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

R. v. Hall (No. 7) [1829] NSWSupC 86; R. v. Hall (No. 4) (1829) NSW Sel Cas (Dowling) 789

criminal libel - jury, challenge to - jury, military - press freedom - criminal procedure - informations - arrest of judgment - appeals

 

Supreme Court of New South Wales

Dowling J., 23 December 1829

Source: Australian, 31 December 1829

MORE LIBELS !

CRIMINAL COURT.

THURSDAY, 23RD INST.

REX at the prosecution of LAIDLEY v. HALL

Before reading the information defendant took objection, as on Tuesday,[1 ] to the whole array of the panel, on the ground that the seven officers assembled to try the case, were nominees and under the command and influence of their Lieutenant-General, his Excellency the Governor, by whose orders each received 15s. per day for doing duty in the Jury-box, --- and for these reasons that he did not expect a fair and impartial trial.

Mr. Justice Dowling observed, that similar objections had already met with the most anxious consideration of the Court, and that two out of three of the Judges had expressed it as their opinion that the words of the Act of Parliament were strictly imperative and left them no choice, but to apply the mode of trial so prescribed; but if the defendant desired, the Judges would again take the subject under their investigation.

Defendant, as a solitary individual, did not wish that the Court should be troubled in going over the subject again; but would leave it in the bosom of the Judges to re-consider the matter if they considered proper.

Dr. Wardell, for the prosecution, stated this to be a criminal information, granted by that Court against the defendant, as Editor, publisher, &c. of the Sydney Monitor, for a false and defamatory libel published in a number of that Paper, of the 6th of June last, on the character and reputation of the prosecutor in his office of Deputy Commissary General in this Colony.

Having expatiated with his usual force and eloquence on the meaning and tendency of the imputed libel, the learned Gentleman proceeded to call witnesses.

Mr. G. W. Newcombe, clerk in the office of the Colonial Secretary, swore to an affidavit of proprietorship &c.  Being signed by the defendant, as well as an autograph copy of the defendant's Newspaper, containing the matter laid in the information, concluding that he believed it to apply to Mr. Deputy Commissary General Laidley.

Mr. Gurner, chief clerk, also proved the defendant's signature on the affidavit and autograph.

Deputy Assistant Commissary General James Todd Goodsir spoke to an advertisement in the Sydney Gazette, calling for tenders for pork, having been published by directions of the prosecutor, and stated his belief that Mr. Savage had tendered in consequence, and that he conceived the transaction to have been conducted in a perfectly fair and honorable way.

Deputy Commissary General James Laidley stated the Mr. Savage who obtained the pork tender, to be the same Mr. Savage described in the defendant's paper.

Mr. Richard Jones deposed to a similar effect, and that he conceived the passage in the defendant's paper, now the subject of trial, meant that Mr. Laidley and Mr. Savage had had a mutually privato [sic] understanding, by which means Mr. Savage obtained the contract, understanding that he was to share the profits of it with Mr. Laidley.

This closed the prosecutor's case.

Defendant then spoke at considerable length, extenuating the matter which had been the subject of an information for libel, and insisting that in what he had published he was not actuated by any private malice towards the prosecutor; but that what appeared, was written with a view to benefit the community.

In charging the commission in the Jury-box, Mr. Justice Dowling earnestly besought the officers to strive to consider the case before them as if they were fathers of families and settlers self-interested in promoting the welfare of the Colony, to dismiss from their minds any prejudice which which [sic] the statement that the information was found by the Court, might be calculated to create, -- and to come to a just conclusion, as respected both sides of the question, giving their verdict accordingly.

Retiring out of Court for a few minutes, the seven officers on re-entering the Jury-box, pronounced by the mouth of their foreman, the verdict --- guilty.

 

Forbes C.J. and Dowling J., 6 March 1830

Source: Australian, 10 March 1830

ARGUMENTS in ARREST of JUDGMENT, ON ONE OF THE FOUR Cases of LIBEL, the KING (at the prosecution of VARIOUS INDIVIDUALS) v. HALL.[2 ]

Mr. Attorney General next rose, and prayed the judgment of the Court on Mr. E. S. Hall, as Editor, Printer, and Publisher of The Sydney Monitor, for a libel on the Governor, contained in certain paragraphs of a letter, signed Vindex Redivivns, and which appeared in a number of The Monitor, of 21st November, 1829.

