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

Bingle v Stephen [1836] NSWSupC 65

libel - Castle Forbes - Mudie, James - magistrates, dismissal of - press freedom - ticket of leave - convict discipline

Supreme Court of New South Wales

Dowling A.C.J., 24 and 25 October 1836

Source: Sydney Herald, 31 October 1836[ 1]

Monday, October 24. - Before Acting Chief Justice Dowling, and a Special Jury --composed of Major Lockyer, J. P., foreman, F. Mitchell, Esquire, merchant, John McDougall, Esquire, Dudly North, Esquire, John Nicholson, Esquire, harbour master, William Rutledge, Esquire; and the following talesmen - William Morgan, Esquire, merchant; Robert How, Esquire, J.P., Mackenzie, J. P., Charles Marsden, Esquire, and George B. Suttor, Esquire.

Bingle v. Stephen. - This was an action for libel brought by John Bingle, Esq., against Francis Stephen, Esq.  The alleged libellous matter originated in the following circumstances: -- In the month of August, 1835, an investigation took place into certain charges of improper conduct preferred against a convict of the name of William Watt, by James Mudie, Esq., of Castle Forbes, Hunter's River.  The plaintiff in the present case sat as a Magistrate on that investigation; and his name having been subsequently omitted in a new general Commission of the Peace, he wrote to the Colonial Secretary to know the reason of the omission, as he considered it an implied censure of his magisterial conduct.  The reply was that the Governor did not think it necessary to assign any reason for using his discretion in the selection of Justices of the Peace for this Colony; which reply was published by the plaintiff, in the form of a ``circular," addressed to the Magistrates of the Colony.  Upon this, the defendant published in the Australian newspaper of 26th January, 1836, certain comments, including the following supposed letter from the Governor, which the writer states His Excellency might have returned, had he thought fit to comply with the demand made upon him:--

To Messrs. Lamb and Bingle.

Gentlemen, -- It is the unquestioned prerogative of the Crown to appoint or remove Justices of the Peace.  The power delegated to me by our mutual Sovereign, I have exercised to the best of my discretion for the good of the community, and I am not accountable to any private individual for my acts on the present occasion.

I have, however, no objection to inform you of the causes which induced me to omit your names in the last Commission of the Peace, and these I have already transmitted to the more immediate servant of His Majesty, the Secretary of State.

Magistrates are appointed to keep the Peace, -- to maintain and support the laws, and to administer justice.  Whenever their conduct is such as to defeat the object of their appointment, it is the duty of the Executive to remove them.  The Bench should be the seat of incorruption, and of calm deliberation, not an arena for the accomplishment of interested motives, or the vent of excited passions.  The want of purity equally with the expression of party feelings by a Judge in Court, saps the foundation of justice, defeats its administration, and brings it into hatred and contempt.

One of you had been previously censured by me for what I considered a most improper mode of exercising your Magisterial functions.  For this censure you had impeached my conduct to the Secretary of State, who confirmed the censure; and ever since that period you have set yourself up as a political opponent of my Government.  The other of you has likewise avowed yourself to be opposed to my principles of ruling.

Gentlemen, with your Political feelings I quarrel not, provided they are displayed only in your private capacities.  But when you carry them to the judgment seat, and allow them to influence your judicial acts, then I am called upon to mark my sense of your conduct.  Both of you attended daily at the Sydney Police Office, on a late occasion, where you were but seldom seen before (one of you being out of your district); and without reference to the guilt or innocence of the party under trial by you, it was your evident and avowed aim to find out something that might cast a slur upon the Government under which you held office.  You used your powers, as Ministers of Justice, not to do justice, but to effect a political purpose.

Such conduct is subversive of justice, and for this I have dismissed you from the Magistracy.

I am, &c.

Some other observations appeared in the same paper, but the foregoing was the principal libel relied upon.

The defendant pleaded first, the general issue; and also the following special plea of justification:

And for a further plea in this behalf, as to the said first count of the said declaration, and the matters therein contained, the said Defendant saith that the said Plaintiff ought not to have, or maintain his aforesaid action thereof, against him, because he saith that long before, and at and after the time of the said hearing and enquiry into the said supposed charge against the said William Watt, the usual place or residence of the said Plaintiff was not in the district of Sydney, but in another district of the said Colony, to wit, the district of Hunter's River.  And the said Defendant further saith, that until the time of the said hearing and enquiry, the said Plaintiff had very rarely, if ever, attended in his character of a Magistrate at the said Police Office in Sydney aforesaid; and that the said Plaintiff was neither required, nor requested, by any of the three Police Magistrates for the Town of Sydney, who all of them were able to attend and did attend, as Magistrates, at the said hearing and enquiry, to afford them his assistance therein.  And the said defendant further saith, that the said Plaintiff did not attend, as a Magistrate, at the said Police Office of Sydney, aforesaid, at the said hearing and enquiry for the purpose of determining whether the said William Watt was guilty or not guilty of the said supposed matters charged against him, but solely because he expected to elicit matter on the said hearing and enquiry, which would cast a slur on the government of the said Colony, and tend to shew that the said William Watt had been unfairly and improperly favored and protected by such government.  And the said Defendant further saith, that the said Plaintiff not only by his conduct, demeanor, questions, and observations whilst acting as such Magistrate as aforesaid, at the enquiry and hearing aforesaid, rendered it quite evident and apparent - but also avowed that he had such expectation and object in view as last aforesaid, in attending the said hearing and enquiry.  And the said Defendant further saith, that the said Plaintiff did, whilst acting as such Magistrates as aforesaid, at the hearing and enquiry aforesaid, allow his political feelings to influence his judicial acts; and that in the conducting of such enquiry as such Magistrate as aforesaid, he was actuated by political, interested, impure, improper, and unworthy motives; and did make the said Police Office on the occasion aforesaid the arena for the accomplishment of such his political and interested motives, and the display of such his excited passions.  And the said Defendant further saith, that the said conduct of the said Plaintiff whilst acting as such Magistrate as aforesaid, at the hearing and enquiry aforesaid, had the effect of sapping the foundation of justice - defeating its administration - and bringing it into hatred and contempt; and that on account of such conduct the name of the said Plaintiff was omitted in the New Commission of the Peace so issued, as is above in the said declaration mentioned; wherefore he, the said Defendant, afterwards, at the said time, when &c., in the said first count of the said declaration mentioned, did compose and publish the matters in the said first count mentioned, as he lawfully might for the cause aforesaid; and this he, the said Defendant, is ready to verify, wherefore he prays Judgment if the said Plaintiff ought to have, or maintain his aforesaid action thereof, against him, &c., &c.

Upon the foregoing plea, which was varied through five pleas - the substance of each being the same - issue was joined.

Mr. Windeyer opened the pleadings - briefly stating the nature of the case, and that the damages were laid at £1,000.

