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

R. v. Chambers [1838] NSWSupC 106

criminal libel - legal profession, discipline of - criminal procedure

Supreme Court of New South Wales

Dowling C.J., Burton and Willis JJ, 23 June 1838

Source: Australian, 26 June 1838[ 1]

The Chief Justice enquired if Mr David Chambers was in Court, and on that gentleman answering, his Honor stated that the Court had received a petition from Mr D. Chambers, praying for an investigation into his conduct as an attorney, which he considered had been reflected on publicly in the Court; and his Honor now felt bound to state the circumstances which had occurred before him on the trial of the case "Greece v Bullivant," on the 19th instant.  It was an action of trespass for breaking and entering into a certain cottage, and the defendant had sought to justify the alleged trespass by virtue of a demise of the cottage in question to the defendant, by will of one Alexander Ikin.  On the trial the will was sought to be impeached on plea that the testator was tipsy at the time of making it - and on the cross-examination of Mr. David Chambers, who was a witness to the will, it was stated by him that he had been sent for to draw a will for Alexander Ikin; that when he went to receive instructions for drawing it Ikin was tipsy, but not so much so but that he was able to give the necessary directions by which Mr Chambers prepared a will, which was signed by Ikin, who was at that time also tipsy; that Ikin was an habitual drunk, and was seldom sober; that Mr Chambers, three days after this, for the more abundant caution, had drawn out a second will, from instructions given when Ikin was sober, which was completed in the presence of Mrs Ikin and family - Ikin, at the time of executing it, being perfectly sober.  His Honor stated that at the trial, on the supposition that the will on which the defendant relied for his defence, was the one which had been executed when Ikin was tipsy, some strong language was applied to Mr Chambers both by the counsel employed in the case, and by the Court, and Mr Chambers had very strangely accused the Judge of joining against him in the accusation of improper conduct.  (Mr Chambers here said that whatever construction his Honor had put upon what had hastily fallen from him when the imputation was cast upon his character; he begged most respectfully to deny any intention of imputing to his Honor anything of the sort).  His Honor continued that he was glad to hear Mr Chambers deny any such intention.  His Honor, upon the supposition that the will before the Court was procured to be executed when the testator was drunk, had remarked, that if it was so, Mr D. Chambers had been guilty of a scandalous breach of duty, for which he deserved to be struck off the rolls, and that he (his Honor) should feel himself bound to bring the matter before the Court.  Upon the re-examination of Mr Chambers, it had appeared that he had seized the first opportunity of the testator's being sober, which was of very rare occurrence, to procure the execution of a second will before his family, and it was upon this second will that the defendant in the case relied; and upon this explanation he (his Honor) had expressed his regret that he had considered himself called on to make any remark upon the conduct of a gentleman who had always borne such an honorable [sic] character; and he now felt it his duty to add, that upon the full consideration of the whole transaction, he thought that there was not the slightest imputation against Mr Chambers, who appeared to have acted with great discretion, and had taken considerable pains in the matter which was highly creditable to him.  The Court had considered it proper to bring this matter at once forward upon Mr Chamber's petition, in order to remove any disadvantageous impression that might be found abroad as to this gentleman's character, at the earliest moment.  If Mr Chambers required any further investigation, of course the Court would grant it.

His Honor Mr Burton said, that upon a review of the matter, nothing whatever appeared to implicate Mr Chambers, who had acted with discretion and zeal throughout the matter.  It was of the greatest importance that respectable persons should be employed in matters of so much responsibility as that of making wills, and if it unfortunately happened that parties were habitual drunkards, the precaution was the more necessary.  But the question was not whether the party was intoxicated at the time, but whether he was deprived of his reasonable faculties, and His Honor considered that this was a question that must be determined on by the discretion of the professional gentleman employed; if a professional gentleman was to refuse to act when called on, he would certainly be culpable in doing so, as inconceivable inconvenience and loss to the family might arise by a person in wealthy circumstances dying intestate; and it was highly praiseworthy to Mr Chambers, that he had taken so much pains to gather the intention of the testator, and procure the execution of a will which would prevent loss to the estate.  The very circumstance of Mr C. having procured the second will, released him from any blame, as he had exercised much judgment in putting the matter beyond the power of impeachment.  Mr Chambers was not only quite released from any imputation that might have for a time attached to him abroad, but he was deserving of much praise for his trouble in the matter.