The Chief Justice enquired if it were not Mr. Justice Stephen who tried this case, -- and ascertaining that it was, his Honor advised the Attorney General, that in the absence of his learned coadjutor, the Court would not pass sentence, but if there were other motions for a similar purpose, wherein either of the Judges then present had been concerned, the Court had no objection to proceed to judgment.

Dr. Wardell said, he had to pray for judgment upon two convictions, one he believed, Mr. Justice Stephen had tried, but there was a second trial before Mr. Justice Dowling, it was a libel upon Mr. D. C. G. Laidley.

Here Mr. Hall addressed the Court, stating that he had come up that day with an expectation of receiving sentence for all four convictions, and that, as he was advised, he might address the Court with reference to the whole at once with greater advantage to himself, he trusted their Honors would defer pronouncing judgment until they should be in a capacity to determine all four together.

Dr. Wardell thought the defendant could not avail himself of any objections he might feel disposed to make as to the form of trial at this late stage of the business, for his objections having been decided after a very mature consideration previously by the Judges, they could not now invalidate proceedings already had.  Postponing the judgment of the Court he thought could not do the defendant any good.  However, he (the Learned Counsel) would not throw any obstacles in the way of the defendant, but leave the matter to the discretion of the Court.

The Chief Justice said, discretionary power being submitted to the Court, it remained for the Judges to say, whether judgment should be pronounced or postponed.  Mr. Hall wished for a postponement till Mr. Justice Stephen should be present, when all four convictions could be settled at the same time.  Certainly Dr. Wardell, on the part of Mr. Laidley, had consented to the postponement, if the Court thought fit, but the Court being thus left a discretionary choice, could see no reason for postponing its judgment.

Mr. Hall, with much feeling, then addressed the Court.  He had been advised by his Counsel, of a decision under the former Act of Parliament, which made it necessary to the validity of an information, that it should be signed by the Attorney-General.  Further, under clause 8, of the present Act, he had heard it laid down that all informations should be signed by the Attorney-General.  But the one on which conviction followed, and which he then stood there for judgment, was not so signed.  Hence the invalidity of the information ought to set the case aside.

The Chief Justice here observed, that the case probably alluded to by the defendant was one wherein it was argued and ruled, that the signature of the Acting Attorney-General was not sufficient, as setting forth to be the Attorney-General's.

Mr. Hall said, he had urged the objection, not expecting it would prove of much avail, but by the advice of his Counsel.  He was then proceeding to address the Court, when Mr. Justice Dowling said, it would be better were he to refer to the trial itself.  The Learned Judge accordingly read over his notes from the commencement to the termination.

Mr. Hall then continued:- His Honor Judge Dowling had read over to the Court the objections made to the Jury by him (Mr. Hall) at the time of trial, and he would now respectfully bring forward arguments to show, that this cause ought to have been tried by a Jury of the inhabitants.  He hoped the Court would hear him patiently, as what he had to urge on its attention related to every thing that an Englishman could or should hold dear.  He hoped also that the Judges would please to review their opinion offered on a former occasion, before they decided on this case, as thought it was too much for him to expect the Court would own itself in error, yet it became him as a defendant before that Court, to use every argument in his power, in order to shew how that decision was inimical to the Public good.  What must people suppose (continued Mr. Hall) by my coming up here Session after Session, what! But that I must be the most infatuated of men to involve myself in such a vortex.  But if I be a man of an ordinary share of sense and character, it discovers that there is something at bottom wrong, or at least different to what takes place in the Mother Country.  I was informed when I emigrated to this Colony, that the laws of my country extended here, or I should never have come.  I received great encouragement to come to this Colony - they paid me a premium, and found me, with my family, a free passage; allowed me servants, gave me land, and an order for cattle, with farming implements!  And what is the winding up of all this?  That the laws are altered - that my character and property are sacrificed, and after living 18 years in this country, with an unimpeachable character, I am to be doomed to perpetual incarceration, with a helpless young family  [Here Mr. H. Became deeply affected - a feeling which communicated itself pretty generally through the Court] under an opinion which I hope the Court will find it has hastily laid down.  Your Honors, I will never forego those rights which God has given me - I will perish first.  It behoves me to suffer rather than give up my bounden duty, and that duty I will do, God being my helper.  I therefore trust the Court will see the principles laid down the other day are inimical to the Public good, and will not hesitate to follow the example of Lord Tenterden, and other English Judges, who with the simplicity of children own their faults when in error.

