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

R. v. Howe [1828] NSWSupC 35; sub nom. R. v. Howe (No. 1) (1828) Sel Cas (Dowling) 291

criminal procedure, criminal informations, criminal libel, Forbes C.J. and Governor Darling, conflict between, Marsden, Rev. Samuel, Douglass, allegations against, Sudds and Thompson, magistrates, illegal punishment by, contempt of court, press commentary on pending cases

Supreme Court of New South Wales

Forbes C.J., 21 May 1828

Source: Sydney Gazette, 23 May 1828

CRIMINAL INFORMATION.

Dr. Wardell rose, and stated that he was instructed to move for a Rule to shew cause why a criminal information should not be granted against Robert Howe, Editor and Proprietor of theSydney Gazette, for  a libel on the character of Henry Grattan Douglass, Esquire,[1 ] contained in that paper of the 9th of May instant.[2 ]  The application, the learned Counsel stated, was made on the affidavit of Dr. Douglass himself, as well as on another affidavit, in reference to the accompanying paper which he was about to hand into the Court.  The publication complained of, was one of that nature which rendered it extremely difficult to be met by affidavits, denying what was expressly stated or insinuated, inasmuch as the imputations were thrown together in so guarded a way, that they could with difficulty be directly met, although no doubt could possibly be entertained as to the party to whom they were intended by the writer to apply.  In such cases it had been held, that in an application of this nature, the party complaining was not obliged to deny general charges on oath.  Dr. Douglass, however, it would be seen, had met every allegation that was at all specific.  Dr. Wardell then proceeded to read the affidavit of Dr. Douglass, which set forth that the deponent had filled, for some time in this Colony, the several situations of Clerk of the Legislative Council, and Commissioner of the Court of Requests, from which latter office he had been superseded by His Excellency the Governor, without just cause, in consequence of which he had determined on proceeding immediately to England, to lay the circumstances of his case before His Majesty's Government, from whom he had no doubt of proving himself entitled to favourable consideration; that Robert Howe, Editor and Proprietor of the Sydney Gazette, in a number of that Journal, dated the 9th of May in the present year, had published a certain false, scandalous, and malicious libel, of and concerning the deponent, and relating to the way in which the deponent had conducted himself in the discharge of his aforesaid situations; that his conduct had been always strictly honourable and just, that he had never merited any exposures as alleged, nor had ever been engaged in espionage; and that the said publication was altogether false and malicious, and calculated to ruin him, and cause him to be shunned by all good men, &c.  The libel, continued Dr. Wardell, it would appear, was an attack upon the public conduct of Dr. Douglass, when a public officer.  One part charged him with political infamy, another, with acting as a spy, or delighting to act as one.  In reading over the publication complained of, it was impossible to say, that the mind of even the most ordinary reader would not be warped to the prejudice of the person to whom it evidently alluded.  It not only charged him with having acted indecently, but from the tenor of the whole publication, it was impossible to say to what extent he was charged with deporting himself unbecomingly to the Government he had a right to serve.  It was not incumbent on him to enter more particularly into the matter in this stage of the proceeding; the only thing then required of Dr. Douglass, being proof that the defendant was the person who actually published the libel complained of, and that Dr. Douglass, and no other, was the individual alluded to therein.

The affidavit of Ellis Martin Scott, Esq. J.P. and Merchant in Sydney, was then handed in, corroborative of the statement made by Dr. Douglass, in reference to the applicability of the publication complained of, to himself.

The passages particularly set forth in the affidavits were the following:- "It must be within the recollection of our Readers, that we found it necessary, for the ends of public justice, in one or two instances to visit with becoming indignation, what we considered the political infamy of an ex Civil Officer.  The party, we are certain, winced beneath our righteous lash, though we were as lenient as the circumstances of the case would admit, because we were, and still are, anxious not to enter into all the ramifications of a political life which might involve any particular individual in ruin, whence he could not retrieve himself."  "Because we did not happen to follow up, that species of castigation to which it is known we can resort to whenever necessary, it has been asserted that we have been silenced by peremptory instructions from a distinguished Member of the Government, who interposed to save the party alluded to, from having his political reputation blasted in Downing Street!" - "But, it is needless to pursue this subject, since it only goes to verify an observation we have made through life, that some men will not mind flogging another poor wretch to death, so long as they can escape the lash, but the moment the scourge is righteously applied to their own back, then they begin to vociferate at the rigour of the chastisement they deservedly experience.  We would only say to such, and hold them up as a beacon to every Colonist, `witness the destiny, of those who delight in espionage!!!' - "Extraordinary efforts are in progress to produce a grand explosion on arrival in England; but from a knowledge of some of the plans now under consideration by a certain coterie, we have no hesitation in avowing our conviction that their Colonial Charge d'Affaires, upon his arrival in Downing-street, should he incautiously venture so far, will not be long in effecting his retreat to that insignificance in his own `dear land' when he emigrated some years ago to agitate a whole community."

