66 66 c. 96 (called Lord Campbell's Act), was made applicable to this colony by Ordinance of 1845, Session II., No. 8. It has not been repealed, and it was contended that the indictment was under that statute. Unless it is under that statute I am of opinion it is not valid. The Code provides that there shall be no prosecutions in New Zealand for what would have been offences at common law. The question is, therefore, is this indictment under Lord Campbell's Act? The effect of that statute has been judicially determined in the case of Reg. v. Munslow(1), and, unless the Court is prepared to overrule the reasons given for the decision in that case by a strong Court viz., Lord Russell of Killowen, C.J., Baron Pollock, and Justices Wills, Charles, and Lawrance-defamatory libel is not an offence created by Lord Campbell's Act. The Chief Justice said (2), speaking of the 5th section of Lord Campbell's Act, "The section does not, therefore, as its language shows, create "a new offence, nor does it purport to give a definition of an "existing offence; but it provides for the application to that which was already an offence at common law of the appropriate punishment on conviction for that offence." Further, he said (3), “The indictment is for a common-law offence, but is so framed as to bring it within the section for the purpose of punishment." And again he said(4), “I do not decide, "however, upon that ground, but upon the ground that the "indictment is good, that it is not in respect of an offence "under or created by the section, and that the true view of "the section. is that it enjoins the character of the punish"ment to be awarded to an existing offence." Baron Pollock said (5), It has been pointed out by my Lord that this is not an indictment which is framed under any particular section of the statute, or which charges a crime created by statute." Wills, J., said (6), "I am of the same opinion. It is clear to "me that this is a good indictment at common law." And Charles, J., said (7), "I agree that the indictment is good, " and have nothing to add to the reasons already given." And Lawrance, J., entirely agreed. It was urged, however, that if the indictment before the passing of the 14 & 15 Vict., c. 24, would have required the ending contra formam statuti before the punishment enacted under Lord Campbell's Act could have been inflicted, then the indictment is a proceeding "under 66 66 66 C.A. 1901. REX v. MABIN. 456 C.A. 1901. REX V.N MABIN. some provision of some statute" in the meaning of section 6 of The Criminal Code Act, 1893." I do not think this is a valid argument. The crime or misdemeanour charged must be a crime or misdemeanour created by the statute. It cannot be said that this crime was created by Lord Campbell's Act. It only provided a punishment for an offence known to the law. The test would be, suppose a crime was created by a statute, and a new punishment added by a later statute, then the indictment would under the old form run contra formam statutorum. And in this case it would have required contra pacem, &c., as well as contra formam, &c. This shows that contra formam statuti would not of itself have been sufficient. And, though all crimes, it has been said, might, even if created by statute, be deemed to be against the King's peace, yet this illustration of what was requisite helps to show that reliance would not and could not have been placed on Lord Campbell's Act alone: See Hale's Pleas of the Crown(1) and Chitty's Criminal Law(2). Further, if the reason for the existence of the Code is considered, this interpretation will be strengthened. The Code was meant to be a code; reliance was not hereafter to be had on the common law. There must be some statute produced declaring an offence before an inhabitant of New Zealand could be charged with a crime. The Code has provided for three kinds of libel-for (a) seditious libel (sections 101 and. 102), for (b) libel on foreign princes or sovereigns (section 103), and (c) blasphemous libels (section 133). Other libels have been left out. Why? It is impossible to ascertain the mind of the Legislature. Before the Code was enacted in 1884 a full bench of Common-law Judges (Lord Coleridge, C.J., and Denman, Field, Hawkins, and Mathew, JJ.), in Reg. v. Labouchere(3), had held that for ordinary libels the criminal law should not be invoked. They approved of this passage in Hawkins's Pleas of the Crown(4): viz., "The "Court will not grant this extraordinary remedy by informa"tion, nor should a grand jury find an indictment, unless the "offence be of such signal enormity that it may reasonably "be construed to have a tendency to disturb the peace and harmony of the community. In such a case the public are "justly placed in the character of an offended prosecutor, to 66 (1) 1800 ed. Vol. ii. 191. (2) Vol. i. 290. (8) 12 Q.B.D. 320. (4) 7th ed. Vol. ii. 128, note to sec tion 6. 