Mr. Sydney Stephen stated the plaintiff's case to the Jury.  The learned gentleman said that the Jury, he was sure, could have no difficulty in arriving at the conclusion, that the subject matter of the libel was of a most aggravated nature.  They, no doubt, recollected the examination before the Police of a certain notorious convict, named Watt, on charges preferred against him by Mr. Mudie - one of which was a gross attack made on the character of that gentleman, in the course of a previous trial in the Supreme Court for felony.  Besides this, several other charges were preferred against the same individual, the notoriety of whose conduct and character induced an unusual number of Magistrates to be present at the enquiry, among whom was the plaintiff in this case.  He (Mr. S.) would not pause to enquire what were the particular circumstances connected with this man Watt, which induced so strong a muster of Magistrates on the occasion; but the fact was, that the case called forth a degree of excitement for which it would, perhaps, be somewhat difficult to account.  As he had already stated, among those Magistrates who were present at the enquiry, were the plaintiff and Mr. Lamb, of Sydney, to whom the libellous publication now complained of, was also addressed.  The plaintiff had resided for a considerable time on his estate at Hunter's River, in which district he had also discharged the duties of a Justice of Peace, in a manner the most efficient and satisfactory to his neighbours.  At the period to which the present case referred, however, and also for several months previous, he had been a resident in Sydney; and, in consequence of the unusual excitement which the case of the man, Watt, had created, he was induced, out of curiosity at first, to go to the Police Office, and subsequently to sit throughout the enquiry.  What there were in the circumstances of this man, Watt - a convict holding a ticket-of-leave - to call forth the excitement which certainly did prevail, he (Mr. S.) was at a loss to understand; but it certainly was apparent that while, on the one hand, there was a disposition somewhere to shield the man, there was, on the other hand, a disposition manifested by another party on the Bench to sift to the bottom, not only the direct charges preferred against him by the prosecutor, but also the other matters which incidentally arose in the course of the enquiry.  The most opposite motives were attributed to the parties who took a prominent part in this investigation; which, considering its nature and the description of person whose conduct was under enquiry, was prolonged to a most unprecedented length, and finally terminated by the Bench consigning the prisoner to the custody of the Chief Constable - until the pleasure of His Excellency the Governor was known, respecting the incidentally-elicited fact, that he had not mustered his ticket-of-leave in accordance with the government regulations in the case of persons holding such indulgences.  As he (Mr. S.) had already stated, motives of a most unworthy nature were attributed to several of the unpaid magistrates who attended at the enquiry - a portion of the press joined in the cry - attributing the attendance of certain magistrates so a desire to bring the Executive Authorities into contempt, without any reference to the guilt or innocence of the individual whose alleged conduct was the subject of investigation.  It would, indeed, be difficult to understand why it was that the case of a common convict should have produced all this public ferment; but so it was; out of that case the present libellous publication originated.  In point of fact, the case of this convict was exalted to one of political importance - and in that view of it the Government seemed to have concurred.  During the enquiry at the Police Office, the Convict Watt objected to several of the magistrates sitting as his judges, upon grounds purely of a political character.   These objections were repelled by the gentlemen assailed, and among others, by Messrs Lamb and Bingle, who asserted their right to sit, and did sit throughout the enquiry, which terminated as he had already stated.  However, on the 1st of January, in the present year, a new Commission of the Peace was issued, in which a variety of names in the previous commission were omitted; and among them that of the plaintiff.  The majority of these omissions, however, were civil officers, who, though omitted, were thanked for past services, and given to understand that the cause of their being excluded was not on account of any complaint on the part of the Executive, as to the manner in which they had always discharged their magisterial duties; but that the reason for their nomination as magistrates had now ceased.  The omission, however, of the names of Mr. Lamb and Mr. Bingle were not accounted for on any grounds; and as these gentlemen were not at all conscious that they had afforded any just reason for a slight so obvious, they addressed a letter to the Colonial Secretary, requesting to be made acquainted with the reasons (if any existed) why their names were left out of the list of magistrates.  The reply to this letter was, to the effect that the Governor did not think it necessary to assign any reason; and they, in consequence, thought it necessary to address the magistrates of the Colony, by means of a printed ``circular," to show them, that whatever might have been the motive which influenced the Governor, in dispensing with their services as Justices of the Peace, they were not only ready to submit to, but also solicited enquiry into their magisterial conduct in every respect.  This correspondence was published in most, if not in all, of the public papers; and drew from the defendant a commentary, in the shape of a supposed letter from His Excellency the Governor, which was the chief libel complained of this day.  The Colonial Secretary, writing in the name of the Governor, did not attempt to assign any improper conduct on the part of the plaintiff, as a ground for the omission of his name in the last Commission; he merely rested upon the prerogative of the Governor to exercise his discretion in the selection of magistrates; and yet the defendant, presumed to step forward - to go out of his way - to attribute imaginary motives to the Executive, with the sole and obvious motive of slandering the plaintiff!!  There could be no doubt that this was the motive.  Whether the defendant were, or were not the author of the alleged libellous publication, was not a matter for the consideration of the jury.  He had avowed himself such; and must be held responsible for the consequences - he had taken upon himself the responsibility; and whoever might be the author, there was no doubt that the defendant was satisfied with the indemnity which he had received for taking the onus on his own shoulders.  For good, or for evil, the press was an engine of mighty power - if properly conducted, it was calculated to work the very greatest degree of public good; but if, on the contrary, it fell into the hands of men who, for whatever purpose, would divert its operation from its legitimate channel, no greater scourge could be inflicted upon any community, because no man's reputation would be safe for one instant.  He (Mr. S) knew not whether this defendant would afford him a reply, by attempting to substantiate the plea of justification which he had placed upon the record.  He thought he would not - he was of opinion that that plea was intended as a means of diverting the attention of the jury, and that it would ultimately be abandoned.  The defendant never would persist in so monstrous a course as to attempt to prove that the plaintiff had been guilty of the conduct attributed to him, and that for being so he had been dismissed from the magistracy.  But if he should do so - if he should thus attempt to aggravate the case - he (Mr. S.) would call the attention of the jury to the rule by which juries ought to be guided in all such cases.  The publication of the libel was, in itself, bad enough; but if the defendant attempted to justify it - if to the last moment, he persisted in alleging its truth, and yet failed in proving it to be true - it was an aggravation of the libel, of which the jury were bound to mark their reprehension by awarding most exemplary damages.  By placing a justification on the record, the defendant had been guilty of a republication of the slander, in such a form that it would always exist against the plaintiff; and for this act, the jury was bound to visit the defendant with the severest reprehension.  The learned counsel would call their particular attention to the matter complained of as libellous, and he would ask whether anything worse could be published of a gentleman filling the office of a magistrate?  The plaintiff had been accused of having attended at the Police Office, on the trial of this convict, named Watt, without any reference whatever to the guilt or innocence of that individual, but merely for the purpose of eliciting something which might cast a slur upon the executive government of this Colony, and bring it and the administration of justice into contempt.  Could there be a more serious charge preferred against any gentleman holding a commission as Justice of the Peace? and if the party making so grave a charge, persisted to the last moment in averring that it was true, and failed in proving it to be so, he would ask whether a more aggravated libel could be published of any man?  If the defendant should call evidence in support of his plea of justification, and should satisfy  the jury that the plaintiff really was guilty of the corrupt acts imputed to him, it would be their duty to find a verdict for the defendant.  The plaintiff, by the present proceeding, courted - nay, he challenged investigation; and if it should be satisfactorily established that he had been guilty of the corrupt acts imputed to him then he had sustained no injury from this publication other than what he ought to sustain.  But if, on the contrary, those allegations were untrue - and if the jury desired to uphold an independent magistracy in the Colony - if they wished for honest men to fill situations from which they derived no pecuniary benefit - they would show by their verdict this day, that such men were not to be slandered with impunity.  They were bound to protect gentlemen from such wanton slanders.  The defendant in this case was not at all interested in the result of the enquiry which had called forth these strictures - he had set about his self-imposed task of animadverting on the conduct of the plaintiff, coolly and deliberately - he could plead no excitement - up to the latest hour he had persisted in averring the truth of his statements; and it would be for the jury to determine whether he had succeeded in substantiating those facts which he had undertaken to to [sic] prove.  Should he succeed in doing so, then the plaintiff had sustained no injury for which he was entitled to any compensation; but, on the other hand, should the defendant fail in his justification, the plea which he had put upon the record of the court was an aggravation of the case, and the plaintiff was entitled to exemplary damages.

John Westgate - I am clerk of the records in the Police Office; I produce the deposition of James Mudie, of Castle Forbes, in the case of William Watt, holding a ticket-of-leave for Sydney; the enquiry began the 26th of August, and ended the 27th September, 1835; the charges were that he was a habitual liar, and that he cohabited with a female prisoner of the crown; the Bench did not call upon him for his defence to these charges, but they ordered it to be reported to the Governor that it appeared the prisoner had not mustered his ticket-of-leave according to the regulations; he was ordered to be reported, and discharged to the custody of the chief constable; Mr. Bingle's name with the letters J. P. appended, appears to these proceedings.

Cross-examined - I have seen the plaintiff at the Police Office on Watt's case; I did not know him myself but I was told who he was; there is nothing in the record of the proceedings but the evidence the clerk does not take down the observations made by magistrates, that I am aware of.

Mr. Kerr here handed in the record proved by the last witness.

Frederick Garling, Esq - I am Clerk of the Peace; I produce a general Commission of the Peace dated the 1st of January last; it is directed to a number of individuals, and is recorded in my office; the plaintiff's name is not in it, neither is the name of Mr. Lamb; plaintiff's name is contained in the previous general Commission, dated 2nd April, 1831; there was no other general Commission issued in the interval.

Mr. J. Raymond, Junior - I am a clerk in the office of the Colonial Secretary; I produce the indents of the convict ship Marquis of Hastings, which arrived in the year 1828; the name of William Watt is here; he appears to have been tried at the London general gaol delivery, in May, 1828, and sentenced to transportation for fourteen years.

Mr. Thomas Ryan - I am chief clerk in the office of the Principal Superintendent of Convicts; I did not muster the prisoners by the Marquis of Hastings; I know Watt; he is still a convict; I know him personally; he held a ticket-of-leave; which was cancelled about four months ago, in consequence of misconduct at Port Macquarie; he was brought before the Sydney Bench on some charge, by Mr. Mudie; he was brought to the Barracks at Hyde Park.

A. B. Spark, Esq., J. P. - I sat at the Police Office on Watt's case, and acted as a magistrate [paper produced]; I am of opinion that this publication applies to the present plaintiff and to Mr. Lamb.

Cross-examined - I attended the Police Office out of curiosity, and not at the request of any of the police magistrates; my curiosity was excited particularly in consequence of the gross attack made on Mr. Mudie, in this Court, by the prisoner, which was one of the charges; I certainly did take some interest in the matter as the prosecutor was my friend; he did not go to my residence in the evenings, during the enquiry; the main charge against Watt was an attack made by him on Mr. Mudie, when on a previous trial for felony; that charge was not entertained, in consequence of the opinion of the Attorney-General that it could not be.

The Court - Mr. Mudie's conduct is not at issue here.

Witness - I did take part in the enquiry, having once commenced it; the charge of not mustering was not one of the original charges; the enquiry had proceeded some length before that; I do not know how that fact transpired, or whence the information proceeded; I was not in the habit of attending frequently at the Police Office during the last two years; the enquiry was very unpleasant; there was a great waste of time, and I wished to stop it; the Police Magistrates were present; Mr. Lamb was somewhat more prominent than the rest of the Magistrates; he speaks well; I am not aware whether plaintiff agreed with Lamb; I remember Mr. Lamb addressing Colonel Wilson, and making use of the words ``In the name of my brother Magistrates;" I remember questions being put to Colonel Wilson respecting the Governor; I did not hear plaintiff express any dissent, but I sat, as did also Mr. Lamb, nearly at the farther extremity of the Bench from where he sat; plaintiff asked questions, but I do not recollect their purport; Mr. Francis Stephen was threatened to be committed for not answering certain questions, the day before the questions respecting the Governor were put to Colonel Wilson; Mr. Lamb said it was the opinion of the Bench, that the Colonel should answer those questions, and reminded him that, on the previous day, he had concurred in the decision that Mr. Stephen should be compelled to answer; one or two Magistrates who attended at the commencement did not sit throughout the enquiry - at least, ten sat throughout; I never saw so many sit before in any such case, neither did I ever know the case of a Convict to excite so much interest, or be suffered to occupy a fourth of the time; I do not believe that the plaintiff had any political object in view - in the first instance - but the very nature of the evidence adduced in the course of the enquiry, made the case assume a political character.

By the Court - How could the trial of a Convict for not mustering assume a political character?

Witness - From the fact of his being suffered to be at large, and evidently treated so differently from other person sin a similar situation.

Cross examination continued - The object of part of the enquiry was to show that a prisoner of the crown had been improperly protected by some one; the enquiry unavoidably took that turn, from the nature of some of the evidence elicited; it became necessary to enquiry how Watt was protected in this way; there was evidence to show that the prisoner had written to Colonel Wilson respecting a pending charge against him, and that the colonel had written to the prisoner upon the subject, stating that he had seen the Governor, or something to that effect; this was the piece of evidence that made the case assume a political character; plaintiff put either all or some of those questions to Colonel Wilson, respecting his evidence as to the correspondence, and the interview with the Governor:-  ``Is it usual for prisoners of the crown about to be taken before a magistrate for an alleged offence, to consult him before hand, so as to prepare him for his decision in the case?  Do prisoners generally apprise the magistrates that certain charges are about to be instituted against them?  And is it customary for magistrates to apply to the Governor for his commands?"  I think these remarks were made by the plaintiff, but they were rather uttered in a tone of surprise at the statement made by Colonel Wilson, than put to him as interrogatories; these questions were certainly not part of the justice of the case, as it affected the prisoner, but they did become necessary on account of the evidence adduced; it was evident that Watt was treated in a manner different from other Convicts, and I think the questions, or observations, to which my attention has been called were very natural, from the course which the enquiry took in consequence of the statement made by Colonel Wilson.

The Court - You do not mean to say that you sat on that occasion as a Court of Enquiry into the conduct of the Executive Government of New South Wales!

