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

R v Howe [1826] NSWKR 2; [1826] NSWSupC 64

criminal libel - press freedom - convict punishment - magistrate, illegal punishment - Macarthur faction

Supreme Court of New South Wales

Forbes C.J.,[1 ] 20 October 1826

Source: Australian, 21 October 1826

 

The Supreme Court was unexpectedly occupied yesterday with a trial upon an Information for Libel.[2 ]

Mr. Bannister, the late Attorney General, figured as prosecutor and advocate, and Mr. Howe, as the maker and publisher of the alleged libel, and consequently as the defendant.  Mr. Bannister fancied himself libelled in the remarks which were published in the Sydney Gazette last Saturday[3 ]--- or if he did not so fancy, he thought a trial of the above nature would be an eligible opportunity for ejecting vast proportions of the spleen which had been for many, many months, accumulating within him, and while he indiscriminately assailed person before the Court, and not before the Court, thought he could also have a fling at certain folks who had wisely treated him cavalierly.  The Gentlemen of the Jury had to listen to his wide-spreading harangue, and wandering, mad invectives, from ten to four o'clock.  For six hours he led them through the thickets of the law, and the vapours of politics - for six hours he boiled and bubbled, and denounced the press and all its devils.  The waters of wrath burst the leaden cistern in which they had become foul, and down tumbled the cataract of foam, in all the might and majesty of - swipes-swipes-swipes.  For six hours did the troubled waters continue their unequal course, before the fountain of bitterness was dried up, and before Mr. Bannister thought that he had deluged the Court sufficiently with the overflowings of his muddy intellects.  For six hours did this poor man rant and roar.  Now resembling an over-driven Ox, staring at the corner of a street, and wondering into what china shop he should next make a forcible ingress, or which unfortunate barrow-woman he should capsize in his progress; and now running full butt at some extravaganza or other - then whining pitifully, like a lamb coaxing and wheedling his auditors; starting again into a fit of phrenzy, as the thought of faction banks, and bankrupt banks, and fees from both and torture bills flitted across his brain.  Oh, it was a comical sight!  Had you but seen him, reader, how he carried the Jury from politics to law - from law to the press - from the press back again to law - how piteously he talked of numbering his hours to the service of Government - how  he heaved when he adverted to the tremendous convulsions in small families - what pains he took to convince the people that he was fond of fees - how unboundedly respectfully he mentioned the revered name of Mr. J. McArthur[4 ]and all that sort of thing - how he shed a tear of sorrow over the crimes of the press, and talked of exulting with delight in the errors of the press - tea-ink he though good beverage, but did not relish the Sybil leaves of slander - he deplored the unfortunate delusion of the late Governor but thought he himself never laboured under such wickedness.  Then his delightful recitals of his soldier and sailor and land propensities and resolves - the history of his coming to a little Colony - the gallantry of the gallant campaigners who were numbered among his friends - the royal finger touch which, though performed in a humble shed, made him more sacred than Majesty itself.  These were all edifying topics, all so much to the point - they were gone into so much after a Lawyer's fashion, and God help him, what a specimen he gave the Public of his notions of law practice; and then he talked of earning fees - of taking fees IN Court, and earning them OUT OF Court, and in Language too so gentle did he convey his sentiments to the wondering Jury, and the wondering Court - outrivalled he did, indeed, the Fish-street-hill tribe - always using language so gentlemanlike - knowing of course that epithets like "the scum of London" could only proceed from the associator with the dregs of St. Giles's.  Such Reader was the entertainment which Mr. Bannister afforded to a crowded Court for six hours - such were the topics he handled (he a Lawyer too!), in addressing a Jury on a criminal prosecution for libel - and Lawyer-like also Mr. Bannister proceeded to offer proofs in support of his ranting harangue.

