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

R. v. Hall (No. 3) [1828] NSWSupC 53; sub nom. R. v. Hall (No. 1) (1828) Sel Cas (Dowling) 771

press freedom, stamp duty, press laws, statutory interpretation, "newspaper"

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 7 July 1828

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

[pp 172-173]

[The Monitor Magazine a periodical, published in weekly numbers in the form of a pamphlet stitched together, containing political observations, and letter, as well as advertisements and notices of marriage, together with an account of the daily occurrences of the times is not "aNewspaper or other such paper", within the intent  and meaning of the local act 8 G. 4. No. 2. s.14.]

[p. 172]

Monday 7th July 1828

Present Forbes CJ Stephen J and Dowling J

The King v Edward Smith Hall[1 ]

This was an information filed by H. Majesty's Attorney General against Edward Smith Hall, to recover the penalty of £100. for neglecting to deliver to the Colonial Secretary at his office on the day of publication the Copy of a Newspaper, called "The Monitor Magazine", dated the 18 May 1827 of which the defendant was the printer and publisher, pursuant to the Local Statute 8 Geo 4 No.2.s.14.[2 ].  at the trial before Stephen J. in this Court, in the first term of this year, a verdict was found [p. 173] for the Crown for a penalty of £100 subject to the opinion of the Court, on the following special verdict.

"The Assessors find a verdict for the King and assess the damages at the sum of £100, being the penalty incurred by the defendant for not having delivered on the day of publication; but on a subsequent day, pursuant to the 14 clause of the Colonial act 8 Geo 4 (No 2) a certain publication entitled the Monitor Magazine", dated the 18th day of May 1827.  Provided the Court shall be of opinion that a printed publication stitched together entitled "The Monitor Magazine" of the price of s1/6c having 48 small octave leaves published weekly in Numbers containing (among other things) Political observations and letters as well as advertisements and notices of marriages, together with an account of the daily occurrences of the times, comes within the meaning of the said Colonial Act as a newspaper or other paper; but if the Court are of opinion that the said [p. 174] publication does not come within the meaning of the said act then the Assessors find for the Defendant.

Sampson S.G. for the crown.  This publication comes within the  words of the 14s. of the Colonial Act 8 G. 4. No 2 "Newspaper or other such paper".  It is in fact a publication containing all the characteristics of a newspaper, and being therefore of a similar nature, it comes within the act, though it is nominally called a magazine the Court is to look to the substance and not to the form, which latter has been here assumed for the mere purpose of evasion.  The Colonial Act s,14 in a counter part to 38. G. 3. C 78 s.17 and must receive the like construction In 55 G. 3 C 185, there is a definition of what is an Almunack but none is to be found in any act, of a Newspaper.  This a plain question of construction, and as this is a paper of the like kind with a newspaper, judgment ought to be given for the Crown.

Wentworth contra.  This act being highly penal in its enactments must be construed strictly.

[p. 175] This is not a newspaper "or other such" paper which means paper "ejusdem generis".[3 ]  This if anything, is a pamphlet being stitched together in form of a book, and consequently does not fall within the operation of the local act.  The Statutes 10. Ann. C. 19. 11. G. 1. C.8. s.13 10, Geo 3. C. 45. 55 G 3.C.9. are in pari materia[4 ] and looking to the provisions of these statutes, it is clear that a pamphlet is distinguishable from a newspaper.  There is no legislative definition of a newspaper to be found in the statutes, other than as "Journals, Mercuries, Chronicles or other newspapers"  No Dictionary defines what is a Newspaper.  The Statutes contemplate a publication of news on one sheet of paper, and not on many sheets.  There are several definitions both lexicographical and statable of the word "pamphlet" which word is applicable to the publication in question.  This may be an evasion of the statute, but unless it comes, within the very terms, the statute cannot be strained to apply to it.  The very evasions to [p. 176] which the British acts have been exposed rendered it necessary for the legislature to enact further acts to explain what it meant.  This act is loose and undefined and can be construed to extend to a case which does not come within its terms.

This may be a news pamphlet, but it is not a newspaper and therefore is not within the act.

Sampson SG was heard in reply

"Curia, Advisare Vult,"[5 ]

Dowling J now delivered the Judgment of the whole Court as follows.

The question for the opinion of the Court is, whether the publication called "The Monitor Magazine" is a "newspaper or other such paper" within the intent and meaning of the local act 8.Geo 4. No 2. s.14.

Properly speaking this is a mixed question of law and fact, and [p. 177] ought, in my opinion, to have been left to and determined by the Assessor under the direction of the Court.  But as it has been thought expedient to leave it to the determination of this Court coupled with the construction to be put upon the local statute, we must apply our minds to the facts found by the special verdict, and endeavour to arrive at a conclusion satisfactory to our judgment.

This information is founded upon a statute which is highly penal in its enactments; and it is an unquestionable principle of the common law of England in the construction of penal statute, however executed that they shall be taken favourably for them upon whom the penalty is inflicted.  Plowder 17-206.  Bearing this principle in mind we must be satisfied, that this case comes plainly, distinctly, and unequivocally within the enactment of the local legislature before judgment can be given against the Defendant.  The [p. 178] 14th. Section of the local act, enacts,

"That the publisher of every newspaper or other such paper, shall upon every day upon which the same shall be published deliver to the Colonial Secretary at his office, one of the papers so published upon each such day, signed by the publisher thereof in his hand writing, with his name and place of abode; and if he shall neglect so to do, he shall for every such neglect respectively forfeit and lose the sum of £100.

