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

Ex parte Howe [1828] NSWSupC 55

contempt of court, press commentary on pending cases, press freedom, law reporting

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 11 and 12 July 1828

Source: Dowling, Select Cases, Vol. 1, Archives Office of N.S.W., 2/3461

[p. 239]

[The Court punished the Editor of the Sydney Gazette summarily for publishing offensive reflections upon the conduct of the Judges in a proceeding then depending in the Court and in contempt of the Court.]

Friday 11th July 1828

Present

Forbes CJ

Dowling J

Exparte Howe Contempt

 

At the meeting of the Court this morning Forbes CJ. called my attention to the following offensive commentaries upon the decision of the Court upon a motion in the case of Rex v. Howe published in the Sydney Gazette of this day.[1 ] Sydney Gazette 11 July 1828  An application of a most singular nature has lately been made to the Supreme Court and acceded to by the Judges.  It is the case of an individual at whose instance a criminal Information was obtained against the Editor of this Journal, for an alleged libel on his political character; for to this alone has the publication complained of reference, but who choosing to leave the Colony before the rule was made absolute lest [p. 240] the defendant should be enabled to give the truth in evidence by his examination on the trial, who sought and obtained leave to perform the necessary preliminaries before the filing of the information, the Clerk of the Crown, in his absence by deputy Dr Douglass - for it is a pity the Public should not be made acquainted with the name of the individual who prosecutes us, his benefactor for libel has betaken himself out of the Colony it would almost, regardless of the issue of the investigation which he had commenced, or perhaps not conceiving such an event within the scope of probability, hopeless that the rule would have been made absolute.  It was made absolute however not less to our astonishment after what we have witnessed in the last twelve months than we are convinced it was to the surprise of the legal advisers of Dr Douglass  But before the grand object which some parties had in view could be accomplished [p. 241] something indispensable remained to be performed, which in the haste of snapping at the opportunity of bringing the Editor of the Sydney Gazette before a Court of Justice, had been altogether passed over.  A difficulty arose at this stage of the proceeding growing out of the Statute of William & Mary, C.18. which provides that before any information shall be preferred against any individual, unless by the express order of the Court, the informer (the King it should be remembered is the virtue of the prosecutor) shall enter into recognizances in the sum of £20 to appear and prosecute such information and abide by such orders as the Court may issue in the event of a verdict for the defendant; and this, it is expressly stated is to prevent vexatious prosecutions which after the Defendant has appeared and pleaded are not followed up and where by he is put to considerable costs and charges.  The provisions of the set in question and the objects of the recognizances required, were held by the [p. 242] court to refer soley [sic] to the object of securing the defendant in costs if the Judge should be of opinion that reasonable cause for preferring the information did not exist.  But is this the sole object of the Act?  We think not.  It is clearly understood and expressly recognised, in the construction of Acts of Parliament where the enactment is plain and the words express one certain thing, that the preamble cannot be referred in order to explain its meaning.  When a direction is so defined that there is no possibility of mistaking its meaning, it is incapable of under going any alteration from preceding words, but when the object can only be gleaned from another thing it is then held allowable to refer to the preamble of An Act of Parliament to supply the sense of that clause which happens to be imperfect or obscure, by ascertaining the declared intention of the legislature.  When the meaning however is not obscure then the enactment must be taken in the strict letter of the Act itself and not of the preamble now [p. 243] without any reference to the preamble of the Act of Parliament under which this extraordinary application was made to the Court what does the particular clause provide?  why that before any information without express orders from the Court can be exhibited against any individual, the person, at whose instance such information is obtained shall enter into recognizances in the amount of £20 which recognizances amongst other things are to contain; even the place of abode of such person, to appear and prosecute and to abide by such orders as the Court may make in the event of a verdict for the defendant or of its appearing to the Judge that a reasonable cause did not exist for preferring such information.

This is the substance of the clause, and we would ask whether the meaning is not so clear as to be perfectly easy of comprehension without any preamble at all.  It is contended that the whole spirit of the Act is to secure costs to the Defendant in case of a vexatious prosecution and that its intention is fulfilled by any [p. 244] means which secure that end.

