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

R. v. Macalister [1838] NSWSupC 108

civil procedure, service of process - criminal libel - service of process, avoidance - Attorney General, libel of - Brisbane Water case - law and fact, distinction between - criminal procedure - reception of English law, criminal procedure - magistrate, prosecution of - Supreme Court, fusion of jurisdiction - Attorney General and separation of powers - separation of powers, role of Attorney General

Supreme Court of New South Wales

In banco, Dowling C.J. and Willis J., 15 February 1838

Source: Sydney Gazette, 17 February 1838[ 1]

Mr. a'Beckett said he had been instructed by his learned friend the Attorney-General, to move for a rule calling upon Lachlan McAlister, Esquire, to show cause why a criminal information should not be filed against him for a libel contained in a letter published in the Sydney Gazette, of November 11th.  The learned gentleman read the letter complained of and also the affidavit of Mr. Cavenagh, Editor of the Sydney Gazette, that he published the letter at the instance and request of Mr. McAlister, who had authorised him to say so.  The affidavit of Mr. Plunkett set forth that he is Attorney-General of the Colony, and that in the Sydney Gazette, of 11th November, a false, scandalous and defamatory libel was published concerning himself; that he believes the paragraph commencing ``same eloquence," alludes to certain prosecutions for cattle stealing and imputes to him that he put the said parties on their trials from motives of political dishonesty, intending thereby to ruin them for a political purpose, which is entirely false, as he never put any person on his trial but from a wish to do his duty, fairly and impartially.  From the vague nature of the charges, Mr. Plunkett said it was not necessary for his learned friend to deny them on oath but he did so as he considered the libel not so much a personal attack as an attack upon the office which he had the honour to hold, and in fact it is a libel upon the administration of justice.  The learned gentleman quoted several cases on this point, and the Court granted a rule nisi, returnable on the 24th instant.

 

In banco, Dowling C.J., Burton and Willis JJ, 29 March 1838

Source: Australian, 3 April 1838[ 2]

 

THURSDAY. - Exparte the Attorney General v. McAlister. - Mr. a'Becket moved that the conditional rule obtained in this case, be enlarged until the next term.  The rule had been taken out as early as possible, but on the following morning to its being granted, Mr McAlister had left town.  The learned gentleman stated, that copies of the rule had been forwarded to the defendant's residence at Camden, and to his stations in Argyle, whither it was reported he had gone; but the messengers who had been sent upon this errand, could not find the defendant at either places, and it was believed, that he was purposely keeping out of the way in order to avoid service of the rule upon him. - Ordered.

 

In banco, Dowling C.J., Burton and Willis JJ, 30 March 1838

Source: Australian, 3 April 1838[ 3]

 

Exparte Edward William O'Shaughnessy. - Mr Foster moved that the rule nisi obtained in this case for a criminal information against Mr James M'Earchern, Editor of the Colonist newspaper, for the publication of certain alleged libellous matter in that journal reflecting upon the applicant, be now made absolute, upon an affidavit of personal service of a copy of the rule.  No cause being shewn, rule made absolute.

 

Dowling C.J., Burton and Willis JJ, 1 June 1838

Source: Sydney Herald, 4 June, 1838[ 4]

 

Ex-parte Plunkett - In this case a rule nisi was obtained last term, and, subsequently enlarged, calling upon Mr. Macalister to shew cause why a criminal information should not be filed against him for a libel published in the Sydney Gazette, in November last.

Mr. a'Beckett, upon affidavit of service of the rule now moved that it be made absolute.

