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

R v Hardy [1836] NSWSupC 12

criminal libel - criminal procedure, necessity for counsel - reception of English law, criminal procedure - barristers, allegation of bias

Supreme Court of New South Wales

In banco, Forbes C.J. and Burton J., 15 February 1836

Source: Sydney Herald, 18 February 1836[ 1]

John Lamb, Esq., of Sydney, came forward, and addressing their Honors, said, he had a motion to make, for a rule calling upon Mr. John Richard Hardy, Editor of the Australian newspaper, to show cause why a Criminal information should not be filed against him for a libellous publication contained in a late number of that paper.

Just at this moment, Mr. Therry, who had been engaged at the Criminal side of the Court, entered hastily, and addressing their Honors, said he objected to the application being made in this form, namely, by Mr. Lamb in person.  The learned Counsel cited the case of the King at the relation of Hunt, against the Magistrates of Lancashire, [1st Chitty, 602], wherein it was held that all prosecutions in the name of the King, must be instituted either by a law officer of the Crown or by a Barrister of the Court, who is in the character of a public officer.  The case to which he alluded arose out of the celebrated Manchester affair.

The Chief Justice said he remembered that case having been cited in this Court before, and that he should like to have an opportunity of consulting his brother Dowling upon the point.

Mr. Lamb submitted, that if he was to be stopped upon the authority of such a rule as that brought forward by the learned counsel opposite, it would, particularly in this Colony, amount to a denial of justice.  The number of Barristers here was very limited; and it was not too much for him to assume that many of them entertained those prejudices upon particular questions, which would prevent him from having that confidence in them which would induce him to put his case into their hands.  As a matter of fact, he had offered his brief to Mr. Wentworth, who refused it; and he did not know that he might not meet with a similar refusal from other gentlemen of the bar.  Was he to be compelled to hawk about his brief from barrister to barrister, until he happened to meet with one who might accept it?  He came into Court quite unprepared to meet any such objection as that by which he had been met in the outset; and certainly the Court had not promulgated any rule upon the subject.  He also submitted that there were precedents in support of the course adopted by him.

Mr. Therry contended, that this Court was bound by the practice of the Courts at home, in cases of applications of this nature; and what that practice was had been declared and established in the case which he had cited, whatever deviations from it might hitherto have taken place in this Colony.

Mr. Lamb would ask their Honors whether he was to be libelled, as he conceived he had been in the publication of which he complained, and receive no redress, unless he chose to put his case in the hands of a barrister in whose independence he might not place confidence?

Mr. Justice Burton thought that Mr. Lamb ought first to have laid before the Court some evidence of the libellous publication.

The Chief Justice was certainly of opinion that some rule should be laid down for the preservation of order and decorum in the proceedings of that Court.  He did not think, according to the practice at home - and by that practice this Court was bound to abide, - Mr. Lamb was justified in making his application in the present form.

Mr. Therry suggested that it was competent for Mr. Lamb to proceed against the party complained of, at the Police Office.  The Magistrates had jurisdiction in cases of this nature, as in any other case of misdemeanor.

Mr. Justice Burton observed that, even in that case, and that depositions were sent up by the Magistrates, Mr. Lamb could not be allowed to address the jury.

Mr. Windeyer said, as the junior barrister, he ought to apologise for addressing the Court, but he thought he would be pardoned for so doing, as amicus curae.  Without adverting to what had fallen from the applicant respecting this want of confidence in the barristers of the Court, he would suggest to their Honors whether the applicant was not justified in the course adopted by him, under the New South Wales Act.

The Chief Justice. - We have got the Act before us.

Mr. Sydney Stephen thought that the application could not be granted on the motion of the defendant in person.

Mr. Mackaness addressed the Court with considerable warmth against entertaining the motion.  No just ground whatever had been shown to authorise the Court in departing from what was clearly the established practice in England:  There were but few barristers in this Colony; and although he himself was perfectly indifferent about the matter, he thought that the Court was bound to protect them in their rights, and not let in applications of this nature.  Their Honors were bound to see that something like decorum was preserved in their proceedings, and to provide that the Court should not be converted into an arena where every man might occupy the public time in the discussion of matters of which he knew nothing.  The applicant had stated, as a reason for appearing in person, that Mr. Wentworth had refused to take his brief, and that he had not confidence in the other Barristers of the Court.  It was the fact, however, that Mr. Wentworth had declined holding any more briefs for any person; but was it to be endured that the Court should be told that there was no other gentlemen of independent principles at the bar?  He (Mr. M.) knew that there were many who would not shrink from doing their duty, no matter who might be involved in the case, or from making such remarks upon it as the occasion might call for.  He had no personal interest in the matter - it was business of some importance to himself that brought him to the Court at all to-day - but he would speak for and defend the bar, and call upon the Court to prevent the innovation upon their rights which was attempted to be established in this case.

