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

R v Hayes [1831] NSWSupC 41; sub nom. R. v. Hayes (No. 3) (1831) NSW Sel Cas (Dowling) 806

press freedom - press laws - recognisance - criminal libel, banishment for

Supreme Court of New South Wales

Hearing, 23 June 1831

Source: Dowling, Select Cases, Archives Office of N.S.W., 2/3466[1 ]

[p. 70] [Upon an information for penalties for publishing a newspaper without entering into the sureties required by local act No 1. 11 Geo. 4. a former surety whose recognizance was on the files of the Supreme Court had given notice to the Col Secretary of his Intention to withdraw his recognizance but not having gone and taken them off the [p. 71] files.  Held that he was still to be considered as a surety and the Defendant was acquitted.][2 ]

[p. 70]

June 23rd 1831

Rex v Hayes

Information in debt for penalties against Defendant as Editor, Printer and publisher of a certain newspaper called the Australian "on 30th April 1831 at Sydney was indebted to His Majesty £400 for publishing contrary to Act 11.G. 4. No 1.  Newspaper act Sect 5. recognizance and averring that Thomas Bodenham one of the securities in 25th March 1831. gave notice in writing to the Hon Alex McLeay Col. Sec. that Thomas Bodenham would no longer consider himself bound as sureties that Bodenham did withdraw everything before publishing he should enter into recognizance and before the [p. 71] Exhibiting &c on 22nd April and 29th April 1831 did print and publish for sale on each of those days.  Defendant did publish Australian, without having first entered into a new recognizance in manner as by that act is made and provided, whereby Defendant hath forfeited £400. i.e. £200.

/2 Count did print for sale."

/3 Count Did publish for sale."

Nil Debet


[1 ] See also Australian, 24 June 1831 for an idiosyncratic account of the day's proceedings.  Hayes was the editor of the Australian.  The question in issue was whether Thomas Bodenham was able to withdraw from being bound as security for the publication of the newspaper.  The defence argued that the legislative requirements for a prosecution had not been made out, on grounds such as lack of proof of sale and of service, as well as the argument that the recognisance was still in force.  The Australian claimed that Dowling J. informed the jury that "the information could not, by possibility, be sustained".  See also Sydney Herald, 4 July 1831.

This was the final year of the administration of Governor Darling, who had such a tempestuous relationship with the press.  On his final attempts to curb the press, see C.H. Currey, Sir Francis Forbes: the First Chief Justice of New South Wales, Angus and Robertson, Sydney, 1968, ch. 35.  Currey noted at p. 375 that this statute was disallowed by the Crown in Britain.  The governor decided not to publicise the disallowance.  On the advice of the Executive Council, he decided instead to amend it by removing the objectionable provisions concerning banishment, and to allow the amended Act to stand until it expired in January 1832.  Accordingly, 1 Wm 4 No. 1 was enacted on 27 September 1831.  Governor Darling left the colony on 23 October 1831 (p. 379).  (For the 1831 Act, see Sydney Gazette, 13 October 1831.)

[2 ] This was not the end of the troubles of Hayes and his Australian newspaper.  In 1833, he was again threatened with prosecution, this time at the prosecution of Richard Jones.  Jones moved for a criminal information, and the newspaper was "discontinued or suppressed".  Jones decided not to press the prosecution: Sydney Herald, 4 March 1833.  The newspaper recommenced publication by 3 May 1833, when its law reports were again being published.

Published by the Division of Law, Macquarie University