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

R v Bull (No 1) [1836] NSWSupC 15

criminal libel - perverting the course of justice - contempt, criminal - criminal procedure

Supreme Court of New South Wales

In banco, 15 February 1836

Source: Sydney Herald, 18 February 1836[1 ]

After several motions of no public interest had been disposed of,

Mr. Foster rose and moved for a rule to show cause why a criminal information should not be filed against Mr. Henry Bull, for a libellous publication reflecting on the character of Mr. Nicol Allan, one of the Attornies of this Court, in the Colonist newspaper of the 11th instant.  The learned counsel state that some time in the month of December last, a letter appeared in the defendant's newspaper, signed ``A Liel Scotchman," containing some scandalous aspersions on the character of his client, who, in consequence, had commenced an action for damages in that court.  The defendant had put in a plea of justification, and the case was now at issue, and would come on for trial in the course of very few weeks.  Pending this inquiry, however, the defendant, not being satisfied with the justification he had pleaded in Court, and evidently intending to prejudice the cause in the minds of the Jury who would have to try it, published the article now complained of, on Thursday last; the nature and tendency of which, as their Honors would at once see, was too obvious to require comment.  The article in question was headed with the words, ``Our new Libel Case," and not only iterated the former slander, but concluded with an expression of the writer's confident opinion, that ``no honest Jury would find a verdict against him."  Mr. Foster having read the article complained of, refeferred the Court to the opinion of Lord Kenyon [Rex v. Joliffe, 4. T. R.; 289], as to the character of publications tending to prejudice the trial of a cause pending before a court of justice; and having characterised the publication as one of the most dangerous and wicked character, put it to their Honors whether, even had not the present proceeding been adopted, they would not be bound, having judicial knowledge that an action was pending in the Court, to direct the law officers of the crown to prosecute for as gross a contempt of the Court as ever was committed.  If this had been a solitary instance of the kind - if it had been the first time that a publication of this description had emanated from the public press of this Colony, the Court would, perhaps, think that sufficient for the purposes of justice would be done by admonishing the defendant; but the fact was otherwise.  It was notorious that the publishers of newspapers had, on several occasions, interfered with the course of justice in a similar way; and he (Mr. F.) trusted that the Court would mark its sense of the impropriety of such conduct, and teach the editors of newspapers that though they might, sometimes, with impunity, bring the private affairs of individuals before the public, they should not be tolerated in a course of proceeding, the tendency of which was to pervert the course of justice by an attempt to prejudice the minds of those by whom it was to be administered.  The case which he had cited to the Court, and wherein Lord Kenyon had expressed himself so strongly, was not at all of the same aggravated nature as that before their Honors.  In that case, it appeared that the attempt to influence and pervert the judgment on its merits, was confined to four individuals; but here was a justification - a publication of a series of letters, not one of which could be received in evidence on the pending trial - and a declaration that no honest Jury could convict the defendant, put forth in a newspaper which actually boasted of its extensive circulation in the Colony.  The learned Counsel, after some further observations to the same effect, concluded by submitting to the Court, that he had shown sufficient grounds to entitle him to the rule prayed for.

The Chief Justice. - Pass up the paper.

Mr. Foster, in handing the paper to the Court, said, ``I omitted to state to your Honors, that the publication complained of, also contains a gross libel upon one of the Judges of this Court."

The Chief Justice, after looking into the article, and consulting with Mr. Justice Burton, said, ``take your rule."

Rule granted, returnable on Saturday next.

 

In banco, 20 February 1836

Source: Sydney Herald, 22 February 1836[ 2]

 

Saturday. - Ex parte Nicol Allan v. Henry Bull. - In this case, which was an application to the Court for a Criminal Information against the defendant, and upon which a rule nisi was granted, returnable to-day.

Mr. Foster moved that the rule be now made absolute.

The Solicitor General appeared to show cause against the motion.  The learned gentleman commenced by intimating to the Court that he was not called upon to appear to the rule which had been served upon his client.  He was called upon by that rule, to show cause why a criminal information should not be filed for a libel on Mr. Allan, contained in the Colonist newspaper of the 11th instant; but in no part of the affidavit which had been put in by the applicant was the libellous paragraph pointed out.  It was alleged to be contained in the Colonist newspaper, certainly, but in what part of the paper - whether among the advertisements, or in what other part it was to be found, was a matter of conjecture.  The learned Counsel referred to Chittys Criminal Law, Vol. 4, and directed the attention of the Court to the  form of rules nisi in cases of libel, which should always set forth the matter complained of, or, at all events, the commencing and concluding words, so as to inform parties of what they were accused.  In this case, he contended, all was vague - the accused party was told that his offence was to be found in the Colonist newspaper of the 11th instant; but as to the particular paragraph, or in what part of the paper it was to be found, they were left totally in the dark.  But he had also another objection to make in this case.  The rule served upon his client called upon him to answer a charge of libel.  Now, in no part of Mr. Allan's affidavit was this publication treated as one of libel upon himself.  He was not in Court when the rule was moved for by his learned friend on the other side (Mr. Foster); but he understood since, that he had charged three distinct offences against the defendant, namely, an attempt to pervert the course of justice, a libel upon himself, and a libel upon one of the Judges of the Court.  Now, which of these charges was the defendant called upon to answer?  They could not be embodied in one information - it was clear that the prosecutor would be compelled to make his election; and that in fact it was the charge contained in his affidavit, and upon which this rule was granted, to which he would have to confine himself; it was that affidavit, and that only, which the defendant was called upon to answer.  But before he (the Solicitor General) adverted to this part of the case, he would observe, that in no instance did the applicant treat this publication as a libel upon his character.  He had not ventured to deny the truth of a single syllable of it; and he submitted to the Court, that it was the invariable practice of the Courts at home, before they would grant this mode of proceeding, to require an exculpatory affidavit from the party applying for it.

