Skip to Content

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

R v Pearce [1832] NSWSupC 92

libel, obscene - Wardell, Robert, personal life - postal history - imprisonment for debt

Supreme Court of New South Wales

Forbes C.J., 19 November 1832

Source: Sydney Herald,  22 November 1832[1 ]

 

Villiers Pearce was charged by information with writing and publishing a false, scandalous, malicious, infamous, filthy, and obscene libel, of and concerning Dr. Wardell, Robert Foster, and Sarah Foster, with intent to injure, defame, and vilify, and to bring them into infamy and disgrace, at Sydney, on the 3d July.  There were numerous other counts varying the form of the information.

Dr. Wardell.[2 ] - I am a Doctor of Civil Law: my father has been dead for some years; I know the hand writing of Villiers Pearce (letter put in;) that is his hand writing; it is directed to my clerk, Mr. Foster; he was my clerk on the 30th July: the passages of the letter apply to him.  [Here the Doctor read various passages, which are totally unfit for publication, and applied various inuendoes to them.]  My father has been dead eleven years; he lived in Westbourne Place, Sloane Square; I took my degree of Doctor of Laws at Cambridge, upwards of nine years ago.

Cross-examined by Mr. Keith. - Mr. Pearce introduced himself to me some time ago, and said that he had married a person who was related to a person that had married my sister; I had no letter of introduction with Mr. Pearce, but I remember one passage in a letter that I received from England - ``Mr. Priddle desires me to thank you for your kindness to Mr. Pearce."  I saw Mr. Pearce write once at Petersham - on a card on my table; I think, ``Mr. Villiers Pearce, from England;" and once I believe in my office; there never was the least quarrel between me and Mr. Pearce; the body of the letter, and the postscript, appears to be all one handwriting; I will relate one circumstance, if you wish it; Mr. Foster, who was in the habit of receiving letters from Mr. P., informed me that he was in a deplorable state at Bong Bong; I said he might go to my farm for the sake of his family; he did so, but I was informed that he used towards me language similar to that contained in this letter, and I was obliged to remove him; after he was in Sydney, about a fortnight, he called upon me, and as I wished to have no altercation with him, I desired him to leave the room; I cannot say that I remember Mrs. Pearce; I do not recollect her features; I never verbally or by letter informed Mr. P. of what I had heard respecting his conduct towards me; the letter to me was received two days before that of Mr. Foster, and a third one to a person at Petersham, if possible, in a worse spirit; an enquiry was then made, and I think it was reported he had sailed in the Defiance; the vessel put back, and I think the first I heard of him was an enquiry made by some party who wished to arrest him; I think he was in the Colony at the time these letters were received.

James Raymond, Esq. - I am Post Master of the Colony (a letter put in;) there is a twopenny post; this letter went through the Sydney Post Office; it bears the stamp; the date of the Post Office mark is the 8th August; it is directed to Mr. Foster, clerk to Dr. Wardell, 42, Pitt-street; John McStravack was the postman who delivered letters to that part of the town.

John McStravack. - I am a letter carrier belonging to the Post Office, and was so in August last; I deliver the twopenny letters; Upper Pitt-street is in my district; I remember delivering a letter to Mr. Foster, in Pitt-street, in August last (letter put in;) I think this is the letter; I understood Mr. Foster to be Dr. Wardell's clerk.

Robert Foster, examined by Dr. Wardell. - I am your clerk, and was so at the time the letter was received; I am married to Sarah Foster, who is mentioned in this information; in August I received this letter, either on the 8th or 9th; I received it from the last witness; I drew his attention to it at the time, because I thought it was a similar letter to that received by you two days before; I opened it in his presence; it is addressed ``Mr. Foster, clerk to Dr. Wardell, 42, Upper Pitt-street;" I know the defendant's hand writing; I have seen him write, and received many letters from him; this letter is in the hand writing of Villiers Pearce.  [Here witness read various extracts, and applied the inuendoes.]  The passages throughout the letter where the name of Dr. Wardell occurs, refers to you.

Cross-examined by Mr. Keith. - If I did not know the hand writing of Mr. P., yet from what I heard from other sources, I should still believe him to be the author; Mr. P. called upon me, and I told him before I should speak to him, that he must explain what he had said; he replied, saying how he had been duped by Dr. Wardell; I told him it was false his own letters contradicted the assertion; he then made use of a milder expression than dupe; he never before used any improper language to me respecting Dr. Wardell; he said that what people said he had repeated respecting me was false; I could not say that the superscription of the letter is his hand writing, but my name is at the bottom of the first page, in his hand writing; I received this letter either the 8th or 9th of August, and previous to receiving that, Dr. Wardell received one; I found then that he had sailed in the Defiance; I never quarrelled with Mr. P.  [The letter was here read by the Clerk of the Court.]

