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

R. v. Wardell (No. 4) [1827] NSWKR 2

criminal libel - election - criminal procedure - reception of English law - Forbes C.J. and Governor Darling, conflict between

Supreme Court of New South Wales

Stephen J., 7 March 1828

Source: Sydney Gazette, 10 March 1827


On Wednesday last, in the Supreme Court, before His Honor, MR. JUSTICE STEPHEN, the defendant in the action of W. CARTER, ESQ. against ROBERT WARDELL, ESQ. L. L. D. for libel, made an application to the following effect.[ 1]  It was stated that there were then pending before the Court, a criminal information for libel, filed by the Acting ATTORNEY GENERAL, and also a civil action for the same cause.  The application to the Court, therefore, was, that the Attorney General should be directed to enter a noli prosequi on the information, upon the ground that a party, applying for an information, must make his election, as the Court would not suffer him to institute two proceedings for the same cause.  The motion was supported upon the authority of the case of the King v. Eagar, in 2d Burrowes, p. 720, the King v. Sparrow, in Term Reports, p. 198, and Burn's Justice, vol. 3. p. 83, wherein it is laid down, that, in granting informations, the Court always look to the motive; and when a person applies for an information, he is understood to waive his right to bring an action, unless the Court should, on hearing the whole matter, be of opinion that it is a proper subject to be tried in a civil action, and should specifically give him leave to do so; if an information; therefore, be granted, it is of course to stay proceedings in an action for the same cause (Rex. v. Barratt, 2 Douglass, 466).  The information, it was contended, being at the suit of a private individual, who at the same time sought his private remedy, should be abandoned, in whatever light the ATTORNEY GENERAL, by whom it was filed, were viewed, whether as the grand jury of the country, or as having power to grant informations the same as the Court, it should either be quashed, or the Court would direct him to enter a noli prosecqui.  HIS HONOR wished to know whether the fact were admitted, that an action was pending for the same cause; but MR. NORTON, for the plaintiff, declined making any admission whatever.  The Acting ATTORNEY GENERAL observed, that he certainly wished to take the opinion of the Court in the matter, as he was no advocate for resorting to two modes of prosecution for the same cause, which was a proceeding but too much resorted to in the Colony; at the same time, whatever were his own opinions on the subject, he did not wish to enter a noli prosequi of himself.  He was not aware, at the time he was called on to file an information, that a civil action was pending, and if it were brought since, he did not think he could enter a noli prosequi because the party, after the disposal of the information, was not precluded from resorting to civil process.  Had the action been brought previous to the information being filed, the case would have assumed a different feature; but, being brought after, he did not think he was bound, without taking the opinion of the Court, to enter a noli prosequi.  HIS HONOR enquired whether the Acting ATTORNEY GENERAL had satisfied himself that the action was for the same cause; it might be for different parts of the same libel.  The defendant here put in his own affidavit, stating, that it was for the same cause; observing, at the same time, that, though he would not state to the Court that there was not more in one than on the other, because he had not examined them minutely enough to ascertain, nor was it necessary; but he would state, that both the information and the declaration contained the same passage, which was quite sufficient for his motion; because, if there were only one sentence the same in each, then both proceedings were for the one cause.  HIS HONOR thought the question one of considerable importance in this community, and one which it was highly proper should be laid before the Court, in order that the ATTORNEY GENERAL, vested as he is with different powers from those exercised by that Officer in England, should have a regular course determined for his guidance.  In this case, the ATTORNEY GENERAL, at the time of filing the information, did not know that an action was pending for the same cause, which, it appeared by the defendant's affidavit, was the case.  HIS HONOR thought that the most regular course would be to call on the plaintiff to make his election either to proceed civilly or criminally; but certainly, unless the ATTORNEY GENERAL was furnished with the necessary information, he did not think that Officer could be called on to decide at once on the subject.  HIS HONOR, therefore, was of opinion, that the most regular course would be to take a rule, calling on the plaintiff to shew cause why he should not make his election to proceed either by action or by information.  The defendant submitted, that the order should be peremptory, but the learned Judge was of opinion that the parties could suffer nothing by the delay; for, though he had a decided opinion on the subject, still it would be calling on him, a single Judge, to determine a very important question, when by taking the rule, the subject might come on for argument, when HIS HONOR the CHIEF JUSTICE would also be present.  A rule was finally taken, and made returnable on Saturday (this day), when the case will come on for argument before their HONORS the CHIEF JUSTICE, and Mr. JUSTICE STEPHEN.


