CO129-192 - Governor Hennessy - 1881 [1-4] — Page 412

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Mr Franois made a strong protest against italics in full in the above copy, Mr Hayllar this course of procedure, contending that ex asked,-what did this dark charge mean, tracts from the letter should be made and wrapped up in the very artful language of then libellous innuendoes only set forth as the first of these two especial paragraphs. provided by the authoritics he had quoted. He did not know; but he knew what effort it Mr Hayllar went through the letter para- would have on the minds of directors, and be graph by paragraph and sentence by sen- knew what effect it was meant to have.. tence, giving the phrases which are italicised No man who read that letter or heard it rend as those containing express libels. The first but would know, that it meant that Mr was that which characterised Mr Nelson's Nelson had done something grossly disure- speech as false and slanderous. The phrase

impertinent remarks" might also be stau-| derous, he said, in reply to Mr Francis. of shares which was said to have taken

Mr Francis: Is it such as to give grounds for proceedings ?

ditable with a dead man's affairs.

Mr Francis pointed out that the transfer

place from Mr Heaton's estates was spoken of as having been made on the eve of his (Mr H's) embarrassments. Mr Heaton was alive then.

Mr Hayllar: It is a most base insinuation. It is not the charge of a man who can come forward openly and speak the truth and be put on his oath, but the hand of the assassin who strikes in the dark.

Mr Franois: Where is the libel? What innuendo do you put to that paragraph ?

Mr Hayllar: I think it is; we shall see. The reference to Mr Nelson's animus he distinctly charged as a libel. The reference in the end of the 2nd paragraph repeated the libel about falsehood and slander. The continued reference to Mr Nelson as acting "again in his capacity as the Manager of your Bank" showed that it was an attack calculated to injure him in the employment by which he earned bis livelihood. It spoke Mr Hayllar: That paragraph means, if it of his public auts, of his soting in his office means anything, that on the eve of Mr of local Manager of the Chartered Mercantile Heaton's embarrassment Mr Nelson obtained Book, and described his acts as unworthy of something dishonestly. That is what it his position; not only reflecting discredit on seems to my mind to mean and to be in- the Bank and on his rule here, bat so tended to mean. Looking to the letter as a gravely reflecting on the Bank that it would whole, Mr Hayllar showed how it led up to be right, it was the duty of the Bank to this conclusion. From unworthy publie acts protect itself against the discredit reflecting it led up step by step, by the incessant and un it as an institution by such conduct as bitter hostility to the Governor and the other that of Mr Nelson. If a statement that Mr charges, ho desired to make Mr Jackson and Nelson's acts as Bank Manager brought the the directors believe that there was some- Back into public discredit was not libellous, thing dark behind, which the directors bad he (Mr Hayllar) did not know what libel better enquire into, about the estato of an was. Again and again it was "as Manager embarrassed man who is since dead. Things of your Bank." La virtue of his office, the present themselves differently to different letter went on, "he had shown bitter, minds, and a charge like that could not be ceaseless and active opposition to the Go-left alone. If there was anything meant by vernment of this Colony."

Mr Francis: Is that libellous ?

Mr Hayllar: It is.

all this, let his aide know what it was and they would be prepared to meet it. He had no doubt his learned friend on the other side

Mr Francis: I thought that would have would by and by put in a plea of justifioa- been taken as letter of recommendation, and that it was for the public protex- tion.

tion that this publication was made. That was a oharge Mr Nelson was quite ready and willing to meet when the tinie came.

Mr Hayllar: I hope not. With referonce to the latter plause of the paragraph about the friendship the defendant has had the honour of enjoying for the last 15 years.

Mr Francis asked if that was a libel. Mr Hayllar was not prepared to say. Mr Francis Is it a libel to say it is enjoyed ?

Mr Hayllar did not charge that as any particular libel. He proposed to show, in guing through the letter, the whole animus with which this thing was done. It was not necessary to go outside the letter itself to prove that. With reference to the two paragraphs in the letter which are given in

Mr Francis: Had he been so anxious to meet it, he would probably have adopted another course of proceeding.

