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

Houston v. Stephens and Stokes [1834] NSWSupC 112

libel - law reporting

Supreme Court of New South Wales

Dowling J., 28 October 1834

Source: Sydney Herald, 30 October 1834[1 ]

Tuesday. - Before His Honor Mr. Justice Dowling, and a Special Jury, composed of the following gentlemen;- Frederick Augustus Hely, William Faithful, Thomas Collins, Charles Thompson, Henry Fisher, Hamilton Hume, Thomas Rose, John Tingcombe, Richard Bennet, Esquires, (talesmen); Samuel Lyons, Wm. Jaques, and John Campbell McDougall, Esquires.

Houston alias Cunningham v. Stephens and Stokes. - This was an action of trespass on the case for a libel, published by the defendants, as Editors and Proprietors of the Sydney Herald newspaper.  Damages were laid at £200.

Mr. Robert Nichols opened the case.  The declaration contained three counts:- First, that the plaintiff being of good fame and reputation, the defendants did publish in the newspaper called the Sydney Herald, a false, scandalous, and disgraceful libel, tending to injure and destroy plaintiff's character, by charging him with the crime of horse-stealing.  Secondly, that having been tried for the said offence, and acquitted by a Jury of his Country, it was set forth in that publication, that he had been so acquitted by good fortune or chance - and not in consequence of his innocence of the charge alleged against him.  Thirdly, that between the committal of the plaintiff, and his trial for the alleged crime of horse-stealing, a better feeling prevailing, he suborned the prosecutor to give false testimony; in consequence of which, he was acquitted, notwithstanding his guilt.