The affidavit of Mr. Scott stated his belief that those passages were intended to apply to Dr. Douglass.  Dr. Wardell submitted that it was impossible to say that the person against whom such imputations should be proved, was fit for any society.  He was charged with having committed acts which, if mentioned, would involve his ruin; whilst it was asserted that mere tenderness to Dr. Douglass was all that prevented the writer going into the direct accusation of the most grave offences.  He was held up as a party who had acted the part of a spy, and who was now experiencing the result of his predilection for such an infamous practice, and declaring that his whole conduct had been such, that the instant he shewed himself in Downing-street, he would meet with nothing short of being kicked out.  Dr. Wardell, in conclusion, submitted that sufficient had been shewn to warrant the Court in granting the rule prayed for.

The Chief Justice. - Take a rule Nisi, returnable on the first day of the ensuing Term.

 

Forbes C.J., Stephen and Dowling JJ, 6 June 1828

Source: Sydney Gazette, 11 June 1828

CRIMINAL INFORMATION.

Shortly after the Judges had taken their seats upon the Bench this morning, for the purpose of disposing of several outstanding motions,

Dr. Wardell rose and moved that the rule to shew cause why a Criminal Information should not be filed against Mr. Robert Howe, Editor and proprietor of the Sydney Gazette, for a libel on the character of Henry Grattan Douglass, Esq. obtained on a former day, be now made absolute.

Mr. Norton appeared to shew cause against the application.  The learned Counsel commenced by adverting to the affidavits filed in support of the rule, and particularly that of Mr. E.M. Scott, as to the applicability of the alleged libellous matter to Dr. Douglass, in which affidavit the particular passages selected as the ground-work of the application to the Court were set forth.  Mr. Norton after reading the whole of the matter charged as libellous, and which was sworn to by Mr. Scott as having reference to Dr. Douglass, and no other person, contended that the reasons alleged for such belief were any thing but conclusive; inasmuch as they were rather inferences from particular and extrinsic circumstances, than from any thing contained in the article to which he referred.  Before the Court, however, could seriously arrive at the conclusion to grant an information against the Editor of the Gazette, it would not merely look at the extracts which had been selected as the basis of this application, but, taking the whole of the article together, would consider the spirit under which the matter sought to be made grievous was put forth, and the circumstances under which it was written.  It was not, he contended, for an individual to come into Court, and ask for a criminal information against the Editor of a Newspaper, upon partial extracts from the publication of which he complained, and the applicability of which to himself was to be gathered, not from any thing contained in the writing itself, but from fanciful conjectures, far-fetched references, and that apparent assimilation of remote ideas with which this case was endeavoured to be supported.  The Court, he repeated, would not form its determination upon assertions like these.  It would take the whole matter into consideration, and be satisfied that there were reasonable grounds for the construction put upon those passages by the party making the application, before it would send the case before another tribunal.  The article itself, he contended, would furnish evidence of the inducement of its publication, and the object of those passages complained of.  It clearly purported to allude to a report, said by the writer to be in circulation, that the Editor, who had previously made some observations on the public character of  Dr. Douglass, had been silenced by some other Civil Officer of the Colony of such weight and importance, as effectually to put a stop to any further animadversions on that subject.  It was not for him (Mr. Norton), at that time, to consider, or remark upon, the wisdom of the observations which followed in consequence of such alleged report, the only question was as to the justifiableness of the Editor of a public Journal in making observations on the public character of a public officer, even though it might be injurious to his feelings; such observations, too, being made, as the Editor very fairly stated, at a time when the party alluded to was in the Colony, and in a condition to offer such denial to the statements put forth, as he might be of opinion was either necessary or advisable.  Nothing, he was aware, was more difficult than to define the limits to which discussion on the character or conduct of a public officer might be extended.  If the feelings of such an individual were obliged to be considered too nicely, all public discussion would be silenced, and all the public good originating from it, the people would be deprived of.  It was not for him to draw the line of demarcation and to say to what extent the discretion of public writers should be exercised, but, he would say, that, in this Colony, where the public press had been led into what was generally considered an excess of the right to discuss the conduct of public men, and the wisdom and policy of public measures, it would be difficult to fix the real extent to which, and no farther, it might legally be carried; and, therefore, if the Court should be of opinion, in this case, that more had been put forth than the occasion warranted, or that was strictly compatible with the bounds of fair and legitimate discussion, it would attribute it to the practice which prevailed in investigating the conduct of public men.  It did not strike the learned Counsel, however, on the who[l]e, that there was any thing in the article complained of which called for reprehension.  The Court had a right to assume that the Editor of the Gazette had expressed what he honestly believed, however he might have gone beyond the tone in which such a discussion ought, perhaps, more properly to have been maintained; but, at the same time, he would say one was so apt to mix up the propriety of the observation with the right of making it, that it was not very easy to separate them.  He was confident, however, that it would not appear to the Court, in this case, that there was any thing reflecting upon the private character of the individual alluded to.  The paragraphs said to be particularly applicable to Dr. Douglass, admitting that he was at all referred to, did not contain the slightest insinuation other than with reference to his public capacity in this Colony, and the mere reference to any humble circumstances under which he might have laboured in his native land, was surely too trifling to found a serious charge against the Editor before the Court.  He (Mr. N) had not thought it necessary to put in affidavits on the part of Mr. Howe; and he would, therefore, leave the case as it was, with the utmost reliance that the article complained of would be looked at by the Court as a publication not put forward with a jaundiced eye, but in the exercise of that right of public discussion which their Honors would see it would be dangerous to interfere with.

