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

R. v. Douglass [1838] NSWSupC 112

contempt of court, interference with jury - Myall Creek massacre - contempt of court, attachment - jury, interference with - contempt of court, procedure by indictment or attachment

Supreme Court of New South Wales

Dowling C.J., Burton and Willis JJ, 5 December 1838

Source: Sydney Herald, 7 December 1838[ 1]

The Attorney-General said that he felt it necessary for the protection of Jurors to bring a case before the Court, and move for an attachment against certain parties.  He held in his hand the affidavit of George Sewell, of Pitt-street, landholder, which stated that he was Foreman of the Jury on the trial of Kilmaister and others for the murder of the blacks; and, in consequence of the verdict he had returned, he had been abused and insulted by Thomas Douglass and Edward Borton, publicans; that on Friday, Borton said to him he ``was a - rogue, and deserved to be hanged," and that ``when Knight rose up he ought to have had his brains knocked out;" that on Saturday, he was abused by Douglass for finding white men guilty about a parcel of cannibals, and Douglass said he ``would have set for a month before he would have found them guilty."  The learned gentleman cited several cases from Chitty and Hawkins, to show that any person who abuses or threatens a Juror is punishable by fine or imprisonment, he therefore moved for a rule returnable on the first day of term.

The Chief Justice said that, for obvious reasons, the Court wished to decide the matter at once.  There were trials coming on next term[ 2] which might be affected by the discussion of the matter, they would therefore grant the rule returnable on Monday.

 

Dowling C.J., Burton and Willis JJ, 10 December 1838

Source: Sydney Herald, 12 December 1838[ 3]

 

Monday. - Before the three Judges.

Exparte the Attorney-General. -- In this case a rule nisi had been obtained, calling upon Thomas Douglass and Edward Borton, to shew cause why an attachment should not be issued against them.

Mr. Foster, who appeared for the defendants, said that the rule had been granted upon the following affidavit:--

In the Supreme Court of New South Wales.-

The Queen, against Charles Kilmaister, and others.

George Sewell, of Pitt-street, Sydney, in the Colony of New South Wales, Land Owner, Foreman of the Jury on the trial of the above-named Charles Kilmaister, and others, on an information charging them with the murder of an aboriginal child, which trial took place before the Hon. Mr. Justice Burton and a jury of civil inhabitants, on Thursday, the twenty-ninth day of November last.  And deponent saith, that in consequence of the verdict of the jury in that trial, this deponent has been insulted and abused by Thomas Douglas, of Sydney, Publican, and Edward Borton, of Sydney, Publican, and deponent saith, that, on Friday last, the said Thomas Douglas called deponent a - rogue for finding the men guilty, and told deponent that he and the other jurors on the said trial deserved to be hanged for finding them guilty, and that as soon as Mr. Knight, one other of the jurors rose up in Court, he, Mr. Knight, ought to have had his brains knocked out, and the said Thomas Douglas, at the same time, used other most abusive language calculated to injure deponent and to induce deponent to commit a breach of the peace.  And deponent saith, that the said Thomas Douglas, on Saturday last, again abused this deponent and the other jurors, for finding white men guilty for a lot of cannibals, and said, he would have set for a month before he would have found them guilty.  And deponent saith, that, the said Edward Borton, was present on Saturday last, when the said Thomas Douglas so abused deponent for the verdict of the said jurors, and the said Edward Borton also insulted and abused deponent for having concurred in the said verdict.

GEORGE SEWELL.

Sworn in open Court, this fifth day of December, A.D. 1838. - By the Court.

