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

R. v. Hall (No. 4) [1829] NSWSupC 35

criminal libel - jury, challenge to - jury, military, reform of - Macarthur, John, attitude to trial by jury - press freedom - sentencing discretion

 

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, June 1829

Source: Australian, 12 June 1829

MOTION FOR JUDGMENT.

CASE OF LIBEL.

The King at the prosecution of - - Crotty, Captain in his Majesty's 39th regiment of foot v. E. S. Hall --- in our last we omitted this case, but promised to report it in our next.[1 ]  We shall accordingly present our readers with a brief summary of what took place, subsequently to the determination expressed by the Judges to take time to consider upon the points of law and of fact, raised in arrest of judgment by Mr. Wentworth, the learned Counsel for the Editor of The Australian.  About four p. m. the Court having been occupied previously from ten a.m., on the case already alluded to,

Mr. Attorney-General rose, to move for judgment upon E. S. Hall, Editor and soforth of the Sydney Monitor, on a conviction for libel against Captain Crotty, of the 39th regiment.

Mr. Hall rose on the other side.  With the permission of the Court he, Mr. H. would in the first place read aloud an affidavit, setting forth his reasons for moving an arrest of judgment, and if overruled in that particular, in mitigation of punishment; premising, that as it had been prepared by himself the affidavit might consequently be somewhat wanting in form, he hoped the Court would not consider any trifling informality.

Mr. H. then read aloud his affidavit, which rested principally upon the fact of the Jury being officers in the same service with the prosecutor, they being also nominated by the Governor, who had been his prosecutor in another ex officio proceeding, that military officers were accustomed to regard implicitly the commands of a superior officer, were placed under his controul, and within his influence, receiving besides cash a bonus of 15s. a day as Jurymen, which it was in the power of the Governor to give, or to withhold.[2 ]  He did not desire to cast the slightest imputation upon the Jurymen in these libel cases, as he was convinced they had acted conscientiously, and in their circumstances could not with prudence have returned any other verdict; but that was not the only ground of argument.  It was, that in law and equity "no man could be a Judge in his own cause," which he who nominated a Jury, every individual under his own orders, and objects of his patronage, would certainly be, if a party to the suit, as was the case then before the Court.  Two persons, or three, and two or three only in the Colony could be so unfortunately situated, and these were the Editors of the Independent Journals.  For the cases of few or no other persons in the Colony could be brought to assimilate to their's.

Mr. Solicitor General rose, in opposition to the arguments just adduced, and after animadverting upon the general writings of the defendant in a very pointed and pungent manner, concluded by calling upon the Court for judgment.

Mr. Hall read another affidavit, setting forth that he did not entertain the slightest animosity or ill feeling towards Captain Crotty, nor had he ever, and that at the time of publishing what was now the subject of conviction for libel, he believed the statements made to him perfectly true, in corroboration of which he held one of the identical manuscripts mentioned in the Sydney Monitor, being the composition and writing of the prosecutor in this action, but this the Court would not allow, nor would the Court admit a counter purgation affidavit from the prosecutor at this stage of the business, denying the truth of all that had been stated in the Sydney Monitor.

It was six o'clock when the arguments in this case concluded, upon which the three learned Judges reserved their decision till the Saturday following (to morrow) when it is probable they will arrive at a determination upon this, as well as the case of alleged SEDITIOUS (!) libel.[3 ]

 

Forbes C.J., Stephen and Dowling JJ, 20 June 1829

Source: Australian, 23 June 1829

Mr. Chief Justice Forbes next pronounced judgment upon the defendant in the case Rex at the prosecution of Lieutenant General Darling v. E. S. Hall,[4 ] commenting upon the licentiousness of the whole Press of Australia in severe terms, and sentencing the defendant to 12 months imprisonment in the gaol for this, and 3 months on another conviction, at the suit of -- Crotty, Captain in the 39th regiment.  Since that time both defendants have been in prison.  We will not trust ourself further.

 

Notes

[1 ] This was one of several prosecutions of Hall for libel in 1829. See also the other cases called R. v. Hall in 1829, and R. v. Hall (No. 2), 1828.