Mr. Foster - It is not necessary under the New South Wales Act to make any such affidavit, unless, it shall appear to the Court that the justice of any particular case requires it.

The Solicitor General - It is the universal practice in such cases elsewhere; and if in no case, that practice is adopted here, why then the Court would be bound to grant an information for exposing conduct, however indecent or subversive of public morals it might be, upon the mere motion of the party applying.

The Chief Justice - I apprehend we would.  The principle upon which criminal prosecutions of this nature proceed here are the same as in England.  It is because such publications are subversive of the public peace; and it has been stated, over and over, from this Bench, that, under the New South Wales Act, the Judge feel themselves bound, whenever a corpus delicti is shown - whenever a sufficient prima facie case is laid before them - to send it to a Jury.

The Solicitor General proceeded to contend that all his client was called upon to answer, was the affidavit of Mr. Allan; which, however, by no means charged any personally libellous imputation, but an attempt to prejudice the trial of a case then before the Court.  In reply to that affidavit, he read one from Mr. Henry Bull, denying that in publishing the article complained of, there was any such intention as that imputed by the complainant; and declaring that its only object was to remove an impression that the publisher was influenced by personal and unworthy motives towards the complainant - or by any motive save a desire to promote public morals and ``raise the tone of society" in this Colony; an object which had always been foremost with the Colonist newspaper.  This the learned Solicitor General contended, was all he was required to answer - namely, an attempt to prejudice the trial of a cause pending before the Court being all that was alleged against his client.  The rule of Court, however, called upon him to answer a charge of libel on the complainant; but for the reasons he had already stated he did not feel himself bound to answer any such charge.

Mr. Foster, in reply, stated that his application was against the defendant for an attempt to prejudice the course of justice, and also for a libel reflecting upon the character of the applicant.  The Officer of the Court might have drawn up the rule, under a wrong view of the real nature of the application.

Mr. Gurner expressly denied this.  The rule was drawn up in conformity with what he understood to be the motion of Mr. Foster.

Mr. Justice Burton said he had a perfect recollection, that the application to the Court on Saturday last, was for a criminal information against the defendant, for a publication tending to prejudice a trial then at issue in this Court, but which was also asserted, in the course of argument, to be a libel upon the applicant personally, as well as upon one of the Judges.  The specific application, however, as he understood it, was for a criminal information against the defendant, as the publisher of an article which tended to interfere with the due course of justice.  He thought that the rule had gone too far, and was of opinion that it ought to be set aside, and the applicant allowed to take out another more in accordance with the terms of the affidavit upon which he had grounded his motion.

The other Judges assented to this, but

The Solicitor General said, as his client was brought into Court needlessly - as he was called upon to reply to something not even alleged against him by the prosecutor - he thought he was entitled to the costs of the day.

Mr. Justice Dowling seemed to be of opinion that the defendant had not much to urge, even on his own showing, with respect to his having been taken by surprise.  The affidavit put in by him was sufficient, of itself to show that fact.

The Court; however, was of opinion that Mr. Foster must take out a new rule.

The Solicitor General contended that the other side must commence di novo.  Applications of this nature could not be patched up - they must be instituted over again.

Mr. Justice Burton said it was perfectly competent for the Judges, when they saw that a rule had been issued in error, to direct that error to be rectified.  There was no doubt about it.

The Court, however, directed that the applicant should commence anew.

The Solicitor General applied for the costs of the day, as his client was brought there to defend an application which he could not have refused to defend without incurring the penalty of a contempt of Court, but which it was quite clear he was no justly called upon to defend.

After some further discussion, it was decided that the applicant should ``begin again," and pay the costs of the day.

 

In banco, 5 March 1836

Source: Sydney Herald, 10 March 1836[ 3]

 

Saturday, march 5. - The King, at the prosecution of Nicol Allan, against Henry Bull.

