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

Mudie v Howe [1836] NSWSupC 41

libel, sexual misconduct - assessor, challenge to - juror, challenge to - Castle Forbes - Burton J., attitude to convicts - Sydney Gazette, management of - libel, assessment of damages - damages, libel - law reporting

Supreme Court of New South Wales

Burton J., 1 March 1836

Source: Sydney Herald, 7 March 1836[ 1]

Tuesday - Before Mr. Justice Burton, and two Assessors.

Mudie v. Howe. - This was an action for libel, to which the defendant pleaded the general issue.  The damages were laid at £1000.

Previous to the case being gone into, Mr. Therry, of Counsel for the defendant, objected to one of the Assessors (A. B. Spark, Esq.) upon the ground of his having expressed an opinion on the case, and being on terms of friendship and intimacy with the plaintiff.  This action, said the learned Counsel, has arisen out of proceedings before certain Justices at the Police Office, of whom Mr. Spark was one.  He had expressed his opinion upon that transaction, and that was a ground of challenge allowed by law.  The learned Gentleman was about citing an authority, when

Mr. Justice Burton desired him to state a specific objection.

Mr. Windeyer - We object that, as Mr. Spark formed one of the Court before which the proceedings originating this action arose, came, and had expressed an opinion upon them, he is not competent to sit as an Assessor on the present occasion.

Mr. Justice Burton. - Give me the Act of Parliament and the record.  I must have the precise ground of objection, and then I will decide upon it according to the law of Juries.

Mr. Therry. - Our objection is, that this action involves the conduct of certain parties on a former enquiry at the Police Office; that Mr. Spark is one of those parties; that he has expressed a feeling on the case, and is, moreover, on terms of intimacy and friendship with the plaintiff.

Mr. Justice Burton. - These are grounds of objection.  How do you propose to prove them?

Mr. Therry. - By swearing Mr. Spark on the voir dire.

Mr. Justice Burton. - That is for me to do.  The Judge is to decide on the ground of challenge.  I shall have the declaration read, and will then question Mr. Spark.

The Solicitor-General submitted that that was not the mode.  The proceedings alluded to had no more to do with the present case than an article published yesterday.  The reference to the proceedings at the Police Office was merely introductory matter.

Mr. Justice Burton. - It is for the Judge to decide the ground of challenge.  The Act specifies that a ground of challenge to an Assessor shall be decided by the Judge at the time of trial.

The Solicitor-General. - I submit, however, your Honor, that extrinsic evidence must be given.

Mr. Justice Burton. - I will deal with it as triers would deal with it.  Let the declaration be read.

The Clerk of the Court read the declaration.

Mr. Justice Burton. - Swear Mr. Spark.

Mr. Spark having been sworn on the voir dire.

Mr. Justice Burton. - Were you one of the Justices on the occasion of the proceedings at the Police Office, alluded to in the declaration just read?

Mr. Sparke. - I was.

Mr. Justice Burton. - I allow the challenge.

Colonel Shadforth and Thomas Walker, Esq. were then sworn as Assessors.

Mr. Foster opened the pleadings.  The plaintiff in this case was James Mudie, Esq.; and the defendant, Anne Howe, the proprietress and publisher of the Sydney Gazette newspaper.  The action was brought to recover compensation in damages for certain libellous publications, reflecting upon the character of the plaintiff, and tending to hold him up to public scorn and ridicule, in the Sydney Gazettes of the 3d, 9th, and 12th of September, 1835.  The declaration set forth that the plaintiff was a Justice of the Peace, and that previous to the publication of the alleged libels, he had preferred certain charges at the Police Office, against a convict named Watt; that in the course of such enquiry, the evidence of a certain female named Mary Chapman became necessary, and that the plaintiff used every exertion to have her forthcoming, but without effect; that in reference to this transaction, the defendant, intending to bring him into public scorn and contempt, did publish certain articles imputing to the plaintiff that he had had an illicit connexion with the said Mary Chapman, and imputing to him also an association with persons who had been transported Convicts, in the getting up of articles for publication in the Sydney Herald newspaper; to his damage of £1000, &c.

