Skip to Content

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

Wighton v Howe [1836] NSWSupC 20

libel - civil procedure, application for jury - reception of English law, civil procedure - jury, choice of - Sydney Gazette, management of - Sydney Herald, hostility to Forbes C.J. - Forbes C.J., Sydney Herald hostility towards - juries, former slaves to be members of? - criminal procedure, delay in prosecution

Supreme Court of New South Wales

In banco, 20 February 1836

Source: Sydney Herald, 22 February 1836[ 1]

Wighton v. Howe. - In this case, which is an action for a libellous publication in the Sydney Gazette, the Solicitor General moved, on the part of the defendant; that it be tried by a common jury.

The Court intimated to the learned counsel, that all applications for jury trials must be made, in conformity with a rule of Court, on the first day of term.

The Solicitor General said he was aware of that; but the fact was that the case had not been at issue on the first day of the present term; and, therefore, he would not have been in a condition to make his application for a jury before to-day.

Mr. Sydney Stephen contended that the rule of Court was imperative, that all application for Jury trials must be made on the first day of term.  He denied that this case was not at issue on the first day of term.  He contended that it was.  A declaration, plea, and rejoinder, were all filed before the first day of the present term; but the other party had chosen to do, what was not necessary to do, under the rules of practice of that Court - namely, to file a similiter, in order to afford them an opportunity of swearing that the case was not at issue.

The Solicitor General contended that the practice which had been pursued in this case, was in accordance with the practice in England; and that the practice there must be held to be the practice here, unless specially altered by a rule of Court, and, therefore, the course pursued was perfectly justifiable.

Mr. Justice Burton was of opinion that the case was at issue after the replication was filed.

The Solicitor General thought not but, at all events, the fact was, that his client had been served with notice that a motion for a common Jury to try the case would be made on the first day of term - that no such motion had been made - and that it was obviously the intention of the other side to throw his client off his guard, and prevent him from moving for a Jury trial.

Mr. Justice Burton said, that defendant's Counsel had an opportunity of knowing, on the first day of term, whether a motion for a jury had been made.  He might have enquired of the Clerk of the Court; and if no motion had been made on the other side, he might have moved himself.

The Solicitor General said, he could not have done so; because, on either side, two day's notice of an intention to move for a jury must be given.  He had no doubt that the notice served upon his client was intended to throw him off his guard.  The plaintiff in this case was a Magistrate of the Colony, aad the defendant was, therefore, naturally anxious that the trial should not be by assessors, who must be Magistrates, and might be presumed to have a bias.

The Chief Justice thought it safest, under all the circumstances, to adhere to the rule of Court.  It appeared that the case had been actually set down for trial before assessors.

The Solicitor General said, that was evidently the object of the other side.  They showed it to have been so by the opposition offered to the present motion.

After some further discussion, it was consented to, on the part of the plaintiff, that the case be tried by a Special Jury.

 

Dowling J., 15-17 March 1836

Source: Sydney Herald, 21 March 1836[2 ]

 

Tuesday, and two following days. - Before Mr. Justice Dowling and a Special Jury.

Wighton v. Howe - This was an action on the case, to recover compensation in damages for certain libels, of and concerning the plaintiff, published in the Sydney Gazette of the 8th and 20th of August, 1835; of which paper defendant was printer and publisher, as well as part proprietor.  The libels charged the plaintiff, who is a landed proprietor at Williams's River, and a Magistrate of the Territory, with having, on various occasions therein set forth, sold spirits, illegally, to divers persons whose names were also set forth; and also with other acts disgraceful to his character as a magistrate and a gentleman; and tending to degrade him in the estimation of society.

The defendant pleaded a justification - undertaking to prove the truth of the various allegations contained in the alleged libellous publications.

Although the trial of this cause lasted nearly three days, and an immense body of evidence was gone into, the facts at issue were so few and plain, that we think it unnecessary to occupy our space by reporting the voluminous examinations of the witnesses; but merely to give a general outline of the case, embodying a detail of the most material circumstances which came out in the course of the prolonged enquiry.

The plaintiff in this case, was John Wighton, Esq., J.P., and the defendant, Mrs. Ann Howe, of Sydney, publisher, and one of the proprietors of the Sydney Gazette.  Mr. Stephen (with whom was Mr. Foster) having stated the case to the jury at considerable length, called witnesses to prove the publications - their application to the plaintiff, and their tendency to degrade and hold him up to public contempt and disesteem.