Mr Justice Willis perfectly coincided with his learned brother, that Mr Chambers was deserving of high praise instead of condemnation in the matter; and he was also highly gratified to hear Mr Chambers deny any intention of attributing to His Honor the Chief Justice any undue influence in the remarke [sic] His Honor had in the zealous discharge of his public duty felt called on to make.

Mr Chambers said he was perfectly satisfied, and did not desire the case to go any further.

 

Dowling C.J., Burton and Willis JJ, 30 June 1838

Source: Sydney Gazette, 3 July 1838[ 2]

 

Mr. Therry moved for a rule calling upon Mr. David Chambers to shew cause why a criminal information should not be filed against him for a libel upon Mr. Richard Windeyer.  From the affidavits which were exceedingly lengthy, it appeared that Mr. Windeyer was one of the counsel in the case of Greece v. Bullivant, in which Mr. Chambers was attorney for the defendant, and was examined as a witness; that in the course of the trial he made some remarks, but did not intend to go, and did not believe that he did go, beyond the line of his duty.  That on the following Saturday when leaving Court he was stopped in the street by Mr. Brown, who asked him if he used the words, if he was Mr. Chambers, he would jump into the Cove, and whether he intended to use them literally; Mr. Windeyer replied, God forbid that he should mean them to be applied literally; but having used them as counsel, declined giving any further explanation.  Mr. Brown feeling dissatisfied, walked home with Mr. Windeyer, who wrote on a slip of paper that he had no recollection of using the precise words, but what he said was said as counsel, and intended for the ear of the Court.  Mr. Brown having waited upon Mr. Windeyer a second time, Mr. W. referred him to Mr. Broadhurst, and after several meetings between Mr. Broadhurst, the latter wrote word to the former that the words made use of by Mr. Windeyer were used when he was under an impression that Mr. Chambers had allowed a will to be signed by a drunken man.  That that impression caused the Judge to say that Mr. Chambers ought to be struck off the rolls; that when the matter was cleared up, the Judge expressed his sorrow for having made use of the words which he had used when under a false impression, and that Mr. Windeyer said the had been labouring under the same impression; under these circumstances Mr. Broadhurst could not advise Mr. Windeyer to retract the words without infringing on the liberty of speech which is the privilege of barristers; and that he had advised Mr. Windeyer not to give Mr. Chambers a meeting.  The next morning Mr. Chambers posted Mr. Windeyer as a slanderer and a coward, which was the libel complained of.  Granted.

 

Dowling C.J., Burton and Willis JJ, 11 July 1838

Source: Australian, 13 July 1838[ 3]

 

Exparte R. Windeyer. -- This was an application made by Mr R. Therry, on Saturday last, for a rule to show cause why a criminal information should not be exhibited against Mr David Chambers, an attorney of the Supreme Court, for a libel published by him of and concerning the applicant, Mr Richard Windeyer, a barrister of the Court.