Forbes C.J., 12 March 1827

Source: Sydney Gazette,13 March 1827


MONDAY, MARCH 12th - the King at the prosecution of William Carter, Esq. against Robert Wardell, Esq. the Editor of the Australian.

This was an application to the Court, by the defendant in the above case, which was a charge of libel, calling on the plaintiff, who had also instituted a civil action for the same cause, to make his election whether he would not either waive his private remedy, or be restricted from proceeding on the criminal information which had been filed.  A motion to this effect was submitted to the Court on a former day, when His Honor, Mr. Justice Stephen, before he would dispose of it, granted a rule Nisi returnable on Saturday last, when, Mr. Norton appearing on the part of the plaintiff, the defendant, in person, contended, upon the authority of various cases, wherein the principle was strictly recognised that the rule should be made absolute, and the defendant called upon to make his election.  Upon this occasion the CHIEF JUSTICE deferred pronouncing the judgment of the Court to this morning; when HIS HONOR observed, that the point, for the determination of the Court, was a question immediately growing out of the peculiar structure of the Court in this Colony.  It would hardly have borne an argument in the present day, at Westminster, that a party applying for a criminal information must waive his private remedy by civil action, unless the Court, upon looking into the whole matter, should think it a case wherein that specific remedy should be resorted to, and might give him leave to bring an action, but then, it must be clearly shewn to the Court, that there was not only a public wrong done, but also a clear and specific private injury sustained.  He was of opinion that the case before the Court was not of such a nature as to come within the exception to the general rule of putting a party to his election.  It had been contended by Mr. Norton, that, in this Country, the party was shut out from his ordinary mode of indictment before a Grand Jury, which did not preclude him from exercising his civil remedy, and that the Attorney General, having a discretionary power of granting informations without the knowledge of the Court, was, in this case, to be looked at merely as the Grand Jury of the Country; but that, in England, a party applying for an information, resorted to an unconstitutional remedy, which the Court would not allow without, at the same time, affixing certain conditions.  His Honor then proceeded at considerable length to comment upon the 4th section of the New South Wales Act, by which the mode of proceeding by information filed by the Attorney General in this Colony was pointed out, and observed that, in fact, the plaintiff was not precluded from his ordinary remedy; because Courts of Quarter Sessions, with all the necessary adjuncts of Grand and Petty Juries, with the power of entertaining all cases except two, were in operation in the Colony.  His Honor observed also, that he did not look upon a proceeding by information as by any mean an unconstitutional mode of proceeding.  The abuses, in former days, practised by the Star Chamber under this denomination, had been the cause why they had fallen into disesteem, but since the mode of proceeding had been settled by the Act of William and Mary, he was of opinion that much more substantial justice was let in, than even by an indictment when a grand jury arrived at their decision upon mere ex parte evidence. To the principle of instituting two kinds of prosecutions for the one cause, HIS HONOR was decidedly opposed.  It laid bare the defendant's case; it put the opposite party in possession of his defence, thereby giving him an undue advantage; and, in case of a verdict against him, he went forward to trial on the other form of proceeding, with the imputation of guilt, in some respect, upon him.  For these reasons, therefore, and being of opinion that the case under consideration was not one of that nature which would form an exception to the general rule, and upon which the Court would exercise its discretion, by allowing the party to bring an action, HIS HONOR was of opinion that the plaintiff should be put to his election, and that the Rule should be made absolute.


Source: Sydney Gazette, 17 March 1827


THE KING v. DR. WARDELL --- In our last there appeared a hasty and consequently not very accurate report of the decision given by the CHIEF JUSTICE in this case, when His Honor ruled that Mr. CARTER, the injured party, must take his election, and not be allowed to have BOTH information AND civil action.  As this was a very important decision, and as it will hereafter form a precedent in the Supreme Court, we have been favored with a correct report of the judgment, which embraces the various authorities upon which the Court was influenced in the gratifying decision given:-