Cross-examination continued - I did hear some one say, but I do not know if it was the plaintiff, that the prisoner was guilty, that he ought to be taken and flogged for his impudent language, and deprived of his ticket-of-leave; this was before the prisoner was called upon for his defence, but I cannot say that the remark was made by the plaintiff; it certainly was made by some one of the magistrates, but I think, also, that it was made under a misapprehension of the terms of a question put by some other magistrate on the Bench; I believe that the plaintiff thought himself ill used by the Government, prior to the enquiry into the case of Watt; I believe that plaintiff went to the Police Office, at first, out of curiosity, and that he would not have sat there throughout, had it not been for the manner of Watt, and his frivolous objections to him and several other magistrates.

Re-examined - Seven magistrates, at least, besides the police magistrates, sat throughout the enquiry; one magistrate might make observations purporting to have the concurrence of others, but in which the others might not concur, and yet not think it necessary formally to disavow; Mr. Stephen was threatened to be committed for not answering certain questions; colonel Wilson took the opinion of the magistrates on the subject, and they decided that Mr. Stephen was bound to answer; I did not hear any one say that Colonel Wilson would be committed if he refused to answer, but he was reminded that, on the previous day, he had concurred in the decision of the Bench, that Mr. Stephen must be compelled to answer; I heard nothing about committing Colonel Wilson; I do not think anything of the kind was said.

Mr. Justice Dowling - What! commit the chief police magistrate of the colony!  I will not have it insinuated here that the other magistrates would dare to utter such a threat.  I might as well threaten to commit one of my brother judges!

Re-examination continued - I think the newspaper report of the proceedings in Watt's case may be relied upon; it is substantially correct, in my opinion; there were some questions put, to the effect there stated, but they were put in consequence of the evidence given by Colonel Wilson; it was in consequence of his evidence that the case assumed a political character.  [The defendant's counsel then read the following part of Colonel Wilson's evidence at the Police Office: -- ``Colonel Wilson - I confess I do not see its immediate relevancy as to the charge against the prisoner, but as it is the wish of the Bench I will answer any questions that may be suggested touching the transaction, as far as I am cognizant of it; at the conclusion of a conversation I had with the Governor, I mentioned the case to him, and he agreed with me on the subject."]  It was this evidence which drew from the plaintiff the remarks attributed to him; I think they were very natural remarks called forth by the occasion; plaintiff has never state to me that he had any hostility to the present government; I know that he thought  himself injured by certain censures passed upon him, and that he addressed a letter to the Secretary of State upon the subject, which was also published in the shape of a pamphlet, but this was some years before the enquiry took place into the case of Watt at the prosecution of Mr. Mudie; nothing of a political nature took place on that enquiry, till after Colonel Wilson's evidence to the effect that he had consulted the Governor respecting certain charges which Watt apprehended were about to be preferred against him, and his communication to the prisoner that His Excellency was of opinion that he (the Colonel) ought not to entertain them; it was this evidence which drew from the plaintiff the remarks - or some of them - which are attributed to him, and those remarks I consider very natural under all the circumstances.

The publication complained of was then put in and read.

The plaintiff closed the preliminary part of his case here.

The Attorney-General then addressed the jury for the defendant.  The learned gentleman commenced with an expression of regret that, owing to the illness of the defendant, who was also the attorney in the cause, and the late period at which he had received his brief, he was not in a situation to do the case that justice which he might, perhaps, be enabled to do it were he better prepared.  The defendant had been confined by illness since Friday week - there was no opportunity for consultation or study; and the jury would, therefore, see that the disadvantage under which he laboured in placing the case before them, was one of more than ordinary extent.  Under any circumstances he would find it difficult to grapple with a case of such importance to the defendant, and also as it affected the public justice of the colony; but under the circumstances which he had stated - and which it was impossible for him to controul - his chief reliance was on the discernment of a respectable jury, such as he then saw before him, to do justice between the plaintiff and his client.  It had been thrown out that the defendant was indemnified in this case.  He denied that he was so.  He would take upon himself to assert that the defendant was the sole and uninfluenced author of the publication which was the subject of enquiry this day; and that whatever might be the result, the defendant, and the defendant alone, would have to endure, the sole responsibility.  The jury would observe that the letter which was relied upon as the main sting of this alleged libellous publication, was addressed to a Mr. Lamb, as well as to the present plaintiff.  Mr. L. applied to the Court for a criminal information, which, under the peculiar nature of the law with respect to such applications in this colony, the Court felt itself bound to grant; but the jury should also be made acquainted with the fact, that Mr. Lamb had not thought proper to pursue the case farther.  No doubt he had good reasons for adopting that course - no doubt his cool reflection operated as it ought to operate, and induced him to perceive the folly of persevering in a case wherein he must have known that by his own conduct he had drawn forth the animadversion of the press.  The present plaintiff threatened to take the same course; and though the editor of the Australian (Mr. Hardy) was legally responsible, a negotiation was entered into, the result of which was that the editor was authorised to give up the real author of the matter complained of, and a civil action was commenced; thereby enabling the defendant to place upon the records of that court a plea of justification, and affording him an opportunity of supporting that plea, by producing witnesses to prove the truth of his allegations.  Mr. Stephen, therefore, appeared as defendant on the record; and he (the Attorney-General) again asserted, that Mr. Stephen, and Mr. Stephen only, was liable for the consequence of his act, for he had not received an indemnity from any man.  He certainly did congratulate the defendant and the jury that the cause had not come on for trial, whilst the excitement caused by Watt's examination was in existence (for men at such moments were too apt to have prejudices, and might under such circumstances give a verdict which their more cool reflection might repudiate).  He then continued - However painful it might be to state many circumstances which it was necessary for the jury to know;  however tedious it might be to refer to them, yet it was of importance that he should explain them that they might more fully understand the case, and he felt confident of convincing them, that on the occasion alluded to, Mr. Bingle did not act coolly and judiciously.  In 1831, a correspondence took place between Mr. Bingle and the government, respecting the former's conduct, as a magistrate.  The government on that occasion exercising a sound discretion, thought it necessary to pass a censure on the plaintiff; no doubt it was as painful to the Governor to have had occasion to do so, as it was annoying to Mr. Bingle to have it done.  The latter then published a pamphlet addressed to the Secretary of State, (then Mr. Stanley) who, upon being referred to, agreed in the necessity of the censure which the Governor had passed.  He continued, however, in the commission of the peace, and so matters went on for some time, until the enquiry into the case of Watt afforded him an opportunity for displaying that hostility to the government which it was quite evident he entertained, owing to the matter which had been already referred to.  However tedious it might be, it was necessary to detail circumstances antecedent to the publication of the alleged libel in order to show the feelings under which the plaintiff laboured, and how clearly cause and effect could be connected in this case.  There was no doubt of the plaintiff's feelings under which the plaintiff laboured, and how clearly cause and effect could be connected in this case.  There was no doubt of the plaintiff's feelings having got the better of his judgment - and he (the Attorney-General) was much mistaken if the plaintiff would not even now admit that they had.  The Secretary of State had agreed in the censure passed by the Governor on the plaintiff in the year 1831; and for some time nothing occurred, until some difference of opinion took place about a measure of the government, which was designated the Summary Punishment Bill.--

Mr. Windeyer here interrupted the learned counsel, contending that he was introducing matters wholly irrelevant to the case before the court, and mixing up his official character as Attorney-General in the course of a case which was of a purely private nature.  The Attorney-General wanted to give the case a political aspect.