Mr. Francis Stephen, counsel for the plaintiff, addressed the Jury to the following effect:- Gentlemen of the Jury - you have heard the different counts set forth in the declaration in order to enable you to comprehend the true nature of the libel complained of; and I shall proceed to a detail of what is referred to, in the article in which it is committed, and the declaration founded upon it.  The plaintiff is a Native of the Colony, and maintains a respectable character in that sphere of society in which he moves.  I am aware that considerable stress will be laid by the learned gentleman on the other side, on the circumstance of my client happening to have an alias to his name; but when you are told gentlemen, that it solely arises from a desire to avoid legal objections being taken to the nomenclature of the declaration, plaintiff being connected by family relationships with persons of both names, I am sure, that will make no unfavourable impression  on your minds.  In May last, he happened to come in from the country, and seeing a horse belonging to a particular fried of his, named Laurence, standing at the door of a public-house, Laurence being inside drinking, he mounted him, and rode up and down one or two streets in day-light; Laurence going to the door shortly after and missing his horse, thinking some person had stolen it, he told his servant or a constable if he saw any person with his horse to take him into custody.  After some search, the servant saw plaintiff on the horse, but on taking him into custody, he stated that he had only taken it by way of joke.  Laurence saw plaintiff a short time subsequently to his confinement, when he, the plaintiff, satisfied him of the truth of his assertion, that it was a mere jest, he having no intention to steal the horse.  The horse was then in custody of the Police, and it became necessary for Laurence to give evidence, but on going before the Magistrates he stated his willingness to forego proceedings, being satisfied that plaintiff had no desire to steal the horse - but the Magistrates insisted that the case should be gone through, and the result was, that he was committed for horse-stealing, but allowed to put in bail for his appearance.  On the trial, the prosecutor stated it to be his belief that the plaintiff did not intend to steal his horse - when the Attorney general addressed the Court, expressive of his astonishment at the committal, the prosecutor having states that he made the same oath at the Police-office, and threw up the case.  The Learned Judge who tried the case, in discharging the plaintiff from the dock, cautioned him against indulging in such jokes in future.  A few days subsequently tot he trial, an article appeared in one of the journals, taxing the Magistrates with over-zeal in committing a man for trial under such circumstances - in reference to which, an article appeared in the Sydney Herald, introducing copies of the depositions taken before the committing Magistrates.  Not resting satisfied with holding plaintiff up to the world in this publication, the prosecutor, Laurence, was himself prosecuted for perjury, arising out of the case, and was acquitted.  On that occasion it was clearly proved that he had stated at the Police-office that he was of opinion that the plaintiff did not intend to steal his horse.  It was upon this statement that plaintiff had been acquitted, there being no grounds to put him on his defence.  These, gentlemen, are the particulars to which your attention will have to be drawn.  It will appear strange to you, that a simple circumstance of this nature should have been followed up by a virulent article like the one in question, unless attended by something of an extraordinary nature; you would have expected that the case of a man who had had the misfortune to be tried on a charge of horse-stealing, but whose innocence had been established to the world, would have been allowed to slumber in the memory of society until the unmerited stigma had been effaced; but it would be shewn that no such laudable feeling was cherished by the writer of the article in question.  I do not charge the defendants with having been personally guilty of burying the shafts of their malice in the already lacerated feelings of the plaintiff, as I have no doubt they have been made the instrument of a party, who has amply indemnified them from the consequences which must result from such an outrage on public and private feeling; but it is no matter, they have held themselves forward to the world as the publishers of these base slanders, thereby rendering themselves liable to account to offended justice.  Had they merely gone the length of publishing the evidence taken before the Magistrates at the Police-office, the law would not have justified it; such statements are clearly exparte, which on trial, are frequently found to be incapable of proof.  If, however, they had merely done so, they might by possibility have been enabled to give some explanation for their conduct, when the present action would not have been brought.  On the contrary, gentlemen, you I am sure will feel, that their conduct towards the unfortunate individual who claims your protection this day, has been indicative of the bitterest feeling of malice, which tarnish the character of humanity.  The plaintiff, gentlemen, is in a humble sphere of life, he has had the misfortune to be tried for horse-stealing, but, gentlemen, is that to justify the defendants in mercilessly dragging him before the public eye, - holding him up as a guilty man; no, gentlemen, I feel that you have too much regard for the interests of society to give your sanction to such a departure from the ordinary principle of right.  Slander, in a moral pint of view, admits of no justification in a well-regulated commmunity [sic]; but in he eye of the law, a justification of slander, must be supported by the fact, that it was bona fide intended for a beneficial purpose; but, gentlemen, look at the article in question, and say if there is any thing like a spirit of good feeling, or of candour breathed throughout.  It appears to have been written in reference to an article which appeared in the Australian, animadverting on the slovenly conduct of the magistrates in acquiting themselves of their official duties.  The writer says, he is not defending the magistrates; what then is his object? is it a fair and legitimate subject of discussion in which he evinces a desire to be cautious of slander.  Does that slander appear to you, gentlemen, to be necessary to the promotion of a beneficial object or if necessary, does it appear to be justifiable?  I think you will say not gentlemen.  The article is headed ``The Horrible Law System;" for what purpose can this be used? is it to draw particular attention, to point out to the world the malignant and rancorous feelings which actuated the writer, at a moment of excitement?  That heading alone, gentlemen, affords indisputable testimony of the vituperative spirit of the writer, who, not satisfied with indulging in the virulence of slander against the unfortunate plaintiff, runs a-muck, striking at the feelings of all parties connected with the legal administration of the country, not even sparing the learned Judge on the Bench evidently not satisfied with an endeavour to shield the magistrates from the imputation of blame, but scattering the malice of his slander around the Court, being mortified by the acquittal of the paintiff [sic].  You will see, gentlemen, that the whole tenor of this article makes out the inuendo [sic], that the plaintiff was guilty of the crime of horse-stealing, his acquittal being the result of the negligence of the Crown Officers, and not of his innocence; an acquittal is prima facie proof of innocence, when by such verdict is proclaimed to the world; should it be attempted to be pressed upon you that he was guilty, there is no ground why you should give it your consideration in reference to this issue.  The second inuendo [sic], is, that the acquittal of the plaintiff was not his innocence of the charge, but the result of good fortune or chance; there is a third inuendo [sic] of a very flagrant character, and which has a peculiar claim to your consideration; it not only charges the plaintiff with the crime of horse-stealing, but with having induced a person to give false testimony; the result of such subornation of perjury being his acquittal from that charge.  What can be meant by this part of the article?  Gentlemen, it is not necessary, in support of this count, that it should have been stated in direct words, that plaintiff bribed his friend to come forward in the Supreme Court and swear he did not believe that he intended to steal his horse, and that he swore the same thing at the Police Office, in order to obtain his liberation; look at the article itself, and say whether or not this is a just interpretation of it.  If you are satisfied of that fact, it follows that plaintiff has been cruelly libelled, and it will be for he defendants to make the best defence they can thereto; and for you, Gentlemen, to award such damages as, while it affords to the plaintiff at best but an inadequate compensation for the injuries his character has sustained - a character on which his future prospects depend - will teach the defendants, that the law will not allow them to trample on that character with impunity.  I cannot for a moment anticipate the nature of the defence, that is intended to be set up against this action, I must therefore wait until the ingenuity of the learned Counsel, on the other side, has explained the grounds on which such defence can possibly be raised.  I cannot conceive that that defence can be such as to entitle them to any chance of your verdict.  Gentlemen, in relieving the plaintiff's character of the stigma which the malice of the defendants has cast upon it, you will have to consider, what compensation can in justice be awarded to a man who has been held up to the world, by a Journal boasting of an extensive circulation, as a person guilty of a disgraceful capital offence, and subornation of perjury.  In exercising a reasonable discretion herein, the humblest members of the community will learn, that their characters and interests are respected by the country, and that the shafts of slander which, for the gratification of a malevolent spirit, or any unworthy consideration, may be levelled at them, will under your protection fall harmlessly around them.  After what you have heard of the merits of this case, I feel assured, Gentlemen, that I need not trespass further on your time.  I will therefore now put in the article containing the libel complained of, and proceed to call evidence in support of the plaintiff's case.  [Article read to the Court.]