By the Court. -- "The question for the determination of the Court is, whether the prosecutor in a criminal proceeding, instituted in the name of the Attorney General, in conformity with the requisitions of the Act (4. Geo. 4. c. 96 sect. 4.) should not be put to his election, either to waive the civil action which he has commenced in this Court, or be restrained from proceeding by information --- a question which mainly turns upon the practice of the Court, and would scarcely have borne an argument, at the present day, in Westminster Hall.  It is settled beyond dispute, that the fact of applying for a criminal information, amounts to a waiver of the private remedy, and that an action for the same cause, cannot be resorted to, without the specific leave of the Court (2. T. R. 198.)  Cases in which Courts would grant such leave, are not difficult to suppose; but they are of very rare occurrence, and in practice they are limited to particular instances where, at the same time a gross violation of public justice has been perpetrated, and a serious private loss has been sustained --- such, for example, as perjury, which corrupts the fountain springs of justice, and in its consequences brings ruin upon the individual --- no single form of redress would effect the ends of justice there --- but the case immediately before the Court is not such, as, in our opinion, should make it an exception to the general rule, of putting the party to his election.  Supposing this Court, therefore, were sitting purely as a Court of King's Bench, it would be as of course to impose the usual terms upon the prosecutor, or leave him to his ordinary remedy by action or indictment.  But it is contended by the prosecutor's Counsel, that, by the constitution of this Court, the ordinary remedy is by information, in the name of the Attorney General, that an indictment cannot be had; and therefore, unless the party be allowed to proceed by information in the usual form, he is deprived of his ordinary mode of redress.  This is the strength of the prosecutor's case --- it is in this peculiar point of practice, that the analogy between this Court, and the Court of King's Bench is supposed to fail --- and a great deal of argument has been pressed upon our attention by the defendant, to shew that, even if an information in the usual form is, in some respects, liable to be considered as an indictment, yet that the propriety of this form of proceeding, where an action is pending for the same cause is discouraged, and the Court would direct the Attorney General to enter a noli prosequi upon such indictment, unless the prosecutor consent to relinquish his private remedy.  We are tender of touching this ground: the Attorney General is an old constitutional officer, invested with very large privileges certainly --- privileges that are equally essential to preserving the rights of the Crown, and the public safety; but which are exercised under known principles and within well defined bounds --- the power of entering a noli prosequi, is entirely within the Attorney General's discretion; and the recent case cited at the bar (Jones v. Clay, 1. Bos. and Pul. 191) goes to prove that there is no disposition in the Courts at the present day to interfere with that officer in the exercise of this responsible, and consequently unfettered discretion, with which the law has invested him.   But, supposing that the ordinary mode of proceeding is by information in this Court, is it true that the remedy by indictment is not open elsewhere --- are not the sessions open --- what is there to prevent a prosecutor from going to that tribunal, if he is not disposed to submit to the terms which may be imposed in this?  The same Act which created this Court, commands the holding of Courts of Sessions in this Colony, in the same way that Sessions are held in England; and when the Court of King's Bench refuses an information, unless the party applying will forego his action, it does not follow that he may bring an indictment in the same Court --- he must go to the proper county to present his bill; and even if that may happen to be Middlesex, the Court of King's bench would send it for trial to the assizes. We do not therefore see, upon the ground taken by Mr. Norton, that we should deprive the prosecutor of his ordinary remedy, if we were to refuse him an information except upon terms.  But this appears to us to be putting the case upon much too limited a ground --- it does not rest merely upon a point of practice, it involves a great constitutional principle in the administration of justice - whether the common law remedy by information, regulated as it is by statute, and placed, by the careful hand of the Courts, upon the most equitable and useful basis, is or is not within the power of this Court to administer --- whether, in fact, the duty imposed upon the Attorney General of placing every information upon the table of the Court, supersedes the right of the Court to look into the nature of the case, and impose such terms as are invariably imposed by the Court of King's Bench.

