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

R v Hall [1833] NSWSupC 56

contempt of court, attachment - contempt of court, press commentary on jury decision - press laws

Supreme Court of New South Wales

Forbes C.J., Dowling and Burton JJ, 15 June 1833

Source: Sydney Herald, 17 June 1833[1 ]

Motions.

Mr. S. Stephen moved for a rule Nisi, calling upon Mr. E. S. Hall, the Editor of the Sydney Monitor, to shew cause why an attachment should not issue against him for a contempt of that Honorable Court.  He made the motion on the affidavit of Dr. C. Smith, who stated that he was a witness on a case where one Captain Mark Riddle Tompkins was convicted of perjury, on Monday, the 10th of June, on which Mr. Hall made comments, tending to bring that Court into contempt, and ridiculing the finding of the Jury.  Mr. S. thought that Editors of newspapers had carried on this system too long, it was time it was put a stop to.  Rule to shew cause granted.

 

Forbes C.J., Dowling and Burton JJ, 24 June 1833

Source: Sydney Gazette, 27 June 1833[2 ]

 

Mr. Sydney Stephen moved that the rule obtained against Mr. E. S. Hall, the editor of the Sydney Monitor, on Saturday week last, for a contempt of that Honourable Court, be made absolute.  Mr. Stephen made the application on the affidavit of Doctor smith, which set forth that he was a witness on the trial of Mark Riddle Thompkins, for perjury, on the 10th instant, and that Mr. Hall had, in the following article in the Sydney Monitor of the 12th, published a comment on the proceedings of the Honourable Court, which had a tendency to bring it into contempt, and the verdict of the jury who tried the case into ridicule.

The following article contains the observations on which the motion was founded:-

"In the trial of Captain Thompkins, it appears to us that it would be just as reasonable to place all the witnesses at the bar to be tried for perjury, and convict them one after another on the evidence of the witnesses on the other side, as it has been to place Thompkins at the bar and find him guilty.  The occasion of all the erroneous swearing on both sides is this ; the prosecutor, in breaking open the door of a bedchamber, excited the alarm and anger of a lady inside, and of her sister, snd [sic] of her sister's husband; and also greatly excited even the bailiffs and lodgers, whatever the nature of that excitement might have been.  In the uproar, wrath, wrangling, fancies one thing. Mrs. Thompkins another, Mrs. Rogers a third, the bailiffs a fourth, and the lodgers a fifth; and each party is more confident than the other, and ready to swear point blank that themselves are right and the other wrong.

"Nothing therefore can be more absurd that he verdict of Guilty against Capt. T. that Capt. T. swore falsely is easily imaginable, but it is highly probable that he himself, verily believed and still believes his own oath.

"For Capt. Tompkins' violent feeling, and his probable consequent delusion, every allowance must be made; no man of feeling could stand by and see his wlfe's [sic] bed-room broken open, without being excited to a pitch just short of madness, and if he had seized the axe and floored the Doctor we should have been grieved but not surprised.

"Dr. Smith had better have brought an action against Thompkins for false swearing, and let the merits have gone before a special jury."

"we sincerely hope a new trial will be granted.  There is a precedent for a new trial in a case of perjury tried before Mr. Justice Stephen and which was granted on the recommendation of the latter."

Mr. Keith opposed the application.  He contended that there was nothing in the paragraph in question which could stamp on the most fastidious mind an impression that its object was that to which Mr. Stephen would confine it.  It was clear it had no such object; the utmost latitude that could be given to it was, that it was a mere commentary on a bygone proceeding of the Court, and where was our boasted privilege of a free press if such a commentary were to be visited as a contempt of a court of justice?

Mr Stephen attempted to point out, in an address of great length, the pernicious tendency of such editorial remarks as those before the Court.

