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

R. v. Hall [1834] NSWSupC 128

criminal libel - legal profession, professional confidence - press freedom - law reporting - jury, deciders of law or fact - criminal procedure, delays

Supreme Court of New South Wales

Forbes C.J., Dowling and Burton JJ, 21 June 1834

Source: Sydney Gazette, 24 June 1834[1 ]

Exparte Charles Smith, M. D. - Dr. Wardell now moved that the conditional rule obtained in this case against Mr. Edward Smith Hall, for a certain libel, published in the Monitor newspaper, be now made absolute.

Mr. Keith, on the part of the defendant, merely rose to say, that if he had rightly understood their Honors in a similar application which was decided by the Court on last Saturday, that wherever a prima facie case of libel were made out, it was imperative on the Court to send it for trial before a jury; it would be better at once in all such cases, to make the rule absolute, without putting parties to the expense of answering a conditional rule, when they would expect no relief by it.

The Court directed the rule be made absolute.  Their Honors briefly explained in reference to the suggestion thrown out by the Counsel for the defendant, that sitting in loco of a grand jury, they were bound to send any case for trial, which was prima facie made out.  This was not a new dictum laid down by the Court, but had been observed in the case of McIntyre, and many others, among which were those where the person against whom the present application was made, was the defendant.  The Court was in this respect, placed on exactly the same footing as a grand jury in the mother country, with the addition of this important privilege to defendants here, that the proceedings of the Supreme Court were conducted publicly and openly, whereas those of a grand jury at home were managed with closed doors.  It was not incumbent on a person to oppose an application similar to the present, and the Court was of opinion, that a defendant should not be put to the expense of opposing such motions, nor disclose the line of his defence, unless he thought fit.  Mr. Justice Burton added, that in any future case of this nature, he hoped that the party making it, would first give notice to the opposite side of his intention.

 

Forbes C.J., 24 November 1834

Source: Sydney Herald, 27 November 1834[2 ]

 

Monday. - Before His Honor the Chief Justice and the following Civil Jury:- J. T. Wilson, Esq., (foreman), Mr. Henry Webb, J. J. Wood, James Wheeler, George Wheeler, Edwin Williams, James Woolcott, Thomas Woolley, Richard Wheeler, John Walton, and Richard Wilshire.

The King at the prosecution of Charles Smith v. Edward Smith Hall, Editor and Publisher of the Sydney Monitor Newspaper.  This was a criminal prosecution against the defendant for an alleged libel, contained in a letter published in the Sydney Monitor of the 18th March last.  The information contained six counts - setting out the libel in various ways.  The defendant, who appeared by his counsel, pleaded - Not Guilty.  Mr. Therry addressed he Jury at some length, expatiating on the nature of the libel, and called the following witnesses:

Mr. G. W. Newcombe, of the Colonial Secretary's Office, having first been put into the box in proof of defendant's being the Editor and Publisher of the number of the Sydney Monitor containing the alleged libel.

G. L. Poignand proved defendant's hand-writing affixed to the affidavit produced from the Colonel Secretary's Office, and also in the Sydney Monitor of the 18th March.

Letter read by the clerk of arraigns.

Mr. W. Williams. - I read a letter in the Sydney Monitor, of the 18th March last, on the morning of its publication - the letter in second column of the third page of the paper produced is the same; I believed at the time that it referred to Dr. Smith; I am of that opinion still; I had heard that Dr. Smith had been in the habit of preaching when in London; I recollect a conversation which took place in presence of defendant respecting this libel; it was on a certain occasion, when I went to pay him a visit him his departments in the gaol; but whether I should divulge a private conversation, I cannot readily determine; it did not take place in professional confidence.

His Honor the Chief Justice.  It my be unpleasant, Mr. Williams, but as you were not bound to professional secrecy, I apprehend that you may be called upon to inform the Jury of the nature of the conversation alluded to.