Dr. Wardell replied.  Mr. Norton had save him some trouble by the line of argument he had adopted in order to satisfy the Court that this was not a matter in which it could make the Rule absolute.  There were but two points, he conceived, for consideration in the present cause; first, the complexion of the publication itself, and secondly, its applicability to the party seeking for a criminal information.  It appeared to be admitted on the other side, that the applicability was beyond dispute, because the whole tenor of Mr. Norton's observations was an attempt to shew the innocence of the publication; but, he contended, that admitting the utmost latitude of discussion, no Court, no friend of freedom could for a moment hesitate to say that the publication complained of was other than grossly libellous.  He (Dr. W.) could well understand the difficulties that surround public writers, when they venture to reason upon the acts of public men.  The mind became warmed with the subject, and losing sight of that calm and dispassionate judgment by which it ought to be influenced, the pen too often traced characters, which reflection would have expunged.  These difficulties were only known to public writers.  But the publication before the Court, was one wherein the writer seemed to shew a perfect indifference to every shadow of reasoning.  The whole of the production was one tissue of imputation and assertion without a single atom of argument.  It was one of the most dangerous articles that could be published of any individual.  It was telling the public that Dr. Douglass, as a public officer, had most grossly misconducted himself in his office - that he had acted in such a way as actually to render him infamous -- politically infamous!  That a man to whom such a character was justly applicable had not subjected himself to the evil opinion of the world, it was impossible to say.  He could not conceive any assertion more calculated to inflict the most serious injury; inasmuch as political sins were followed by their result --- political punishment.  If a single act had been taken up --- if it had been said that Dr. Douglass had done such and such and act, at such and such a time --- if there had been any thing specifically named --- if real, positive, tangible facts had been adduced and reasoned upon, Dr. Douglass might have been enabled to defend himself, or an adverse writer might have shewn the contrary; but here was nothing but a mere vague general charge of impropriety, whilst, at the same time, the Public were lead to believe that the implied accusation was of so monstrous a description that it was absolutely necessary to shade its monstrosity, not only for the sake of Dr. Douglass, but even for that of his family, lest they also should suffer by the disclosure.  If a specific declaration had been made, the party to whom the error was attributed might have met the charge, but in this case it was broadly asserted that he has acted in every respect infamous.  The Editor had made a statement of a mere report, the opportunity for introducing imputations of so vague a nature that they could not possibly be met in any way; whilst the mind was left to indulge in all those suspicions in which was so apt to indulge, when general statements were all it had to ground an opinion upon.  The very assertion that the statements put forward in the article complained of, were so put forward for the ends of public justice, shewed the character of the publication.  What could possibly be supposed, after reading such an assertion, but that some act, little short of felony was concealed by this mild-intentioned writer from the public view, and which could not be exposed without involving not only Dr. Douglass, but his family also, to certain ruin.  This was not the language of a public writer fairly discussing the public acts of a public officer.  Mr. Norton was desirous that the whole of the article might be taken together.  He Dr. (Wardell) was equally desirous that it should be so; because, he would say, the more of the publication was considered by the Court, the more it would be convinced of its libellous tendency.  It did not follow, because the applicant had merely selected what he thought libellous, that he was to be restricted solely to those passages, but might, and he (the learned Counsel) was desirous he should, avail himself of all, as the whole contained equally pernicious charges, the only difficulty attending which course was the means whereby he would be enabled to meet such a tissue of mere general imputations as was cast upon him.  The world were too disposed to give credit to, and think the worst of, general undefined charges, as well as to put the worst construction on them; and a public writer should therefore be more guarded in imputing not only more than what was true, but perhaps even more than he himself intended.  In reference to one part of the publication, wherein it was stated that "some men would not mind flogging a poor wretch to death, so long as they themselves escaped the lash," it was a matter of notoriety that Dr. Douglass, in common with other Magistrates of the Colony, had been charged with illegal flogging.  In this passage, then, he contended, there was a direct allusion to the applicant.  Mr. Norton had endeavoured to shew that it was of mere general application.  But it did, notwithstanding, appear very odd that such a fair-fetched [sic] illustration should have been made use of; nor were Editors, for the mere sake of illustration, apt to select a single crime; a variety would have been made use of.  But, at all events, the Court would consider the article complained of, as the world, or as an ordinary reader would consider it.  Mr. Scott's reading of it was before the Court.  That gentleman did not form his opinion upon paragraphs, as he stated, but took the whole article in connexion, stating his reasons why he considered it to apply to Dr. Douglass, and further, that its application was calculated to do him a most serious injury.  Mr. Scott was merely one selected out of a multitude, who could be produced if necessary; his opinion he had put upon record, and it was one upon which he (Dr. Wardell) submitted the Court would be guided, with respect to the libellous tendency of the whole article.  If Dr. Douglass had acted in such a way as to deserve those imputations which had been heaped upon him, why did not the editor enumerate the acts of which he had been guilty, and shew in what way he deserved to be dismissed from his office?  The very act of reproaching a man with leaving his native country to agitate a whole community, was one of the most serious charges which could be brought against him.  Dr. Douglass had moved in the first circles in the Colony, and a person of his standing and rank in society could not have such imputations cast upon him with impunity.  Taking the whole article together, and all the circumstances under which it was published, into consideration, he defied all the efforts of sophistry itself to make it appear that the article was not one of the most dangerous tendency, as regarded the object of its application.  Mr. Norton evidently felt the difficulty of shewing that it was innoccuous, and a mere privileged discussion; but it was impossible for any one to read it to a conclusion, without making up his mind that Dr. Douglass was one of the most fraudulent officers that ever filled a public situation, if the imputations it contained were founded in truth.  It was insinuated that he had been nothing less than a traitor to the Government which he was bound to serve, and that, too, in a way to deserve little else than the punishment of the law.  The imputations, in fact, were so sweeping, that it was impossible Dr. Douglass could swear they were false, or give the Editor an opportunity of justifying in an action for libel.  He (Dr. Wardell) submitted, therefore, that the applicability of the publication being beyond dispute, the only question for the Court was, whether it was of such a character as would induce it to grant the motion prayed for, by making the rule absolute.