Mr. Foster said that this rule had been twice enlarged on affidavits which suggested, and in point of fact stated that the party against whom way for the rule had been obtained kept out of the way for the purpose of evading the process of the Court -  Unless an affidavit of this description had been made, he was confident the Court would not have enlarged the rule, for not only does the Court require a party to make these kind of applications promptly, but also that he shall take other steps with promptitude, and not, after taking out a rule put it into his pocket.  To shew that the Court had been deceived, he would read the affidavit of the party himself, who swears that he never attempted to evade the service of the rule; that the rule was obtained on the 13th February, and that he resided at Petty's Hotel until the 19th, during which no attempt was made at serving him; that he then went to his residence at Argyle, stopping for a few days at the residence of his brother at Camden, and that with the exception of a visit he made to Goulbourn to act as a Magistrate, he remained at his usual residence until the 18th March, and that he believes that no attempt was made to serve him with the exception of the one call at Petty's Hotel.  The gross libel, the learned gentleman said which had been made on Mr. Macalister ought not to have been allowed on the files of the Court, and as the rule had been enlarged in consequence of this mis-statement, he felt confident that the Court would dismiss the rule.  He thought the prosecutor was very ill advised in bringing the matter before the Court, it would be much better to allow it to drop and not keep up discussion, and if they were so inclined, he thought other parties had as much cause to come to the Court as the prosecutor had.  But if he is determined to proceed in the matter, the prosecutor has another and a much fatter remedy; he can bring an action and if he obtain a verdict, he can say I gave you an opportunity of proving the imputations that you made against me and you could not do it.  He was quite aware that it is for the prosecutor, and not for the defendant to say which course he will pursue, but when a party has been guilty of the laches that the prosecutor in this case was guilty of, it was for the Court to say whether they would not put the parties upon a fair footing.  The affidavit which he (Mr. Foster) held in his hand, concluded by avowing that the deponent believed the prosecutor has taken out a criminal information because deponent, is thereby deprived of his means of defence, and that if a civil action is commenced he is ready to plead forthwith and go to trial this term, and give security that he will not quit the colony until the case is decided.  Mr. Foster concluded by remarking that if the prosecutor did not wish to put damages into his pocket, if he gain a verdict in a civil action, the charitable institutions of Sydney afford ample means of disposing of any damages that may be awarded.

Mr. a'Beckett said that he knew his friend has a habit of saying strange things with a grave face, and therefore he was not surprised at the last part of his remarks.  The affidavit of Mr. Macalister contained no answer to the charge, and in fact he did not positively say that he did not keep out of the way, only that he was at Goulburn until the 18th of March; where was he during the remainder of the Term, but as the affidavits on which the rule was enlarged were considered sufficient at the time, there was no occasion to say more upon that part of the case.  The only answer that was given to the charge was to repeat the insult contained in the libel.  It was perfectly monstrous after imputing to the prosecutor that he had attempted to ruin four gentlemen from political motives to offer to prove it, after the Attorney General had sworn it was false.  He (Mr. a'Beckett) would consider his learned friend the Attorney General was acting in a manner derogatory to his high character if he were to bring an action for damages.  He positively states that the imputation is false, and the defendant will have an opportunity of asking him any questions he may think fit when he is in the witness box, for he was authorised to state that if the Court made the rule absolute, it was the intention of his learned friend to submit to an examination.

The Chief Justice said that the rule having been enlarged upon sufficient grounds, and no adequate cause being shown, the Court felt bound to confirm the rule.  Rule made absolute.

 

Willis J., 19 November 1838

Source: Sydney Herald, 23 November 1838[ 5]

 

Monday. - Before Mr. Justice Willis and the following special Jurors:-- Thomas Arndall, W. H. Barrow, G. Bowman, T. V. Bloomfield, J. F. Church, R. Crawford, F. Watkins, -- Yates, J. H. Bayliss, J. Bagster, J. Brown and J. Kenworthy, Esquires.Lachlan Macalister Esquire appeared to answer a criminal information charging him with publishing a libel in the Sydney Gazette of November 11th, 1837, with intent to bring the administration of justice into contempt and to injure and annoy John Hubert Plunkett, Attorney-General of the Colony.  The information contained two counts, the first containing the portion of the libel marked in italics, with inuendoes and the second setting out the whole libel.  The following is a copy of the letter complained of:

To the Editor of the Sydney Gazette.

Sir, -- I understand that a paragraph appeared in to-day's Australian, charging Mr. Foster with having received a fee for his advocacy of my claims, at the late election of Chairman of the Quarter Sessions.

Any charges affecting myself that may hereafter appear in the above named journal - I shall ever regard with the most supreme contempt.  The despicable clique of which that paper is the organ, will soon, to the satisfaction of every honest and respectable member of this community, be effectually checked in the exercise of their preset insolent ad unconstitutional pretensions.   The period I trust is not far distant, when the unprecedented anomaly will no longer be tolerated, of an Attorney-General and of a Judge, daring to interfere and to control the free and unbiassed suffrages of an election, with the real merits of which they were totally unconcerned - nor public decency be again outraged by those persons coming forward as volunteers, to offer their gratuitous abuse of an individual, the head and front of whose offence was, his having attempted to vindicate the rights and independence of the Magistracy of New South Wales.  These hired and professional traducers, well know, that divested of their official armour, they dared not to have addressed such language as that which their cowardice prompted them to use at the late election.  I beg to tell the learned Attorney-General as well as the learned and ``notorious pluralist" and ``unpaid," that their efforts at being witty, are about as successful as their attempts to be eloquent; both, however I can assure them, are perfectly harmless as affects myself - both, as their attempts at vituperation render me a much more grateful service than if they were to employ their distinguished and disinterested talents in attempting to eulogise my character, or cause.  The same eloquence, and the same wit have been before employed, together with all the legal acumen the former gentleman could command, and all the political honesty for which he is characterised, to effect the ruin of four gentlemen - in every respect his equals in birth, in education, and property - on alleged offence, of the commission of which the Chief Justice stated to the Jury there was not a shadow of a case to charge them with.  Notwithstanding the law estimate which Mr. Plunkett chose to attach to the probable efficiency with which I might have fulfilled the duties of Chairman of the Quarter Sessions, I venture to assure him, that I should have proved myself capable of avoiding such unheard of outrages upon British feeling, upon British rights, and upon British justice.

