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

In re Stephen and Nicholls [1835] NSWSupC 28; sub nom. Ex parte Attorney General, in re Stephen and Nicholls (1835) NSW Sel Cas (Dowling) 743

contempt of court, newspapers - contempt of court, attachment - contempt of court, fine -discipline of attorneys - press freedom - legal practitioners, division of profession - reception of English law, division of profession - judge in own cause - self-incrimination, privilege against - civil procedure

Supreme Court of New South Wales

In banco, 7 March 1835

Source: Sydney Herald, 12 March 1835[ 1]

Saturday, March 7, 1835 - Exparte. - The Attorney General.  In the case of Messrs. Francis Stephen and George Robert Nicholls, a rule had been obtained on a former day, calling upon the above named parties practicing attornies in the Supreme Court and editors of theAustralian newspaper, to answer certain interrogatories of the Court, touching two articles of an offensive nature in reference to the Judges, published in that journal.

Mr. Wentworth now appeared to shew cause against the rule.

The Court enquired if Mr. Nichols was present.

Mr. Wentworth contended that it was not necessary for the parties to appear until the rule be made absolute.

The Court decided that it was imperative on a party to appear when the rule first issued, citing 1st Chitty, in support of that decision.

Mr. Wentworth observed, that the rule was defective, inasmuch as it designated them attornies and publishers; it was no matter whether the parties were attornies or not, the rule should have been strictly confined to their being proprietors; if it were otherwise, there would be two laws - two liberties of the press, one for attornies and another for publishers; if so, it would be impossible to compete with the unfettered portion of the press.  If it could be the law, he would ask would it be justice to make a rule, that no attorney could be a proprietor and publisher; it would, in fact, do in a direct manner, what this rule would do indirectly, if carried into effect.  Ample proceedings were levelled at them as proprietors, and the rule would be obviously better if confined thereto; as far as he was now aware, it was quite a novel proceeding in that Court; there had been some time ago, a case of the same nature, the particulars of which he could not recollect; but in which, proceeding did not issue.

His Honor, Mr. Justice Dowling, remembered that in the case alluded to, the proceedings were initiated.