That this was one of the grievances which it was intended to remove we have no doubt, but it is highly possible that a state of things might exist which would under the execution of the recognizance personally, a matter of the utmost importance.  The party at whose instance the information is obtained is bound to appear and prosecute and abide by and observe such orders as the Court may make.  These orders for anything which can be foreseen might be personal; they might be of such a nature as to be incapable of being acted upon against an agent for we still contend it is narrowing too much the meaning of these words to apply them solely for the subject of the defendants costs the recognizance also are to contain the name of the prosecutors place of abode.  Here then, as we conceive is another dispensation in favour of Dr Douglass.  How is this part of the enactment complied with?  And is not [p. 245] the very insertion of these words in the clause conclusive, that such a state of things never could have been contemplated as that of an individual proving a criminal information against another be taking himself out of the country, probably as in this instance, to the vital injury of the defendants cause, and leaving it to be prosecuted by deputy?  Part of the grounds of the application, in order to evade the very plain words of the Act was that this in fact is not an information obtained at the instance of Dr Douglass, he having left the Colony before the rule was made absolute; This is good.  It appears then that this is the prosecution of the three gentlemen at whose instance the present application has been made!!!  But even this evasion will not make the case.

The very fact of Dr Douglass making the application on affidavit to the Court, in the first instance before his departure.  The very fact of his having given a power of attorney to his agents here [p. 246] clearly shews that he was the person procuring the information and was therefore the person by whom the provisions of the Act of Parliament should have been complied with if so, then we ask, what was there in this gentlemans character which a Court of Justice could have in such special regard as that it would waive the possibility of placing him within the ulterior orders of the Court, in the event of a verdict for the Defendant merely because it was not his convenience neither would it have been advisable to stay and prosecute the information he had obtained?  We pause for a reply.

Dowling J. It appered to me that the object of this publication was to bring the Judgement of the Court into contempt and to reflect upon.  The [sic] administration of Justice, and therefore I propose that the printer and publisher be ordered to attend before the Court for a contempt, on the ground that the effect of the publication [p. 247] was to prevent the course of Justice in a case which was pending before the Court.  I suggested this cause as the most expedient to effect the purpose of checking this offensive deportment in a public Journalist.

Forbes CJ agreed with me in my view of the case, and upon our taking our seats on the Bench he delivered our joint opinion and order in the following terms

"The attention of the Court has been called to certain observations published in the Sydney Gazette of this Morning reflecting upon its decision on an application made to the Court on the 7th instant, in the case of the King on the prosecution of Henry Grattan Douglass Esqr against Robert Howe.

The observations then called to the attention of the Court have a manifest tendency to bring the proceedings of the Court into contempt, and to prejudice the due course of Justice in the case alluded to.

The court therefore feels in itself imperatively called upon to take [p. 248] notice of this publication, and doth therefore order, that the printer and publisher of the said paper do attend this Court, at its sitting tomorrow, to answer for his contempt!

The following order was then dictated and directed to be served by Mr Sheriff Carter or his sufficient Deputy upon

Robert Howe.

"Supreme Court 11th July 1828

"It is ordered that Robert Howe, the printer and publisher of the Sydney Gazette, do attend this Court at 10 O'clock tomorrow morning to answer for his contempt in publishing certain observations in the Sydney Gazette of the 11th July instant reflecting upon the conduct of the Judges in certain proceedings had before the Supreme Court on Monday the 7 July instant in the case of the King on the prosecution of Henry Grattan Douglass against the [p. 249] said Robert Howe, and tending to prejudice the trial thereof.

By the Court.

===

Saturday 12. July

Present Forbes C.J. Stephen J & Dowling J.

Exparte Robert Howe

Before the sittings of the Court this morning, Forbes CJ. and I communicated to Stephen J., the proceeding we had thought it our duty to take against Robert Howe.  He concurred in the propriety of what we had done.

On taking our seats, Robert Howe presented himself, and.

Forbes CJ. asked him if he was prepared to answer the contempt for which he was ordered to appear before the Court ?

R Howe then rose and said, he was never more surprised than he was on receiving the order to attend the Court for a contempt, because he never entertained the most distant idea, in differing in opinion with This Honorable Court, [p. 250] of treating the Court with the least contempt or giving it the least offence.  He had always thought until this order was served upon him that it was the privilege of an Englishman, and part of the freedom of the Press, fairly and temperately to express their opinion upon every act of the Government and more especially upon the decision of a Court of Justice, so as it was delivered with temper, candour and respect.  This was all the object he had in view, in the publication complained of which he conceived to be a fair commentary upon the decision of this Honorable court on the motion made a few days since.  He had no other answer to make to the present proceeding, and he denied most explicitly the charge contained in the rule served upon him.  He therefore hoped and flattered himself, that this denial would be accepted as his excuse.  With permission of the Court he would read an affidavit to this effect.

