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

R v Hall [1830] NSWSupC 48; sub nom. R. v. Hall (No. 5) (1830) NSW Sel Cas (Dowling) 664

press freedom, press laws, trial by jury, reception of English law, repugnance to English law, judicial review of legislation

Supreme Court of New South Wales

Dowling J., 28 June 1830

Source: Dowling, Select Cases, Vol. 2, Archives Office of New South Wales, 2/3462

[pp 331-332]

[Where a Defendant was in custody in Execution for a misdemeanor and intending to defend an [p. 332]  information for penalties in person the Judge allowed him to be brought into Court for that special purpose.  In order to give effect to a prayer of tales under the N.S.W. Jury Act there must be the consent of both parties to the record.][1 ]

[p. 331]June 28 1830

Rex v Hall

Coram Dowling J and a Special Jury

Information by His Majestys Attorney for penalties.

When the case was called on.

Keith for the Defendant prayed that the Defendant in execution for a misdemeanor should be brought up from [p. 332] Hill Gaol at Sydney to defend himself in person

Dowling J doubted whether he had authority to make any order upon the subject and put it to the Attorney General whether he could consent.

The Attorney General said he could not consent.

Dowling J. asked for an authority to justify the proceeding.

Keith said it required no case upon the subject.  Upon the principal of natural justice the Defendant ought to be allowed to come up he could not Defend himself. 

Dowling J. if I recollect rightly this point has been decided against a Defendant in the like situation with Mr Hall but rather then it should be said that a person in the defendants situation should not have an opportunity of defending himself

 

 

Forbes C.J., 27 September 1830

Source: Sydney Gazette, 30 September 1830[2 ]

 

This was an information of debt, at the suit of the King, to recover two several penalties of £100, alleged in the declaration to have been incurred by the defendant, for breaches of the Act of Council, No. 1, passed in the 11th Geo. IV. intituled ``An Act to amend an Act, for preventing the mischiefs arising from the printing and publishing of newspapers, and other papers of a like nature, by persons not known, and for regulating the printing and publication of such papers in other respects, and also for restraining the abuses arising from the publication of blasphemous and seditious libels."  Plea; nil debet.

The following gentlemen were sworn on the jury:- D. Cooper (Foreman) Alex. Kinghorne, Sparke, John Hosking, W. Lawson, - Farmer, John Rickards, - Taylor, and J. P. Cohen Esqrs.

Mr. W. H. Moore, opened the pleadings.

The Attorney General stated the case.  The learned gentlemen said, that the information was filed against the defendant, the editor, printer, and publisher of a newspaper called the Sydney Monitor, for a breach of the 5th clause of the Act of Council, No. 1, of the present year, whereby it was provided that from and after seven days subsequent to the publication of the Act in the Sydney Gazette, no person should print or publish for sale, any newspaper, or other paper of a like nature, without first entering into recognizances, before one of the Judges of the Supreme Court, in the sum of £300, with two sureties in the like sum, jointly and severally conditioned, that the editor, printer, or publisher, should pay all such fines, damages, and costs, whatsoever as might be awarded against him for the publication of any libellous or slanderous matter.  The declaration in this case set forth that the defendant after the coming into operation of this Act, did print and publish, for sale, two newspapers called the Sydney Monitor - to wit, on the 24th, and 27th February, 1830 - without having entered into the required sureties before one of the Judges of the Supreme Court, according to law.

Mr. John Gurner said, I am chief clerk of the Supreme Court: I hold in my hand two recognizances, entered into by the defendant, as editor, printer, and publisher of the Sydney Monitor, on the 3rd May 1827, and the 14th August 1828; it is my duty to receive and file such recognizances in the office of the Supreme Court; these recognizances were entered into under the former Act for regulating the printing and publishing of newspapers; the defendant has not entered into any recognizances before one of the Judges, since the publication of the Act now in force; if he had it would be within my knowledge.

Cross-examined by the Defendant - I do not think it possible that you could have entered into recognizances before one of the Judges without my knowledge.

