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

Ex parte Attorney General, in re Stephens [1837] NSWSupC 27

newspaper reporting, contempt, attachment for - press freedom

Supreme Court of New South Wales

Dowling A.C.J., and Burton and Kinchela JJ, 1 June 1837

Source: Sydney Herald, 5 June, 1837[1 ]

Ex-parte the Attorney General. - The Attorney-General said that this was a rule nisi calling on the Editor of the "Herald" to shew cause why an attachment should not be filed against him for contempt of Court; but from that gentlemen being out of town the rule had not been served personally which it was necessary it should be; and as this was the first day of Term he would now move for a new rule.

Mr. Kerr said it might be shewn the rule could not stand, being granted out of Term.

The Attorney-General said there could be no doubt that the Court had the power to grant the rule; the case of the King v. Clements, where an attachment was issued by a Judge sitting at Nisi Prius, was exactly in point; but to obviate any difficulty he would move on the on the old affidavit that a fresh rule be granted.

The papers were then handed to the Bench, and after a few minutes consultation the Chief Justice said - I am clearly of opinion that in granting this rule the Court acted improvidently, for -

The Attorney-General said, that if the Court was about to decide against him he must claim to be heard; he had considered it a perfect matter of course the rule having been granted before -

The Acting Chief Justice - If you wish to be heard, go on, Sir,

The Attorney-General said, that if the Court thought they had acted improvidently in granting the rule, of course the Court had a right to change its mind and refuse to renew it; but as he had obtained the rule, on the precedent, not only of cases in the English Courts, but also of precedents established by their Honors themselves, if the Court refused to renew the rule he should consider the Court had changed it practice.  If the Court thought the rule should not be issued he must know by what cases the Court considered itself bound, for his guidance in future cases.  He had no particular predilection for attachments or any such proceedings; he might think that the Court had even stretched the practice of the English Courts, but the practice had prevailed.  The first case that came under his notice was, where the Court, on its own motion, ordered the Editors and Printer of the "Australian" to be brought before them for a contempt of Court, in having published some articles reflecting on the Judges, and directed the Attorney-General to file certain interrogatories, and the Attorney-General of the day obeyed; whether the directions of the Court were imperative on the Attorney-General it was not necessary now to enquire; the interrogatories were filed, and Messrs. Stephen and Nichols appeared, and the one who confessed that he was the author of the article was fined either £50 or £100; the sum did not matter, but the right of the Court to issue attachments for contempt, the principle, was well established.

Mr. Justice Burton said, there was no doubt as to the power of the Court to issue attachments in cases of contempt; the hesitation arose from a doubt whether the article was a contempt of Court.  The circumstances and language of the two cases were as different as possible.

The Attorney-General continued - Then there was the case of the Editor of the Colonist, whose conduct he had considered it his duty to bring before the Court, and an attachment had been issued for a libel on the Jury in a case in which the Editor was plaintiff.

The Acting Chief Justice - In that case the whole jury were pronounced to be as corrupt and base as the defendant.

The Attorney-General - It was all the same whether one of the jury or the whole jury were attacked.  He recollected that in pronouncing the judgment of the Court, the Chief Justice laid particular stress on jurors being intimidated from performing their duty; and he would ask whether it was not quite necessary that jurors should be protected? - they must be protected, or it would not be fair to fine them if they did not attend.  They must be protected from the libels of newspapers, if they returned a verdict contrary to what the Editor of a political newspaper might wish.

The Acting Chief Justice - But here the jury went out of their jurisdiction.

