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

Whitfield v. Caswell [1837] NSWSupC 36

slander, qualified privilege - Australian Agricultural Company - sodomy - Hyde Park convict barracks

Supreme Court of New South Wales

Dowling A.C.J., 26 June 1837

Source: Sydney Herald, 29 June 1837[ 1]

Whitfield v. Caswell. - This was an action brought to recover compensation for defamation of character; damages laid at £1,000.[2 ]

The plaintiff in this case is a medical man, lately employed by the Australian Agricultural Company as superintendent of agriculture, and the defendant is a settler residing at Tanilba, on the southern shore of Port Stephens.  The declaration set forth, that on the 2nd of February, the defendant in a conversation which he had with Colonel Dumaresq. the Commissioner for the Australian Agricultural Company, made use of certain expressions intending to insinuate that the plaintiff had been guilty of attempting to commit unnatural offences.  There was also a count setting forth that, in consequence of these rumours, the plaintiff to his great damage had been dismissed from the service of the Company.

The only witness called by the plaintiff in support of the declaration was Colonel Dumaresq, who stated that a few months since, a man named Howarth accused the plaintiff of certain offences, which Mr. Whitfield denied, and Howarth was sent two years to an ironed-gang for making a false charge.  On the 2nd February last, the defendant came to him, and made the statement set forth in the declaration; Mr. Caswell said at the time he was actuated by a desire to do justice to the unfortunate man Howarth, and had intended to go to the Police Magistrate, but thought that it would be more courteous first to call on him, (Colonel Dumaresq) as he was the employer of Whitfield, and was the Magistrate before whom Howarth made his statement.  In consequence of not approving of Mr. Whitfield's manner of doing business he had, in accordance with the terms of his agreement, given the plaintiff six months notice to quit the service, on the 5th of January; but in consequence of the rumours that he heard on making enquiries, respecting Mr. Caswell's communication, he was convinced that it would be indecent and improper to allow Mr. Whitfield to remain on the Company's establishment.  The motives of Mr. Caswell he considered were honorable, chivalrously honorable.

Mr. Therry, followed by Mr. Windeyer, contended that a nonsuit must be entered, on four grounds; that the inuendoes [sic] set forth in the declaration were not proved; that there was no proof of malice; that there was no count in he declaration stating that the statement was made without reasonable or probable cause; and that it was a privileged communication.  His Honor said that the points were very important, and he would reserve them for he opinion of the full Court.

Mr. Therry, in a very able speech, the nature of which forbids our giving a report of it, contended that the conduct of Mr. Caswell had been strictly honorable and instead of deserving a verdict against him, he was entitled to the thanks of the community for the manner in which he had acted.

Mr. White, superintendent of Agriculture, Mr. Laman, overseer of mechanics, Mr. Corlette, storekeeper, all in the service of the Australian Agricultural Company, Mr. James king and Mr. E. G. Cory, of Hunter's River, Michael Ryan, late Chief Constable at Port Stephens, Solomon Young, assigned to Mr. Oliver of Raymond Terrace, and two men named Smith, in the employ of Mr. Caswell, swore to the prevalence and their belief of rumours of the kind, and several of the witnesses would have spoken to facts which they said came within their own knowledge, but were prevented by the Judge, who ruled that under the plea of the general issue, the defendant was prevented from going into anything more than general rumours.  A surgeon named Russell, residing in York-street, deposed that in 1826 he knew the plaintiff, who at that time kept a druggist's shop in South Audley-street, London, and that there were rumours of disgraceful conduct prevalent then.

His Honor, in putting the case to the Jury, said that he was bound to tell them that in point of law as the defendant had no lawful occasion and was not called on to make the statement, but made it voluntarily and of his own accord, that the communication was not a privileged one, and they were bound to give the plaintiff a verdict if they believed that the statement was such as to bear the meaning that had been put on it in the declaration.  If they believed that the defendant had acted bona fide and without malice, they were to take all the circumstances into their consideration in mitigation of damages, but the Jury were bound to take the law from him that this was not a privileged communication, and the plaintiff was entitled to their verdict.

Mr. Therry asked his Honor if he would not put it to the Jury to find for the defendant if they believed there was reasonable and probable cause for making the statement, and that the evidence negatived malice.

His Honor said that the could only leave the leading points as circumstances of mitigation; as then advised he could not consider that this was a privileged communication.

The Jury retired about a quarter of an hour, and returned a verdict for the plaintiff, damages one farthing, each party to pay his own costs.

His Honor said he could not receive the latter part of the verdict, upon which Mr. Therry asked His Honor if he would certify that the verdict was under forty shillings; His Honor said he would; which will have the same effect.