The Solicitor-General said, in laying this case before the Assessors, it was hardly necessary for him to do more than place the libels upon the record.  It had been suggested that this was a case for a jury; but he thought that neither party could regret the mode of trial which had been adopted, seeing that the case was brought before two as honourable men as the community could boast, and whose judgment, whatever it might be, he felt assured, would give equal satisfaction to either side.  He asked a verdict at their hands for the injury which these libels, had a tendency to inflict upon his client.  He would bring the libel before them; and though parts of it, on account of its gross vulgarity, would, doubtless, ``make the vulgar laugh," he was sure the Assessors would agree with him that it must make ``the judicious grieve" - grieve for the lamentable state of the press whence such publications could issue, and grieve also that the oldest, and what ought to be the most influential paper in the Colony should have been reduced to so low a state of degradation, when it was entrusted to the hands of persons capable of prostituting it to purposes like that in which, as in this instance, it had been employed.  The series of libels which he would bring before them to-day, were not contained in one paper - they were carried through several; nor, he regretted to say, did the defendant appear before the Court on this occasion in the character of one comparatively innocent, as having been the unconscious publisher of libels, and, therefore entitled to a degree of commiseration at the hands of the Assessors.  At the time of these publications, the paper in which they appeared was notoriously, and would be proved to have been, under the management of a Convict named William Watt, alluded to in the declaration, and who was now, as he understood, united to her by the closest ties.  Under other circumstances, some sympathy might be felt for the defendant as the guardian of her infant children and as under the necessity of confiding the management of her paper to other hands; but when it was seen that she knowingly allowed, and participated in the prostitution of that paper, he would ask what degree of sympathy she was either entitled to or could expect?  Following the man Watt to Port Macquarie after his ticket-of-leave had been transferred to that district, in consequence of proceedings in which he was involved - under all these circumstances, these disreputable circumstances - he would ask -

Mr. Therry here rose and objected to the line of argument adopted by the Solicitor-General.  He was making statements which were not proved, and could not be proved.

The Solicitor-General, with some warmth, said he would not be interrupted, he would take his own course.

Mr. Justice Burton. - Certainly, Mr. Solicitor-General, you could not prove any of those facts to which you have alluded; and I am, therefore, bound to stop such a course of argument.  The conduct of the defendant with the man, Watt, forms no part of the record.

The Solicitor-General contended that he had a right in this case to bring forward parties who were behind the curtain.  He would prove that this Watt, was the manager of the paper, and in connexion with the defendant.

Mr. Justice Burton. - With that intimation.  I will leave you to your discretion.

The Solicitor-General continued - The individual employed in the Gazette Office, whose name appeared on the imprint of those papers, was merely a nominal editor; but it was well known that the writer of those libels was now at Port Macquarie, either lodging with, or married to the defendant, she having first proceeded thither with part of her family, and since that gone alone, with, as he was informed, a license to marry this man, Watt.  It was, therefore, necessary to tell the Assessors - necessary in order that they might fully understand the whole of this case - that the actual writer of the libels was the husband of the defendant, in order that she might be thus brought in connexion with the libeller, and that the damages they would give might be proportioned accordingly.  It was with that view that he alluded to the facts which he had stated - his object was to drag her before the Court as in connexion with, as the wife of the libeller, and to show thereby that she was not entitled to that sympathy which a comparatively innocent publisher of a libel might expect, and which, no doubt, he would experience at the hands of the Assessors.  He wished to show that she was not an innocent party, but that she had, in fact, lent herself to the author of the libels on the plaintiff - that she had participated in them during the time of her communication with the libeller.  It would, no doubt, be relied upon on the other side, that these libels were merely ironical, and could do no injury to the character of any one; but he (the Solicitor-General) would leave it to the Assessors to say, upon reading the first article complained of - that which imputed to the plaintiff an illicit intercourse with the female called Mary Chapman - whether any thing could be published with a greater tendency to bring the defendant into contempt, and to hold him up to scorn and ridicule, as a gentleman, as a magistrate, than that publication.  The learned gentleman then read the libellous paragraphs, and continued: - This Mary Chapman was considered by the Magistrates to be a necessary witness in the investigation of the charges preferred against Watt; the plaintiff obtained tidings of where she was, and took the necessary measures to procure her attendance before the Bench.  But this article went on to say, that the ``Major" was beforehand with the constable, and Mary was taken away by some tall fellow in a shooting jacket - that he was jockied by this person in a shooting jacket, who, it was asserted, had supplanted the ``Major" in the embraces of ``Mary," who, as the writer went on to assert, was the parent of a little ``Major," with a ruddy complexion, and born with spectacles.  Now, it was his duty to inform the Assessors - in elucidation of the real state of this case - that the individual in the shooting jacket, who was alleged to have committed this act of abduction, was no other than a person who was tried with Watt in that Court, and who was known to be a participator - a coadjutor with him in the concoction of the scandalous articles which appeared in the Gazette.  The article published on the subject, not only charged the plaintiff with a criminal connexion with the female, but it also held him up to society as a hypocrite; for if this woman was, as asserted, with child by him, he was made to appear in the two-fold character of a profligate man and of a man who attempted to prostitute justice by charging Watt with the commission of an act of immorality of which he had himself been guilty - one of the charges against Watt being that he, a prisoner of the Crown, had improperly cohabited with this very woman.  He (the Solicitor-general) would pass over the second count in the declaration, and come to the third libel, published on the 12th of September, respecting the same woman.  And he would ask the Assessors whether they could read that and say it had been published without reflection, it being a follow up, after the lapse of nine days, of the same imputation, and an iteration of the same charge?  He next came to the article beginning with the words, ``The late Police-office affair" - he saw that the reading of that article excited a smile; and he would ask whether stronger evidence could be adduced in proof of its tendency to turn the plaintiff into ridicule than that smile afforded?

