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

Houston v Stephens and Stokes [1835] NSWSupC 51

libel - civil procedure

Supreme Court of New South Wales

Dowling J., 7 March 1835

Source: Sydney Herald, 12 March 1835

Saturday, March 7, 1835. - Houston alias Cunningham v. Stephens & Stokes. - In this case an action was brought last term by the Plaintiff against the Defendants,[ 1] Editors of the Sydney Herald, for a libel, in publishing the examination of witnesses at the Police Office, on his commitment on a charge of horse stealing, of which charge he was subsequently acquitted.  On the former trial of the libel, the Jury returned a verdict for the defendants; but a motion being made for a new trial on behalf of plaintiff, on the ground of misdirection by the learned Judge Dowling, who tried the case; his Honor concurred in the opinion of the other Judges, admitting that he had not put the case to the Jury as he should have done, and a new trial was granted accordingly.

Mr. Wentworth now moved that the trial be postponed until the plaintiff's attorney give notice to defendants where he is to be found.  The motion was founded on the affidavit of Mr. Robert Foster, who deposed that he applied to the attorney for the plaintiff to be informed where the plaintiff Houston was to be found, when he gave him to understand that a short time previously to the trial, plaintiff called at his office, and informed him that he was going to Illawarra, to cut cedar; since that time he had not seen him, but believed him to be at Illawarra; this was in effect no information calculated to meet the intentions of the defendants, for it was quite useless to seek, in the boundless forests of the wild district of  Illawarra, an obscure individual, engaged in cutting timber.  This sort of information, however, shewed that the second trial was coming on in the absence of the plaintiff; a circumstance of great importance to defendants, who were thereby deprived of all opportunity of communicating with him; suppose, for instance, the defendants wished to compromise the matter with him, it was but justice that such opportunity should be afforded them, as their diligent enquiries for the plaintiff had been without effect.

In support of the application, he begged to call their Honor's attention to the case Johnson v.Burne, reported in Barnwell v. Cresswell, to which a note is appended, citing the caseWorkman v. Smith, in which the Court granted a similar application.  The present case was to all intents an original trial, and quite independent of all former proceedings; it was therefore clear that the application was made in good time.

The Court would see the importance of the application to the interests of the defendants, and justice could only be awarded thereby, for aught that could be know to the Court or the defendants, the plaintiff might be dead.

Mr. Foster, on the part of the Plaintiff, contended that there were no grounds for the application; to grant which would be an absolute denial of justice to his client.  The case cited by Mr. Wentworth was essentially different in its character from the case now before the Court; the defendants case principally rested on the party sought for.  The defendants in this case allow proceedings to arrive at the present stage without before evincing any desire to be informed of that which is now brought forward as a ground of postponement; if they really wished to know where the plaintiff was to be found, why did they let the matter rest for several months, and only recollect themselves just as the case is set down for trial.  It was not a matter of surprise, that they should evince a wish to put the case off, knowing that the longer the delay the less force it is calculated to have on the mind of a Jury; as to the diligent enquiries they effect to have made, asking a few persons in George-street, who might know nothing of him, might be called a diligent enquiry so as to serve the purpose.  He would contend that to grant their present application, would be to allow the defendants to take advantage of their own laches, and after suffering the matter to slumber for months, just on the eve of trial, call on the Court to postpone it.  He would ask, what satisfactory grounds has been shewn for such postponement?  Have they established the fact of any inconvenience to which they will be subjected thereby? or had it been shewn that their cause will be prejudiced in consequence?  It was certainly competent for a person to be absent in England, or elsewhere, and commence an action.

Mr. Wentworth. - Yes, certainly, by giving security for costs, if the application be made in time.

Mr. Foster concluded by suggesting to the Court, that justice would not be duly awarded to his client, if the application be granted.

The Chief Justice said, that although there was nothing unreasonable in the application, yet the Court did not feel authorised in granting the motion; it would be establishing a precedent which would be extremely inconvenient to the Court.

His Honor Mr. Justice Burton concurred.

Mr. Justice Dowling learnedly expressed himself to the effect, that the application ought not to be granted; as the assumed object of the defendants was extremely weak; they had had ample opportunities to effect a compromise with the plaintiff if they had been so disposed.


