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

R. v. Hall (No. 2) [1829] NSWSupC 23

seditious libel - legislative powers of Legislative Council - press freedom - jury, military - jury, challenge to jury - sentencing discretion - damages, contemptuous

 

Supreme Court of New South Wales

Forbes C.J., 9 April 1829

Source: Australian, 15 April 1829

Rex v. Hall.  This was an ex-officio information filed by the Attorney-General against the defendant, for a seditious libel contained in the Sydney Monitor of Nov. 23, 1828.  The Clerk of the Court having read the information,[1 ]

Mr. Attorney-Gen. proceeded to address the Jury.  He stated, that in the discharge of his public duty he filed the present information, and hoped he would bring it before them with that calmness and solemnity befitting a Court of Justice.  The peculiar situation of this Colony rendered the subject of Juries one of a delicate nature, inasmuch, as the tranquillity of the Colony depended much upon the opinion the community entertained of the purity and impartiality of their intentions.  No man thought more highly and inestimably of the advantages of the Liberty of the Press than himself; he wished to see it flourish as vigorously here as in the Mother Country; but it was his duty to watch its progress, and prevent its diffusing any noxious weeds.  It afforded matter of regret, the Learned Gentleman continued, that the defendant should not be taught by experience, and would continue to bring himself under the animadversion of the laws.  He intreated the Jury not to consider themselves as having any personal concern in the present case, but to discard from their minds every such feeling, and to approach the question with unbiassed judgments.  The Attorney General then proceeded to quote at some considerable length, several precedents and authorities from the Law Books, when he concluded his Address, by calling the following witnesses: Wm. Cameron, only arrived in the Colony a few days; Wm. Ross, a gentleman who lately received a grant of land, and of short standing in the country; Mr. J. S. Harrison, a merchant, who never read the publication in question, until it was put into his hands in the witness box, and Mr. Mitchell, another merchant.  The witnesses conceived that the alleged publication was calculated to impute improper motives to the Governor in the selection of Juries, and likely to bring his Excellency into hatred and contempt.  On their cross examination they admitted their ignorance of the law regulating the appointment of Jurors in this Colony, or that the Governor had the power of nomination.  Mr. Mitchell, in particular, stated, that on hearing the clause read, he could not put an offensive interpretation on the word select, for if the Governor had the power to nominate, he could select.  This was the case for the prosecution.

Dr. Wardell here took an objection as to the evidence given to prove publication being under the provisions of a certain Act of the Governor in Council, passed to regulate the printing and publishing of Newspapers in this Colony, but which Act, the learned Gentleman contended, had at the present time no legal existence.  It had been passed under and by virtue of the powers given to the Governor by an Act of Parliament 4 Geo. IV. c. 96. which had expired, and the Court was aware, that when an Act of Parliament, which upheld another Act had expired, the Act so upheld had also expired.  A case in point was here cited.[2 ]

Mr. Foster replied at some length, and the Chief Justice finally overruled the objection.

Dr. Wardell then rose and addressed the Jury.  He commenced by adverting to the formidable array of talent on the part of the prosecution, and stated, that it forcibly reminded him of olden times, when he himself was similarly situated.  The case had been brought with mighty haste, as if it were a libel of that aggravated character, which it would be dangerous to the public to allow to stand over for a few weeks.

The case, indeed, was so aggravated, that the Attorney-General never even thought of it till he began to find it necessary to shew the world how mildly the Authorities were treated by public writers at present, how dispassionately and calmly their acts were discussed, and for which purpose he searched the annals of Colonial newspapers, to see the worst thing he could find, and he was proud to say, this very act of the Attorney-General, and his colleagues, was one which must prove a source of unalloyed triumph to the Colonial newspaper press; shewing, as it did, how mildly the Editors wrote on public topics, and discussed the actions of the Constituted Authorities.  He would aver that such an article as the one under prosecution, was never laid hold of by any law officer before.  The Attorney-General had admitted, in his opening address, that it was very diluted, but he had no doubt the Jury would now find that it was completely washed away by the stream of his own evidence.  The Attorney-General had stated that he was a friend to the freedom of the Press.  Whether the assertion was jesuitical or not, he was not prepared to say; but coupling that assertion with the fact of his having brought such a publication as the one then under prosecution before the Court, he could view it in no other light than one of those subterfuges to which persons who are the real enemies of free discussion invariably have recourse when they aim a blow at the liberty of the Press.  It had also been stated, that if the administration of the law was not carried into effect in a temperate and firm manner, some other means would be resorted to for the purpose of checking the growth of libellous publications; or, in other words, if the Jury, by verdicts of guilty did not annihilate the Press in one way, the Attorney-General would find means to do it in another.  The Attorney-General's mode, if he could obtain verdicts of guilty, was certainly a sure mode whereby to extinguish the newspapers of the Colony, and thereby leave it at the exclusive mercy of those persons with whom the Colony, in the estimation of some persons, may be blessed, but with whom, in the opinion of others, it was any thing but blessed.  The Jury had been told that what would be libel here, might not be libel in England, but he would tell them that every one here was equally entitled to the benefits of the British law with their fellow subjects in England, and they must bring in their verdict upon the same principles; for he would tell them, that a verdict under the assumption that the Colony would not bear free discussion, would be the most unjust verdict they could return.