Mr. Wentworth continued. - Since that time a rival publication attacked the Court day after day, in the administration of justice, and when at length the Crown Officers brought the proceedings under the notice of the Court, the Court did not interfere.  He would ask then how far it was just or expedient to make a sudden revulsion, and after a period of six years forbearance - to turn round for the first time during that period, against the parties to this rule, who are now singled out from the whole press of the Colony.  He would suggest, that if the press had grown into a state of licentiousness, there was another mode of checking that licentiousness, more in accordance with justice to the parties, and more satisfactory to the public at large.  With respect to the two several publications, he would admit that they contained a good deal of severe animadversion; but it did suggest itself to him, and it would be obvious to the world that the objectionable portion of those articles were rather directed against the Judges, in their private capacities as  gentlemen, than as mere ministers of justice; on that point, however, he would have to make some further observations on a future stage of the proceedings.  He would however call the attention of the Court to the rule, to which these articles had reference; it was a rule of court for the division of the bar, which had been sent to England and had returned at the time these articles were penned, continuing the discussion of a question which was to be mooted, how far the court could make such a rule; that power of the court had never been questioned, and therefore, when fully discussed, might turn out to be a mere nullity.  There was no doubt it was a question of law.  Its expediency as adapted to the circumstances of the Colony was a legislative question, and it was on that question that the Judges had to decide, as well as on its judicial policy; therefore these articles are purely discussions of a new question, first as to its legislative, and next as to its judicial character; and it was a new doctrine that the press could not impute motives to the legislature.  In England when a new public measure was under consideration the widest possible latitude was given to the press.  There were no limits to which it was confined; no extremities to which it was not allowed to go in discussing the propriety and expediency of the measure; the opposition press making the most strenuous efforts to procure its repeal; look at the Reform Bill - the unvarying topic of the press for a series of months; in questioning the expediency and propriety of which, to what extremities were not the press tolerated - to what sentiment did it not give expression.  With regard to the articles referred to he would say that the matter out of which they arose had not, at the time, been fully determined upon; were they then, as conductors of a public journal, & as individuals whose interests would be effected therby [sic], to see the law framed without discussing a question as to the power of the Court to establish the rule?  He would submit that the articles contained no imputation of motives; and even so, it was open to them to say all they had said, according to the established rules of the press.  He had suggested that the order had not been finally and irrevocably determined upon at the time of publication of these articles; he would also beg to call the attention of the Court, for the sake of argument, assuming that the Editors were also the authors of the articles, a fact on which much importance rested, that the rule in this case had been attended with very serious consequences to these gentlemen - had prevented them from prosecuting their usual practice - had subjected them to a great pecuniary sacrifice, an had exposed them to inevitable ruin; under these circumstances, which were calculated to excite feelings of acerbity and exasperation, the Court, in its candour, would allow that an ebullition of angry feeling, would, in the infirmity of the human mind, naturally take place.  The Court was aware that that feeling was kept in a state of excitement by a rival press, which, in opposing their views of the question under discussion, took occasion to vent their spleen against these gentlemen.  From such causes was it to be wondered at that they were betrayed into a warmth of expression, according with the view they entertained of the vitality of the subject as affecting themselves; it was calculated upon, as a matter of course, that the Court, on such an occasion, would view the proceedings of the press with the most favorable eye; that it would act with its accustomed lenity, never for a moment supposing, that after a period of six years, this publication would be the first to be subjected to a summary mode of proceeding.  In the articles in question, there may be objectionable matter, which none but a person under excitement, would have given expression to; but he (Mr.W.) would contend that they contained nothing which could be construed as a direct contempt of Court; the attack, as he before observed, appeared to be upon the Judges, not in their ministerial characters as the administrators of justice, but as mere gentlemen; however objectionable the observations may be, in the latter view, they certainly are not of a character to call for an attachment from the Court.  The cases in which the Courts proceed, on this way are too plain to be mistaken.  It would be idle indeed not to suppose that the Court had the power of attaching by some rule or order; but in exercising this jurisdiction it also confined it within proper limits; - it was a jurisdiction not to be pushed beyond the enforcement of its own acts.  The nature of that jurisdiction was well described in an extract from the speech of a celebrated lawyer, from which he would shew clearly, that in the present case the jurisdiction of the Court was attempted to be pushed beyond its proper limits.  (The learned gentleman cited at great length the extract referred to, from the speech of Lord Erskine in the State Trials.)  Now, assuming, continued Mr. Wentworth, that this is a true definition of the nature of that jurisdiction and of the causes which called the exercise of its functions into action, he would put it to the Court, in what particular have these parties rendered themselves amenable.  He would repeat that if it were a true definition of the power of the Court to move by attachment, where was there in the publication in question anything which came within the terms of that definition.  What rule have they infringed, what order have they neglected to obey?  It is certain that the rule under discussion was not at the time an absolute rule of the Court, but a question pending the power of the Court to make such a rule.  He (Mr, W.) could not but be aware, that in the olden authorities deduced from the bad times of the constitution of the Star Chamber and other proceedings, such attachments have issued, but it has been found where the Court interfered, it was in cases where attacks had been made at the Court in its judicial capacity and not levelled at the private character of its Judges, from which it was clearly distinguishable.  If the Court could proceed thereupon summarily, it would be a perversion of that principle of British jurisprudence, that no man can be judge in his own cause.[ 2]  It was clear if it was a contempt of Court it was also a libel, for which the parties might be admitted to answer before another constitutional tribunal!  What would be the effect on the public mind if the Court persists in prosecuting this mode of trial? will they be satisfied that justice has been awarded? will it not be said that a principle of law and of justice has been subverted.  He would submit that the present proceedings could not be carried to consummation without a violation of that principle.  It was not expedient nor necessary to press such proceedings.  There was another tribunal who were judges of the law and of the fact, and who would relieve the Court of the odious task which it was about to impose upon itself.  Even then the parties laboured under a disadvantage to which they would not be exposed in England; the judges would finally be called upon, in case of conviction, to award punishment for an offence against themselves, there being but one competent court in this Colony, it could not be avoided.  For these reasons he would suggest the propriety and expediency of directing the Attorney General to file a criminal information and discharge the present rule.