Mr. Foster said, that he had affidavits on the part of the defendants, which he would put in, not because he considered them necessary, but because his clients did not wish to permit imputations to go abroad which might be prejudicial to them hereafter, but without the affidavits he thought he should be able to satisfy the Court; that, even if the facts sworn to in the affidavits were true, the Court could not proceed by attachment.  It was clear that there was nothing on which an indictment could be sustained which was the course that must be pursued if there was anything in the affidavit.  Taking even the very oldest authorities which the Courts never act up to in modern times, their Honors would at once see that this was not a case in which proceedings by attachment could be resorted to.  The Court granted the rule upon the hearing the fourteenth section of Hawkins, page 64 vol. 1. read, which says, that ``all such persons as are under the more immediate protection of those Courts are highly punishable by fine and imprisonment; as if a man assault or threaten his adversary for suing him, or a counsellor or attorney for being employed against him, or a juror for giving a verdict against him, or a jailor for keeping a prisoner in safe custody;" but this, he contended, must be construed to mean at the time that the party was in actual attendance on the Court, not when he had been discharged by the Court, and was in fact functus officii.  But whatever construction the Court might put upon it, there was nothing to show that the proceeding was to be by attachment, and not by indictment.  If the former part of the same page - if the 12th and 13th sections of the same chapter had been read to their Honors, he was confident they would never have granted the rule.  The 12th section says ``it was formerly holden that a man might be indicted for a slander upon the justice of the nation, by reflecting on a sentence given in any Court, ecclesiastical or temporal, whether directly, as where one said that such a sentence, given by the high commission Court was against law, or obliquely, as where one said that such a sentence was just, but that the testimonies on which it was founded were false, or the affidavits equivocating."  ``But," continues the 13th section, ``it seems to be the better opinion of this day, that a man cannot be indicted for any scandalous or contemptuous words spoken of or to such officers, not being in the actual execution of their office; for such offence seems rather to proceed from ill breeding than a contempt of the Government; and, although it may be a cause to bind a man to his good behaviour, yet it does not seem to be of such consequence as to be a sufficient ground for a public prosecution as for an offence against the public peace, &c.  And, agreeable hereto, it hath been resolved that a man shall not be indicted for saying that `whenever a burgess of such a town puts on his gown Satan enters into him,' or that such a justice is a fool, an ass, and a coxcomb for making such a warrant, and understands no more law than a slickhill;' or that `he is not fit to be a justice of the peace, for that he will be right or wrong according as his affections lead him,' or that `such an order is a nonsensical order, and that the justice deserves to be hanged who made it,' or that `such a justice of the peace is a foresworn wretch, and that he will fling his purse at him,' or for saying to a mayor of a town, `You, Mr. Mayor, I do not care a - for you; you are a rogue and a rascal,' or for saying that `the justices of the peace have nothing to do with the excise.'"  All these cases, he (Mr. Foster) contended, showed that words spoken after a proceeding could not be provided against by attachment, but were rather proofs of ill-breeding.  If the words had been printed, instead of written, a criminal information might have been filed; but mere words are the privilege of the vulgar, and the law affords no relief unless the words are of themselves libellous.  He would read the affidavits that had been prepared, because his clients were anxious that it should not go abroad that they had been guilty of what had been imputed to them; but he would draw the attention of the Court to the manner in which the affidavit of Sewell was drawn, and which would lead their Honors to suspect that Sewell had been practised upon, and had made the affidavit with a view to getting himself into notice.  It did not state where the abuse took place, but would lead the Court to imagine that it was in the public streets, and that the defendants were strangers to him; instead of which they were intimate friends, and one conversation took place in the house of Douglass, and one in the house of Borton. - The following are the affidavits which were put in for the defendants:--

Thomas Douglass, of Sydney, licensed victualler, by his affidavit sworn the 5th day of December, 1838, saith, that he hath never insulted or abused Mr. George Sewell, the deponent named in the affidavit, sworn in this matter on the 5th day of December instant, for, or on account, or in consequence of the verdict given in the cause of the Queen v Kilmaister and others; that he did not, to the best of deponent's knowledge and belief, on Friday, the 15th day of November last, or at any other time, call the said George Sewell a - rogue for finding the men guilty; that he did not tell the said George Sewell that he and the other jurors on the said trial deserved to be hanged for finding them guilty; that he did not state to the said George Sewell that he as soon as Mr. Knight, one other of the jurors on the said trial rose up in Court, that he (Mr. Knight) ought to have had his brains knocked out; that the said George Sewell and the other jurors empannelled on the aforesaid trial were not abused by deponent for finding white men guilty for a lot of cannibals; that he never stated that he would have sat a month before he would have found the men indicted on the said trial, guilty; that any observations made by this deponent at any time, to the said George Sewell, with reference to the said trial, were made by this deponent in a friendly and jocular manner, and not with a view to injure, insult, or aggrieve the said George Sewell, or with an intention to provoke him to a breach of the peace; that in any observations he (this deponent) has made with reference to the trial of the said Kilmaister and others, he (this deponent) has not been actuated by any feeling of contempt for this Honorable Court or the proceedings thereof; that he (this deponent) and the said George Sewell have, for the last three years, been on terms of friendship and intimacy, and parted on the same terms on Saturday last.

Edward Borton, of Sydney, licensed victualler, sworn the 8th day of December, 1838, saith, that he hath never abused or insulted Mr. George Sewell, the deponent named in the affidavit made in this matter on the fifth day of December instant, for, or on account of the verdict of the jury on the trial of the above-named Kilmaister and others; that he was present and joined in a conversation which took place at the house of the deponent on Saturday last, between the said George Sewell and Mr. Thomas Douglass, of Sydney, licensed victualler; that in such conversation, neither this deponent nor the said Thomas Douglass abused the said George Sewell and the other jurors empannelled to try the above-named defendant for finding white men guilty for a lot of cannibals; that the said Thomas Douglass did not in that conversation say that he would have sat for a month before he would have found them guilty; that the conversation referred to was carried on in a jocular and friendly manner; that he hath never abused or insulted the said George Sewell for concurring the verdict pronounced in the said case; that since the said conversation, the said George Sewell hath been at deponent's house and drank in a friendly manner with deponent; that he has been on terms of intimacy and friendship with the said George Sewell for the last three years; that in any observation he (this deponent) has made relative to the trials of the said Kilmaister and others, he (this deponent) has not been actuated by any feeling of contempt for this Honorable Court or the proceedings thereof.