[p. 251] Forbes CJ. Does this Court understand you to admit, the fact of the publication, which the Court considers to be contemptuous of its proceedings

Mr Howe  I do certainly admit that I am the publisher of the observations complained of.  I am ready now to deliver in my affidavit to the effect I have stated. 

The Defendant then read an affidavit which contained in substance his preceding statement.

Having concluded what he had to say

Forbes CJ. proceeded to deliver his opinion upon the conduct of the Defendant in publishing the observations complained

After Forbes CJ. had delivered his sentiments, I spoke as follows:-

Dowling J.  As a Judge of the Supreme Court I have no hesitation in expressing my concurrence in the legality as well as propriety of the order which brings this person before the Court to receive its animadversion.  The person on the floor, is called upon to answer for a contempt in publishing In the Sydney Gazette of the 11th instant certain [p. 252] observations reflecting upon the conduct of the Judges in certain proceedings had before this Court on the 7th instant. in [sic] the case of the King on the prosecution of Henry Grattan Douglass against Robert Howe for a libel which observations have tendency to prejudice the trial of the information filed against the Defendant.  Looking at the whole scope of the publication in question it appears to me, and I think no reasonable mind can entertain a doubt upon the subject, that the object of this publication is to impugn the integrity of the Court, and by bringing its decision into contempt, thereby to prejudice the course of Justice in a proceeding now depending for trial.  Speaking individually, I should be very slow in checking the fair liberty of the press in commenting upon the conduct or decision of a Judge or of any other public functionary for I hold it to be lawful to discuss with decency and candour the propriety of the decisions of a court [p. 253] of Justice but where the manifest object of a publication of this nature is to bring a Court of Justice into contempt and to prevent the due course of Justice, it behoves the Court to protect its own dignity by punishing a transgression the obvious tendency of which is to weaken the administration of Justice and in consequence to sap the very foundation of all legitimate government.  Is the publication in question a decent fair and candid criticism upon the decision of the Court in the case alluded to? or is it, a disrespectful, unfair and prejudiced misrepresentation of what took place in Court on the occasion in question in order to prejudice a question which now remains for trial by a judge and a Jury?  without pretending or affecting to give an account of what really passed in Court; the very first paragraph implies a reflection upon the Court and questions the integrity of its decision.

I can consider this publication in no other light than as a scandalous contempt of the Court and tending to prevent the due course of Justice by imputing [p. 254] to the Judges themselves (one of whom at least may be hereafter called upon to preside at the trial of the Defendant) an improper bias in favour of the prosecutor and against the defendant.

The question then is have we authority to punish this publication in a summary manner as a contempt of Court?  I apprehend that we have such authority.  A publication, the effect of which is likely to prevent or obstruct the course of public Justice, has always been held to be a contempt of the Court.  In the Practical Register in Chancery p 99 it is stated that "contempt is a disobedience of the Court, or an opposing or despising the authority, justice or dignity thereof; it commonly consists in a party doing otherwise than he is enjoined to do, or not doing what he is commanded or required by the process order or decree of the Court."  In Poole v Sacheverell PWms.675 the question in the cause was as to the validity of a marriage [p. 255] and it was there held, that inserting an advertisement in the public prints, that whoever should discover and make legal proof of the marriage in question should have £100 reward, was a contempt of the Court; and the party proceeding it was committed.  The Lord Chancellor in that case said said [sic] this tends to the suborning of witnesses is very dangerous, and not only greatly criminal, but is a contempt of the Court, being a means of preventing justice in a cause now depending,"  That case establises [sic] that a contempt may be committed by a person out of Court, pending a proceeding in Court.  In 2 Atkins 471. a motion was made against the printers of the Champion, and the St James Evening Post that they might be committed for publishing a libel, reflecting reflecting [sic] upon persons parties to a cause then depending before the Court it was insisted that the publishing of such a paper was a high contempt of the Court.  The Lord Chancellor Hardwicke said, "There are three different sorts of contempt [p. 256]  One kind of contempt is scandalizing the Court itself.  There may be likewise a contempt of Court in abusing parties concerned in causes here.  There may be also a contempt of this Court, in prejudicing mankind against persons before the cause is heard.  There cannot be anything of greater consequence than to keep the streams of Justice clean and pure that parties may proceed with safety both to themselves and their characters  In Exparte Jones 13th Versey Jun the great Lord Esskine the distinguished champion of the liberty of the press and trial by Jury, fully recognises the authority of the cases I have cited and says that whatever may be said as to a constructive contempt, through the medium of a libel, against persons engaged in the controversy it never has been or can be denied, that a publication not only with an obvious tendency, but with the design to obstruct Justice is a very high contempt." [p. 257] These authorities incontrovertly establish that a publication out of Court which is likely to impede the course of public Justice in a proceeding then depending in Court is a contempt.