Mr Foster rose to show cause against the rule being made absolute.  It was no ordinary degree of regret that he rose to address the Court on this very disagreeable business, and he could have wished that the very reasonable suggestions thrown out by their Honors, when the case formerly came before the Court, had been complied with, and he must state that one of the parties had stated his willingness to do so, but that it had been objected to by the other side, and the very circumstance of non-acquiescence assured him that however some parties might be ready to give advice, they were not so ready to take the reasonable and matured advice of others.  He, Mr Foster, looked upon the functions which their Honors had to perform that day as similar in every respect to the functions of a grand jury at home, and he hoped that, in considering the application, their Honors would weigh not so much the strict legal ground for the application as whether a prosecution would be of any great public good, or benefit to either of the parties, or to the honour of the profession of which both the parties were members.  And he also trusted that their Honors would look to the whole matter of offence on both sides, and say whether the offence of the defendant (and he could not deny but that offence had been committed) was not altogether brought on by the conduct of the complaining party, and whether he was not the first and chiefest aggressor.  There could be no doubt but that his client had been guilty of a violation of the laws, but he thought that the Court would be of opinion that it was greatly extenuated by the aggression in the first instance of the complaining party.  It appeared on the very face of the complainant's affidavits, that the very offensive expressions had been made use of by him, and it also appeared that all retraction had been infused.  It had been contended that the offensive expression alluded to had been used in professional privilege, and in strict point of law, if that had been made out, his client would not have been warranted to have insisted upon retraction of it.  In drawing the notice of the Court to the affidavits, he felt it his duty to point out the great discrepancy there was between the complainant's affidavit and that of the gentleman into whose hands he had entrusted his cause.  The complainant's affidavit went on to state that defendant was employed as counsel, to conduct the case of the plaintiff in the cause of Greece v Bullivant, which came on for trial before the Chief Justice, on Tuesday, the 19th day of June. - that in the course of the trial he had in the discharge of his duty as such counsel, to cross-examine David Chambers, gentleman, relative to the manner in which he had acted in the drawing of a will, - that in the cross-examination, circumstances were stated by the said David Chambers which induced his Honor the Chief Justice to say that the said David Chambers deserved to be struck off the Rolls, and that his Honor did not know but that he would be, or words to that effect; that about the time the declaration was made by his Honor, Mr Forster, one of the counsel for the defendant, rose, and as deponent believes, in the conscientious discharge of his duty, made some comment upon the course the cross-examination pursued, and the imputations cast upon the witness, the precise terms of which the deponent did not recollect, - that the deponent, on behalf of his client, made a counter comment, the precise terms of which equally escaped his knowledge.  Now he (Mr Foster) would submit, that if the offensive terms occurred whilst the complainant was pursuing the professional course of his duty, he could have had no hesitation in stating so at once, and retracting what perhaps had fallen from him in the excitement natural to counsel pleading the cause of his client.

His Honor the Chief Justice - Is it now too late, Mr Foster, for some mutual friends to step in and arrange this matter, without pressing it on the court?

Mr Justice Willis - I really think, that it would be much better for the gentleman to adopt this course.  The matter of the will has since been before the court, and occupied three days in the investigation; and after a patient and fatiguing investigation, in which every thing was explained and set at rest; I do think it ought to remain so.

Mr Foster said, that propositions had been made of the most reasonable kind, and friends had interfered to endeavour to accomplish what certainly was most desirable, both on account of the parties concerned as well as the court, but he was sorry to say without effect.

Mr a'Beckett said, that however disposed he might have been to recommend such a course, he thought after the remarks that had been made by Mr Foster, as to the affidavits at the opening of the case, he could not do so now.  His client was not disposed after that to hear any explanation.

Mr Justice Burton said, that certainly a greater difficulty existed in adjusting differences, when one party only was to blame than when both were, and he felt no hesitation in saying, that both parties were much to blame in the present case, and he thought they ought to meet and mutually acknowledge their errors.

Mr D Chambers - Under your Honor's suggestions, I am ready to retract all I have done, provide the retraction is mutual.

Mr Foster said, that the other party did not seem inclined to make a concession - indeed, he had been asked to do so, and although the request was so reasonable, he had refused to do so.

Mr Justice Burton - I must say, that I think Mr Broadhurst took a very wrong view of the course he ought to have adopted; he ought on the moment to have advised Mr Windeyer to retract the offensive expression, when he was applied to, and there would have been an end of the matter.

Mr Chambers - I am now ready to retract what I have done, if the retraction be mutual, but I cannot allow it to come solely from me.

Mr Justice Willis - If the offensive expression is retracted, Mr Chambers, you are ready to acknowledge you have acted wrong.

Mr Chambers - I am, your Honor.

After some conversation, on both sides, it did not appear that the parties were likely to come to an arrangement, and His Honor the Chief Justice told Mr Foster to proceed.