The Attorney-General, with much warmth of manner, repelled the charge imputed to him by the learned counsel on the other side.  He asserted it as his privilege, his right - not as Attorney-General, but as a private barrister, in which capacity only he then appeared - to lay before the jury all the circumstances which might seem to show probable cause for the conduct of the plaintiff in this case.  It was a right which he would not relinquish for any man, whether at the bar or on the Bench.  Official influence was talked of for a purpose - but he disclaimed the exercise of any such influence.  It was as open for the plaintiff to have retained him in this case as it was for the defendant.  He did not, in fact, know that he was retained at all in the case till he was told of it by his clerk; and he, therefore, again threw back the imputation of the exercise of any official influence, which was merely brought in as a make-weight, and for the purpose of insinuating that the Governor was interested in the case.  It was not for him to pass an eulogium on the Governor - it was not for him to speak of the Governor's virtues, his talents, or his fitness for his high office.  They were fully appreciated where only Sir Richard Bourke wished them to be appreciated; and they would live, and be cherished in the memory of the people of this colony, in spite of all the insects who attempted to sting him.  But he (the Attorney-General) did not stand forth there as the advocate of the Governor - he was as independent of the Governor as the Governor was of him.  He repudiated any such character.  What, then, was the object of the other side in interrupting him; but to put him from his purpose.  He hoped however, that such interruptions would have no effect upon him - he hoped he had sufficient coolness to lay his case before a jury, as they would require it to be laid before them, despite of all such interruptions, or any imputation of the exercise of any official influence.  In order to show the feelings and the causes for Mr. Bingle's mode of action, it was necessary to enter into the history of the Colony.  He with other had taken a particular part in the politics of the Colony, if politics such matters could be called; if the right to inflict one or two hundred lashes upon a Convict could be dignified by such a name.  Watt came to this Colony in the time of General Darling, when the rule applicable to educated Convicts was not so strictly attended to as it had been since the arrival of Governor Bourke.  Watt had been allowed a ticket-of-leave for Sydney, but the rule alluded to was not retrospective, and therefore did not affect Watt.  Besides he (the Attorney-General) was confident that the Governor never had any official knowledge of Watt being connected in any way with the press of the Colony.  It was Major Mudie (a man who never concealed that he entertained a great hostility against the Governor - that he had a penchant for writing in newspapers) who had Watt brought to the Police Office.  No doubt the plaintiff and those other persons who differed from the Governor on the Summary Punishment question, had a perfect right to do so, and to send forward petitions against that measure.  The Governor would be the very last man to interfere with that right; but when the plaintiff was seen connecting himself to-day with those who were evidently opposed to the government on an important public question - when it was recollected that he had been censured by that government for acts of magisterial impropriety - and that he was seen afterwards endeavouring, in the course of a judicial enquiry, to cast a slur upon the government, to impute to it that a Convict had been improperly protected - that the government had interposed to screen him from the just punishment of his alleged offences - what conclusion could any man arrive at, other than that at which the present defendant had evidently arrived, and which he had stated in the publication which was the subject of this action?   The public, of whom the defendant was one, had a right to form an opinion of his motive from his acts.  No doubt this man Watt, of whom so much had been said and written, was a very worthless person.  But he arrived here in the time of General Darling, when it was notorious that the same strictness of obedience to the direction of the Secretary of State, with respect to the disposal of Convicts such as he, was not adhered to as it is at present, and has been since the arrival of Sir Richard Bourke.  At that time, however, Watt actually held a ticket-of-leave for Sydney; and surely the present Governor should make those rules he thought proper to adopt, retrospective?  He (the Attorney-General) agreed in opinion, that it was highly improper that a man in the situation of this person, Watt, should have anything to do with the management of the press, but he denied that any proof ever was laid before the Governor to show that Watt was so connected.  No charge, therefore, could be fairly brought against the Governor on that account.  But was it not evident that the present plaintiff was actuated throughout the whole case by feelings of hostility towards the Executive Authorities?  In the first place, he had previously been censured by the Governor, and in that censure the Secretary of State concurred - from thenceforward he became an avowed political opponent of the present Government - at the time of the enquiry into the charges against Watt, he was a magistrate whose ordinary residence was at the Hunter's River - he was comparatively a stranger at Sydney.  Well; Mr. Mudie goes beating up for all the recruits he can muster, to sit on the case of this man Watt.  Of these the plaintiff was one.  What did that look like?  Was it not evident, however, even if the case of this Watt were not a political question in the first instance, that it was subsequently made so?  And was it not also evident, that the plaintiff took a most active part in making it so?  What could have brought thirteen or fourteen magistrates to sit upon a case which the regular police magistrates were present to decide?  Could any one deny that it was made a political question, and that in so making it the plaintiff took a most prominent part?  It would be shown that even on the very first day, the plaintiff took a most active part; and that from the questions put, there could be no doubt that his object and that of the party with which he acted, was to try Colonel Wilson and the Governor at the bar of the Police Court.  The State trials since the time of Judge Jeffries, furnished nothing equal to the trial of Watt on these charges preferred by Mr. Mudie.  Common justice required that the charges against an accused party should be filed, in order that he might know what the line of defence was which he might find it necessary to make; and not be placed at the bar in order to have evidence raked up against him, and go through the whole events of his life.  But what were the charges against the man?  That of the attack on the character of Mr. Mudie was abandoned - the magistrates having referred it for the opinion of the then Attorney-General, who told them that it could not legally be entertained; the observations used being made in the course of the prisoner's defence in another case, and not stopped by the presiding Judge.  Then what were the other charges?  Being an habitual liar, and otherwise an immoral character.  These charges also broke down - indefinite as they were - and then the Bench turned round upon one of which the man was not at all previously apprised, and which, of course, he could not have been prepared to defend.  And here the Attorney-General would call the attention of the jury to one fact - he alluded to the refusal of the Bench to allow this man the benefit of counsel, though counsel was in attendance, and though the magistrates allowed Mr. Mudie to act as prosecutor in the case.  Counsel appealed to be heard, and the crowd of magistrates who absolutely swamped the Bench, refused to permit him to open his lips.  What was the consequence?  The prisoner was an intemperate, ill-tempered man - and he certainly did occasionally forget himself; but it was because the cross-examination of the witnesses was left in his own hands; and thus it was that the greater part of the admitted irregularities which took place on the enquiry occurred.  Mr. Therry, who attended as counsel for the prisoner, was stopped principally by Mr. Lamb, who told him that he could not be permitted to appear for a man in the situation of the constitutional duty which was cast upon counsel - if he was aware that nothing but a previous retainer would justify counsel in not appearing for any man - he would retract that opinion.  In the Supreme Court of the Colony, there was no distinction made between Convicts and free persons - why should there be at the Police Office, in cases wherein the magistrates had to decide finally?  He would say, that in such cases and he was borne out in his opinion, by the authority of a note in an edition of Paley on Convictions, [edited by the learned Judge then on the Bench] the magistrates were bound to allow an accused party his full defence by counsel.  To do so, however, the plaintiff was the very first to object; though he, and the rest of the magistrates, well knew that only three weeks before, he was allowed counsel in a mere preliminary enquiry, in which they did not sit judicially.  Again; when they could not fasten this man with guilt, on the charges originally preferred against him, they turn round upon the circumstance of his having failed to muster, and direct that such failure should be reported to the Governor.  He would ask whether even that fact alone was not sufficient to satisfy the jury that justice was not dealt out to the man, Watt, as to other persons similarly circumstanced?  Did it not show a determination to fix something upon him - to punish him for one act, if they could not for another?  He (the Attorney-General) remembered an anecdote related by Mr. O'Connell, in the House of Commons, in the course of some debate which grew out of the Carlow election which lately made so much stir at home.  Mr. O'Connell declared that he had it from the lips of Mr. Bushe, now Lord Chief Justice of the Court of King's Bench in Ireland, who was then Counsel in the case to which it referred.  After the suppression of the Irish Rebellion in the year 1798, government proclaimed a general amnesty to all engaged therein, save those who had been guilty of murder.  After this an individual who was known to have taken a part in the disturbances of the times, was taken up and put upon his trial for the murder of one Patrick White, or some such name.   Two or three witnesses spoke positively to the identity of the accused, as the man whom they had seen kill and murder Patrick White.  The case for the prosecution being closed, and the prisoner called upon for his defence, Mr. Bushe, his Counsel, told the Judge (Baron Smith) that he merely had one witness to call; and forthwith he produced upon the table the identical Patrick White, who swore positively that he was a live man, and never was murdered!  The Judge was of opinion that there was an end of the case, and told the jury so; but they, it seems, thought otherwise; and after consulting together, they pronounced a verdict of guilty!  The Judge was amazed, and eagerly enquired the grounds upon which they arrived at such an extraordinary conclusion - seeing that the man alleged to have been murdered had been produced before them; when the foreman replied, that, some two or three years before, the prisoner had ruined a grey mare of his, and he was determined to hang him for that, if he could not for the murder!   So it was (continued the Attorney-General) in the case of the man Watt.  In times of political excitement, men, thinking they do right, frequently do quite the contrary.  The magistrates could not hang Watt for the murder, and so they thought they would hang him for the grey mare - they could not establish the original charges against him, and so they turn round upon the neglect to muster!  And, he would ask, when we saw men ``dressed up in a little brief authority" ``play such fantastic tricks before high heaven, as make angels weep," whether we can arrive at any other conclusion, than that political feelings had got the better of their reason?  The very moment that the Governor's name was mentioned by Colonel Wilson, in consequence of the evidence given by Surgeon Neilson, that moment the case was made to take a political turn, on order to gratify the propensities under which this plaintiff acted, in conjunction with other magistrates present at the time.  Colonel Wilson was examined most pertinaciously, both by Mr. Lamb, and by the plaintiff, all of whose questions were put in the endeavour to fix delinquency - not on Watt, but on Colonel Wilson and  the Governor.  Mr. Spark honestly told the jury that one great end of the enquiry was to connect the government with the improper protection of the man, Watt.  The connexion of Watt with the press seemed also to have formed a particular feature in this enquiry.  He (the Attorney-General) would particularly call the attention of the jury to the questions put by Mr. Lamb and by the plaintiff; and he would ask them what possible reference they had to the guilt or innocence of the convict whose alleged conduct was at that time the ostensible ground of enquiry before the magistrates?  Then, if those questions had no such reference, with what motive could they have been put, other than that which was alleged by the defendant - namely, in order to elicit something which might bring the executive government into contempt? to endeavour to show that this convict, Watt, was improperly sheltered by the authorities?  He begged their particular attention to the evidence of Colonel Wilson, and the questions put by Messrs. Lamb and Bingle; and he called upon them to say what possible reference - twist them as they might - those questions had to the guilt or innocence of Watt?  A magistrate, if he were not one of the first to step forward as the vindicator of the head of the government, ought, at least, to be the last to assail it; but when magistrates were seen stepping out of the way, as in this case - wandering altogether from the only legitimate question before them - what were we to think? what reasonable conclusion could we arrive at, under all the circumstances, other than that at which the defendant professed to have arrived? namely, that their ostensible object was not their real object, and that they attended at the Police Office, not to do justice, but for the purpose of eliciting something, the effect of which might be to bring the government into contempt?  What other effect were the questions put to Colonel Wilson intended to have?  It was impossible - utterly impossible for any, except those who witnessed them, to describe either the scenes which took place at the Police Office on that occasion, or that manner, and those gestures, which serve as windows to the heart.  If the man, Watt, had been protected by the government, as was endeavoured to be shown, why, the fact would have been, at all events, creditable to him, as it would shew that he was possessed of some good qualities.  If, however, he was improperly protected, there was still no delinquency in him, but in those who did so protect him, and this was the charge which was endeavoured to be fixed on the executive authorities.  If, then, the plea of justification should be made out on this part of the case, could there remain a shadow of a doubt that the plaintiff's object throughout the whole enquiry was to effect a political purpose, and to bring a slur upon the government?  What right had the plaintiff, or those who acted with him, to enquire into the conduct of any other than the prisoner charged before them?  It had been said that Colonial Wilson himself expressed a readiness to answer the questions put to him.  No doubt he did - but he must not he less have felt the impropriety of those questions.  Mr. Windeyer, with his characteristic coolness, stated at the time, that the questions put to Colonel Wilson were irregular, and advised him not to answer them; he said they were collateral irregularities, and did not at all apply to the case of the prisoner then at the bar; he, in fact, well knew that the course of examination to which he objected had another and very different object in view.  Had not the conduct of these magistrates the effect of making the Police Court a scandal shop? - did it not show to absolute demonstration, that they had brought their political feelings to the Bench of justice?  He asked whether the majority of the magistrates assembled on that occasion, could with any show of decency, say that they were sufficiently disinterested to admit of their dispensing impartial justice to the man then at the bar?  Surely three magistrates, the Police magistrates, were sufficient to try a miserable Convict on any charge.  It was indeed unfortunate that the plaintiff and those who acted with, had not some kind friend at hand to give them such judicious advice as would have the effect of saving them from the consequences which reflection must have satisfied them would be the result of the irregular course which they were pursuing.  All public men should rise superior to party views.  No man who did not so rise was fit for the office of a magistrate.  If in this case, the Bench of magistrates presented such a scene as was here alleged, the administration of justice on the occasion was as great a farce as ever was performed anywhere.  In conclusion, he (the Attorney-General) would again observe, that it must be highly satisfactory to both parties that they had a jury of twelve respectable men to administer justice between them, and it was to be hoped that their verdict would be such as to protect the legitimate liberty of the Press, in canvassing the public conduct of public men.

The defendant's counsel then called the following witnesses.

Mr. Henry Murray stated that he was reporter to the ``Sydney Herald," in the months of August and September, 1835; the report of the proceedings in the case of William Watt, on the complaint of James Mudie, Esq., is substantially correct, as witness believes; it was carefully taken, to the best of his skill and judgment.