The proofs were most properly rejected by the Court.  And this frivolous and vexatious proceeding, after a luminous and proper and satisfactory summing up by the Judge, was put out of Court, by a verdict of the Jury of NOT GUILTY.[5 ]

[Unlike the Australian, the Sydney Gazette gave an account of the Chief Justice's summary and charge to the jury:]

 

Forbes C.J., 20 October 1826

Source: Sydney Gazette, 25 October 1826

 

The Chief Justice.  Gentlemen, this is an information presented by the Acting Attorney General,[6 ]against the defendant, Robert Howe, Editor and Proprietor of the Sydney Gazette, for a libellous attack contained in that Journal, of the 14th instant, on the character of Saxe Bannister, Esq. in his office as Attorney General of the Colony.  Mr. Bannister, now an Advocate of this Court, but lately holding the high office of Attorney General, opened the case, and, I must say, it was painful to me to hear him take so enlarged a review of public events connected with this Colony, as he thought proper to do, and the more painful as the nature of the prosecution did not require that latitude.  Mr. Bannister, however, as a private Barrister, thought himself at liberty to take the range he did, and I would not interpose, though, as I have already said, it was painful to me to hear those observations on the Government which he deemed it necessary to make; as he should have recollected, there were other persons connected with, and who held offices under Government, who though they happened to differ in opinion with him, were, it is to be supposed influenced by motives equally pure as those which he assumed, and who had not an opportunity of vindicating themselves.  I have thought it necessary to make these preliminary remarks, in order to prevent such a course of proceeding being drawn into a precedent, and serving as an example for future irregularities.  The charge resolves itself into one of a very simple nature, namely, whether the publication in question, is, as it it [sic] is alleged to be, injurious to Mr. Bannister, in his office as Attorney General of this Colony.  I state to you, gentlemen, that any writing having a tendency to degrade a man in society, or to blacken his character, is a libel, but that a libel against a public officer is visited with greater severity, inasmuch as it is, in fact, an attack on that Government of which he forms a part.  It is, however, the right of the public to discuss the acts of a public officer, provided it be conducted within the legitimate bounds of fair discussion; but if, on the contrary, it degenerate so as to impute bad motives and wicked conduct, it is then no longer fair, it is libellous.  Laying down these remarks as applicable to the matter before us, I now proceed to examine the particular parts of the paper which has been put in evidence; but, before I commence those observations which I may find it necessary to offer, I think it but fair to read the whole of the article through; for, though particular passages have only been laid in the information, it is still the right of the defendant to have the entire read, and therefore, instead of giving it piecemeal, I will read the whole through, and then proceed to offer my remarks on those passages which are laid as libellous. [His Honor then read the entire of the article from the Gazette of the 14th instant, and continued.]  A portion of this writing has been selected as the grounds of the present prosecution, and, as you, gentlemen, may not be in the habit of seeing instruments of this nature, I will explain to you that, in informations for libel, it is usual to apply to each passage what is called an inuendo, setting forth the meaning which the party who conceives himself libelled believes they bear, and it is for you to see whether  that construction so put upon them is, in your opinion, correct.  The information is divided into two counts; the first count extracts a larger portion of the article as libellous; the second count refers only to one particular part.  It charges that the defendant, Robert Howe, devising and intending to asperse and defame Sax Bannister, Esq. did publish certain defamatory matters of and concerning the said Sax, and which are contained in the words and figures following, that is to say, "An Attorney General, not that we would have any gentleman act contrary to his own political principles, should never allow any party, or faction, so to operate upon his mind and give a bias to his views, which would tend to effect a disunion between the immediate members of the government, which it is so desirable should ever harmonize, as a well-tuned instrument, however diversified might be its strings,"  The sense put upon this passage is, meaning thereby, that the said Sax Bannister had allowed some person to put a bias on his mind, so as to create a disunion between the members of the Government.  But, gentlemen, does this passage bear the meaning which, by inuendo, is given it?  Do you consider it meant that the Attorney General did allow such a bias to be put upon his mind?  The charge is taken from the first part which states that, an Attorney General should not do certain things, and the inference put on it is, that Mr. Bannister had!  Now, I must own, I do not think the passage will bear that construction.  