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

R. v. Catterall [1838] NSWSupC 86

duelling, provocation of - gentlemanly conduct - contempt of court, fine - Burton J., attitude of Sydney Herald towards

Supreme Court of New South Wales

Burton J., 13 August 1838

Source: Sydney Herald, 15 August 1838[ 1]

Monday, August 13. - Before Mr. Justice Burton and a Civil Jury.

Joseph Catterall, late of Parramatta, Gentleman, was indicted for, that he, being a person of a quarrelsome, turbulent, and troublesome disposition, and wishing to vex, harrass, and annoy one Frank Adams, a Captain in Her Majesty's 28th regiment, and intending to provoke him to commit a breach of the peace, and fight a duel, at Parramatta, on the 2nd October, did wickedly, wilfully, and maliciously write and send to the said Captain Adams a letter in the following words, - "Your conduct has been discreditable to you as a public officer, disreputable to you as a man, and disgraceful to you as a gentleman," to the great damage of the said Captain Adams, and with intent to bring him into contempt.  A second count charged the defendant with publishing a placard declaring that as Captain Adams had shrunk form giving him satisfaction, he was a mean pitiful coward.  A third count merely charged the intent to be to provoke Captain Adams to commit approach of the peace, and alleging no overt acts.

According to the evidence of Captain Adams, he was acting as Aide-de-Camp to Sir Richard Bourke, on the 9th of June last.  The defendant called at Government House, for the purpose of having an interview with the Governor, when he was told by Captain Adams that, being Council day, he could not see His Excellency; Mr. Catterall called twice subsequently, and was (by the porter) refused an interview with the Governor on the same grounds.  About three months afterwards, Mr. Catterall accused Captain Adams of having prevented him from abtaining an interview with the Governor for ulterior purposes, and upon receiving a note from Captain Adams, requesting he would not wrote to him again as he did not know him, Mr. Catterall wrote the letter complained of in the first count, and subsequently posted Captain Adams as a coward.  In cross-examination Captain Adams denied that he was aware, of his own knowledge, that a criminal intercourse subsisted between a Lieutenant of the 28th regiment and the defendant's wife, or that he had spoken to her himself, until he received Mr. Catterall's letter.  The defendant, who conducted his own case, entered into an explanation of a long series of circumstances which led him to believe that Captain Adams had made use of his influence as Aide-de-Camp to prevent him (Mr. C.) from having an interview with the Governor, for fear he should complain to the Governor of the conduct of the Lieutenant who was living in an adulterous intercourse with his wife, and that he believed Captain Adams had boasted to his wife that by his influence he had prevented him from seeing the Governor.  In the course of the defence his Honor had repeatedly to call the defendant to order, for making observations that were extraneous and uncalled for, and, as he continued to do so, fined him £50 for declaring that the military are noted for a reckless disregard of moral duty and the ties of social life, and for overbearing conduct.  The defendant called no witnesses.  His Honor left it to the jury to say whether the defendant, in writing the letter and placard, intended to provoke Captain Adams to fight a duel.  Guilty, but strongly recommended to mercy.  The defendant was discharged upon his own recognizances in £500 to appear and receive the judgment of the Court when called upon.

 

Dowling C.J., Burton and Willis JJ, 15 September 1838

Source: Australian, 18 September 1838

 

Mr Joseph Catteral was called on by the Clerk of the Court to answer why execution for the penalty of £0 imposed on him in the last sessions for a contempt should not be issued.

Mr Windeyer addressed the Court, and stated that he had two affidavits to put in against the infliction of the penalty.  He did not feel called on to enter into the discussion of the legality of the penalty, as to whether calumniating the military generally, could be construed into a contempt of Court.  He had his doubts on the subject, but putting that question on one side, he had affidavits that the offence was not committed, and as far as his recollection served he could support what was set forth in the affidavits, and he hoped that the learned Judge who had imposed the fine would not enforce it.  (Mr Windeyer read the affidavits, and continued).  He thought that if one officer did (what he was afraid must be admitted that too many of them did), neglect the social duties of society, that it was not an offence to point that out, nor did it reflect on the whole body; and he must contend that the defendant had not exceeded the legitimate bounds of his defence.

The Attorney General wished to know upon what ground Mr Windeyer addressed the Court at all.

Mr Windeyer wished to know in what capacity the Attorney General appeared.

The Attorney General was again about to address the Court, when Mr Windeyer again asked in what capacity the Attorney General appeared to press the fine.

The Attorney General said that when fines were imposed by the Court, those fines were immediately vested in the Crown, and he appeared to protect the interest of the Crown, and if any thing could be urged in mitigation of the penalty, the Crown officers ought to have been furnished with notice of any motion that was to be made.