Mr. Hall next adverted to the memorable, manly, constitutional, and able decision of

Mr. Justice Stephen, in the prosecution of the King, on the part of Lieutenant General DARLING v. HAYES,[3 ] Publisher, &c of The Australian, for a libel on the prosecutor, which some time in March last year was tried before Mr. Justice Dowling, and a Commission of seven military officers, nominated by that prosecutor, and for which the defendant was sentenced to six months imprisonment, to pay a fine of one hundred pounds, and enter into one thousand pounds securities of good behaviour for three years, all of which the defendant had endured and performed.  He adverted to the opinion expressed by the same venerated Judge, Mr. Justice Stephen, that the arraigning a defendant before a Jury, not of his Peers, but nominated by his prosecutor, was a contradiction of English law, common equity, and good sense, and then continued.

It may be said, that when I came to this Colony, I knew there was no trial by Common Jury.  I did know it, and I considered that it was necessary, as there were not free inhabitants then to form a Jury.  Does the Mother Country look with less maternal eyes on emigrants coming to this Colony at the present day?  No, she is tender as ever of her children.  The reason of its being enacted that we should be tried by a Military Jary was, that Parliament considered we should be safer than with a Civil Jury.  Why did Mr. Huskisson refuse us our rights? I will tell you.  Twenty-two private gentlemen sent a letter Home, to say that the Petition was got up by the popular faction - a mere rabble, and that the respectable emigrants were afraid of Trial by Jury, as the rabble faction wished to get hold of all the estates granted to the emigrants; but I am surprised so enlightened a man should thus have been led away.  I have been already nine months in gaol, have six more to serve, and to be sentenced for three more! and all I consider, through this mode of trial.  I am happy to find from the notes which his Honor Judge Dowling read, that I put in a plea in objection to the Jury, on account of their receiving fifteen shillings a day, as it will furnish a plea of direct interest; for if a person receive a sum of money for doing a certain duty, and that party who gives the fifteen shillings is interested in the decision, the party receiving knows if he displeases, that his services will no longer be required.  I would ask if this is not direct interest? To prove direct interest, you have only to show that the party receives a sum of money.  If a man go into the box, and has not the fear of loosing the fifteen shillings before his eyes, will he do justice? Yes, if he understand the case; but if a man goes into the box with the fear of the loss of his fifteen shillings, will he do justice? No, not if he is a knave.  I therefore hope your Honors will review the decision, which you gave the last time I was here for sentence, and grant me a new trial, as there is no obstruction to Civil Juries now.

I cannot hold with the opinion of Judge Stephen, that the half-pay officers are the more proper for Jurors, as there is required but little power to deprive them of their pay, and therefore the nominator can exercise too much influence over them..

Mr. Hall then read an affidavit sworn to by himself, which stated that a certain military officer was foreman at each of the trials, and that he had forgotten to challenge the Jury upon those grounds.  That this officer, as deponent heard, had said that he (deponent) was a "damned scoundrel," - that he would convict him as often as he was brought before him, that he was a pest to society, and the sooner he was got rid of the better.  I am well aware, continued Mr. Hall, that this affidavit is of no use, without being supported, and here I conclude my appeal. 

Dr. Wardell - May it please your Honors - I am at a loss to understand the bent of Mr. Hall's argument - whether it is on motion for a new trial, or in mitigation of punishment.  The observations themselves are powerless, and in mercy to Mr. Hall, I hope the Court will not take them into their consideration, as they can only be an injury to him.  When Mr. Hall puts before you a late decision, and states the evils it has been creating, he ought to have pointed out the particular case.  Now he would put it to the Court, he would put it to any man, he would put it to a Jury of 12 good men to say, if that was not a libel - a libel of the grossest nature upon a public officer, such as the prosecutor.