It was upon this principle that in Rex v W J Clement 4 B and of 218 which is a very late case.  The Defendant was fined £500 for publishing one of a series of trials for High Treason, before they were all completed.  In this point of view I consider the publication in question as a high contempt of the Court itself.  This party might be punished by information but as that is not always an effective remedy, for then the evil will have been accomplished before any indictment can be tried by Bagley J. in Rex v Clement, it is fit that the party should be deterred by a speedy punishment.  In the same case Hohoyd J says "It is perfectly clear as to the Courts at Westminster that contempts may not only be in the face of the Court, that they may be committed out of the Court.  In the [p. 258] argument of Wilmot CJ in Rex v Alman WilmotsNotes 243 he shews clearly that publications libelling the Supreme courts may be punished as contempt.  The cases cited from Mkyns as well as that before Lord Erskine establish that anything done either for the purpose of obstructing justice or which will have that effect, may be punished as a contempt of the Court before whom the proceedings are had". 

The Judges of this Court are by the 4G4.C96.s.2 vested with the like Jurisdiction and authority, as the Judges of the Courts of Kings Bench Common Pleas and Exchequer, in England, or any of them lawfully have and exercise, and as shall be necessary for carrying in to effect the several jurisdictions, powers, and authorities, committed to us by our Commissions and the charter of Justice.  Personally and privately I view this publication with utter indifference but having the honor to hold his Most sacred majesty's commission and being one of his humble [p. 259] representatives in this remote Colony, I am bound to assert the dignity of my high station and to take care that the character of the Court is not tarnished by any slanderous imputations upon its purity and integrity.

I deeply regret that the Court is thus called upon to notice such a publication but I lament it the more keenly when I find that this contemptuous deportment emanates from the paid organ of the Government whose duty, if not his inclination ought to prompt him to treat with reverence and respect the highest judicial functionaries in the Colony as this Court however; in the administration of Justice knows no distinction of persons, it is bound to take notice of this offence in such a manner as it is hoped will have a salutary effect upon this party's future deportment

Forbes CJ delivered himself as follows:-

Robert Howe, you have been bought before the Court this morning for the purpose of answering a contempt charged against you, and of which you had notice in the order served upon you.  Having therefore appeared to [p. 260] the order and having admitted the fact of the publication charged to be contemptuous, it now remains for the Court to pass its opinion upon the character of the publication and to prove against you as the justice of the case may require.It is in the power of the court in this summary manner to deal with persons who obstruct the justice of the Country by reflecting upon the character of the Court, and prejudicing the minds of the public upon a case which remain and is pending for trial  (The learned Judge then read extracts from Holts Law of Libel page 153.)  In the printed publication now under the consideration of the Court, there are several passages which are in my opinion of an offensive character.  This is not manifested in single expressions evincing casual indiscretion in the use of language but the whole spirit of the article is a reflection upon the motives and intentions of the Court  (His Honor then read the offensive passages in the article which are scored)  [p. 261] According to my interpretation of these passages they mean to insinuate, and charge that a different rule of conduct was adopted in this case by the Court, from what it had observed during the preceding twelve months and that our decision was such as even to surprize the Counsel for the prosecution it asserts that the Court had gone out of its way to make a dispensation in favour of Dr Douglass that it dispenses with an act of Parliament, in order to favour a particular individual that we violated our oaths and abandoned the performance of our public duty, which is to dispense Justice without favour or affection to all the Kings subjects.  These offensive passages are marked in Italicks in order that they may not escape the notice of the casual reader it goes on to ask, what was then in this gentlemans character which a Court of Justice could have such a special regard as that it would waive the possibility of placing him within the ulterior orders of the Court [p. 262] which is asking why the Court dispenses with the form of justice in his favour?  Such an insinuation might have been conveyed in much more gross language: but the insinuation is more vital, on account of the insidious manner in which it is couched, and therefore more offensive and dangerous in its character than if expressed in more gross and offensive language because then its own scurrility would have defeated its object  in my opinion the whole of this article is not only offensive but highly dangerous in its character.

