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

Short v Howe [1826] NSWSupC 7

criminal libel - perjury - law reporting

Supreme Court of New South Wales

Forbes C.J., 21 January 1826

Source: Australian, 26 January 1826


Mr. Francis Short, on Saturday last, made a short appeal, in his own proper person in the nature of a complaint, to the Supreme Court.  He held in his hand, he said, a Newspaper of last Thursday,[1 ] the Sydney Gazette, which contained a paragraph of a very serious and very objectionable tendency, as regarded himself.  The paragraph, in question, very shortly stated that a rule had been granted, calling on him, Francis Short, to shew cause why a criminal information should not be filed against him for wilful and corrupt perjury.  Now, inasmuch as this paragraph might be read in England, at the Cape, and in India; in all of which places he, Francis Short, was well known, it was very improper to insert it, lest those whose eyes it caught might suppose, for the first time in their lives, that Francis Short had been guilty of perjury; he therefore claimed the protection of the Court.  Mr. Robert Howe,[2 ] he presumed, had received such a trimming from Mr. Justice Field on the occasion of his committing similar misdemeanors, that he, Francis Short, had presumed, that he the said Robert would not have been very apt to commit himself in a similar way.  The Australian certainly, between whom and himself, meaning always the same Francis Short, had shewn great magnanimity in not publishing the ex-parte statement of which he complained.  To be sure he did not consider that the paragraph had done him any injury, because he did not believe any one could think him, Francis Short, capable of committing perjury.  The Chief Justice in reply to this application for his interference and protection, observed that the Court had no power to extend its protection towards Francis, in a summary way; any injury which he might have sustained by a malicious publication, would be redressed to the extent inflicted, if brought under the consideration of the Court in a proper shape.  All that he, the Chief Justice, could do; would be to throw out a suggestion to Reporters, not wantonly to wound the feelings of individuals by giving publicity to reports of an injurious tendency.  Statements, he added, in which the conduct of persons were involved, were much more severely felt in small communities than in large ones; for in the latter they got spread among numbers, and the point of them was lost; but in the former they acted with greater force, in fact in an inverse ratio to the numbers, because every body was known in and to the community.  Mr. Francis Short seemed somewhat eased by these consolatory sentences, and he sat down.[3 ]



[1 ] 19 January 1826.

[2 ] The Sydney Gazette's editor at the time.

[3 ] The Australian continued: ``N.B. - WE plead innocent of the charge of magnanimity in this instance.  It was our prudence -  prudence which we should have exercised on all occasions of a similar, especially of an ex-parte nature; whether were Mr. Francis Short's, or Mr. any body else's case.  We perfectly agree with the opinion expressed by the Chief Justice, that it as well to avoid the publication of paragraphs which may prove obnoxious to those concerned in them; at the same time it should be remembered, that those whose actions become the subject of investigation, or discussion in a Court of Law, must take all the consequences which submission to such a test naturally induces; they may be treated with tenderness by Public Journalists, not because they have a right to expect it, but because it may conduce to the harmony of the small society of which they happen to be members."

Published by the Division of Law, Macquarie University