Mr. Wentworth followed on the same side.

The learned gentleman stated that, after the elaborate observations of Dr. Wardell, he should not trouble the Court by adverting at any great length of the character of the publication which was the subject of the present enquiry.  The learned Counsel who preceded him had very properly observed, that the character of the writing complained of was the more objectionable, inasmuch as it dealt in nothing but vague and indefinite assertions, such as would not admit of being justified if an action of libel had been brought.  There were two classes of libels; libels which imputed some offence for which the party would be punishable by the law, and libels which charged that description of misconduct which was calculated to degrade an individual in society.  The publication before the Court, as he took it, came under both those heads, as it clearly  meant to impute an offence which would be punishable by the law, as well as that sort of execrable conduct, the tendency of which was to degrade any individual who could be guilty of it, in the estimation of the world.  Before, however, he directed the attention of the Court to those two kinds of imputations which the article contained, he could not help alluding to the line of conduct adopted by the publisher, in not having attempted to file counter affidavits, as he clearly might have done, in reply to those upon which the present application was grounded.  That course being wisely foreborne, the applicability of the publication to the party complaining, was completely established.  The publisher had not even attempted to controvert the meaning put upon the paragraphs in the affidavits on the other side; and, therefore, by such a course, the sense charged on them stood admitted.  The defendant, if he might be called so in this stage of the proceeding, was, in fact, a defaulter; inasmuch as a specific charge had been made and not denied, whilst the only defence attempted to be set up was what the ingenuity of the advocate could supply.  Mr. Wentworth then proceeded to read the alleged libellous matter, and continued.  In the present case, the complainant being a public officer, it was clearly competent in a public writer to advert to his public conduct, so long as no corrupt motive was imputed.  To go, however, one inch beyond the line of demarcation, he was bound to observe, rendered him liable to all the consequences of the proceeding which had been instituted against him.  He put it to the Court, then, whether such a mode of discussion as was adopted in the passages he had just read, was a fair and candid review of the conduct of a public officer?  Political infamy!  Why, he would ask, what was there in this less abhorrent than private infamy?  It evidently involved some glaring misconduct or other, some wanton breach of public duty, to charge a man with which, according to all authorities was libellous.  Mr. Wentworth was proceeding to shew that the publication actually imputed to Dr. Douglass the crime of having inflicted torture, of having in fact flogged or caused a man to be flogged to death, an offence for which, clearly, he might have been prosecuted, but for the bill of indemnity passed to protect him in common with other Magistrates of the Colony, when