Charles Windeyer, Esq. - I am second police magistrate; recollect the trial of Watt; did not think it a case requiring the assistance of other magistrates, nor do I know that it was ever sought; generally speaking, when we require the attendance of other magistrates, we find a great difficulty in obtaining it; did not see Mr. Bingle many times on the Bench, perhaps two or three times during the six years I have been there; there were nine or ten other magistrates in attendance during the investigation; I thought they might have come through curiosity, and at first was not much astonished; one thought it a charge that could be entertained by the Bench; but the first charge was libelling Mr. Mudie in this Court which was not gone into; Mr. Bingle was objected to by Watt; but he said that he had been some time in Sydney and claimed his right to sit upon the Bench; he and Mr. Mudie were near each other; my impression was that some of the questions put by Mr. Bingle were meant to implicate Colonel Wilson, and also the Governor.  We were crowded with assistance on that occasion; the business in the ordinary course might have occupied an hour and a half; the proceedings had gone above a week before the charge of non-mustering was brought forward; I think the whole of the proceedings had a tendency to degrade the administration of justice; by way of explanation, I may add there was too much vivacity, too much excitement mixed up in the proceedings; in the progress of it, it assumed more a political than a judicial character; coupling the great charges with the unimportant result, my opinion was, that it was meant as a pretext to found some charge against either the Governor or colonel Wilson, or both; it is not the practice for us to allow counsel in prisoners' cases at the Police Office; this was the rule when I went, and has since continued.

Cross-examined - I think the Governor's name was first mentioned in Colonel Wilson's examination, but whether by him or not I cannot say; I never consult the Governor previous to investigating any charge; when Colonel Wilson stated that he had consulted the Governor, it was a very natural question for Mr. Bingle to ask if such a practice was usual; I consider it would be unseemly in any magistrate to consult the Governor as to any proceeding to be commenced against a prisoner.

The Chief Justice here observed, that he, as Chancellor of New South Wales, would say, that any other person, on charges about to be brought before him, was unfit to remain one instant longer in the Commission of the Peace.

Colonel Wilson - I recollect the trial of Watt; did not invite the assistance of independent magistrates; the case only required one; I was not surprised at seeing so many magistrates present; had seen the same thing about a fortnight before, when Watt was charged with stealing some paper; I cut a very conspicuous figure on the occasion, and was examined whilst filling the chair; I was asked by Mr. Bingle whether it was usual for prisoners to consult a magistrate respecting any charge that might be laid against him; any answer I gave could neither affect the guilt of innocence of Watt; some questions I objected to answer, upon the general principle that any officer in the confidence of government was not bound to disclose anything which might affect it; I had no fault to find with the manner of the magistrates, but I had with the matter: cannot say what made Mr. Lamb appear rather warm; one question put by Mr. bingle appeared to be founded upon the assumption that I had consulted the Governor upon some case which was about to come before me.  They appeared to me not to be so much influenced by any horror of Watt's conduct, as for the purpose of finding a fault in my conduct, or in that of His Excellency; I observed that at the time, and never noticed the same in instances with other prisoners when their immorality or mendacity was equally well-known; did not observe Mr. Bingle very particularly during the proceedings.  I conceived that the majority of the magistrates felt as Mr. Lamb did, and that he was authorised by them to state what he did.  I think Mr. Lamb said he was the organ of the majority and Mr. Bingle was one also of them.  I positively do not think the proceedings were conducted in a manner most regular, but gentlemen from the country cannot be expected to understand the mode of proceeding so well as we who sit every day; I think the police magistrates  were generally in the minority; I did not vote at all; it appeared to me that some of them thought there was at least one corrupt person amongst the paid magistrates - that was myself; I never saw judicial proceedings so conducted.

Cross-examined - The Court was crowded during the whole time; there was a great interest excited; one of the charges arose from what took place a day or two before in this court; it is very possible I might have requested Mr. Bingle to come and take a part in the proceedings; I do not recollect whether I said so inside or outside the Court; I remember having some conversation with Mr. Bingle when the investigation had gone on some days; I think I said it would be best to adopt some other course, and he agreed with me; I do not think that Mr. Bingle meant to do me any harm, but any impression was that they would have been glad to have made out some fault against me; I thought the proceedings irregular, for the following reasons - the charge of telling a gross falsehood I thought odd, the charge of immorality I thought strange, and the charge of cohabiting with a female, three years ago, I thought queer; I never knew these charges brought before the Bench before Watt's case; I never heard of such a charge as telling a gross falsehood or immorality; there are no such charges on the records of the Police Office; no such crime as immorality appears upon the records of the Police Office.

Re-examined - I think I suggested to Mr. Bingle, it would be best to put an end to the investigation; he said he was going to meet he was going to meet the other magistrates; he did not say the independent magistrates.

Mr. Jilks, chief Constable - I attend the muster of ticket-of-leave men; I remember giving evidence as to Watt not having attended muster; it is my duty to report those who do not muster to the first police magistrate; I did not know until about the 20th of August, that Watt held a ticket-of-leave for Sydney; the first intimation was given to me by Major Mudie; when I found it out I communicated the fact to Colonel Wilson.

It being now nearly nine o'clock at night, the Court, with the consent of both sides, adjourned to the following morning.

(To be continued.)

 

Source: Sydney Herald, 3 November 1836[2 ]

 

Tuesday, October 25. - The Court having reassembled this morning, the examination of the following witnesses was proceeded with.

In reply to the evidence of justification, the plaintiff called the following witnesses:--

Robert Stewart, Esq., chairman of quarter Session - In August 1835, I was third Police magistrate and recollect the trial of Watt; there was an unusual assemblage of the unpaid magistrates, we did not require their assistance; in the ordinary way the case being one of summary jurisdiction would have occupied about ten minutes, because when I heard the charges made in the form as then presented, I should have dismissed the case; at an advanced stage of the enquiry, there was a charge of non-mustering brought against Watt, that being a matter of regulation and not of law, I thought and think so still, it ought to have been referred to the Police magistrates; I protested against their entertaining the charge, and left the Court because they persisted in it; Mr. Lamb opposed me; my impression was that the whole proceeding was calculated to lessen the respect for the administration of justice; I was present when Mr. Bingle examined Colonel Wilson, the latter swore himself, and voluntary took the oath; I think I advised him not to answer any questions as he was not then on his trial, and it was not the proper place to try a Police magistrate; the questions put to him were not relevant to the mater before the Court, which makes me certain that the answer would affect either the Executive or the Colonel; I cannot say through what motive the questions were put, my impression altogether was from the whole of the proceedings that it assumed a party spirit; Mr. Bingle did not take a very prominent part in the affair, but my impression was that he assented to the proceedings adopted by Mr. Lamb; I recollect Mr. Bingle saying in answer to something which fell from Colonel Wilson that he had found him guilty; that was before Watt was put upon his defence, but from an explanation subsequently made by Mr. Bingle, it appeared that he had misunderstood the question; he said prisoner's ticket ought to be cancelled - he said nothing about lashes; I think the question was, ought he to be put on his defence? which called for the answer from Mr. Bingle, that he thought he was guilty and ought to lose his ticket - that was before the charge of non-mustering was brought forward.

Cross-examined - It was in consequence of some intimation from one of the Bench that Colonel Wilson should be examined that he offered to be sworn; Major Mudie and Mr. Lamb took the lead in the examination; I would not hear a charge of two or three years standing if broken off, but if continued during that time I would have entertained it; I think the reason assigned for dropping the charge by Mr. Lamb was, the charge of cohabiting being stated, the circumstance having occurred two years previous; I consider immorality a crime in a prisoner of the crown which can be punished; have punished men myself for it; if my servant was to tell me he was intimate with Mr. Jones, &c., I should merely say he was an impudent fellow; such conduct I do not consider an offence, under the meaning of the word ``disorderly" in the Act of Parliament, nor did the law ever contemplate bringing it within the meaning of disorderly; I think Colonel Wilson is too well known to be injured by any such representation made by Watt, but I  believed the representation, if true, would lower Colonel Wilson on my estimation, but I do not think it comes within the meaning of disorderly; I consider it merely a lie of vanity, such as are made use of every day by the most respectable persons.

The Attorney-General here intimated that he did not think it necessary to trouble the Court and jury with any more witnesses, as he considered they had made out their justification.

Mr. William Hirst, a merchant of Sydney, said - I know the plaintiff; I remember being in company with him previous to the investigation of the charge against Watt; Mr. Bingle and I had been to Urquhart's to look at some carriages, on returning home we saw Mr. Mudie coming up, Mr. Bingle wishing to avoid him crossed over the street; Mr. Mudie came to us; that was just below the Police Office; Mr. Bingle returned with Mr. Mudie to the Police Office, and I went home; Mr. Bingle had taken a house and resided in Sydney from the January previous.

Cross-examined - When Mr. Bingle wished to avoid Major Mudie, it was I think the day before the investigation, he said he did not like Major Mudie; I was at the Police Office now and then during the investigation; Mr. Lamb appeared to be somewhat excited; Mr. Bingle was very quiet; I considered Sydney as the place of Mr. Bingle's residence, and not Hunter's River; I thought the man (Watt) had been more protected than he ought to have been; the excitement did not appear to me to be political; never heard Mr. bingle express any opinion about it; I cannot say by whom he had been improperly protected, but I thought that if it had been any other person he would have been punished; no doubt the object of the enquiry was partly to find out who had so protected him.

Re-examined - Mr. Bingle meant to abandon his farm and live in Sydney altogether - the whole of his family were here; it was curiosity which led me to the Police Office; a great number of people were there of every description.  [The Attorney-General here took an objection to the course of examination being pursued by the plaintiff.  The Chief Justice said, from the course pursued by the Attorney-General, and his having expressed a strong desire to sift the affair to the bottom, such an objection came with a bad grace from him.]