The able and eloquent manner in which Mr. Foster exposed the dirty manoeuvres of the party which Messrs. Therry and Plunkett so warmly espoused and to which they gave aid of all their Hibernian oratory; has doubtless brought upon him (Mr. F.) the imputation with which he is charged by their organ The Australian.  I do not wonder that it should excite the astonishment or lead to strange surmises amongst this ``par nobile fratrum," that a brother Magistrate, and a brother Advocate, should at oince evince honesty without bribery; or the employment of his unrivalled abilities in the advocacy of a constitutional and just cause.  Much however as it may excite their surprise, I venture to assure them, that Mr. Foster employed his suffrage unsolicited, unbribed, and uninfluenced by any motive, except the honorable discharge of his duty as a Magistrate.

I have the honor to be, Sir, yours, &c.

L. MACALISTER, J. P.

November 10th, 1837,

Mr. a'Beckett addressed the Jury for the prosecution.  He said the case was one of no little importance for if the charges set forth in the indictment were true, Mr. Plunkett would be degraded from the rank of gentleman and would be utterly disqualified from holding his situation another moment.  The Jury of course could not have escaped having communications out of doors on the subject; they had doubtless heard much, and whatever they had heard in a small community like this was sure to take its colour according to the motives of the person from whom they heard it, but he was sure that whatever the Jury might have heard out of doors, they would find the case presented a different shape when they had heard the evidence.  Upon looking at the case they would find that not only the public but the private character of the Attorney-General was attacked.  The functions of a Grand Jury are centred in the person of Mr. Plunkett, and whenever he was attacked when acting in that capacity it could not be said that it was the acts of a body and that no individual person was attacked; whatever is done is done by Mr. Plunkett himself, and any attack upon the motives that influence him is an attack upon Mr. Plunkett and upon the administration of justice in this Colony.  Before proceeding to the case he would at once state the punishment was not the object of the Attorney-General his only object was to vindicate his character.  Having heard from the information the nature of the attack, the Jury must of course conclude that there must have been some cause of great provocation if the libel was unfounded; that he must have been from some cause strongly prejudiced against Mr. Plunkett, that he was writing with prejudice against him.  They would probably think that he was one of the four gentlemen alluded to in the libel; but no such thing, he was a gentleman of character, brave, courageous, who had been highly serviceable to the country and who was a Magistrate, but the higher the rank of the libeller the sharper the blow.  They would conceive that Mr. Macalister must have been labouring under some serious injury inflicted by the Attorney General but this was not the case; they would find that the whole source of the libel was the wounded pride of Mr. Macalister, his disappointed ambition at not being elected Chairman of the Court of Quarter Sessions, and this brought him to the circumstances out of which the case arose.  The Jury would remember that in the year 1837, a meeting of Magistrates was held for the purpose of electing a Chairman, and that much excitement prevailed on the occasion.  The candidates were Mr. Manning and Mr. Macalister, and even Mr. Macalister's friends made no scruple of saying, that they did not put him forward so much on account of his qualifications as in order to oppose the nominee of Governor Bourke.  With that the Jury had no more to do than the Magistrates had, whose only duty it was to see who was the best qualified for the situation.  It could not be concealed that there was a great deal of excitement, and it was not therefore extraordinary that the parties did not attend the meeting with very apathetic feelings, and that in addressing the meeting respecting the qualifications of the respective candidates, the speakers made use of such language as they thought would advance the interests of their friends.  When Mr. Macalister came forward as a candidate he challenged the fullest enquiry into his qualifications.  It was not said that Mr. Manning was not qualified for the situation, but that he was the nominee of the Government, and on that ground alone he was opposed, and the Attorney-