Mr. Justice Burton - I did not smile, Mr. Solicitor General.

The Solicitor General. - But the whole of the libels, except those set forth in the first count of the declaration, were contained in the paper of the 12th of September, as if the writer intended to stuff all the poison he could into one publication.  The learned counsel here read through some of the articles; and in allusion to the phrase ``Castle Forbes bog-trotter," applied to the plaintiff, quoted the case of Lord Hardwicke against Mr. Justice Johnson, before the Court of King's Bench in Ireland, wherein the words ``stout-built ploughman of Lincolnshire" were held to be libellous.  He would next call the attention of the assessors to the last - though not the least in degree - libel published upon him; and in this instance he was quite satisfied that his learned friend on the other side, with all that ingenuity of which he was possessed, would not attempt to make a joke of a publication wherein the plaintiff was designated as the associate of a herd of thieves; a publication which purported to give a list of the very worst characters - ``vermillion [sic] hirelings," as they were designated by the writer, and amongst whom the plaintiff had been assigned a prominent place.  A ``hireling!"  He would ask the assessors whether any man, however low his grade in society might be, could bear to be called y so opprobrious a term without his blood boiling with indignation? - the degraded member of an iron gang would wreak his vengeance on the individual who called him by such a name; yet here was it sent forward on the wings of the press, from one end of the world to the other.  The whole object of these publications was evidently to bring the plaintiff into ridicule and scorn; and although the last article complained of was certainly not set out at full length upon the record the assessors had a right to take it with them, and upon reading it, they, he was sure, they could entertain little doubt as to the animus of the writer, or that his intention was to class him amongst a set of alleged disreputable persons, and thereby hold him up to contempt and degradation among all classes of persons into whose hands such a statement might fall.  In this Colony, where the plaintiff's standing in society was so well known, and where the source whence these libellous imputations emanated was so properly appreciated, it was probable that such publications would have no injurious effect against the character of the plaintiff, nor tend to degrade him in the estimation of society.  By that class of persons whose esteem he coveted, such infamous publications would be rated at their full value - they and their authors would be despised by every honourable mind; but he would ask, what would be the impressions such charges were calculated to make elsewhere? - what would be though of them by the plaintiff's friends in England, if they were believed?  If it was credited that the plaintiff was the associate, in this Colony, of a herd of thieves - of persons such as they were represented by this writer - of men who, according to him, had forfeited all pretensions to character - of persons, who, supposing them to have been in the situation described, had not shown any signs of reformation - of men whose colonial history was but a transcript of their former conduct - what would be thought of the plaintiff elsewhere?  Would he not be shunned by society in England? - would he not be viewed with suspicion even by all those who might happen to travel, in the same stage-coach with him?  This was the view of the case which the assessors were bound to take.  The plaintiff was accused by this defendant of having been guilty of an act disgraceful to him in every respect - disgraceful to him as a gentlemen - disgraceful to him as a magistrate - disgraceful to him as a moral man.  He was charged with perverting justice by accusing another of an offence against public morals, he being at the same time guilty of a similar offence: he was charged with associating with disreputable person for a political purpose - he was held up to public scorn and ridicule as a person wholly unworthy the rank and character he bore in society; and although he did not come into the Court to seek for vindictive damages, he (the Solicitor-General) trusted that the Assessors would, by their verdict this day, mark their sense of the nature of the conduct pursued by the defendant throughout those transactions.

The following witnesses were then called on the part of the plaintiff:-

Mr. Cornelius Dehohery examined by Mr. Foster. - I am Chief Clerk of Police; I remember certain charges being preferred by the plaintiff, at the Police-office, against a prisoner named William-Watt; the first affidavit in support of these charges was made on the 26th of August, 1835; the investigation lasted till the 9th of September, 1835; I know the plaintiff; he appeared as prosecutor on that occasion; a female named Mary, or Jemima Chapman, was expected to appear to give evidence towards the latter part of the enquiry; a constable was sent after her but she could not be found; the plaintiff was a magistrate; I have seen him act as a magistrate.

Cross-examined by Mr. Windeyer - I have not seen the plaintiff's commission; I cannot say anything positively on the subject.

Mr. G. W. Newcomb, Clerk in the Colonial Secretary's Office, produced the Office copies of the Sydney Gazette, of date the 3rd, 9th, and 12th of September, 1835; the defendant swore an affidavit, jointly with Mr. Graham and Mr. Wills, wherein she stated herself to be joint proprietor of the Sydney Gazette, with her children, on the 2nd of July, 1832; there has been no change in the proprietorship since; Mr. O'Shaughnessy swore an affidavit since that, but it was as editor; there has been no change in the proprietorship; I know a paper called the Sydney Herald; Messrs. Ward Stephens and Frederick Michael Stokes are the registered proprietors, editors, and printers of that paper; it is published twice a week.