The Chief Justice interposed, and observed, that the bill of indemnity alluded to was not in operation at present; that it was only passed for one year, in order to allow the passions which were at that particular time considerably excited, to subside.

In that case, continued Mr. Wentworth, the imputation was doubly criminal, inasmuch as it charged Dr. Douglass with a high misdemeanor in law, and for which he was liable to be prosecuted and suffer the punishment of fine and imprisonment.  The publication, then clearly contained libels of both the kinds which he had enumerated.  Their applicability to Dr. Douglass, independent to it being sworn to, stood confessed, inasmuch as it was not denied by any counter affidavits, and the Court, therefore, he submitted, could not do otherwise than make the rule absolute.

The Chief Justice. -  We are of opinion, under all the circumstances of the case, that this rule ought to be made absolute, in order that a Jury may decide whether the publication alleged to be libellous, is an honest, fair, and just discussion of the conduct and character of a public officer.

Rule made absolute.

 

Stephen and Dowling JJ, 7 July 1828

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

[p. 206]

[Where the Court had granted an information against a Defendant for a libel and before the information was actually filed the prosecutor had left the Colony, the Court allowed the authorized attorney of the Information Costs latter to enter into the recognizances required by 4 & 5. W. & M. C. 18 on his behalf upon proof that he had power to do so.]

Monday 7 July 1828

Rex v Howe

Mr Norton was heard at considerable length against the application for allowing the authorized Attorney of Dr Douglass, to enter into the recognizance (on his behalf required by 4. and 5. W & M. C.18. to prosecute the information against the Defendant[3 ]  Forbes CJ delivered it as his opinion that as the sole object of the recognizance required by the 4 and 5. W. and M. C. 18 to be entered into by the prosecutor of an information, was to secure the payment of the costs, in the event of a verdict of Not Guilty, the recognizance might be entered into on behalf of an absent prosecutor, by a person lawfully authorized for that purpose.  This was done in many cases in practice, and many cases might be put in which such a permission was not only allowable but necessary as where the personal disability of the party prevented him [p. 207] from entering into a recognizance  A wife and infant, libelled &c.

Stephen J  concurred

Dowling J.  I am clearly of opinion that this is a case in which the Court may now authorize the taking by its officer of the recognizance required by the 4. W.& M. C. 18. to be entered into by the prosecutor of an information; and that this recognizance may be entered into by the prosecutors lawful Attorney, for and on his behalf.  The sole object of the Statute 4. W. & M. C. 18 was to prevent the filing of vexatious and frivolous informations, and in order to effect that object, it imposes upon the prosecutor the necessity of entering into a recognizance to prosecute his information with effect and under him liable to pay the Defendant his costs, if it shall turn out that he has instituted the information from vexatious or malicious motives, and it gives the Judge authority to certify on the record whether there was reasonable cause for exhibiting the [p. 208] information or not, so as to deprive the Defendant of his costs, if it should appear that there was reasonable cause for filing it, though the party should be acquitted as this is the sole object of the statute   I see no objection to the party authorizing his lawful attorney to give the required security, and that there is no absolute necessity for the recognizance being entered into personally by the prosecutor.  Here it is sworn that the present prosecutor has authorized his lawful attorney to carry on this prosecution.  It may be true that the prosecutor has left the Colony, but I do not conceive that that is any objection.  Suppose he had entered into the recognizance before the Court directed the information to be filed   I apprehend that would have been sufficient to satisfy the requisites of the statute; and shall it be said that the mere omission to comply with this act of conditional form personally shall delay or defeat the justice [p. 209] which is sought at the hands of the Court?  I think it is sufficient that we have now before the Court, a person lawfully authorized to enter into the recognizance required by the Statute, we [sic] undertaking for and on behalf of the prosecutor to abide the order of the Court, and pay the Defendant his costs if it shall turn out hereafter that there was no reasonable cause for filing the information.  The presence of the prosecutor is not absolutely necessary at the time the information shall be tried, and that renders it the less necessary that the recognizance should be entered into by him personally.  Suppose it had been entered into by him before his departure from the Colony, there would have been no obligation on him to remain here to abide and observe such orders as the Court should direct, this application is made to the directory discretion of the Court in a matter which is purely ministerial, and in which the the [sic] Defendant cannot be prejudiced for until the recognizance is entered [p. 210] into by some body on behalf of the prosecutor, the information cannot be filed.  I see no substantial reason for refusing the application and therefore I think the recognizance may now be entered into in the manner proposed.