General finding that Mr. Manning was to be sacrificed to that feeling, went forward to his support and in so doing spoke warmly of Mr. Manning's qualifications of but with no more zeal than the qualifications of Mr. Manning deserved.  He equally adverted to the qualifications of Mr. Macalister and as his friends and supporters had vaunted a great deal about his qualifications because he had been an officer of the Mounted Police, and because as a Magistrate he had attended at Court, it was not to be wondered at that the Attorney-General exposed the preposterous nature of such qualifications, and said if mere attendance at Court would qualify a person for the situation, his friend Allot the crier of the Court, or Jilks the Chief Constable would be admirably qualified for the situation.  At the same time the Attorney-General distinctly stated that he did not speak of Mr. Macalister as a private gentleman and gave him every credit for impartiality and good intention but with respect to his legal qualifications, he said that if a mere legal question apart from any equity was to come before Mr. Macalister for decision, the best way for him to decide it properly, would be, to toss up a half-penny head or tail; and this really was the most offensive thing that was said.  He wondered if Mr. Macalister felt himself so deeply insulted he did not at the time resent it; it was not likely that a gentlemen of his well known brave spirit and warm impulse, if he had considered himself insulted would have allowed the Attorney-General to sit down without replying to it; why did he not at once retort upon the Attorney-General, by making these charges at a time when the Attorney-General could at once have met them by giving him the lie direct; but no, he skulked out of the room without giving the Attorney-General any cause to suppose that he was offended, and it was in vain therefore to imagine that at the time he felt himself insulted.  He retired from the Police Office and with others concerted this slanderous letter, which was sent out four days afterwards when the Attorney-General was in no situation to reply.  He (Mr. a'B.) strongly suspected that other motives influenced him; and that other parties who had persuaded him to stand forward for the Chaimanship assisted him to concert the letter and had pointed out to him that in the Attorney-General's speech which Mr. Macalister had not seen himself.  Before reading the libellous article he would mention that at the meeting Mr. Macalister was supported by the zeal and talents of his learned friend Mr. Foster; such powerful aid it required nothing less than the influence of the Attorney-General to meet, and so eloquent was Mr. Foster that the newspapers would not believe that he had exercised so such eloquence without a fee.  This would of course be laughed at by every one, and no one would think of treating it as anything but a joke, except those who wished to make a peg of it on which to hang a libel.  But if the paragraph really meant what it said what had that to do with the Attorney-General; every one must know that the Australian is never published without an article, if not to the censure, at any rate not to the praise of his learned friend, and it was not to be supposed that the Australian was the paper which the Attorney-General would have chosen in which to insert his effusions if he had written any.  He could not, he said, conceive what there was audacious in the Attorney-General coming forward at the election, and it certainly was no compliment to the Magistrates to suppose that they would allow their suffrages to be controlled either by the Attorney-General or a Judge of the Court of Requests.  The charge of cowardice contained in the letter he thought came with a very bad grace from the defendant when he shrank out of the room at the meeting without saying a word to show that he was offended, or making any imputations when the Attorney-General could have give them the lie direct.

His Honor said he was confident no gentleman at a public meeting could think of giving another the lie direct, especially at a meeting of Magistrates.