Edward Flood, of Sydney, builder, by his affidavit, sworn the  [sic] day of December, 1838, saith, that he was present at a conversation between Mr. George Sewell and Mr. Thomas Douglass, at the house of the said Thomas Douglass, on Friday, the 30th of November last, relative to the trial of the above-named parties; that the said conversation was carried out in a jocular manner; that he considered that all that took place between the said parties on that occasion was a mere joke between them, and from the manner of both parties, this deponent believes they were jesting with each other, having previously known them to do the like, more particularly the said George Sewell, who, to the knowledge of deponent, is in the constant habit of passing jokes about upon the most of his acquaintances; that this conversation being ended, the said George Sewell did not seem to be in the least offended, but on the contrary, he requested the said Thomas Douglass to change some harness for him, and asked the said Thomas Douglass to give him a collar in exchange for one he then held in his hand.

William Hibbert, of Sydney, cabinetmaker, by his affidavit, sworn the 8th day of December, 1838, saith, that he was present at a conversation which took place on Saturday 1st day of December instant, between Mr. George Sewell, of Sydney, landowner, and Mr. Thomas Douglass, of Sydney, licensed victualler, and Mr. Edward Borton, also of Sydney, licensed vicutaller, relative to the trial of the above defendants; that the conversation was carried on in a jocular manner between the said parties; that he considered the whole matter to be a mere joke, deponents having often before heard the same parties converse in a similar manner.

Elizabeth Douglass, wife of Thomas Douglass, of Sydney, aforesaid, licensed victualler, by her affidavit, sworn the 8th day of December, 1838, saith, that she was present when a conversation took place on Friday, 30th November last, between George Sewell and her husband, the said Thomas Douglass; that all that passed she considered to be a mere joke, as her said husband and the said George Sewell were on terms of the greatest intimacy, and continually passing jokes upon each other; that the said George Sewell called on the following day, namely, Saturday, the 1st day of December, and appeared in his usual good-humoured manner; that the said George Sewell left her house on both days without appearing in the leased offended.

The learned gentleman concluded by calling their Honors' attention to a case reported in Moodie and Watkins, where a prisoner named Gwellam was upon his trial for murder, and a person exhibited models of the murdered person, of Gwellam, and of Williams, the notorious murderer of the Marrs and Williamsons; the prisoner's Counsel moved that the artist be taken into custody for contempt, but Mr. Justice Littledale, after consulting with Mr. Justice Gazelee, said that the exhibition was undoubtedly indecorous, and deserved to be punished, but it did not amount to a contempt.

The Attorney-General said, that a great deal of learning and research had been displayed by his learned friend, but he could not tell why, as it s clear that where a party charged with contempt clears himself by his affidavit, the Court must discharge him, leaving it for the prosecutor to proceed against him if he has perjured himself.  If a defendant by his affidavit denies the charge the Court is bound to receive it, and not try the credit of the parties, and the prosecutor will not press the Court to decide upon a matter affecting the conscience of the party, and which can be judged of by a jury alone.  The learned gentleman argued at some length to rebut the arguments of Mr. Foster, when he was stopped by

Mr. Justice Burton, who said that there could be no doubt that if the words were spoken they were indecorous, but he thought that the Attorney-General had, in the first few words he had spoken, withdrawn his motion.

The Chief Justice[ 4] said that there would never be any indisposition on the part of the Court to protect Jurors.  In the case before them they must determine in the first instance whether there was ground for the issuing of an attachment, and it had been acceded by the Attorney-General that the ground had failed from under his feet.  If it had not it would have been for the Court to consider whether they would interfere with an attachment, and he thought they could not; there had been no violence used, and no threat made, and the functions of the Jury were at an end.  Even if the facts had not been denied they would not have issued the attachment, and it will only be in cases of extreme emergency, and where the dignity of the Court is assailed, that the Court will deprive a party of his inherent right of being tried by a Jury, as is done where proceedings are by attachment.

 

Notes

[ 1]See also Australian, 6 December 1838; Sydney Gazette, 6 December 1838. This was also recorded in Burton, Notes of Criminal Cases, vol. 39, State Records of New South Wales, 2/2439, p. 120.

This case indicates the passionate response to the verdict in R. v. Kilmeister (No. 2), 1838.

[ 2]The reference is to the plan to try four more Myall Creek defendants: see the footnotes to R. v. Kilmeister (No. 2), 1838.

[ 3]See also Australian, 11 December 1838; Sydney Gazette, 11 December 1838.

[ 4]The Australian, 11 December 1838 recorded the judgment of Dowling C.J. as follows ``The Chief Justice said, that there could be no dispute but that the Court was bound to protect its officers in the execution of their duty; and the Court upon well grounded complaint had always felt anxious to do so.  The question now was, whether there was any ground for an attachment, and it had been conceded by the Attorney General that the affidavits put in by Mr Foster, had entirely removed all ground.  But if the matter had not been denied, the Court would not have felt justified in proceeding by attachment.  There was no assault or threat charged against the parties, and it was only in cases of extreme urgency, where the dignity of the Court or the administration of justice was affected, that the Court would feel called on to act summarily, in punishing parties.  In this case it appeared that the functions of the jury were at an end, when the occurrence took place; it had not been a matter of public reproach, but had occurred at the private house of one of the parties, and however improper the observations were, it was not a matter in which the Court felt called on to act."

Published by the Division of Law, Macquarie University