For the plaintiff the following witnesses were called:-

John Gurner Esq. - I am keeper of the records; I produce a record of the trial of John Houston, otherwise John Cunningham, for stealing a horse, the goods and chattels of Ann Laurence; the trial took place on the 3rd of May last; a verdict of not guilty, was returned by the Jury, and the prisoner was discharged.

W. Newcombe - I am a Clerk in the Office of the Colonial Secretary; I keep the affidavits of Editors and Printers of Newspapers; I produce an affidavit sworn to by the defendants in this case, as Editors and Publishers of the Sydney Herald; the affidavit is sworn before the Colonial Secretary the Honorable Alexander McLeay, whose signature is thereto attached; I saw the defendants attach their signatures to the affidavit on the 1st November, 1831, as required by a Local Ordinance; I produce the Sydney Herald of the 12th May, it is signed by the defendants in manuscript, it is in my custody, agreeably to the Ordinance referred to, (affidavit put in and read to the Court in proof of the identity of defendants as Editors of the Sydney Herald.

R. Nichols examined - I was present at the trial of the plaintiff in this action, in May last, for horse-stealing, he was acquitted; the article produced refers to him, and to the trial that took place that day.

Cross-examined by Mr. Wentworth - I was one of his counsel, and Mr. Francis Stephen the other; the article is an answer to an article which appeared in the Australian, of which I am one of the Proprietors; Mr. Stephen is also a Proprietor of that Journal, we were so at the time of the publication of the article referred to; the reference of the article in the Herald to that in the Australian, is correct; it states in the Australian, that plaintiff was ``a particular friend of Laurence's, and rode away with his horse for a bit of fun;" one article led to the other; that in the Australian is of prior date; one is a comment on the committal of the plaintiff by the Magistrates, and the other is a comment on the conduct of Laurence, the Crown-Officers, and the ``Horrible Law System;" I did not acquit the plaintiff on that occasion, a Jury of his country acquitted him; I did not consider it necessary to whitewash him after his discharge, by publishing in my Journal, a reflection on the Magistrates who stupidly committed an innocent man; he required no such whitewashing at my hands.

Re-examined. - The depositions taken before the magistrates are inserted below the article in question in the Herald; I am of opinion that it was as much a comment on the acquittal, as contrasted with the verdict, as on the conduct of the crown officers; I am aware that as a matter of practice, it is not usual to publish such depositions in the newspaper, unless from some extraordinary cause, nor are they readily obtained; I am of opinion that they must have been furnished by some person connected with the Police office.

Cross-examination continued. - I t is not always easy to obtain copies of depositions, even by paying for them; I am not aware that the article in question is one on which the Solicitor-General applied for a rule to file a criminal information against defendants; I am of opinion that a passage in the article implies that for the benefit of plaintiff Lawrence swore falsely, and that in consequence he was acquitted of the charge of horse stealing; the conclusion is in reference to the whole matter, rather than to any particular part of it.