Mr. a'Beckett continued. - He only meant to give the lie to the imputation not to Mr. Macalister.  The four gentlemen alluded to in the libel were Mr. Bingle, Mr. Bean, Mr. Donnison, and Mr. Moore, all of whom were acquitted and three of them afterwards brought actions against the Magistrates for putting them in irons, and the Jury very properly gave them large damages.  But what had the Attorney-General to do with that; is every person accused of felony and acquitted to say the Attorney-General has been actuated by sinister and improper motives.  The Jury must be aware of the difference between the evidence on the depositions, and after it has been sifted in Court.  But it was not because if the depositions were before the Jury, and they would not put a person upon his trial, and the Attorney-General had done so that he had not fairly exercised the discretion of his own mind; but whether he had been actuated by political, personal, or other corrupt motives was another thing, and it was sufficient for the Attorney-General, if his conscience told him he had been acting properly.  All that the Attorney-General wished to do was to deny on his oath the imputations with which he was charged; he had already denied them and he would deny them again; he would be put into the box, and if the other side cross-examined him they would be wofully disappointed if they expected to extract anything from him that would support their case; when a party has made up his mind to anything he does not like to find that he is wrong, and unless the other side wished to be undeceived, which he believed to be the fact, he trusted that they would direct their cross-examination so as not to touch on these points or they would find that the Attorney-General had acted most kindly in the cases alluded to - that he had paused at every step, that he urged the Magistrate to send the case to the Court of Requests, and it was not until there was such a state of things that he could no longer avoid doing so, and that one of the parties had actually courted to be put upon his trial that he resolved upon filing informations; they would find that Mr. Bingle said, that whatever might be the result of his case he should always feel obliged to the Attorney-General for his handsome and generous conduct; they would find that when the Magistrate put some of the persons in irons, the Attorney-General refused to afford him any assistance until he was told under what circumstances it took place.  His learned friend felt as indignant as the Jury could do at the treatment these gentlemen had received, and it was not because the circumstances had received a false colour that the Attorney-General was to blame.  No doubt they would be told that they should bring a civil action - what, the Attorney-General of the Colony bring a civil action for libel, and put in the declaration that he had lost the esteem and respect of his friends; the Attorney-General would scorn to say that anything written of him could cause him to lose the esteem of his friends.  If they had brought a civil action no doubt they would have been asked why they did not file a criminal information, when the Attorney-General could have denied the truth of the libel upon oath.  No doubt it would have been much more convenient to the slanderer if a civil action had been brought.  The Jury must remember that it was not because a person did not prove his innocence that he was to be found guilty; this was not a question of fact but of motive, and the motives of the Attorney-General could only be tried in a criminal case where he could speak himself as to his motives; of a man's motives only himself can judge.

His Honor here reminded the learned Counsel of the celebrated case of the action brought by the Solicitor-General of Ireland against Judge Johnstone for a libel reflecting upon his motives in conducting the case against the unfortunate Emmet, which was published in Cobbett's Register.

Mr. a'Beckett continued. - Is character of so little value, that because a party is calumniated, and does not choose to bring a civil action against his libeller he is to be considered guilty.  It would of course be said on the other side, that if the Attorney-General was actuated by corrupt motives he would swear that he was not, but in the Attorney-General's person the administration of justice in this Colony is concerned, and if he was guilty of what was laid to his charge he ought to be at once removed from his situation.  He had no doubt they would hear too about the liberty of the press, which would be perfectly ridiculous; if it was the mere tirade of an anonymous scribbler it would most probably have been treated with contempt, but it bore Mr. Macalister's name, and was as much Macalister's letter, and had no more to do with the liberty of the press, than if it had been privately sent or posted upon the walls.

The first witnesses called was:--

Mr. George Cavenagh, Editor of the Sydney Gazette, who proved the libellous letter to have been published from a manuscript supplied by Mr. Macalister, and that Mr. Macalister had authorised him to acknowledge him as the author.

Cross-examined. - The letter was published on a Saturday; the election for the Chairmanship took place on the previous Tuesday; the Australian was published on a Friday and Tuesday at that time, so that Friday the 10th would be the first publication of the Australian after the election, I was present and heard what took place at the election; the public was admitted; there were many person present; the Police Office was crowded; it was at the request of the Editors and Reporters that the public was admitted; I heard what was said.

A lengthy discussion here took place as to what should be allowed to be proved.  The Counsel for the prosecution contending that it would be irregular to go into what took place at the Police Office, except they were allowed to be equally irregular.  His Honor said that strictly speaking the only question for the Jury was whether the publication was a libel, and whether it was criminal, but if it would tend to promote peace between the parties he would allow any explanation, however lengthy to be gone into, but he should be very sorry if by so doing he should admit any evidence that would tend to aggravate the ill-feeling that had prevailed between the parties.

Mr. Cavenagh continued. - Mr. Manning was the first candidate proposed; he was proposed by the Attorney-General; I attended to the speeches that were made, but my recollection is very imperfect as I have not refreshed my memory by referring to the papers; Mr. Plunkett was a warm advocate for Mr. Manning; I recollect his saying something to the effect, that if Mr. Macalister was in the chair they might toss up head or harp for a verdict; he accompanied the expression by throwing up his hand; I do not recollect anything about political manoeuvre, but I recollect something about Allott, the crier, and Jilks; Mr. Plunkett's manner must have been offensive to Mr. Macalister.

Re-examined. - Mr. Manning was a candidate; whatever Mr. Plunkett said Mr. Macalister must have heard it.