The words of the statute upon which the question arises are "newspaper or other such paper", and it was argued for the Crown that if this be not strictly speaking a newspaper in common parlance, yet it comes under the words "or other such paper" it being a paper of the like kind with a newspaper and possessing in fact all the characteristics of a newspaper namely a journal of news, and a record of the passing events of the [p. 179] day.  There can be no doubt, I think that this publication is an evasion of the local ordinance and that it is in substance a mere vehicle for the communication of public news; but called upon as we are to enforce so highly penal an act, we must be satisfied that it comes within the letter as well as within the spirit of the enactment, in order to justify us in pronouncing judgment for the crown.

This as a mixed question of law and fact is one upon which there may be much diversity of opinion, and I could have wished that it had been left to that tribunal which is so peculiarly constituted to determined such questions.  After carefully considering the subject, I am bound to declare that in any judgment does not come within the letter of the act and on that ground that the decisions of the Court ought to be in favour of the Defendant.

The act speaks in the singular number of a newspaper or [p. 180] such other paper  In deciding upon this question one must bring in aid, the popular notion, and generally received idea that in common understanding has obtained, of a publication called a newspaper.  In common understanding and in practical experience we know that a newspaper is one printed sheet of paper containing narratives and information respecting the passing events of the day.  The only lexicographical definition which I have been able to find of a newspaper is, "A paper published and dispersed with an account of present transactions".  Thus in this singular sense it is defined in Baileys Dictionary.  In this same sense it is spoken of not merely in common parlance but in all the stamp acts of the British Parliament.  In the stamp act 55 G 3. C. 185 a newspaper is treated as one sheet of paper, and the stamp is imposed upon it as a singular [p. 181] sheet   In the Schedule of duties to that act, I find it thus spoken of "Newspaper or paper containing public news, intelligence or occurrences printed in great Britain to be dispersed and made public, that is to say, for every sheet, half sheet or other piece of paper where of the same shall consist 4d   Does this publication then satisfy this popular as well as statutable definition? in point of form it certainly does not, for it consists of several sheets of paper sewed together in the form of a book if it does not satisfy the formal definition then we must inquire whether there is any other known species of publication which it most resembles.  Looking at the title and that the form I should say it was a pamphlet because it completely satisfies all the popular as well as legislative definitions of that nature, and does not come within the definition of a newspaper.  Infact it is a pamphlet According to Bailey it is "A little stitched book" and Dr Johnson defines it to be [p. 182] a small book; properly a book sold unbound, and only stitched.

The same definition is recognised in all legislative enactments imposing stamp duties on pamphlets as contra distinguished from newspapers.  The statutes 10 Ann. C. 19. 11. G. 1. C. 8. 10 G. 3. C. 45. 55 .G. 3. C. 185. and 60. G 3. C 9. are in pari materia with the local act, and looking to the provisions of these several statutes, it is clear that a pamphlet is distinguishable from a newspaper.  Had no such distinction been recognized there would have been the less reason for drawing this nice and I may say subtle distinction, in a case where there is  a palpable evasion of the local ordinance.  We se [sic] by referring to these statutes I have cited that legislature has had occasion from time to time to pass new acts in order to prevent those evasions which the ingenuity of persons had suggested in order to avoid the payment of duties or subject [p. 183] themselves to other responsibilities.  This observation is peculiarly applicable to the 11 Geo 1. C. 8. and the 10 Geo 3. C. 4.5. which were passed to remedy defects in the 10 Ann C. 19.  The evasion resorted to in the present case may suggest the necessity of an amendment in the local act, but I think we cannot strain its operation so as to comprehend a case not within its terms it appears to me that this can only be considered as anews pamphlet; but is not a Newspaper, and therefore not within the terms of an act which I apprehend must be construed strictly.  For these reasons, I have come to the conclusion that Judgment must be given for the Defendant.

Before delivering the above Judgment I communicated it to His Honor the Chief Justice, and my Brother Stephen, both of whom concurred in my view of the case, and agreed that the judgment of the whole court should be delivered as I had written it.

Judgment for the Defendant.

Notes

[1 ] This action was part of Governor Darling's long campaign to suppress the opposition newspapers.  On 1 September 1828, Darling reported to Hay (Mitchell Library, A 1203, Reel CY 536, pp 17-20; Historical Records of Australia, Series 1, Vol. 14, pp 379-380) that "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 and these calumnies".  He urged Hay not to admonish Forbes, which the Chief Justice would merely take as a sign of the British government's weakness.  Darling claimed that Forbes associated with Wardell, the editor of one of the hostile newspapers, at the time of its attack on the government.  The governor also said that Forbes drew the newly appointed Dowling J. to his cause, by making a favourable appointment for his private clerk.  The governor also said that Rev. Marsden's recent pamphlet showed that Forbes had "prostituted his public Situation to serve his private End".   On the pamphlet, see R. v. Howe, 1828.

Ultimately, the British government refused to support the governor on the issue of press freedom.  The new constitution of the colony enacted in 1828 (9 Geo. 4 c. 83) had nothing on repression of the press.  Murray told Governor Darling in two despatches on 31 July 1828 (Historical Records of Australia, Series 1, Vol. 14, pp 270-271, 275-276) that the British government decided to leave the issue to the colonial Legislative Council.  The British government supported Forbes' view that licensing laws were repugnant to English law, but said it was permissible to introduce a stamp duty of up to four pence an issue, so long as the duty is bona fide levied for the purpose of revenue.  The final decision was to be taken by the Legislative Council, however.  See, on this issue, Newspaper Acts Opinion, 1827.

[2 ] See also Australian, 2 April 1828; Sydney Gazette, 7 July 1828.

[3 ] Of the same sort or kind.  Where general words follow particular words, the general words are often construed to be of the same kind as the particular.

[4 ] In pari materia: in the same subject matter.

[5 ] Curia advisari vult: the court wishes to be advised or to consider its decision.  This indicates that judgment was not delivered immediately.

Published by the Division of Law, Macquarie University