CO129-192 - Governor Hennessy - 1881 [1-4] — Page 414

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His Lordship: Was that a libel in the World (a laugh),

Mr Francis: No. It was a charge of libel on the ground that he had alleged of a certain gentleman that he was a destroyer of game and a seller and dealer in the same. It was there ruled that the more setting forth of the words without innuendo was insufficent.

the case; it might be a point with regard to ground on which the whole criminal pro- the evidence; but it did not apply in an ar- ceedings of England was based was that gument that the information be quashed on there should be no such embarrassment to the grounds set forth by the learned the defendant. For that reason the rules Counsel. It would be a matter for consi-of criminal proceedings forbade that even deration afterwards whether the letter was two different charges should be joined in one a libel not only on Mr Nelson but on Mr indictment under two counts, save in some Nelson as an officer of a certain corporation. particular cases provided for hy statute. Mr Francis referred his Lordship to the No ambiguity or duplicity was allowed in case of the Queen v. Yates, (Cox's Criminal criminal proceedings, because it was against Clases, Vol. 12,) wherein one James Yates the interest of the defendant. The mole was indicted.

ground and basis of these rules was that the cause of the defendant, in pleading aud in meeting these charges, should in nowise bo Ho submitted that in the embarrassed. particular class of cases to which that now before the Court belonged a special plea was given to the defendant which he was entitled to use, and he was also entitled to have the information so framed that he might use that plea to the best advantage. If the in- The Chief Justice: Quite so. Where formation was purposely framed to throw there is an ambiguous phrase, where what obstructions in the way of the defendant is alleged to be a libel may be read two using that plea, or to decrease the benefit to ways, it is only fair and necessary that him of his using that plea, then embarrass- the meaning of which complaint is made, the ment of the defence was established, and it libellous interpretation, should be set forth; was for the Court, he submitted, to deal there must be an averment that it was in with it in the same way as with a duplicity the libellous sense that it was written. In of plea or an informal charging of two of Yates's case it was clear there were two fences under one information would have to meanings: and the innuendo had to be sup-be dealt with,-to quash the information or plied. There were men who were licensed to order it to be amended. He could not to destroy game, many men licensed to deal plead justification in this case because in game. But the libel was not taken by number of things wore alleged to be libels the person of whom it was written to mean regarding which there was no averment of that he was one of those-would anybody so the meaning in which they were taken, no take it and it had to be set forth in the averment of the meaning in which they were information what the libellous meaning of said to be libels. Without such averments the words was,

he could not plead to them. He submitted the charge of libel said to be contained in this letter should have been divided into three different parts,-1st, there was a re- ference to the conduct of Mr Nelson at the Chamber of Commerce, as a public man, what he said in a speech at a public meet- ing; Zud, there was a reference to certain transactions in which the late Mr Heaton was concerned; and 3rd, there was the re- ferenco to Mr Nelson as a trafficker in shares generally.

Mr Franois: The rule extended thus far. Not only if the words were ambiguous had the information plainly to set forth which of the meanings was complained of as a libel, but if the words were charged as a libel on a man in his business it had to show how they were said of him, or how they applied to him, or what they repre- sented of him in his business which was a libel. He subuitted that the libel charged must be precise and definite, that it was not competent for the learned Attorney General to charge as a libel a long letter, part only of which was or could be defama tory. It was for the Attorney General to set out, according to the ordinary role of criminal proceedings, the words which he alleged were defamatory, and to omit all the others which were in the letter but which he did not charge as defamatory. Until he did so, the defendant was certainly greatly embarrassed. His embarrassment arose both with regard to the pleadings which he should make and the evidence he should call. The

The Chief Justice: Not as a "dealer in shares generally," but as a general dealer in shares, he being a person who should not engage in such dealings.

Mr Francis: My contention is that the letter may be read as containing three sepa- rate and distinct assertions.

The Chief Justine: Libellous assertions. Mr Francis: I will not admit that.

The Chief Justice: But will other men of common sense read it as you do? Is it not capable of being as read without innuenda ?