The Solicitor-General (with whom was Mr. Therry) then addressed the jury on behalf of the defendant, and in the course of his observations endeavoured strongly to impress upon their minds that there had been no participation in the publications complained of, on the part of the man, Watt, whose name has been so often before the public, and who is now said to be the husband of the defendant.  She, he said, was a wholly innocent publisher - the article complained of having been surreptitiously inserted in the paper by an individual who had no authority to do so.  The learned Counsel, however, added that, if he were rightly instructed, he should be able to prove the truth of every tittle contained therein; and proceeded to call witnesses for that purpose.

From the evidence adduced, it appeared that, on the 26th of July, 1835, being Sunday, notice was sent by the plaintiff to a number of persons in his neighbourhood, that the Rev. Mr. Wilton would perform Divine Service that day at his (plaintiff's) residence, called Brandon.  Several persons attended accordingly; but, the clergyman not arriving, they repaired to the house of a blacksmith, named Moore, a tenant of the plaintiff's, and living not many yards from his house.  Among the party, was a man named Sinclair, then a sort of prisoner at large, on a charge of cattle stealing, who had been apprehended by warrant from the plaintiff.  According to this man's evidence the party at Moore's were supplied with spirits, by a bottle at a time, frequently during the day, from the plaintiff's residence - Moore's wife being the person who procured it, by passing through a fence which separated her house from the plaintiff's garden.  This witness also stated, that when he was apprehended by a constable, named Shaw, and brought to Moore's, he gave Shaw six shillings, told him to go to a man named Graham, a servant of the plaintiff's, living at his house, for a bottle of spirits, and that he returned with a bottle of gin.  Several other witnesses also state, that they had obtained small quantities of spirits from the plaintiff, at his house, and at various times, for which they had paid; and that they were sometimes in the habit of sitting down and drinking in the plaintiff's parlour, and in his presence.  A witness, named Bartie, also swore, that he had sent for and obtained spirits at the plaintiff's house; and a man, named Munro, who was corroborated by a youth (his son), also stated, that he was in the habit of obtaining spirits whenever he sent for them.  Other witnesses also spoke to the same effect.  Upon the testimony of Sinclair, it appeared besides, that after the publication of the first libel, which was in the shape of a letter to the editor, the plaintiff visited him in the Sydney Gaol, where he was under committal for cattle-stealing, and wanted him to sign some paper, which he (Sinclair) supposed had some relation to these charges, and which he refused to sign, remarking to the plaintiff, that he had better not publish anything of the sort, as it would provoke ``a replication which would be worse for him."  Sinclair, Watt, and Lang (previously employed at the Gazette Office, and since transported for forgery), were all confined in Gaol at the time.  Mr. Haswell, the late Editor of the Gazette, proved, that the publications had been applied for, and granted, against him; and he had given up such letters relating to them, coming from a Mr. Reid, then a Magistrate, on the understanding, as he believed, that no proceedings would be taken against the ``Gazette people."  A man named Haldane, stated, that he also gave up certain other letters upon a similar understanding.  These last two witnesses also stated, that they did not think, and had every reason to believe, that the defendant had not been indemnified by any person.  A man named Boylan, also swore, that he obtained spirits from the plaintiff, and, upon an affidavit, wherein he denied anything of the sort, being put into his hands by the opposite Counsel, he stated, that he made it at the instance of the plaintiff when in a state of intoxication, and did not know its contents.

To rebut the plea of justification, a number of witnesses were called by the plaintiff's counsel, who flatly contradicted those on the other side.  Some of them, in the service of the plaintiff, denied that spirits were ever, on any occasion, sold; and others admitted, that they had received spirits, but it was only when they chose to draw them instead of money, for various work done, as had been the case with many of the defendant's witnesses.  It was also shown, that the witness Bartie, entertained strong feelings of hostility towards the plaintiff; and that he had offered bribes on several occasions to various persons, to induce them to endeavour to obtain spirits of the plaintiff, for the avowed purpose of having him fined; one of them being the constable, Shaw, to whom he had offered two pounds in money, and an order on Mr. Reid for thirteen pounds, thereby securing him the payment of half the fine paid to an informer on the conviction of a party for selling spirits without a license.  Shaw also stated, that Sinclair did give him six shillings to procure a bottle of spirits, and that he went to Graham, at Mr. Wighton's, and was told by him that his master did not sell spirits.  Graham corroborated this statement; and it was also sworn by Shaw, that Bartie, who came to see Sinclair, shortly after he was apprehended, said to him at parting, ``Never mind, we'll do him (Wighton) yet."  Others of the plaintiff's servants also admitted, that some of the defendant's witnesses had received spirits at various times, but that it was always as a present, at the settling of various accounts - payment of rent, for instance, or for various articles supplied from a general store kept by the plaintiff, or in lieu of work done.  Mr. F. R. Nichols, the plaintiff's attorney, was put into the box to explain the alleged breach of faith in bringing the action against the present defendant, and proved, that although promised, no letters had been given up which would fix the publication on Mr. Reid, or any other person; he also stated, that he had heard from one of the ``Gazette people," that the defendant was indemnified.  Mr. Robert Foster, an Attorney of the Court - was also called] and after protesting (for which he was complimented by the Judge) against being compelled to reveal private conversations was compelled, most reluctantly, to admit that, an evening or two before, the witness, Bartie, asked him what expenses he would be entitled to from the losing party; adding, that if Mrs. Howe lost he would not charge her a farthing, as he was one of those who were ``indemnity" for her.

