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Mr Francis: Unless Your Worship is convinced that a prima facie libel has been disclosed, you have no right to send the case up.
The Magistrate: I am so convinced, and the case is committed.
The Chief Justice: And you appear on it.
The Attorney General: "No, I don't appear on it.
The Chief Justice: Then the motion has to be heard ex parte. Go on, Mr Francis. The motion is unopposed.
Mr Francis continued reading the information.
Mr Francis: That finishes it. Defendant committed for trial, bail $500.
THE PROCEEDINGS IN THE SUPREME COURT.
IN CRIMINAL SESSIONS, (Before His Lordship the Chief Justice, John Smale and a common Jury.)
FIRST DAY.
Tuesday, May 18th.
Mr Hayllar: I appear for the prosecution, my Lord.
The Chief Justice: Under the immediate direction and control of the Attorney General, and under his power to step in at any moment.
Mr Hayllar: I don't know that.
The Chief Justice: He can enter a nolle prosequi at any moment.
Mr Hayllar: No doubt, but your Lordship's words conveyed more, I thought, than that.
The Attorney General: I can, of course, enter a nolle prosequi at any moment, but...
The Chief Justice: And much more than that here; you have the functions of the Grand Jury vested in you, and if you find that there is not a case before you with which you are justified in going to a jury, it is your duty to enter a nolle prosequi.
John Pitman was charged - case No. 8 on the list, with Libel.
MOTION TO QUASH.
Notice of a motion to quash had been given by the Counsel for the defence, and that motion now came on for disposal. The motion was that the information be quashed on the following grounds:-
"1. That the alleged libel, the letter herein set forth, is not prima facie libellous, and that there are no sufficient allegations and innuendoes showing in what sense, if any, the said letter is defamatory.
2. That the alleged libellous letter is not set forth with sufficient certainty and precision.
3. Upon the ground of duplicity.
4. That the said information is so framed as seriously to embarrass the defendant in his defence thereto."
On the Attorney General taking his seat, Mr Francis asked to be allowed to again refer to the motion, which he had mentioned at the opening of the Court.
Mr Francis went on to say that the application was a simple one. It was an application to quash this information on the ground that it was bad in law.
(Mr Francis began to read the information.)
The Chief Justice: Have you had notice of this motion, Mr Attorney?
The Attorney-General: I have had no notice.
The Chief Justice: Then prove your service of notice, Mr Francis, by affidavit.
The Attorney General, having consulted with Mr Johnson: I am informed that notice has been served upon the Crown Solicitor, which I presume must be taken as the same thing.
Mr Francis: But I believe, my Lord, the prosecution is instructed by private solicitors. I call attention to this because, under 6 and 7 Vic., Lord Campbell's Act, the defendant in the case of a private prosecution is entitled to his costs in the event of the jury being with him; it is not so in a public prosecution.
The Chief Justice: What is the date of that?
Mr Francis: 1843-44.
The Chief Justice: Then it is the law of this Colony.
Mr Francis: Were it not by the date of it, my Lord, made the law of this Colony, it is so made by the ordinance of 1864, sec. 8 (read).
Mr Francis: I submit that we are entitled to know what position we stand in under the local ordinance before we proceed further.
The Chief Justice: As it stands at present, the Crown Solicitor prosecutes.
Mr Francis: I may be going too far, but may I suggest to your Lordship to ask the question...
The Chief Justice: I certainly will not. I find the Crown Solicitor acting in this matter as prosecutor according to his usual duty.
Mr Francis: Then I again submit, my Lord, the defendant ought not to be left in this position. He is entitled to know who is prosecuting.
The Chief Justice: I have no intention of doing so. I do not choose to do so.
Mr Francis: If your Lordship deals in that way with it, there is nothing more to be said.
The Chief Justice: I cannot see why this was not an action at law.
Mr Francis read the information as follows:-
At the General Criminal Sessions of the Supreme Court held at Victoria for the month of May, 1880; the Court is informed by the Attorney General on behalf of our Sovereign Lady the Queen that Horace Harrington Nelson at the time of publishing the false, scandalous, malicious and defamatory libel hereafter mentioned was and still is in the service of a certain Incorporated Banking Company carrying on business under the direction and under the control of a Board of Directors in London under the style of the Chartered Mercantile Bank of India London and China, and having a branch establishment or office amongst other places at Victoria aforesaid whereat the said Horace Harrington Nelson at the time aforesaid and long before held and still holds the office or post, conducted and still conducts the duties of manager; and that also before and at the time aforesaid one William Jackson was and still is the Acting Chief Manager and Travelling Inspector of the said Banking Company and was inspecting the said Branch office of the said Company in Victoria aforesaid; and that John Pitman, contriving and wickedly, maliciously and unlawfully intending to aggrieve and villify the said Horace Harrington Nelson and to injure him in his good name and fame and in his office or post of Manager of the said Branch establishment of the said Company at Victoria aforesaid and to bring him into scandal, infamy and disgrace with the said William Jackson and the said Board of Directors, and to cause him to be esteemed and taken to be, by the said William Jackson and the said Board of Directors, a false scandalous, mischievous, impertinent, corrupt and negligent person and one not fit to be employed by the said Banking Company as such Manager as aforesaid, and to deprive him of the emoluments arising from the said office, that defendant did, to wit on the 29th day of March A.D. 1880, unlawfully, wickedly and maliciously write and publish and cause and procure to be written and published in the form of a letter to the said William Jackson, a certain false, wicked and malicious defamatory libel of and concerning the said Horace Harrington Nelson, and of and concerning him in his said office and of his conduct and character in relation thereto according to the tenor and effect following, that is to say: "--
Then, after the words "that is to say" was set forth a letter three-fourths of which was not defamatory. There was no innuendo, no indication of what sense the complainant took the letter, or any part of it, or wished it to be taken or any part of it, so as to justify this charge of libel; there was no explanation of how the defendant had libelled Mr Nelson, there was not one allegation in explanation, in any way connecting it with him as Manager of the Bank or as showing that the intention was to injure him in that capacity. There was no averment whatever showing or explaining how it could injure him.
The Chief Justice said he had always understood (he might be wrong) that when the common sense of mankind said that it was a libel it was not necessary to specify the particular words which conveyed the opprobrium.
Mr Francis pointed out that, even granting—which he did not do—that this was a libel, there was nothing to connect it with him in his capacity of Manager of this Bank. It was not set forth that the letter charged him with doing things which his position as manager of a Bank made it wrong for him to do.
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