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

R. v. Howe [1827] NSWSupC 78

contempt of court, attachment, press freedom, law reporting

Supreme Court of New South Wales

Forbes C.J. and Stephen J., 26 December 1827

Source: Sydney Gazette, 31 December 1827

APPLICATION FOR AN ATTACHMENT.

A Rule having been obtained on Monday last, calling on Mr. R. HOWE, Editor and Proprietor of the Sydney Gazette, to shew cause why an attachment should not issue against him, for a contempt, committed in the publication of a certain paragraph, reflecting on the administration of justice in the Supreme Court in reference to the late trial for seditious libel,[1 ] of the King against Wardell, Mr. Howe appeared this morning, in person, to answer to the rule.

The CHIEF JUSTICE, shortly after he had taken his seat upon the Bench, intimated to the defendant, that the Court was prepared to hear him against the application.

Mr. HOWE rose and addressed the Court.  He begged their Honors to believe that, in the insertion of the paragraph upon which the present application had been made, he had not the most remote intention to reflect upon the conduct of the Court or Jury; and that, from its inception, nothing further was ever intended than a little harmless badinage.  The circumstances under which it occurred were briefly these; The writer of the paragraph was returning from the Supreme Court, on Saturday night last, in company with a gentleman named McLeod, when the latter, in reference to the circumstance of the Jury not being able to arrive at any conclusion in the case which had occupied the attention of the Court during the whole of that day, observed it was a singular circumstance that Juries never had any difference of opinion on any cases of felony or misdemeanor, save only that of libel.  "Upon this hint the writer spake"  The paragraph was written, and in type, within a quarter of an hour after, was inserted with the other matter, and struck off before he (Mr. Howe) had arisen from bed on the Monday morning.  He admitted, however, that it had been inserted without due consideration; but, whilst he regretted that such an occurrence had taken place, particularly as their Honors appeared to be of opinion that it was calculated to pour contempt upon the Court, he, at the same time, begged most unequivocally to deny that any such intention was ever contemplated.

In support of this statement, Mr. Howe begged their Honors' permission to read the leading article of the Sydney Gazette of that date, which had been written immediately after he heard of the present application, and understood the light in which the Court seemed inclined to view the paragraph.

Mr. Howe then read the whole of the article to which he alluded, and afterwards handed in to the Court the following affidavit:-

SYDNEY,

NEW SOUTH WALES,

TO WIT.

Robert Howe, Editor of the Sydney Gazette, being duly sworn in open Court on this 26th day of December, 1827, saith, in reference to a Writ of Attachment, that is sought for at the hands of the Court, touching a certain paragraph in the shape of an interrogatory which appeared in the Sydney Gazette of the 24th Instant.

"From the Steam Department. -- Court-room, Saturday, midnight. - Is it true that Juries invariably come to a decision of some kind, in all cases of felony and misdemeanor, except in cases of Libel, upon which tenderness of conscience seems to be anomalously exercised?"

That the said paragraph was so inserted without the smallest design either on the part of the Writer or Editor to bring into contempt the Supreme Court, or illegally and unduly to prejudice the minds of the Jury that were supposed to be impanelled, or were then impanelled in a case of seditious libel, wherein Robert Wardell, L. L. D. and Editor of the Australian, was the defendant.

Deponent further saith, that the said paragraph was written hastily on Saturday night last, and struck off in the Sydney Gazette, without further consideration, early on Monday morning, and before this deponent had arisen from bed; that the deponent hath, and always has had, in which he verily believes the Court will deign to acquiesce, the greatest possible respect for the Judges and the Juries, and more especially the Criminal Juries of the Honorable the Supreme Court, and that, by the publication of that which appeared to him, this deponent, an innoxious paragraph, no intention existed; on his part, either to pour contempt upon the authority of the Court, or to influence unduly the verdict of the Jury.

Deponent further saith, that he cannot but affirm, that he felt equally anxious with the Honorable Court, with the respectable Bar, and also with the Public, as to the reasonableness of a verdict of Guilty, or Not Guilty, being returned, but that he, this deponent, never indulged a thought of illegally and unduly prejudicing the minds of the Jury to give their verdict either way.

This deponent further saith, that, had not the apparently inoffensive interrogatory been grounded upon facts well known to the Public, upon no account, would it have appeared; and that, even as it is, though supposed by the deponent to be the effervescence of momentary wit, should the same be considered worthy of the censure of the Honorable Court, he, this deponent, unfeignedly regrets having inadvertently and unintentionally been the instrument of originating displeasure, when nothing of the kind was most distantly contemplated.

