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

R. v. Hines [1829] NSWSupC 38

criminal libel

Supreme Court of New South Wales

Forbes C.J. and Dowling J., 6 June 1829

Source: Australian, 12 June 1829

THE KING AT THE PROSECUTION OF

NORTON V. HINES.[1 ]

Mr. Rowe, on a former day, obtained a rule, calling on the defendant, to shew cause why a criminal information should not be filed against him for an alleged libel, contained in two letters signed a "Citizen" published in the Australian Newspaper, of the 6th and of 13th March last, which accused the prosecutor of cruel and indecent conduct in his capacity of under Gaoler.  Mr. Sydney Stephen now appeared to shew cause why the rule should not be made absolute.  The learned Gentleman commenced by adverting to the generally dangerous tendency of criminal prosecutions as the truth or falsehood of the libellous matter could not be arrived at.  That the prosecutor had his remedy in bringing an action, by which proceeding only, justice could be fairly dispended to all parties; as the defendant, would then have an opportunity of justification, the benefit of which he would be deprived of, if the present course were pursued.  The charges alleged to be libellous, and on which the rule was sought to be made absolute, were of a grave and serious nature, involving the character of a subordinate Officer of that Court, whose duty it was to see, that the public should be satisfied of the truth or falsehood of the several charges prefered against one of its Officers.  There were several grounds upon which he, the learned Gentleman, hoped the Court would be induced to refuse the present application, the mention of which would clearly shew, that there was something in the conduct of the prosecutor that required concealment.  In order to effect such a desirable object, he had prevented the defendant from having access to a debtor, confined in Gaol, lest he might obtain from him, such affidavit, as would be likely to defeat this prosecution.  From [t]his debtor had, the majority of the information, on which the charges are founded, been received, and consequently, his affidavit must have been important.  This fact their Honours would find supported on oath, and it would serve to shew the expedients that had been resorted to, for the purpose of stifling every thing that might tend to develope [sic] the truth of the alleged libel.  An affidavit had been filed by the plaintiff, signed by some of the debtors which speaks generally of his good character, whereas it would be shewn, how such affidavit was, obtained and only intended to contradict one statement contained in the two letters, viz., the striking of a prisoner of the Crown, under sentence of death.  There was another ground, continued the learned Gentleman, sufficient to shew their Honours, that the ends of Justice would be defeated, if this defendant was prosecuted criminally.  It was in reference to a charge, the truth of which had been admitted by the Rev. Mr. Power, the Clergyman alluded to, as having found the prosecutor in the commission of an indecent act with a female confined in the prisoner.  It would appear by two affidavits that although Mr. Power had said, that the circumstances were truly, and not over stated, and expressed his readiness on one occasion to bear testimony to the fact, that at a subsequent period, when applied to for the purpose, he declared, that it was contrary to the canons of his Church to become a voluntary prosecutor, that the circumstances came to his knowledge in the discharge of his sacerdotal duties, as visiting Chaplain, and that unless compelled, he would not give any testimony.  Such was the nature of the difficulties, that had been thrown in the way of the defendant, that it was impossible for the Court to grant the rule, without silencing in toto all enquiry into the truth of the several charges, contained in these letters.  (After a few observations from Mr. Rowe in behalf of the prosecution, His Honor, the chief Justice, proceeded to express the opinion of the Court.  In the course of his remarks, we understood him to advert to the difference that existed in similar proceedings between this Country and England, that the Judges were bound to afford the same facilities of legal redress, to all members of society, no matter what might be their rank or degree, and however true the allegations might be, that the Court felt called on to make the rule absolute, at the same time, His Honor would take the opportunity of remarking, that it was the bounden duty of the Clergyman, who was stated to have found the prosecutor in the disgraceful situation mentioned, to have reported the matter immediately, for there could be no doubt, that such conduct would subject the under Gaoler to a dismissal from office.  Mr. Justice Dowling expressed himself to a similar effect.  RULE GRANTED.

 

Notes

[1 ] See also Sydney Gazette, 9 June 1829.  This action was taken in response to a vigorous debate about conditions in the Sydney gaol in lower George Street.  See Sydney Gazette, 7 and 19 March, 2 and 7 April 1829; Australian, 31 March and 3 April 1829; Sydney Gazette, 2 April 1829.  See also In re Clegg, 1829.

Published by the Division of Law, Macquarie University