Cross-examined by Mr. Windeyer. - I have seen Mrs. Howe write; the signature to this affidavit is hers; since Mr. O'Shaughnessy left the office, there have been changes in the editorship, but none in the proprietorship since July 1832; Mr. O'Shaughnessy appears to have been the editor from the 1st of November, 1832, to September, 1835; there is no affidavit in my office to the contrary; we have received papers bearing the signature of Mr. Haswell as editor, but he never made any affidavit; I consider he was illegally editor; the first affidavit made by any person as editor, since Mr. O'Shaughnessy retired, was made by a person named Fell; Mr. Haswell's name appeared subsequently as editor, between the affidavit of Mr. Fell and that made by Mr. Hayes, the present editor.

William McPherson, Esq. - I am Collector of Internal Revenue; I have read the article pointed out to me in the Sydney Gazette of the 3rd of September last; I consider it applies to the plaintiff, and alludes to the case of Watt, at the Police Office, of which I have heard; the word ``Major" means the plaintiff; the article imputes to him too great familiarity with ``Mary;" it imputes to him that he got her with child; I see the article in the paper of the 12th of September, beginning with the words, ``The opposition papers, &c.;" the name ``Mudie" there means the plaintiff; the term ``bog trotter" applies to the plaintiff; the paragraph imputes that the charges against Watt were malicious and unfounded; I see a paragraph in the same paper, beginning with the words, ``We understand that the late Police Office affair is about to be dramatized for the Sydney Stage, &c.;" by the word ``Major" in that paragraph is meant the plaintiff, and the whole sentence pointed out to me imputes to him that he had an illicit connexion with the woman who is called Mary; the name ``James Mudie," in the paragraph headed ``Aristocracy" also means the plaintiff; the paragraph imputes to the plaintiff that he was associated with the parties therein-named, who are alleged to have been transported; the word ``Major" in the passage commencing with the words ``Henry Murray, who lost his eye where the Major was wounded," also means the plaintiff; I consider the imputations that the plaintiff was guilty of immoral conduct, and an associate with Convicts, to be very injurious to his character.

Cross-examined by Mr. Therry. - I do not consider the publication a joke; I think that the intention of the writer was to convey that the plaintiff was a father by this woman, and that it was intended to fix a stigma on him; I consider that the malice imputed in the case of Watt, is intended to apply to the plaintiff, and not to the witnesses in that case; the words of the writer are, ``the malicious charges of the Castle Forbes bog-trotter;" the word ``malicious" might be applied to the witnesses, but I think it was not; the allusion to the child having been born with spectacles might be made to introduce a joke, but that does not do away with the effect of the passage about ``vermillion [sic] hirelings;" I do not suppose it was intended by the writer to class the plaintiff among ``liberated thieves," but to bring him forward as an associate of such persons; I don't know that the plaintiff was hired to write for the Herald, neither will I say that the words ``glorious association" with certain parties named in the article, mean inglorious; the ``association" alluded to is to prepare articles for a newspaper, and not a dishonourable association.

Re-examined by Mr. Foster - The paragraph beginning with the words "We understand that the late Police affair is about to be dramatized for the Sydney stage," tends to bring the plaintiff into contempt and ridicule.

John Lamb, Esq., examined - I was present at the investigation at the Police Office, in the case of Watt; a woman named Mary Chapman was ordered to be produced; this article imputes a sexual connexion between the plaintiff and her; the article in the Paper of the 12th of September, commencing with the words ``The opposition Papers, &c.," refers it to the plaintiff's prosecution against Watt; the phrase ``Castle Forbes' bog-trotter," also refers to the plaintiff, and the sentence in which it occurs imputes to him malicious motives in his prosecution of that man; the paragraph commencing with the words ``We understand that the late Police affair is about to be dramatized, &c.," also refers to the same affair; the paragraph headed ``Aristocracy," also applies to the plaintiff, and designates him as one of the ``vermillion [sic] hirelings" therein enumerated; it imputes to him an association with the parties named and described here; I consider the effect of such a publication would be highly injurious, as regards his friends in England, to any person holding the rank of a gentleman.

Cross-examined by Mr. Windeyer - You are an officer in the Navy, Mr. Lamb? - I am. - Now does it not come within your knowledge that, during the war, thieves and pickpockets, and, in fact, men guilty of all sorts of offences, were drafted on board King's ships? - I believe that some instances of the kind have occurred. - Would you then, think it discreditable to your character, as an officer, if you were described as an associate of such men in the course of your occupation?

Mr. Justice Burton - I will not permit that course of examination, Mr. Windeyer.

Mr. Windeyer - I only want to show, your Honor, that the association imputed to the plaintiff here may not have been an improper association, but one which might have occurred in the usual course of transacting business.

Mr. Justice Burton - I take it upon myself to rule that you shall not be allowed to pursue that line of examination.  I will not have it assumed here that the British Navy is composed of thieves and pickpockets.  I rule that this examination is irregular and improper; if I am wrong you can apply to the Court.