Mr. Williams. - The conversation was not with Mr. Hall; a person named Thompkins, who was then in confinement, resided in the same apartment; it was a mere desultory conversation; I don't recollect any thing which defendant said on that occasion; Thompkins pulled a letter out of his pocket, part of which he read; I said it was written in the Colony; Thompkins said it had come from England, and was true; defendant was sitting with his back towards us writing; I can't say he must have heard it; he certainly joined in the conversation; I recollect a rule was moved for subsequently; I recollect stating to Mr. Francis Stephen about that time, that I would make affidavit of what I had heard, in the conversation alluded to; I must admit I was then angry with defendant for libelling me about a schoolmaster at Liverpool, but what I stated in consequence of that feeling was true.

A Juror. - I wish to ask you, Mr. Williams, how you drew your inference that if referred to Dr. Smith; might it not possibly have had an apparent application to some other person?

Mr. Williams. - I had no doubt whatever that it referred to Dr. Smith.

Juror. - I must know your reason for that impression - there may be another doctor in the Colony to whom it may appear to apply.

Mr. Williams. - I cannot positively explain my reason for that impression, but I had no doubt that it referred to Dr. Smith, and Smith only.

By Mr. Therry. - I have heard that Tyburn was a place of execution for felons; I believe they used to be hang'd there for their crimes, before my time - it has that reputation.

Cross-examined by Mr. Keith. - I had no doubt of its reference to Dr. Smith; I read it, and was much surprised at its virulence; it was not owing to my conviction of its truth; I knew of a continuous warfare that had existed between Dr. Smith and Captain Thompkins, which served to give me the impression of its application to Dr. Smith; I believe that defendant believed the libel to be true, or he would not have published it.

Mr. Keith, - I want your reasons, Mr. Williams, for believing that it applied to Dr. Smith; you must state those reasons more particularly to the Jury.

Mr. Williams. - My reasons were founded on my knowledge, that Dr. Smith's character had been repeatedly assailed by Mrs. Thompkins, in reference to a series of transactions which had come before the Court; I cannot accurately and minutely account for my impressions, but they were in some degree strengthened by the five dots which filled up the blank occasioned by the suppression of the name; I was not acquainted with Dr. Smith's character in London; I never heard of Mr. Titterton, Mr. James, or Miss Gosling; the reason why I mentioned what I had heard to the prosecutor, I was annoyed at Mr. Hall's conduct; and Mr. Stephens about that time met me and asked me if I though it was a libel; I said I thought it was: I repented afterwards of what I had said; it is much against my inclination that I appear here to day.

Mr. G. L. Poignand. - I know Dr. Smith perfectly; I came out with his brother to this Colony; I made an affidavit in this case about three months ago; I read the libel complained of on the morning of its publication, when at breakfast.  On reading the first part of the letter, I thought it referred to Dr. Smith, and I think so till; there are circumstances, which I will state, as having influenced me in that opinion.  On my passage to this Colony, Mr. Richard Smith, the Doctor's brother, informed me that Dr. Smith was about proceeding to New South Wales to practice his profession as a physician, and, from his known ability in London, he would be certain to acquire considerable practice; that there was a wonderful difference between his brother and himself in point of religious habits, for that he, Dr. Smith, was an extremely religious man, and had occasionally preached in a Chapel in London, and was somewhat popular as a preacher.  That is my principal reason for assuming that the libel referred to has a reference to Dr. Smith.  I had heard the name of Titterton, in fact I had seen it on the door of a coach-building establishment in Gray's-inn-lane, or Liquor-pond street; I have heard Mr. Smith speak of Mr. Titterton, but I never heard Dr. Smith make any allusion to that person.  Mr. Richard Smith brought several carriages out with him, which he said belonged to his brother, Dr. Smith; I did not know the name of Gosling mentioned before; I considered the name, Phoebe Ann Gosling, refers to some person as before alluded to; I consider the allusions refer to Dr. Smith.

By a Juror. - I had heard that the doctor sent his brother out to the Colony before him; I look at the libel generally as applying to him; the whole of it struck me as alluding to Dr. Smith the moment I read it.

