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

R. v. Hall (No. 3) [1829] NSWSupC 51

criminal libel - criminal informations - press freedom - Jane New's Case

 

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 29 August and 5 September 1829

Source: Australian, 9 September 1829

On the previous Saturday Dr. Wardell had moved the Court for a rule nisi against Mr. E. S. Hall, as Editor and Publisher of the Sydney Monitor, for an alleged libel on Mr. F. A. Hely, Superintendent of Convicts, contained in a paragraph published in that Journal on the 9th March last, and for which a criminal information was to be laid against the publisher thereof.  The Court granted a rule nisi, returnable to day.[1 ]

Mr. Solicitor General Sampson next moved for a rule also against Mr. E. S. Hall, on behalf of Mr. Alexander McLeay, Colonial Secretary, for the following portion of a law report contained in the Sydney Monitor of the 4th July last:--[2 ]

"We understand that Mr. John Stephen, jun. in appearing before the Executive Council on a summons addressed to him, before his dismissal from the Magistracy and suspension from office, accused Mr. McLeay with having placed on the files of the Supreme Court, a false document, purporting to be a letter from Mr. Burnett, Colonial Secretary of Van Diemen's Land, relating to the famous case of Jane New.[3 ]  Three days after this charge was made by Mr. Stephen, Mr. McLeay endeavoured to re-possess himself of this document; but failing in the attempt, the Solicitor General openly applied last Saturday for it, informing the Court that it had by mistake been annexed to an affidavit in lieu of a certified copy, and that Mr. McLeay wished now to substitute a certified copy for the original, it being `highly essential' (to use the words of the learned crown officer) that the said original should be placed `among the archives of the Colonial Secretary.'  This motion was resisted on the part of Mr. Stephen by Mr. Wentworth, who, upon the affidavit of Mr. Stephen, stated what had occurred before the Council, and that the affidavit averred the deponent's belief, that the motion of the Solicitor General had been made with a view to shield Mr. McLeay from the legal responsibility of having put a document on the files of the Court, as a genuine one, which was not genuine."

Rule nisi granted, returnable as above stated.

Dr. Wardell again rose on behalf of Mr. Deputy Commissary General Laidley, to move for two fresh rules, on which to ground two other criminal informations, also against Mr. Hall, for certain paragraphs contained in the Sydney Monitor of 6th and 20th June last, respectively.

Rules Nisi were granted by the Judges, returnable as above.

At this third and fourth motion, the stare which had marked the countenances of a tolerably crowded auditory, became converted into an audible, and almost unanimous bust of laughter.

It was expected this day arguments would have been heard against making the Rules absolute.  They however stand deferred to Saturday next.

 

Forbes C.J., Stephen and Dowling JJ, 3 October 1829

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

[p. 246] [On motion for a criminal information for a libel, where there was prima face proof that the publication was libellous the Court thought it imperative on them to grant the rule under the 9 G 4. C. 83. s. 12. although there were demerits on the part of the applicant.][4 ]

Saturday 3rd October 1829

In Banco

Exparte F A Hely Esqr In re E S Hall

On the first day of last term the Court granted a rule nisi for a Criminal Information for a libel published in the Sydney Monitor of the 9th March last concerning F.A. Hely Esqr Superintendent of Convicts imputing to him cruelty towards a prisoner named Dennis McHue.

Mr Wentworth shewed cause and contended 1st that the application being to late 2nd that the application acknowledged an unlawful confinement of the prisoner McHue for 4 days in a cell, and 3rd that He had next day sent a very offensive and irritating letter to Mr Hall, the next day, the Court ought not to make the rule absolute.

Forbes CJ & Stephen J thought it a case in which the Court ought not to interfere [p. 247] and yielded to the application only because there was no other tribunal to which the applicant could resort and there being a prima facie breach of the law made out, the Court had no alternative

Dowling J. if there had been any other tribunal in this Colony to which this matter might have been referred, I should have thought perhaps that the points urged on the part of Mr Hall by his learned counsel would have been sufficient to induce the Court to forbear this interposition of the extraordinary remedy by criminal information.  I allude particularly to the lateness of the application and to the admissions contained in the affidavit of the relator.  The letter alleged to have been written by the relator to the author of the alleged libel, would also have operated on my mind, in thinking that the Court ought to abstain from granting this unusual remedy  Adverting however to the very peculiar jurisdiction devised by the wisdom of Parliament in the administration of justice in this Colony [p. 248] conceive that this court has no alternative and that it is imperative on us to interpose the arm of the law where there is sufficient prima facie case made out, of an offence committed, tending to a violation of the public peace; for in this light and in this light only the law regards a libellous publication, I forbear giving any opinion as to the character of the publication in question the motives of the author or of the Meritorious cause which the relator may have for applying to this Court it is sufficient to say that that [sic] the matter alleged in the supposed libel is such, as is fit to be submitted to the consideration of a Jury viewing the case in this light and bound as this Court is to keep in view the preservation of the public peace, I think we are left without alternative for the reason already suggested, and must therefore make this rule absolute.