Ordered accordingly[4 ]

 

Dowling J., 29 October 1828

Source: Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462

[p. 49]

[A criminal information lies against the publisher of a Newspaper for publishing matter pending a trial, having a tendency to pervert the due Course of Justice  To support an Information the Court requires the like evidence as would be necessary to warrant a Grand Jury in finding a bill of indictment.]

Monday 29 October 1828

Rex v Howe

Coram Dowling J.

On Monday the 29th instant this case (which was an information for a libel) was appointed to be tried before Dowling J. and a Jury.  On the morning of that day he published a statement in the paper relative to his case.  The trial was further postponed until until [sic] Wednesday and now.

S. Stephen moved to postpone trial on the ground that the statement above alluded to, being a vindication of the Defendants own conduct, and a reflection on the prosecutors, was calculated to prejudice the trial, and therefore that the case ought not to proceed to trial tomorrow.  He further moved for a criminal information against the Defendant for such publication, and relied on the [p. 50] authority of Rex v Joliffe [4.T.R. 285][5 ] where a criminal information having been granted against the Defendant, he before the trial at, nisi prius, distributed hand bills in the Assize Town, vindicating his own conduct, and reflecting on the prosecutors.  This matter being disclosed to the Judge at nisi prius by an affidavit, was held a sufficient ground to put off the trial, and that affidavit being returned to this Court, they granted another information on it against the Defendant for such criminal conduct, considering the affidavit taken at nisi prius, as under the authority of this Court.

Ver Cur let this trial be postponed, and Let a rule nisi for an information go against the Defendant.

Rule nisi granted.

[p. 51]  Foster shewed cause against the rule nisi for a Criminal Information in this case for publishing matters tending to prevent [sic] the due course of Justice in a case in which the Defendant was prosecuted for a libel for a libel on Dr Douglass contending that this Court must require the same evidence in support of a CI as a grand Jury to authorize them in finding a bill of indictment, he urged that the affidavit in support of the information was defective in as much as it failed to set for the supposed libellous matter, or to annex there to the newspaper in which the alleged libel was contained.

The Court thought this a fatal objection

Discharged the Rule

Stephen  in support of the motion.[6 ]

Notes

[1 ] The Sydney Gazette published many articles about Douglass from May 1828 onwards, even after the initial hearing in this case.  It included extracts from a pamphlet by Rev. Marsden, raising torture allegations against some fellow magistrates.

On 24 May 1828, Governor Darling sent Marsden's pamphlet to Stanley in London, with a covering letter (Mitchell Library, A 1202, Reel CY 535, pp 815-830; Historical Records of Australia, Series 1, Vol. 14, pp 196-199).  The pamphlet concerned an inquiry into the conduct of Marsden; Forbes C.J. had been one of the people appointed to investigate the claims.  Darling told Stanley that during the inquiry Forbes had "prostituted his public Situation to answer Party purposes ".  The governor also claimed that Forbes had lied: "there can be but one opinion as to the Character and eligibility of the Man, for the high and important Station he unfortunately holds at this moment".  Darling went on to attack his other critics, Dr Douglass and Captain Robison.  (As to the latter, see footnote 2 below.)

By 16 February 1828 (Darling to Hay, Historical Records of Australia, Series 1, Vol. 13, p. 788), Darling was openly calling on the British government to dismiss Forbes (and was, in turn, under threat of impeachment over the Sudds and Thompson affair: p. 789).  In a later despatch to Hay (4 September 1828, Mitchell Library, A 1203, Reel CY 536, pp 122-123), Governor Darling also made clear that he hoped that Forbes would be dismissed.  Later again, in a despatch to Murray (8 November 1828, Mitchell Library, A 1203, Reel CY 536, pp 255-267;Historical Records of Australia, Series 1, Vol. 14, pp 435-443), the governor clearly sided with Marsden and his fellow magistrates rather than the Chief Justice.  The latter despatch enclosed other documents concerning the Marsden conflict as well.  Darling returned to the topic in a second despatch to Murray on 8 November 1828 (pp 323-345; and see Historical Records of Australia, Series 1, Vol. 14, pp 417-435) and another on 26 November 1828 (pp 769-775), in which he enclosed further correspondence on the Marsden pamphlet and the inquiry into the magistrates' conduct which had led to it.