Cross examined. - The Doctor's name is Charles Smith; I have heard that he was known as Dr. Charles during part of his voyage to this Colony, and also Dr. Charles Smith; I heard that on his arrival, his name was inserted in the newspapers as Dr. Charles, but in the following publications was corrected to Dr. Charles Smith; I know Dr. Smith; I am not aware that there is any other Doctor in the Colony who is known as a Preacher; I will not take upon myself to state that Mr. R. Smith said the carriages came from Tillerson's, I rather think he said they came from Gray's-inn-lane; the circumstance of the carriages certainly had an effect upon my mind as applying the libel to Dr. Smith; I have been Solicitor to Dr. Smith in many cases; I have made an affidavit in this case.

Mr. John Mackie. - I am a soap manufacturer in this town; I know Dr. Smith; I have read the paragraph alleged as libellous, before frequently, I believe it refers to Doctor Smith; he is the person referred to throughout; I believed the offensive words were applied to him, and I now believe the same; there had been a deal of bickering before with Doctor Smith and other parties; I cannot give any particular reason for my impression, but I did not believe the statements were true.

Mr. Keith. - If you did not believe the statements, and as there was no name mentioned, let the Jury have your reasons for applying it particularly to Dr. Smith.

Mr. Mackie - I thought it was ill-natured; I did not think it came from Mr. Hall, but that he had been made the tool of some other party, and I felt much on the occasion; I cannot give any particular reason for fixing it on Dr. Smith; I know both parties.

Mr. Mansfied. - I know the prosecutor in this case, Dr. Smith; I read the paragraph, and I have no doubt it refers to Dr. Smith; it is too plain to be mistaken; I don't know any other person to whom it can have reference.

Cross-examined. - It is too plain to be mistaken; I don't know of any other person to whom it could be made to apply; I never was acquainted with Dr. Smith; I never knew him in England; I had heard reports a year or two ago, which induced me to believe that it had reference to Dr. Smith; I had never heard any thing on the subject from Mr. Hall; I was not in the habit of reading the Sydney Monitor; it was a gentleman who pointed out the letter to me one day in the street, and asked me if I did not think that was a rubber for Dr. Smith; I replied yes, it plainly means Dr. Smith; it was in consequence of what I had previously learned that I though it referred to Dr. Smith.

Mr. Therry. - Dr. Smith is present Mr. Keith, and you may proceed to examine him if you think proper.

Mr. Keith. - What beneficial purpose can I hope to effect by such a course.

Mr. Therry. - In criminal prosecutions, the defendant is at liberty to proceed to examine the prosecutor, if he deems it necessary to his defence; we offer him to shew that he does not shrink from the truth.

Dr. Smith begged to be allowed to explain to the Court the reason why he had adopted the name of Charles, when Mr. Keith expressed a wish to put a question to him thereon.

Dr. Smith. - I wish to state the circumstances under which I left England, in the name of Charles.  I was one of the Directors of a French Brandy Distillery Company, and being the only practical Chemist connected therewith, I was obliged to enter into a bond for £50,000 that I would not disclose the secret of the manufacture for twenty-one years.  I had been offered £10,000 by the House of Harrington, to put them in possession of the process; and when it was known that I was about to quit the Country, a process was issued to detain me, in order to make me enter into a fresh bond that I did not engage in the manufacture abroad.  To evade the great delay and unpleasantness attending the necessity of producing bail to so large an amount, I changed my name to that of Dr. Charles, at the Royal Hotel, Plymouth, but assumed my own name as soon as we got to sea.

It had been signified to this witness, by Mr. Keith, that it was not required of him to go into this statement, as the only answer required of him was, whether he had left England in an assumed name, or not? but the desire of witness to submit an explanation to that circumstance, bore down all opposition.

This was the case for the prosecution.