J. Keith, attorney at law. - I have read within the last half hour, a manuscript of the article which appears in the Herald, in which I see plaintiff's name is made use of; taking the sentence in reference to Cunningham, it unequivocally alleges that he escaped punishment on a charge of horse stealing, in consequence of the negligence of the crown officers; looking at the whole article, I should say also, that it implies that plaintiff escaped through perjury; it implies unquestionably that he was guilty of the offence of which he had been acquitted; the interpretation that I should put on the sentence commencing with ``A better feeling prevailing," is, that for the benefit of the plaintiff, his friend Lawrence, the prosecutor, swore falsely.

Cross-examined by Mr. Wentworth. - Perhaps, I may be a little inclined to put the worst construction on every thing; it might certainly be made to imply, that plaintiff had persuaded his friend Lawrence that he had only taken his horse ``out of a bit of fun;" the writer might have intended to imply the possibility of Lawrence having altered his opinion as to plaintiff's guilt, without having committed perjury; in looking only at the depositions themselves, I think I should certainly have come to the same conclusion as the writer.

Mr. F. Stephen - In answer to Mr. Wentworth's question as to the sentence ``But between the committal and the trial a better feeling prevailed," you have stated that the writer might have intended to imply, that the prosecutor had altered his opinion without having committed perjury; do you think, looking at the entire article, that the writer meant so to express himself?

Witness. - I am of opinion, that that was not the intention of the writer, or he would have expressed himself in an unequivocal statement, rather than have confined himself to an insinuation, as he has done.