The writer then goes on to observe on various abstract propositions, and sums up all in these words, "thus it will appear, in our humble opinion, that an Attorney General should be a good lawyer, if an orator, so much the better - a lover of virtue and religion - an enemy to every species of vice - a stickler for justice - a friend of humanity - an enemy to oppression - and the staunch and most steady prop of the administration."  This is the sum of what, in the writer's opinion, should be the general qualifications of an Attorney General, and would it, then, be just to say, it was therefore meant that the late Attorney General was not all this?  Gentlemen, I do not think it fair to put such a construction on it.  It is an abstract view, as I take it --- a hypothetical position of what an Attorney General should be.  The writer says, the Attorney General should be the Governor's lawyer, and also states how, according to his notions, he should act; but I do not think, therefore, that the natural inference should arise that Mr. Bannister did not do all this.  Such a construction would be quite irreconcilable with the latter part of the same article, in which the writer pays so many handsome compliments to Mr. Bannister, for his amiable and upright conduct in public and in private life.  I must own, I cannot think myself that the passage bears this construction; but you, gentlemen, are the judges, and while I state to you my general impression, if you should be of opinion that the meaning put upon this paragraph is correct, and that the writer in pointing out the qualifications which an Attorney General should have, meant to insinuate that Mr. Bannister wanted these qualificasions [sic], if it appears to you that the praises which are subsequently bestowed are ironical, are insincere, though I must say that, throughout the whole of the article, in pointing out the abstract qualifications of an Attorney General, it would be unfair to suppose it to be therefore meant that the late Attorney General failed in those qualifications, but still if it should be your opinion that such was the meaning the writer intended to convey, then the passage is libellous.  With respect to bias, that charge may be perfectly innocent.  It is a common expression to say, that a man acts under a bias, under influence.  If, however, an officer in a public situation suffers a bias to take possession of his mind, it is, no doubt, highly discreditable to him, and therefore criminal to charge him with it.  But then the question is whether it was wilful, and I leave it to you, gentlemen, to say, whether, in your opinion, the meaning put upon it is the true one.  I am of opinion, however, that it was not intended to be distinctly charged that he did so wilfully; for, in another passage it is stated to have been unconscious, and certainly if it were unconscious on his part, it was not criminal in a public writer to say so.  We now pass on to the next alleged libellous passage which charges that "Where parties find that a Governor is impenetrable to other than open and fair representation, their movements will obviously incline towards his legal adviser, and if the Attorney General should be so unfortunate as not to have his eyes wide open, and to possess too much credulity, the inevitable result will be, that anarchy and dissension will creep in, to the injury of good will and good government, and it will be ten to one, in the event of the Governor being a firm and inflexibly just Ruler, that the Attorney General, sooner or later, becomes the victim of that party who may have sacrificed him either to their disappointed ambition, or because such political schemes could not be brought to bear which would tend to the pecuniary injury of all - themselves excepted."  Now I can hardly call this a conveyance of a charge, even if it were so, which the law considers libellous.  Is it libellous to charge a man with credulity?  Certainly not.  It may not be true, it may be his weakness, it may be misfortune.  If it were insinuated that the credulity ascribed is voluntary, is wilful, the case would be otherwise, but with respect to the mere charge itself, I do not think it libellous, and I have, therefore, no hesitation in disposing of this part of the question altogether.  "We have already observed that we would not suggest that an Attorney General should meanly crouch to the dictates of any Governor, supposing those dictates should be contrary to British law, and, of course, dissonant with his own views; but whilst this concession is tendered, we must observe, it is only the duty of our Attorney General to advise, it being the Governor's province to rule, which brings us to the declaration that an Attorney General even, however high in rank, and legally constituted his mind, still it is his duty, or else why does he take the office, to forego the expression of private feeling, so that the Governor act not contrary to law, and with a view to the ends of public justice: An Attorney General, therefore, by adhering to this line of conduct, would avoid many quicksands and shoals, if not ship-wreck finally, since he ought, above all men under the Government, to afford an example how that Government should be supported, defended, and strengthened; and although the views of a governor may be quite opposed to many of those connected with his administration, yet it is not, by any means, their duty to betray reluctance to the adoption and enforcement of those measures which the Supreme Ruler, in his wisdom, and under the weight of his responsibility, sees calculated, as likely to ensure the peace, welfare, and good government of the Country committed to his paternal charge."  