The Chief Justice, after consulting with Mr. Justice Burton, called upon Mr. Lamb to say if he had anything farther to offer in support of his application to the Court?

Mr. Lamb said that he had, and was about proceeding with his case when he was interrupted by

The Chief Justice, who stated that he misunderstood the Court.  The Judges required to know whether he had any other argument to offer in support of his claim to be heard in person.

Mr. Lamb replied that if the case were put off, he would be prepared with certain affidavits in support of his claim, upon the necessity of the case.  But he again submitted to their Honors that the rules adopted in such cases in England, were not applicable to the state of society here.  It was well-known to every person, even of a limited residence in the Colony, that many of the barristers of that Court was embued with a certain political bias, which, in many instances might induce a suitor to hold the belief that, whatever might be their general character for independence and talent, there were certain circumstances under which it was very probable it would not be demonstrated.  Besides he might, have a doubt of their ability to do him justice; and, therefore, however he might be willing to risk a want of independence, and the possibility of the influence of party feeling, he could not feel himself safe in entrusting his case in such hands.  He would also submit to the Court, that he might not, posssibly [sic], be in a condition to employ a Barrister; and, upon that account alone, he contended that to refuse his application in person to the Court, would be, in effect a denial of justice. 

The Chief Justice said, that the Court had made up its mind as to the course it was bound to pursue.  There was no doubt whatever, that an application of this kind would not be entertained at Westminster; and the Supreme Court of this Colony was bound to follow the same course of proceeding as is adopted in the King's Courts in England.  There was nothing in the Act of Parliament for the administration of justice in this Colony, which altered the form of proceeding by criminal information, except in so far as the Court was not bound to exact an exculpatory affidavit from the party applying, which he would be bound to make in the Mother Country.  The Attorney General stood, in this Colony, in place of a Grand Jury; and before a party could be allowed to depart from the established rule of proceeding in an application for a criminal information, it should be made to appear to the Court that, without its interposition there would be a manifest denial of justice.  It should be shown (which was not shown in this case) that the Attorney General had been applied to, and that that officer had refused to file an information; and also that the party applying was not in a condition to comply with those requisitions which the Courts laid down in the form of proceeding which is now sought for.  In such a case, the Court would, no doubt, take care to adopt some mode by which the ends of justice might be attained; but as no such case had now been laid before the Court, it felt bound to refuse the application in its present form.

Mr. Justice Burton said he perfectly concurred in what had fallen from the Chief Justice.  The applicant was bound to place before the Court some reasons upon which it could justify itself in departing from the established mode of proceeding in such cases.  It should have been shown on affidavit, that an application had been made in the ordinary course, to the Attorney General, to file an information, and that he had refused to do so.  It should also have been shown that the party presenting himself before the Court was not in a condition to obtain the aid of a barrister, and that a failure of justice would take place in consequence.  In such a case, the Court would, no doubt, take care that, upon such affidavits as it would require being laid before it, that justice should be done.  But the applicant could be allowed to do no more than file his affidavits - he could not be allowed to say one word in the way of address to the Court.  This was a privilege of barristers, who were officers of the Court, who were presumed to understand the law, and had liberty of speech which could not be tolerated in a private individual.  The Court was bound to see that order and decency were preserved in its proceedings, which would not be the case if the doors were opened to applications of this nature.  For these reasons, as he did not see that any injustice would be done thereby, he concurred in opinion with the Chief Justice, that this application should be refused. - Application dismissed.


In banco, 16 February 1836

Source: Sydney Herald, 18 February 1836[2 ]