Examination continued. - The plaintiff is described here as using the Herald for political purposes; I never heard, up to the time of these publications, that he had written anything in that paper; I think I have heard so since, in my estimation from what has been published of him in these papers; this paragraph does not merely impute writing in the Herald, but an association of another kind with the parties there in named; it includes him either among the ``vermillion [sic] hirelings," or the ``liberated thieves;" he may come within the words, ``and others who deny their grade," and, upon further consideration, I think it likely that he does so; I do not think it by any means discreditable to be associated with an emancipist in matters of business.

Richard Jones. Esq., M. C. - I have heard the article read, and the evidence given b he preceding witnesses in this case; the publications all refer to the plaintiff, more or less, in regard to his conduct at the Police Office; the paragraph about ``Mary" applies to the plaintiff, and imputes to him an illicit connexion with that woman - that she was with child by him; the word ``bog-trotter" applies to the paragraph commencing with the words ``The opposition press, &c.," charges him with improper conduct in misleading somebody, and with prefering malicious and unfounded charges; the paragraph headed ``Aristocracy" imputes to him a night-companionship with parties in whose society he would be ashamed to be seen in the day; it tends to lower his character, most certainly; I am one of the executors of the late Mr. Howe; the Sydney Gazette has been under the sole management of the defendant for several years, but, particularly within the last two years, it was so misgoverned, that I and the other executors felt ourselves bound to apply to the Supreme Court to restrain her from having anything to do with it; I did not know, till recently, of her marriage with Watt; I do not know now that she is married, but I have heard that the Governor has given his permission for her to marry Watt; one of the reasons why I interfered to obtain an injunction to restrain her from further interference with the Gazette was on account of the infamous manner in which the paper was conducted under Watt's management; Mrs. Howe told me herself that the paper was managed by Watt at the time of these publications, which were put forth to vindicate his cause.

Cross-examined by Mr. Therry - These publications would not injure the plaintiff in my estimation, because I know the source from whence they came, but if I did not know the facts, he would be seriously injured; I think the imputations malignant and absurd too; I do not look upon them as a joke, but as a gross insult to the character of a moral man; the charge of malice I consider applied to the prosecutor in Watt's case, not to the witnesses; every person alluded to in the paragraph wherein the designation ``vermillion [sic] hirelings" occurs, is asserted to have been convicted of some very disreputable act; it imputes not only to the plaintiff, but to every person named in that article, that they had lost their reputation in some way or another; even if it were intended to designate the plaintiff under the denomination of ``others denying their grade."  I should think it injurious, as implying something wrong which he could not clear up; certainly I do not consider it disgraceful to associate with an emancipist of good character in literary business, but I do not think that is what the article means to imply; it implies a disreputable association with disreputable persons; I do think the publications highly injurious to the character of the plaintiff.

This was the plaintiff's case.

Mr. Windeyer rose to submit to the Court that the evidence of publication had failed.  From the papers which had been produced, it appeared that a Mr. Haswell was the editor at the time of these alleged publications; but the affidavit produced before the Court went to shew, that a Mr. O'Shaughnessy was, in fact, the editor; and, in the absence of the proof of publication which was required by the local Act, he contended that the plaintiff was thrown back upon the common law proof - namely, the purchase of a paper containing the alleged libel, and its identification with the defendant as the publisher.  And, again, the 14th section of the Act provided that the papers registered in the office of the Colonial Secretary, should be signed by the publisher; whereas it appeared that the papers produced were signed by a person named Haswell who was not in any way mixed up in the case - of whom, in fact, nothing was known.

Mr. Justice Burton - This is an action, not against the editor, but against the proprietor and publisher.

Mr. Windeyer submitted, that the Court ought not to confuse popular proprietorship with legal proof of the fact.  The mode of proof required by the Act was - in order to shew that the paper was the same - that the name of the editor on the imprint should correspond with that in the affidavit.  Here the proof was that Mr. O'Shaughnessy was the editor, which was completely at variance with the papers put in evidence.

Mr. Justice Burton - All that is necessary to prove in this case is, that the defendant was a proprietor.  We have here the fact of the delivery of the papers at the Colonial Secretary's Office, with the name of Ann Howe attached as a proprietor, and that delivery I hold to be sufficient evidence of publication.  The affidavit of the defendant, as the proprietor, and the delivery of the paper in pursuance of the Act, is sufficient proof of publication.

Mr. Windeyer then submitted that there had been no proof that the plaintiff was a Justice of Peace, as averred in the declaration.

Mr. Justice Burton was of opinion that that objection could not enter into the present case; but even if it could, there was proof that the plaintiff was a Justice of the Peace.