The sense put upon this paragraph is, meaning thereby, that the said Sax endeavoured improperly to force his own views upon the Government, and to induce the Governor to act upon the same.  But, gentlemen, I do not think that this meaning is borne out by the article itself.  I cannot find that the article charges Mr. Bannister with having endeavoured to induce the Governor to follow improper advice.  I do not see any thing approaching to a meaning which would support such an inuendo.  Take the whole of the article together, and what do these particular passages amount to?  That, in the opinion of the writer, and whether this is a sound opinion is of no consequence, the duty of an Attorney General is only to advise, and that he ought to surrender his own judgment to those who are, alone, responsible.  I do not think it fair, because this is marked out as the line of duty an Attorney General should pursue, therefore, it should be inferred, that Mr. Bannister did not perform that duty.  Such an inference would be utterly at variance with the other parts of the publication, in which the highest possible compliments are paid to the amiable and upright character of Mr. Bannister in public and in private life; and it is not, as I have already stated, because certain qualifications are pointed out as necessary in an Attorney General, it should therefore be implied it was meant that Mr. Bannister wanted them.  Gentlemen, we now come to a part of the article which is more immediately applicable to Mr. Bannister:  "For the retiring Attorney General of New South Wales, personally, we fell every respect, though, at the same time, we must confess he has not pleased us throughout the whole of his arduous but short lived career.  However excellent and benevolent his disposition may be, he had the misfortune to suffer himself to be drawn into a certain circle from which he had not dexterity and penetration enough timely to recede.  We think Mr. Bannister did not exercise all due caution  in allowing the enemies of the late administration to influence his enlightened mind to the prejudice of Sir Thomas Brisbane.  The late Ruler saw and felt that his legal adviser was ensnared, though the Attorney General himself was probably unconscious of the fact, and had it not been for that unfortunate mistake in the policy of the Attorney General, this colony would not so soon be deprived of his assistance, which was becoming valuable, inasmuch as it became matured by experience."  This paragraph, on which the second count in the information is founded, and on which I am about to give you my impressions, is one to which I would draw your particular attention.  It is stated that the Attorney General had the misfortune to have suffered himself to be drawn into a certain circle, and that he did not use due caution in allowing the enemies of the late administration to influence his enlightened mind to the prejudice of Sir Thomas Brisbane.  Now taking the paragraphs together, is it true that he did so?  The test is not whether he was or was not so drawn, but whether the publication is libellous in itself; for, if the writer merely assumes that a public officer had that partiality, yet, if no corrupt motive be charged, it is not libellous to say so, however true the matter may be.  A public writer may suppose one of the public function-arises to be so situated, and if so, he may regret it being the case; but the true test is, whether it is intended to be asserted that he allowed himself to be so connected corruptly.  It is competent, according to the British law, for a public writer to publish stricture upon the measures of a public officer, provided that such strictures be conducted within the bounds of fair discussion, and that no corrupt motives are imputed.  In sitting here, therefore, to administer English law, I must endeavour to form my charge to you, as near as I can, to what I believe would be the directions of the first Judge in England, did he try the case, and to leave it entirely to you to say whether you believe the writer was sincere when he says the Attorney General was ensnared, though unconscious of the fact.  The case turns wholly upon that particular portion of the paper laid before you.  The charge specifically amounts to this; the Editor of the Gazette stated that the Attorney General had the misfortune to be drawn into a circle; any man may have that misfortune; the writer was at liberty to suppose it to be so, and to state such to be his opinion, and the only question is, whether he intended to insinuate corruption on the part of the Attorney General; for, if  done fairly, he had a right to make those strictures, and they are not libellous in themselves.  The test is whether or not it was the defendant's intention to impute a bad or corrupt motive to Mr. Bannister.  If this be not imputed to him, and that it was merely intended to be said that he was entrapped, ensnared, and was not conscious of the situation in which he had placed himself, there is no libel.  If, however, you think the reverse, and you, Gentlemen, as I have already stated, are the judges, then of course, this is a libellous publication.  Gentlemen, the line of distinction is, whether you believe the defendant, in his remarks, imputed wilful or unconscious error to Mr. Bannister, and with these remarks I leave the case in your hands.