John Hubert Plunkett, Esq. - I am Attorney-General of this Colony, and have been so since April 1836; I was Gazetted before I was aware of it in March 1836, but I was acting Attorney-General when Chief Justice Forbes went away; I recollect filing informations against Messrs. Beingle, Moore, Bean, and Donnison; the first case was against Mr. Moore; the second against Mr. Donnison and Mr. Bean, and the third against Mr. John Bingle; Mr. Moore was charged with stealing cattle, the property of Mr. Cape; Mr. Donnison was charged with killing a cow, and Mr. Bean as accessary after the fact; and Mr. Bingle for stealing cattle; (informations produced) these are the informations; in filing the informations I did so without fear, favour, or affection, in the usual manner; Mr. Moore I never saw nor ever heard of, except in a case of cattle stealing which took place more than a year before; I never heard the names of Mr. Moore, Mr. Bean, and Mr. Donnison mentioned in politics; I had an acquaintance with Mr. Donnison through my friend Mr. Hely, who was anxious to do anything that would serve Mr. Donnison; there was no political dishonesty connected filing the informations against Mr. Bingle; I knew Mr. Bingle was a political character; he was the only gentleman of the four who are alluded to whose name I ever heard connected with politics; three depositions - two taken before the Police Magistrate at Maitland and one at Newcastle - were received at my office through the Colonial Secretary's office; I mentioned to Mr. Fisher that it appeared on the depositions that Mr. Bingle was not present wen they were taken, and knowing that Mr. Bingle was in town, I wrote, or Mr. Fisher wrote at my desire, requesting Mr. Bingle to call upon me; Mr. Bingle did call, and I showed him the depositions, and the explanation he made was anything but satisfactory, as it was partly in corroboration of the depositions that had been made; I told Mr. Bingle that he had better call the next day and bring Mr. Allen, who I knew was his legal adviser, along with him; the next day Mr. Bingle called, bringing Dr. Carlyle along with him, but he could not satisfy me - he could not even recollect whether he sat two days or not; I told Mr. Bingle that from the explanation he had made further enquiry would be necessary; and as Invermein was the nearest Bench, and he had reflected on the Magistrate of that Bench, and they might like to be witnesses, I should advise that one of the Police Magistrates should be sent up to conduct the enquiry.  As Mr. Bingle was leaving the room, he turned round to me and said - Mr. Attorney-General, whatever may be the result of this affair, I shall always feel extremely obliged to you for your handsome gentlemanlike conduct towards me.  I should state that when I explained to Mr. Bingle the charges that were contained in the depositions he appeared anxious for an investigation; as the letter is signed "Lachlan Macalister," I consider the "I" at the commencement of it means Mr. Macalister.  [Mr. Plunkett here swore to the different inuendoes [sic] set forth in the declaration.]  I recollect the meeting of Magistrates for the election of Chairman; I proposed Mr. Manning; I am not aware that I said anything offensive to Mr. Macalister, personally; if I did, I did not intend it; I find a report of what I said in the Sydney Herald, which is correct except in one particular; I particularly recollect disclaiming any intention of being offensive to Mr. Macalister, and that is not inserted in the report, I shook hands with Mr. Macalister after going into the room; he made no complaint of what I had said; he replied to my speech.

Cross-examined - I shook hands with Mr. Macalister when I entered the room but not when I left it; I do not recollect telling Mr. Macalister that he had lent himself to effect a political manoeuvre; I recollect that in illustrating the principal that merely hearing law qualified a man for the Bench, I said that the Chief Constable or the Crier of the Court would be qualified, and seeing that Mr. Macalister, who sat opposite to me, appeared annoyed, I said that I meant nothing offensive; I find by the report that I used the word ``manoeuvre" in the early part of my speech, when Mr. Scott got up to nominate Mr. Macalister, and sat down again upon being pulled by the coat by Mr. Foster; that was the only time I used the word manoeuvre; I do not say I did not say political manoeuvre, but I do not find it in the report and I do not recollect it; I had a better opportunity than any one else in the colony, except Mr. Kinchela, of knowing the unfitness of Mr. Macalister for the office of Chairman; that was the only reason why I interfered; I attended the Court of Quarter Sessions when Mr. Manning took his seat for the first time, and made an address to the Magistrates; I made a speech in reply; my object was to expose the great inconveniences that occurred in consequence of the non-attendance of Magistrates to preside with the Chairman; I never attended the Court of Quarter Sessions for the purpose of making a speech before; all informations in the Court of Quarter Sessions are in my name, but this is a legal fiction as I never see them; before the information is drawn I always see that there is a case on the evidence; within the year I have refused to file informations in perhaps fifty cases in which the Magistrates had committed parties; in distant parts of the colony it is necessary some one should have the power of filing informations; a man may be acquitted on one charge which may render it necessary that he should be indicted on another, and therefore the power must be lodged in the hands of some one; in the usual course of business if any question arose as to the legality of an election it would be referred to me; in the year 1835, when Messrs. Therry and Riddell were the candidates, a case was referred to the Attorney and Solicitor-General, respecting two Magistrates who went to Windsor to vote, and their votes were refused; in October, 1836, a case was referred to me by Mr. North, of Windsor, whether a Magistrate belonging to Penrith could vote at Windsor; there is a case on the subject now in the hands of Mr. Fisher, but in consequence of the pressure of business during the criminal session, and Mr. Fisher having been ill two days, the papers have not been laid before me yet; the informations against Bingle and the others were in the common form; there is no difficulty in drawing up; an information for cattle stealing, it is little more than a printed form; I certainly looked with great alarm at the prospect of Mr. Macalister being elected Chairman; I was alarmed for the safety of the public, knowing how unfit he was to discharge the duties; the Court of Quarter Sessions has a very extensive jurisdiction, especially over convicts, who are tried for all offences not capital without any jury; many cases can be tried there that until lately could only be tried in the Supreme Court; I allude to cases of cattle stealing and forgery, and by the Acts of Parliament lately adopted, even burglaries can be tried there.