John Lamb, Esq.--I recollect the enquiry into Watt's case, in August, 1835; Mr. Bingle was then a stranger to me; do not think I had exchanged a word with him previous to that time; a day or two before the termination of that affair, Mr. Bingle called upon me at my counting-house; he said he had had some conversation with Colonel Wilson, and wished the investigation brought to a close, for as the woman had been got out of the way, little good could arise from its continuance; I said I thought so too, but it would entirely depend upon the prosecutor, for without him the Bench had no power to stop the investigation; Mr. Bingle never acted in concert with me; if I said I spoke the sentiments of the other magistrates, it must have had reference to those who were near me; I might have gathered Mr. Bingle's opinion upon some particular point, but never consulted him; it was never my intention to convey the impression that I was acting for the whole of the magistrates; there were five or six magistrates between Mr. Bingle and me: ``my brother magistrates," is a term often used on the Bench; my opinion was, that the others generally agreed with; my observations were principally directed to the preservation of better order in the Court - to a more respectful demeanour on the part of the prisoner, and to put an end to many irrelevant objections made by him, which appeared to be made merely to prolong the investigation; there was considerable disorder, hisses, plaudits, &c., which I considered irregular and improper; I recollect Colonel Wilson saying that he had seen the Governor respecting the case, and that the latter agreed with him; when he said so I thought it quite natural for a magistrate to enquire if it was usual for a prisoner to consult a magistrate previous to investigating any charge which might be brought against him (the prisoner); on the second examination, colonel Wilson himself begged to explain an apparent discrepancy on his evidence; it was at my suggestion; Mr. Bingle had nothing to do with it; the questions alluded to appeared to me to arise out of what Colonel Wilson had said, and not as forming a part of the investigation; if the proceedings were ever so irregular, I saw nothing in Mr. Bingle's conduct but what was clearly consistent with his duty; after the question of not allowing the prisoner any counsel had been decided, it was again reviewed by Mr. Therry; after most of the magistrates had left the Court Mr. Bingle had nothing whatever to do with the irregularities that occurred, the writer of the libel could not fairly charge Mr. Bingle with having acted with impure and base motives during the investigation; it is many months since I read the report of the proceedings.

Cross-examined - I think the article is not only libellous upon Mr. Bingle, but also on me; I would not have given any opinion upon it had I not been called upon to do so; a person may mean well, and yet act indiscreetly; Colonel Wilson once asked me to go to the Police Office to hear a case against Watt; I declined, having heard much of it out of doors; on the next investigation, I went, induced chiefly by a sense of duty, and partly through curiosity it was not owing to Mr. Mudie I went there; I had heard that Watt had been living in a state of adultery, and that an investigation had been suppressed, or rather, that Colonel Wilson had refused to entertain the charge; Mr. Mudie told me that he was going to bring Watt to the Police Office for something he had said in this court; but I told him that as in all probability I would myself attend the investigation, I would rather not hear any particulars connected with the case; I was not surprised to see so many magistrates assembled, considering that some might have been there out of curiosity; I considered it necessary to call the Governor's attention to the fact of Watt's not having mustered, thinking that the officer whose duty it was to see that he did muster, was more culpable than Watt himself; Mr. Bingle suggested to me, that as the woman could not be produced, the proceedings had better be dropt as regarded that point; I agreed with him; Mr. Bingle took a part in the proceedings, same as any other magistrate, but not a prominent one; I have seen Mr. Bingle's pamphlet, but it was subsequently to Watt's trial; he and I had no acquaintance until that trial took place; I think Watt objected to Mr. Bingle, more on account of his having been censured by the Secretary of State rather than for his being out of his district.  I objected to the prisoner having counsel if it was contrary to the rule, but if otherwise, I said he ought to be allowed counsel by all means; do not recollect Mr. Bingle every objecting to the prisoner having counsel; on the first day after prisoner had challenged several magistrates, he said, as he could not have a fair trial, he would plead guilty' I recommended him to adopt a contrary course, assuring him that the Governor no doubt would strike out from the commission any one who did not act uprightly; Mr. Bingle attended the proceedings until the last.

Mr. William Williams , Solicitor - I was present at the investigation of Watt's case I went the first day through curiosity, and afterwards attended in consequence of a subpoena served upon me by Watt; I was there every day but the last, and saw Mr. Bingle there; he sat at the extreme left hand of the magistrates; I do not consider that he took a prominent part in the investigation, and can safely assert that he appeared to act with much patience considering the manner which prisoner used towards the Court, and Mr. Bingle in particular; I saw no irregularity on his part; unless his persisting in sitting there as a right, being a magistrates of the territory could be so considered.

Cross-examined - The impression made upon my mind by the proceedings was, that there was a desire to protect the prisoner on the one part, and to expose that protection on the other; I thought the paid magistrates were not anxious to have the man punished, and the others were anxious to have it investigated; that is my candid opinion; I think when Watt made the disclosure respecting his intimacy with Colonel Wilson, they were anxious to ascertain the fact - and very proper too; I do not think Mr. Bingle would have sat there day after day, had he not been challenged by the Convict Watt; I recollect very well the questions, ``is it usual for prisoners of the crown to consult a magistrate, &c.," being put, but do not know by whom; I should have put the same questions myself; I think Mr. Bingle acted with patience, more so than you (the Attorney-General) would have done under similar circumstances; Messrs. Windeyer and Lamb appeared to me to conduct the proceedings, at that time I had never exchanged even the common courtesies with Mr. Bingle; I not only expressed opinions at the time of the investigation, but also published them; I never saw such a scene in my life, it was more like an election than a Court of Justice, Colonel Wilson seemed to be at the head of the poll; Mr. Lamb was spokesman for his side of the house; I do not think these scenes would have happened, if it had not been through the prisoner himself, who used every effort to make it a political question.

Mr. Windeyer, second Police magistrate, now stepped forward, and addressing the Court, said, he was aware he was about to commit an irregularity, but he threw himself upon the kindness of the Court.  Mr. Williams had said, that there seemed to be a wish on the part of the paid magistrates to screen the prisoner.  He had also said that he never saw any difference made in the Supreme Court between a free or a bond prisoner for trial.  Now he, (Mr. W.) as a magistrate, felt that character was of some importance, and if Mr. Williams' evidence was to have any weight with the Court, from which it might be inferred that justice was not done at the Police Office as elsewhere, he would ask the favour of being sworn in order that his motives might be clearly understood.

Mr. Williams disclaimed having any, even the most remote idea of casting the slightest imputation upon Mr. Windeyer's character or motives.

The Chief Justice said, he was bound to say, that so far as his experience went he could assert that he had never known proceedings in the inferior Courts conducted with more propriety and order than by the Sydney magistrates, and none who was acquainted with them could for a moment doubt their purity of motives, or question the zeal for public justice by which they were influenced.  For his own part he would say, that he had known Mr. Windeyer for five and thirty years of his life, and a more honorable individual did not, in his opinion, exist on the face of the globe.  Mr. Windeyer then sat down but was immediately called into the box by plaintiff's attorney.

Mr. Windeyer, senior, recalled - The pamphlet now shown me is a copy of that which I alluded to in my previous examination.

The Attorney-General then addressed the jury.  He said, it was then his duty to make a few observations upon the evidence which had been brought forward on the part of the plaintiff, to rebut that which had been adduced by him to make out the plea of justification; if he had had any idea that a second opportunity of addressing them would have been afforded, he would have shortened his former address very materially, and not have trespassed so long upon their patience; but he had then, no expectation of it.  But in such a case as the one before them, in the absence of positive facts, where it rested merely upon presumption which could not be proved by direct testimony, he had felt it to be his duty to go into the particulars at greater length.  He however, found that the proceedings at the Police Office were admitted by the other side as having been most extraordinary and unheard of; and therefore his endeavouring on the previous day to prove them so, was merely fighting against the wind.  A great advantage no doubt had been derived from the delay occasioned by the postponement of the case to that day, for it had given an opportunity of producing the evidence of Mr. Lamb who had that day given his testimony with a degree of fairness and candour, such as might have been expected from a gentleman of such respectability and integrity; but taking the evidence altogether which had been brought forward to rebut that of the witnesses for defendant, seemed to him (the Attorney-General) rather to add to, than diminish the force of their testimony.  If the evidence for the defence had not proved satisfactory as any thing could be proved, that Mr. Bingle was acting in concert with Mr. Lamb, he knew not what proof would satisfy a jury; if they were not acting together, he did not know that Mr. Lamb was acting against the government; why did he present to him his book or pamphlet after the proceedings were over?  A book which had relation to a foolish quarrel between him and Mr. Sempill and the government? - except it had been to show what a tyrant the present Governor was, tat he could not only act improperly in unjustly protecting a Prisoner of the Crown, but in censuring him (Mr. Bingle).  Was not that a proof of connexion?  Mr. Lamb had not disavowed, nay, he had in fact admitted, that he had heard Watt was improperly protected by some connected with the government, and he was determined to sift the matter to the bottom; it was from that part of the examination in Watt's case which arose all the political complexion the matter afterwards assumed.  There was one extraordinary feature in the case that certainly showed what were the feelings of Mr. Bingle upon it, although the observation he made escaped from him through error - although the expression of the guilt or innocence of Watt arose through misconception, yet still it shewed that he was then prepared to convict the prisoner notwithstanding there was not then sufficient proof of guilt; he had said the prisoner was guilty and ought to have his ticket-of-leave cancelled; yet afterwards he went to Mr. Lamb and said he thought the proceedings ought to be dropped as Watt could not be convicted for want of evidence.  This was done by the man who, but a few days before, had said he was guilty and ought to be punished!  Did that show a just and honorable mind?  Did that show that he was unbiassed? - when he said one day the man ought to be punished, and the next day that there was not sufficient evidence to convict him! - was that a circumstance? or was it not sufficient in itself to explain the feeling by which he had been actuated?  Did not that fact alone tend to stab the very heart of justice?  It had been proved in evidence that Watt's case was not different from that of any other prisoner, and could have been disposed of in an hour or an hour and a half, why then did it occupy so much time?  And why did Mr. Bingle attend day after day, who was never in the habit of attending there before?  It was impossible (no matter with what feelings he might at first have attended the investigation) for any person to consider otherwise than that as the business progressed he took political feeling.  Then look at the speeches made by Mr. Lamb! - If Mr. Bingle was not as cold as ice, hard as iron, firm as  rock, it was impossible for him to have heard those speeches day after day without imbibing some particle of that political feeling so frequently expressed by Mr. Lamb.  Did Mr. Bingle ever act in concert with the Police Magistrates?  Did he vote on one single occasion in opposition to Mr. Lamb?  Was that no proof of there being a connexion with each other?  Then looking at the libel itself, it was clear it was called forth - caused entirely through Mr. Bingle's own letter to the Governor; for after setting the whole of the correspondence, the writer put it to the honour of both Messrs. Lamb and Bingle, whether it was not the desire to connect Watt with Colonel Wilson and Governor Bourke, that they went to the Police Office, he (the Attorney-General) would himself so put it, he would ask them whether such was not their sole object?  When they had made themselves so prominent in such a disgraceful, unprecedented proceeding, was it culpable in a public writer to blame magistrates who had been guilty of such an indiscretion?  If Mr. Bingle had acted wisely, if he had pocketed the affront as his best friends would have advised him, he would not thus have had his conduct canvassed in a public journal.  To impute malignant or malicious motives to the defendant was quite out of the question.  How could Mr. bingle impute such to Mr. Francis Stephen?  If it had been written before Mr. Bingle put himself upon the press, or prior to the Governor having censured him, it might have been supposed that it had been the means of calling the attention of the Governor to his conduct, and causing his dismissal from the Commission of the Peace.  But what was the object of Mr. Bingle writing to the Governor, but for the purpose of publishing it, to libel the Governor with impunity? to hold him up as a tyrant and oppressor? to lower him in the estimation of the public? to bring down upon him their odium and contempt?  It would have been a breach of the Governor's prerogative if he had given any reason for omitting Mr. Bingle's name in the Commission, and the latter would have acted wisely in quietly pocketing the affront.  Seeing that Mr. Bingle had on a former occasion brought upon himself the censure of the Government, he came with a bad grace there to seek damages for injury done to his character, and taking all the circumstances into consideration, he would ask them if he could expect one farthing.  After some further observations, he concluded by observing, that he felt confident the Jury would be satisfied that he pleas of justification had been fully made out.