Mr. Howe concluded by once more repeating, that nothing was further from his intention than the motives which had been attributed to him.  He was prepared to answer any interrogatories, and left the case with their Honors.

Mr. Wentworth observed, in reply, that he felt no little surprise that the defendant should have thought the reading of such an article as that to which he had referred was necessary for his defence; an article which was, in fact, an aggravation of his offence, as it went to pour fresh vituperation on the defendant in the case to which the offensive paragraph alluded, and which, if it was not itself another contempt, verged so closely on it as to leave the line of separation very faint indeed.  The statement, however, of the defendant, had fully admitted the fact of publication in this instance; and though he (Mr. W.) was not anxious that any severe punishment should be inflicted on him, yet the injurious tendency of the paragraph was such, that he apprehended the Court had no other alternative than to direct that the regular course of proceeding be entered into against the defendant, by submitting him to interrogatory, and that the Master report thereon.

The CHIEF JUSTICE, after consulting with Mr. Justice Stephen said, that, though he had abstained from making any observations when the application was made, yet the fact of his having assented to the rule might be taken as indicative of his opinion of the improper character of the publication.  The inference from the paragraph was obvious: namely, that in cases where the lives and liberties of the lower classes of the people were at stake, Juries were less scrupulous as to their verdicts, than in cases of libel.  Nothing could be clearer, than that such an insinuation was calculated to bring the Court into contempt.  God forbid that he should be instrumental in imposing any restraint on the public press, which would go to prevent the publication of a fair and correct report of what took place in a Court of Justice.  He felt convinced of the benefit arising to the country from such reports, as the public Journals here were the only substitute for those regular printed reports which are circulated in England, and it was necessary that the people, and more particularly the Magistracy of the Colony, should be made acquainted with what took place in the higher Courts.  In the latter instances it would afford a considerable degree of useful, and indeed necessary information; but then all ex-parte statements, or comments pending a judicial enquiry, should be carefully avoided.  Such statements, in fact, went to take the matter out of the hands of the Court, by prejudging the case. - The explanation afforded, however, by the defendant, Mr. Justice STEPHEN agreed with His Honor, in thinking was satisfactory, as it showed that the publication complained of, had not originated in an improper motive.  The Court, therefore, was of opinion that the case should proceed no further; inasmuch as, they had already formed that conclusion at which it was the intention, by submitting a party to interrogatories, to arrive.  This was the first case of the kind which had been brought forward, and as the Court was always unwilling to put in force the summary powers with which it was invested, where any reasonable explanation could be afforded, it trusted that the present application would operate as a caution to the conductors of the public Journals in the comments they should put forth.

Mr. Justice STEPHEN perfectly agreed with what had fallen from His Honor the Chief Justice.  Nothing could have a more injurious tendency than the publication of ex-parte statements, or comments upon a case prior to the trial, or where a case was under-going investigation.  Such a proceeding must always operate unfavorably to the ends of public justice, inasmuch as either the prisoner or the prosecutor must suffer by it.  He remembered, not long since, when a Judge in England found it necessary to put off a trial for murder, and remove the proceedings into another county, in consequence of the popular prejudice which had been raised against the prisoner on account of the animadversions in the public Journals.  Such an evil practice, he regretted to say, he had too often observed in this Colony.  He trusted it would not again occur, and he wished particularly to impress upon the minds of those persons who had the conducting of that part of the public Journals, relating to the administration of justice, that all ex parte statements and comments previous to the trial of a case were highly illegal.  He concurred with His Honor the Chief Justice in thinking, that the present application should be discharged. - Rule discharged.

 

Forbes C.J.,  31 December 1827

Source: Australian, 2 January 1828

RULE FOR AN ATTACHMENT.

The King v. Howe.

In pursuance of a motion made to the Court by Mr. Wentworth on Monday last, for a rule nisi, why an attachment should not be granted against Mr. Robert Howe, as the editor, printer, and publisher of the Sydney Gazette newspaper, on grounds then stated, and which was consented to by their Honors, the defendant appeared at the bar of the Court at ten o'clock this morning.  On his being called upon by the Court to shew cause, why the rule should not be made absolute, he addressed the Bench in the following terms:-[2 ]

