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

R v Raine, 1833

Court of Requests - criminal libel - Therry J., libel of - civil procedure - capias - contempt of court - Montagu J. of Van Diemen's Land

Supreme Court of New South Wales

Forbes C.J., Dowling and Burton JJ, 1 June 1833

Source: Sydney Herald, 3 June 1833[1 ]

 

Ex-parte John Raine. - Mr. Norton moved for a rule Nisi, calling upon Mr. Raine to shew cause why a criminal information should not be filed against him for writing a letter, charging Mr. Therry with acting extra judicially and intimidating a witness, in his capacity of Commissioner of the Court of Requests, and also with spreading a report that he had threatened to horsewhip Mr. Therry.  Some other affidavits having been read in support of the motion, it was granted.

 

Forbes C.J., Dowling and Burton JJ, 26 June 1833

Source: Sydney Gazette, 29 June 1833[2 ]

 

Exparte, Roger Therry v. John Raine - This was a rule nisi, obtained against the defendant, to show cause why a criminal information should not be filed against him for writing a libellous letter to the plaintiff, in his capacity as Commissioner of the Court of Requests.

Mr. Norton now moved, that the rule be made absolute, and put in affidavits in support of the motion. The affidavit of Mr. Therry stated, that on the 10th April, 1833, a case came before him at Parramatta in his capacity of Commissioner of the Courts of Requests, in which Mr. John Raine was defendant; a bill of particulars to the amount of £4 had been filed, as also a set off £8 13s. the amount of a number of red cabbages, which had been damaged by plaintiff's cattle.  Plaintiff produced witnesses, who deposed that the number of cabbages damaged did not amount to more that 200, when the defendant's son came forward, and volunteered to make oath that there were 1000 destroyed on the occasion.  Observing the warm zeal of the youth in the interests of his father, and seeing that a number of persons had deposed to the contrary, he cautioned him in a mild and parental manner against venturing such testimony; observing that if he persisted he would have his evidence taken down, and the ground should be measured, to ascertain the actual damage done; he accordingly declined taking the oath, and a short time subsequently Mr. T. received a letter from his father to the following effect:

"Sir - I have to express my indignation at your conduct towards my son this day, who I apprize you has claims to the character of a gentleman by birth, and conduct, equal to, if not higher than your own, and knows the nature ot [sic] an oath as well as yourself, needed not the uncourteous, indecent, and highly improper attack made upon him.  Such conduct was extra-judicial on your part, and I consider that an explanation is due to my son and myself.

"To Roger Therry, Esq. Commissioner of the Court of Requests."

Subsequently to receiving this letter, the defendant met Mr. Therry in the street, and observed to him that he had written a lotter [sic] to him which he had failed to answer.  Mr. Therry told him, he had conceived it to be a letter which could not, or ought not to answer, but he would consider the letter and defendant's conversation on this occasion, when defendant told him to do his worst.  Other affidavits were put in setting forth, that defendant had boasted of having written the said letter to the Commissioner, whom he would horsewhip at a convenient opportunity.

Mr. Keith opposed the motion, submitting to the Court the wounded feelings of the father, on learning that his son had been stigmatized in a public Court, with a desire to commit perjury.  It had been represented to him be several persons, that his son had received the most debasing treatment at the hands of the Commissioner, and he could not allow such a stigma to rest upon him, calculated as it was to have an influence on him through life; he would suffer any punishment rather than such should be the case.  If Mr. Therry repudiated the opinion that his son in tended to commit perjury, and the defendant had acted under the excitement arising from having mistaken his motives, he would apologize.  He felt convinced that any man would be borne away by the torrent of his passions under such circumstances; heightened as they were by the representation of one of the very persons, Mr. H. Taylor who now makes affidavit, that the conduct of Mr. Therry was mild and becoming, and he would feel pleased if he had so acted towards a son of his; that very person had acted as agent to Mr. Raine on that occasion, and the affidavit of a gentleman was before the Court, which would prove that on his return to Mr. Raine, he represented that the conduct of the Commissioner was most shameful, and if such a thing had happened to him, he would play the devil with him.  Their Honors, would see that the defendant had acted under irritated feelings without a desire to bring the Commissioner, into ridicule and contempt, having never shewn the said letter to any person prior to having addressed it to Mr. Therry, the case stood differently from one which had been made the subject of public comment; and he felt that their Honors in taking into consideration, the respectability of the defendant and his son, who had suffered much mental pain by the circumstance, would discharge the rule.  The Court intimated to Mr. Norton, that it did not require his reply, sufficient having been heard to direct them to make the rule absolute - Rule made absolute.