Mr Foster continued - Standing as their Honors did in the place of a grand jury upon the present application, he would ask if they would suffer the complainant to take advantage of his own wrong, and bring the defendant before a jury of his country for what he (the complainant) had instigated?  He thought not, and he would go further, and contend that their Honors could, as they had done before with parties for contempt of Court, which he (Mr F.) thought would be the better way of treating the case, for, he submitted that the offence was more against the Court than it was between the parties.  He would explain that upon hearing his learned friend, Mr Therry, open the case on a former day, upon the gentleman's statement, he (Mr Foster) had considered that after the full and candid explanation, and the total exculpation of Mr Chambers by their Honors, that gentleman had acted a very ungrateful part to the Court, in pursuing the course which it appeared on Mr Therry's shewing, he had taken, after that explanation; and to clear away this very erroneous impression; he would refer their Honors to Mr Chamber's affidavit.  The affidavit, after setting forth the previous circumstances of the trial, went on to say, that during the deponent's cross examination, whilst he was in the act of relating some of the circumstances relating to preparing and executing the will of Ikin, His Honor the Chief Justice, passed some severe comments on the deponent's conduct, but upon deponent's further explaining the circumstances, His Honor was pleased to state, that he had laboured under a misapprehension respecting the deponent's testimony, and regretted that he had so censured Mr Chambers - upon which Mr Windeyer stated that he also had been labouring under a misapprehension, but he did not accompany this statement with any expression of regret for any language he had used, nor did he in any away [sic] retract one word of what he had said.  Now he (Mr Foster) thought, that after His Honor the Judge, had not considered it below his dignity to retract what had fallen from him under misapprehension, Mr Windeyer could not have done less than follow His Honor's example.  He did not do so however, nor would he do so when applied to out of Court.  The affidavit continued to state, that on account of these occurrences on the trial, various rumours were circulated extremely prejudicial to the deponent's character, and that from the Tuesday of the trial, until the following Saturday, the deponent was in one continued state of excitement and vexation, being perpetually asked by his forest what was the meaning of these reports.  That, on the Friday evening after the trial, he was conversing with a gentleman on the subject, and on his observing that Mr Windeyer had gone much too far in his cross-examination, the gentleman observed, "yes, I think he did indeed, when he said, that if he were in your place he would immediately chuck himself into the cove", to which the deponent replied that he was not aware of his having gone that length.  The affidavit then went to say, that on the Saturday morning, on the deponent's coming into Sydney from the country, where he resides, he immediately proceeded to the residence of Mr Brown, of George Street, and stated to him the above-mentioned circumstances, and requested Mr Brown to call upon Mr Windeyer for an explanation, to which he consented; but before doing so, it was determined that the deponent should make himself better acquainted with the actual words Mr Windeyer did use; and upon the deponent going into Court on Saturday morning, he made further enquiry, and satisfied himself that Mr Windeyer had used such words - that shortly after he obtained this information the Court sat, and as soon as he could conveniently leave the Court, he returned to Mr Brown and told him the result of his enquiry, upon which Mr Brown suggested that Mr Chambers should ask Mr Windeyer if he had used the words, and probably he would give a satisfactory explanation of them - that the defendant objected to this course, fearing that if Mr Windeyer should not give him a satisfactory answer, it would make the matter worse - that Mr Windeyer being engaged in the Court, Mr Brown waited until the Court broke up, and then requested an explanation of the words from Mr Windeyer, who refused to retract them.  This had relieved Mr Chambers from the charge of ingratitude to the Court, in his (Mr Foster's) mind.  Mr Chambers had unfortunately considered that he had gone too far to retract with honor, when his exculpation was pronounced by the Court on the Saturday.  But surely it was the duty of Mr Windeyer to have retracted such grossly offensive terms, as he did not deny he had used when applied to by Mr Chambers's friend.  But no, he appeared to treat the matter as he would have done a chancery case, and very deliberately penned the following in answer to Mr Brown's question - whether he had used the offensive words imputed to him; - "I answer that I do not recollect using Mr Chambers' name; but I do recollect, in answer to an observation of Mr Foster's, on a part of my cross-examination of Mr Chambers, I said something to the effect, that if I were in the situation the cross examination supposed Mr Chambers to be, I would chuck myself into the cove.  Mr Brown has not asked the question, but as the whole paper is put before me, I will observe the words, whatever they were, were spoken loud enough for the ear of the Court and Assessors."  Here then was an admission that he had used the words, or something to the same purport as those imputed to him, but there was no offer to retract - no expression of regret at having used them - and he would ask whether the continued taunts under which the defendant was suffering, the aggravated insult by the complainant, were not enough to goad him on to desperation, and to make him commit any act however extravagant.  Mr Foster went into a very lengthy anilization of the affidavits, which were long and numerous, and would up by saying, that he thought that no public good could arise by granting the information, which would only keep alive the ill-feeling which existed between the parties, and introduce matters before the public, on the trial, which would be better left alone.  But he contended that the court could compel the parties to an arrangement, and he thought in this instance, the court would be doing a public benefit by doing so, and as good frequently did arise out of evil, he hoped that much good would arise from these untoward circumstances.  Since this matter was brought before the court, he had looked particularly into the question of privilege, and he trusted that the present case would have the effect of making the profession keep in the strict bound of privilege.  It could not be tolerated that counsel were to be carried away by passion, or excited feelings, to hurt the feelings of persons who came into the witness box - the same decency and courtesy, that was observed between gentlemen out of doors, should be strictly observed in court - for it was not only to the advantage of the client and for his own character, that a counsel should deport himself with mildness, but the true dignity of the court would be upheld by it, and the profession would be rendered more respectful abroad.