The Jury left the box, for about five minutes, and returned with a Verdict of --- Not Guilty.

 

Notes

[1 ]Stephen J. resigned as temporary Justice of the Supreme Court on 27 May 1826, and was not sworn in as puisne Justice until early November 1826.  See C.H. Currey, Sir Francis Forbes: the First Chief Justice of the Supreme Court of New South Wales, Angus and Robertson, Sydney, 1968, pp 97-98; Australian, 3 June 1826. In the meantime, Forbes C.J. sat alone.

On 4 December 1826, Forbes C.J. wrote an important letter about press freedom.  He said that it was necessary to control what he called press licentiousness, especially in a convict colony.  Writings which attacked the magistracy, which stated that convicts were held illegally or treated harshly, or which claimed that there was undue severity in military discipline, were all dangerous in such a society.  He said that the Attorney General clearly did have power to prosecute ex officio whenever he chose; he criticised Bannister for seeking the advice of the governor on the issue.  Source: Forbes to Horton, Mitchell Library, Reel CY 760; reproduced in Historical Records of Australia, Series 4, vol. 1, pp 644-646.

On 15 December 1826, Forbes C.J. wrote again to Horton (Reel CY 760; Historical Records of Australia, Series 4, vol. 1, pp 669-679), particularly about this case.  In short, Forbes thought Bannister was periodically mad.  Howe had attempted to praise Bannister, but Bannister sued him for libel in order to place his whole record before the public, and to attack his perceived enemies, which included Forbes himself.  This action, and Bannister's speech in the case, confirmed the doubts Forbes held about Bannister's sanity.  Forbes said Bannister was disappointed by his treatment in the colony, was most uncivil to the governor and to Forbes himself, and fell under the sway of the Parramatta party, the Macarthur faction.  Forbes also said that Bannister had lied to the court over the Almorah case.  Bannister's drafts of bills for the Legislative Council were a joke, Forbes said.

Forbes returned to the theme of press freedom in a subsequent letter to Horton (6 February 1827, Reel CY 760; Historical Records of Australia, Series 4, vol. 1, pp 681-685).  The general tendency of the press, he thought, was to equalise mankind, and that was inappropriate for the convict occupants of the colony.  The question of press regulation required care.  He said that Bannister never instituted one prosecution for libel, except in his own case.  Forbes blamed the licentious state of the press on Bannister's failure to act.  On the latter, see also Historical Records of Australia, Series 1, Vol. 12, pp 211 - 212.

At first, Governor Darling's view of Bannister was more restrained, though he did object when Bannister sought to tell him what to do: Darling to Bathurst, 24 July 1826, Historical Records of Australia, Series 1, Vol. 12, pp 437f.  His view against him hardened during 1826: see pp 528-530, 575-576.  Darling, too, came to doubt Bannister's state of mind: Darling to Bathurst, 27 October 1826, pp 660-661, and enclosures, pp 662-666.  Darling said he, Darling, refused to prosecute Howe, and that Bannister proceeded to do so himself.  Darling also refused to prosecute the Australian for its article about Bannister; the article claimed that Bannister was unfit for office, a view with which Darling agreed.  Bannister also claimed to have been defamed by the London Sunday Times. (See Darling to Bathurst, 1 November 1826, pp 667-673.)

On this case, see C.H. Currey, Sir Francis Forbes: the First Chief Justice of New South Wales, Angus and Robertson, Sydney, 1968, ch. 17; and on the development of the libel cases in these years, see B. Edgeworth, "Defamation Law and the Emergence of a Critical Press in Colonial New South Wales (1824-1831) (1990) 6 Australian Journal of Law and Society 50.  None of this was new to Forbes C.J.  He had faced similar issues as Chief Justice of Newfoundland: see B. Kercher, "Law Reports from a Non-Colony and a Penal Colony: the Australian Manuscript Decisions of Sir Francis Forbes as Chief Justice of Newfoundland" (1996) 19 Dalhousie Law Journal 417, pp 422-423.

[2 ] The Monitor, 27 October 1826, described this report in the Australian as a "scurrilous critique" of Bannister's speech.  The Monitor thought the speech was excellent.  Bannister said that he had been deserted by the government.  The Sydney Gazette reported this trial on 21 and 25 October 1826.  Its report was more conventional than that of the Australian.

For Bannister's letter of resignation, see Historical Records of Australia, Series 1, Vol. 12, pp 271-272.

[3 ] 14 October 1826.  The Australian also published a hostile review of the Attorney General's performance, on 18 October 1826.  It accused him of incompetence and partiality. The Monitor (27 October 1826) claimed that Bannister refuted these charges in his speech to the court.