 

Forbes C.J., Dowling and Burton JJ, 6 July 1833

Source: Sydney Herald, 8 July 1833[ 3]

 

Mr. Norton observed, that he wished the Court to set right a report contained in the Sydney Gazette of the 2nd July, in the case of Therry v. Raine, which stated that the Court had said, ``a little concession on both sides would have been better."  The Chief Justice observed, that he delivered the opinion of the Court on that occasion, when he distinctly stated that Mr. Raine was now before the Court to justify himself, but not that he was to make concessions; he thought that if Mr. Raine came prepared to apologise to Mr. Therry, and pay the costs of the application, that Mr. T. would perhaps be satisfied with it.  It was quite a mistake, he never intimated that Mr. Therry had any concession to make, it was not only a mistake but the reverse of what he had stated.

 

Burton J., 26 November 1833

Source: Sydney Herald, 2 December 1833[4 ]

 

Tuesday. - Before Judge Burton, and a Civil Jury.

The King on the information of Therry against Raine.

This was a criminal information for libel, filed by Roger Therry, Esq., Commissioner of the Court of Requests, against Mr. John Raine of the Darling Mills, near Parramatta.

Mr. Norton opened the pleadings.  The libel as set forth in the information, was contained in a letter from defendant to prosecutor, dated the 10th of April last, and was sent to his house in Sydney, but was not received by him until a fortnight after, when he returned from his circuit.  The letter was read in Court.

The defendant thought proper to write this letter to the prosecutor, in consequence of an occurrence at the Court of Requests Parramatta, in matter of debt - Kingaby against John Raine.  Amount sought to be recovered £4 16s., against which, defendant put in a set-off amounting to £8 13s., and among the items was a charge of £5, for one thousand red cabbages.  Several witnesses, among whom were two of defendant's assigned servants, were examined particularly as to this item, and their testimony did not make the number exceed two hundred cabbages.  Hugh Taylor attended at the Court of Requests as agent for defendant, and was accompanied by Robert Raine, defendant's son, who did not attend there as a witness, but on hearing the testimony differ so much with the item in his father's set-off, exclaimed - that he would swear there were one thousand cabbages.  The prosecutor on that occasion cautioned and admonished Robert Raine after the evidence given, and said, if he persisted, he (the prosecutor) would have the ground measured, take down his words, and if found to be false, would commit him; but Robert Raine was not finally sworn on that occasion.  The defendant, excited by a recital of this occurrence, wrote the letter referred to, and before he sent it, showed it to several persons, Hugh Taylor and others, who advised him not to send it.

The prosecutor did not reply to this letter; he felt that it was a letter he could not reply to.  Some time after this, prosecutor met defendant in George-street, Sydney, when he was asked by defendant if he had received the letter? he replied that he had.  Defendant said to prosecutor, ``I now tell you that your conduct was improper, unwarrantable, and disgraceful."  Prosecutor remonstrated on the application of such terms to him, when defendant was not present on that occasion; and said many respectable persons in Parramatta could have informed him to the contrary; that prosecutor would consider what course to pursue in this case; and had no conversation with defendant since.

Many witnesses were examined as to the conduct of the prosecutor towards Robert Raine in the Court of Requests, on the 10th day of April, and their testimony went to prove that there was no improper excitement or conduct betrayed by prosecutor on that occasion.

The case for the prosecution having closed, Mr. Keith made two objections, which he thought must he fatal to the case.  First, that there was no evidence before the Court to prove that Mr. Therry was Commissioner of the Court of Requests.  Secondly, that the information alleges that at Parramatta, one John Kingaby was plaintiff, and John Raine defendant; while copy of summons stated J. S. Kingaby, which might not be the same person.

These objections were over-ruled by His Honor, who said defendant's letter was addressed to Roger Therry, Esq., Commissioner of the Court of Requests.

Mr. Keith then made an appeal to the feelings of the Jury, in favor of the defendant.

The Jury after retiring some time, pronounced the defendant Guilty.[5 ]

His Honor ordered defendant to be brought up on the first day of the next term for judgement.