The Chief Justice said, that the court was of opinion that no sufficient cause had been shewn against the rule, which was now made absolute.  The court would not offer any observations on the case, as it would come before another tribunal.

[We have not room to publish the affidavits, which are very lengthy.]

 

Willis J., 17 November 1838

Source: Australian, 20 November 1838[ 4]

 

The following special Jury was then sworn - Messrs. Watkins, Carter, John Campbell, E. Blaxland, R. Crawfurd, Atkinson, Burrows, Barrow, James Barker, T. V. Bloomfield, and George Bowman.

Mr David Chambers, Solicitor, was indicted for publishing a false, scandalous and malicious libel on Mr Richard Windeyer, Barrister-at-law, with intent to excite the said Richard Windeyer to a breach of the peace.  The information contained three counts which varied the intention.

Mr a'Beckett opened the case, and Mr Therry addressed the Jury.  Both parties in this case were professional gentlemen well known to the Jury, and he was sorry to say that the case presented many unpleasant topics which, it would have been desirable to keep out of Court, if the Prosecutor's character did not require that they should be set right.  And he was bound to state that the case would not have been brought before the Court, if the Defendant, in his instructions to counsel in the application for a Criminal Information in this matter, had not imputed to the Prosecutor personal motives.  It did not form part of his instructions to be severe on the defendant in this case; and as the parties were generally known, he would not take up their time by describing them, further than that the prosecutor was a gentleman who stood foremost in professional rank, having moved with admired rapidity to a foremost station in his profession, by his acknowledged talent, and unflinching integrity in the performance of his duties; and if there was one quality more than another for which he reaped merited praise, it was his entire identity with his clients.  The defendant was also of the same profession, although of different rank, and was a highly respectable gentleman, much esteemed by those who knew him, and he (Mr Therry) was sorry to say, that on the present occasion his conduct had not been what it ought to have been.  He would proceed at once to give a brief outline of the facts out of which this case grew.  In a cause Greeve v. Bullivant, tried before His Honor the Chief Justice and Assessors last term, Mr Windeyer was counsel for the plaintiff, and in the course of his professional duty he was called on to cross-examined Mr Chambers, who was put into the witness box to prove the validity of a Will.  In the course of Mr Chambers' evidence, circumstances appeared which caused the Chief Justice to use very strong language against Mr Chambers, under the impression that the testator had been drunk when he executed his will, to which Mr Chambers was an attesting witness; and this impression was also made upon the Court, and upon Mr Windeyer amongst others; and surely if the case called for such expressions from a Judge, who was an impassioned and unconcerned auditor, it was more likely to call for reprehension at the hands of the counsel concerned in the suit.  However, in consequence of some remark being made by Mr Foster who was counsel for the defendant, which was something like ``how would you like to be in such a situation," Mr Windeyer in the excitement of the moment did say, ``I would chuck myself into the Cove, first."