Mr. Therry then rose to address the assessors on the part of the defendant.  The learned gentleman said he was quite satisfied that the court had seen enough of this case to make it come to the conclusion that it was one of the most trivial nature - one in which, if the assessors should feel it their duty to find a verdict for the plaintiff, he was quite sure they would consider a very trifling amount of damages as amply meeting its justice.  At the outset, he felt it his duty to object to one of the assessors, for reasons which he then stated.  It was due to that gentleman however, to state, that the objection was taken merely upon principle - nay, out of delicacy towards himself - for he (Mr. Therry) did not think that this community could boast of a more truly honourable man, one who, in whatever situation he might be placed, would more honestly and impartially discharge the duties cast upon him.  It was also due to the plaintiff to state, that from a communication which had just been made to him (Mr. T.) that he himself was by no means desirous that that gentleman should act in this case, but altogether otherwise.  He felt it due to make this avowal in perfect good feeling and in justice to the plaintiff; and he only regretted that he was no enabled to make the same candid avowal respecting every part of the subject which had come before them that day.  The assessors had heard the case very elaborately opened by his learned friend the Solicitor General, and many topics had been urged by him which, certainly had no relation whatever to it.  He was quite sure that they regretted the unnecessary vituperation which had been heaped upon the lady who was the defendant to-day.  The publication of the libels had been attributed to her lustful passions, and to her immoral and depraved character.  He could not but say that such topics were urged in very bad taste, and that they were extremely injurious to the object at which they were aimed - coming as these aspersions did from one possessing that deserved respectability of character and weight in society which his learned friend possessed.  But he would remind the Assessors that not one word of all this had been proved - he would remind them that these imputations rested solely upon the statement of his learned friend  made, no doubt, in pursuance of his instructions; but one tittle of which had not been supported by evidence.  They, he had no doubt, would feel that under these circumstances, the defendant had been harshly used.  With respect to Watt, whose name had been so unnecessarily dragged into this case, he could only say that, with regard to the part he took in defending that man on a former occasion, that he looked back with a feeling of pride at having done his duty, without the remotest regard to the scandal-mongers and libel poets of the Colony; and he was quite sure that the Assessors would feel with him, that the course pursued on the other side, neither evinced good taste nor sound judgment on the part of his learned friend.  The learned Counsel then proceeded in a strain of ironical commentary, on the alleged libels.  No doubt, he said, Mr. McPherson was a very excellent Collector of Revenue, and Mr. Lamb a critic in the construction of language; but the Assessors were bound to look at the alleged libels as men of the world, and to say whether they would fairly carry the meaning which had been put upon them by those witnesses.  He took the publication of the 3d of September, for instance - and he asked whether the plaintiff, stepping out of the rank of his fellow citizens as he did, in the character of a moral vindicator of the land, could understand it as other than a mere joke.  It was admitted to be a capital joke by all who read it.  Even Mr. Jones - who he was glad to see had recovered his good humour before he left the witness box - had admitted that it was absurd, though he also said it was malignant.  But though Mr. Jones occupied a first rank in society here - though he was the head of the commercial community - it was still the duty of the Assessors to look upon the alleged libel as men of the world, and to put their own construction upon it.  Mr. Jones, upon his own evidence, appeared there somewhat in the character of a plaintiff against the defendant; and it was impossible not to see that he had some feeling of prejudice in the case.  Yet he admitted that he article was absurd.  He (Mr. T.) felt considerable difficulty in addressing the Court as at present constituted.  It was a case properly coming within the province of a jury - seeing that the Assessors were themselves magistrates, and the plaintiff one of their own grade in society.  He was sure that circumstance would be taken into consideration in assessing damages, if they should feel themselves called upon to award any in this case.  Looking at the whole of the publications complained of, he was sure that no sensible men would view them other than as a series of jokes - certainly not in good taste, but still jokes.  The phrase ``Castle Forbes bog-trotter" was, no doubt, a vulgar expression, but that was the most that could be said of it; and he felt quite assured that the Assessors would agree with him, that the imputation of malicious motives contained in the same sentence, was intended to apply to the witnesses in the prosecution against Watt - as the getters up of a charge founded in misrepresentation, falsehood, and perjury - and not to the plaintiff in this case.  Why, he had heard that the worthy plaintiff had compared the prosecution of Watt to the impeachment of Warren Hastings - placing himself, of course, as the promoter of that prosecution, in the position of, and in comparison with, the great statesman who had conducted the impeachment of Hastings.  Now, though the charges against Hastings had been dismissed, after years of investigation - though they were asserted to have been founded in falsehood and misrepresentation - no one ever thought of applying those terms to Edmund Burke by whom that impeachment was conducted.  It was not denied that the charges against Watt were dismissed; and there was no evidence before the Court alleging that the constitution of the enquiry, or the motives which actuated it, were other than those which appeared in the case of Hastings, to which this was considered a parallel.  Then, with respect to the dramatising of the police affair, Mr. McPherson could see no joke in that.  Was there anything in the generation of the Mudie family, that a child of the Major's must necessarily be born with spectacles?  As well might it be urged, if a child were born with boots and spurs, that ergo it must be the child of Charley Smith, or some other of the butchers who are seen daily riding about the town decorated with such habiliments.  If, indeed, when the plaintiff returned to England, he could be pointed out as the father of a child born with spectacles, he certainly would be pointed out as the most wonderful man from this wonderful country; but could the Assessors look upon such things as these in any other light but that of a joke?  Then they had the fifth count, which alleged that the plaintiff was the associate of emancipated convicts.  But even Mr. Jones himself had admitted that such association, in matters of business, was no disgrace.  And why should it be?  It was seen that many of that class of person occupied some of the first situations in the country, in mercantile and other capacities.  He thought that every well-wisher of the colony, in a moral, as well as in a political point of view, would rejoice to see that it was so; and would think with him that the re-ascent of those person was the more honourable, considering the depth from which they had ascended.  It was therefore, no discredit to be associated with such persons in any reputable occupation, and what else was alleged against the plaintiff in the present case?  If, indeed, it were stated that he associated with those persons out of a regard for their crimes, the charge would have assumed a different appearance.  But what was the association, ``in meditation deep," with which he was accused, other than an association for the purpose of cultivating the liberal arts? - it was not an association for criminality or debauchery, but it was an association not only perfectly laudable in itself, but one which all the witnesses had pronounced to be innocent and justifiable.  ``It has been said" observed the learned counsel, in conclusion, ``that this case has originated in matters which have occasioned considerable excitement out of doors, and been productive of the most unpleasant disagreements and dissension in society.  That it has so I well know - experto credite; I have seen too much of it.  I trust, however, that the Court, by its verdict to-day, will do all that it can to allay that excitement which, while I admit its existence, none can deplore more than I do.  Nor am I without a hope, from the good humour which I seem to have excited in those about me - even in the worthy plaintiff himself - that he would now prefer not having instituted this action.  The whole tenor of these publications is a tissue of jesting, in bad taste, I admit, but by no means bearing a malicious construction."