Hearing, 6 June 1835

Source: Sydney Herald, 8 June 1835


Houston alias Cunningham, v. Stephens and Stokes. - In this case, which was set down for trial on the 5th instant, but which did not take place owing to the absence of the Jury summoned for the issue, Mr. Foster moved, that the case be now tried by a Common Jury, as applied for by the plaintiff.  The case had gone off owing to the negligence of the defendants themselves, in not summoning the Jurors in proper time, as he was instructed that he Sheriff had received notice on the 29th May only; he had no objection to a Special Jury, but his client was reasonably fearful that the longer the trial of the case was delayed, it was the more to the prejudice of the result; it was impossible, at this late period, to get another Special Jury, and it was therefore desirable, that it should be tried by a Common Jury; the Court had proceeded in a similar way in several cases, which he would point out in the books, and it had also the precedent of the case Martin v. Munn, tried in that Court.

Mr. Wentworth opposed the motion, as being absurd, and struck directly at the principle of the Right of Trial by Jury, as established by the Act, which Act it went to repeal; the motion was repugnant to the Jury system, and he was not aware that the Court could assume to itself the power of proceeding in such a motion, in the manner pointed out; nor was he aware that the defendants could be expected to lie under the responsibility of giving notice to the Sheriff to summon the Jury.  In reason, the plaintiff was bound to make the arrangements for the trial of his own case, and the burthen, therefore, lay on the other side.

Mr. Foster observed, that in lodging the notice, a fee of two guineas was to be paid, and that circumstance alone, he submitted, relieved the plaintiff from the responsibility as to the notice; it was unreasonable to expect that the plaintiff would pay the expenses attending the Jury of the defendants.  Rule Nisi granted.


Forbes C.J., 13 June 1835

Source: Sydney Herald, 15 June 1835[2 ]


Houston alias Cunningham v. Stephens and Stokes. - In this case, which is an action for libel, and in which a rule nisi was granted on a former day, calling on the defendants to shew cause why the Special Jury granted in this case should not be set aside, and a Common Jury granted in lieu thereof, Mr. Foster now moved (on the affidavit of Mr. Francis Stephen, Attorney for Houston alias Cunningham which set forth that due notice of trial had been given to Mr. Robert Foster, Attorney for defendants, in sufficient time to have enabled him to give the necessary directions to the Sheriff for the summons of the Jury within the time provided by the Rules of Court) that the rule be made absolute.

His Honor the Chief Justice - Are you prepared, Mr. Wentworth, to oppose this application?

Mr. Wentworth - Since the rule nisi was granted, your Honor, I have not heard any thing further of this case; I certainly received instructions to oppose the application for that rule, but subsequently thereto I have no been in communication with the defendant's Attorney on the subject - I have received no further instructions in this case.

Mr. Francis Stephen - A communication, your Honor, has just reached me from Mr. Robert Foster, Attorney for the defendants, requesting that I would consent to the postponement of the case until an advanced period of the day, but as the case is now before the Court, I cannot feel myself authorised in justice to my client to consent to its postponement.

The Attorney for the defendants, Mr. Robert Foster, not being in attendance at any period during the day, and having altogether omitted to make any arrangements for the opposition to the application pressed on the Court by the Counsel for the plaintiff, the Court under these circumstances had no alternative but to comply with the application, and the rule was made absolute.

[We will forbear to offer any expression of our sentiments on this peculiarly strange case for the present. - Eds.]


Forbes C.J., 24 June 1835

Source: Sydney Herald, 6 July 1835[3 ]


Wednesday, June 24. - Before His Honor the Chief Justice, and a Common Jury.