Mr Justice Willis here observed, that in a second cause tried before him, which depended upon the same circumstances, Mr Chambers had given evidence that entirely removed any previous impression to his disadvantage, and shewed that he had acted most honourably; and on the evidence of Mr Chambers and a Dr Nicholson, the verdict in that case was given for the defendant.  He merely mentioned these facts, which had nothing to do with the case, that it might not be supposed that any imputation rested on Mr Chambers's character.

Mr Therry said that he totally disavowed any intention to impute any such thing to Mr Chambers; that part of the business had been explained to Mr Chambers's credit, and it would have been well if the case had stopped there.  Not so, however; after every thing had been said that was considered necessary, Mr Chambers was employed all day on the Sunday, not as he usually occupied himself, but in writing challenges and sending his friend Mr Brown, for explanation and apologies for what had been already sufficiently explained; for, on the trial, when Mr Chambers explained his conduct in the making of the will, the Chief Justice retracted what he had said under misapprehension of the circumstances, and Mr Windeyer with equal alacrity retracted what he had said, and stated that he had misconceived the facts; and yet, after all this, Mr Chambers would not be satisfied without a personal apology from Mr Windeyer, which that gentleman could not, and would not give.  It must be understood that another case, that of Iken v. Bullivant, which depended upon the same Will was to come on directly after, and Mr Windeyer was retained as counsel in this case, and feeling that he could not make any admissions without injury to his client, he took the strong ground of professional duty and refused any personal explanation of the matter.  How would Mr Windeyer have looked, if he had tied his hands up by making a personal apology to Mr Chambers who might have pulled that apology out of his pocket in the witness box, and have asked Mr Windeyer what right he had to cross-examined him, with the document staring him in the face.  These were the simple facts which had led to the publication of the libel in question, and he could also wish that the manner of publication had been conceived in better taste.  The placards, which were after the most approved precedents in such cases, were not only fixed in places of public resort, (and of this he should not have complained so much,) but were posted, as would appear in evidence, on a conspicuous place immediately facing Mr Windeyer's house, so that the female portion of his family could not go to the door, or windows without being insulted with the sight of them.  This was conceived in the worst possible taste, to say the least of it, and he could have wished that it had not happened, for if it was conceived necessary to insult Mr Windeyer, it was not manly to insult the females of his family, when the intention of the placards might have been carried into effect just as well by being posted elsewhere, in some public place, as was the custom in such affairs at home.  These however were the facts, and Mr Windeyer would be put into the box to allow Mr Chambers an opportunity of satisfying himself on any point, and making some kind of excuse for such conduct, if it were possible.

Mr Richard Windeyer, Barrister-at-law. - I am acquainted with Mr Chambers' signature, and believe the signature attached to the placards produced, is his. - (The placards were read by the clerk.)  The placards were taken down from different places by my direction; two of them were posted opposite my house, and the other on a post at Mr Norton's office which is a little lower down, in a slanting direction.  I know Mr Chambers to be an attorney of the Supreme Court.

By Mr Chambers. - I was Counsel for the Plaintiff in the case of Greece v. Bullivant and others; you were a witness in that case, and were cross-examined by me; Mr Foster re-examined you after my cross-examination.

Mr Justice Willis. - Although I do not wish to interrupt you, Mr Chambers, I must say I think the course of examination you are pursuing has nothing to do with the case; the only matter material in this issue is whether the publication of the paper in question, imitated to a breach of the peace.  If, however, you think it necessary to your defence I am ready to take down any matter that may bear on the case, and I wish you to confine yourself as closely to the matter as issue  as possible, to save any farther excitement which had better be avoided.

Mr Windeyer's in continuation. - I have no recollection of laughing or sneering at your evidence, although I might have laughed at something that was said; I said something in answer to remarks made by Mr Foster.  Mr Foster's remark, whatever it was, was made to serve his case, and I made answer to the Court to remove any further impression that might be made by Mr Foster's remark; it was then I made the answer which gave you offence; I had set down after the cross-examination, and Mr Foster had arisen, and the re-examination had either commenced, or was about to begin, when Mr Foster made the remark which called forth my answer.