Mr. Foster moved that the rule nisi obtained in this case be now made absolute.

The Solicitor General appeared to show cause against the motion.  The learned gentleman commenced by stating that the case he was now called upon to answer presented different features from the one brought before the Court on a former day.  By the rule which had been issued, when the case was last before the Court, his client was called upon to answer a charge of libel against Mr. Allan.  That rule, however, had been since altered, and the charge was now, that the publication complained of tended to obstruct the course of justice by prejudicing the minds of the Jurors who were to try a pending action.  He, however, contended that, upon a review of the whole of the article, it was not of such a nature as would warrant the Court in attributing to it any such tendency.  If the present application had been for an information for a libel on Mr. Allan personally, he would have felt it his duty to advise his client to let it go without showing any cause; inasmuch as, from the rule laid down by the Court in such cases, under the New South Wales Act, that they were bound to grant an information upon a prima facie case - it was, in his opinion, quite useless to adopt so troublesome and expensive a course.  But the present charge of attempting to obstruct the course of justice, he trusted that he would be enabled to show their Honors that any such tendency or object could not be collected from the publication in question.  The learned Counsel then read the article complained of, and contended that it consisted wholly of a statement of facts, avowedly published for the purpose of disavowing the truth of a rumour that had obtained circulation, that a previous article - the one for which an action was pending - had been published with a malicious motive, in consequence of something which had taken place at a Scotch dinner when the health of Dr. Lang was proposed.  This was its sole object; and he would ask the Court whether an individual, merely because he happened to be the editor of a newspaper, was to be tied up from defending himself against an imputation of this nature?  Besides, when was this article published?  It was published on the 11th of February - four days before the term commenced, and several weeks before a jury could be empannelled (if ever one would be) to try the case which its alleged tendency was to prejudice.  All the cases of this nature, in which Courts had ever interfered, was when the publication took place in assize towns, when all the parties before whom they were to come were already assembled.  The case relied upon, on the other side [Rex v. Joliffe. T. R.], wherein the opinion of Lord Kenyon was quoted, proved this.  There the handbills, which were circulated, appeared on the very eve of the trial, when the jury and witnesses were all assembled; and so was it in every case on the subject to be found in the books.  In this case no jury was empannelled - none could be for more than a month after the publication.  But he also contended that malice, or corruption, must be shown before the Court would grant criminal informations; in support of which, he referred to the case of the King against Stainsbury -

The Court here observed that that was a prosecutor against a magistrate for something done in the execution of his office.  In such cases magistrates, though they might err, were not liable, criminally, unless corruption or malice could be shown.

The Solicitor General said that, at all events, the defendant, by his affidavit, had completely negatived any such motives; and he submitted that the Court was bound to take his explanation, in the absence of anything sown to the contrary [Rex v. Watson, T. R.]; otherwise there could be no use in calling upon him to purge himself of the charges imputed to him.  He submitted that the case, if it would at all be held to be of the character imputed to it, came within the summary jurisdiction of the Court, as a contempt, interested, it was open to him to apply to the Court to postpone the trial on that ground; but he submitted that nothing whatever could be collected from this publication, of such a nature as would warrant their Honors in granting a criminal information.

Mr. Windeyer followed on the same side; and contended, on the authority of several cases, that the time at which such publications took place, was a material point for the consideration of the Court.  He also contended that the article in question, so far from having the effect of prejudicing the complainant's case, was in fact a censure upon a great majority of the community, from which the Jury who might try it (if ever it should be tried) must be selected.  It was calculated to do anything but conciliate the Jury, or the Judges either, who might have to try the case.

Mr. Foster was not called upon to reply.

After the Judges had consulted for a short time

The Chief Justice said, the Court was of opinion that no cause had been shown why the rule should not be made absolute.  They abstained from making any observations on the case, as it would probably come on for trial before the Court; but they would observe, that they did not agree in the argument with respect to the time of publication, as it had been put from the Bar.  Neither did they think that the Court was bound by the explanation as to his motives given by the defendant.  The Court was to take into its consideration the probable tendency of the publication, whatever the motive of the defendant might have been.  - Rule absolute.

Counsel for the applicant, Mr. Foster; for the defendant, the Solicitor-General and Mr. Windeyer.

 

Notes

[ 1] See also Australian, 16 February 1836; Sydney Gazette, 16 February 1836.  For comments, see Australian, 23 February 1836 (``Domestic and Miscellaneous Intelligence").  The trial was postponed until the next term (Australian, 25 March 1836; Sydney Gazette, 24 March 1836), but there appears to be no record of it being held.

[ 2] See also Australian, 23 February 1836; Sydney Gazette, 25 February 1836.

[3 ] See also Australian, 8 March 1836 (rule absolute granted); Sydney Gazette, 10 March 1836 (claiming, inaccurately, that the motion was refused).

Published by the Division of Law, Macquarie University