The learned Judge said he did not see the relevancy of such evidence.  The defendant must stand or fall by her pleadings.  If she sold poison by means of her servants, she must be held answerable for it.  Upon being pressed, however, His Honor consented (but not as a precedent) to receive the evidence of Mr. Nicol Allan, the defendant's attorney, who said he had it from her own lips that she was not indemnified; and that, with respect to the plea of justification, he had filed it on his own responsibility, from communications made to him by Bartie, as his attorney in an action with which he was threatened by the present plaintiff.  He had no means of communicating with the defendant, who was at Port Macquarie when the plea was filed; and it was Watt who instructed him by letter from Port Macquarie, to defend the action.  It was also in evidence that three several charges of spirit-selling were preferred by Mr. Reid and Bartie, against the plaintiff, before a Bench of Magistrates at Maitland, who dismissed them, and entered upon the records of the Court an opinion that they were utterly groundless; and in addition to this it appeared that not one of the witnesses brought forward in support of the present case for the defendant, though they deposed to acts of selling prior to the preferring of those informations, were produced by Bartie before the Magistrates.  And with reference to the affidavit produced against the witness, Boylan, as contradictory of the evidence given by him on the part of the defendant, it was proved to be one of a series obtained by the plaintiff for the satisfaction of the Governor, and that Boylan was no intoxicated when he swore it before Mr. Mitchell, a Magistrate, at the Green Hills.  It was also in evidence that the spirits obtained by the riotous party, at Moore's, on Sunday the 26th of July, was a portion of two gallons which were in the house - that the plaintiff was not at home during that day until near sun-down, and that shortly after his return, he ordered two of the rioters, who wee fighting within his view, into custody.

The Solicitor-General then replied to the evidence on the part of the plaintiff, contending that the plea of justification had been fully made out; adding, however, that there had evidently been a breach of faith in bringing the action against the present defendant, after the plaintiff had obtained possession of every document which would enable her to obtain an indemnity from Mr. Reid, whose letters had been proved to have been the foundation of the alleged libels.  No communications had been had with her with respect to the plea, which was put in by the attorney in his own discretion and without her concurrence or knowledge.  He characterized the evidence on the part of the plaintiff as utterly unworthy of belief, when opposed to the positive and conclusive evidence on the other side.  The plaintiff's witnesses, he contended, had, by attempting to prove too much, exhibited the close connexion which was known to subsist between knavery and folly.  The whole force of the other side had been exerted to impugn the evidence of Bartie, but he asked the jury to look at the candid and straightforward manner in which that witness had given his evidence, and say, if they could possibly believe that he was the man he was represented to be by the other side.  One roguish old woman had said something about his having made a tenthur to her.  He could not help calling to mind, when he heard her evidence and anecdote of Mr. Jekyll - afterwards Sir Henry Jekyll - which he had read somewhere; who, being engaged in a cause wherein the late Lord, then Mr. Erskine, was also engaged, when the latter was cross-examining just such another witness, and was convinced that she was swearing falsely, handed to Mr. E. a slip of paper on which he had written-

``Cease, Erskine, cease; that tough old jade,

``Will never prove a tender maid."

The learned Counsel concluded by stating even if the Jury should be of opinion that the pleas were not fully made out, that under all the circumstances - seeing that the defendant was neither cognizant of the publication nor of the plea - the smallest amount of damages would amply meet the justice of the case.

