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

R. v. Kenny [1834] NSWSupC 106

libel, reference to convict past - law reporting

Supreme Court of New South Wales

Dowling J., 11 October 1834

Source: Sydney Herald, 16 October 1834

(From the Sydney Gazette.)[1 ]

Supreme Court. - Saturday, Oct. 11. - The usual business of a motion day in the Supreme Court, was postponed on Saturday last, in consequence of the indisposition of two of the Judges.  Mr. Justice Dowling sat alone upon the bench to hear motion of course, but the other cases on the peremptory list were not disposed of.  The only business of public importance transacted, was that of an application made by Mr. Keith on the part of a person named Thomas Hammond, for a criminal information against Dr. Kenny for a libel of and concerning the former, published in a letter signed ``Truban" in the Sydney Monitor of the 6th Aug. last, of which letter Dr. Kenny was the rendered author.  The circumstances out of which the alleged libel arose, are briefly these.  Mr. Hammond caused a letter to be published in the Sydney Monitor signed ``A Colonist" containing some strictures on the public conduct of Mr. Scarr,, the clerk of the Campbell-town bench of Magistrates, which were replied to in the letter signed ``Truban" written by Dr. Kenny, as the friend of Mr. Scarr.  The last contained several libellous remarks on Mr. Hammond, and among them, some reflections on the applicant's former condition of life, as a prisoner of the crown.  Mr. Hammond rejoined to them in another letter, which he addressed to the Editor of the Monitor, but Mr. Hall declined publishing it, although he handed it over to the opposite parties.  It now appeared that by consent, Dr. Kenny was given up as the author of the libellous production, and the present application to the Court, against that gentleman, was the consequence   Mr. Therry was heard against the granting of the rule, which was made absolute by the Court, the learned Judge remarking, that were it only on account of the reflection on the applicant's former condition of life, he should grant the criminal information prayed for, as it was not to be tolerated that the ashes of former transactions should be publicly raked up against that class of the Colonists, whenever opportunity and inclination presented themselves.

We are of opinion that the above report is incorrect.  We cannot believe that His Honor Mr. Justice Dowling ever expressed himself in the terms ``that were it only on account of the reflection on the applicant's former condition, &c. &c., he should grant the criminal information." - [Editors of the Herald.]

 

Dowling J, 11 October 1834

Source: Sydney Herald, 16 October 1834

 

Exparte Hammond. - Mr. Keith moved for a rule, calling upon R. W. Kenny, Esq., Surgeon, of Campbell Town, to shew cause why a criminal information should not be filed against him for a libel.  The application was made on certain affidavits which set forth that a letter had appeared in the Sydney Monitor of the 6th August last, signed ``Truba," which contained a passage highly injurious to the moral character of Mr. Hammond, and which, if credited, would render him, in the estimation of society, an unfit person to hold the situation he maintains.  The libel complained of was then read; the manuscript had been seen in the office of that Journal, and had been identified as the hand-writing of Mr. Kenney.  The application of the libel to Mr. Hammond had been admitted by Mr. Kenney; yet, without that circumstance, the allusion was so clear to persons acquainted with the parties, as not to admit of doubt; the Court, however, re-required an affidavit of that fact which was put in. - Rule granted.

 

Dowling J., 11 October 1834

Source: Sydney Herald, 20 October 1834

 

JUDGE DOWLING.

saturday, oct. 11.

Exparte Hammond in the matter of Kenny. - We are informed, by a Correspondent who was present, that the only ground on which Judge Dowling granted a criminal information in this case was, not because of any allusion to the applicant's former condition, but that the matter complained of was personally vituperative of the party, in reference to a proceeding on a former occasion, before the Campbell Town Bench, in which the applicant was alleged to be scandalously implicated with another individual and a female.  This, the Learned Judge said, was bye-gone transaction, the ashes of which need not have been raked up and unnecessarily brought forward into a discussion, which professed to be the subject of fair argument, in the exercise of the Liberty of the Press.

 

Notes

[1 ] It was unusual that the Herald copied a report from the Sydney Gazette.  Apart from minor typographical errors, the two accounts are identical, although the italics were added by the Sydney Herald rather than being in the original.

Published by the Division of Law, Macquarie University