This closed the plaintiff's case, when

Mr. Wentworth addressed the Court to the following effect:- Gentlemen, I think you will readily and clearly perceive that my learned friends on the other side were not content with doing their duty towards their client, who had the misfortune to be tried for horse-stealing, and also the good fortune to be acquitted, whether wrongly or otherwise is not for me to say, for which duty they were paid; but in the plenitude of their zeal, they went farther, in order to whitewash him in their paper, for which they were not paid; but although gentlemen, their zeal led them to such extraordinary exertion of an apparently unprofitable nature, you must not imagine that my learned friends could not anticipate the result; no one can have a deeper view of subjects of this nature than the learned Editors of the Australian - they were aware that such a course would necessarily call forth a rejoinder, from which something could be extracted by way of compensation for the trouble they had taken in the unpaid white-washing affair.  Had they not exercised the judicious discretion, the Court certainly would not have been troubled with the present case - but what can be a better proof of their zeal in the interests of their client - it is most ungracious therefore to impute blame to them for performing this act of supererogation; but gentlemen, with their usual profundity of penetration, they judged with admirable precision that the whitewashing business would produce a reply, out of which they could get a windfall - in which windfall, certainly, your humble servant, thanks to my learned friends, has participated.  You will perceive gentlemen, that the whitewashing was a mere feeler, which has had the wished for effect in enabling my learned friends to come before you this day.  As to the verdict at your hands, it matters not to them what may be its amount, that is not their business, they know that a farthing carries costs, which is all they require.  Gentlemen, no bounds can be put to the deep views of my learned friends - they calculate largely on the success which may attend them on obtaining your verdict this day, when they have another case in readiness, in which you may also be called upon to give damages.  In the course of this examination you will have perceived, that according to the ingenious interpretation of my learned friends, others have also been libelled; should fortune smile upon their endeavours, they then will come boldly forward and also demand your verdict - with this advantage certainly over their fortunate predecessor, that they will come into court with only one name.  Gentlemen, I felt some difficulty in subduing my risible faculties, when I heard that a plaintiff was about to presume to go into a court of justice, for compensation for loss of character, with an alias to his name; but, Gentlemen, when I found that the same man had had the good fortune to be tired and acquitted for horse stealing, I laughed outright!  Gentlemen, there is much room to believe that the plaintiff is well versed in horses; he is a native of the Colony, and to mount a horse at a moment's notice, in any place, or under any circumstances, is no difficult task for him; in the part of the country where the first principles of this science were inculcated, they disdain the usual accompaniments of saddle and bridle - he would as soon have experimented on an animal without those necessary appendages - it is all one to him.  I need not remind you, Gentlemen, that in the Australian is an article imputing blame to the magistrates; what could be more natural then that some friend would take up the subject in vindication of a respectable body of men?  My learned friend insinuates that that friend is himself a magistrate - whoever he be, he is doubtless a friend to public justice, and to its administration.  To correct the poison of this uncalled-for and unmerited attack on the magistrates, what could be more natural and praiseworthy, than that the conductors of a public Journal, professing to protect the liberties and interests of society, should step forward? And yet, Gentlemen, you are told that this alleged-to-be-libellous article has no beneficial object or purpose!  Gentlemen, my learned friend Mr. Nichols professes not to know that upon the article in question the Solicitor-General founded a criminal information.  I admit that in vindication of the magistrates, the article contains an imputation on the Crown officers and the Court - in fact, a general reflection on the administration of justice; but what, then, is the situation of the defendants?  Called upon yesterday to shew cause against a rule for a criminal information - prosecuted to-day by a civil action for libel - and threatened again to-morrow!  Gentlemen, I defy any one to say that the article charged as libellous is any more than a necessary comment upon the conduct of the prosecutor; Mr. Keith, their witness, himself admits, on looking through the affidavits, that it is a just comment, and that he would have drawn the same conclusion as the writer.  I must tell you, Gentlemen, that you have nothing to do with the opinion of Mr. Keith, or that of any other man; you are as competent to say whether the article in question has a libellous tendency or not.  Few men, in giving their opinions individually on any subject of this nature, agree in the interpretation of what is called an inuendo [sic] - and whatever Mr. Keith's opinion of the case may be, I take a far different view of it, in which, as men of sense, I am sure you must concur.  Read the article, paragraph by paragraph, and you will see that nothing more is said than was actually necessary in vindication of the magistrates.  It has been stated, that the evidence before the magistrates was of the simplest character; look at it, and say, on the contrary, could any magistrate in the world avoid sending the plaintiff to his trial?  I will not cast any reflecting on the fact of his acquittal, but I will say, that there was a sufficient prima facie case for the magistrates to send him to his trial.  These, Gentlemen, are not the exparte statements which my learned friend has suggested to you.  Let me ask you if any magistrate could have adopted a better course in acquitting himself of his duty than is exhibited on the face of these depositions?  There you find the cross-examination of the prosecutor's servant by the prisoner; why did he not then venture to ask the prosecutor, if he was not aware that he had no intention of stealing the horse, but had taken it ``out of a bit of fun?" why did he allow himself to be committed on the charge of horse stealing, when he could have drawn such an admission from the mouth of the prosecutor himself?  Gentlemen, allow me to ask you what sort of freak it is to mount the horse of a friend whom you have not spoken to for four years, while the animal is standing unprotected at the door of a public house, and (without having the friendship to stop and exchange a few friendly words with your long absent friend) to ride away with his horse in an unfriendly manner, and put him to the necessity of lodging you in the custody of the police?  Is such conduct towards a long-lost friend customary? or consistent with the views and habits of society?  Gentlemen, let me ask you how the plaintiff could know that the horse he took for ``a bit of fun" was the property of his friend Lawrence, whom he had not known for four years, seeing (as it has been represented to you) that he was drinking inside the house, leaving the animal at the door?  Was it by intuition that he knew it belonged to his old friend, whom he had not spoken to for four years?  Lay it to your own consciences, Gentlemen, and say, did not the facts disclosed in evidence fully justify the magistrates in committing the plaintiff?  Is it, then, I would ask you again, Gentlemen, to be wondered at, that the defendants, as public Journalists, should have stepped forward to parry the attack made upon the magistrates in the article which appeared in the Australian?  Gentlemen, I will tell you, I will proclaim it to the world, that they would have been culpably wanting in their duty to society (to the magistrates particularly, who in the exercise of their duty had faithfully consulted the interests of justice) had they had not done so - they would have slept on their posts, thereby proclaiming themselves unworthy of the confidence of the Public, of whose rights and interests, they, as public Journalists profess to be the guardians.  No; gentlemen, with a promptness highly creditable to their professional characters, they take the field in support of the Magistrates, when the Crown Officers take fire and let fly a criminal information against them.  It is impossible, Gentlemen, for my learned friends to point out a single libellous expression through the whole tenor of the article alluded to.  No; but my learned fried sticks to his declaration, to his inuendo [sic], and would fain wish you to believe that it charges the plaintiff with subornation of perjury.  The publication is presented to you, Gentlemen, under every possible aspect; my learned friends have racked their legal ingenuity to the utmost possible extent, to find out something libellous; and at length, rejoicing in their good fortune, they have pounced upon the word feeling, which they have construed as ``subornation of perjury."  Why, Gentlemen, I cannot suppress my merriment at the tact of my learned friends; might they not as well have called the horse itself ``subornation of perjury?" only think of the ingenious, though far-fetched genius of my learned friends!  Gentlemen, look at Johnson's Dictionary, and place ``subornation of perjury" in juxta-position with the little, harmless, word feeling! the quintescence of this dreadful libel, agreeably to the vocabulary of my learned friends Messrs. Stephen and Nichols!  Gentlemen, I don't think it requires any great ability to prove the incorrectness of this solution; but, if you should be of opinion that it would be the safer course to refer to ``Johnson," I have an excellent edition of that author within a quarter of a mile, which I will lend to you to set the question at rest with regard to this ``horrible word ``feeling" (roars of laughter in Court.)  I must add though, Gentlemen that my dictionary is not for sale.  Gentlemen, I will repeat that it is impossible for you to attach the meaning to the inuendo [sic] which has been set forth; even my friend Mr. Keith, who admits that his nature induces him to seize on the bitter side of every subject, admits, that there was a possibility of the writer having intended to convey his impression that an explanation had taken place between ``George" and my friend with the alias, something in this manner: ``George, I hope you will not follow this matter up, we are old friends together, and you know that I could not possibly intend to steal your horse."  This was an explanation, however, which the gentleman with the alias did not venture to demand during his examination.  Gentlemen, let me once more ask you, is this any more than a fair comment on a public transaction; by a journal, which is bound to its supporters to give fair reports of the occurrences of the day.  You are called upon to give the plaintiff damages, because the defendants have used the dangerous word feeling.  I tell you gentlemen, it is your duty to sustain the conductors of the Public Press against such attempts as these to reach their pockets, when you are satisfied that they have not over-stepped the bounds of consistency; if, indeed, they had published their opinions on the merits of a case, which, in a future day, would be submitted to the consideration of a jury, such publication having a tendency to generate an improper influence on the mind of the public - the plaintiff would doubtless have had reason to complain; but in this case, the trial is justly permitted to pass over, and not until some days subsequently does the article appear.  When these Counsellors attack the Magistrates in the manner set forth in the Australian, is it not too much for common decency, to complain that the defendants stepped forward in their defence.  You have been told gentlemen, that the plaintiff is a poor man; he, gentlemen, has drawn this misfortune over his own head, through the injudicious zeal of his friends, and merits no pity - for I confidently anticipate your verdict.  These are the views gentlemen, which you will take of this case, and I will say, that if the conductors of Public Journals, are not to be allowed to reply, to such attacks as have been made on the Magistrates in the present case, the sooner the Liberty of the Press is taken from us, the better; for it must eventually be confined in its operations to the support of thieves.