Stephen J., 22 December 1829

Australian, 25 December 1829

Mr. Justice Stephen was the sitting Judge to-day -- when the following Commission was sworn, viz. --

Captain Hunt, 57th (foreman), Captain Wellman, 57th, Lieutenant Mitchel, h.p., Lieutenant Uvings, Lieutenant Crozier, Ensign Burrows, h.p., and Ensign Dunbar.

Rex at the prosecution of Hely v. Hall. -- This was a criminal information filed on the part of the prosecutor, who fills the office of Principal Superintendent of Convicts, against the defendant as Editor, Publisher, &c. of The Sydney Monitor, for a false, scandalous, and malicious libel contained in Number 191 of that publication, and which went to vilify the said defendant in his office.  The libellous expressions were laid in the information as follows:--

``Dennis McCue, a poor old Irishman," &c.

Before reading the information, defendant put in his challenge to the array of the panel, upon grounds similar to those argued on the previous day.[5 ]

Doctor Wardell objected to the challenge, and

Mr. Justice Stephen said that point having been settled before, the trial should be proceeded with.  Defendant then said he held in his hand a Report of Cases under 9 Geo. IV. --- out of which he would quote one in point.  It was the case of Fuller v. Bradley, wherein it was held by Lord Tenterden, that the defendant might have proved the truth of the libel.  From his experience of libel cases in New South Wales, defendant said this had not been the practice; for in the cases of Crotty v. Hall, and Scott v. Hall, it had been laid down by Mr. Justice Dowling, that proof could not be allowed of the truth.  Now he wished to know would the Court adopt the new or the old doctrine; if the former, he hoped the Counsel on the other side would give him a day to collect his witnesses, when he would make a defence to the information; if the latter, he would not make any defence.  Dr. Wardell replied he would be very glad were such proof admissible.  Mr. Justice Stephen declined following the precedent implied in the case quoted by the defendant, as it was not one of those established cases which the Court could abide by.  The information being then read over by the Clerk,

Doctor Wardell addressed the Court upon the four counts which it contained.  The prosecution, he said, came before the Court with a character the most unimpeachable; into proof of which, by (the learned Counsel) felt sorry that defendant was not allowed to go, as the prosecutor would not have objected to such a mode of justification; - for one who could commit acts such as those charged in the libel, ought to have no protection for them.  It would be for the Officers in the Jury-box to say whether such writings were justifiable or not.  Was it a fair statement, he would ask, or should have been published, admitting it were true!  Here was an individual represented as suffering the extremity of torture at the hands of one who could passively look on without a feeling of compunction, enjoying himself in the lap of ease and luxury, while his victim was perishing in a dungeon.  Should not tyranny such as this, he would ask, subject the offender himself to punishment!  Yet when he could prove the matter not to have been correctly stated, could the Officers in the Jury-box say the prosecutor was to be without protection!  He would not trespass longer upon the time of the Court, but proceed to call witnesses.

Mr. G. W. Newcombe stated that he held in his hand an affidavit which had been sworn to by the defendant, agreeably to a certain Act in Council, and that the signature to the jurat was in the writing of Alexander McLeay, the Colonial Secretary, and the signature of Mr. Hall was attached to the autograph copy of the number of The Sydney Monitor which contained the matter charged as libellous.

Mr. Weston stated that McCue was known to him, and that the man came to Hyde Park Barracks from the Hulk.

This was the case for the prosecution.

Mr. Keith raised an objection as to the proof of publication under the Act in Council, as no evidence had been adduced that the affidavit produced in Court had been sworn before the Colonial Secretary; neither had it been shewn that Alexander McLeay was Colonial Secretary at the time of the affidavit in question being sworn.