Mr Justice Willis. - I really do think you had better adopt my suggestion, and confine yourself to the matter at issue; the course of examination you are adopting can have nothing to do with the publication of the libel.

Mr Chambers said that he wished to get from Mr Windeyer, that he made the remark to which he alluded tat a time when he ought not to have made it, and that it was not in the regular course of his duty that he had used it.

Mr Windeyer's examination by Mr Chambers, continued - I believe the precise words I used, but of course with reference to what Mr Foster said, were ``I would chuck myself into the cove," I did not mean what the words literally convey, God forbid; I used them figuratively to convey that I thought the statement of the facts as they then appeared, were highly disreputable to you, not that you should have drowned yourself.  I spoke the words without previous thought on the subject; I was not Mr Windeyer then; I was Mr Greece, and I spoke them with reference to the facts that appeared in evidence in the cause.  I retracted what I then said, upon a further understanding of the case, and I acknowledged that I had been under misapprehension as to the facts, but I never at any time intended to retract individually, what I said as counsel.  I afterwards made comments on the evidence which might appear to you as severe, but I do not think they were severe, and I thought them called for and justifiable in my capacity of counsel for the Plaintiff.

Mr Justice Willis said that if Mr Windeyer had used any unjustifiable comments before the court, he was certain the learned Judge would have stopped him.

Examination continued - I was called on by Mr Brown for an explanation of the words I had used, which I refused to give as they were used in the course of my professional duty; Mr Brown would not admit that the expressions came within the latitude allowed to counsel, but he did not say that I did not use them in my professional capacity.  If, after I had stated on my word that they were so used, Mr Brown had denied that they were, I might have taken another course; I never refused you any satisfaction on the contrary; but I thought it better not to depend entirely on my own judgment in such a matter, and I left it with a third party, by whom I was guided throughout; when Mr Brown came to me, I told him that my mind was made up, but I did not think it right to depend on my own judgment, and I referred him to a third party; I cannot admit that I did any thing on the trial; Mr Windeyer did nothing; Mr Greece did all that was done; I have no recollection that the Chief Justice said he was sorry for what he said, he might have done so, but what the Chief Justice might feel bound to say, and what counsel for another party might feel called on to admit, are different matters.

By Mr a'Beckett. - At the time His Honor the Chief Justice made his observations, whatever it was, I rose and said I had laboured under the same misapprehension of the facts as His Honour; and I must state that as I was employed in a cause, in which Mr Chambers was my client, I handled him rather more roughly than I otherwise should have done, for fear it might be supposed that I could be influenced in my duty; and I thought it was much better that an individual should be put to inconvenience, than that the Public should suppose that the profession could be influenced by private regards.  I had no personal feeling towards Mr Chambers', but used the expression at which he took offence, in what I considered the course of my duty to my client, and in answer to a remark of Mr Foster's.

This was the case for the prosecution.

Mr Chambers addressed the Jury at some length stating that he had published the placards in question under the impression that Mr Windeyer had been actuated by personal motives in the expression he had used, and he was happy to hear that gentleman so explicitly disavow any personal feeling in the matter.  He was sorry that he had been urged by strong excitement, rendered more acute by the repeated calls of his friends for an explanation of reports that had been spread abroad, reflecting on his character, to a breach of the laws of which he must be must be found guilty; and he hoped that the circumstances of cause for excitement would be considered in the verdict.  He could have hoped that Mr Windeyer would have given such an explanation before, as he had always supposed him to be actuated by personal feelings.

Mr Therry said that after the admission of Mr Chambers that he had acted under the impression that Mr Windeyer was influenced by personal motives, which that gentleman had denied, they did not wish to press the case further, and would enter a Nolle prosequi.

A Nolle prosequi was accordingly entered and the case was dismissed.

 

Notes

[ 1]See also Sydney Herald, 25 June, 1838; Sydney Gazette, 26 June 1838; and see Greece v. Bullivant, 1838.

[ 2]See also Sydney Herald, 2 July, 1838.

[ 3]See also Sydney Herald, 13 July 1838.

[ 4]See also Sydney Herald, 19 November 1838.

Published by the Division of Law, Macquarie University