Forbes' view was fully expressed in a letter to Huskisson dated 30 September 1828 (Historical Records of Australia, Series 1, Vol. 14, pp 418-431).  Forbes said that this all began when Marsden sent statements to England charging a fellow magistrate, Dr Douglass, with misconduct.  In 1825, Lord Bathurst ordered the then governor, Forbes C.J. and Archdeacon Scott to inquire into the complaints and report to the British government.  Marsden's pamphlet revived the issue after three years, and it included an inaccurate account of the facts, according to Forbes.  The Chief Justice said that his position prevented him from suing Marsden, so he sent his defence to the British government through Huskisson.  Marsden claimed that Douglass had ordered a convict to be flogged with the aim of extorting a confession from him.  Earlier, there had been similar charges against Marsden and other magistrates, and the Legislative Council passed an Act of indemnity to protect them.  Forbes said he had introduced the indemnity Bill, partly to prevent prosecutions of Douglass and his supporters.  There was evidence that the practice of illegal punishment had been conducted by the Parramatta magistrates from the time when their records commenced.  Marsden thought that the allegations against him were based on fabrications and forgeries of the records of the magistrates' court at Parramatta, which Forbes denied.  Forbes also said that the magistrates had had no jurisdiction to try convicts in a summary way before the passage of the New South Wales Act, (1823) 4 Geo. 4 c. 96.  Marsden had done that, without lawful excuse, and on this ground alone he needed the indemnity Act, like all others in the same position.

Forbes was more candid in a letter to his friend, Horton (28 December 1828, Catton Papers, Australian Joint Copying Project, Reel M791).  The inquiry came about, he said, from misrepresentations concocted by one or two personal enemies of Douglass.  Marsden waited until political conditions were ripe to renew his attack on Douglass, in the pretence of defending himself.  Forbes asked Horton to ensure publication of his own letter to the Secretary of State should Marsden's pamphlet be mentioned in parliament.  (See also Forbes to Darling, 18 August 1828, Chief Justice's Letter Book , Archives Office of New South Wales, 4/6651, p. 183.)

Forbes' view was supported by the House of Commons papers on the prosecution of Douglass, Macleod and Lawson for irregular sentences, which was published in the Sydney Gazette, 16 September 1826.  It inquired into the records of all the magistrates' courts, and found, for example, that Marsden had sentenced Richard Parsons to receive 25 lashes every Saturday, and to do government work until the remainder of some allegedly stolen property was returned.  Hannibal McArthur made a similar sentence against Bridget Rook, who was to be chained to Margaret Murphy until a stolen gown was returned.

For Marsden's views, see Mitchell Library, Marsden Papers, A 1998, Vol. 7, especially pp 123-126, 153-154 on Forbes; Marsden to Coates, 24 April 1829, Bonwick Transcripts, Vol. 6, pp 1839-1841.  See also Historical Records of Australia, Series 1, Vol. 14, pp 145-153; 194-195; 234-236; 499-501.  On illegal punishments, see also M'Arthur v. Hill and Hall, 1826; R. v. Howe, 1826; R. v. Dawson, 1827.  On earlier reports of the Marsden conflict, seeHistorical Records of Australia, Series 1, Vol. 11, pp 462, 541, 558, 597, 717f, 849, 910, 950; Historical Records of Australia, Series 4, Vol. 1, pp 556f; Sydney Gazette, 14 July 1825, and 18 Aug 1825; C.H. Currey, Sir Francis Forbes: the First Chief Justice of New South Wales, Angus and Robertson, Sydney, 1968, chs 14, 15.

 On other aspects of the conflict between the Chief Justice and the governor in 1828, see Convict Assignment Opinion, 1827; Ex parte Raine (No. 1), 1828; R. v. Mackaness, 1828; and on its resolution, the Newspaper Acts Opinion, 1827.  On many occasions, Darling said that Forbes wished to rule the colony (e.g. Historical Records of Australia, Series 1, Vol. 14, p. 195, when writing to Huskisson about the Marsden affair, 23 May 1828).  See C.H. Currey,Sir Francis Forbes: the First Chief Justice of New South Wales, Angus and Robertson, Sydney, 1968, pp 327f.