The King, at the relation of John Lamb, Esq. v. John Richard Hardy, Esq. - In this case, Mr. Foster rose to move for a rule to show cause why a criminal information should not be granted against John Richard Hardy, Esq., editor of the Australian newspaper, for a libellous publication reflecting on the character of John Lamb, Esq., a merchant of Sydney.  The learned Counsel is an able address stated the circumstances under which the alleged libel was published, which were as follow:- A new Commission of the Peace was lately issued by his Excellency the Governor, in which the name of Mr. Lamb, who had been for several years a magistrate of the territory, was omitted, without (as he conceived) any just cause.  It was virtually a dismissal from an office which Mr. Lamb had held for a number of years; and that gentleman, conceiving that his character was affected thereby, wrote to the Colonial Secretary requesting an explanation on the subject, and was informed by that officer, in reply, that his Excellency the Governor did not choose to assign any reasons for the course he thought proper to adopt.  Upon this answer, said the learned Counsel, I shall make no comment, as it must be considered as the answer of the Governor, who is not bound to assign reasons for the exercise of his authority.  Mr. Lamb, however, wishing to shew his late brethren in office that he had not shrunk from inquiry, but had in fact courted it, sent a circular letter to the magistracy of the Colony, containing a copy of his correspondence with the government.  These letters, I am sure your Honors will admit, are very temperate, and only such as the occasion called for.  Mr. Hardy republished them, and appended a reply such as, he says the Governor might have written, had he thought fit.  [The learned Counsel here read the letter complained of.]  The second paragraph, your Honors will perceive, is a gross libel on the Governor himself, inasmuch as it charges that high officer with having communicated to the Secretary of State certain reasons why he thought proper to dismiss Mr. Lamb from the Magistracy - those reasons amounting to a justification of such an act of gross injustice as it is impossible to suppose that His Excellency would be guilty of.  In fact, your Honors, Mr. Lamb is charged with having perverted his power as a magistrate to political purposes, on the trial at the Police Office of a transported convict named Watt, who had been sent to this country for embezzlement to a large amount, committed upon his former employers, Messrs. Morrison and Co., of London - an allegation which is expressly denied upon oath by Mr. Lamb, in his affidavit taken before the Court this day.  In fact, your Honors, Mr. Lamb is charged, in his capacity of a magistrate, with having attended at the Police Office to subvert justice and to effect a political purpose.  These charges that gentleman has denied in an affidavit which I shall presently place before the Court; and I would, therefore, ask your Honors whether it is to be borne that an Editor of a paper is to disseminate several hundreds of copies of such a libel as this?  Perhaps in the Colony much harm would not be done to my client's character by such a publication; but I put it to your Honors to say, what would persons living at a distance, and unacquainted with the facts, think of it?  Why, they would consider him unworthy of the respect and confidence they had hitherto considered him deserving of.  What would your Honors say if such observations were made on your conduct in this Court?  And although the Magistrates below have an inferior jurisdiction, I am sure that this Court will not suffer such improper remarks to be made of them, in the exercise of it.  Had this attack been made on Mr. Lamb in his private capacity, he could afford to bear it, or if he had sought redress it would be by a different form of proceeding; but as it reflects on his conduct as a Magistrate he applies for a rule to show cause why a criminal information should not be filed, and which, after the case I have submitted to your Honors, this Court, I am sure, will not deny.  The learned counsel having cited an authority in support of his application, submitted that he had shown sufficient to entitle him to the rule prayed for.

Rule nisi granted, returnable on Saturday next.


In banco, 27 February 1836

Source: Sydney Herald, 29 February 1836[3 ]


Saturday. - The King, at the prosecution of John Lamb., Esq., against John Richard Hardy, Esq.

In this case, Mr. Foster moved that the rule nisi granted on a former day, be now made absolute.