His Honor Mr. Justice Dowling. - Gentlemen of the Jury; this is an action brought against the defendants for an alleged scandalous and malicious libel, of and concerning plaintiff, published in a certain newspaper called the Sydney Herald, of which they are the Editors and Publishers.  Gentlemen, the first count in the declaration, charges the defendants with having insinuated in a certain article, which appeared in that Journal on the 12th May last, that plaintiff was guilty of the infamous crimes of horse-stealing and of subornation of perjury.  A second count sets forth, that the defendants stated in the article referred to, that plaintiff, who had been tried before the Supreme Court and acquitted, had obtained such acquittal in consequence of the negligence of the Crown Officers, and not as the result of his innocence of the offence with which he was charged.  A third count goes on to say, that defendants insinuated, that between the committal and the trial, he had suborned the false testimony of the prosecutor, by which he had obtained the said acquittal, notwithstanding he was guilty.  Gentlemen, the first question for your consideration is, whether or not you are satisfied that the defendants were the Editors and Publishers of the Sydney Herald of the 12th of May, containing the libel charged in the declaration?  Gentlemen, from the evidence of Mr. Newcombe, of the Office of the Colonial Secretary, you will find that fact pretty clearly established.  You have heard the article complained of, read to the Court, together with the various inuendoes sic] in the declaration deduced therefrom, as also the evidence of the witnesses on the part of the plaintiff; are you satisfied, Gentlemen, that these inuendoes [sic] are made out?  I am bound to tell you that you are at full liberty to form your own judgement in this matter, and not to be influenced by the opinion of any man.  The law of libel stands in a peculiar position; by the Statute, the Jury are made judges of the law as well as of fact in all cases of libel.  Gentlemen, were I to tell you what opinion I had formed of the merits of this case, you are in no way bound by it, for the law, for the wisest and most salutary purposes, rests it with the Jury to form their own opinion.  In trials of this nature, it is usual for the special pleader to introduce into the declaration such inuendoes [sic] as he may judge to be capable of a libellous construction, but it will be for you to consider whether they reasonably admit the interpretation set forth.  Defendants are charged with stating, that plaintiff was still guilty of the charge of horse-stealing, having been acquitted only by the negligence of the Attorney-General or by subornation of perjury.  Gentlemen, I am bound to tell you, that if after an acquittal, any person sets forth, that the person so acquitted is guilty, the law holds it to be a libel, for an acquittal is the highest possible proof of innocence.  Is the statement charging the plaintiff with being still guilty, notwithstanding such proof to the contrary, made in deliberate malice?  Is the object to slander the plaintiff, holding him up to the world as a guilty man, or to vindicate the Magistrates, the same being controlled within the bounds of free and legitimate discussion.  Gentlemen, you are not to pick out the sting; the defendants have a right to have the whole scope of their arguments brought into view; as many expressions, which when standing alone assume the most malignant character, when connected with other parts of a discourse lose their poisonous tendency.  Gentlemen, if you conceive that the defendants have not published anything more than a fair vindication of the Magistrates, it would indeed be giving a death blow to the salutary influence of the Public Press, to check it in pursuing so laudable a course.  If, on the contrary, you can conscientiously come to the  conclusion that they intended to impute to the plaintiff the crime of horse-stealing he, gentlemen, is entitled to your verdict.  It has been stated that the defendants have gone so far as to even use the plaintiff's name - it being broadly inserted in the article in question.  I think gentlemen, you will not lay much stress on that circumstance, as it appears to be merely mentioned incidentially, in illustration of the conduct of the Magistrates.  You will bear in mind that the article in question is not the origin from which the present action springs.  You will remember that an article was published in the Australian, of which, the Counsel for the plaintiff were proprietors, reflecting on the conduct of the committing Magistrates; to which the article, which is the subject of the present action, was a reply.   Does the writer reiterate the charge of horse-stealing?  If you are satisfied that it is not a fair comment, but put forth for the sole purpose of branding the plaintiff with the infamous crime of horse-stealing, you will endeavour to repair the serious injury done to this poor young man's character, by giving him the benefit of your verdict, in exemplary damages; which may have the salutary effect of checking the extravagance of the Press.  The Jury retired about two minutes, when they returned a verdict for the Defendants.


