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

Hall v Mansfield (No 3) [1830] NSWSupC 28

libel, defences, Norfolk Island, military defendants in crime

Supreme Court of New South Wales

Dowling J., 3 April 1830

Source: Australian, 7 April 1830

This case being also an action of trespass for an alleged libel, published by the defendant in the Sydney Gazette of March 19, 1829, was tried before the Judge and Jury of the previous day, with similar Counsel also upon both sides.[1 ]

Mr. Wentworth stated the plaintiff's case.  The gist of the present action lay in two words, which had in them (in the learned Counsel's opinion) as much mischief as a thousand could; for they imputed to the plaintiff a motive, which did it exist, would rank him with the basest perverters of the ends of justice, instead of the character he (Mr. W.) would prove the plaintiff to be of.  It laid to his charge nothing short of a malicious prosecution.

It would be in the recollection of the Jury, how one Clinch, a prisoner of the crown, met his death at Norfolk Island, where Captain Wright, 39th regiment, was Commandant. Having information that the man had been killed heedlessly, the plaintiff did what was the duty of a good citizen.  He informed the Attorney General, and called upon him to prosecute.  A Bench of Magistrates assembled to investigate the charge, and Captain Wright appeared before that Bench.  An investigation ensued, and the end of it was, the discharge of that officer, and admission of a sergeant and private soldier of his company to bail.  This the defendant, in his article which now was the subject of action, called ``a bottle of smoke."  The committing two of his Majesty's subjects for manslaughter, he called a bottle of smoke.

Agreeable to an arrangement between the legal gentlemen on both sides in the Supreme Court, Captain Wright stood his trial, indicted for the murder of Clinch, at Norfolk Island, of which indictment Captain Wright was acquitted.[2 ]

Now in all this the plaintiff had acted only in accordance with the laws, and as became a lover of justice.  What right then had the defendant to attribute bad motives to his client, or to stigmatise him as in the publication before the Court? - Plaintiff had called on the defendant refused. -  How easy would it have been for the defendant to have stopped this action in limine, but he would not bate an inch his injurious allegations as respected the defendant.  Yet here was a groundless, and the learned Counsel would put it to the Jury to say, if it were not a malicious attack on the acts and motives of a private citizen.  If the motives of the plaintiff in the prosecution of Wright were of a malicious character, the defendant was bound to have used that plea in justification, but he had not, and he (Mr. W.) confided that the Jury would give the plaintiff such damages that day as would show, the defendant the extent of his authority for making groundless charges of this gross description.

Evidence being called to prove the application of the offensive matter to the plaintiff, and that his prosecution of Wright was a necessary one, -

Dr. Wardell rose for the defence.  During that week the gentlemen of the Jury had acquired some experience in libel trials, and certainly he would admit he had himself in the way verdicts ran.

Here Mr. Justice Dowling interposed, saying he could not permit any invidious imputations to be thrown upon past verdicts, and he begged the learned Counsel would desist from that line of argument.

Dr. Wardell then went on.  They would see on what bases such causes as the present one rested, when his learned friend on the other side was compelled to apologise that two words only constituted the gist of his client's action, but that he could shew deep malignity on the side of the defendant.  His client had disclaimed any such feeling, but because he would not tumble down on his knees, he was to be brought into that Court as a defendant.  Let the Jury give the plaintiff a verdict - let them give him enough, and then go home, and ponder on the consequence, that the Press, if verdicts were to be so measured, would be completely tied up.  Because the plaintiff liked to father them on himself forsooth, he must have a verdict for every spicy paragraph in the newspapers.  What right had the plaintiff to step forward, he (Dr. W. would ask) as a prosecutor, when there was an Attorney General ready to become the public prosecutor?  what - to charge an officer with a crime of which he was acquitted subsequently, not by one Magistrate, but by a whole bench, and when two soldiers committed were allowed on bail at 10l.  Either the Magistrates in this case prostituted their duty, or the charge was gross and malignant.  The law denominates that charge which is dismissed, as malicious, but because Captain Wright did not consider it worth while to follow his prosecutor, the latter turns round, and vents his venom on an unoffending Editor, who pens an article on what took place at the Police Office, and then the plaintiff fathers it on himself.  Were such articles to be visited with verdicts, then adieu to the slightest freedom of writing or of speech.

Dr. W. then proceeded to argue, that even did the article in question impute the motives assigned to the plaintiff, yet the allegation, putting the whole case together, would not be libellous, and concluded by saying, that he would be contented without calling evidence, to leave the case as it stood, in the hands of AN ENGLISH JURY.

The Jury, without retiring, returned a verdict for the defendant, the Foreman at the same time, for himself and fellow Jurymen, wishing it to be understood expressly, that this verdict was not influenced in any way by the expressions dropped that day, with reference to former verdicts, but on a dispassionate view into the justice of the case.

Mr. Justice Dowling said he would have felt bound to tell the Jury himself, that the  subject matter of action was not libellous, but within the bounds of fair discussion.[3 ]

 

Notes

[1 ] This was the third of three libel actions taken by the plaintiff (editor of the Monitor) against the defendant (editor of the Sydney Gazette) on 1, 2 and 3 April 1830.  This case was reported at greater length by the Sydney Gazette, 7 April 1830.  The best statement of the law was in the first of the three cases, heard on 1 April 1830: see Hall v. Mansfield (No. 1), 1830.  The second case, on 2 April 1830, is Hall v. Mansfield (No. 2), 1830.

[2 ] See R. v. Wright, 1829.

[3 ] On costs in this case, see Hall v. Mansfield (No. 2), 1830.

Published by the Division of Law, Macquarie University