The Attorney-General continued - The reason of his applying for an attachment was obvious; juries, both special and common, were impanelled [sic] for the trial of issues, and they would sit before the case could be tried.  Had he filed an information it could not have been tried until August, and perhaps not then; and he considered it necessary that jurors should see that the Court would protect them.  He wished the jurors to immediately see that they would be protected, and therefore he had moved for an attachment because it would overtake the offenders more speedily.  If a Judge was libelled it was not to be presumed that he would be intimidated from performing his duty; for from his habits and station in life, he would be far above the reach of any libel; but jurors were very different - they were selected from all classes of society, from the mechanic to the Esquire, and it was not to be supposed that they possessed sufficient strength of mind to resist the imputation of newspapers.  Jurors would see by the present case, that they need not fear to do their duty honestly and fearlessly.  In "Starkie on Libel" it was laid down that in all cases where there were "insolent comments" on the Court, the Court should proceed by attachment, so that there was no doubt an attachment was the ordinary course where the Court was libelled; and although he considered there was great difference between the Judge and the jury, the jurors were part of the Court, as long as they were impanelled [sic], and entitled to the same protection.  The part of the article on which he moved, was at the end of an article on Mr. Bingle's case; the article commented on the part he (the Attorney-General) had acted, in the discretion he had exercised; he was quite open as a public Officer to the comment of any Editor, and it was not of that portion he complained.  If the Editor shewed him he had acted in error, he would pay attention to him; but while he conscientiously considered that the line of conduct he was pursuing was the right one, he would allow no Editor, nor any man else, to deter him from fulfilling what he thought his duty, or make him desert the even tenor of his way.  The jury were differently situated; they were selected from men of a humble class, and men might be injured in their trade by such articles, if allowed to go unnoticed.  He had done his duty in bringing the matter before the Court, and he was sure the Court would do the same, and whatever decision the Court came to, he was sure the public would be satisfied, and so would he.  The article pretended to be a commentary on what it termed an impudent rider of the jury.  This impudent rider was a remark of the jury written in the jury-room, and handed to the Judge when the verdict was delivered.  (The Officer of the Court informed Mr. Plunkett that the paper was not handed in, only read).  Whether the jury were right or wrong was nothing to the case; the jury considered it part of their duty to append the remark, and it was not to be expected that jurors could be acquainted with the legal technicalities of returning verdicts.  The portion of the article which he complained of as being a libel on the Court, was in these words - "We have also a word to say to the jury who sat in this case.  It shall be plain and open.  What authority had 'they' to tack an impudent rider on their verdict, in stating 'their' opinion that the accused partied had acted with impropriety?  The prisoners were charged before them with 'felony'; upon 'that' charge they were sworn to return 'a true verdict according to the evidence.'  Who constituted 'them' judges of the 'propriety' of the prisoners' conduct?  As far as 'propriety' goes, surely the prisoners were as good judges as the jury, who impudently pronounced upon it.  When we thus speak of the jury, we are compelled to speak of 'all' its members - nor is it unjust to do so, seeing that they all tacitly acquiesced in the extra-judicial verdict.  Still, however, it is but an act of justice to the majority to state, that the 'conscientious' scruples of Mr. Atwell Edwin Hayes - formerly a most obsequious government parasite, an now holding the appointment of a Government storekeeper, or something of the like dignified character, are said to have caused the jury to return so anomalous a verdict!"  What did the Editor mean by putting the words "conscientious scruples" in italics? was it not evident what they meant to insinuate.  He would submit that if one juror was singled from his fellows as one who pretended to have conscientious scruples and it was insinuated that he, under that pretence, for any sinister purpose, prevailed on the jury while in the box, for it must have been in the box that the rider was agreed to, to attach a rider to their verdict, that it must be a libel on the individual in the exercise of his duties as a juryman; and consequently a contempt of Court.  If the article meant anything, it must mean that Mr. Hayes, while in the jury-room, before the verdict was delivered, from base, improper, and political motives, induced the jurors to attach a rider to their verdict to the prejudice of the prisoners at the bar.  He was not acquainted with Mr. Hayes, but he might not be aware of the technicalities of English law: he might be an Irishman, or he might be a Scotchman.  Suppose he was a Scotchman, the Jurors there do not return verdicts the same as they do in England.  Where they are not satisfied of the prisoner's guilt, and do not entirely acquit him, they return a verdict of "not proven," a verdict entirely unknown to English law.  If the jury saw that the case was being made a political one - if they saw that political motives -

Mr. Justice Burton. - You had better keep to the article.