"Please your Honors - I appear personally - I thought the case, and still do now, one so simple, that I am sure when I have explained to the Court, some circumstances connected with this strange proceeding, that it will not see any grounds for granting this attachment, and will, in awarding justice, for which the Court has always been conspicuous, say that the editor of this paper, and the writer of the paragraph, had no motives ascribed to him, but on the contrary, that the thing was done in haste.  The paragraph, your Honors, will not be justified - neither am I prepared to say it is a proper thing - though it was inserted at a moment without due consideration.  I flatter myself that the Court, when this matter is fully explained, will dismiss the case.  On the night of Saturday last, or rather on the morning of Sunday, after the Court had broke up, and the Jury were discharged, the writer of the offensive paragraph in question, named McLeod, was walking down George-street, on his way to the Gazette Office, to which he is attached, when it was remarked to him by a friend, `it was a very singular circumstance that Juries always agreed in cases of felony and misdemeanour, which were submitted for their consideration in the course of the criminals sessions, but that they could not do so in cases of libel; at the same remarked, that this was the second instance in which juries were found to disagree, in arriving at a verdict on this particular subject.'  This remark as it should seem, had some force on the mind of Mr. McLeod; and, in little more than fifteen minutes, he paragraph in question was in print.  It was not until the following Monday morning before the editor commenced business in the Gazette Office - the Monday's paper had then been published - and the first blush I had of the knowledge of such a paragraph having been published, was a notice issued by this Court, and served upon me on Monday morning.  The moment in which I heard the light that paragraph was viewed in, I wrote the article which appears in this morning's Gazette."  The defendant then read the article, as also an affidavit, which he had a few minutes before sworn to - the purport of this was, that the paragraph, the subject of present enquiry, was inserted without the smallest design to bring the Supreme Court into discredit, or to influence the minds of the Jury - that it was written hastily - that the said paragraph was struck off late on Saturday night last, or early on Monday morning, and was without his knowledge - that deponent had always entertained the highest respect for the Judges of the said Supreme Court, and to the Juries, particularly the Juries in the Supreme Court; and affirmed that he felt eagerly anxious with the Court; as to the reasonableness of a verdict of guilty or not guilty being returned, but had no wish whatever to influence the minds of the Jury either way.  This was the substance of the affidavit.  Defendant in continuation said, that if the Court was disposed to censure the publication of the paragraph, now the subject of comment, he could only say that he deeply regreted it, and begged to assure the Court, that the paragraph was not intended to convey offence to any one.  He (the defendant) had been advised to put the parties prosecuting to the proof of publication, but had thought it best to state openly and candidly the true state of the case, and by offering the observations to the Court he had done, to leave it with their Honors.

The following is the mischievous paragraph complained of:-

"FROM THE STEAM DEPARTMENT.

"Court-room, Saturday, Midnight.

"It is true that Juries invariably come to a decision, of some kind, in all cases of felony and misdemeanor, except in cases of Libel, upon which tenderness of conscience seems to be anomalously exercised?"

Mr. Wentworth rose to address the Court, in support of the rule.  He certainly felt a good deal surprised, that a person standing in the awkward predicament that the defendant did at that moment, should consider it conducive to his defence to read to the Court an offensive article, the production of his own pen, which, though certainly it did not amount to a fresh contempt, was, notwithstanding, closely bordering on it - the line which divided it from a fresh contempt of that Court, was scarcely perceptible.  Instead of coming forward, and making a respectful apology, he had indulged in fresh vituperations - vituperation too, upon the late defendant in a case, and connected with that publication, the ground work of the present prosecution.  Such a course was not only injudicious, but highly contumacious to the Court, though not to that degree to amount to a contempt of Court, but approached very nigh to it.  With regard to the fact of there having been a contempt of Court in this instance, he (the learned Counsel) apprehended there could not be the smallest doubt.  On referring to Blackstone, he found that among the numerous instances of contempt enumerated in the 4th volume of his Commentary, one instance given - "that by speaking or writing of Judges contumaciously acting in their capacity of Judges; any thing in short demonstrating a lack of proper regard and respect, was held to be a libel upon the Court, and would call forth immediate punishment."  It was clear, therefore, in his (the learned Counsel's) view of the case, that the conduct of the defendant, in the publication alluded to, fell directly within two of those clauses of contempt - within that clause of contempt which spoke of writing, or speaking of Judges acting in their capacity of such - because the publication alluded to the Jury who were then a ting [sic] in their judicial capacity, and were so acting at the moment of publication.  Of the tendency of the publication, whatever was the denial of motives by the writer, there could be no doubt that it had a highly dangerous tendency, and had a tendency to poison the very fountain of justice itself.  The offence was one of that serious character which could not be visited too highly.  Suppose the Court gave full credence to the affidavit, what did it amount to?  Why, that the writer was not aware of the contents of the publication; but this could not do away with the dangerous effects it had, or was intended to have - but this alleged act of ignorance of the publication would, of course, have to rest with the Court.  The affidavit which the defendant had put in, amounted to a complete admission of the offence; but it was not his (the learned Counsel's) wish that any severe measure of punishment should be inflicted.  He was simply content to move, that the rule be made absolute.  He collected, of course, that if the Court should be of opinion that the fact of contempt had been committed, it would order that the rule be made absolute; the question of penal visitation would then form the subject of an after proceeding.  He submitted that the rule should be confirmed.