Houston alias Cunningham v. Stephens and Stokes. - This was an action brought by the plaintiff against the defendants, Editors, Proprietors, and Publishers of this Journal for libel, under the following circumstances: - In the early part of the year 1834, the plaintiff was apprehended on a charge of stealing the horse of a person named George Lawrence, who had left the animal at the door of the Cooper's Arms, Goulburn-street, and who discovered a few moments afterwards that it had been taken away; he directed his servant to go and make an immediate search for the horse, and to give any person into custody in whose possession he might find it, as it had been stolen.  After a search of two hours, the horse was found in George-street, in the possession of the prisoner who was mounted, and he was immediately given into the custody of the Police.  On the following day, the prisoner (now the plaintiff) was arraigned before the Magistrates on the charge of horse stealing.  Lawrence appearing to prosecute, the prisoner after hearing the charge, defended himself by saying, that he had no intention to steal the horse but had taken it out of a bit of fun, the prosecutor Lawrence being an old an intimate friend of his; Lawrence admitted that he had known the prisoner, but had not seen nor spoken to him for four years previously to the transaction; the prisoner was thereupon committed.  On his trial, the prisoner put the following question put the following question to the prosecutor Lawrence, ``George, do you think I meant to steal your horse," when the prosecutor answered that he did not think he had intended to steal it, but had merely taken it out of ``a lark," on which the Attorney General asked the prosecutor if he had made the same statement before the Committing Magistrates; the Attorney General expressed astonishment that a case should have been sent before the Court under such circumstances and immediately abandoned it, and the prisoner was acquitted.  In the following number of the Australian newspaper, Edited by the two Gentlemen who had been the Counsel of the accused Houston, an article appeared commenting in strong terms on the conduct of the Committing Magistrates, reproaching them for having ignorantly overstepped their duty in committing a young man for horse stealing, who had merely taken his friend's horse for ``a bit of fun."  This attack on the Magistrates, led to the publication of an article in a subsequent number of this Journal (the 12th May 1834), under the head of the ``Horrible Law System," appended to which were copies of the depositions taken at the Police Office on the committal of Houston, the object of which was on the part of the writer, to relieve the Magistrates from the imputation which had been cast upon them by the Editors of theAustralian, namely, the having committed a man on a charge of horse stealing who had been declared by the person appearing to prosecute, as being innocent of that charge; the depositions thus laid before the Public, exhibited no such admission of the prosecutor, and the imputation therefore fell harmless to the ground.  For this article published in the Herald of the 12th of May, the Solicitor General, Mr. Plunkett, applied to the Court for a rule nisi calling on the Editors to shew cause, why a criminal information should not be filed against them for a libel on the administration of justice in New South Wales, published under the head of the ``Horrible Law System." tending to bring the legal institutions of the Colony into contempt; the rule nisiwas obtained, but before the return day the Editors inserted an article by way of apology, as suggested by the Solicitor General and the prosecution was abandoned.  This was immediately followed up by the institution of a civil action, at the suit of Houston against the Editors of this Journal for a false, scandalous, and malicious libel contained the article of the 12th May; the case was tried in the ensuing term before a special jury, when a verdict was returned in favor of the Editors of the Herald; but on a subsequent motion of the plaintiff's Counsel for a new trial on the ground of misdirection by the learned Judge Dowling, who tried the case, the Court was of opinion that a new trial should be granted.  Between the acquittal of Houston and this trial, the Magistrates instituted a charge of perjury against Lawrence, and after a lengthy examination he was committed and tried at the ensuing Quarter Sessions, under the summary jurisdiction of the Court, and was acquitted.  This action was set down for a trial on the 5th of the past month, but in consequence of the non-attendance of the necessary number of Jurors, the case was postponed.  The plaintiff's Counsel moved on a subsequent day, that the case should be tried by a common, instead of a special Jury, on the ground, that the case had gone over in consequence of the negligence of the defendants by their Attorney, Mr. Robert Foster, in not having given notice to the Sheriff, in such time as to enable him to summon the Jury within the time prescribed by law.   On this ground the motion not being opposed, owing to the singular conduct of defendant's Attorney, the Court granted a Common Jury, and the case came on this day.  The declaration contained three counts; the first of which set forth that the defendants as Editors, Printers, and Publishers of the Sydney Herald Newspaper, did in the publication of the 12th May last, publish an article under the head of the ``Horrible Law System," in which they stated that the plaintiff's Counsel had been fortunate enough to obtain for him on his trial on a charge of horse stealing, a verdict of acquittal, thereby meaning, that he, the said plaintiff, had not been acquitted of the crime of horse stealing in consequence of his innocence, but owing to good fortune or chance; the next count contained an inuendo [sic], in which it had been set forth by the defendants, that the plaintiff had escaped owing to the negligence of the Crown Law Officers, and not in consequence of his innocence; a third count alleged that the defendants had set forth that the plaintiff's acquittal from the charge of horse stealing was the result of subornation of perjury conveyed in the following words, ``but between the committal and trial, abetter feeling prevailed" thereby, meaning, that although the prosecutor Lawrence, deposed before the Committing Magistrates, that the plaintiff had stolen his horse, yet at the trial he denied it on his oath; such subornation of perjury being at the instance of the plaintiff, and owing to which, he was acquitted, and not owing to his innocence of the crime.  The defendants pleaded the general issue, not guilty.