Mr. George William Newcombe - I am a clerk in the office of the Colonial Secretary; it is my duty to receive the office copies of the Sydney newspapers, filed under the provisions of the Act of Council; this is the Sydney Gazette of Feb. 13, 1830, filed in the office of the Colonial Secretary; it contains the Act of Council, No. 1. for regulating the printing and publishing of newspapers; I also produce two copies of the Sydney Monitor, dated the 24th and 27th Feb. filed in the Colonial Secretary's office; they bear the signature `` E. S. Hall, 81, George-street;" E. S. Hall is the name of the defendant, and 81, George-street, the place where the Monitor newspaper is published; I never saw the defendant write, and cannot swear to the signature on the newspapers being his, but they bear the same signature, and are in the same hand-writing which has been on all the papers delivered into the Colonial Secretary's office for upwards of three years past; I cannot swear who left those papers at the office, or whether I received them myself from the person who brought them, but I think they were given to me by the house-keeper, on the mornings following the days on which they bear date; the Monitor is published in the afternoon, after office hours, and is generally left with the house-keeper, who delivers it to me next morning, and I immediately lock it up; I receive the paper of Wednesday evening on Thursday morning, and that of Saturday evening on Monday morning.

This was the case on the part of the Crown.

On behalf of the defendant, it was contended that there was no evidence to go to the jury to show that he had not entered into the necessary recognizances before one of the Judges, or any evidence that he was editor, printer, or publisher of the Sydney Monitor.  On the first point the evidence of Mr. Gurner was to the effect only, that he did not know of any recognizances having been entered into by the defendant before any of the Judges; at least however, that was mere secondary evidence, inasmuch as, the Judges might have been called to prove that fact, and, non constat, for any proof before the Court but the defendant had entered into the required sureties before one of the Judges.  Then with respect to the proof of publication by the defendant, what did it consist of?  Why, merely, of two papers produced by Mr. Newcombe, bearing the signature ``E. S. Hall, 81 George-street," which he (Mr. Newcombe) had received, not from the defendant, but from the office-keeper, and the signatures on which he did not pretend to say were I the handwriting of the defendant, whom he had never seen write on any occasion.  Where, then, was the evidence from which it could be collected that the defendant had published the papers before the Court? - Why was not the defendant's affidavit filed in the Colonial Secretary's Office produced?  It could but it had not been produced, and in its absence the entire of the proof offered consisted of two papers bearing signatures which the witness did not attempt to speak to as being in the defendant's handwriting.  And, even assuming that the signatures had been proved to be the defendant's what evidence was there to show that these particular papers were published for sale, as required by the Act.

The Attorney General replied.

The Court held that there was evidence sufficient on all the points raised to go the jury.  Besides, the Crown could not be nonsuited.

The defendant addressed the jury at very great length contending, first that there was no evidence before the court to show that he was the editor, printer, or publisher, of the Sydney Monitor, and that the jury were bound to dismiss from their minds all personal knowledge of him, and to decide only n the testimony adduced in support of the plaintiff's case: - and, secondly, that as the Act of Council under which the present information was laid, increased the rigour of the English press Act, on the principle of which it had been framed, it was repugnant to the law of England, and the jury were bound to disregard it!  Upon the latter branch of his argument, the defendant entered at very great length, contending, according to his reading of the Act of the 9th Geo. IV. c. 86, that the laws of England in force at the time of the passing of that Act, were to be the laws of this colony, so far as they could be applied; that the power given to the Legislative Council extended only to a limitation or modification of those laws - that is a restriction of their operation, or a qualifying or softening of their rigour when they should be found to press too harshly upon the colony - but that they had no authority to add to their severity, as in this instance, he contended had been done.  The Act, therefore, under which the present prosecution had been commenced, as it added to the rigour of the English law, was repugnant to that law, and as such the Council had no power to pass it; for, although the Judges, as provided by a clause in the Act of Parliament which was the fountain whence sprang the authority of the Legislative Council, did not appear to have transmitted any representation to the Governor, that the ordinance was repugnant to the laws of England, still, as they were not bound to do so, whatever might be their opinion, and as many reasons might have influenced them in refraining from so doing, the jury were not to pay any attention to that circumstance, but were bound to treat the Act as a nullity, should they be of opinion that the Council, in passing it, had exceeded the powers given to them by the Act of Parliament.