I cannot fail to observe that this Mr Howe appears for the second time before this Court for a similar offence scarcely six months have elapsed since he was brought before the Court for an offence of the same character, by observing upon the proceedings of the Court pending a crown prosecution.  I had hoped that the lenient and liberal manner in which the Court dealt with that particular case, and after the Defendant [p. 263] had come before the Court and endeavoured to defend himself from the charge of guilt, by stating his sorrow at having been betrayed into an act of discretion, that it should not have been found necessary to call upon him to answer for a similar offence   I hope I need not guard myself by saying I should be sorry to abridge the right of the subject, to discuss with fairness and candour, the Judgment and the proceedings of a Court of Justice.  This is a point upon which I feel in common with every subject, a deep interest.  The Court however is called upon to interpose its authority where these bounds are exceeded and the character of the Court is wantonly and unjustly assailed.  The Court however is very tender in taking the course which it now feels itself compelled to adopt, especially as the Court is aware that it is the Judge in its own case  But where else shall the Court find a tribunal to assert its own dignity and character.  Suppose the offence of this [p. 264] person to be tried in another form, must not the case come before the same Court in order to be tried by one of its Judges'   The Court has no other course to adopt but this, in a case, where its character, dignity and honor are assailed.  Bound by the solemn obligation of their high trust how can the Judges go into the investigation of a case where it is asserted that they are prejudiced in favour of one party against the other.  Is it Gentlemanly, is it it [sic] generous, is it fair and charitable, is it what one man owes to his neighbour, to make such insinuations as these.  If it be not so in private life, how much more offensive is such conduct towards men placed in a situation where of all others integrity and purity are of so much importance, and where the eyes of the public are more intent, than in any other situation in which a public man can be called upon to act, & where character is of the highest importance to preserve, against assaults of this nature?

Stephen J spoke at considerable length and delivered his sentiments to the same effect.

[p. 265] Mr Howe then addressed the Court imploring mitigation, and pledging himself that he should take warning from the admonition he had then received, and that as long as he had anything to do with the editing of the paper, he should never be guilty of the like offence again.

We then considered what we should do with the case.  Stephen J. was for sending the Defendant to Gaol for one month.  I opposed this, and at length it was agreed to admonish the Defendant, and then fine him 40s and order him to enter into his personal recognizance in the sum of £100, to be of good behaviour for twelve months.

Forbes CJ then addressed the Defendant and after admonishing him, said that in consideration of his confession, and pledge not to offend again in like manner addressed him to pay the King a fine of 40s and enter into his personal recognizance in the sum of £100 to be of good behaviour for 12 months and in the meantime that he be committed to the Sheriff until [p. 266] he paid the fine and entered into the recognizance.

Notes

[1 ] The "my" refers to Dowling J., whose notes form the basis of this report.

See R. v. Howe, 1828, and the comments of the Sydney Gazette on 11 July 1828.  TheGazette published its report of the contempt case on 14 July 1828.  This case did not stop him commenting on the Douglass case against him many more times: see for example,  Sydney Gazette, 18 July 1828.  One of these articles, on 29 September 1828, led to another attempt to prosecute him for contempt.  It failed on formal grounds, to do with the name of the newspaper and proof of publication: see Sydney Gazette, 15 October 1828.

In March 1828, Howe petitioned the British government to be allowed to use the title "King's Printer".  Governor Darling forwarded the petition to Huskisson on 22 March 1828 with the comment that "It would be unjust in me towards that Individual not to bear testimony to his Zeal  in the Cause of Government, though I do not presume to judge whether a Compliance with the prayer of his Petition would be consistent or convenient."  (Historical Records of Australia, Series 1, Vol. 14, p. 33.)  Darling was certainly right about the zeal of Howe to support the colonial government; his discretion was another matter.   Murray told Darling on 11 November 1828 that the title had been approved (p. 446).

Published by the Division of Law, Macquarie University