CHAPTER Practice under the Statute. the jury, without hearing the opinion of the judge, but to declare that they should be at liberty to exercise their own judgment upon the whole matter in issue, after receiving thereupon the opinion and directions of the judge " (m). And Best, J., observed in the same case, that it must not be supposed that the statute of Geo. III. made the question of libel a question of fact; if it had, instead of removing an anomaly, it would have created one. Libel is a question of law, and the judge is the judge of the law in libel, as in all other cases; the jury having the power of acting agreeably to his statement of the law or not. All that the statute does, is to prevent the question from being left to the jury in the narrow way in which it was left before that time. Judges are in express terms, directed to lay down the law, as in other cases. In all cases, the jury may find a general verdict; they do so in cases of murder and treason, but there the judge tells them what is the law, though they may find against him, unless they are satisfied with his opinion (n). And in a subsequent case of libel, Best, C.J., said: "I do not admit that, even in criminal cases, the jury are the sole judges of the law. Before the statute, their province was merely to find whether or not the innuendoes were proved, and then it was for the judge to say whether or not the publication was a libel. The statute does not transfer to the jury the authority of the judge, but it merely provides that they may find a general verdict" (o). The practice under the statute has therefore been, for the judge first to give a legal definition of the offence, and then to leave it to the jury to say, whether the facts necessary to constitute that offence are proved to their satisfaction; and this, whether the libel is the subject of a criminal prosecution or a civil action (p). If the publication in consideration of law be libellous, then it is a question of fact for the jury whether it was wilfully and maliciously published, subject, however, to the ordinary presumption of law, that in the absence of proof to the contrary, a man intends that which is the natural consequence of the means which he employs. If collateral facts be proved in defence, it is for the court to pronounce whether they furnish (m) The King v. Burdett, 4 B. & Ald. 183. (n) Ibid., 4 B. & Ald. 131. (0) Lery v. Milne, 12 Moore, 421; 4 Bing. 195. (P) Parmiter V. Coupland and another, 6 M. & W. 108; and ride supra, p. 315 an absolute defence, or a conditional one, dependent on the actual or express malice of the publisher; of the existence of which the jury are to decide. It follows, that neither the jury nor the parties have a right to expect from the court any specific and direct opinion upon the whole of the case, or any other than that which is ordinarily given at the discretion of the court to the jury in parallel cases, with respect to the verdict which they ought to find in point of law, as dependent and contingent upon their conclusions in point of fact, drawn from the alleged libel itself and all the circumstances of the case as to the meaning, motives, and intention of the defendant (q). CHAPTER XXXVI. fact for the what of law The offence consists in the act of publishing the matter set What are forth on the record, in the sense appearing upon the face of questions of the libel itself, or in that attributed by the innuendoes, and Jury, and with the intention alleged, maliciously and without any legal for the Judge. justification or excuse. The fact of publishing the illegal matter, and of its being published in the particular sense alleged, are ordinarily questions of fact for the jury, subject, of course, to the opinion and judgment of the court, whether the facts proposed to be proved would be, when proved, sufficient in point of law, to constitute a publication and to support the innuendoes. Whether the defendant published the alleged libel wilfully Intention. and designedly, and whether he did so with the particular intention specified in the information or indictment, are also questions of fact for the determination of the jury. Until those facts are determined by the jury, the court cannot, otherwise than hypothetically, form any judgment on the question of guilt or innocence. On the other hand, the quality of the alleged libel, as it stands on the record, either simply or as explained by averments and innuendoes, is purely a question of law for the consideration of the court. must be either Whether the publication of the libel alleged was a malicious or Publication wrongful publication is entirely a question of fact for the jury; malicious or for, though the fact of publishing, and the illegal and noxious wrongful. quality of the thing published be beyond dispute, yet the act of publication may be perfectly innocent; so far from being illegal, it may have been an act meritoriously done, for the very purposes of justice. And, therefore, as not merely a publication, but a malicious or wrongful publication must be averred, so must such a malicious and wrongful publication be (q) See R. v. Holt, 5 T. R. 436; R. v. Burdett, 4 B. & Ald. 95, CHAPTER Occasion and circumstances of Publication. found by the jury, either by means of a general verdict of guilty, which comprehends the whole of the charge, or by a special finding of a malicious and wrongful publication, or, at least, by negativing the existence of any legal justification or excuse. Where the circumstances and occasion of publishing are such as amount to a legal justification or excuse, independently of the question of intention, the existence of those facts is, of course, for the consideration and decision of the jury; but whether, when ascertained, they amount to a legal justification or excuse, is obviously a mere question of law for the opinion and judgment of the court. It is, for instance, a question of mere fact, whether the alleged libel was published by way of petition to parliament, and whether it was made according to the course and order of such like proceedings in