 

Forbes C.J., Dowling and Burton JJ, 2 June 1834

Source: Sydney Herald, 5 June 1834[ 6]

 

Rex at the prosecution of R. Therry v. John Raine. --- A process of the Court had been issued to bring the defendant forward to receive judgment this day.  Notice had been sent, but he had evaded the delivery of the same.  The affidavit of Patrick Burke set forth that he had served the notice at the house at which defendant resides when in Sydney, and has reason to belive that he was in the house at the time.  Mr, Norton moved for a writ of capias, returnable on Saturday next. --- Granted.

 

In banco, 7 June 1834

Source: Sydney Herald, 12 June 1834[7 ]

 

The King, at the prosecution of R. Therry, Esq. v. John Raine. - In this case a writ of capias issued against defendant to bring him up to receive judgment, being now present, Mr. Norton prayed that judgment pass accordingly.

Mr. Keith, on behalf of the defendant, stated that he was instructed to submit an apology for his conduct, which, although at a late hour, it was trusted would be accepted by the Court, under consideration of the very peculiar circumstances out of which the case arose.  The prosecutor had very humanely expressed his unwillingness to press for punishment; and as the defendant was now suffering under an excruciating attack of rheumatic gout, it was feared that, should the Court decree his imprisonment, it would be the cause of his death, thereby destroying that protection and support on which an aged mother and youthful son depended.  He was happy in having an opportunity to express his extreme sorrow for having written the offensive communication to the prosecutor, as he had been convinced some months ago of the fact, that he had not intended to degrade the character of his son; but had been influenced in that conduct, which unfortunately had been misconstrued, by the most laudable motives.  He regretted that the misrepresentation of parties present on the occasion, had made a contrary impression on his mind at the time.  The court would take into consideration the natural state of excitement to which the agonized feelings of a father, for the honor of his son, had thrown the defendant on the occasion, and he felt that ample allowance would be made.  The jury who had tried the case, had accompanied their verdict by a recommendation to mercy; which recommendation had been signed by eleven of the jurors, and it was a remarkable fact, and one which merited the consideration of the Court, that the only person who refused to concur in that recommendation, was a gentleman who had been objected to on the trial.  These facts being presented to their Honors, he felt the most absolute reliance on the justice and mercy of the Court, that a mere nominal sentence would be pronounced.

Mr. Norton rose and observed to the Court, that he was aware that the prosecutor had no desire to press for severe punishment; but he felt it necessary to take the steps he had done, to protect his Court from annoyance of that nature, which were calculated to have the effect of impeding the due administration of justice.  He trusted that that object was sufficiently effected by the present case, the result of which would have the effect of restraining him and other persons from pursuing a like course.  With these observations, he would leave the case in the hands of the Court.