The Solicitor General begged to mention as an amicus curiae, a case which occurred in the last session of parliament, of an Editor who had commented on the judicial capacity of Lord Brougham in certain appeal cases, and being brought before the house to answer for the libel, he was examined by his Lordship as Speaker, who also passed sentence on him.

The Court after a short deliberation made the rule absolute as against Mr. G. R. Nichols,[3 ] and directed that Mr. Francis Stephens be lodged in the custody of the Sheriff to be brought before the Court to answer interrogatories, in four days from that time.

On the motion of Mr. Wentworth, Mr. Stephen was admitted to bail, himself in the sum of £100 and two sureties in £50 each.

 

In banco, 21 March 1835

Source: Sydney Herald, 23 March 1835[ 4]

 

Exparte the Attorney General. - In the case of Messrs.  Francis Stephen and George Robert Nichols, Editors of the Australian, which had been postponed until Saturday.  The Court called on Mr. Nicholls who did not appear.

Mr. Francis Stephen appeared to answer the interrogatories of the Court, and stated that he was the sole author and publisher of the article to which the rule applied, and that Mr. Nichols was in no way whatever a party thereto; he admitted that on looking over the article dispassiona[t]ely, he had used expressions which he certainly was not justified in, for which he took the present opportunity to express his regret.  He had no farther observations to offer.  The Court, in the first instance, deferred judgment until Thursday next which was afterwards postponed until Saturday, Mr. Nichols appeared, and the Court then put certain interrogatories touching his identity with the Australian.  He demurred for some time to answer the question, contending that he was justified in withholding his answer, as it had a tendency to render him liable to a criminal information for libel, probably by their honors individually.

His Honor Mr. Justice Burton intimated that his refusal to answer could not avail him anything as in the event of his persisting in a refusal, the Court would only be thrown upon the alternative of having recourse to affidavits and acting upon them.

Mr. Nichols at length admitted his connection with that Journal, but denied any participation in the article in question; he had never been aware that such an article was intended for publication, and had never seen it until it appeared in the paper.  The Court ordered that he appear on Saturday next to receive judgment.

 

In banco, 21 March 1835

Source: Dowling, Select Cases, Vol. 4, Archives Office of New South Wales, 2/3463

[p.146]

1835

Saturday

21st March]

 

[Defts attached for contempt in publishing scandalous matter of the Judges, are bound to answer interrogatories, though the answer may render them liable to prosecution for a libel.]

 

Exparte The Attorney General

In re F. Stephen Gent. & G.R. Nicholls gent.

 

On a former day in this term the Attorney General obtained a attachment against Mess StephenNicholls attorneys of the Court and Editors & Proprietors of the Australian Newspaper, 10th & 13th February last for a contempt in publishing certain scandalous reflections upon the judges of this Court, touching and concerning the late rule of Court for seperating [sic] the Branches of the Legal Profession.  The defts having put in bail, to answer to interrogatories filed in the Masters office, they now appeared on the floor of the Court to answer to the interrogatories.  The deft Nicholls at first objected to answer to interrogatories which if he answered truly might subject him to a prosecution for a libel; and he cited Barbers case (Strange) as an authority in support of the objection.

[p.147]Sed Per Curiam.  You must answer the interrogatories or take the consequences.

Nicholls then answered & purged himself of the contempt.