Counsel for the plaintiff, the Attorney-General and Mr. Foster; for the defendant, Messrs. Therry and Windeyer.

The case occupied the Court until eleven o'clock at night.

 

Notes

[1 ] See also Sydney Gazette, 1 July 1837; Australian, 30 June 1837; Dowling, Proceedings of the Supreme Court,  Vol. 138-2, State Records of New South Wales, 2/3323, p. 12.

On 3 July 1837, the Sydney Herald published a commentary on this case.  It stated that Dowling A.C.J. had ``ruled that the defendant, under the plea of the general issue, might give evidence of general rumour."  This decision, claimed the Herald, was in direct opposition to a recent decision by Lord Abinger, in Woolmer v. Latimer, the report of which it then reproduced from the Morning Chronicle of 20 February 1837.

Sodomy was, of course, a serious crime. See R. v. Sherwood, Sydney Gazette, 18 February 1837: the prisoner was convicted and sentenced to death for an ``unnatural act".  He was a blind man and prisoner of the Crown who committed the act at the Hyde Park Barracks.

Peter de Waal provided the following further information about Sherwood:

"Trial Judge John Kinchela's 20 February 1837 report (at p. 368) to the NSW
Executive Council regarding James Sherwood's trial and subsequent death
sentence reveals a different picture to that reported in the 18 February
1837 Sydney Gazette above.
"The Judge writes: 'On his Cross Examination by the Prisoner [James
Sherwood] - witness [George Marshall, the victim] stated - I cannot
recollect how many person were in the room with you at the time - there was
another man lying on a bed near you but he was blind and deaf and I believe
asleep ...'
"Furthermore from all other documents I've examined (depositions, Colonial
Secretary's papers, etc) regarding this case I've been unable to confirm
that Sherwood in fact was blind. It appears that the newspaper report is
incorrect.
"(Source: State Records NSW, Executive Council, Appendix No.7, - Enclosure E
to Minute No.2, 1837 - 4/1444, pp. 367-9)."
 

Something of a scandal sheet at the turn of the twentieth century the Sydney Truth newspaper published the following report as part of its celebrated trials serries:

Source: The Truth (Sydney), 7 January 1900, p 3

CAUSES CELEBRE

No. XV.

THE DOCTOR AND THE CONVICT.

Whitfield v. Caswell.

A Colonial Surgeon Accused of Unnatural Offences - Verdict One Farthing - 1000 pounds Claimed - Jury Thinks Parties Should Pay Own Costs - Acting-Chief Justice Dowling Refuses to Receive the Recommendation of the Jury - But Certifies the Verdict is Under 40s. - Which Answers the Intention of the Jury - Each Party Pays His Own Costs.

[By Mark Muddle.]

The lot of the lag in New South Wales in the thirties was a hard one, unless the lag had wealth and could bribe the officials; when, of course, the said official would wink the other eye. I knew, many years ago, an ancient resident of Parramatta, who in taking his walks abroad had the peculiarity of keeping one hand constantly behind his back. Many old hands in Parramatta said the habit grew upon him when he was gatekeeper at one of the public establishments - "the factory" - and tips were plentiful. The Government men, when allowed leave, could afford to tip the gatekeeper, who overlooked late hours and liquor.

In the case reported below, the sentence passed upon an assigned servant for speaking the truth, appears to be particularly cruel, and if such a thing could occur in our time, the press would swoop down, with much visor and strong language, upon the "justices" who could pass such a sentence upon a man even though he were a convict. There was however one white man who noted the gross injustice, and took steps to have the sentence revoked, though in doing so he had to defend a Supreme Court action for slander and defamation of character.

In the year 1826, a legally qualified medical man, Whitfield by name, kept a druggist's shop in South Audley-street, London. He emigrated to New South Wales and took service with the Australian Agricultural Society at Port Stephens as Superintendent of Agriculture. In 1837 he was dismissed from this position by Colonel Dumaresq, the company's commissioner, under circumstances which were detailed before Acting Chief Justice, Sir James Dowling and a common jury of twelve. The defendant in the action was a settler named Caswell, father, I think, of the present police magistrate at Goulburn, residing at Tanilba on the southern shore of Port Stephens.

The declaration set forth that on February 2, 1837, the defendant in a conversation which he had with Colonel Dumaresq, the Commissioner for the Australian Agricultural Company, made use of certain expressions intending to insinuate that the plaintiff had been guilty of attempting to commit unnatural offences. There was also a count setting forth that in consequence of these rumors the plaintiff, to his great damage, had been dismissed from the service of the Company.