His Honor put the case to the Jury as a mixed question of law and fact, on these three points:- First, whether the matter charged in the information was libellous, and if so, did it apply to Dr. Smith - and was the defendant the publisher of that libel? if they were of opinion that it charged Dr. Smith with that moral turpitude which tended to degrade and injure him in society?  His Honor here explained to the Jury what the law held to be malice, and he felt that Juries were bound to take the law from the Judge, notwithstanding the doctrine that they were Judges of Law as well as of Fact, against which he should always raise his voice.[ 3]  His Honor recapitulated the evidence to the Jury, and rested the case in their hands; they were unable to agree in their verdict, and were locked up for the night.  On the following morning they signified that they were satisfied that they never would be able to come to a decision, when they were discharged.[4 ]

[In this case, the opinion of Mr. Justice Forbes is at variance with the recently expressed opinion of the Lord Chief Justice of England. - Eds.][5 ]

 

Source: Australian, 28 November 1834[6 ]

 

The King on the Prosecution of Dr. Smith v. E. S. Hall, for Libel. - ``His Honor here explained to the Jury what the law held to be malice, and he felt that Juries were bound to take the law from the Judge, notwithstanding the doctrine that they were Judges of Law as well as of fact, against which he should always raise his voice.)

This is a sentence from the Report given in yesterday's Herald of the Chief Justice's charge in the above trial, to which is appended the following note:--

(In this case, the opinion of Mr. Justice Forbes is at variance with the recently expressed opinion of the Lord Chief Justice of England. - Ed.

If it be the duty of the Journalist to diffuse correct information - to do justice to his political opponents even at the expense of his darling prejudices - then most grievously have the Editors of the Herald departed from that course which it is their part to perform in the society of which they are members.  It is easy to discover the policy-rankling in their hearts, even in the petty circumstance of their omitting the title of Mr. Forbes - calling him Mr. Justice, while Lord Denman, with whom he is contrasted, has his full official titles prefixed to his name.  This however may be accidental - at all events is not worth comment.  But truth demands that the more essential portion of the paragraphs should distinctly be contradicted.

The sentence attributed to his honor, never fell from his lips, nor was any thing approaching to the sentiment it expressed uttered, from which a blundering Reporter could collect such a remark - nor is there the least variance between the law as laid down at the late trial, and that which Lord Denman is reported (whether correctly or not) to have recently laid down.  The Chief Justice told the Jury what the law defined libel to be, and stated that, although he conceived it was the duty of the Judge so to do, yet in cases of libel the law made them ``judges of the law as well of the fact."  He pointed out with great accuracy the distinctions which exist, in principle and in law, between criminal and civil prosecutions for libel, -- and shewed by unanswerable reasoning how hollow was the basis upon which rested the hypothesis contended for by the defendant's Counsel, that truth should be in all cases a justification of any libellous publication whatever.  But the charge of His Honor was merely to inform the minds of the Jury, not to sway or dictate to them, their verdict; and in doing so, it will, we think, be admitted that His Honor adopted a line of conduct calculated to sustain the true interests of society, by impressing upon the minds of Jurymen a due sense of the nature of their duties.

We have been led further than we intended in the foregoing observations, by a consideration of the great importance which exists, in our opinion, of giving accurate reports of what passes in Courts of Justice, especially in a matter of such engrossing interest as the law of libel.  That the Herald has not done so is only in character with the usual conduct of that Journal when the Chief Justice happens to preside; but this we leave to the consciences of its conductors.  Were it an account of a boat race in which a mistake had occurred in the hour appointed for it to take place, we should have deemed it rather of trifling import - but on the subject in which the feelings and influence of society are so deeply interested, we conceive it to be our bounded duty to remove the impressions, which a false and malicious, or at least a wilfully ignorant report may engender.

The trial and charge in the case we shall give at some length in our next number.

 

 

Source: Sydney Herald, 1 December 1834

 

LAW REPORTING.

To the Editors of the Sydney Herald.