According to the Sydney Gazette, 25 October 1826, Bannister said that he appeared as an advocate of the Supreme Court.  Forbes C.J. replied:  "I cannot listen to what you may have to offer, unless you declare the character in which you appear.  As amicus curiae, I shall be happy to hear any observations you may wish to make, but not otherwise."  Bannister said he appeared as amicus curiae.  The Gazette then proceeded to report the speech by Bannister.  Forbes interrupted him after some time, saying "Mr. Bannister, as a private individual you certainly have a right to conduct your case as you think fit, but if as a Public Officer, I do not think you can enter into these explanations, you cannot prove these matters, then why repeat them?  As a private individual you have a right, but as a Public Officer you cannot repeat communications which are supposed to be secret." 

The Gazette's report of Bannister's speech made clear that Howe was accusing him of being close to the faction of fifteen, at the head of which was John Macarthur.  Bannister said he was independent of them.  His speech ranged over the Almorah issue, the establishment of two banks, one of emancipists and the other of exclusives, and the allegations that the Parramatta magistrates had engaged in torture.  (On torture, see M'Arthur v. Hill and Hall, December 1826; and on the Almorah, see R. v. Mitchell (No. 1) April 1825). 

According to the Gazette, Forbes C.J. stated at one stage during Bannister's speech: "It is quite clear that the truth or falsehood of the allegation cannot affect the prosecution, which is for a public mischief."

Truth was no defence to criminal libel.

In defence, according to the Gazette, W.C. Wentworth claimed that the "conduct of a public officer is a subject equally fit for public discusion, [sic] as an author who commits a book to the judgment of the public. ... The real question for consideration is, whether the author of this publication has exceeded those limits of fair stricture and animadversion which is allowed by law to be exercised towards all public men."

[4 ]The reference is to John Macarthur senior, one of the ringleaders of the coup against Governor Bligh in 1808.  In a letter to his son, John Macarthur junior, who was in London, the elder Macarthur made clear his contempt for Forbes.  He described him as "an unprincipled and immoral man," who engaged in "obscene and improper conversation".  Referring to Forbes' frequent illnesses, Macarthur showed his malicious character when he said that "the Colony would I am sure be well pleased to see him promoted to a higher Court than the Supreme Court of Australia."  Macarthur said he had considered taking action for libel, but thought that Forbes was utterly biased against him, and that it would be pointless doing so.  John Macarthur snr to John Macarthur jnr, 12 September 1826, Mitchell Library, Macarthur papers, vol 3, A2899, pp 134b-138a, Reel CY 752B. 

A subsequent letter from Macarthur senior to his son, dated 16 October 1826, was written to be delivered by Macarthur's friend Bannister.  In it, Macarthur refers to the scandalous piece in the Sydney Gazette which gave rise to this litigation, but said that Howe was in effect shielded by Forbes C.J and even accused Forbes of having a hand in writing the article.  He told his son that he had no influence over Bannister; "so far from being an exciter of discord, I have always excited, when I could, any little influence I may possess to prevent it."  He understood that Bannister was determined to prove the iniquitous conduct of Forbes.  (On this letter, see also C.H. Currey, Sir Francis Forbes: the First Chief Justice of New South Wales, Angus and Robertson, Sydney, 1968, pp 189-190.)

Macarthur did not have the support of Governor Darling at this time.  The governor reported that Macarthur told him that he was determined to destroy Howe, and that he had never failed in ruining a man when he set out to do so.  Darling made clear that he thought that Macarthur was the trouble maker in the colony, a man of passion and violence.  He was the head of a faction which included Archdeacon Scott and Bannister.  See Darling to Hay, 1 May 1826, Historical Records of Australia, 1/12, pp 253-257.  See also pp 326-328; 522-524.

When Forbes thought himself libelled, he was restricted to making formal submissions to London.  He made this clear in a letter to Rev. Samuel Marsden late in 1825.  Forbes to Marsden, 24 November 1825, Mitchell Library, A 1992 Marsden papers, Vol. 1, pp 482-485.

[5 ] The Sydney Gazette commented on the trial on 25 October 1826.  On 4 November 1826, the Gazette also reported that an action was being taken against Dr. Wardell, editor of the Australian, for a libel on Bannister.  It also said that Bannister had accused Wardell in open court of being the "scum of London".

See also M'Arthur v. Hill and Hall, December 1826, on the illegal sentences imposed by magistrates which were behind this trial.

[6 ] W.H. Moore.

Published by the Division of Law, Macquarie University