Here Mr. Hall rose, and said what he had been arguing for was a new trial, on an arrest of judgment, or a reference to the Twelve Judges of England, but not in mitigation of punishment.

Dr. Wardell - I would ask whether any thing has been offered that can be taken as a ground for an arrest of judgment, or for a new trial.  How it can be mooted that the Jury who tried Mr. Hall was not qualified, seeing how your Honors have settled that matter already, I am at a loss to understand.  I do not think that this is a time for arguing on he legality of the Jury; but if it be, I am perfectly ready to go into that argument.- In the first place we have the Parliamentary enactment, which makes it necessary that all trials for felonies and misdemeanors shall be before a Jury of seven military or naval officers - I therefore perfectly agree in the decision pronounced already by your Honors, singular as it was, and much opposed as I am to form of trial.  But how are your Honors to go against the statute? I am placed in a situation which I do not like, but it is imposed upon me as an advocate, and I feel great pain in advocating in opposition to that which ought to have the like beneficial influence here, to what it has in the Mother Country.  I therefore cannot see how your Honor's late decision is to be altered, and I pray the judgment of the Court upon Mr. Edward Smith Hall, nothing has been offered by him on substantial grounds for a new trial, or for reference to the Twelve Judges.

Mr. Chief Justice Forbes then addressed Mr. Hall, by observing that the Court had allowed him to travel out of the usual course, in consideration of his appearing there to defend himself in person, and being unacquainted with legal forms.  The gist of defendant's address went to question the jurisdiction of that Court, but the form of trial was prescribed by positive enactments of the Legislature, and out of these the Judges could not wander, nor consequently grant the motion for a new trial before a Common Jury.  Neither was it usual to refer a matter from Colonies to the Twelve Judges in England.  Justice in this case was to be sought for by an appeal to his Majesty in Council.  The Judges was bound to interpret the law as they found it, and saw no grounds for altering the tenor of their proceedings, or of deferring sentence, which was, - that he, the defendant, be imprisoned in his Majesty's gaol of Sydney for six calendar months, to commence and take effect after the expiration of any sentence then pending against him, the defendant.

Mr. Hall then bowed and left the Court, which was intensely crowded.

 

Notes

[1 ] See R. v. Hall (No. 6), 1829.  For the preliminary hearing in R. v. Hall (No. 7), 1829, see Australian, 2 December 1829; Sydney Gazette, 3 December 1829.  For another account of this trial, see Sydney Gazette, 26 December 1829.  See also the other cases called R. v. Hall in 1829, and R. v. Hall (No. 2), 1828. See also Sydney Gazette, 9 March 1830.

[2 ] Justice Dowling recorded this as follows (Source: Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462 (R. v. Hall (No. 4) (1829) NSW Sel Cas (Dowling) 789)):

[pp 283-284] "[A Criminal Information filed by leave of the Court need not be signed by the Attorney General.  The Judges of this court have no power of consulting or submitting their decisions directly to the Judges of England.]

[p. 283]"Rex v E. Smith Hall

"This defendant had been convicted before Dowling J. and seven Commissioned upon an information filed with the leave of the Court for a libel on James Laidly Esqr [p. 284] DC.G. of N.S.W.

"On the motion of Dr Wardell the Defendant was now brought up for Judgment.

"The Defendant in person moved for a new trial, or to arrest the Judgment generally.  For a new Trial the ground was that one of the Jurors had been heard to say, as he had been informed, that he would convict the Defendant in every case of libel in which he was brought before him, and to express himself in terms of great hostility towards the defendant.  The defendant did not go on to say that he believed this nor did he give the name of his informant.  In arrest of Judgment he objected that the information was not signed by the Attorney General.  Supposing these grounds not to be sufficient, he moved that the verdict be set aside for mistrial and that a venue to the Sheriff do issue for the trial of the case by a Jury of 12 Civilians he anewed the objection to the system of nominating Officers by the Governor to serve on trial.

"Vide Vol 32.p.45."

[3 ] See R. v. Hayes, 1829.

Published by the Division of Law, Macquarie University