The only witness called by the plaintiff in support of the declaration was Colonel Dumaresq, who stated that a few months previously an assigned servant of the A.A. Company accused the plaintiff of attempting to commit the detestable crime of sodomy, this Dr. Whitfield of course denied, and the assigned servant (Howarth) was sent to an ironed-gang for two years for making a false statement. On February 2, Mr. Caswell waited upon Colonel Dumaresq and made the statement set out in the declaration. Mr. Caswell sang that he was actuated by a desire to see justice to the unfortunate man, Howarth. Mr. Caswell had intended to go to the police magistrate, but thought that it would be more courteous to call upon Colonel Dumaresq first, as the Colonel was the employer of Whitfield, and was the magistrate before whom Howarth made his statement. In consequence of not being satisfied of the manner in which Whitfield had conducted his business the latter was given six months notice of the termination of his agreement as from January 5. In consequence of the rumors that were in circulation, with special reference to Mr. Caswell's communication, Colonel Dumaresq was convinced that it would be indecent and improper to allow Dr. Whitfield to remain on the Company's establishment, and he was dismissed accordingly. The Colonel considered Mr. Caswell's motives honourable, chivalrously honorable.

Messrs. Therry and Windeyer, who appeared for Mr. Caswell, contended that the innuendoes set forth in the declaration were not proved; that there was no proof of malice; that there was no count in the declaration stating that the statement was for the public good, or that the statement was made without reasonable or probable cause; and that it was a privileged communication. His Honor said that the points were very important and would be reserved for the opinion of the Full Court. Mr. Terry addressed the jury, but from the nature of the subject matter the pious press of the day could not publish the speech. Counsel, however, contended that the conduct of Mr. Caswell had been strictly honorable, and instead of having a verdict recorded against him, that gentleman was entitled to the thanks of the community of the way in which he acted.

A number of witnesses were called for the defence, who swore to the prevalence of the rumors and their belief in them. Among the witnesses were Mr. White, Superintendent of Agriculture, who first came to Australia in charge of stud horses for the Company (the Hon. R.H.D. White, M.L.C., New South Wales, is a son of this gentleman); Mr. Laman, overseer of mechanics; Mr. Corlette, storekeeper: all in the service of the A.A. Company; Mr. James King and Mr. E.G. Cory, of Hunter River; Michael Ryan, late chief constable at Port Stephens; Solomon Young, an assigned servant of Mr Oliver, of Raymond Terrace, and two men named Smith in the employ of Mr. Caswell. Several other witnesses would have sworn to facts which had come within their own knowledge, but were prevented by the judge, who ruled that under the plea of the general issue, the defendant was prevented from going into anything more than general rumors.

Dr. Russell, a surgeon residing in York-street, Sydney gave evidence that he knew Whitfield when he kept the druggist shop in South Audley-street, and that there were rumors of disgraceful conduct then.

His Honor in putting the case to the jury said that he was bound to tell them that in point of law, as the defendant had no lawful occasion and was not called on to make the statement, but had made it voluntarily and of his own accord, that the communication was not a privileged one, and that they were bound to give the plaintiff a verdict if they believed that the statement was such as to bear the meaning which had been put upon it in the declaration. If they believed that the defendant had acted bona fide and without malice, they were to take all the circumstances into consideration in mitigation of damages, but the jury were bound to take the law from him, that this was not a privileged communication and that the plaintiff was entitled to a verdict.

Mr. Therry asked the Judge if he would not put it to the jury to find for Mr. Caswell if they believed there was reasonable and probable cause for making the statement, and that the evidence negatived malice. The Judge said that he would only leave the leading points as circumstances of mitigation; ad then advised, he could not consider that it was a privileged communication. The jury, after 15 minutes' consideration, found for the plaintiff,

ONE FARTHING DAMAGES,

each party to pay his own costs.

The judge declined to receive the latter portion of the verdict as being beyond the province of the jury, whereupon counsel for Mr. Caswell asked his Honor to certify that the verdict was under 40s., which his Honor did, thus carrying out the intention of the jury. The Attorney-General (J.H. Plunkett) and Mr. Foster appeared for Dr. Whitfield. It is assumed that the unfortunate Howarth was released from the ironed-gang in which he had served over six months for what, perhaps, was a novelty in convict life in the thirties, telling the solemn truth.

[ 2] The Australian Agricultural Company's enterprises in the Hunter district included an underground coal mine.  The convicts who worked there were no better represented than in a poem by one of them, Frank MacNamara, called ``A Convict's Tour to Hell".

Published by the Division of Law, Macquarie University