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or fancied they saw, something eminently threatening in the action of the Bench. Much stress was laid upon the fact that, in the matter over which so much commotion was raised, the judges stood in the triple position of prosecutor, judge, and jury; and it was urged with some show of reason, that it was not possible for any single ordinary mortal to fulfil the threefold obligation with success. Το put the matter briefly, a public opinion, though not a vast public opinion, was excited in favour of the hypothesis that the Supreme Court was attempting to establish a method of procedure that might hereafter involve a serious contraction of the public's right to canvass the demeanour and decisions of judicial funtionaries.

It may be as well, however, to describe the circumstances which eventuated in this pass. In the first place, it must be noted that, in July last, three actions for libel were tried before Mr. Justice Windeyer, in which the proprietors of the Evening News were defendants. The jury in each of these cases returned a verdict for the plaintiff, awarding damages in the respective sums of £10, £125, and £500. A feeling of soreness against the judge was manifested by the paper named, but the language held was not excessively violent. The prevailing impression at the time seemed to be that the juries in the two latter cases had treated the Evening News somewhat too harshly; but the summings-up of Mr. Windeyer were of a very ordinary type. On August 20th, however, another libel action was decided before the same judge. On this occasion, the Sydney Daily Telegraph was sued by one Moy Mow, a Chinese, who complained of a libel published in that paper, in a report of certain proceedings at a police court. The point here at issue was as to whether a witness had sworn that Moy Mow had threatened to kill him. The official record of the proceedings at the police court made no mention of such evidence; and the witness who was reported by the Daily Telegraph to have made the statement, denied in the libel trial having done so, though he admitted that he had said as much in an interview with the conductors of the paper whilst the action was pending. The report, it appeared, was taken, not by an employé of the defendants, but by a reporter of the Evening News, who had performed the work for the inculpated journal in return for a like service rendered by a reporter of the same. Now, since the contempt case ostensibly arose out of Mr. Justice Windeyer's speech to the jury in the action of Moy Mow v. the Telegraph, it is necessary to pay particular attention to His Honour's remarks. After pointing out that the defence was, that

the impeached report was a fair statement of what had taken place in a court of justice, Mr. Windeyer proceeded to say:

“The law on this point is perfectly clear. Just as every member of the community has a right to enter a court, the proceedings of which are public—as they must be in every well-constituted and well-governed country-so anybody can publish reports of the proceedings, so long as those reports are honest, fair, and substantially correct, and not distorted or published with a view of injuring any individual.

The question to be tried, therefore, is whether the report is truthful or not."

The issue is here tolerably fairly stated, I submit. But it is to His Honour's analysis of the evidence that exception was taken; I therefore beg the reader's attention to that also. Mr. Windeyer is reported to have said:

“In support of his case, the plaintiff had called two attorneys who had conducted the police court case, and they had given evidence to show that the name of the plaintiff was not even mentioned by the witness, and that the statements regarding Moy Mow, attributed to him, were never made. The depositions were put in, and the plaintiff further relied upon them as containing no such statements; but with regard to that it was very probable that in a long case evidence would be given which would not be taken down. The attention of the clerk who wrote down the evidence was called the next morning to the paragraph in question, and his evidence was also relied upon as showing that nothing of the kind had been said. Both Mr. Castles and Mr. Fitzgerald said they had known Moy Mow to be a very respectable person, with whom they had been on friendly terms, and had such a statement been made with respect to him they could not but have observed it. They said most positively that nothing of the kind was said, but that if the plaintiff's name was mentioned at all it was only during the cross-examination of a Chinese doctor, who denied that the meeting had been held at Moy Mow's house, or that he had been present. Moy Mow told them he knew nothing about the case, refusing even to act as interpreter in it. The next witness called was Reilly (the witness who was reported to have given the damaging evidence), who said most positively that he never made the statement with regard to the plaintiff. On the contrary, he said the plaintiff was his friend, and whatever he had said about him he had said, not in the witness-box, but somewhere in the precincts of the court. He did say in the witness-box that some one had told him his life was in danger, but not what was attributed to him in the paragraph. With the view of getting rid of his testimony, however, the defendants asserted that he had made contradictory statements. It appeared that, after the appearance of the paragraph, the plaintiff made some application for redress at the office of the paper, and that Reilly was sent for by one of the proprietors, who had a conversation with him. Reilly said he told Mr. Mackay and Mr. Wynne that he had told the reporter, Kerr, somewhere in the precincts of the court about Moy Mow, but not in the witness box. There was great conflict in the testimony on this point. Those gentle. men were called, and they to a certain extent contradicted the account of the statement given by that witness as to his inverview. The gentlemen, Mr. Mackay and Mr. Wynne, said that Reilly had stated that he swore the substance of the paragraph before the magistrates, that he would do so again, and that, in fact, it was true, he being in reality afraid of Moy Mow; so that there was no doubt a contra. diction between those witnesses for the defence and the witness Reilly. It might be that, from the manner in which Reilly had conducted himself, in denying what he had said, the jury would regard him as a witness upon whom they could not rely. It was sworn that at one time he had the appearance of bargaining to be paid, and if so, they might think he said what he did say on purpose to please the parties, and that