66 66 "vindicate the common right of all, though violated only in the person of an individual; for the malicious publication of ** even truth itself" [this, it must be remembered, was written when truth could not be pleaded to an indictment] “cannot in true policy be suffered to interrupt the tranquillity of any "well-ordered society." And, though that was a case in which there was an application for a criminal information, yet there was no distinction drawn between that proceeding and one by indictment. In a later case, in 1888, Lord Coleridge saidWood v. Cox(1)—“ Accordingly they" [that is, the Jockey Club] "suspended their inquiry, and Wood went to Messrs. "Lewis & Co., who seemed to have suggested a criminal pro**secution; and, what was more strange, the Public Prosecu"tor had given his fiat for such a prosecution. He had asked "who it was who exercised this very important function of allowing a prosecution for libel. The principles on which such prosecutions should be allowed had been laid down by 'himself, as the mouthpiece of a strong Court, in a recent case, The Queen v. Labouchere (2), in which he had cited the opinions of great Judges to this effect: A criminal prosecution ought not to be instituted unless the offence be such as can be reasonably construed as calculated to disturb the "peace of the community. In such a case the Public Prosecutor had to protect the community in the person of an indi"vidual. But private character should be vindicated in an "action for libel; and an indictment for libel is only justified when it affects the public, as an attempt to disturb the public peace. Now, that was the law, and the Public Prosecutor ought to know the law; and when he heard that the Public "Prosecutor had sanctioned a prosecution for a libel imputing "to a jockey that he had pulled a horse, he could only, as "Lord Justice Knight Bruce used to say, 'hold up his hands "in respectful astonishment.'" 66 66 66 66 66 66 Seeing the wide meaning given to "seditious libel" in section 101 of the Code, it may be that the Parliament meant to enact what Lord Justice Coleridge held was the law, and that mere personal libels not necessarily affecting the public peace should not be criminally prosecuted; but, if so, there are libels that may affect the public peace, such as wanton attacks on private character, that cannot now be criminally prosecuted. I am also of opinion that the fact that section 378 of C.A. 1901. REX v. MARIN. C.A. 1901. REX v. MABIN. the Code provides that no special pleas can be pleaded is 66 66 on under the plea of Not guilty.' But truth is not a ground of defence unless under a special plea; and section 378 declares that such a plea cannot be pleaded. This seems to me to point to the conclusion that the Legislature, though it has not repealed the sections of Lord Campbell's Act referring to criminal prosecutions for libel, assumed that the ordinary defamatory libel was no longer a criminal offence. There are still two kinds of libel mentioned in Lord Campbell's Act which are not offences at common law-viz., those mentioned in sections 3 and 4 of the Act. In an indictment under either of these sections there is no need of pleading a plea of justification, as the offence, under section 3, is publishing or threatening to publish a libel with intent to extort money, &c., and, under section 4, publishing a libel "knowing the same to be false." The plea allowed under the 6th section-viz., of truth, and that it was for the public benefit that the truth should be published - would be no defence to the offences mentioned in section 3. And, as to section 4, the onus is on the prosecutor to prove the falsity of the libel, and that the publisher knew it was false. Under the plea of Not guilty" the negative of this averment could surely be shown. If, then, there is no such crime as an ordinary defamatory libel, there is no need of a statutory provision to plead the special plea under section 6. (1) 7th ed. Vol. ii. p. 128, sec. 6. Aid cannot be obtained in the interpretation of a statute from the parliamentary history of the law. If such could be invoked, it would, I think, appear clear that many commonlaw offences, including the crime of defamatory libel, were meant to be abolished (see original Code, report of Commission on same, and report of our Commission on Statute Revision on Code). In my opinion ordinary defamatory libel was not before our Code a statutory offence, but a common-law offence; and, this being so, it is no longer a crime in New Zealand, and the indictment was properly quashed. I regret that I see no escape from the logical difficulty presented by the words of the statute, nor from holding with His Honour that a defamatory libel is no longer indictable in New Zealand unless it is alleged and proved that the publisher of the libel published it knowing it to be false. The result is eminently unsatisfactory. The difficulty of proving actual knowledge of the falsity of the libel is obvious. A man who is not worth suing civilly will be at liberty to publish the vilest calumnies against men or women, and will go entirely unscathed, unless it can be proved that he actually knew that his statements were false. Such a state of things does not, I believe, exist in any civilised country, nor, looking only at the interests of the public peace, is it desirable that it should continue to exist. DENNISTON, J.: I accept in its entirety the judgment just delivered by my brother Williams. CONOLLY, J.: I am of the same opinion. EDWARDS, J.:— The case of Reg. v. Munslow(1) establishes that an indictment for the offence mentioned in section 5 of Lord Campbell's Act, 6 & 7 Vict., c. 96, is an indictment at common law, and that this section does no more than provide an appropriate punishment for a common-law offence. This being the case, it appears to me to be clear that a person indicted for that offence is a person proceeded against at common law, and not (1) [1895] 1 Q.B. 758. |