The Solicitor-General (with whom was Mr. Therry) appeared to show cause against the motion.  The learned gentleman commenced by entering into a detail of some of the various matters which led to the publication which the applicant viewed as a libel upon his character.  It appeared that, some time since, His Excellency the Governor, in the exercise of the power vested in him; thought proper to issue a new Commission of the Peace, in which the names of several gentlemen, who had previously been of the Magistracy, were omitted - among others that of the present applicant, Mr. Lamb.  That gentleman said the learned counsel, conceiving that the omission of his name was intended as an act of indignity to himself personally, thought proper to address a letter to the Colonial Secretary, enquiring that a reason should be assigned why an omission took place; and was informed, in reply, that the Governor did not consider himself bound to assign reasons for the exercise of his prerogative in the appointment of Justices of the Peace in this Colony.  That His Excellency was not so bound, it was hardly necessary to contend - and that he ought not to do so in any case, for various obvious reasons, was equally clear.  However, Mr. Lamb thought proper, upon the receipt of the letter from the Colonial Secretary, to embody that document in a circular from himself, addressed to the Magistrates of the Colony, and published in the newspaper; wherein he represented the act of dismissing him from the Magistracy as an improper interference by the Governor with the freedom of thought and action on he part of the Magistrates.  The defendant before the Court was the editor of a public journal, and as Mr. Lamb had placed himself before the public - as he had, in fact, by the publication of his circular, challenged discussion - he (the defendant) in the exercise of his right as a journalist, published a letter in reply to the applicant, wherein certain assumed, or supposed, reasons were given, such as would justify the Governor in omitting the name of Mr. Lamb from among the number of the Magistracy - the letter, in fact, purposed to be such a one as His Excellency might have written, had he thought it proper, or his duty, to enter upon any justification of the measure he had adopted.  This was the alleged libellous publication for which their Honors were called upon to grant a criminal information.  [The learned counsel here read the publication complained of, which imputed to the complainant, among other matters which were alleged as justificatory of his dismissal from the Magistracy, that during a certain investigation at the Police Office into charges preferred against a convict named William Watt, he had attended the Bench from day to day - he not having attended there for many months before; that his object was, without reference to the guilt or innocence of the accused to elicit something which would bring the Governor and Colonel Wilson into contact with Watt; and that his whole conduct on the occasion evinced a desire to make the forms of justice subservient to a political purpose, and to cast a slur upon the Government.]  But the learned counsel would ask the Court to look at the whole of the circumstances of the case, and particularly at the manner in which these statement were met by Mr. Lamb, in his affidavit.  With respect to the statement in this publication, that the complainant had not attended the Police Office, as a Magistrate, for several months before or since the occurrence alluded to, the most that was alleged against him was an act of omission.  He was not aware that Mr. Lamb was bound to attend there, but he would call the attention of the Court to the fact, that he did not, in his affidavit today, deny the statement that he had not attended for many months prior or subsequent to this particular occasion.  He did not deny this, - and he (the Solicitor-General), put it to the Court, whether the inference drawn by the defendant was not a legitimate one - namely, that he had gone there at that time with some particular object in view?  The acting of Magistrates, in the performance of their official duties, should be, like Caesar's wife - not only pure, but above suspicion.  He did not impute improper motives to Mr. Lamb - he might have been present by accident - he had a right to be present if he pleased - but he again put it to the Court, that being present upon that particular occasion, and not having been present for many months before or since, did look suspicious, to say the least of it.  The complainant had denied that his motives were to elicit something which would cast a slur upon the Government; but men's motives were not easily to be ascertained; they must, nearly in all cases, be collected from their acts, and if those acts were suspicious in themselves, the defendant had a right to animadvert upon them, particularly when the complainant had himself sought and challenged the discussion.  One of the passages relied upon on the other side, as libellous on the complainant, was the assertion that he had availed himself of the forms of justice as the means of effecting a political purpose; but he (the Solictor General) submitted that here was no imputation  of criminality. - what if he did so avail himself of the forms of justice?  It was not asserted that he had done injustice in the case.  But the learned Counsel would ask their Honors whether Mr. Lamb appeared before the Court in such a situation as would entitle him to claim the redress he sought by this course of proceeding?  Did he come into Court with clean hands?  Had he not, by his own act, provoked the animadversions of which he now complained?  It was denied, upon the affidavit of the complainant upon which this rule was obtained, that his motive, in anything done by him, was to cast a slur upon the Government.  Was not his charge against the Governor of a desire to interfere with the freedom of thought and action on the part of the Magistracy - was not that casting a slur upon the Government?  Was it not a libel upon the Chief Magistrate of the Colony to assert that he interfered with the independence of the Magistracy? - and was the complainant, the admitted author of that libel, to be allowed to come into that Court and claim the extraordinary remedy of a criminal information at the hands of their Honors?  An individual seeking this mode of redress in England would be compelled to deny the truth of the charges alleged against him; and would it, he asked, be held here that the aggressor - the author of the first libel - should prick up his ears at animadversions which he had himself provoked, and come into that Court to ask for a criminal information?  Here was a charge made, tending, if any thing could, to bring the Governor of the Colony into contempt - a charge that His Excellency had interfered with the independence of the Magistracy; and he would put it to the Court that a more libellous charge could not be made.  Then what had the defendant done?  He had repelled the charge - he had suggested that the very suspicious acting of the complainant himself would furnish more likely reasons for the course which the Governor had pursued - this was his offence - this was the ground upon which the Court was asked to grant a criminal information.  He contended that it was a duty in every man to protect the Government from charges of this nature, and from being brought into contempt.  There was a moral duty cast upon the defendant, as a public journalist to pursue the course he had adopted; and the learned counsel was satisfied that the Court would not, under such circumstances, grant the extraordinary remedy of a criminal information against a publisher who had the manliness to step forward and shield the Government of the Colony from the libellous imputations which the complainant had himself, in the first instance, cast upon it.  The complainant did not come into Court with clean hands - he appeared there as the publisher of a libel on the head of the Government - his affidavit did not contradict the charges against him in such a manner as would entitle him to the remedy he sought - he was the first aggressor - and under all these circumstances, the learned counsel submitted that this rule ought not to be made absolute.