[2 ] In response to a request from the governor and the Secretary of State, Forbes C.J. stated his views about this question in 1830 (Forbes C.J. to Governor Darling, 13 September 1830, Chief Justices' Letter Book, 1824-1835, Archives Office of New South Wales, 4/6651, p. 263):

"First - After an experience of many years, during which I have tried a great number of criminal cases, with the assistance of Officers of His Majesty's Forces I can truly affirm, that their verdicts have been always considerate and just; and tempered perhaps, with a greater degree of clemency, than would have been shewn by a Jury, composed of the civil inhabitants of the Colony. The propriety of the verdicts of the Military Juries, has never been questions, to my knowledge, in any cases of felony, or ordinary misdemeanour. But I apprehend that mere correctness in finding their verdict, form but one and that not the primary virtue of trial by jury, -- The essence of this mode of trial, consists in its entire exemption from all supposable means of influence and in the consent of public opinion - To secure these objects, the Jury lists are made up of the whole of the middling classes of the community; the Jurors are returned from the County, where the act is laid: the panel, in every cause, is formed by ballot, and is open to challenge, for the smallest degree of presumable bias, either in the Jurors themselves, or in the Officer who returns them - A Jury composed of Officers of the Army or Navy, wants these essential qualities of a common Jury - they are a small body in the State; they are governed by a  code of laws, peculiar to themselves; they have not that community of interest and feelings with the accused, that reciprocity of rights and obligations in the society to which they belong, which is essential to the notion of peers or equals, as they are understood in  a legal sense, and which givens such peculiar force to the verdict of the Country, as the finding [p. 264] of a jury is emphatically called.  They are nominated also by their commanding Officer, who is at the same time the head of the civil government, and they are not liable to be objected to, except upon the ground of direct interest in the event of the trial.  From these causes, as well as from a  strong national prepossession in favour of trial by Jury, I have found that the better order of inhabitants have shewn as much repugnancy to be tried by a Jury of Officers, for a Civil Offence, as Gentlemen of the Army would probably evince at being tried, upon a military charge by a Jury of civilians,

"Another consequence of the present system, is the want of that necessary support to the Judge, which is afforded by the operation of Juries, according to the law in England.  The functions of the Judge and the Jury are well understood, and accurately distinguished by the public: and the Judge is shielded from the reproach of disappointed parties. The law is written, and cannot be misrepresented by the Judge the facts are found by the Jury, and the opinion of society foes along with their finding; and improper motives are never imputed to the Judge or to the Jury - As a practical question, arising out of the peculiar state of society here, I have formed an opinion after much experience, that there are sufficient materials for forming Juries in this colony: that the supposed party spirit and mutual mistrust, between the free and the freed population, which are apprehended, in England, to prevail to such an extent in New South Wales, as to influence the feelings of Juries, are not founded in fact, and that the verdicts of Juries in this Colony, as are likely to be just and temperate, as the verdicts of juries in any arts of His Majesty's dominions. -

"Secondly, -- I am of opinion, that until the establishment of circuits in pursuance of the 13th Section of the New South Wales Act, it will be impracticable to try all the Criminal cases which are presented to the Supreme Court, by means of Juries composed of the Inhabitants of Sydney and its vicinity. The number of persons on the Jury lists in Sydney is too limited, with reference to the frequency of crimes among the convict population, and the numerous cases to try, to admit of much of the time of the Sydney Jurors being applied to the criminal business of the Colony, as would be necessary fro its despatch, without a great sacrifice of private interests, and much public inconvenience - I think therefore, under all circumstances, that the ordinary course of trial should be left as it is at present - But that in all prosecutions to [p. 265] which Government is in any manner, either directly or indirectly, a party, it should be left in the discretion of either party, to apply to the Court, to have a Jury of freeholders - I think also that it would be attended with considerable saving of expense to the public, to introduce regular Circuits of the Court with the appendage of common juries, for the trial of offences in distant parts of Colony."

The same document is also in Forbes Papers, Mitchell Library, A 1297 (Reel CY 540), pp 749-754.