Mr. Stephen replied generally to the evidence and asserted that the line of defence set up on the other side was the greatest compound of bullying and crouching he had ever known.  Not one of the pleas - which seemed to him from the gross blunders they contained, to have been drawn with a view to being tried on Patrick's Day - had been substantiated by a tittle of evidence adduced in support of them.  The learned gentleman went through the whole of the evidence pointing out the various discrepancies; and said that a case of more gross conspiracy and perjury never was presented to a Court of Justice.  He was surprised at the anxiety which had been evinced by the Solicitor-General, to disclaim any participation, on the part of Watt, in these libels - he thought at the moment that he would be found to have had something to do with them, when at last it came out, on the evidence of the defendant's attorney, that Watt actually instructed him to defend the action!  Such, then, was the source whence the libels emanated - from the gaol, where Watt, Lang, and the witness Sinclair were all confined together.  And then, to designate the defendant as an innocent publisher!  If she had come into Court with that plea, perhaps the jury might view the case in a different light but she had not done so; up to the last moment she had persisted in the libel, by putting a plea of justification upon the record.  He contended that, under all the circumstances, it was a case in which the most exemplary damages ought to be awarded.

Mr. Justice Dowling was about to sum up the evidence, when

The foreman of the jury stated, that they would not trouble His Honor to read his notes; they had made up their minds as to matter of fact, and only desired to be directed on any point of law which the case presented.

Mr. Justice Dowling said he was not aware of any point of law upon which it was necessary to address the jury, except the mere definition of what constituted a libel; which was held to be anything which exposed a party to hatred, contempt, or ridicule.  In point of law he told them, that the publication before the Court - supposing they were of opinion that the pleas had not been made out - was as gross a libel as ever was published of any man, but more particularly a Magistrate.  It imputed to him acts, which, if true, would render the plaintiff unfit to hold His Majesty's Commission one hour longer.  It had been urged, that the defendant was an innocent publisher - that she was the unconscious instrument of these publications.  Yet up to the last moment she had attempted to justify them!  Why had she done this?  As Hamlet says somewhere, in reference to the players, ``What's Hecuba to him or he to Hecuba, that he should so weep for her?"  Why, if she had been the innocent, unconscious publisher of this libel, as she was said to be, did she persevere in justifying it up to the last moment?  But the jury nothing whatever to do with the case but as it was presented to them.  The defendant must abide by her pleas; and if the jury found that those pleas had not been made out, His Honor was bound again to tell them, that the publication was a gross libel upon the plaintiff; and the only remaining point for their consideration was the amount of damages they would award in such a case.

The Jury, after retiring for about half an hour, found a verdict for the plaintiff - Damages £500.

The learned Judge then ordered the witnesses for the defendant, Bartie, Munro, Sinclair, and Boylan, to be taken into custody, and committed to Sydney Gaol, to answer a charge of perjury.[ 3]

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

 

Notes

[1 ] The Sydney Herald, 4 January 1836, made another of its observations on the law concerning juries, blaming the law's supposed deficiencies on Forbes C.J.  It continued the theme in its editorial on 11 January 1836, mixing hostility to emancipists with naked racism towards former slaves.  See also Sydney Herald, 14 and 18 January 1836.  A letter from an unnamed correspondent to the Australian, 12 January 1836, replied to the Herald on the supposed proposal to transport former slaves from the West Indies.  It also responded to the Herald's attack on Forbes C.J.  See also Australian, 26 January 1836, and 8 March 1836.  On juries, see also the editorial of the Sydney Herald, 14 March 1836.  Forbes' well-known views on transportation and jury trial were repeated while he was in London in 1836 and 1837: see J.M. Bennett (ed.), Some Papers of Sir Francis Forbes: First Chief Justice in Australia, Parliament of New South Wales, Sydney, 1998, pp 251-256.

The hostility of the Sydney Herald towards Forbes C.J. became more apparent in a column in its issue of 25 February 1836, when it attacked his ownership of land at ``Muscle Brook" (Muswellbrook), and referred to ``political judges" in the preceding item.

See also Mudie 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."

[ 2] See also Australian, 18 and 22 March 1836; Sydney Gazette, 19 March 1836.

[3 ] On 21 May 1836, the four of them were still awaiting trial, when they were discharged.  Sinclair had been in gaol, while the others had bail.  Many others were dealt with in the same way that day.  Delays of this kind led Burton J. to call for a calendar of all prisoners awaiting trial: Sydney Herald, 23 May 1836; and see Sydney Gazette, 24 May 1836.

Published by the Division of Law, Macquarie University