The Attorney-General - The whole article must be taken to judge of its intent; the Editors were endeavouring to make a political case, and the Court must read the whole of it; it echoed the speech made by one of the prisoners in his defence.  Whether Hayes did or did not suggest the rider, the Court had no means of ascertaining; but it was certain that the whole Jury must have agreed in it; and if Mr. Hayes was not protected in doing his duty between the prisoner and the Crown, could the Court fine him for not again appearing when summoned to act as Juror?  Could any man see himself called an obsequious Government parasite without feeling indignant?  Might it not injure his prospects in life; for if a man was so base as to disregard his oath and act as it was insinuated Mr. Hayes had done, he ought to be scouted from society, and never again allowed to pollute the Jury-box with his presence.  The Court, he considered, was bound to throw its protection over the Jury-box, and if it did not, it could not be expected that the Jury system, which was so much vilified for admitting low characters into the box, would improve.  No man of any character would come into the box if he were, with impunity, to be termed an obsequious Government parasite, because he returned a verdict which the politics, or the vicious mind of the Editor of a Newspaper caused him to dislike.  The rider in the present case must have been agreed to in conclave, when the evidence, when the merits and demerits of the case were under consideration.  The words 'conscientious motives' being printed in italics, he would submit could not be interpreted to mean anything but base and improper motives.  It was not necessary to discuss whether the Jury had a right to append such a rider; it was sufficient for the Court to know that they imagined they had the right.  When the Jury saw persons of respectability arraigned at a bar, claim to be sent back triumphantly to society, clear from all blame and pure; when they thought that the prisoners had acted as persons in their situation of life should not have acted, and that their unqualified verdict of not guilty would be injurious to society, if they did not make some observations; they had a perfect right to do as they had done in the present case; and the Judge had received their remark.  Indeed there was no case in the books where a Judge had refused to receive such a remark, and he (Mr. P.) did not see why a Jury should be more tied up from making an observation than a Judge.  When a prisoner was acquitted, the Judge often addressed him, and told him that he had had a narrow escape, or been tried by a merciful Jury, and certainly the Judges would not wish to tie up the hands of the Jury from doing the same thing.  If either Judge or Jury had a right to make such remark, it must be the Jury who try the merits of the case, and it surely must have a beneficial effect on society to let it be known, that although prisoners had not in law committed a felony, yet they had acted improperly; and, as the Judges sometimes say, had had a narrow escape.  When persons who were not present at the trial read the reports, and found from the evidence that the prisoners had been guilty of improper conduct, and saw that there was a mere verdict of not guilty, it must have an improper effect; but when they saw a rider attached to it, then they knew that the conduct of the prisoners had been properly estimated, it would be different.  These were arguments to shew that Juries had the right to make observations when necessary; but it was not necessary to strain the point.  If Hayes did induce the Jury to agree to the rider  it must have been in the Jury-room, and if in so doing he had acted wrong, it was an error in judgment, and he was not to be held up as he had been in the "Herald" for an error in judgment.  No man could come into the Court if he was not protected; he could not do his duty properly - he could not go straight forward looking neither to the right hand nor to the left, if he was to be afraid of offending the Editor of the "Herald;" to have the fear of the "Herald" before his eyes.  No man, not even a man of the strongest mind, could act faithfully, if afraid of being held up to public scorn or ridicule.  If Jurors were not to be protected, they might as well shut up the Court, or abolish the jury system entirely.  If a man in prosperous trade was held up to the public as a man who disregarded his oath as a Juror, no person could come in contact with him; he would be a ruined man.  If Hayes were in trade, or in anywise dependent on the public support, no man would patronise him; he would be held in abhorrence, scorned, if he was thought capable of acting as had been insinuated in the "Herald."  It was for the Court to read the article minutely, and see whether if would bear the construction he had put on it; if not, he must bow to the decision of the Court, but he must commiserate with Mr. Hayes; and any man who did his duty in this political and newspaper-writing Colony would be exposed to such articles, and all the ill consequences likely to flow from them.  The situation of a Juryman would indeed be to be commiserated.