The Chief Justice - When this case first came to be mooted before the Court on Monday morning, we abstained giving any opinion thereon, but granted a rule nisi on the application of Mr. Wentworth.  On granting the rule, however, though we abstained offering any remarks on the subject, it was certainly our opinion, on looking at the offensive paragraph, that it had a direct allusion to the Jury who were sitting at the date of its publication, and was likely to effect an injurious tendency.  The Court will however now, for the first time, express its opinion.  Upon looking at the article attentively, it appears to us to amount to this - an expression of surprise - that in cases of felony and midemeanor [sic], a Jury came to an issue by arriving at one general opinion, but that in cases of libel, so much delicacy was observed, and that there was a want of that same justice, so dealt out in other cases.  Certainly the allusion is highly indecent and unjust; for I think any person who has been acquainted with the criminal character of justice in this Court, so far as the juries have been concerned, that for the editor of a newspaper to impute any thing of this character, however remote it may be, is most gross and unjust. - The defendant has declared in his affidavit, that nothing more was meant, than to imply, that an extreme degree of delicacy was observed in cases of libel.  Now may inferences may be drawn from the paragraph in question.  The paragraph, however, look at it in whatever light one may, is certainly offensive.  It has been explained that the remark was suggested inoffensively, and without the slightest intention to convey any imputation - the affidavit put in by the defendant states this - and the editor has gone into many explanations.  The Court, in this case thinks, that, after what has been declared by the affidavit, now on the files of the Court, that the ends of justice have been satisfied, and that this step can properly be dispensed with; but I do say, that it is to be hoped this - the first case of the kind that has been submitted to the Court - may be sufficient to have a corrective effect, and be the means of preventing a recurrence of such an act - at the same time I wish it to be understood, in reference to publications generally, that it is a contempt of Court to publish its proceedings in any way, while pending, because they are likely to prejudice the minds of a Court.  God forbid that I should restrain, in any way, the publication of whatever takes place before this Court; for I conceive it to be important, that the proceedings of this Court should be correctly reported, for general information; and in a way that they should not easily be misunderstood.  There are, however, cases, certainly, in which it is not so well that a verbatim report of a trial should take place; but these are rare, particularly so in this Colony.  I cannot help saying, that I think it important that the public should be informed of what takes place in this Court.  The Magistrates of the Colony, too, by this means have an opportunity of reading printed reports, and hence information is conveyed to minor tribunals - the proper course of proceeding which is the established principle of law to adopt in a court of justice.  In this Colony, the newspapers are the only modes of information; and, if it were only on this principle, I am inclined to encourage the making public to a community, a fair and candid account of what takes place in the Supreme Court.  At the same time let me be understood to say, that the publication of ex parte proceedings are totally illegal, because they have an obnoxious tendency to prejudice a case, before it comes properly under the judicial investigation of a jury - it is a contempt - a direct interference with the Court, to produce or excite impressions and results, which could not be foreseen, and have a material tendency as to the result of a case.  It appears to us that the writer, by the paragraph before the Court, had it not in contemplation to create mischief, by biassing the minds of the Jury, though the Court does not hesitate to say, that his publishing such a paragraph was highly improper, and such, if the Court entertained a different view of the case, would call forth severe judgment.  Under these considerations, we are not disposed to proceed further with the case, and will therefore discharge the rule.  At the same time it behoves us to admonish the defendant, that in future, while cases are pending, never to offer any observations, either directly or indirectly; for by so doing, it would call forth the immediate interposition of the Court, to put an end to a practice so dangerous.  We are of opinion, that the calling on the editor of the newspaper in which the offensive paragraph has appeared, and his explaining away its obnoxious parts, bear satisfaction, and the rule should be discharged.

Mr. Justice Stephen gave his judgment in coincidence with the decision of the Chief Justice.  And the defendant was relieved from the charge.

Notes

[1 ] The reference is to R. v. Wardell (No. 3), 1827.

On this trial, see also Monitor, 24 December 1827; Sydney Gazette, 28 December 1827.

[2 ] See also Sydney Gazette, 2 January 1828.

Published by the Division of Law, Macquarie University