parliament, but whether the occasion justifies a publication so made, is a question of law. So, again, it is a question of law, whether the occasion and circumstances of the publication furnish a conditional justification or excuse dependent on the actual intention of the defendant; but when that is the case, and the guilt or innocence of the defendant turns upon the question, whether he acted with an evil and mischievous intention, or bonâ fide with a view to some legal object, the question of malicious intention is a conclusion of fact to be drawn by the jury on a consideration of the terms of the alleged libel and all the circumstances of the case. If the matter charged to be libellous were contained in a letter, sent by the defendant to the prosecutor, and the defence were, that the charges it contained were stated not with intent to provoke or exasperate, but were written for the purpose of honest remonstrance and admonition, it would be for the jury to decide, under all the circumstances, considering the situation of the parties, the conduct of the defendant and the language used, whether the act in reality originated in a sincere and honest intention, or in an evil and sinister motive which warranted a conviction. It is clear, therefore, that in order to warrant a legal judgment of condemnation, the jury must, by their verdict, find that the act was done maliciously or wrongfully, or in such other manner as is sufficient to negative the question of any legal justification or excuse; until then, the presumption of innocence is not excluded, still less is the criminality of the act established. CHAPTER XXXVI. the Jury as Where on the trial of a criminal information for a libel contained in a newspaper, the jury having requested to be directed as to whether it was necessary that there should be a malicious Direction to intention in order to constitute a libel, Abbott, L.C.J., to Malice. directed them, that, "the man who publishes slanderous matter calculated to defame another, must be presumed to have intended to do that which the publication is calculated to bring about, unless he can show the contrary; and it is for him so to show." And this was held to be a correct direction : and assuming that a malicious intention is necessary to constitute a libel, such intention is to be inferred from the mischievous tendency of the publication itself; and the onus of rebutting that inference is cast upon the defendant: and where the publication of a libel of mischievous tendency has been proved, and the defendant has not shown anything to rebut that inference, the jury are bound to find the defendant guilty (r). The verdict in this, as in other criminal proceedings, is Verdict. either a general verdict of condemnation, or acquittal; or a special verdict, by which the jury find the facts, and refer the questions of law to the court. For, as already shown, it is specially provided by the Libel Act, 1792 (s), that nothing therein contained shall extend, or be construed to extend, to prevent the jury from finding a special verdict, in their discretion, as in other criminal cases. when. And although the jury find the defendant guilty, he may Verdict of Jury move in arrest of judgment; for the legislature in passing an not conclusive, enactment in favour of defendants, had no intention to put them in a worse position than before, and to make the verdict of a jury conclusive against them. And therefore, by the 4th section of the statute it is provided, that the defendant, though found guilty by the jury, shall still (as he had prior to that Act) have the power to take the opinion of the court on the question of law by moving in arrest of judgment. And accordingly although the jury should find the defendant guilty, yet he is at liberty to move in arrest of judgment; and if the court should afterwards find that the matter charged in the indictment or information is not libellous, judgment must be arrested (t). (r) The King v. Harvey and another, 2 B. & C. 257, 266. (8) 32 Geo. III. cap. 60, s. 3, supra. 520 CHAPTER Court after verdict. CHAPTER XXXVII. PROCEEDINGS AFTER TRIAL OF INDICTMENT OR CRIMINAL Province of the Court after Verdict. Proceedings, on Defendant coming up What may be shown in Mitigation of Order of reading the Affidavits, on Punishment on Conviction, at Common Law, and by Statute. Costs on Indictment for Libel. AFTER the defendant has been found guilty on a criminal information, it is a matter of course that he should stand com Province of the mitted, pending the consideration of the judgment; unless the prosecutor expressly consent to his standing out upon bail (a). Postponement Unless there is some substantial cause shown to the contrary, of judgment on by the prosecutor, it is usual for the judge to admit the Conviction. defendant to bail, on his finding security by recognizance; Crown Office postponement himself with two sufficient sureties in such sum as the judge in his discretion may see fit to require, for his personal appearance on the day appointed, and from day to day afterwards until he receives the judgment of the court. And so also upon an indictment for libel which has been removed by certiorari into the King's Bench Division, for trial by a special jury; if a verdict of Guilty is returned, judgment may be deferred until the ensuing term (or day appointed) and the defendant admitted to bail upon similar terms and conditions. By the Crown Office Rules, 1906, on all trials for felonies or misdemeanours in the King's Bench Division, except upon of judgment. informations filed by leave of the court, and ex officio informations where the Attorney-General shall pray that the judgment may be postponed, judgment may be pronounced during the sittings or assizes at which the trial has taken place, by the judge before whom the verdict has been taken; as well upon the defendant who shall have suffered judgment by default, or confession, as upon those who shall have been tried and convicted, and whether such persons be present or not in court (b). (a) R. v. Waddington, 1 East, 143. (b) C. O. R. 1906, r. 162. |