Gentlemen, --- I regret much the circumstance of my not having furnished you with a detailed report of the charge of his Honor the Chief Justice to the Jury, in the recent trial of the case, ``The King at the prosecution of Charles Smith, v. E. S. Hall," inasmuch as my brevity has furnished the Editors of the Australian with an opportunity of cavilling at an alleged mis-statement set forth by me as the observation of his Honor, which they unhesitatingly assert ``never fell from his lips."  I shall not go further in refutation of this assertion, than to reiterate what I before stated, as forming a very remarkable feature in his Honor's charge, and which I contrasted in my mind the moment it was delivered, with the observation of his Honor Mr. Justice Dowling, in a former case, ``That the Law, for the wisest and most salutary purposes, had constituted Juries judges of the Law, as well as of the fact, is ALL cases of Libel."  I place too much reliance on his Honor's recollection of the observation which escaped him on this occasion, as it was delivered with some felling, which no doubt impressed it on his mind, to feel the necessity of taking any extraordinary steps in refutation of the charge of making a false and malicious mis-representation.  By the gentlemen of the Jury also, whose attention was directed by the oaths they had taken, to a full consideration of the case, I feel confident of being borne out in the correctness of my assertion; for they will recollect that his Honor followed up his observation by remarking on the danger of that principle which constituted Juries judges of the Laws in case of Libel, for where they had been known to return a verdict of Guilty, the Court, on a subsequent motion in arrest of judgment, had declared it to be no Libel in Law.  I shall here conclude, returning to the Attorney-Editors the unmerited calumny which they were pleased to cast upon me, of having made a false and malicious statement; leaving the Public to judge between the dispassionate statement of a purely disinterested individual, and the assertions of those whose opinions are subject to the influence of party feeling of a marked character too palpable to be disguised.

I am, Gentlemen,

your obedient servant,

The Reporter to the Sydney Herald.

 

Notes

[1 ] See also Sydney Gazette, 3 and 10 June 1834; Australian, 3 and 10 June, 1 July 1834; Sydney Herald, 5 and 12 June 1834.  On plans for a libel Act in 1834, see Australian, 29 July 1834.

This case raises some issues of criminal procedure.  One of the most serious problems in such procedures has always been delay.  The judges were concerned about that in 1834: see letter from the judges to the governor recommending important changes, 4 January 1834, in Chief Justice's Letter Book, 1824 - 1835, State Records of New South Wales, 4/6651, p. 358.  This letter was included in a despatch by Bourke to Stanley, 24 January 1834: see Historical Records of Australia, Series 1, Vol. 17, pp 359-365.

[ 2] See also Sydney Gazette, 25 November 1834; Australian, 2 December 1834.

[3 ] On this, see Sydney Herald, 17 November 1834 (letter and Extract).

[4 ] According to the Australian, 28 November 1834, two jurors had been improperly influenced by information they gained out of the courtroom.

[5 ] On 1 December 1834, the Sydney Herald published an apology about this remark.  They blamed the Australian, the Monitor and Forbes C.J. for the error, claiming that Forbes had spoken softly.  The Herald's reporter continued to insist that Forbes had expressed himself to be opposed to the notion that juries could decide matters of law.  The newspaper hoped that he would supply a copy of what he actually did say, to remove any doubt.  The Herald's hostility to Forbes was becoming evident by this time.  It claimed that there was a campaign against the free press, and that the jury was the only sure protection against oppression.

See also Sydney Herald, 4 December 1834.

[6 ] The Australian, 2 December 1834, summarised the charge to the jury as follows: ``The Chief Justice summed up and left three questions for the consideration of the jury.

``1st.  Did they believe there had been proof of publication.

``2dly.  Did they believe the matter was libellous, and

``3dly.  Did they consider that the application to Dr. Smith was satisfactorily brought home by the evidence.  As the charge of the Chief Justice has attracted a considerable share of public attention, We will endeavour to lay before our readers a full and accurate report of His Honor's very able charge on a future occasion."  No such report appeared in a later edition of the Australian.

Published by the Division of Law, Macquarie University