Mr. Therry followed on the same side.  The learned gentleman commenced by stating, that the Solicitor General having gone so minutely into this case, he would not trespass upon the time of the Court by any very lengthy observations upon it.  He should merely advert to those parts which appeared to him to be most worthy of notice, and would carefully abstain from all remarks which might lead to any feeling of excitement.  He would abstain the more particularly from this course as he happened to be the party who opposed the complainant in his attempt to apply to the Court in person.  He was actuated solely on that occasion by a desire to preserve that order and decorum in the Court, which was so necessary in the due administration of justice; and which he felt could not be preserved if individuals were permitted to come into Court personally under feelings of excitement engendered by supposed wrongs.  For the same reasons, therefore, which influenced him on that occasion, he would now carefully abstain from any exciting subjects, and briefly address himself to the merits of the case as it had presented itself to the Court.  The learned counsel's address, however, was little more than a recapitulation of the arguments made use of by the Solicitor General.  In no respect, he contended, did the affidavit of Mr. Lamb deny the truth of the allegations contained in the publication of which he complained; and he submitted that if the Court held that, in no case, would it be required that a sufficient affidavit should be filed, in order to entitle a party to this mode of proceeding, it would be far better to alter the practice altogether, and to grant informations at once, without putting parties to the trouble and expense of showing cause.  He was aware that whether a publication be true, or whether it be false, it might still be libellous; but then the complaining party had his ordinary remedy to resort to - he could go to the Police Office where it would be dealt with as in all ordinary cases - but he contended that when this extraordinary mode of proceeding was sought for, the Court ought to look into all the circumstances of the case, and see that the party applying had entitled himself to it.  True, Mr. Lamb had denied, in his affidavit, that he was influenced by any motive to bring the Government into contempt; but men's motives were usually hidden from general observation.  Like the notes of an organ they remained concealed, while the gilded counterfeits were exposed to public view.  The learned counsel then adverted to the publication, parts of which he read, and contended, that the assumptions therein contained were perfectly legitimate conclusions from the facts of the case alluded to.  Mr. Lamb had denied that he attended at the Police-office, on the particular occasion to which this publication referred, in any other capacity than that of a Magistrate, willing and anxious only that justice should be done; but it was the fact - not at all denied - that his attendance there on the occasion alluded to, was a solitary instance during a period of several months both before and since.  There were at that office three paid Police Magistrates, whose duty it was - and who had the power - to decide upon all cases coming within their jurisdiction.  But on this particular occasion, the public beheld Mr. Lamb on that Bench, for the first time during many months - appearing not alone, as a luminary accustomed to shine there, but like a comet with a tail composed of many minor stars, all equally out of their usual orbit.  Were not these acts suspicious?  Were they not such acts as a public journalist had a perfect right to animadvert upon, and from which he might be allowed to draw legitimate conclusions?  The learned gentleman concluded by stating to the Court, that although party feeling might have succeeded elsewhere in producing an excitement in this case, he trusted that the Court would not permit itself to be led astray from the justice of the case - that it would close its doors against all excitement, and deal with the present application upon its merits only - not suffering that place to be made the arena of political or party feeling, but dealing with the case as one resting solely upon its own merits, and the particular circumstances under which it was presented to their Honors.

The Court did not call upon Mr. Foster to reply; and that gentleman seemed to be in no haste to do so.

The Judges directed the papers to be passed up; and after a brief consultation,

The Chief Justice said - ``The Court has come to the determination that no cause has been shown why this rule should not be made absolute.  It is, therefore, made absolute.  We do not feel ourselves called upon to make any obsesvations on the case, as a similar one is not very likely again to come before the Court.  We confirm the rule, and send the ``case for trial." - Rule absolute.



[ 1] See also Australian, 16 February 1836; Sydney Gazette, 16 and 18 February 1836.

For commentary, see Australian, 19 February 1836 (under ``Domestic and Miscellaneous Intelligence"; Sydney Herald, 25 February 1836.

[2 ] See also Australian, 19 February 1836; Sydney Gazette, 20 February 1836.  For comments, see Australian, 23 February 1836 (``Domestic and Miscellaneous Intelligence").

[ 3] See also Australian, 1 March 1836; Sydney Gazette, 1 March 1836.

Published by the Division of Law, Macquarie University