afterwards being under the obligation of an oath, he was telling them the truth. But on the other hand, having shown himself to be a person of that character, going backwards and forwards, so that no reliance could be placed in him, they would have to take his evidence in consideration with that of all the other witnesses. He said that he told Kerr about Moy Mow somewhere in the precincts of the court, and on the second occasion, when in the office with the proprietors, he called their attention to the fact that he said so on the first occasion. Whether the defendants would be so anxious not to be guilty of making a mistake of that kind affecting a person's character as to direct their attention sufficiently to the importance of Reilly's say. ing he did not make the statement in the witness-box, was for the jury to say. If the second interview occurred, did it or did it not set the witness up in their estimation ? They might have thought he was a witness not to be relied upon, and yet there might have been some confusion or misapprehension on the part of the gentlemen anxious to make it an admission on Reilly's part that he had said it. .. . Of the wit. nesses called for the defence, there were only two who professed to speak of the evi. dence as given in court. The first of these was Kerr, reporter for the Evening News, who was not connected with the staff of the Telegraph; though he need hardly tell the jury that the defendants were just as much responsible for the paragraph appear. ing in their paper. Whether it were written by one of their own reporters or by a mere stranger, they were just as much responsible for it as if written by one of the proprietors or editors. It was for the jury to say, in examining his evidence and the manner in which he gave it, how far he was to be relied upon, and how far they might feel he would be bound to stand by the paragraph which he had written, and which had brought that responsibility upon the defendants. He was the only person who swore that both the statements were made. The defendants said that the report was true, that they would prove it to be true; and the onus was thus thrown upon them to make it out. Did the jury rely upon the evidence of that witness, opposed as it was to all other witnesses called for the plaintiff? If the evidence of Reilly was to be believed, then it was quite clear he never said what was reported. He swore he never said it, and that he never said one word about Moy Mow in the witness-box. In that case, the case for the defendants entirely broke down. On the other hand, did they rely upon the evidence of that reporter, opposed as it was to all the other evidence in the case? He said the statement was made, and it was for the jury to say whether it was made in the manner in which he gave it in evidence. If they thought, from the manner in which he gave his evidence, that he was a person not to be relied upon, then the insinuation was that he was a person who, by his habits, had impaired his powers of perception, not pursuing a course of life which made a man clear in distinguishing between the niceties of evidence, and the confusion between what he heard in chit-chat about the precincts of the court by persons not speaking under the obligation of an oath. Then the gentleman of course might go in late, might endeavour to pick up a report partly from one person and partly from another, and so get his day's work done as well as he could; and if in that way an untruthful account had got into the paper, that was the misfortune of the paper-it was still responsible. If by the insufficiency of the staff and the necessity for relying upon other persons, an untrue report crept into the paper, the defendants were responsible. So that if the jury thought Kerr's memory was likely to be impaired, they would have to weigh his evidence in the case.