His Honor here remarked that so extensive is the jurisdiction of the Court of Quarter Sessions, that he had written to the Government to say that there is no immediate necessity for Circuit Courts.

Mr. Plunkett's cross-examination continued - I conducted all these cases myself; I only conduct about half the cases myself, as two Courts are sitting, and I cannot be like Lord Castlereagh's bird in two places at once; in Mr. Bingle's case I claimed the right of reply; I know no instance where the right of reply was insisted upon in a case of felony; my reason for replying is obvious; the last words I had heard from Mr. Bingle were those I have before mentioned, and when I felt conscious that the charges that Mr. Bingle made against me, from a written defence, were untrue, it would have been disgraceful in me not to repel them indignantly; I spoke to evidence and argued for a conviction; afterwards, through the public press, I heard that Mr. Bingle had transmitted some charges against the Executive to England; perhaps Mr. Bingle might have coupled this fact with the prosecution, but I did not know he had transmitted such charges home; if I had I am under the impression that I should not have replied; in cases of felony, as counsel cannot be heard, I do not reply, but in this case Mr. Bingle spoke upwards of an hour more effectively than a counsel could have done; some one sent me a copy of a book published by Mr. Bingle in London, which contains a lengthy report of his trial taken from the Herald, but there is one material omission --the opinion of the Jury delivered when they returned their verdict; I cannot say whether the Jury was justified in making that observation.

Mr. Foster here closed his cross-examination; when Mr. Plunkett said that he had all the papers in Court, and although Mr. Foster had not examined him he trusted the Court would allow him to explain his motives; Mr. Moore he did not know, and he would state that he thought the case against him was not very strong from the first; it was a wild beast in the bush that was alleged to be stolen, and he would gladly have avoided putting him on his trial, but there was a prima facie case, and he could not.  Mr. Foster objected to the Attorney-General going into any explanation, as the defendant could not call witnesses to rebut it.  The Attorney-General said that he had been charged with corruption, and he wished to explain.  His Honor said that the only issue they had to try was libel or no libel.  In the case of the Solicitor-General of Ireland, which he had before alluded to, he declined being any party to the criminal information which was filed by the Attorney-General of England, but brought his civil action, where the whole circumstances of the case could come before the Jury, but in the case they were trying, it was not whether the matter was true or not, but whether it was a libel, and was calculated to excite a breach of the peace; it was immaterial to the issue whether it was true or not true, although the falsehood might aggravate the punishment if the defendant was found guilty.  In civil actions the truth was the matter of enquiry, but in criminal information the enquiry must be whether the tendency of the libel was to cause animoisity.

Mr. Foster wished to ask the Attorney-General one question.  Did you hear that Mr. Macalister had offered to refer the matter to Mr. a'Beckett, your own counsel?

Mr. Plunkett. - Mr. Therry told me that Macalister wished to abide by the decision of my own counsel, but when I saw the vindictive feelings with which the case was conducted I resolved to go on; I would not allow the matter to be referred to Mr. a'Beckett because he was my own counsel, and because the only person who I would allow to sit in judgment on my conduct out of the ordinary way, were the three Judges; Mr. Macalister's friends asked their Honors, who kindly consented, and I agreed to let Mr. Macalister off, and in fact put myself upon my trial, but when I found when they had me in their power the kind of feeling that was evinced, I told the Judges respectfully that I must decline having the matter settled any way but by a Jury.