[2 ] The dispute between the judges and Governor Darling also drew in the court martial of Captain Robison (as to which, see Australian, 17 September 1828; the Sydney Gazettedeclined reporting the case, thinking it improper to do so: 17 September 1828, and see 19 and 26 September 1828).  Robison, the son in law of  Stephen J., made charges against General Darling, who caused him to be court martialled.  He embarrassed Governor Darling as early as November 1827: see Darling to Hay, 3 November 1827, Historical Records of Australia, Series 1, Vol. 13, p. 591-592.

Darling wrote about the Robison case to Huskisson of the British government on 3 April 1828 (A 1202, Reel CY 535, pp 547-550, 591-594; and see A 743; Historical Records of Australia, Series 1, Vol. 14, pp 105-112).  He was particularly upset that Forbes C.J. had allegedly helped Robison draft the charges against the governor.  Enclosed with this letter was one from Forbes to Darling, denying prior knowledge of, or involvement in the charges, which explanation the governor appeared to accept in his reply, though he later indicated otherwise to Huskisson.  At pp 110-112, Historical Records of Australia, Series 1, Vol. 14 contains a statement of the charges preferred by Robison against the governor, so far as Governor Darling understood them, and Darling's reply to them.  They included charges of breaching the proclamation which raised the Veteran Companies, breach of the articles of war and conniving in forgery, and tyrannical or shameful treatment of Robison.  The Veteran Companies were raised in 1825 as superintendents and overseers of convicts, in addition to their military duties.  Robison was a commander of a detachment at Newcastle.

Murray replied to Darling on behalf of the British government on 22 September 1828, chastising the governor for having assured Forbes C.J. that he had accepted his explanation, while the governor continued to complain of the Chief Justice's supposedly deliberate lies in the matter:Historical Records of Australia, Series 1, Vol. 14, pp 397-398.  In one of two despatches to Murray on 26 November 1828, Darling seemed to indicate that the fact of Robison's marriage to a judge's daughter was one thing which made him a dangerous character; he also pointed out that his brother had opposed the government of India.  In the second despatch, Darling told General Hill of the insolence and turbulence of Robison, who was connected with the opposition newspapers.  Darling prohibited Robison's return to England: Historical Records of Australia, Series 1, Vol. 14, pp 482-495.  See also Robison to Forbes, 14 May 1830, Mitchell Library, A 743; C.H. Currey, Sir Francis Forbes: the First Chief Justice of New South Wales, Angus and Robertson, Sydney, 1968, pp 329f; Historical Records of Australia, Series 1, Vol. 15, pp 198f.

[3 ] Howe argued that Douglass, the prosecutor, was required to appear personally against him:Sydney Gazette, 11 July 1828.  Its comments on this case led the Gazette's editor, Robert Howe, to be charged with contempt of court: see Ex parte Howe, 1828.  That did not stop its stream of editorials about the libel prosecution; see for example, its issues of 1, 11 and 15 August 1828, the article of the 11th going over the conflict concerning Marsden and Douglass in 1825.  Howe's obsessive quality often led him into trouble, as the report of ex parte Howeshows: in October 1828, he was again accused of contempt over his prolific campaigning against the prosecution for libel.  He came into conflict with Dr Douglass' counsel, Mr Sydney Stephen, and when Stephen wrote to him, that too was published in the Gazette, with a lengthy reply: see issue of 28 November 1828.

The Sydney Gazette, 1 August 1828, said that in the same period, Howe was threatened with a civil action for libel, taken by Dr Wardell, the barrister and editor of the Australian until November 1828 (see Australian, 17 March 1830, p. 3 on the sale of the Australian).

[4 ] Later, Douglass sued Howe for civil libel, and was awarded £50 in damages: Australian, 17 September 1828; Sydney Gazette, 15 September 1828.  The Gazette provided a very long account of the case, and another of its very many comments.  In yet another comment, 14 November 1828, the Sydney Gazette provided a list of costs in the civil action, totalling £76 15s. 4d. for the recovery of £50.

[5 ] This is a marginal note in the manuscript.

[6 ] Ultimately Howe was found guilty of criminal libel, rather than interference with the course of justice.  The Australian gave a short account of the trial on 25 December 1828, and theSydney Gazette a much longer one on 30 December 1828.  Most of the Gazette's account consisted of Howe's own statement to the court, repeating arguments which had dominated his newspaper's columns ever since the litigation began.

See also Ex parte Howe, 1828.

Published by the Division of Law, Macquarie University