Mr. S. Stephen then rose to reply - He said the case had certainly occupied much of the time of the jury, although he himself had occupied but a small portion of it; yet notwithstanding he felt it would be unnecessary to intrude at any great length upon their patience.  There had been a great many topics introduced by the Attorney-General, which he considered perfectly unnecessary.  And perhaps none more so than that which had reference to himself being opposed to his brother on that occasion, more particularly as the explanation given by his learned friend was not correct; he however, would acquaint them with the real state of the affair.  The fact was, no sooner was the action contemplated being brought, than his brother immediately retained the three learned gentlemen, viz. the Attorney-General with Messrs. Therry and Foster.  Mr. Windeyer had not at that time arrived in the Colony; the cause had proceeded some length before the abilities of the latter gentleman were known.  Mr. Kerr and himself were the only two then engaged for the plaintiff.  He (Mr. S.) was asked if he had any objection to take a retainer against his brother?  For a time he hesitated, but feeling it would be a denial of justice should he so persist, he agreed to accept a retainer provided his brother would not give up one of the three he had engaged.  His brother would not agree to do so, having (and very justly) the greatest reliance upon their ingenuity and talent.  He then made his private feeling succumb to his public duty, and undertook to assist in conducting the cause.  With reference to what had been said respecting the libel, whether his brother was the author of the whole or not; when he looked at that part which alluded to Mr. O'Gorman Mahon, he could not but consider it so different from what his brother had been used to, that he strongly suspected a portion of the composition was the production of some person from the other side of the water to that which his brother was accustomed to.  He was surprised the Attorney-General should have taken such very great pains to connect the Governor with the transaction at the Police Office, but it so happened that there could not be a question discussed between two private individuals which had the slightest relation to politics without the Governor's name being introduced in some way or other; and if they did, then they were charged with doing it for the purpose of fixing some blame upon him, so it could not be used by some three or four magistrates at the Police Office without being construed into a stricture upon him, and all present being blamed for joining in it.  Now the way in which the Governor's name had been introduced was this: Major Mudie charged the prisoner Watt with having made some severe remarks upon him (Mr. M.) in that Court, but some of the Bench having a doubt whether they could entertain the charge, the matter having been spoken in the presence of one of the Judges who did not at the time mark his sense of its impropriety, it was suggested by Mr. Lamb, that the opinion of the Attorney-General (Dr. Kinchela) should be taken upon it.  True, he was one of the law officers of the Crown, but was there any violence in such a step?  Was there anything political in this?  Anything like an attempt to involve the Government in the transaction?  Did not Colonel Wilson with Messrs. Windeyer and Stewart, the Police magistrates, all take part in the discussion.  He then explained the nature of the charges at that time brought against Watt, and went particularly into that part of the evidence given by Colonel Wilson, wherein on his examination by the Bench, he admitted having privately consulted the Governor in reference to these charges.  Here the learned counsel read the plea of justification, and contended that the opposite party had completely failed in making out any part of it.  He asked, most confidently, what shadow of evidence was there in support of the allegation that ``The said plaintiff, not only by his conduct, demeanor, questions, and observations, while acting as such magistrate as aforesaid, at the enquiry and hearing aforesaid, rendered it quite evident and apparent, and also avowed that he had such expectation and object in view as last aforesaid in attending the said hearing and enquiry, he was actuated by political, interested, impure, improper, and unworthy motives, and did make the said Police Office aforesaid the arena for the accomplishment of such his political and interested motives and the display of such his excited passions?"  Where was there a tittle of evidence to support that plea - a plea which if established went to nullify the whole of the plaintiff's case?  The learned gentleman also quoted several passages from the report of the examination at the Police Office, in Watt's case, to rebut the statement on which the Attorney-General had laid so much stress, namely, that the plaintiff had arrived at a conclusion adverse to the prisoner before he had been put upon his defence.  He quoted plaintiff's own words, from the report, of which the accuracy had been proved by the other side and which he himself believed to be correct; and what were those words?  They were as follow:-- Mr. Bingle said, ``The question was put to me by the Chairman, if it was not my opinion that the prisoner's ticket should be cancelled, and I stated, most certainly; yet I considered it was not a proper time in that stage of the proceedings, for such a question to be submitted.  But I state again, that the prisoner not being known to the chief constable as a ticket-of-leave holder, and not having mustered according to the regulations, that his ticket should be cancelled; the Bench having no discretionary power but to act up to the regulations, without hearing the prisoner's defence upon that point.  And I think it necessary, after what the prisoner has attempted to accuse me with, to state that Mr. Mudie is no friend of mine, and that I was not connected with in this or any other business, or in the bringing these charges forward, as I did not know the nature of them until I heard them read to the Bench; and that I never either saw or spoke to the prisoner."  And again, after some further remarks by the counsel referring to the proposal of colonel Wilson, as to the propriety of Mr. Bingle withdrawing from the Bench, he continued - ``Mr. Bingle immediately rose and stated with great warmth, that he could not allow such a proceeding, unless they could shew proper cause to disqualify him, and not from a mere objection from the prisoner; and that he was determined not to quit his seat; and concluded by stating that if he could benefit the prisoner by being a witness, he was perfectly ready to be sworn, and state what he had stated on oath; or any question that might be put to him, but he would not allow himself to be so insulted."  These were extracts from the report put in evidence by the other side; and in what way, he would ask, could they by any possibility, be shewn to fix the plaintiff with any portion of the charges imputed to him?  Mr. Stephen continued that Colonel Wilson had admitted having held conversation with the Governor upon Watt's case about to be brought before him (Colonel Wilson), and that he had received the Governor's commands thereon, -- and then admitted that he had received a letter from the prisoner on the subject of these charges about to be instituted, and in which Colonel Wilson's memory was so imperfect as not to recollect whether in his answer to the letter he addressed the Convict as ``Sir," ``Dear Sir," or ``Dear Watt;" he (Mr. S.) could not help observing, that such a line of conduct coming out in evidence, would arouse the feelings and indignation of the other Magistrates on the Bench, and naturally call forth from his client or any other honourable gentleman, those questions so much relied on by the opposite side as tending to throw discredit on Mr. Bingle.  Was Watt to be magnified into a person of such importance that all the usual forms were to be laid aside - all the established regulations broken through for his accommodation?  Were magistrates to be compelled to bow to his caprice?  Were constables suffered to allow him to infringe upon the law when and how it might suit his convenience?  Were all the usual principles of action to be abandoned - all established customs laid aside for his accommodation?  He was a prisoner of the crown, who had the audacity to charge certain magistrates with being unfit to sit upon the case!  As a proof of the necessity of the investigation in question, of this notorious character, he (Watt) has since been sent to Port Macquarie, flogged, and had lost his ticket-of-leave.  He (Mr. S) had himself attended the proceedings and would say, it was impossible to have experienced any other feeling than that of contempt for the mode in which

they were conducted.  But he would ask them (the jury) to take all the proceedings together, to look at the part taken by Messrs. Windeyer, Stewart, Spark, Lamb, and others, and then say whether or not the conduct of Mr. Bingle on that occasion was not quiet and patient in the extreme, such as could only proceed from correct and honorable principles?  Mr. Windeyer admitted, that on one occasion he (Mr. W.) stood alone upon a division, who then was in the wrong?  Was it Colonel Wilson and Mr. Stewart, or was it Mr. Windeyer whose conduct then was influenced by party or political feelings?  Could any one say what was the feeling which influenced and caused the difference of opinion amongst them?  But more especially could any one venture to say how Mr. Bingle voted when each time the votes were taken in silence?  Yet still he was considered to have voted always with Mr. Lamb.  The latter gentleman stood most prominently forward because he was the most eloquent, yet he was now blamed for being violent.  But it would seem that violence was only an excess of eloquence, for looking at the violence displayed by his learned friend the Attorney-General on that day, but more particularly on the previous one, it was impossible to feel otherwise than that then he was most eloquent.  It was his eloquence which led him into the violence, not the violence that called forth his eloquence.  The Jury could not but have observed the extreme anxiety displayed by the other side not to introduce the name of Mr. Bingle, all they seemed to have striven for was the establishment of the fact, that the proceedings at the Police Office were disorderly.  Why, the proceedings in that Court were yesterday disorderly, and when such disorders break out, they were not so easily quelled.  Messrs Alley and Adophus had been known at home to proceed sometimes to such extremities as imposed upon the Court no slight difficulty in repressing the irregularity.  (The Chief Justice observed, ``You have quoted perhaps the worst possible precedent."  Mr. S. replied, why certainly, you Honor, it is from the Old Bailey, but this Court is sometimes the Old Bailey; unfortunately, however, it was no easy matter sometimes to quell such irregularities, he then proceeded).  Mr. Bingle by his pamphlet had proved, that Mr. Sempill was wrong in many instances, and had explained away other portions in order to shew that the censure which had been cast upon him was unmerited, yet the book had been unhandsomely brought forward in order to show that he must have had an hostile feeling against the Government.  Now, he could entertain no hostile feeling against the Governor, for His Excellency had nothing to do with it, nor against the Secretary of State (Lord Goderich) for he no longer held that office.  If he entertained hostility against any one, it must have been against the author of his wrongs (Mr. Sempill).  Well, how did they find them acting at the Police Office?  There, although at variance with each other, notwithstanding their former differences had never been adjusted, yet they were both found pursuing the same course; could it be believed that any secret compact had been entered into between them?  Was it likely there should have been any concert with them?  When Mr. Bingle sat on his left at the extreme of the Court, which must necessarily have prevented any whispering or communication of any kind, and Mr. Lamb on the opposite side of the three police magistrates?  But said Mr. Therry, they would have committed Colonel Wilson because they were going to commit Mr. F. Stephen.  The two cases bore no analogy.  Mr. S. was there as a private individual; he was bound to answer such questions as the Bench might put to him, or in case of refusal  they had the power (and very properly) of committing him for contempt; but Colonel Wilson was himself one of the judges upon that occasion, and any idea of committing him was too absurd to be entertained for a moment; but they were going to commit, Mr. Stephen, and ergo they would likewise have committed Colonel Wilson; reasoning most admirable - most sound - most logical and conclusive!  Then with respect to the charge brought against Watt for immorality, Colonel Wilson seemed to be a little oblivious as to what was placed upon the records of the Police Court.  In his examination he had stated that such a charge as immorality he never knew adjudicated upon.  He characterised the proceedings as queer!  Then they were odd!  At one time singular, at another as being most extraordinary; but Mr. Windeyer, senior, had given it as his opinion, that such a charge could be entertained, and if established, the Bench could order punishment.  What then could make Colonel Wilson so blind?  What could render him so forgetful as to say at the time they (the Bench) could not entertain the charge?  How was it?  Why he felt at that very time he had drawn upon himself the attention and the scrutiny of the other magistrates.  He (Mr. Stephen) particularly pointed out that the Chief Police magistrate must not have known his duty by stating that no such crime as immorality appeared on the records of the Police Office, and produced the official Government Gazette to confirm his statement.  In the Government Gazette of 14th March, 1835, he found Benjamin Francis lost his ticket for making a false representation.  On the 5th May, 1835, George Watkins, convicted of telling a gross falsehood, lost his ticket; and on the 21st of August, 1832, Joseph Risby had his ticket cancelled for immoral conduct.  Now, in the face of these facts, how could Colonel Wilson state that no such charges could be entertained?  He had said on the previous day, if it was true that Mr. Bingle had acted in the manner alleged by the defendant, they (the jury) ought not only to give a verdict against him, but they ought also to consign him to disgrace and ignominy; for the greater the power, the more honorable the situation which a bad man filled, the greater evil was he capable of accomplishing; if he had been guilty of acting in such a way, every public writer ought to have the privilege of exposing conduct so base and flagrant; but when the writer purposely stepped out of his way for the mere purpose of fastening wrongfully such charges upon another - charges which he knew to be false, and which the Government had not accused him with, having sent him in answer to his respectful request a soothing letter - it was difficult to estimate the amount of damages he should be made to pay.  He would ask them with all the evidence before them, whether there was even a title of proof that Mr. Bingle attended the Police Office for the purpose of casting a slur upon the Government, or that he even went at all for that purpose?  He would ask, whether by the nature of the defence there had been any ground for a plea of justification which, if not proved, rendered it much worse than the libel itself, and by that means the injury had been aggravated.  They (the jury) must be convinced that there had been no evidence whatever to support he plea put upon the record, and it only then remained for them to award such an amount of damages as the safety and interest of the community required.