Mr. Foster, counsel for the plaintiff, addressed the Jury. - He stated to them the nature of the action they had to try, and pointed out to them the relative situations of the parties in the action.  He observed that considerable stress had been laid on the circumstance of the plaintiff being known by two names, which would no doubt be held up to them by the learned counsel on the other side, for the purpose of degrading his character, by insinuating that he had been induced to adopt a name in consequence of former misconduct; but that circumstance was readily explained; the plaintiff's mother had been a second time married, during the infancy of the plaintiff, and the name of his Stepfather had thereby naturally attached itself to him, in conjunction with his own; he reminded them of the necessity of being on their guard against impressions sought to be conveyed by counsel; what they had to consider was mere facts, not to be controuled by momentary impressions; when the defendants found they could not grapple with facts, their counsel would endeavour to work upon the feelings of the Jury by his eloquence; for his part, he felt the only course which he had to pursue, and which he was sure would obtain the sanction of His Honor, was to bring under their consideration, the matter in which it was their province to decide, which was simply this; did the defendants publish the article alleged to be libellous, and in the next place, did that article relate to the plaintiff?  For their information on these points he would put such evidence into the box as would leave no doubt on their minds; but he would first read the article itself; he would shew them in the clearest point of view what was intended to be imputed to the plaintiff; nothing less than that he had prevailed on Lawrence, to commit perjury, and owing to such subornation, he had been acquitted.

The article commenced with the ``Horrible Law System;" the very head of it shewed the mischievous spirit of the writers; what, he would ask, was there horrible in the case of a man being acquitted by a jury of his country, of a charge of which he was innocent, unless it was intended to be insinuated that the case was of the most aggravated complexion? taking this in conjunction with the word fortunate, could there be any difficulty in arriving at the meaning; who ever heard of a man being fortunate in being acquitted of an offence of which he was publicly declared to be innocent; could there be anything fortunate in that; was it not clear that I was meant that he ought to have been convicted? had not such been their feeling, would they not rather have rejoiced that such a prosecution against an innocent man had failed?  They would no doubt witness the manner in which it would be attempted to impose on their understandings, as to the insinuation which charged the plaintiff with subornation of perjury; an insinuation conveyed under the expressive term ``feeling," which would be ingeniously commented on by his learned friend; on the last trial he had amused the Court about refering to Johnson's Dictionary, as to the import of that word; he wondered if he had brought his dictionary with him, in order to amuse them now in the same manner; he would take the liberty to inform his that it would require twenty dictionaries, to put a different construction on it than that which had been presented to them; what could be more conclusive than setting out that word in Italics, as insinuating that Lawrence had given different testimony from that which he had given at the Police? to attempt to put any other construction on it, would be to insult their understandings; they would feel that it could bear no other.  The learned gentleman then read the article, and continued - such is the libellous nature of this publication; he would put it to them, was it not palpable that it was incapable of  bearing any other construction than that of charging the plaintiff with the crime of horse stealing, and with having prevailed on the prosecutor to perjure himself, in consequence of which he was acquitted, although guilty.  In publishing the depositions which were appended to the article, and which had been obtained at the Police Office, even without the introductory article which contained the libel, and which shewed the purpose for the which they had been obtained, they had done that which they had no right to do, such proceedings being exparte.  In disposing of these questions, the next point for their determination was what damages ought to be awarded to the plaintiff; the defendants were incompetent to argue anything in mitigation of the publication; it would be contended that it was meant to screen the Magistrates; but what had the plaintiff to do with a question as to the Magistrates; was he to be sent through the world with the stigma on his character which such a publication was calculated to convey?  there were certain privileged communications in which the law would not imply malice, such as a master giving the history of the character of a servant, when applied to for that purpose, or a barrister in reflecting on the character of a suitor, where it was clear to the world that he was no instigated by malice, but in acquitting himself of his duty to his client; but Editors of newspapers, who call themselves the fourth estate of the Realm, had no such privileges; was it to be supposed that because they were the proprietors of a printing press, they could disseminate their slander through the world with impunity?  It was absurd.  If one man sent a letter, containing offensive matter to another, there was but one copy, and therefore the danger of prejudice was confined with the narrowest limits; but if the editor of a newspaper though proper to slander his neighbours, the mischief was not only disseminated through the Colony but throughout the World; he would admit that if one editor chose to publish against another matter which was offensive, and it was answered by that which was libellous, although there could be no absolute justification, yet it would be a mitigation, because there had been provocation, but the present case stood differently; was it because the editors of the Australian chose to publish an article alluding to the Magistrates, that the plaintiff's character was to be held up to public contempt?  What, he would ask, had he to do with the Magistrates; even the article which the defendants thought proper to publish to the prejudice of the plaintiff, offered no provocation to the editors of the Herald; through the whole course of the article there was no allusion whatever made to them; if it stated that the Magistrates had exceeded their duty, what had the editors of theHerald to do with that; were the Magistrates not sufficiently capable of protecting themselves?  If in their zeal in the cause of the Magistrates, they had thought proper to take upon themselves the advocacy of the case, they ought to have done so without interfering with the character of the plaintiff; but it was clear, the advocacy of the Magistrates was not their object, but was seized on as a pretext for slandering the character of the plaintiff.  If they were satisfied on evidence which would be adduced, that the defendants did publish the matter bearing the construction which had been put upon it, the next question for their consideration would be, as to the measure of damages which the plaintiff was entitled to, as a compensation for the injuries his character had sustained; he anticipated that with regard to this question, another topic would in all likelihood be addressed to them for the purpose of influencing their verdict; but he had too much reliance on their sense of the important duty they had to perform, and the sacred obligation of the oaths they had taken, to apprehend that any undue impression could be made on their minds; they would doubtless be told a great deal about costs, and that this action was a mere speculation of the attorney; that the plaintiff was a mere nominal party, and that the attorney would have the benefit of any damages which they might award, as well as costs; he need not remind them that if such a statement were addressed to them, that it would be for the mere purpose of misleading them in the consideration of damages, for they were aware, than an attorney who would have the temerity to bring such a case into that Court would expose himself to the certainty of punishment; if any such facts appeared in the course of the proceeding, the defendants had an immediate remedy against such attorney, by making an application to the Court, which would promptly deal with him as such conduct would merit.  He need not caution them to shut out from their consideration all such attempts at influencing their verdict; what they had mainly to consider was, in what condition was a party whose character had been attacked, as that of the plaintiff had been; he had had occasion to go into the country shortly after the libellous attack made upon him by the defendants, and was shortly to return to Sydney; how could he pursue his avocations; could he move about in society with such an imputation hanging over his head?  They had seen officers of rank placed at the bar, but who, on being acquitted, was again received into the same society as before, because it was felt that they had come forth with their character untainted, they had been declared innocent by a Jury of their country; their acquittal was looked upon as the highest proof of their innocence.  He would ask them, if after such acquittal, the plaintiff and gone to them to transact business as usual, would they not have been satisfied that he was still an honest man?  Assuredly they would; but if they had been told that such acquittal was the effect of subornation of perjury, chance, or negligence of the prosecuting officers, and not in consequence of his innocence, would they not have shut the doors against him?  They might be told that character, to such men as the plaintiff, was of no value; that persons in the upper ranks of life alone felt the sting of any attack on their character; but they, the Jury, would tell the defendants, that the character of the poorest man in the community claimed their most tender consideration as much as that of a man of the first rank in the Colony; it was even more valuable to him - it was all he had to depend upon for his livelihood.  If his character were destroyed, from what source was he to expect his daily bread?  No one would give him employment; suspicion and disgrace would attend him through the wold [sic].  He would not press for vindictive damages, all that was required was that he might be enabled, by the verdict of an intelligent and impartial Jury, to go forth to society with his character purged of the imputations under which he had presented himself to their consideration; and that the defendants might be made to feel, that the laws would not permit them to disseminate their slander to the prejudice of society with impunity.