The defendant called no witnesses.

The Chief Justice. - Gentlemen of the Jury.  This is an information of debt, presented by the Crown officer, by which the King comes before you and prays certain penalties from the defendant, which, it is alleged, he has incurred by neglecting to fulfil a certain duty required of him by an Act of the local legislature.  It is not necessary that I should go over the information to you: it states in substance, that the defendant is editor, printer, and publisher of the Monitor newspaper; --- that a certain Act of the legislature was passed, and published in the Sydney Gazette, on the 13th Feb. in the present year, whereby among other things, it was enacted, that it should not be lawful for any person to print or publish, for sale, any newspaper, or other paper of a like nature, without first entering into certain recognizances before one of the Judges of the Supreme Court, for the payment of any fines which might be awarded on any prosecution,, or of damages in any private action, by reason of the publication of any libellous or scandalous matter, under a penalty of £100 for every paper so printed or published.  The information then goes on to state, that the defendant, not regarding the Act, after the 20th Feb. 1830, being the day on which it came into operation, - namely, on the 24th and 27th Feb. respectively, did print and publish for sale, two newspapers, called the Sydney Monitor, without entering into the necessary recognizances, in consequence of which, a forfeiture has ensued to the crown of £200.  To this information the defendant has replied, negativing the charges laid against him.  Gentlemen, in putting this case to you, I shall first state what is the law, then read to you the facts which have been this day detailed in evidence, as I have minuted them down, then apply the law to those facts, and then leave it to you to say, whether, so applying the law to the facts, you are of opinion that the charges contained in the information have been established against the defendant.  With respect to the law, a wide latitude has been taken by the defendant, in support of his argument as to its severity, ultra the English statutes, although they were passed on occasions of emergency, and at time when the greatest dangers were to be apprehended from the evils which they were intended to prevent.  Sitting here at nisi prius, merely to try a dry question of fact, I do not feel myself called upon, nor do I think I should be warranted in going into the question of the power of the local legislature on the policy of the law.  Were it necessary, however, I think I could show, that there is not that excess of severity in this Act, beyond the English Acts, which is charged upon it; that it is framed precisely upon the same principles; and that the severity of punishment which it inflicts, is perfectly accordant with the spirit of English law on the same subject.[ 3]  I will not, however, enter into that question here; but merely state to you, gentlemen, that the Act under which this information has been laid, is a good, valid, and subsisting Act, and that you are bound to recognise it.  It is part of the law of the Colony, and by it we are bound as much as by any other Act whatsoever.  Gentlemen, the first point for your consideration, then, is, when did this Act take effect? - If you are satisfied of that being a copy of the Sydney Gazette which was produced by Mr. Newcombe, it appears to have been published on the 13th February; and would therefore come into operation on the 20th.  The information charges the defendant with having published two papers, namely, one on the 24th, and one on the 27th February, without having entered into the recognizances required by the Act; and this is the issue you have to try:- first, did the defendant enter into those recognizances? - and, secondly, if not, did he print and publish the two papers as charged against him in the information?  [His Honor here read his notes of the evidence.]  Upon this evidence, gentlemen, as I have already stated to you, there are two points for your consideration; - first, did the defendant enter into the recognizances required of him by the law?  - and, secondly, assuming that he did not, did he publish two papers laid in the information?  With respect to the first point, I have read to you the evidence of Mr. Gurner, and on it, I apprehend, you can have little doubt.  A recognizance is an instrument of form, and of record.  By the Act under which the information has been laid, the recognizances entered into by the publishers of newspapers, are to be registered in the office of the Supreme Court; and as every public officer is supposed to do his duty, until the contrary be shewn.  I am of opinion that the onus probandi was thrown upon the defendant to show that he had entered into the necessary recognizances.  Gentlemen, upon this part of the case, therefore, I think you will not have much doubt.  The next and most important point for your consideration, then, will be as to the evidence of printing and publishing for sale.  Upon this point, it has been argued that, assuming the papers to have been published by the defendant there has been no proof that they were published for sale.  I, however, go along with the reasoning of the crown officer, that on the vary face of the instruments charged as infractions of the law, there is evidence of that fact; for why affix a price to that which is not intended for sale?  The chief point, therefore, for your consideration, is with respect to the printing and publishing.  A strong appeal has been made to you, and I fully concur in it, to discharge from your minds all personal knowledge of the defendant, and to find your verdict solely on the evidence which has been this day brought forward.  The form of the oath you have taken contains a summary of your duty: you are sworn well and truly to try the issue joined between the parties in this cause, and a true verdict to give according to the evidence; and it is for you to say, whether in this case, which is founded on a penal statute, there has been such evidence of printing and publishing by the defendant, dismissing from your minds all previous knowledge of him, as would justify you in finding a verdict for the crown.  Facilities of proof have been afforded by the local legislature, which I am rather astonished have not been resorted to, although I by no means insinuate that the crown officers have not exercised a sound discretion in the course they have pursued.  I do not say that the precise modes of proof provided by the local legislature were absolutely necessary to be followed, or that none other would do.  I only say that such facilities of proof have been provided, although it would have been competent to the crown officer to have proved the publication in any other way, either by purchasing a paper at the office of the defendant, or by proving his handwriting on the papers produced before the Court.  The common-law proofs, then, being all we have in this case, it is for you to say, resting as they do altogether upon the testimony of Mr. Newcombe, whether you are satisfied that there is evidence sufficient to enable you to come to a conclusion - divesting yourselves, as I have already warned you to do, of all previous knowledge of him - that the defendant did publish the papers laid before you this day.

