Patience Is Most Necessary If You

Are Charged With Lirei In Fiji

By Judge and By Jury

By

R. W. Robson

After nine days’ hearing in the Supreme Court of Fiji, extending over two wearisome weeks. I was on May 10, fined £lO (called damages in respect of libel) for an effort I made in June last to defend the fair name of Fiji.

IT was the first time I ever had been in a supreme court of law as a principal: and it provided me—and others—with a remarkable example of topsy-turvydom in legal procedure. Possibly, its quaintest feature is that probably it finished with the plaintiff and me in com plete agreement—namely, that there is nothing to enthuse about in the judicial system of Fiji.

The case can be simply stated.

Someone calling himself “CCC (NZ) ” wrote on article entitled “The White Man’s Burden,” which was published in Sydney Bulletin of June 13, 1956. It contained a series or blazing inaccuracies, all calcu lated to defame Fiji and the people who govern Fiji and control its principal institutions. I then did not know who had written the article — and I did not care—but I now know that he was a wandering fellow who spent several weeks in Fiji, and whose purpose—according to his history and background was (shall we say) obscure.

I wrote an answer in strong language ( Bulletin, July 4: PIM, July. 1956), rebutting about a score of charges against Fiji; and in answering one of these, I said: “As publisher of “The Fiji Times”

I will say that the statement that ‘the Government controls local news stories’ is part of the campaign which a certain class of irresponsible newspaperman has been waging for months against Fiji’s well-known Public Relations Office. As far as I know, the Fiji PRO has never either withheld a Government news story due for publication, or attempted to influence its presentation by the local newspaper.”

LATE in July, 1956, I received a radiogram from a Suva solicitor saying that a Jack Thornton had complained that my article referred to him. I was surprised: read the article through two or three times; could see no possible connection with him: and replied accordingly.

I had known of Thornton for years as an itinerant writer, wandering around the Pacific, sending para graphs and ohotographs to various journals, including the PIM. I had met him only once, but knew noth ing about him.

When I was in Suva in September,

these people served a writ upon me claiming damages for libel. I still could not understand it; but I felt that some strange business was afoot, so I handed it over to a Suva solicitor for attention.

Weeks later, I received in Sydney a copy of the “statement of claim.” and then I discovered what was biting at Mr. Thornton.

Mr. Thornton insisted that as he was the only person conducting a campaign against the Fiji PRO in the period referred to (in a weekly journal called the Guardian ), he was identified by the paragraph of my article (quoted above) as an irresponsible newspaperman, and as the * writer of the June 13 article

in the Bulletin; and that thi had been defamed.

The claim seem to me so at that I still refused to take it: ously—l could not believe th would be proceeded with.

When I wrote the article 1 not aware that Thornton was ning the Guardian, and I had never seen his “campaign the Guardian, and knew no about it.

MEANWHILE, Thornton w; holts with the Governme Fiji. He had been allowee the country originally on the: four-months’ visitor’s permit had been allowed to remain, ft reason and another, for a con able time; but the authorities,; time in 1956, had begun to about the same time his claim a me began to take shape. At from Fiji, published in NZ. that he was being “hounds the Government of Fiji; an dicated that he and his hard ing solicitor, Mrs. Bernard,, critical of certain aspects o Fijian judicial system.

At the end of April (just; I was most anxious to go ter berra during the Review Confl of the South Pacific Commissi

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to proceed to Suva to defend alleged libel claim. i hearing commenced on April id it extended over nine weary [(or two weeks), finishing on 10. Here are some of the side i of the trial, as I saw them: [ modern court-room, with the rorst acoustics and the hardest enches I’ve ever known in a ourt. i bumbling, inefficient pro cure, unworthy of any country ith a pretence of modern lethods. Quite extraordinary me-wasting by “1 earned junsel” permitted, b modern system of recording fidence. A painstaking British idge slowly and deliberately laking notes of question and iswer, thus further slowing d proceedings already slowed ) by barristers’ methods, hese conditions greatly pro nging a hearing, so that the •sts —to be paid by some un rtunate litigant—were prob )ly trebled and certainly ►ubled. plaintiff himself gave evid te, and there were two wit hes only; and the issues were mple (identification and fair nt)—yet the presentation of

the plaintiff’s case took from Mon day morning until after noon on Friday—a performance I should never have believed, had I not sat for five days on those hard boards and seen it.