Stephen waving the objection taken by Nicholls confessed himself guilty of the contempt and submitted himself to the Court; & being ordered to attend the Court on a subsequent day, he was fined 50£ & required to give security for his good behaviour for 2 years, himself in 200£ & two sureties in 100£ cash & to be imprisoned until fine paid & sureties found.[5 ]

 

In banco, 28 March 1835

Source: Australian, 31 March 1835[6 ]

 

The King v. Francis Stephen and George Robert Nicholls. - The Attorney General prayed the judgment of the Court, which Mr. Justice Dowling proceeded to deliver in the following terms: -- ``Francis Stephen, Gentleman, -- you are to receive the judgment of the Court, having been proved, as well as confessed yourself to be the author of two articles in the Australiannewspapers of the 10th and 13th of February last, respectively, in contempt of this Court."

``It is unnecessary now to advert to the offensive matter of those publications; no person of common candour would hesitate to pronounce them to be highly offensive, and in contemptuous derogation of the authority of this Court.  Your own confession, cold and reluctant as it was, and coming at the eleventh hour as it did, after near six weeks time to reflect thereon, is an acknowledgment that they were not justified by the occasion to which they relate."

``The Court has a very painful but most important duty to discharge on the present occasion.  If we could regard these publications in the light merely of offensive reflections (as was argued by your counsel) upon the private and personal characters of the Judges, as members of the community, the present proceeding would most certainly not have been adopted.  We have endeavoured so to view them, in order to that we might be relived from the duty which we are now called upon to discharge; but we cannot conscientiously do so.  They aim at the authority of the Judges as ministers of the public justice of the Colony, and in that light, a solemn duty is cast upon us to guard against the mischiefs which must arise to the community from any attempt to disparage the lawful authority of the King's Supreme Court.  It is in this light that we now exercise the power vested in us as a Court of Record, for the vindication of its authority.  Taking all the circumstances of the case into our most anxious consideration, and giving you all the benefit to which you are fairly entitled from the concession made on a former day, the Court doth order and adjudge, that you Francis Stephen, gentleman, do pay to the King a fine of £50, -- that you do give security for your good behaviour for two years, yourself in £200, and two sufficient sureties in £100 each, and that you be committed to the custody of the Sheriff until that fine be paid, and those securities entered into."

``With respect to the case of George Robert Nicholls, gentleman, we are of opinion that whatever might be his legal responsibility as editor and proprietor of this paper if this proceeding had assumed another form, he has sufficiently purged himself by his answer to the interrogatories exhibited against him from any personal share in the offence of Mr. Stephen, so as to relive himself from penal visitation, and we do therefore direct him to to [sic] be discharged, and his sureties to be relieved from further responsibility."

 

Notes

[1 ] The judge's notebook version of this is in Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3290, vol. 107, p. 146 (in Dowling's shorthand).

This was the first session of the Supreme Court with a divided bar, which was met by heated opposition.  See, for example, Australian, 10 February 1835: ``Let the Judges smile over the private ruin they have effected, and the skill they have shewn after five years of abeyance, in secretly procuring from home the gratifying confirmation of a `dead letter.'"  See alsoAustralian, 10 March 1835, and see 13 and 17 February 1835.  (The Australian of 10 March included a long summary of the argument by Wentworth.)  See also Australian, 10 November 1835.

On 17 February 1835, the Australian reported the commencement of this litigation, noting that Forbes C.J. had mentioned its issues of 10 and 13 February, and that the court directed that the proprietors of the Australian, being officers of the court, were to answer for their contempt.  See also Sydney Herald, 19 February 1835; Sydney Gazette, 17 and 24 February, 3 and 10 March 1835.

On the division of the bar, see also In re Rowe, 1835.  The topic still interested the Australianin 1836: see its issues of 4 October and 11 November 1836.

[2 ] See Australian, 10 March 1835, noting that Forbes C.J. and Burton J. both said that it was not impossible for a judge in England to try his own cause when libelled.

[3 ] An attachment was directed to issue against him, as he had not appeared: Australian, 10 March 1835.

[4 ] See also Sydney Gazette, 24 March 1835.  The Australian, 24 March 1835, reproduced the Herald's report of this hearing.

[ 5] Within an hour of the imposition of the fine, the Australian claimed on 17 April 1835, the amount had been raised by public subscription.

[ 6] See also Sydney Herald, 30 March 1835.

Published by the Division of Law, Macquarie University