.P. 5th July, 1869