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

R. v. Stephens and Stokes (No. 1) [1834] NSWSupC 64

criminal libel - contempt of court, press commentary - Sydney Herald, contempt by

Supreme Court of New South Wales

In banco, 17 May 1834

Source: Sydney Herald, 19 May 1834[ 1]

Saturday. - The Solicitor-General moved the Court for a criminal information to issue against the Joint Editors of the Sydney Herald newspaper, Ward Stephens and Frederick Michael Stokes, for a series of systematic libels published in that journal, reflecting on the administration of the laws in the Supreme Court, New South Wales.

Great and vexatious as the evils of which he complained, had been, he had no wish to press a prosecution, if the individuals above named came forward before the 1st of June next and shewed a disposition to make amends for their conduct.

The Attorney-General might have filed an ex-officio, when the parties would have been shut out from such an opportunity to excuse themselves; but he had not consulted the Attorney-General on the subject, being only desirous that an end should be put to such scurrilous attacks as had appeared in the colums [sic] of that Paper under the head of the ``Horrible Law System".  He referred to the publication of Monday last, in the second column of the second page, where, appended to the observations of the Editors, appears an extract from the books of the Police Office, signed, ``A Correspondent;" it was, however, evident from the accuracy with which the depositions appeared to be copied, that the same had been furnished by some Clerk or Magistrate, and he would say that either the one or the other who could be guilty of such conduct, was unworthy of the situation he held.  The Learned Gentleman called the attention of their Honors to the publications of the 3d April, and 17th and 24th of March, and commented on the extreme atrocity of the nature of the libels therein contained, the true key to the spirit of the writers developing itself in the manner in which the adopted heading to these libels was displayed.  In the publication of the 17th March, His Excellency was charged with the grossest corruption, and with lending himself to the worst of purposes.  Yet, as a proof that the Crown Officers had no wish to interfere with the privileges of the press as long as such attacks could be endured, the matter had been allowed to slumber nearly a period of two months.  He, (the Learned Gentleman,) had had occasion to make an application to their Honors during last term; even the circumstances of which had been laid hold of by the Editors and commented on in their usual way, proving that they were ever on the watch ready to seize with avidity on any circumstance which would afford them an opportunity of gratifying that spirit by which they were actuated.  He would use their own expressions in illustration of the danger liable to result from their conduct, in holding up their Honors, the Judges, and the Court generally, to the derision and ridicule of that ``anomalous community" to which they referred in the paragraph of the 17th March; was it not by arming the convict population with resentment against the legal administration of the Colony, which afforded them no protection, striking at the very foundation of the Government.

No man entertained a higher veneration for the freedom of the press than he did.  He felt convinced that it was as essential of the country, when preserved within the bounds prescribed by law, as the air he breathed was essential to the of life.  God forbid that he should entertain a wish to abridge it of the smallest of its privileges; but when it passed the bounds of moderation and endurance, as the writers of the libels adduced had done, he felt himself called upon, though an humble member of the department which had fallen under their attacks, to prevent a repetition of such disgraceful articles, which it was impossible to justify as fair criticisms on the administration of the law; there were no arguments used, no facts stated, but the whole appeared as sweeping denunciations, uninfluenced by reason or propriety.  The learned gentlemen quoted the observations of Mr. Justice Buller, in the case of Waton, 2nd Term Report, p. 199, in which the dangerous tendency of such articles on the legal constitution of the country were set forth.  He was an enemy to flattery; but he could not help observing, that in no part of the British Dominions was the Bench better filled than in New South Wales, and as the Herald boasts of its extensive circulation in England, India, and other places, such publications should not be allowed to pass with impunity.  Of ninety-two cases which had been disposed of during the sessions, he would undertake to say that no individual would be found to complain of the manner in which the law had been dispensed.  The learned gentleman, after a series of comments upon the libels complained of, concluded by observing that if the Editors would come forward and make the amende honorable, before the 1st of June, he would feel disposed to forego further measures on this occasion; yet he felt that had he not brought the case before the Court, he would have erred in the discharge of his public duty, and he now applied for a Rule Nisi, calling on them to shew cause why a Criminal Information should not be filed against them.  The Chief Justice granted the Rule.

At the conclusion of the business of the sessions, His Honor the Chief Justice expressed the sense of the Court of the able and efficient manner in which the Crown Officers had acquitted themselves of their duties in disposing of the same.  His Honor congratulated them on the improvement which manifested itself in their respective departments.


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

Source: Sydney Herald, 5 June 1834[ 2]


The Solicitor-General addressed the Court, stating, that on a former day he had obtained a rule nisi, calling upon Messrs. Stephens & Stokes, Editors of the Sydney Herald, to shew cause why a criminal information should not be filed against them for a series of libels published in that journal on the administration of the law.  With a determination to prosecute the information to the full extent of the law, he had applied to Mr. Gurner to take out the rule accordingly, when that gentleman informed him, that by the new Rules of Court, it could not be taken out but during term; and he, therefore, to avoid making any mistakes which might impede the justice of the case, had considered it prudent to await the sitting of the Court, and proceed upon a fresh motion.  It would be recollected, that on the original application, he had expressed his willingness, as he had felt himself called upon merely as a member of that body who had been the victims of the attacks alluded to, to accept an apology on or before the opening of the Court for such conduct, and to forego further proceedings; and he now felt much satisfaction, on looking at the Sydney Herald of that morning, to observe something in the way of an explanation, which, although the observations therein did not touch upon the most material points of complaint, he felt satisfied.  This was not a prosecution by the Government, or he should not feel justified in adopting such a course.  With the permission of the Court, he would read the article referred to.

Chief Justice. - Mr. Solicitor-General, you either apply for a rule, or you do not, and if you are desirous that the matter should go no further, there is an end to the case.

The Solicitor-General thereupon dropt further proceeding, and expressed a hope that the motion would have a salutary effect on preventing a recurrence of the objects of complaint.  In making which, he had been influenced by a desire to restrain the conduct of the offending parties, rather than to inflict punishment.  A motion, which he regretted to find the more necessary from the circumstance of the absence of full and correct reports of decisions of the Court in the Sydney journals, in which case no apprehension of mischief need be entertained as to their appearance at Wesminster [sic] Hall, they would carry with them their own antitode. [sic]



[1 ] See also Sydney Gazette, 20 May 1834; Australian, 20 May 1834.  For commentary, see Australian, 20 May 1834, stating that it had reproduced the Herald's report, and noting that the rule was granted by the court, not by the Chief Justice alone.

The Sydney Herald, responded to this in an editorial, published on 2 June 1834.  It admitted that it had criticised the Supreme Court over the perjury practised there, its enormous fees, the escape of criminals through formalities, and on the working of the new Jury Bill.  The editors were unapologetic.

For other proceedings, see Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3281, vol. 98, p. 69; R. v. Stephens and Stokes (No. 2), 1834.

[2 ] See also Sydney Gazette, 3 June 1834; Australian, 3 June 1834.

Published by the Division of Law, Macquarie University