The Acting Chief Justice said, he did not think the Court was called on to say whether the article complained of was or was not a libel, but they were called on to say whether it was such a contempt of Court as they could deal with summarily.  The first question was whether the article was a contempt of Court or not.  It would be observed, that in all the cases in which the Court had acted summarily, it had been where the matters under discussion were then at issue before the Court.  In the case which the Attorney-General relied on, The King v. Clements, the circumstances were widely different from the present case.  There were several persons to be tried for high treason on several different days, and as the cases were similar, the Judge who tried the case on the first day, ordered that the proceedings should not be published until all trials were terminated, in order that the prisoners who remained to be tried might have a fair trial.  The proprietor of the Observer newspaper set the Court at defiance, and published the proceedings as they proceeded.  That was nothing like the present case.  The first case that came under His Honor's notice in this colony was the case of The King v. Howe, for a series of articles on a case about to come on.  Then there was the case of the King v. Hall, in which the Editor made comments on a case that was pending in which he was a party, and the Court animadverted on it because it was likely to influence the Jury who were to try the case.  The case exparte Mansfield v. ______ was also a publication on a pending case.  The case of the King v. Stephens and Stokes was on like grounds - but on the defendants expressing their contrition, they ere allowed to go at large.  The case of the King v. Bull was very different - there defendant, himself a party to the suit, attacked the Jury wholly and individually on the motives of their verdict, and therefore the Court interposed.  Then there was the case af [sic] the Editors of the Australian, in which the Judges were called on to notice some comments on themselves.  The Court came to the decision of noticing the article with great reluctance, but they felt that if they allowed corrupt motives to be imputed to them with impunity, a would be impossible for them to do their duty, and therefore they resolved to put the articles down.  The broad ground of decision appeared to him to be this - were the articles comments on pending proceedings, or proceedings that were finally completed?  When a case was completed, the Judges as well and Juries were open to fair comment - the case at present under consideration was ended, and therefore open to fair comment.  If the gentlemen alluded to felt himself injured, he could bring as action, of the Attorney-General, "if he were so advised," could file an ex officio information, but the Court would not use its extraordinary power of issuing an attachment.  The Court at any time granted an attachment reluctantly, because it deprived persons of the right of trial by jury, and it was only on very extraordinary cases that the Court would grant an attachment.  There was still a course open for Hayes - he could bring an action personally.  The Court begged it to be distinctly understood, that it would never shrink from its duty, but would always protect jurors where necessary.  If the Court granted an attachment in the present case, it would very much tend to deprive the Press of its privileges - for the Press and privileges as well as the Court; and while those privileges were exercised in a fair and candid manner, the Press would always be protected by the Court.  His Honor concluded by remarking, that he felt the Court had been misled in granting the rule in the first case.

Mr. Justice Burton said, that from the course the case had taken, he felt called on to follow the Chief Justice with a few observations.  Under the circumstances of the case, he thought the Court shewed more moral courage in refusing the rule than they would in granting it.  The Court had been led to grant the rule by the construction which the Attorney-General put on the words conscientious scruples.  The Attorney-General had contended that these words, by their being put in italics, meant unconscientious scruples; but, on considering the matter in their own room, they found that the words would not fairly bear the construction put on them, but rather meant over-conscientious or too nice.  The Court had been put in the rather unpleasant situation of refusing to accede to a motion made by the Attorney-General before, and perhaps on that ground, when called on to grant an attachment, they had acted rather too hastily.  This was not the case of a private individual who would have to pay costs if the Court eventually dismissed the rule, but was at the suit of the Crown which paid no costs; so that if the defendant was called in to answer, and the rule was dismissed, he would be saddled with all the expenses; this was one ground why the Court should be very cautious in granting the rule.  Then, looking at the cas, considering that the rider was extra-judicial, that the functions of the jury had ceased, was it not a fit subject for comments.  There was no impropriety in a Judge saying, a prisoner had had a narrow escape, and perhaps a jury might say so too; but then, were the mouths of very one else to be shut?  Other persons had a right to express their opinion as well as the jury.  If the whole article was read, it would be found to be only a fair comment on the proceedings of the Court, in a case that was closed.  The Court saw no ground for the commiseration expressed by the Attorney-General; the greatest safeguard of the system of trial by jury was, that the juror knew that after he left the box he was responsible to his fellow-men for his verdict.  If an attachment was granted in the case, it would be a check to all comment on the proceedings of Courts of Justice, and there would be an end to another great safeguard, for there were many men who were kept in the right path solely by the force of public opinion.  The Judge and Jury, he considered, were both in the same situation, both equally open to fair and candid comment.  With respect to himself and his brother Judges, their characters were in the keeping of the public who would defend them when they were right, and when they were not defensible, they would have no right to hold their situations but ought to leave the Bench.  Then private characters were in their own keeping, and neither the Judges nor the Jury would call on the Attorney-General to protect them from public opinion.

Mr. Justice Kinchela agreed with what had fallen from his learned brethren, he did not think it a case for an attachment.  Mr. Hayes had his remedy by action for libel.


[ 1] See also Australian, 2 June 1837; Sydney Gazette, 3 June 1837.

This case arose from a commentary on the verdict in R. v. Bingle, 1837. See also Sydney Herald, 25 May 1837; Australian, 23 May 1837; Sydney Gazette, 23 May 1837.  This led to editorials by the Sydney Herald, 5 and 19 June 1837, and Sydney Gazette, 6 June 1837, on attachment for contempt of court and freedom of the press.

Published by the Division of Law, Macquarie University