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

R. v. McLeay [1828] NSWSupC 94

Colonial Secretary, action against, libel

Supreme Court of New South Wales

Forbes C.J. and Stephen J., 1 November 1828

Source: Australian, 4 November 1828

Criminal Information,

Mr. E.S. Hall then rose to move for a criminal information against the Hon. Alexander McLeay, Colonial Secretary.[1 ]  He said he held in his hand an affidavit, which he had sworn to in open Court, and upon which he founded his application; but, perhaps, as the affidavit might not be considered sufficiently explanatory, he would introduce the subject, with a few brief remarks.  In consequence of a notification which appeared in the Government Gazette, inviting all persons to apply to the Colonial Secretary to rent land, he, as a free subject, sent in a written application to Mr. McLeay, to rent a certain portion of land.  Next day, or day after, he (Mr. H.) received from Mr. McLeay an answer, informing him that no land whatever could be let to him.  In reply to that letter (Mr. H.) wrote another, requesting of Mr. McLeay to state the reason why he was excluded from a privilege open to all other persons; and intimating that his desire, in obtaining this piece of information, was, in order that the same might be transmited to England for the consideration of the Secretary for the Colonies.  To this reply of his, (Mr. H.), yesterday (Friday) morning, received an answer from Mr. McLeay; and it was that letter which he considered calculated to injure his reputation, both in a public and private point of view, and upon which he now appealed to the Court.  One sentence of the letter ran thus  "In reply, I have to inform you that, were his Excellency bound to answer your letter, assigning reasons for refusing to let you land, it would be sufficient to state you are Editor of The Monitor Newspaper, the columns of which bear testimony that they destroy the peace and tranquillity of the Colony, and demoralize the community, by reflecting upon the Clergy of the Established Church  without at all referring to your late conviction for libel upon the Venerable the Archdeacon."

[Mr. H. here put in an affidavit, denying, in general terms, the truth of the statements contained in the letter.]

He then continued  Now a person, after receiving a letter of this kind, from a person like Mr. McLeay, to feel nothing, must be a man either without principle, or conscious of his own guilt. He was, sure the Court would mete him out justice, and protect him from the arm of tyrannical power.  Therefore prayed the Court to grant him a rule, calling upon the Hon. Alexander McLeay to shew why a criminal information should not be against him, upon the letter before the Court. 

The Chief Justice  This is an application for a criminal information.  The affidavit which has been put in, is not in a regular form.  However, dismissing, this, the Court considers the affidavit which states the case, is not sufficiently clear.  There appears nothing on the face of the affidavit by which a Grand could find a bill, and consequently not one which this Court will feel warranted in granting criminal information.  Application refused.

Notes

[1 ] This was also reported by the Sydney Gazette, 3 November 1828; and see comment on 12 November 1828.  See also Ex parte Wardell and Wentworth, December 1827.

Published by the Division of Law, Macquarie University