Sir George Murray, of the British government, told Darling on 7 April 1830 (Historical Records of Australia, Series 1, Vol. 15, pp 395-397) that the government had decided to postpone the introduction of civilian juries in criminal cases due to the "anomalous condition of society" in New South Wales.  As the proportion of free people increased, it would be appropriate to introduce it.  However, to avoid the appearance of bias in cases concerning the governor, the principal officers of the colonial government or members of the military or naval forces, the British government had decided that the Supreme Court should have power to order a trial before a civilian jury.  This was to be done by an Act of the Legislative Council of New South Wales, drawn up by the Attorney General.  This policy was put into effect by an Order in Council, dated 17 July 1830, which authorised the governor and Legislative Council of New South Wales to extend the operation of trial by jury in criminal cases (pp 588-589).  On 7 October 1830, Darling wrote to Murray, saying that he personally favoured military juries (Historical Records of Australia, Series 1, Vol. 15, pp 771-773).  The same despatch included a copy of Forbes' views, as reproduced here (pp 773-775), and those of other members of the Legislative Council.  Not surprisingly, John Macarthur concluded that "I am constrained to declare I am of opinion that it would be unwise and dangerous in a community so disorderly and depraved as this, to make any change in the long established practice of entrusting none but Commissioned Officers in His Majesty's Service to officiate as Jurors on all Criminal Trials" (p. 782).

[3 ]The Australian, 12 June 1829, continued as follows after this report:

"For the result of the latter, again we repeat, we do not feel the slightest apprehension - whether we consider the tendency of the whole article - the absence of every inflammatory expression --- its being but a cool argumentative deduction from premises promised to be facts, on the prosecutor's own shewing, or the evident informality in the bare wording of the information, as well as the peculiar constitution of the persons who officiated as Jurymen, and the relation in which they stood to the prosecutor.  For if the seven officers, six on full pay, and one on half-pay, who with every accompaniment we have ever and over before enumerated, and who were left to be Judges of the law, and the facts in this case are to be considered in the light of a Jury, then were they directly incapable propter affectum: if they were not a Jury, hen was the trial conducted contrary to statutable form, which requires one, or more Judges to be associated in every verdict not delivered by a Jury; therefore on either hand the conviction cannot hold good in law any more than in equity.  Also if the libel happened to be in reality a SEDITIOUS(!!) libel, and the information most materially informal, then must the conviction fail, because obtained illegally; if it were no ways inflammatory, and not calculated to alienate the affections of, or to excite an insurrectionary disposition against the established GOVERNMENT of the Country, admitting that the matter were calculated to bring one person or subject of that Government into contempt or hatred, then could it not be a SEDITIOUS libel, seeing that it possessed not a single ingredient of SEDITION; and if not a seditious libel, then can it for similar reasons be no libel at all.  In place of wishing for a new trial, therefore, (which we do not at all desire, a least before a Jury similarly constituted, as we should perhaps stand no better chance than formerly) with all the propriety, and force, and conclusiveness of the foregoing objections, we look rather to a setting aside of the conclusion already obtained in toto, not only for the evident in formality of the information, but the unconstitutionality, which can never fail to mark proceedings at law, where directly or indirectly the prosecutor or defendant in the case can by the least approach to possibility, be created into a sort of Judge in his own cause."

[4 ]  See R. v. Hall (No. 2), 1829.  On the same day, Hayes, the editor of the Australian, was sentenced to 6 months imprisonment, a fine of £100 plus an order to enter into securities to be of good behaviour for three years.  See R. v. Hayes, 1829.  Hall and Hayes were also persecuted by Governor Darling, as they saw it, when he removed their convict servants, forcing them into litigation.  See In re Hayes, 1829; and In re Tyler, 1829.

This is a short extract from the judgments in this case, R. v. Hall (No. 4), 1829.  They were delivered together with those in R. v. Hayes, 1829.  The main point was the challenge to the juries.  The judgments are reproduced in full in R. v. Hayes, 1829.

Governor Darling expressed himself to be satisfied with the state of the colony in a letter he sent to Hay on 13 January 1830.  However, he said that Hall continued to attack him through the pages of the Monitor, even after he was imprisoned: Historical Records of Australia, Series 1, Vol. 15, pp 333-335, and see p. 339.  Hall was also in correspondence with the Secretary of State over these issues, and eventually sent a pamphlet about them: see pp 626-648.  His complaints included allegations of packing military juries; the British government in effect found for Hall on this point.  See note 2 above.  It also found that Darling had acted improperly in removing Hall's convict servant: see Hall v. Hely, 1830, note 1.

Published by the Division of Law, Macquarie University