The Jury consulted together for a short time, and found a verdict for the defendant.

 

Notes

[1 ] See Australian, 2 July 1830: the defendant objected to the trial being held that day.  Mr Justice Dowling rejected the first two arguments, that there had been an agreement for a deferral and that the jury had not been summoned according to the Act.  "Thirdly, it was objected that a tales had been struck, yet the local Act provided for no tales.  This objection had its weight, and the cause was ordered to stand over for next term."

Governor Darling claimed that this case showed that the position of Crown lawyers was "humiliating in the extreme" to the government.  He said that the Attorney General neglected to bring the case for a long period, despite frequent prompting.  When he did so, the government lost the case "because the Crown Lawyers, who were both in Court, neglected to prove the hand writing of Mr. Hall, or that he was the Printer and Publisher of the 'Monitor'."  The governor also complained that the jury was illegally constituted.  Source: Darling to Hay, 20 September 1830, Historical Records of Australia, Series 1, Vol. 15, p. 729.

[2 ] For another report of this hearing, see Australian, 1 October 1830.  See also the similar R. v. Hayes, 1830.

[ 3] Governor Darling wrote to Viscount Goderich to explain the background to (1830) 11 Geo. 4 No. 1, which he had been informed was disallowed in London (20 July 1831, Historical Records of Australia, Series 1, Vol. 16, pp 304-309).  The Bill provided for the banishment of editors upon a second conviction of criminal libel.  He went over the history of his previous failures to regulate the press by legislation, despite following the instructions of the British government.  He had now ensured the repeal of the banishment provision.  That, and the fact that the whole Act was due to expire in six months, led him not to publicise the disallowance.  That would only encourage the press, he thought.  Less than a week later, Darling wrote to acknowledge his own recall from office: Darling to Goderich, 26 July 1831, pp 314-318.  He went on to explain his own side of the many controversies of his period in office, but it was too late, of course.

Published by the Division of Law, Macquarie University