The statute, which created this Court, was framed upon the broad assumption that the laws of England are the laws of New South Wales, so far as they can be applied; and among the most important of such laws, are the forms of proceeding in the Courts (Hawk, P. C. bk. 2. ch. 1.). The statute may be considered as a supplemental law, consolidating into one Court the various jurisdictions of distinct Courts, and creating pecuiliar [sic] modes of practice, which the different state of the Colony seemed to require.  Where the statute is silent, we must look to the law of England altogether; and where it deviates from what was established before, we must look to the law as it stood, to ascertain how far it has been altered.  Taking this principle with us, which we may safely affirm, will be found to run throughout the provisions of the whole Act, there is no difficulty in determining what was intended by the section upon which the present question has been raised.  The Act directs that all offences, cognizable in the Supreme Court, shall be prosecuted by information, in the name of the Attorney General, or other officer appointed for such purpose by the Governor.  By the law, as it stood before, treason and felony could not have been prosecuted except by the presentment of a grand jury, and an indictment founded thereupon; and the object of this clause was, to create a new mode of proceeding, namely, by information, instead of indictment.  When the Act goes on to say such information shall be in the name of the Attorney General, or other proper officer, it merely directs the form of exhibiting the information, and cannot affect the constitutional remedy itself as it existed at common law.  The right of the Attorney General to proceed by information, ex-officio, is not touched; it derives its force from the laws England; and from the same source does the subject derive his right to demand an information, under the same terms as it is granted at Westminster.  Informations in the Crown Office there, are exhibited "in the name of the King's Coroner and Attorney" (vide state. 4 and 5. W. & M. ch. 18. sect. 6.): here they are directed to be filed ``in the name of the Attorney General or other proper officer, appointed by the Governor."  It is within the knowledge of the Court, that the Acting Attorney General holds a commission from the Governor, analogous to that of Clerk of the Crown; and although, from the recency of our judicial establishment, I am not aware that any information has actually been exhibited in the name of this officer, yet the fact of such an appointment shews the opinion which practically has been held of one of the objects of the Act.  The Clerk of the Crown, then, has an authority co-extensive with the Attorney General, in filing informations under the Act --- is he, at least, not to be considered in he ministerial light of the Clerk of he Crown at home?  We apprehend that will not be disputed, and if it be not, how can we distinguish between informations, filed in the ordinary course by the Attorney General, or the Clerk of the Crown.  We are of opinion that there is no ground upon which to found any distinction; that they both act ministerially, and are subject to the same rules.  The power of the Attorney General to proceed, ex-officio, wherever his judgment shall direct him, that the case is proper for the interposition of his high and privileged office, we leave as we found it; but we are decidedly of opinion that whenever a prosecution comes before the Court to seek redress by information, in whatever form the information may be filed, he must conform to the terms imposed by the law and practice of the Court of King's Bench.  It is expressly so required by the rules of this Court, adopting the rules of the King's Court at Westminster; and it is inconsistent with the spirit of English law, that any man should be perplexed with a double course of proceeding, at the same time, for the same cause.  The issue of the first proceeding cannot fail to prejudice the second.  A verdict may be established by the evidence of a prosecutor, in the criminal case; and a verdict so established may, and in most instances will, have the effect of prejudging the merits of the civil suit where the same evidence could not be admitted.  Besides, the effect of this double proceeding is to lay open the defendant's whole case, and discover the matter of his defence. (2 Burr. 720).  these observations of the Court are not intended to apply particularly to the case now before us; they are formed upon abstract principles, applicable to every case which may come before the Court; and, under the full conviction of their force, we have come to the conclusion, that the prosecutor must be put to his election."[2 ]



[ 1] See also R. v. Wardell (No. 1), June 1827; R. v. Wardell (No. 2), September 1827; and R. v. Wardell (No. 3), December 1827.

McLeay, the Colonial Secretary, tried to get Forbes C.J. to hear this case, hoping it would bring the Chief Justice closer to the government and away from his friendship with Dr Wardell.  Darling also urged Forbes to bring the case on quickly, to stem the licentiousness of the papers.  Forbes replied that he would not discuss matters which were to be heard by him in court: Darling to Hay and enclosures, 5 July 1827, Historical Records of Australia, Series 1, Vol. 13, pp 429-433.

[ 2] By now, Forbes C.J. was mistrusted by the officials of the governor's office.  In response to this case, Carter wrote the following in a letter to Colonial Secretary McLeay:

"I consider the conduct of Mr Forbes throughout to have had one object in view, namely, that of protecting Dr Wardell from the necessary consequences of his conduct as the Editor of the Australian Newspaper - A plain statement of Mr Forbes conduct through the whole of this Prosecution can leave no doubt of the object he had in view, and I must say, that in its consequences, it amounts to a denial of Justice.

" A Public Prosecution was commenced by the Attorney General against Mr Wardell for a libel upon me, as a Public Officer - I also commenced an action against Dr Wardell for the same libel. Mr Forbes refused to consider it as a Public Prosecution and both the Prosecution and Action having commenced he compelled me to elect one mode of proceeding - I elected to proceed with the Criminal Information - this election was made by the order of the Court - I was permitted to choose which of the two proceedings already commenced should be carried on; and when this election was made by the order of the Court, I need not say that  the Prosecution was carried on by its consent; but how does Mr Forbes Act? Why! when the cause is attempted to be brought to a hearing, and the usual process of the Court is sought for compelling the Doctor to plead, Mr Forbes Rules that I had proceeded without the consent of the Court and that therefore, he would not allow process to issue, to compel Dr Wardell to appear - Dr Wardells motion was that I should elect, and be compelled to relinquish one of the proceedings I had commenced - Not a word was hinted that I had commenced my Information without the consent of the Court, and that therefore the proceedings were wrong altogether and when I repeat that the election was made by the order of the Court, it is an insult to common sense to say that time has been gained - the Doctor though a gauss[?], is still an unconvicted Libellor - an object of no small importance to Mr Forbes, when the events that have taken place in this Colony, for the last few Months are considered.