Mr. G. W. Newcombe, of the Office of the Colonial Secretary, proved the defendants to be the Editors and Publishers of the number of the Sydney Herald newspaper of the 12th of May, containing the alleged libel. - (Publication read, commencing ``Horrible Law System."

John Gurner, Esq. - I am Chief Clerk of the Supreme Court; I produce the record of the trial of John Houston alias Cunningham for horse stealing; I also produce the information which charges him with stealing, at Sydney, in March preceeding [sic], one horse, the goods and chattels of George Lawrence; a second count lays the horse as the goods and chattels of our Sovereign Lord the King; the trial took place the 3d May, 1834, and the prisoner was acquitted.

Mr. Parry Long, Clerk to Mr. G. R. Nichols, Attorney - I have read the article in the Sydney Herald on the 12th May, under the head of the ``Horrible Law System;" I am of opinion that it refers to Houston; I have heard Mr. Gurner's evidence; the article refers to the trial of which he speaks.

This was the case for the prosecution.

Mr. Wentworth rose and addressed the Jury for the defendants - He reminded them that this case had already been disposed of by a Special Jury, but had been remitted to a second trial, in consequence of a trifling error of the Judge before whom it was tried.  He had no hesitation in saying the case was fully within their province without being affected by any charge which might be made from the Bench.  His learned friend had addressed them at some length as to the aliaswhich was attached to the name of the plaintiff, and certainly not without some reason, considering its suspicious appearance; he had told them that it arose from the circumstance of his mother having married in his youth after the death of his father; he would say that he had heard some stranger rumours which would give a very different complexion to that part of the case; but he would forbear making any allusions to those rumours, satisfied to rest his defence with them independently of that circumstance.  He was even willing to admit that the plaintiff was innocent - there was no imputation of guilt applied to him; they would feel, on directing their attention to the article itself, that no such charges were deducible from it; he would have no difficulty in proving to them that it conveyed no such meaning as the plaintiff's counsel had thought proper to assign to it.  Some stress had been laid on the words ``Horrible Law System," which had been held up to them as a proof of the vindictive feelings of the defendants against the plaintiff; nothing could be more absurd than such a supposition; he was ready to admit that it meant something, but no stretch of the imagination could apply it in any sense to the plaintiff; he would remind them that that article had been made the ground work of proceedings at the instance of the Crown Law Officers; not, indeed, because it reflected, on the plaintiff, but because it imputed blame to the administration of justice in the Colony.  That was a reasonable construction to put on it; indeed, the only one it was capable of hearing.  He would call their attention to the manner in which these defendants had already been made to answer for that article, yet they were still pursued with unrelaxed determination.  One day proceeded against by the public prosecutor, next day served with a notice of action for a private libel, and still threatened, if the plaintiff obtained a verdict, with an action at the suit of Lawrence; for it did not admit of doubt that if Houston, the plaintiff had been libelled, the publication in question reflected equally on Lawrence, according to the interpretation of the word feeling by his learned friend.  So, that with one circumstance and another, the situation of the defendants was truly enviable.  His learned friend had also exercised his ingenuity in the word ``fortunate."  Would they say that there was no good fortune in a man being acquitted and going free from that bar, be he either innocent or guilty?  Did not the history of Criminal Courts furnish innumerable melancholy instances of the conviction of persons from a combination of unfavourable circumstances appearing against them?  Was there, therefore, no good fortune in being acquitted?  Did it necessarily imply guilt to say that a man had been fortunate enough to be acquitted?  It was also insisted that the words ``culpable negligence," as applied to the Crown Officer, implied that the plaintiff had been acquitted by indirect means.  A case had been set down for trial, the course of which had been improperly interrupted.  Could an inference be drawn from noticing such a circumstance, that it was meant to insinuate that the plaintiff had been improperly acquitted, he was sure no such inference would be drawn.  Did it follow that it was meant to be assumed that had the case gone on, a verdict of Not Guilty might not have been returned.  The plaintiff had put this question to Lawrence, the prosecutor; ``George, do you think I intended to steal your horse," when Lawrence answered, ``No, I don't think you did," on which answer the case was immediately abandoned.  If there had been no prima facie case, the Magistrates would not have sent the case to Court, and it could not therefore be denied that there was at least some impropriety in abruptly throwing up a case on such an answer, to such a question; was it to be wondered at then, that the defendants commented on what appeared to be an irregular proceeding? in doing so they did no more than what they wee fully authorised to do, and without having in the slightest degree intended to interfere with the character of the plaintiff; his guilt or innocence was quite incompatible with the subject, if the case had been sifted to the bottom, the result to him might have been the same; the defendants did not insinuate anything to the contrary; the article did not impute guilt to him, it only imputed negligence to the Attorney General.  