The evidence was not in the least complicated—it consisted mostly in the presentation to the Court of the Bulletin (to show the two articles which started the rumpus) ; of some 33 copies of the Fiji Guardian, an inconspicuous little weekly which I had never before .examined, and which Thornton proved that he had “edited” between September, 1955, and June, 1956, and wherein he had consistently criticised the PRO; a file of the Fiji Times and Herald, showing that that newspaper, over a period of months, also consistently criticised the PRO; and the Pacific Islands Monthly of December, 1955, and January, 1956, showing that in those issues I had criticised the Fiji Times pretty trenchantly for its attacks upon the PRO, and other matters.

MY case was presented by skilled counsel, and in my opfnion it was a perfect and complete reply to the charge that I had libelled a particular person. It proved the following: • When I dealt with the cam paign against the PRO I referred to a class of irresponsible news paperman” and to no individual. • I did not appear to have

identified Thornton when I said that irresponsible newspapermen had been waging war on the PRO, because there had been a definite campaign in the Fiji Times (which I had referred to publicly in Jan uary) and criticism also in other newspapers. • I was completely unaware of Thornton’s “campaign” in the Guardian, because I had regarded the Guardian as a publication of no status or importance, and had never seen it, except one or two copies at long intervals.

My defence consisted of 'non identification of Thornton, and of fair comment. Counsel were so cer tain that we should succeed on those counts, that we did not attempt to justify the term “irresponsible”— which, of course, would have in volved a complete raking-over of Mr. Thornton’s record. We said “ Why bother about Mr. Thornton’s record —Mr. Thornton was never re ferred to?”

My counsel, addressing the jury said that he would not argue the question of whether my comment had been fair, because the plaintiff and witnesses, in evidence, had agreed that the comment, provided it was not aimed at Thornton, was perfectly fair. So he devoted his address largely to identification, and quite properly claimed that he had proved lack of identification, through the testimony of plaintiff and his witnesses, even before the defence had started. (ov er>

ING to waste of time in court, t was Friday morning (ninth ay of hearing) before the judge led up. » judge summed up for about inutes. It was apparent, from utset, that his comments were ally in favour of Thornton. Our ace —and more especially the irt of our evid e n c e—had •ently been rejected in toto; mguage I had employed in the s in which I had defended the lame of Fiji was condemned, ally, the Judge set 5 questions ie jury. The first was, whether ; fair comment. The next three ons were concerned with the fication of Thornton. The last AOiat damages do you award? idicated that, in his opinion, iton had been identified and ed. And then he said this, or to this effect: first question for the jury to r was; Is this fair comment? i answer was Yes, they need nswer the other questions— rould be the end of the matter, was not fail* comment —and s opinion it was NOT fair jnt—they would proceed to r the other questions, repeated once, if not twice, >rds “In my opinion, it is NOT omment” —it was a direction 10 jury could be expected to

The seven jurors (all good, solid citizens of Suva) filed out.

Clearly, our case was lost.

Immediately, various listeners, in cluding lawyers, came around. Their unanimous view was that the jury should have been left entirely free to make up their own minds on at least the first question and that there should be an appeal on the ground of mis-direction of the jury.

I said: “I’m already down the drain on this thing, whether I win or lose—l could never recover all my costs. The verdict is worth challenging only if heavy damages are awarded. What do you think will be the damages?”

The guesses ranged from £5OO to

£L,Ooo.

“Well, then, let us appeal by all means, if you’re sure it can be upset,” said I.

THE jury came back. As we ex pected, they answered the first and following questions in accordance with His Lordship’s directions. But on the last and (to me) vital question (damages) they answered “£10.”

That, of course, changed every thing. £lO, after proceedings ex tending over seven or more months, and a Court hearing of nine days!

Better to pay the £lO and—if so ordered—the costs involved in what I call my 9-days-wonder, the Fiji Supreme Court, than go on with an expensive appeal, in which I had little hope of recovering costs, no matter how completely I won. .

I looked across at the plaintiff.

He was observing the wide grins of his successful counsel, with a rather peculiar expression. I suppose he had little to smile about. Out of a year’s intermittent fighting in the law courts of Fiji, he had collected £lO and an official request that he leave the Colony.

I felt we were en rapport —on the

subject of Fijian law, and its application, at any rate.