Cross-examined by Dr. Wardell. - I never quarrelled with Mr. Pearce, nor I was aware that you were so situated towards him, that you could have quarrelled.

By a Juror. - I think the letters were so timed, that he should escape from the Colony before they were delivered; I think this from their being dated July, and not delivered till 8th August.

By Mr. Keith. - After the Defiance returned; I met with Mr. P. in a public-house; a constable was with me with a warrant; he has, been in gaol ever since, I believe, for want of bail; he has a wife and two children, to my knowledge, and I think he said he had some in England.

Dr. Wardell recalled. - My father's name was Robert.

This closed the case on the part of the crown. - Mr. Pearce wished to address the Jury himself. - His Honor observed, that having Council to examine his witnesses, he could not be allowed to examine his witnesses, he could not be allowed to address the Jury himself.  If he had examined the witnesses himself, he might have addressed the Jury, and if a point of law had arisen, that might have been argued by Council; the King v. White, the decision of Lord Ellenborough, reported in 3d Campbell 98.

Robert Hayes. - I know defendant; on the 8th of August he was off Mount Dromedary; I am master of the Defiance; we sailed from the King's Wharf on the 28th July, and returned to Sydney on the 12th August, having been dismasted off Bateman's Bay.

Cross-examined. - Any person having written letters before that, they might have been put in subsequently.  We sailed from Watson's Bay on the 3d of August, and had no communication with the shore in the mean time; I reached Botany Bay on the morning of the 4th, where I laid wind bound till the 7th, when I sailed; I had no communication with the shore, except the customs' boat, which came off; I think Mr. Pearce has a brother here he brought Mrs. P. on board; that was on the 28th July.

Dr. Wardell. - I think Mr. Pearce did not bring letters of introduction from my sisters to me; he did not call upon me several times with a mild demeanor, requesting to know why I turned him off the farm at Bathurst; I think he wrote one or two letters to me, which required no answers; Pearce did not in direct terms insinuate any thing to me prejudicial to Mr. or Mrs. Foster.

This closed the defendant's case, when Mr. Pearce again attempted to address the Jury, but was again overruled by the Court.

The Chief Justice put the case to the Jury on the following points: - first, whether the matter was libellous in its character - that is, whether it was intended to vilify the character of Dr. Wardell, his deceased father, or Mr. and Mrs. Foster; again, whether there was sufficient proof of the hand writing, and then whether there was proof of the conveyance of the letter to the Post Office, to be conveyed to the House of Dr. Wardell.

The Jury, without retiring, found a verdict of guilty.

 

 

Forbes C.J. and Dowling J., 24 November 1832

Source: Australian, 30 November 1832[3 ]

 

Mr Villiers Pearce, for a false, and malicious libel on Dr Wardell and others, having spoke at some length in mitigation of punishment, the Court taking into consideration his very low funds, and his innocent wife and family, ordered that he be imprisoned in H.M. Gaol of Sydney for three calendar months, and at the end thereof to enter into his personal recognizance of good behaviour during the ensuing twelve months, in the sum of £100.

 

Notes

[1 ] See also Sydney Gazette, 22 November 1832; Australian, 23 November 1832.

[2 ] The Sydney Gazette, 22 November 1832, said that the Attorney General spoke to the jury before calling this witness.  "They would not have to decided, the learned gentleman told them, whether the slanders contained in the alleged libel were true or false; the sole questions for their consideration would be, whether the matter was libellous or not, and whether it had been written and published by the defendant.  The law had wisely provided that no person should write or publish that of another, which, whether true or false, might excite him to the commission of a breach of the peace, as laid down in "Russell on Crime and Misdemeanor, p. 227," and in the King's v. Perry, 4 Taunton 364.  As to publication, those great lawyers Sir Francis Bacon and Lord Ellenborough had laid it down, and it had been repeatedly decided in the Courts, that either transmission through the post, as in the present instance, or even delivering a libellous composition directly to the party libelled himself, was all that was necessary to constitute publication."

[3 ] See also Sydney Herald, 26 November 1832; Sydney Gazette, 27 November 1832.

Published by the Division of Law, Macquarie University