The next word to which their attention was directed, though less dwelt upon than the preceeding [sic], was contended for as being the interpretation of subornation of perjury, and the chief reason for calling upon them to give it that interpretation was, because it was made horrible by being expressed in italics - he meant the word feeling.  On this part of the case in the former trial, the Attorney put a learned critic into the box to inform the Gentlemen of the Special Jury what the true meaning of that word was; he informed them that it certainly was an awful word, and could have but one meaning, namely subornation of perjury.  The article states, ``between the committal and the trial a better feeling prevailed," would it be alleged as impossible that it could not have been meant that the plaintiff and his friend, having had several friendly conversations with each other, the friend had been satisfied that the horse had been taken only out of ``a bit of fun;" or suppose for instance, George the friend, owed Joe the culprit a grudge, and had taken the first opportunity to pay off old scores, by charging him with stealing his horse, but at the interposition of some friend, the kindly feelings of by gone days were revived; was that not another case of great probability, to which the words ``better feeling" might have been intended to apply; were there not innumerable forms in which this dreadful word might be made to occupy an important position?  It was a question purely their province to assign such construction to those words as might be consistent with their common understandings; and he entertained no doubt that they would see, that they were not in any degree capable of bearing the interpretation which had been put on them; they would see that the whole spirit and letter of the article had been directed against the law system of the Colony, and not against the plaintiff; that its sole object was to vindicate the character of the Magistrates from the imputations which had been cast upon them by a previous article in the Australian.  That such was the true import of the article it was only necessary to read it, the article read, his learned friend had stated that the depositions were purely exparte, such was not the fact, the prisoner had cross-examined the prosecutor and had elicited in that way what he deemed necessary for his defence; they would, no doubt, feel satisfied that the object of that article was not for the purpose of proving the plaintiff guilty of felony, but for the purpose of exposing the negligence of the Law Officers.  To understand the object of the article, it was perhaps necessary for him to point out to them, that an article in the Australian Newspaper, reflecting on the character of the Magistrates in the grossest way, had preceded the article in question, charging them with having improperly committed a man against whom no case had been made out, as before stated; the depositions were not published with a view to shew that the plaintiff was guilty of the charge imputed to him, but that there was a prima facie case which justified the Magistrates in sending him to his trial.  Lawrence left the horse at the door of a public-house, which was taken away by a person to whom he had not spoken for four years; were not these facts, to justify a committal? and it therefore became the defendants, as Editors of an independent journal, to take up the case; to relieve the Magistrates from the reflections that had been cast upon them, and to show that they were justified in what they had done.  They might, as suggested by his learned friend, have repelled the attacks themselves, but because they did not do so, did it follow that the Editors of Public Journal were to allow such observations to pass by unnoticed? was it not in fact, a duty which they owed to society to show that the charge did not rest with them? if they had not done so, they would have been guilty of a flagrant dereliction of their duty; this was the whole aim and scope of the article in question.  They were told that this was no excuse for the defendants; that in vindicating the Magistrate they ought to have held sacred the character of the plaintiff; but they had seen that in the whole course of the article no imputation of guilt was attempted to be conveyed.  It had been anticipated that he would necessarily address himself to them on the question of costs, he felt no surprise at the anticipation of such a question, it was too clear to admit of doubt, that had it not been for costs the present action would never have been heard off.  Could they imagine that a man who went reeking from the Bar of the Court, having had the good fortune to escape, could have any regard for character, who could again present himself, on the following Saturday, to institute an action for libel for such an article as this, it was not conceivable that such a man could have had the temerity to come into Court and make that character a basis for such a proceeding; he had been made the stalking horse in the case, for the purpose of putting money into the pockets of attorney.  In illustration of this part of the subject, he could not but regret that it devolved upon him, to expose the real motive of the case by reading an article in a preceding number of the Australian, where the Editors avow that they were determined to get back £100, which they had to pay as expences [sic] in an action with these defendants, when legal hostilities would be allowed to drop -