The defendant called no witnesses.

Mr. Justice Burton summed up the evidence.  His Honor said it would have been much more pleasing to his feelings had he to address a jury in the present case; inasmuch as the fewer the number of which a tribunal was composed, the greater was the responsibility cast upon it.  It would have been desirable that this case had been sent to a jury, as it might have been; but as the parties chose to adopt the present mode of trial, they were bound to be satisfied with the judgment which would follow, whatever it might be.  The Assessors had nothing to do with the out-of-doors excitement which was said to have given rise to the present case, but only with the parties now before them.  It was stated on the record that the plaintiff in this case was a Justice of the Peace, and as nothing was alleged to the contrary, it was to be presumed that he did but what was proper in the course of the proceedings alluded to; and, therefore, there was nothing to disentitle him to the compensation he sought for the injury alleged to have been done to his character.  His Honor was also sorry to say that the defendant did not appear before the Court in the condition of a comparatively innocent publisher of a libel.  It was shown that she was the proprietor of this paper, and that she had lent it to this man, Watt, for the vindication of his own quarrel.  And what was that quarrel?  Why a quarrel between a prisoner of the Crown - between a Convict under sentence and a Magistrate of the Territory!  She could not, therefore, under all the circumstances, be looked upon as the innocent publisher of a libel.  The Assessors would also remember that there was no proof of any amendment having been offered to the plaintiff.  It was alleged that these publications were intended as a joke; but that ought to have been stated at the time; yet no intimation of that kind had been given, up to the period of trial.  The learned Judge then dwelt minutely on the nature and tendency of the several articles, and told the Assessors, that, should they feel themselves bound to find for the plaintiff on the other counts, they must leave the fifth count out of their consideration; inasmuch as, though the pleading might have gone much farther, there was nothing of a libellous character charged against the plaintiff in that count of the declaration.  If in any count of the declaration they found a libellous publication, their verdict must be for the plaintiff, though if the allegations contained in other counts were disproved, it would have the effect of mitigating the amount of damages they would give.  The publications laid before them certainly did evince a disposition to follow up the imputations made against the plaintiff - the allegations were persisted in - and it was for the Assessors to say whether the intent was to charge the plaintiff with the commission of an immoral offence, and to bring him into hatred and contempt.  His Honor adverted here to the merriment which the reading of some parts of the libellous matter had excited; and observed that this, of itself, was evidence to show the tendency which such publications had to bring a party into ridicule.  A sense of the ridiculous seemed to be a part of the nature of man; and he himself had been shocked to notice that even in a trial for murder, some expression would have the effect of exciting the risible muscles of the spectators, and make them forget that the unhappy person at the bar was on trial for his life.  This showed that a keen sense of the ridiculous is in some respect inherent in us all, and proved the tendency of publications like that before the Court to-day, to hold an individual up to public laughter.  What could be published of a greater tendency to hold up a man to ridicule, than to point him out as the father of a child born with spectacles?  If that was not holding him up to ridicule, he (the learned Judge) did not know what was.  He had already told the assessors that if in any of the counts in the declaration they found a libel, their verdict must be for the plaintiff; though they would, of course, take into their consideration what they might think had been disproved, in estimating the amount of damages they ought to award.  With respect to the fifth count, however, where it was attempted to bring the plaintiff into disreputable connexion with certain parties therein named.  His Honor was of opinion that it ought to be left out of consideration altogether.  Upon that publication it was only necessary to remark that it exhibited a depraved taste, and one more instance of the degrading purposes for which that paper had been prostituted.  Under any circumstances such an article would be in the highest degree censurable, but what was to be thought of it, coming from a person who was at the very time in the same degraded situation as he alleged others to have been in, and for which he thus publicly stigmatized them!  With what motive such a publication could have been put forward, it was for the assessors to say.  With reference however to the imputation upon the plaintiff in that article, it went no farther than to assert that he associated with a certain description of persons for the alleged purpose of getting up articles for publication.  Supposing that to be true, there was no offence in it - to say so was certainly not libellous.  The publication might have born a wider interpretation; if it had been charged that the plaintiff had associated with improper characters, the case would have been different; but merely to allege that he associated with emancipists for the purpose of getting up articles for publication, was not libellous.  Leaving then that count in the declaration entirely out of their consideration, it would be for the Assessors to say whether they found, on the other counts, that the plaintiff had been libelled.  Should they be of opinion that he was, then the next question was as to the amount of damages they would award.  In reference to that part of their duty, His Honor would observe, that it had been stated that the plaintiff did not look for vindictive damages.  He would freely and readily believe that he had no such object; and he hoped it never would be made appear that any suitor ever came into that Court to look for what was called vindictive damages.  It was a question altogether for the Assessors, as men of the world, men of sense and integrity, calmly to determine what amount of damages would, in their opinion, meet the justice of the case - assuming, as His Honor must assume, that the mere expectation of a sum of money could never be the inducement to influence a plaintiff in coming into Court in a case of this kind.  In estimating the amount of damages, therefore, the safest - indeed the golden rule for the guidance of the assessors, was to take into consideration the whole of the circumstances in connexion with the parties, plaintiff and defendant, before the court, and to do with them as, if similarly situated themselves, they would wish to be done by.