The learned Judge proceeded to sum up the evidence.  His Honor commenced by observing on the very great importance of this case, in many points of view.  It had evidently created great excitement on both sides; but the jury, he hoped, would not suffer themselves to be led astray by a participation in any such feelings; but take care that their verdict was the result of calm and sober deliberation, uninfluenced by anything approaching to bias on their minds.  The present action was not one for libel on the personal character of the plaintiff, but upon his public character as a magistrate; and His Honor would tell the jury that magistrates were entitled to the protection of the law, should their characters be assailed unjustly; and that it was the duty of a jury to take care that they were protected in the legitimate exercise of the duties of the magisterial office.  The defendant, however, had also his rights as a public writer.  The liberty of the press - properly exercised - was indispensable to the well-being of every civilized community - it was the best corrector of public abuses, and, therefore, a privilege which ought to receive the protection of the law, so far as it was legitimately used.  The conduct of the plaintiff in the present case - he being a public man - was fairly open to comment; and if the jury should be of opinion, that such fairness of comment was not exceeded, then His Honor would tell them that the defendant in this case, was justified in what he had done - that he had not exceeded the measure of his undoubted right, and that he was, therefore, entitled to their protection.  It was the obvious duty of a magistrate not to allow his mind to be influenced by any matter extrinsic of the subject of enquiry before him.  The question in this case was - had the plaintiff been guilty of an infraction of that duty? - His Honor remarked here, that he could not describe the duties of a magistrate in a manner more forcible than that in which they were described in the publication complained of; and which was to this effect, namely - ``Magistrates are appointed to keep the Peace, -- to maintain and support the laws, and to administer justice.  Whenever their conduct is such as to defeat the object of their appointment, it is the duty of the Executive to remove them.  The Bench should be the seat of incorruption, and of calm deliberation, not an arena for the accomplishment of interested motives, or the vent of excited passions.  The want of purity equally with the expression of party feelings by a Judge in Court, saps the foundation of justice, -- defeats its administration, and brings it into hatred and contempt."  It should be remembered, however, that those who undertook to animadvert on the conduct of a magistrate, must be very guarded before they assailed a public character so sacred, but he once more repeated - he once more asked the jury, whether they were satisfied that the defendant in the is case had acted without any reasonable cause?  In addition to the general plea of not guilty, there had in this case been placed upon the files of the court a special plea whereby the defendant had undertaken to prove the truth of all he had written and published.  Had he succeeded in doing so?  That was the question which the jury had to determine; and in order to enable them the more readily to do so, he invited their earnest attention while he went through the whole of the evidence taken in this case, both on the one side and on the other. - [His Honor here read the whole of the evidence, commenting on particular portions as he proceeded.]  In reference to the evidence of Mr. Windeyer, the learned Judge remarked that this witness proved the fact of Mr. Bingle having been seldom seen on the Sydney Police Bench previous to the investigation in the case of the man, Watt; and also that he was not known as a housekeeper in this town.  Then, again, he would say, that the conduct of the plaintiff, in persisting to remain on the Bench after having been injected to by Watt, -- he not being one of the Sydney magistrates, and not having been asked by any one of them to act - was highly improper; and the more particularly so as it appeared that he had given his opinion on the cast before the prisoner entered into any defence.  The Bench should be the seat of calm deliberation.  Magistrates should, in that place, divest themselves of all prejudice - of all feeling - of whatever nature-extrinsic of the case into which they had to enquire.  Could the jury say, taking the whole of the evidence together, that such had been the case in this particular instance, which all the witnesses had represented as of most unprecedented excitement; and which one had characterised as being more like an election than a judicial enquiry?  But he would still remind the jury that it was the conduct, on that occasion, of the plaintiff only which was in issue before them.  Did he, by any act of his, contribute to create that excitement, in the existence of which all the witnesses agreed? or to produce those effects which were imputed by the publication which was the subject of the present action?  That was the true question which the jury had to determine.  It was a fair presumption that the plaintiff must have acquiesced in the course of conduct pursued, and in the observations made by Mr. Lamb, or he would have repudiated both at the time.  That was, in his Honor's opinion, a reasonable presumption; but of that, also, the jury were the solely constituted judges.  In continuation, he observed that, ``prima facie," the publication complained of was highly scandalous.  If any man suffered the feelings attributed to the plaintiff, to influence him in the discharge of his duties as a magistrate - if any magistrate carried such feelings with him to the Bench of justice, and suffered them to sway his conduct there, -- then he (the learned Judge) had no hesitation in saying that whoever held the reins of Government at the time, would not be justified in allowing such a man to hold office for one hour.  The question, however, was, had this publication been justified?  It was alleged that the plaintiff, by his own act - by the publication of his letter to the Colonial Secretary, and of his ``Circular" addressed to the magistrates, had invited discussion; and that the defendant, in the exercise of his legitimate right as a public writer, had only published a fair comment on the conduct of a public man, whose conduct was fairly open to public animadversion.  The defendant had a right to do so; and the question for the jury was - had he exercised such right temperately and fairly; with a view honestly to discuss a question of public interest? or had he endeavoured wantonly to bring the plaintiff into hatred and contempt?  It should also be remembered that, up to this day, the defendant had undertaken to prove the truth of that which he had published.  Had he done so?  That was the main question which the Jury, under this issue, had to try; and which His Honor was satisfied they would determine satisfactorily to their own consciences, and also to the public justice of the Country, which was so deeply mixed up in the result of this investigation.  The learned Judge concluded by expressing his belief that the verdict of the jury would be such as fully to satisfy the justice of the case.

The jury retired for about three quarters of an hour, and returned a verdict for the plaintiff - damages, £100.

Counsel for the plaintiff - Messrs. Sydney Stephen Kerr, and Windeyer - Solicitor, Mr. George Allen.  For the defendant - the Attorney General, and Messrs. Therry and Foster - Solicitor; Mr. Francis Stephen.[ 3]

 

Notes

[1 ] See also Sydney Gazette, 25 and 27 October 1836; Australian, 28 October 1836.  On earlier proceedings in this case, see Sydney Gazette, 27 September 1836; Australian, 25 October 1836. 

For commentary, see Australian, 28 October, 1 November 1836, 8 November 1836 (article and letter), 18 November 1836, 22 November 1836 (letter), 25 November 1836 (editorial) and 29 November 1836 (editorial and letter), 27 December 1836 (editorial); Sydney Herald, 14 November 1836 (letter).

For related cases, see Lyons v. Stephens and Stokes, 1836; and R. v. Stephens and Stokes, 1836. The background to these cases was given by Governor Bourke in his despatch to Lord Glenelg on 18 February 1836 (Historical Records of Australia, Series 1, Vol. 18, pp 306f, and see 333f).  Mudie prosecuted Watt, a ticket of leave man, before a panel of fellow magistrates.  The charges were eventually abandoned, but only after several days of attention to these and no other matters.  This improper use of the court led the governor to dismiss all four magistrates involved, including Mudie.  Mudie later wrote his infamous Felonry of New South Wales (1837), which attacked Forbes C.J. among others: for the reply by Forbes, see his letter to Governor Bourke, 1 May 1837, J.M. Bennett (ed.), Some Papers of Sir Francis Forbes: First Chief Justice in Australia, Parliament of New South Wales, Sydney, 1998, p. 258.

See also Bourke to Glenelg, 14 May 1837, on Bingle's further complaints (Historical Records of Australia, Series 1, Vol. 18, p. 750.  Bourke explained why Bingle had been removed from the magistracy.  See also, R. v. Bingle, 1837.

[2 ] The Sydney Gazette published a report that the defendant in this case was indemnified against the damages, but the Australian, 4 November 1836 denied that this was true.

[3 ] The Attorney General told the court on 31 October 1836 that he planned to move for a new trial or arrest of judgment, but would not do so until the next term: Australian, 4 November 1836; Sydney Gazette, 1 November 1836.

Published by the Division of Law, Macquarie University