His Honor the Chief Justice was of opinion that the rule must be discharged, inasmuch as on a careful examination nothing could be found in the matter alluded to which could bear the construction of a contempt.  He was of opinion, that the utmost which could be said of it was, that it was an injudicous [sic] article, and written in bad taste: the effect of such article, as to its influence on the Court, he felt to be perfectly harmless.  The laws of the country of which he was the humble representative, were not likely to suffer in their administration by such means, which in his opinion was not the object sought to be gained by the writter [sic]: it was a mere harmless comment on a bye-gone credit.  As to the word absurd, as applied to the Jury, it might be called an uncivil term, but certainly not calculated to bring them into contempt.  The conduct of Juries was open to comment; for it was a notorious fact, that verdicts of a most ridiculous nature had frequently been returned by Juries.  Under all the circumstances of the case, he was of opinion that he rule should be discharged.

Mr. Justice Dowling expressed himself of opinion, that it were better had the application never been made.  He was decidedly of opinion that the rule should be discharged.  In the case of the King v. Clements, an attachment had been issued against the defendant for taking upon himself to violate an order of Court, in giving publicity to a matter in abeyance, which it was the policy of the Court to suppress, until the remaining cases which were connected with it had been gone through.  The defendant thought proper to violate that order of Court, and was fined.  That was a well defined case of contempt, but the present case was different altogether in its complexion, and certainly did not warrant the application.  His Honor proceeded at some length in support of his opinion that the rule should be discharged.

His Honor Mr. Justice  Burton said that when the rule was applied for in the first instance, he was of opinion that it would be as well to hear the arguments of counsel on the subject, and it was granted; but expressed himself decidedly of opinion with his learned colleagues, as to the propriety of its being now discharged.  His Honor supported his opinion, by a judicious train of arguments, adverting to the great latitude given to the press in the mother country.  He observed that it was very proper that the proceedings of Courts of Justice should be subject to public criticism, else Juries, feeling themselves under no restraint, might by possibility unconsciously throw off that nice attention to the matter before them which it demanded, and render that important branch of the constitution a perfect nullity.  He also, in conjunction with his learned brothers, was of opinion that the rule should be discharged - Rule discharged.

 

Notes

[1 ] See also Australian, 21 June 1833. See R. v. Tomkins, 1833, for the case on which this action was based.

This case appears to have revived interest in the colonial press laws.  On 19 July 1833, McLeay, the Colonial Secretary, wrote to Forbes C.J., Dowling and Burton JJ, to seek their opinion on whether (1827) 8 Geo. 4 No. 2 concerning seditious and criminal libel was still in force.  The Governor wanted to know whether the Act was of limited duration; and if not, whether it was affected by subsequent Acts ((1830) 11 Geo. 4 No. 1,and (1831) 2 Wm 4 No. 2).  The 1830 Act amended the original Act, but was in force for only two years.  The question was whether the original Act's provisions now revived.  The judges simply replied that the original Act's provisions had been revived.  Source: Chief Justice's Letter Book.

 

1824 - 1835, 4/6651, State Records of New South Wales, pp 322-323.

[2 ] See also Sydney Herald, 27 June 1833 which reported the judgments as follows: "The Chief Justice thought the rule should be discharged, at the same time they thought the article injudicious, and in bad taste, but there was a great difference between that and contempt.

"Judge Dowling thought the application might have been very well spared, but he as an individual member of that Court did not think the saying, ``he hoped and trusted the Court would grant a new trial," was a contempt; the paragraph was certainly injudicious.

"Judge Burton thought it would be strong to lay down as an abstract principle, that the saying the verdict of a jury was absurd, amounted to a contempt.  He had known instances where the verdicts had been absurd.  If they were to hold that, it would put an end to all comments on the finding of Juries, and they might play any tricks, or return any verdict, however absurd."

See also Australian, 1 July 1833, reporting that it was merely uncivil to state that judges or jurymen were absurd, not a contempt of court.

The case is noted in Dowling, Proceedings of the Supreme Court, Vol. 83, State Records of New South Wales, 2/3266, p. 96, where it is stated that the court found that "though the observations were in bad taste & injudicious, there was no ground for considering the deft guilty of a contempt of Court.  Rule refused."

Justice Dowling also complained about another comment by the Monitor concerning a rape case in 1832: see Historical Records of Australia, Series 1, Vol. 16, pp 656-657, 807-808.

Published by the Division of Law, Macquarie University