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

R. v. Stephens and Stokes (No. 2) [1834] NSWSupC 73

criminal libel - libel, publication

Supreme Court of New South Wales

In banco, 7 June 1834

Source: Sydney Herald, 12 June 1834[1 ]

Mr. Nichols moved for a rule calling upon the Editors of the Sydney Herald, Messrs. Ward Stephens and Frederick Michael Stokes, to show cause why a criminal information should not be filed against them for a libellous letter, printed on what is called a slip, purporting to have been written by one Henry Murray, reporter to the Sydney Herald, and intended for publication in that Journal, reflecting on the character of W. B. Halden, reporter to the Sydney Gazette, tending to destroy his future prospects in life.  Affidavits were put in, setting forth that the said letter had been sent to the prosecutor through the Post Office, and there was good reason to believe that the same had been privately circulated to his prejudice.  The affidavit of James Hay[2 ] set forth that he was a compositor in the Office of the Sydney Herald, and saw the said letter set up in type with the knowledge and concurrence of the said Ward Stephens and Frederick Michael Stokes.

Mr. Nichols read the libel complained of to the Court.

The Chief Justice. - Has this letter ever been published.

Mr. Nichols. - Oh yes, your Honor, very widely.

The Chief Justice. - I don't mean in the legal sense.  I mean as to its actual publication in the Herald newspaper.

Mr. Nichols. - No your Honor, not exactly; but a notification appeared, announcing it for publication in a future number, its insertion being delayed for want of space.

The Chief Justice. - There seems to be a difficulty as to fact of publication; that fact will not readily present itself to the Jury.  Your affidavit does not set forth by whom it was circulated. - Editors of Newspapers frequently have occasion to make such notifications with regard to contributions which they have not had leisure to peruse, and which they subsequently find to be not proper for publication.  In this case there appears to be a locus penitentia, and it would therefore be hard to call upon the Editors to account for it under such circumstances.

Mr. Nichols expatiated at some length on the evils which the unrestrained publication of such libellous productions as had been circulated to the prejudice of the gentleman who was the prosecutor in this case, on which principle the history of the past lives of persons who had been placed in unfortunate circumstances, and who were now surrounded by virtuous and respectable families.  If such parties were to be subject to such persecution as had been exercised by the parties complained of in this case, the sooner all respectable emancipists quitted the country the better.

The Court deliberated on the letter in question for a considerable time, when the Chief Justice observed, you may take a rule, but at the same time --- here his honor's observations were cut short by an interruption from a person in Court who made a premature address to the Court on another case, which was then gone into.


Forbes C.J., Dowling and Burton JJ, 14 June 1834

Source: Sydney Herald, 16 June 1834[ 3]



for the perusal of the british

pubic, [sic] and the british law


Exparte Halden. - In this case in which a rule had been obtained calling upon the Editors of the Sydney Herald, Ward Stephens, and Frederick Michael Stokes, to shew cause &c.  Mr. Keith now moved that the rule be made absolute.

