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

R. v. Kerr [1837] NSWSupC 31

contempt, publicity of trial

Supreme Court of New South Wales

Dowling A.C.J., and Burton and Kinchela JJ, 17 June 1837

Source: Sydney Herald, 19 June 1837[1 ]

The Attorney-General said he had been instructed to move for a rule calling on Mr. W. Kerr to shew cause why a criminal information should not be filed against him for writing a letter signed William Howe, which tended to obstruct the administration of justice.  The affidavit of Mr. G. T. Graham stated, that he was defendant in the case of Fennel v. Graham,[ 2] in which Mr. Howe, of Glenlee, was concerned, and that on the 5th of May, a letter appeared in the Colonist, and subsequently in other papers, which contained a false representation of the case, and was likely to prejudice the mind of the Jury.  The affidavit of Henry Bull, the editor of the Colonist, stated, that the letter was in handwriting of Mr. Kerr, and was published at his request; and the affidavit of Mr. Nicol Allan stated, that the case of Fennell v. Graham was set down for trial on the 23d instant, and that he had applied by letter to Mr. Howe to know whether he was the author of the letter, the learned gentleman contended, could have been published with no other intent than to prejudice the mind of the public concerning the case, and obstruct the course of public justice.

Mr. Justice Burton said that the letter appeared to be nothing more than a statement of the case, and was published seven weeks before the case was set down for trial.  The letter was in very moderate language, and he thought it would be a little too much to say that a party was at no time to publish a statement of his case.   There was no proof of any wish to obstruct justice but what appeared on the face of the letter, and the question appeared to him to be, was there any case where a party had been indicted for merely publishing a statement of his case - he believed not.  There was a case where a party was punished for publishing a statement in an assize town, but that was on the eve of a trial.

The Acting Chief Justice said that the only ground for a motion of this kind would be if the statement were published on the eve of the trial.  It appeared that Mr. Howe had only made a statement of facts that were known to himself, and perhaps to himself only, and of which he could not give evidence himself; but his chief objection was the staleness of the matter; besides it was a mere matter of dispute, and was not a case to influence the public mind.  The criterion in such a case, and on which the Judges always acted, was, would a Grand Jury find a bill in such a case, and he thought he might safely say no.  His Honor concluded by observing that he thought the Attorney-General was doing all the mischief he appeared to apprehend by agitating the matter afresh.  Rule refused.




[1 ] See also Sydney Gazette, 20 June 1837.

[ 2] See Fennel v. Graham, 1837.

Published by the Division of Law, Macquarie University