Mr. Foster. - I object your Honor to the reading of that article, what reference can it have to the case between the defendants and my client.

His Honor the Chief Justice. - I must certainly deprecate, Mr. Wentworth, the reading of that article; it is totally irrelevant to the present issue, and can only tend to distract the attention of the jury from the true points for their consideration.

Mr. Wentworth proceeded; - in the anticipation of the argument likely to be addressed to them on the subject of costs, it had been stated, that the plaintiff could have nothing whatever to do with costs, but they were aware, that if this were a case in which a farthing damages could be obtained through the instrumentality of the plaintiff, there was no difficulty in identifying him with the costs: though he did not imagine that the plaintiff would receive any benefit therefrom; but in such a case it was impossible to have conceived that any jury in the universe could award any damages which could be of benefit to the plaintiff, they had never been absurd enough to imagine such a thing; a farthing was the summit of their expectations.  This case had already been tried by a special jury and had been remitted for re-trial, but as the case had failed with a special jury, it occurred to the plaintiff's attorney that if it could be tried by a common jury they could not fail of success; an opportunity providentially occurred through the negligence of the defendant's attorney, (not the present attorney, Mr. Chambers, who now interrupted the learned gentleman, to state that fact to the Court,) to put them in a capacity to make the necessary application to the Court, which was hailed with satisfaction, as if there existed a sympathetic feeling between a common jury and crime; they would teach them by their verdict that day, their sense of the compliment that had been paid to their integrity; he was glad that such an experiment had been made, because it would show that with common jurors as well as special, such actions would always meet with the fate they merited.  The defendants called no witnesses and their defence closed.