Mr Francis: My position is this,-) am

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entitled to plead do not say whether the world, as Counsel for the prosecution, am going to plead or not-to each allegation to take any objection to the defendant hay justification, and that this allegation is true ing every opportunity of presenting the in substance and fact, and that it was for fullest defence. There was not the slightest the public good that it should be published, doubt that his Lordship's view was quite The whole letter being put in and without right.

innuendo, and not divided in any way to The Chief Justice: Then let this motion show the different allegations which we have stand over without prejudice, and then the to deal with and which are said to be libel-pless will be no prejudice to the motion. lous, I am unable so to plead, and we are When we see how things stand we can put thus embarrassed.

the whole matter in such a shape as best to present the case for hearing. Mr Hayllar: Precisely,

The Chief Justice: You can plead not guilty to the whole; you can then plead justification so far as a certain portion is concerned, and so far as another portion is concerned you can plead the same or another ples, and so on.

Mr Francis was doubtful whether this could be done. In a civil ease it could.

The Chief Justice: And where is the difference P

Mr Francis referred his Lordship to the statute 6 and 7 Vie. If his Lordship held that he could plead to the information in its present form, part by part, he was quite

satisfied.

Mr Hayllar referred his Lordship to Starkey, sec. 7, which referred to the re- plication. He submitted that the pleading would follow the same principle.

Mr Francis said the replication was a very different thing from the defendant's plea.

The Chief Justice: I must say one thing that what was written under heat is one thing, not justifiable but excusable; what is said afterwards and premeditatedly, that forms another libel in the mind and inten- tion of the writer, and, as this Act puts it, makes it a subject matter for very serious consideration afterwards.

Mr Francis: Either in mitigation or ag- gravation.

The Chief Justice: Either in mitigation or aggravation. Either, then, the spirit iu into acount as a serious aggravation or- which the thing was done would be taken

Mr Francis Your Lordship is threaten- ing the defendant if he pleads justification.

The Chief Justice: I am not threatening the defendant, Mr Francis. You have no right to any such a thing.

Mr Francis: It looks very like it. Hia Lordship having consulted the au- The Chief Justice: I say that if the de- thorities said, he was quite satisfied the fendent comes forward and pleads the truth pleadings in a criminal would precisely fol- of his letter, it then becomes a cool preme low those of a civil ease. The defendant ditated statement by the defendant, and could select such portions of his letter as his doing so comes to be a matter for serious he believed he could justify if he were to consideration afterwards. plead justification. He read the case of Mr Francis: And such a statement in Clarkson v. Lawson on the point.

Court could not under any circumstances be

Mr Francis said that removed the embar-dealt with as a libel. A defendant or his rassment, and he withdrew the motion. witnesses coming into a court of justice to

His Lordship said, he did not wish to justify an alleged libel, are protected in deprive the defendant of any right he had every way, and under no circumstances can Bor to limit his exercise of it. Did Mr they ho prosecuted or sued at law. Hayllar object to the defendant being al- lowed to plead in this way?

The Chief Justice: And his doing so would be taken into account as aggravating or mitigating his offence.

Mr Hayllar did not object. He thought it was only common sense. He quite agreed with his learned friend that the letter vir- tually contained three charges against Mr Nelson. If the defendaut had a different it enables him to show to what extent he

defence to these three parts of the letter, the whole of which was charged against him

that it is to be taken as an aggravation. It Mr Francis: It does not necessarily follow may be taken as a mitigation, inasmuch as

believed, and what ground he had for be- lieving, that what he wrote was true.

as a libel, it was only common sense that he The Chief Justice: It will be taken as 20 should be allowed to plead these different aggravation or extenuation of the offence as defences. But he did not see that the plain- the facts turn out, but it is a deliberate re- tif could have divided the letter up into petition of the libel. three portions. The three portions were only one libel; the three statements Mr Pit- man made in the letter all tended to the same end. He would be the last person in

Mr Francis: With your Lordship's permis-

sion I will withdraw the present motion.

His Lordship: Well and good.

It was then, after some conversation,

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