We regret our inability to follow the learned Gentleman through the remainder of his luminous reply.  The Chief Justice having minutely summed up the evidence for the prosecution, the defendant called no witnesses, but put the case to the Jury, who retired.

After some time the Foreman returned into Court, saying the jurors could not agree in their verdict.  He was directed to return into the Jury-room; and it subsequently was proposed by the learned Judge that the Court should be adjourned; and the Jury left to come to a conclusion.  This being intimated to the Jury, a message was received that it was likely the Jury would shortly agree.  After this, the Jury returned into Court, finding the defendant guilty.[3 ]

 

Notes

[1 ]On this trial, see Australian, 10 April 1829; Sydney Gazette, 11 April 1829.   It was reported fully by the Sydney Gazette, 14 April 1829.  Hall complained about the inaccuracy of the latter report: see Sydney Gazette, 30 April 1829; and see Sydney Gazette, 7 May 1829.

Libel actions were very common in Sydney, as the Sydney Gazette pointed out on 12 March 1829.  It was commenting on an action taken by a missionary (Elder) against the famous Presbyterian, Dr. Lang.  Lang had published a pamphlet accusing the plaintiff of being a renegade missionary.  The plaintiff was awarded one farthing in damages, the smallest coin in circulation: trial report, 14 March 1829.

Hall was again prosecuted for libel on 15 April 1827.  He was found guilty by a military jury, after successfully challenging three of the jurors.  He did not stay to defend the case, however.  See Australian, 17 April 1829; Sydney Gazette, 18 April 1829.  See also the other cases called R. v. Hall in 1829, and R. v. Hall (No. 2), 1828.

On the many prosecutions of Hall in 1829, plus those of Hayes, the editor of the Australian, see B. Edgeworth, "Defamation Law and the Emergence of a Critical Press in Colonial New South Wales (1824-1831)"  (1990) 6 Australian Journal of Law and Society 50; C.H. Currey, Sir Francis Forbes: the First Chief Justice of New South Wales, Angus and Robertson, Sydney, 1968, ch. 35.  Ironically, the Monitor, Hall's paper, proudly stated on 3 September 1827 that it had only once been prosecuted for libel.  By the end of 1829, Hall was in prison and had been peppered by libel prosecutions.

[2 ] The Sydney Gazette, 14 April 1829, gave more detail here, but did not give the name of the case.  It concerned the British conquest of Canada (Quebec), after which a constitution was created.  When it was repealed and another put in its place, the Privy Council accepted that laws passed under the former constitution were invalid.  Wardell's authority was merely that "he had it from a gentleman who was in Canada at the time".  Chief Justice Forbes ruled that he would not have considered such a proposition had it not been intimated from the bar that the Privy Council had upheld it.  "In the absence, however, of any such authority, he could not bring himself to think that the objection was tenable, and therefore directed that the defendant would proceed with his case."

[3 ] For the libel on Governor Darling, Hall was sentenced to 12 month imprisonment in the gaol, and for that on Captain Crotty, a further 3 months: see Australian, 23 June 1829, and see R. v. Hall (No. 4), 1829.  Like Hayes, the editor of the Australian, Hall continued to edit and publish the Monitor while he was in prison in the second half of 1829: see R.B. Walker, The Newspaper Press in New South Wales, 1803-1920, Sydney University Press, Sydney, 1976, pp 15-16.

Published by the Division of Law, Macquarie University