The assessors consulted for a short tme, after which

Mr. Justice Burton said - ``The assessors find a verdict for the plaintiff, damages fifty pounds; and they desire me to add, that, in assessing damages so low, they were influenced solely by commisseration for the situation of the defendant."

Verdict for the plaintiff, damages £50.

Counsel for the plaintiff the Solicitor General, and Mr. Foster; for the defendant, Mr. Therry and Mr. Windeyer.

 

Dowling A.C.J., and Burton and Kinchela JJ, 11 June 1836

Source: Australian, 14 June 1836[2 ]

 

Mudie v. Howe. - This was an action for libel tried last term, when a verdict was returned for plaintiff - damages £50. - Messrs. Therry and Windeyer now moved that the verdict be set aside and a nonsuit entered, on the ground that there was no cause of action sufficient to satisfy British or Colonial law.  Mr. E. O'Shaughnessy was, according to the affidavit lodged in the Colonial Office, the sworn editor of the paper, while the paper containing the libel was signed by Mr. F. C. Haswell instead of the sworn editor; they denied that the paper was published by Mrs. Howe, it might be a fabrication, and as the paper and affidavit did not contain the same ``name," the variation was fatal.  The Court was of opinion that there was sufficient evidence upon the record to have gone to the Jury; that sufficient was shown in Mrs. Howe's affidavit that she was proprietress of the paper, and it having been so proved the verdict must stand. - Refused.

The same gentlemen then moved in arrest of judgment, on the ground of the counts in the information being faulty, and the Jury having returned a general verdict upon the whole of them. - Judgment reserved. - Herald.

 

Notes

[1 ] See also Sydney Gazette, 3 and 5 March 1836; Australian, 4 March 1836.  For commentary, see Australian, 15 March 1836; Sydney Herald, 14 March 1836. 

For another libel case in 1836, see Ex parte Allen, in re Bull, Dowling, Select Cases, Vol. 7, State Records of New South Wales, 2/3465, p. 89, which, surprisingly, is among the very few reported by Legge: sub nom. Allan v. Bull (1836) 1 Legge 70 (based on Sydney Herald, 22 February 1836).  The headnote states that ``Criminal prosecutions for libel in this Colony proceed on the same principles as in England."  That perfectly pedestrian statement was made in very many cases, and was not even mentioned in Dowling's notebook, which merely states ``We think not" as the full extent of the judgment delivered by Forbes C.J., Dowling and Burton JJ.

For other cases concerning the parties in Mudie v. Howe and those mentioned in the evidence, see R. v. Hay, 1835; Wighton v. Howe, 1836; and see Australian, 8 March 1836: ``The court on the affidavit of Mr. Jones, setting forth the marriage of Mrs. Howe with Watt, together with the proceedings that took place in the libel case, granted an injunction for restricting Mrs. Howe from any participation in the property of the Sydney Gazette."

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.

The background to this case is also given in the footnotes to R. v. Hitchcock and others, 1833.

[2 ] See also Sydney Gazette, 14 June 1836.

Published by the Division of Law, Macquarie University