"I feel no hesitation in saying that Mr Forbes had no right to put me to my election - it was a Public Prosecution, carried on by and at the Expense of the Crown and I had a right to my Private remedy but, Mr Forbes now makes my election, which was done by the compulsion of the Court an argument to shew that it was a private Prosecution. I understand Mr Forbes, when this case was last before the Court, thought proper to advance some doctrines as to the power of the Attorney General which in their consequences may be important,

"I learn from Mr Norton that he stated very broadly in the course of this cause that the Attorney General here, is in fact no Attorney General, at least, that his Office does not carry with it the powers and privileges of the Attorney General in England, and in fact, that he has not the power to institute officer Informations - this is I believe a new doctrine here - the extraordinary Duties imposed by the New South Wales Act were always considered by Mr Bannister as communicative and not as infringing upon the usual and ordinary Powers of the Attorney General, should the doctrine be correct, the consequences will be very serious should this Colony ever have the misfortune to have a Judge acting in professed opposition to its Government.- I understand that Mr Forbes in his Judgement, said, he gave an opinion as to the powers of the Attorney General, through the observations he made during the Sitting of the Court left in doubt as to what his opinions or doctrines were.

"In the case of Wardell v's Howe, Mr Forbes left it to the Jury to decide whether the Evidence produced amounted to a proof of Publication - He told me since that it was wrong - if therefore the same point should arise in my case, it is evident that I should be turned round - What was good in Wardell v's Howe would not be good in Carter v's Wardell. Under such circumstances I must recommend that the Prosecution be dropped - by my election, I have lost my Civil remedy."  (Source: Letter from Carter to McLeay, 23 July 1827, Governor's Despatches to Secretary of State for the Colonies Vol. 12, Jan-Feb 1828, Mitchell Library, A 1201. (CY 534).)  The reference in the final paragraph is to Wardell v. Howe, 1827.  This was the year in which Wardell was often before the courts (see also R v. Wardell (No. 1), 1827, R v. Wardell (No. 2) 1827 and R v. Wardell (No. 3), 1827), and the colony's officials' distrust of Forbes C.J. could not have been more serious.

Governor Darling joined in these complaints against Forbes C.J.  On 1 September 1828, Darling wrote to Hay as follows about these libel cases: "I have been abused and calumniated since the close of the year 1826, by the Newspapers, and I have shewn beyond all doubt that Mr Forbes and his Associates ministered to this abuse".  He accused Forbes of being close to Wardell.  Source: Governor's Despatches to the Secretary of State for the Colonies Vol. 14, Sept-Dec. 1828, pp 17-20, Mitchell Library, A 1203, Reel CY 536.  See also Darling to Hay, 1 August 1827, Historical Records of Australia, Series 1, Vol. 13, pp 477-484.

In his reply, chastising both Forbes and Darling over the press disputes, Murray told Darling:

"With reference to the proceedings of the Judges of the Supreme Court, upon the Prosecutions, and action for defamation, commenced by Mr. Carter, or at his instance, against the Editors of a Public Newspaper, His Majesty's Government cannot undertake to express any opinion.  I must assume that Judges, intrusted with the administration of the law, formed an upright an [sic] accurate opinion, upon any particular question brought within their Judicial cognizance, unless the contrary can be shewn upon appeal to a Superior Tribunal or by some other legal mode of decision.  Independently of this general consideration, I find no sufficient reason to surmise that the Judges acted illegally, or with partiality in Mr. Carter's case; and even if I entertained a different opinion, I could of course draw no conclusion on the subject, unfavorable to the Judges, until their answer to the charge had been made."  (Source: Murray to Darling, 30 August 1828, Mitchell Library, A 746; and see Newspaper Acts Opinion, 1827; Ex parte Wardell and Wentworth, 1827; R. v. Wardell (No. 3), 1827 on this despatch. )

John Macarthur senior, in a letter to his son John on 16 May 1827, saying that "Our vile Press may publish as many libels as they please with impunity.  Wardel and Wentworth will defend and Forbes will, if possible, shelter the libellous."  He said he no longer got the papers, because he did not want to pay 20 or 30 pounds a year "to encourage and support a nest of villains.  If they libel me I must bear it, for nothing I think but absolute necessity could induce me to appeal to a Court in which either Forbes or Stephen are the judges."  (Source: Mitchell Library, Reel CY 752B, at pp 159a ff.)

Published by the Division of Law, Macquarie University