Mr Hayllar, with regard to the second paragraph given in italies in the letter, said this was still pointing at the mysterious charge. There were various styles in this letter. We now left the mysterious artful and came to the innuendo. (Clause read). Regular trafficker in shares" was a strong expression. Had he merely said that Mr Nelson was a regular trafficker in shares, that might have been a question whether it

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wae libellous or not, but when he went on friend would probably apply for a Special to say that Mr Nelson was so occupied with Sessions, and he was ready to go on any

THE DEFENDANT COMMITTED TO THE

SESSIONS.

his trafficking in shares that it was a quee-day next week. tion whether he could devote his undivided! attention to the Bank, it was distinctly libellous; it spoke for itself. There was only one condition of things to which it Mr Francis submitted at some length that could apply. It meant that he neglected there was nothing on the fans of the letter the affairs of the Bank. It was wrapped up defamatory. Certainly there was nothing in euphonistic language, it was a steer, it defamatory which justified a criminal prose- was sarmasin, but it meant that he was cution. It was simply a letter of expostu- devoting his time and attention (to the lation addressed to the superior of a man in a neglect of the Bank), to those things which public position as to his public acts. The feathered his own nest. He did not disagree! gentleman to whom it was addressed had with these two paragraphs being selected as come out here to inspect the working of the the main allegations in the libel as they were branches and was therefore one to whom such the most gross libela, the worst parts of the a letter of expostulation and suggestion letter. They knew perfectly well and Mr might properly be addressed. There was, Pitman knew that if a man in Mr Nelson's he subiaitted, nothing wrong or improper position did not apply his undivided atten-jin it. tion to the affairs of the Bauk he was not fit

Mr Creagh: Unless I am satisfied that no

to be a Bank Manager. There was no doubt jury would conviot in this case I am to send about that point, and that was what Mr Pit-it to the jury. Whether any charge made maa meant. He did not say that of course, against a man is libellous depends, I fauey, The letter was a polished one, smelling of a great deal upon the Society in which he the midnight oil and the five weeks' incuba-lives. There is one case I see in which say- tion it had. As a literary production it was ing of a man that he had poisoned a fox beyond all praise. If it were meant to was held to be a libel. Then again in San smash Mr Nelson, he could not imagine any- Francisco-

thing better done, but whether it was for Mr Francis: But that was where it was that anything the wiser a thing to write shown that it would be highly injurious to and publish it he could not say. After a man's position to have it said of him that reading the other clauses, he laid emphasis he poisoned a fox, We have had Mr Jack- on the "giving the matter that serious son here, who has told us that it would not consideration it demands" which showed harm Mr Nelson in any way to have it said that he intended and desired that sotion of him that he trafficked in shares. Ha should be taken on this letter. The could do so as much as he liked; Mr Jackson letter would make any one reading it think had done the same himself, he admitted. that the writer had something in reserve The Magistrate: Mr Jackson was only behind all this; perhaps they would see examined on the two paragraphs; now we it now; perhaps not. There was the let-have the whole of the latter, regarding which ter now before His Worship. As he had he could say nothing at all." This will be said before it did not seem to him that it pat before the Jury.

required any explanation or innuendo or Mr Francis remarked that if only the cases statement of its application appended to it in which no jury would convict were com- at all. The libel was not the less a libel mitted there would be no acquittals in the that it was couched in clever, artful langu- inferior Court. He submitted, and quoted age. Mr Nelson did not feel himself justi- authorities to show, that His Worship must fied, having regard to the ground that this believe that there was a prima facie case for letter was clearly intended to ruin him, to a criminal prosecution disclosed.

root him out, roof and branch, from the posi- The Magistrate remarked that there was tion he holds, that it was in process of in-the Attorney General as Grand Jury between cubation for five weeks, and that it was this Court and the Sossions. He (the Magis- only when the writer found himself in a trate) had the right under a local ordinance perilous position through his letter that this to send any case to the Jury, withdrawal was tendered,-in view of these Mr Francis said no local ordinance could facts, he said, Mr Nelson did not see his give His Worship the right to do what was way to accept the withdrawal, and he as Mr illegal. The law was that the Magistrate Nelson's Counsel was not in a position to advise must hold that a prima facie case had been him to do so. Under recent rulings (quot- made out. ed) a case like this had to go before a jury, and there was no double enquiry here and again in the Sepreme Court. His learned

Mr Creagh: I have the right to send the case for trial and I am to do so, and I am not bound to give you any reason.

N.

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