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Decisions of the Superior Courts of New South Wales, 1788-1899

R v Howe [1825] NSWSupC 14

libel - arrest of ship - East India Company's monopoly - prize vessel - the Almorah

Supreme Court of New South Wales

Forbes C.J., 18 April 1825

Source: Australian, 21 April 1825

 

Rex v. Howe.

A Rule having been obtained in this case on a previous day, calling upon the defendant, the Publisher and Editor of the Sydney Gazette, to shew cause why a criminal information should not be filed against him for an alleged libel which appeared in his paper on the 3d of March, against Lieutenant B. Mathews, of H.M.S. the Slaney, cause was now shewn.[1 ]

The alleged libellous mater charged Mr. Mathews with having "wantonly and daringly fired on the King's Officers," afterward with having "cut and run;" and further with "taking away" the ship Almorah from the Sydney Harbour, implying an unlawful or piratical taking away.

Eleven long affidavits were put in by the defendant's Counsel, the Solicitor General,[2 ] justifying the publication.  In some of the affidavits it was sworn that several muskets, loaded with ball, were fired by and by the orders of Mr. Mathews, in the direction of the boat in which were the Attorney General,[3 ] the Chief Constable, and others, all of whom were proceeding to the Almorah with a warrant (whether legal or illegal did not appear,) and that the splashes of the balls were seen on the water by those in the boat.  By other of the affidavits it appeared that Mr. Mathews had given orders to the men who fired, to fire "wide of the boat," and only to make pretence to intimidate, and if any boats came alongside to shove the people off with their hands.  It was also sworn that after the firing Mr. Mathews had gone ashore in sailors' plain clothes.

The Solicitor General in shewing cause against the rule, commented upon the passages in the Sydney Gazette alleged to be libellous, and denied the implications and inuendoes drawn therefrom by Captain Mitchell, as they appeared in his affidavit, especially the inuendoes that Lieut. Mathews had been guilty of felony in firing at the boat, or of piracy in taking away the Almorah.  The passages were not a scandalous libel as alleged by Captain Mitchell, for they were all true.  As to the Attorney General, his boat had as much right to traverse the harbour of Port Jackson, as his carriage had the highway; and Naval Officers were bound to protect, not fire upon their fellow citizens.  They had no right to intimidate them.  The attack on H.M. Attorney General was daring and outrageous, for Lieut. Mathews had no right to oppose the laws ---- he would have obtained justice in this Court, without going for it to Calcutta, at the risk of destroying his fellow citizens, but he was afraid of meeting enquiry.  Besides which the taking of rice to Calcutta when it was so greatly wanted here, was inhumane.  The Almorah was a Government transport, containing Crown property: the crew had no right to be harshly treated, and made prisoners.

Dr. Wardell, on behalf of Captain Mitchell, replied at length to the arguments of the Solicitor General.  He contended that upon the shewing of the defendant's own affidavits the rule must be made absolute.  The best way of putting the accuracy of the statement to the test, was by inquiring first, whether Mr. Mathews could be capitally convicted if put on his trial, supposing all that had been sworn to in the affidavits could appear in evidence; and secondly, whether if all that was stated in the publication in question could be supported by testimony, Lieutenant Mathews could not be convicted.  He contended that by the first evidence could not, but by the second he could be convicted --- the inference then was obvious, that if truth even were a justification in this stage of the proceedings  the truth here had not been stated.  The Learned Counsel quoted several authorities, shewing the law of the subject.

Mr. Wentworth followed on the same side.  The course adopted by Captain Mitchell in his own case was by seeking a private remedy in the Civil Court.  But Lieut. Mathews being absent, his character could be vindicated no other way than by the present proceedings.  The passages in question contained charges of a serious nature: but even though they should not do so, still they might be libellous.  Libel, according to Holt, was of three classes; 1st, libels accusing of crime; 2d, libels injuring a man in his calling ; and 3d, libels holding a man up to public contempt or ridicule, and injuring him in his intercourse with his friends.  The first kind included the other two.  Did not "cut and run" mean an evasion of justice? and if it did, suppose it not to be attended with loss of goods and chattels, still it subjected an officer to the disesteem of his brother officers?  This part of the libel was not covered  not even mentioned in the affidavits just read.  Supposing all the other parts of Captain Mitchell's affidavit replied to and refuted, this allegation alone must uphold the rule.  It was clear law that all parts need not be held libellous to support the rule.  According to Justice Buller, His Honor on this part alone must make the rule absolute.  The same remarks and conclusions were warranted on the libel which spoke of the "taking away the ship."  The truth of the charges, according to Holt, were no reason for not granting process in the present stage of the proceedings.  In an unreported case Rex v. Mittford, in King's Bench, oath being met by oath, the Judge referred the party to the ordinary proceedings, the grand jury.  There was no grand jury in this Court to apply to, except the Attorney General, and he had already refused to prosecute.  The present therefore was the ordinary proceeding, and if this rule were dismissed, the complainant would be without remedy.  Judgment deferred.

 

 

Source: Australian, 2 June 1825

The Chief Justice  I offer no opinion on the merits of the case or the affidavits; but, seeing that there is no remedy here from the want of a Grand Jury in this Court, let the information go.   Rule absolute.[4 ]

 

Notes

[1 ] The same newspaper article gave rise to another libel action as well, Mitchell v. Howe, October 1825. For other cases concerning the Almorah, see R. v. Mitchell (No. 1), April 1825; R. v. Mitchell (No. 2), August 1825.  The facts are summarised in footnote 1 in R. v. Mitchell (No. 1), April 1825.  The Gazette's editor, Howe, frequently commented on libel laws: see for example, Sydney Gazette, 24 March 1825.  For his comments on this particular case, see Sydney Gazette, 31 March 1825, 21 April 1825, 26 May 1825, and see 24 February 1825, and 3 March 1825.

For the Gazette's comments on the costs alleged to be due to Wardell and Wentworth in this case, see its issue of 21 July 1825, and for the detailed claim of costs, see 4 August 1825.

[2 ] John Stephen, subsequently a Justice of the Supreme Court.

[3 ] Saxe Bannister.

[4 ] The Sydney Gazette, 2 June 1825, called the case The King, at the information of Bathurst Matthews versus Robert Howe.  It reported that Forbes C.J. said: ``I shall offer no remark upon the merits of the case whatever, but as the ordinary remedy by indictment is not open to the prosecutor, under the circumstances of the case, I will make the Rule absolute."

Published by the Division of Law, Macquarie University