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

R. v. Hall (No. 6) [1829] NSWSupC 85

criminal libel - judge in own cause - jury, challenge to - jury, military - Sudds and Thompson case - press freedom - amicus curiae

 

Supreme Court of New South Wales

Stephen J., 21 December 1829

Source: Australian, 23 December 1829

ANOTHER EX-OFFICIO![1 ]

CRIMINAL COURT.

MONDAY.

Mr. Justice Stephen having taken his seat, and the Court being opened in due form,

Seven commissioned officers, six of them military men, were sworn to try Mr. E. S. Hall, Editor, &c. Of ``The Sydney Monitor," for a libel on their Commanding Officer, Lieutenant General Ralph Darling, Governor of the Colony, &c. &c.  Defendant, with whom was Mr. Keith, at the outset took an objection to the whole array of the panel upon three grounds; first, that the Commission assembled to try him was under the command, and therefore as he took it, influence of the prosecutor; secondly, that each received, according to the ordinary course, 15s. per diem, for doing duty in the jury-box; and thirdly, that it was contrary to natural equity and common sense, for an individual to be in any way a judge in his own cause.  Upon these objections, the learned Judge observed, in a very feeling and forcible manner, putting it to the Attorney General, that the more delicate course to pursue in this case would be to defer the trial until a commission of naval officers, who could not be supposed to be so immediately under the influence of the Governor of the Colony, might be convened.

Mr. Attorney General was diffident of adopting the learned Judge's suggestion, but said he would submit it to the Governor.  Defendant upon this animadverted in strong terms upon the course proposed by the Attorney General, inasmuch as he conceived that it was the part of that officer to exercise his own discretion, and to conform it to the opinion of the Court, rather than wait, in order to abide by the decision of the prosecutor in the case.  Mr. Keith supported the defendant's views.  The Court at first refused to hear both defendant and Counsel together, but understanding Mr. Keith appeared in the light of an amicus curiae,[2 ] he was permitted to proceed.  The point in dispute was finally waived, the crown officer refusing to adopt the alternative proposed, and the trial was proceeded with.

Mr. Attorney General stated this to be a criminal information, which he had felt called upon to file ex-officio against the defendant, for certain passages contained in a letter signed Vindex Redivivus, and which was published in The Sydney Monitor of the 21st November, 1829.  It was a libel of a very gross description, upon the character of Lieutenant General Darling, the virtual prosecutor in this case; and to prove its nature and tendency, he would only read the passages selected for prosecution.  [Here the learned gentleman read various passages from the letter signed Vindex Redivivus, as quoted in the information, dwelling particularly upon the following paragraphs:]--

``13.  Now I fearlessly maintain, and am ready in the field of fair argument to prove the position, that the military punishment and slave-irons of Sudds and Thomson[3 ] (after they were in the hands of, and under a criminal sentence by, the civil authorities) by which the death of the former was undeniably precipitated, and the shooting of Clynch unnecessarily so, when he was incapable of resistance or escape, were equally contrary to the eternal principles of justice, and to the law of England!

``14.  If then these punishments, summarily inflicted, were contrary to law, must they not consequently have been a substitution of will for law in both cases?

``15.  If in the former infliction, a disregard of the law was exhibited (and who so hardy to deny a truism?) was not the publicity of the act an encouragement to the petty excellencies of remote settlements (as in the case of Clynch) to similar violations of law, and to sacrifice the most sacred rights of Britons to the flimsy pretence of expediency, or to the less tenable pleas of necessity ?"

The Attorney General next proceeded to call Mr. John Newcombe, clerk in the office of the Colonial Secretary, who swore to an affidavit of proprietorship having been made before Alexander Macleay, the Secretary, and to a number of the defendant's newspaper, of the above date, bearing his imprint, being the autograph filed in the office of the said Macleay -- and Mr. Gurner, clerk of the Court, having deposed to the defendant's hand-writing in an affidavit, the learned Attorney General said he had closed his case.

Defendant, with his amicus curiae, Mr. Keith, submitted that no case was proved, inasmuch as the other side had failed to fix the fact of publication upon the defendant.  The Attorney General insisted upon calling back the witness, which the defendant opposed, and a warm altercation ensued, all three speaking vehemently and sometimes at once.  The witness was called back and the Learned Judge having re called order and retired out of Court for a few minutes, finally addressed the seven Commissioned Officers in the Jury-box, expressing his own opinion upon the matter selected for prosecution, but leaving it to the Commission to form their conclusion, and also leaving it to them to say if the fact of publication by the defendant had been sufficiently established.  Retiring for two or three minutes, the seven Officers re-entered the Jury-box, and by the mouth of their foreman, Captain Hunt, 57th regiment, pronounced the expected - GUILTY.[4 ]

Defendant upon this walked back to gaol, where he has been confined since the 20th of June last, to prepare for a fresh trial next day.

 

Notes

[1 ] At this time, Hall was being peppered with criminal libel prosecutions.  See also R. v. Hall (No. 7),  1829, and R. v. Hall (No. 8), 1829 which were both tried two days later.  See also Sydney Gazette, 24 December 1829, and the other criminal libel cases called R. v. Hall in 1829.  See also R. v. Hall (No. 2), 1828.

[2 ] Friend of the court.  The modern meaning of the term is a person, usually a barrister, who appears to assist the court and who does not advocate for either party.  Mr Keith here appeared to act as an unpaid advocate for the defendant.

[3 ] On the Sudds and Thompson case, see especially, Transportation Opinion, 1826.  The Australian was still writing about Thompson's fate on 23 October 1829, noting that he had just been sent to England.  See also Australian, 4 November 1829.  On the revival of the Sudds and Thompson case in 1829, see C.H. Currey, Sir Francis Forbes: the First Chief Justice of New South Wales, Angus and Robertson, Sydney, 1968, ch. 33.  See also Ex parte Wentworth, in re Mansfield, 1829 on the planned impeachment of Governor Darling.

[4 ] For sentencing, see R. v. Hall (No. 8), 1829.

Published by the Division of Law, Macquarie University