Mr Windeyer wished to know whether the Attorney General received notice of objections to the imposition of fines on jurors, when imposed by the Court.

His Honor Mr Justice Burton said, that when fines were imposed by the Court, they became debts recorded to the Crown, and it would appear on the record what the fines were imposed for, and that record could not be gain-sayed.  It would be competent for the defendant to apply for a rule to shew cause why the fine should not be levied.

Mr Windeyer said that he would move for a rule to shew cause against execution issuing.

Mr Justice Burton.  No, Mr Windeyer, you must shew cause why it shall not be levied -- you must take this as a matter of record.

Mr Windeyer suggested that as this was a novel proceeding on the part of the Attorney-General, this being the first time (he believed) that he had ever appeared to oppose the remission of a fine, perhaps the Court would allow it to stand over until Monday, and in the mean time he would furnish the Attorney-General with notice of his intention to resist the fine.

The Chief Justice said that as the defendant would have to appear before the Court in a matter closely connected with the present question, it would be as well to let it stand over until he was called up for judgment.

Mr Windyer said that he could only say that the Attorney-General's opposition appeared to him somewhat strange, as Mr a'Beckett had been employed in the prosecution in which the Attorney-General had not appeared in Court.

Mr Justcie [sic] Burton said that the Attorney-General was always supposed to be in Court to protect the interest of the Crown, and he had acted in this matter as he was required by his duty to do.

 

Dowling C.J., Burton and Willis JJ, 22 September 1838

Source: Sydney Herald, 24 September 1838[ 2]

 

The Queen v. Catterall. - The defendant in this case appeared to show cause why a fine of £50 should not be imposed upon him for having, in his address to the Jury when defending himself from a charge of libel, calumniated the body of the Military, after being twice warned by the Judge.  Mr. Windeyer now appeared to show cause against the fine, and produced the affidavit of Mr. Catterall, who swore that the precise words used by him were, "the true origin of this feeling is to be found in the reckless disregard exhibited by too many among them of every social tie, of every moral duty, and of every conventional usage of society!" and that he had no intention of offering any contempt to the Court.  The question of the power of the Court to impose a fine upon a defendant was not entered into, but a long discussion took place as to the power of the Court to rescind a fine imposed by a Judge.  The Chief Justice was of opinion that the Court could not controvert the record of the fine by enquiring whether Mr. Catterall had really been guilty of contempt of Court, as that was a matter entirely left to the discretion of the Judge.  He thought, however, that the Judge had properly exercised his authority; no man could doubt the propriety of the fine.  If the defendant made use of calumnious expressions, the Judge was bound to act as he did. Mr. Justice Willis differed with the Chief Justice in one point - he thought that sitting as Barons of the Exchequer, the Court could receive a respectful remonstrance from the defendant, but at the same time he saw no reason to impugn the record of the fine, on the contrary, he thought the thanks of the Bench and the public were due to Mr. Justice Burton for preventing the course of justice from being perverted.[ 3]

The Queen v. Catterall.  In this case the defendant had been convicted of sending a libellous letter to Captain Adams, with intent to provoke him to fight a duel.  The defendant put in several affidavits in mitigation, which the Court declined receiving, on the ground of their containing irrelevant matter.  After Mr. Windeyer had been heard in mitigation, and Mr. a'Beckett in aggravation; Mr. Justice Burton delivered the judgement of the Court, which was, that the defendant pay a fine of £50, and enter into his own recognizance in the sum of £500, to be of good behaviour for twelve months.

 

Notes

[ 1]This case was also recorded in Burton, Notes of Criminal Cases, vol. 38, State Records of New South Wales, 2/2438, p. 1.

[ 2]See also Sydney Gazette, 25 September 1838; and Australian, 25 September 1838.  The Australian contains a longer report of the arguments from counsel, but only a brief record of the judgment concerning contempt.  It concluded its report of the day's proceedings before the court with a note that Windeyer said he ``had not the slightest intention of imputing any thing to His Honor [Burton J.], for whom he had as great a respect, as any one of the profession".

This case led to controversy in the newspapers.  For an example (and for its usual laudatory comments on Burton J.), see Sydney Herald, 12 October 1838.

[ 3]The Sydney Gazette, 25 September 1838, reported that ``Justices Burton and Willis coincided with the Chief Justice in confirming the fine, but were of opinion that the Court, sitting as Judges of the Exchequer, could enquire into the reasons of the Judge for the imposition of the fine, and whether the defendant had been guilty of the contempt."

Published by the Division of Law, Macquarie University