Mr. Kerr, on behalf of the defendants, observed that the rule had been obtained on the affidavits of James Hay, late a compositor in the Sydney Herald Office, and William Blore Halden, a Reporter to the Sydney Gazette, whose affidavit set forth that the libel in question was sent to him through the Post-office, and that its sole object was to gratify a malicious feeling; although it is at the same time stated that the deponent never spoke a word to any of the parties in his life.  The letter out of which the implied libel arises, appears to have been written in answer to an advertisement which appeared in the Sydney Gazette, in which the character of Mr. Murray, Reporter to the Sydney Herald, is attacked and reflected on, and which answer details the motives by which the Sydney Gazette is actuated in publishing the said advertisement to the prejudice of Mr. Murray.  It is evident from the affidavit of Halden, that the letter in question could not have been written under any feelings of malice, for he admits that he never spoke a word to any parties in his life; and it is therefore clear that no malice could have been exercised by merely a statement of plain facts, in refutation of charges promulgated by the Sydney Gazette purporting to be an advertisement of one Isaac Shaw, for it has been laid down by Lord Ellenborough that, ``that is no libel which does not proceed from malice, but is published for the purpose of correcting misrepresentations;" even admitting that the same was published in the Paper, I contend that it does not amount to libel; the only portion of the letter which refers to Halden being uncontradicted by him; if it had been false, he would have come forward and made affidavit to that effect.  The affidavits of Halden furnish abundant proof connected with a deliberate view of the spirit of the letter in question, that the writer had no more intention of libelling than any writer of the English History had of libelling the memory of Guy Fawkes, or injuring his descendants; and I will observe that if your Honors were to allow a Criminal Information to be filed in this case, any person who might possess the Newgate Calender, in which the name of any respectable personage may appear, and shew it to another, or have it stolen from him, such person would be rendered liable to be called on to answer for the publication of libel under such circumstances.  The affidavit of James Hay a convict, holding a ticket-of-leave, has been put in to prove the fact of publication; this man was a compositor, who not satisfied with the only statement which from the nature of his employment it was in his power to make with truth, namely, that it was set up in type in the Office of the Sydney Herald, undertakes to swear that it was done with the privity and concurrence of the defendants; the Court would see that a person in such a situation could acquire no such knowledge of circumstances and facts, which, as a measure of prudence, would have been kept from the compositors; he must of necessity have been something more than a compositor, to have been enabled to put forth such a statement without violating the truth.  The truth of publication solely rests on the statement of Halden, that the libel was sent to him through the Post-office, and he has been informed and believes that the same was privately circulated to his prejudice by Ward Stephens, and Frederick Michael Stokes, and Mr. Murray.

The affidavits of the defendants were put in, denying that they had caused the libel in question to be transmitted through the Post-office, or that the same had been privately circulated by them.

Mr. Justice Dowling. - They might have done so publicly.

Mr. Justice Burton. - The affidavits say nothing about its having been printed with their privity.

Mr. Kerr. - Your Honors, the affidavits are put in merely to meet that of Halden, where it is stated to be believed that the libel in question was circulated by the defendants.

The learned gentleman referred to the case of Baldwin v. Elphanstone, where it was laid down that where a Newspaper had been printed for the purpose of being published, but had been suppressed on its being found to contain a libel, the proprieters were not guilty of libel.  The affidavit of the defendants set forth that the paper containing the alleged libel, if it came from their office, was not permitted to leave the office with their knowledge and consent; and the party by whom it had been taken, had been guilty of stealing it.  [The learned Counsel here stated the mode in which he conceived the document in question had been stolen from the Herald Office.]  Under a full view of the case, there was no proof of publication such as should satisfy the Court of the fact, and it was therefore hoped that the rule would be dismissed with costs.

Chief Justice. - Let me see that part of the letter charged as libellous.

His Honor observed that the Court was situated differently from that of the Court of Kings bench, as to the mode of procedure in such case.  Situate therefore, as this Court is, it feels that it has no discretion but to submit to a Jury, cases where there appears to be a sufficient body of facts for their consideration.  The libel sets out with charging a party with being a twice convicted felon and unfit for the situation he holds.  His Honor said that he had always felt disinclined to call upon parties to answer a rule where it could be proved that they had been imposed upon; acting upon the conviction that the conductors had used means to suppress the publication of the libel in question, he should have felt strongly against sending the case to trial; but as it is the opinion of the Court that there is a body of facts, the merits of which can be only estimated by a Jury, it feels bound to submit the same to their determination.  Rule made absolute.



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

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. 1), 1834.

[2 ] See R. v. Hay, 1835: Hay was charged with stealing the slip and passing it to Watt, who was charged with receiving it.

[3 ] See also Sydney Gazette, 17 June 1834.

Published by the Division of Law, Macquarie University