The learned Judge considering the objections taken of no validity,

The defendant addressed the Court in person, in a very ingenious and animated speech, of full half an hour in length, insisting that what he had published was not with any malicious feeling towards the prosecutor, but solely to benefit McCue, whom he conceived to be oppressed --- that nothing could prove this more fully than the fact of his having, in a publication or two after the one in question, publicly explained the mistake into which erroneous information had led him --- and that neither the motives of a writer in such case, nor the effects of his writing, ought to be overlooked.  His motives in this case were the best possible; and he submitted to the Court whether the writing charged as libellous had or had not exceeded the bounds due to a public writer?

In summing up, the learned Judge observed, that there were two questions for the consideration of the seven Officers in the Jury-box.  The first was, whether the defendant was the publisher of the paragraph in question? the second, whether its nature and tendency could be said to be borne out by the information?

The Commission retiring for about ten minutes, brought in a verdict of -- Guilty.

The defendant walked back again to gaol, intending to re-appear to another information or two next day,

WEDNESDAY.

But without proceeding to business, the Court adjourned to

THURSDAY.

When a brace of them, the defendant expected, would be despatched, so as to finish the week's work.  For the result of this day's proceedings, we refer the reader to our inner page.[6 ]

 

Notes

[1 ] See also Sydney Gazette, 3 September 1829.  For commentary, see Australian, 9 and 18 September 1829; Sydney Gazette, 10 September 1829. See also the other cases called R. v. Hall in 1829, and R. v. Hall (No. 2), 1828.

[2 ] McLeay apparently decided to proceed civilly, rather than by criminal prosecution: Sydney Gazette, 15 September 1829.

[3 ] On this allegation, see In re Jane New, 1829, and R. v. Hall (No. 8), 1829.

[4 ] The Australian, 9 October 1829, reported this hearing as follows:

"Dr. Wardell then moved, that the rule nisi obtained by him on a former occasion on behalf of Mr. F. A. Hely, Superintendent of convicts, for a criminal information against Mr. E. S. Hall, Editor, Proprietor, &c. of the Sydney Monitor, for a libel contained that paper of the 9th March, be made absolute.

"Mr. Wentworth rose on the other side.  The learned gentlemen contended that the party applying for this rule should have come earlier into Court; that he should not have remained sleeping over any imputed libel which he conceived to be in his disfavor, till the eleventh hour; that a man who was callous enough to allow this libel, as it was styled, to hang over unvindicated for so many months, was not a fit person to have granted the extraordinary proceedings now prayed for; that a person, who by his affidavit owned that he presided over dungeons, not allowed by law, was not a fit person to have a criminal information granted, that it was incumbent on a party praying for such an information, to come into Court with clean hands, that a short time after the publication of the alleged libel, Mr. Hall received a letter from Mr. Hely, and that if Mr. Hall had not been a man of peace, there was no doubt but that letter would have caused him to seek reparation by arms; that Mr. Hall, on the receipt of the explanation, did every thing expected from an Editor; that he inserted a letter in his paper, apologizing for his mistake in stating that Dennis McHue had been kept in a cell six weeks, whereas it was only four days; that Mr. Hely must have considered this as satisfactory, or he would not have allowed the stain to have remained so long on his character; that in the letter he calls Mr. Hall, by bad names, and then talks of coming into Court for a criminal information, and that as Mr. Hely confessed to part of the imputed libel, and Mr. Hall had apologised most amply for what mistakes he had incurred, and as Mr. Heley's letter went to reflect in a libellous way on Mr. Hall, he, Mr. W. Hoped the Court would dismiss the rule in toto.

"Dr. Wardell in reply contended that his client was in sufficient time to obtain this rule - that Mr. Hall could not blame Mr. Hely for bringing his action in this way as he (Mr. H.) would not give up his author, when required; that the cells on which so much stress had been laid were denied in the affidavit of Mr. Hely and of Mr. Weston, Supt. Of Hyde Park Barracks, to suit the description stated by Mr. Hall, and consequently that his client came into Court with clean hands.  Upon these grounds Dr. Wardell confidently trusted the rule would be made absolute.

"Mr. Chief Justice Forbes, after a short consultation with his two learned colleagues, said they were of opinion the rule nisi in this case should be made absolute.  Peculiarly constituted as was that Court, they had no discretionary power left, but had there been any other Court to which the application might have been properly referred, himself and colleagues would have felt it incumbent upon them to refuse the rule.  Rule made absolute."

See also Sydney Gazette, 6 October 1829; Australian, 9 October 1829.

[5 ] See R. v. Hall (No. 6), 1829.

[6 ] The reference here is to some of the other prosecutions of Hall in 1829.

Published by the Division of Law, Macquarie University