I have trespassed upon the reader's patience and the space at my disposal thus audaciously, because I conceive that the degree of the Evening News' offence must be measured by the propriety of Mr. Justice Windeyer's speech to the jury as here quoted. If this summing-up can be fairly styled "a bitter and one-sided advocate's

* Sydney Daily Telegraph newspaper, 21st August, 1880.

speech," as the Evening News declared on the day following its delivery, then there would seem to be ample warrant for the averment that His Honour had “proved to a demonstration his utter unfitness for the judicial office.” If the charge can be justly regarded as "a degradation of the judicature of this colony,” as the same paper affirmed, then the infliction of a penalty of £250 on the printers may not unfairly be characterised as a tyrannical measure. But I submit to the candid reader that the summing-up, of which I have supplied the principal passages, was quite an ordinary judicial harangue. A slight bias may be discernible in it. Indeed, there can be no gainsaying that the judge did attach much weight to certain points in favour of the plaintiff, which, conscionably, many judges might have passed over in silence; and that, on the other hand, he neglected points in favour of the defendants, which many judges might have thought it their duty to expose and ventilate. But surely this is in the nature of things. Even supposing that any sentient being could listen to a mass of evidence, touching an issue as to the rights of which he was concerned to be alive, without in his own mind forming a judgment as to which way that evidence pointed—and supposing, furthermore, that any but a rara avis could summarise that evidence without showing the bent that it had given to his mind-would there be any advantage therein? I have heard and read some notable judicial charges, yet I do not remember one between the lines of which an opinion on the facts could not be plainly read. The present Lord Chief Justice of England does not fail to indicate his doubts and preferences ; the late Chief Justice of New South Wales assuredly never did. If either of these great jurists has on any occasion perceived what he considered to be a weakness on one side or the other, he has not failed to dwell upon the point; yet it was for dwelling upon what he conceived to be a weakness in the defendants' case that Mr. Justice Windeyer has been most abused. The subject is one of great delicacy, and I would fain leave it untouched; but it behoves me here to keep nothing back which is important to the question I have undertaken to discuss. With reference to the allusion by Mr. Windeyer to the manner of the witness, Mr. Kerr, the Evening News delivered itself of the subjoined expressions:

“We suppose a judge cannot commit a contempt of Court, but certainly Mr. Windeyer committed a most grievous contempt of justice when he suggested, in a charge which should have been an impartial one, that the reporter might have impaired his powers of perception by his habits, and that he might have gone in late, and picked up a report, partly from one person and partly from another,' when

there was not one tittle of evidence to show either that the witness was addicted to bad habits or negligent of his duties. Even if an over-zealous and unscrupulous barrister had made such insinuations, it would have been the duty of a just judge to have told him that a man's character could not be wantonly impugned without giving him a chance of bringing rebutting evidence. If this had been permitted, the witness would have had no difficulty in proving that he is regarded, by those best qualified to judge, as an honest, industrious, and careful reporter."

The allusion was made the theme of a hundred newspaper articles, and the judge has had to endure unmeasured opprobium in consequence. A judge, it has been argued, ought to be the last man to cast unwarranted reflections upon a witness; in fact, a principal duty of a judge is to protect witnesses from the attacks of unrighteous counsel. These dicta are no doubt very just. But what if a witness should demean himself in such ways as to induce the supposition that— to employ Mr. Windeyer's words—he “had impaired his powers of perception;" and yet upon the strength of that same deponent's "powers of perception" the whole issue depended ? Surely, in such a contingency, the presiding judge might fittingly say to the jury: “If you think, from the manner in which that witness gave his evidence, that he is a person not to be relied upon—if you think that his memory is likely to be impaired -then you will have to weigh his evidence in the case.” For if a judge is de barred from thus speaking out, as the Press of New South Wales with one accord has áverred, the liberty of the Bench -an entity as important as the liberty of the Press, in all conscience —is perilously curtailed; and it becomes a moot point whether the judges can in all cases discharge their high and onerous functions efficiently. In truth, this proposition, that a judge has no right to allude to the demeanour of a witness, is about the strangest that even an Australian newspaper ever propounded. But more may be urged in justification of Mr. Windeyer's language. He did not originate the theory that Mr. Kerr's memory might have become impaired. The question was in the first instance raised by Mr. Rogers, the counsel for the plaintiff, Moy Mow. In a letter published on the day after the proceedings, Mr. Kerr states:—“I desire to draw the special attention of the public to two points. The first is the attack made upon me by Mr. Rogers. I care little for this, as it was evidently payment for an old score. I may mention the fact that I stated to a gentleman early on the morning of the trial that Mr. Rogers would probably ‘slate' me—a slang term with which the learned counsel is better acquainted than I am. Mr. Rogers did not venture to cross-examine me, or attempt to shake my evidence in

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