Forbes C.J., Dowling and Burton JJ, 30 October 1834

Source: Australian, 31 October 1834[2 ]


Howson, alias Cunningham, v. Stephens and Stokes.

At the sitting of the Court this morning, Mr. Justice Dowling delivered the opinion of the Court on the motion for a new trial, in this case, in the following terms :-

I am bound to admit, that on conference with the other judges in this case, I left the question of malice to the jury too broadly, for if they were satisfied that the alleged libel was capable of the interpretation put upon it by the inuendoes [sic], then malice became a question of law, and I was bound to tell the Jury that it must be taken to be a malicious publication, or in other words, wrongful, and could not be excused under the general issue, by reference to the occasion of the publication, Bromwich v. Prosser, 4. B. and C. 2. 7.  We are in the dark as to the grounds on which the jury found for the defendants.  If they were satisfied upon reference to the alleged libel itself, that it was not capable of the interpretation put upon it by the inuendoes [sic], and the case rested there, then I do not see how we could have disturbed the verdict, but inasmuch as I went nnecessarily[3 ] [sic] far in pointing their attention of the publication, which, (if they were satisfied that the libel imputed what is alleged in the inuendoes [sic],) could adjustify [sic] the publication, and as their finding may have been influenced by such direction, I agree that the Court is bound to grant a new trial.  New trial granted.



[1 ] See also Sydney Herald, 16 October 1834; Sydney Gazette, 23 October 1834. The trial notes are in Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3287, vol. 104, p. 61.

[2 ] See also Sydney Herald, 3 November 1834, reproducing this report by the Australian.  For continuation of the litigation, see Houston v. Stephens and Stokes, 1835.

[3 ] The Sydney Herald, 3 November 1834, corrected this to ``unnecessarily."

Published by the Division of Law, Macquarie University