His Honor in putting the case to the Jury, addressed them to the following effect:- Gentlemen of the Jury, this is an action brought by the plaintiff against the defendants, - proprietors, printers, and publishers of the Sydney Herald, newspaper, for a libel, in imputing to him the crimes of horse stealing and subornation of perjury.  I need not tell you, that when one man charges another with these offences, and publishes the same to the world, he is guilty of what the law holds to be libel.  The declaration contains the matter, which you are now called on to try, and which sets forth that the plaintiff had been tried on a charge of horse stealing, and acquitted; it goes on to allege that an article subsequently appeared in the Herald newspaper, of which the defendant's are the printers and publishers, imputing to the plaintiff the crime of horse stealing, notwithstanding his acquittal; and also subornation of perjury, by means of which such acquittal had been procured, and not in consequence of his innocence; the issue is confined to this point, whether the words so charged as libellous, impute to the plaintiff the crimes of horse stealing, and subornation of perjury, and whether the defendants from whom the plaintiff seeks to recover compensation for such libellous publication, are the parties liable.  Before you direct your attention to the matter set forth in the declaration, you will have to consider, whether the defendants are the parties against whom the plaintiff is entitled to recover, if the words set out are capable of being the construction assigned to them; on this point, you have the evidence of Mr. Newcombe, who proves that they are the Editors, Proprietors and Publishers of theSydney Herald newspaper, as provided for by the Act of the Governor and Council, and which was intended to supply, what would otherwise be difficult to prove.  I need not tell you that Editors of Public Journals are liable for all matters which may appear therein.  You have heard the evidence of Mr. Gurner, who states that the plaintiff Houston, was tried on the 3rd May, 1834, on a charge of horse stealing, but was acquitted.  Mr. Parry Long also states that he has examined the article in question, and has no hesitation in saying, that it refers to the plaintiff.  These are the preliminary proofs offered to your consideration, and it is your province to determine how far the defendants are guilty, as the Publishers of the article set out, and alleged to be libellous.  The defendants on their parts deny, that they have in such article made any imputation on the character of the plaintiff.  The declaration after setting forth certain facts, namely, that the plaintiff was committed by the Magistrates on a charge of horse stealing, but that on the day of trial the prosecutor Lawrence, on the cross-examination of the prisoner, admitted that he did not think he, the prisoner, intended to steal his horse, but had only taken it for a bit of fun, upon which the Attorney General threw up the case, and the prisoner was acquitted; it then goes on to charge the defendants, that they, notwithstanding his acquittal, published a certain article in which they still charge the plaintiff with the crime of horse stealing, he having been acquitted by means of subornation of perjury, and not the result of his innocence.  I will read these passages to you, and you will say whether the meaning which has been put on them by the plaintiff, is their true and only interpretation; whether the defendants have been guilty of imputing the crimes of horse stealing, and subornation of perjury to the plaintiff.  (His Honor here read the article, and the declaration, which set forth the charge of libel against he defendants in three counts.)  The defendants have denied by their plea, that the article had reference to the plaintiff, but had merely gone the length of imputing negligence to the Attorney General; but although the defendants should have set out with the sole view of exposing the negligence of the Attorney General, and in the course of their comments on the conduct of that officer, should have imputed to the plaintiff the charges set out in the declaration, and alleged to be libellous, the plaintiff had been injured in his character thereby, and was entitled to recover.  Gentlemen, I will leave the case to your determination, suggesting to you the propriety of laying out of your consideration, the circumstance of the former trial and its result; it is impossible for you to say upon what grounds the Jury on that occasion founded their verdict.  The next question for your consideration, will be the amount of damages to which the plaintiff is entitled, if you are of opinion that the charges against the defendants have been made out, this is your province, and I now leave the case in your hands.  The Jury retired for about three minutes, and returned a verdict for the defendants.

Counsel for the plaintiff, William Foster, Esq., Attorney, Mr. F. Stephen.  Counsel for the defendants, W. C. Wentworth, Esq.,  Attorney Mr. C. H. Chambers.



[1 ] See Houston v. Stephens and Stokes, 1834.

[2 ] See also  Australian, 16 June 1835.

[3 ] On 27 June 1835, the court ordered that the costs be taxed: see Sydney Herald, 28 June 1835; Australian, 3 July 1835.

Published by the Division of Law, Macquarie University