His Honor Mr. Justice Burton, who tried the case, read over the notes of evidence, and the recommendation of the Jury, when His Honor the Chief Justice addressed the defendant to the following effect: - John Raine, you have been brought before this Court to receive sentence for having written a libellous letter to Roger Therry, Esq., Commissioner of the Court of Requests, which is expressed in the following words.  [His Honor read the libel complained of.]  Upon this letter a criminal information was filed against you, and of which, after a most patient and fair trial, the Jury pronounced you guilty.  Looking at the letter itself, it is not easy to conceive a more offensive production, even if addressed to a private gentleman, how much more so then when addressed by a suitor of the Court to a Judge exercising his judicial functions, charging him with endeavouring to intimidate a witness from speaking the truth.  Charges which would disqualify him for the Judicial office, the upright discharge of which should entitle him to respect at the hands of the public, rather than expose him to such treatment as has displayed itself  in your case; and I apprehend, that did not the law possess the power of affording protection to a Judge sitting on the judgment seat against such insults, there are few gentlemen who would expose themselves to the annoyances attendant upon office under such circumstances.  It has been offered, in mitigation, that your conduct was influenced by a parental feeling of excitement for the honor of your son, who you had been instructed had been ill-treated by the Commissioner.  Is this borne out by the facts of the case?  On the contrary, it has been proved that the conduct of the Commissioner was mild and parental, influenced only by a feeling of tenderness for a youth, who in his zeal in the interest of his father, rendered such an admonition necessary.  Turning to the case itself, we find that a case is brought before the Commissioner, in which you seek to recover the amount of damages done in your garden, by the destruction of a number of pickling cabbages; the testimony as to the number varies from 20 to 120, when, at a very late stage of the proceeding, a youth steps forward and volunteers his testimony that 800 were destroyed on the occasion; in opposition to such a body of contradictory testimony, it became the duty of the Judge to warn him of his danger in submitting such a statement on oath, being aware of the serious punishment that would have been the [? of such] an act.  Every allowance might be made for human infirmity of mind; the Court can feel to what lengths the feelings of a parent may carry him, under erroneous impressions; but it appeared that your conduct was deliberate and premeditated; for it has been proved in evidence, that after you had written the letter in question, you shewed it about amongst your friends, and in acknowledgment of your conscientiousness of its highly offensive nature, called it a most tremendous letter, and in further aggravation of the same, you met the commissioner in the street some days subsequently, and after some preliminary remarks on the subject, you said, ``I now tell you sir, that your conduct was indecent, disgraceful and unwarrantable, and you may now do your worst."  The letter itself would amply support a conviction for libel; but with the addition of facts like these, it wears the most aggravated complexion that can well be conceived.  The apology which you now tender to the Court, comes very late, and has now but little claim to its merciful consideration.  You had sufficient opportunity to submit it to the Court before the rule was obtained against you, and when the prosecutor disclaimed any intention to degrade the character of your son, that was the time for you to have come forward; but you availed yourself of no such opportunity, chosing [sic] rather to take your chance of a trial, which has terminated in your conviction.  The Court has given their most serious consideration to your various allegations in mitigation of punishment, the infirm state of your health; the earnest recommendation of the jury who tried your case, on the ground that your were carried away by excitement, produced by your feelings as a parent; yet your case presents itself as one of an aggravated complexion, and points out the necessity of inflicting such punishment on you, as will protect the Officers of Justice from contumely and insult.  It now only remains therefore for the Court to pass the sentence of the law, which is that you John Raine be imprisoned in His Majesty's Gaol at Sydney, for the space of three months at the end of which time you enter into recognizances to keep the peace for twelve months, yourself in the sum of £200 and two sureties in the sum of £100 each.[ 8]

Mr. Keith prayed that the Court would order that the defendant be accommodated on the debtors side of the prison, fearing that the crowded state of that part assigned to the felons would injure his health.

The Court declined making such order, the Sheriff had the controul over such matters, and it would not interfere.

Mr. Keith referred their Honors to a precedent, in the case of Thompkins, but that was stated to be a special case, having no direct analogy to the present.

The Sheriff stated that there was no accommodation whatever in the debtor side of the prison; he felt that he could not make any such arrangement.

The defendant then withdrew in custody.

 

Notes

[1 ] See also Sydney Gazette, 4 June 1833; Australian, 7 June 1833.

[2 ] See also Sydney Herald, 27 June 1833.

[3 ] See also Sydney Gazette, 9 July 1833.

[4 ] See also Australian, 29 November 1833.  The judge's trial notes are in Burton, Notes of Criminal Cases, State Records of New South Wales, 2/2410, vol. 7, p. 158.  One of the jurors was fined for non-attendance at this trial: see Australian, 29 November 1833.

[5 ] The jury recommended the defendant ``to the consideration of the Court": Burton, Notes of Criminal Cases, State Records of New South Wales, 2/2410, vol. 7, p. 81.

[6 ] See also Sydney Gazette, 15 April 1834; Australian, 3 June 1834; and on Raine's financial difficulties, see Terry v. Brown, 1834.

[7 ] See also Australian, 10 June 1834; Sydney Gazette, 10 June 1834.

[8 ] On this sentence, see Australian, 13 June 1834, contrasting its appropriate leniency with the severity exhibited by the ``judicial bullyism" of Montagu J. of the Van Diemen's Land Supreme Court.

The judges wrote to Governor Bourke on 9 October 1834, informing him that Therry had applied to them for repayment of his expenses in bringing this prosecution.  They told the governor that they supported the application, as the attack was on a judicial officer in the exercise of his office, and tended to bring the administration of justice into contempt.  They went on: ``In this view of the case, it was the intention of the Judges to impose a fine in addition to imprisonment upon John Raine; but in consideration of the submissive apology made by him upon being brought up for judgment, and his insolvent circumstances, which were deposed to by the Defendant, the Judges abstained from imposing a pecuniary fine upon him."  As a result, they were unable to comply with Therry's request.  Instead, they suggested, the government should pay the expenses after the costs were taxed in the usual way.  Source: Chief Justice's Letter Book, 1824 - 1835, State Records of New South Wales, 4/6651, p. 387.

Published by the Division of Law, Macquarie University