His Honor said that he must state, that he could not as a Judge, after having granted an information on public grounds, have anything to do with settling it out of Court.

Mr. Plunkett continued. - Dr. Bowman called upon me when I was very busy and I referred him to Mr. Fisher, and Mr. Fisher afterwards showed me a letter, which I must say I felt surprised Dr. Bowman should write, as it said that I must apologise as I was the aggressor.

His Honor said he would not allow imputations to be cast upon Dr. Bowman or any other gentleman who was absent.

Mr. Plunkett continued. - I would only consent to a reference on the condition that it should come on the Thursday, and I now see the wisdom of that step, or I should have been thrown over the term; when actions were brought against the magistrates for putting some of these parties in irons, it was stated that they acted under my advice, but I have here documents to show quite to the contrary.

Mr. Foster objected to his line of conduct being pursued by the Attorney-General, and both the learned gentlemen, occasionally assisted by Mr. a'Beckett, kept talking for several minutes, until, as soon as he could make himself heard.

His Honor said that the Attorney-General was only a witness, and not Counsel in the case, and consequently could not address remarks to the jury; he had indulged him a great deal too much, but he must be regular.  He (the Judge) felt that he was culpable for having allowed much of the evidence that he had, but he did it from a kindly feeling, in the hope that by explanations the case might end the same as a case that was before the Court on Saturday.

Mr. Plunkett re-examined. - All the four cases alluded to were left to the jury; in Moore's case Mr. Manning was called for the defence, and I saw at once Moore ought to be acquitted; in the case of Donnison and Bean the Chief Justice charged for an hour; in the case of Bingle he charged at great length; I never heard him say there was not the shadow of a case, but I think I recollect seeing in some newspaper that he did say so.

This was the case for the prosecution.

Mr. Foster addressed the jury for the defendant.  He said that the jury could readily conceive that it was under feelings of considerable embarrasment that he rose to address them, not that he had any apprehension that his client would not have justice done him, but his embarrasment arose when he considered who and what the prosecutor in this case was, and when he reflected that in the course of his duty he would probably feel obliged to make some observations on the conduct and character of that gentleman, which it would be readily conceived he would much rather have avoided.  If the case was before some tribunals he should feel that his client would be overwhelmed by the vast weight and influence of the prosecutor, but he was cheered in the performance of his painful duty when he looked upon the bench, and saw there a Judge who was not more celebrated for his high attainments in the law, than he was for his rigid impartiality and when he looked into the Jury box, and saw there men who he knew were able to judge between the parties, -- between the prosecutor and prosecuted, and who he was confident would declare their conscientious opinion whoever was pleased or displeased.  The defendant was charged with publishing a libel, and before going into the case, he would make a few remarks in which he was confident he would be borne out by His Honor.  In criminal cases of libel the jury have a much larger discretion than in civil cases; in civil cases they are bound to take the opinion of the Court as to whether the matter before them is libellous or not, but in the case before them, although they would of course listen with the reverence due to it, to any opinion expressed by His Honor, they were not bound by it, and it would be for the jury, after a full consideration of the case, not of the document alone, but of the attending circumstances and the time when it was published, to say whether or not they ought to find the defendant guilty.  This was no new doctrine; juries had been told it by one of the greatest ornaments of the English bar, he meant Mr. Erskine, and the doctrine was afterwards sanctioned by Lord Kenyon.  He had no bad feeling towards his learned friend the Attorney-General; on the contrary, he wished to think as well of him as he could, -- he would have been glad to see him able to clear his character from the imputations contained in the alleged libel, if there were any imputations, and to this point it would be his duty to call the attention of the jury, and in doing so, he felt that he would have to make some animadversions upon the prosecutor's conduct, but he would make none that he did not in his conscience believe to be true; he would be obliged to allude to his evidence, and to the manner in which he had given it, but he would read the case he had been alluding to.  (The learned gentleman read the case of the Queen v. The Morning Chronicle, in which it was laid down by Lord Kenyon, that the jury were the Judges both of the law and the fact.)  He quoted this case to show the duty which the constitution cast upon the jury, and in order that they might try the case, knowing what their duties were.  The next question for the jury would be, by what means were they to come at a correct conclusion, and he would show them by the authority of the same case, that they were to come to a conclusion, not merely by reading the letter itself, but by considering the time when, and the circumstances under which it was published. Of all crimes of which malice is the gist, the time and circumstances are most important; they may either point out or refute malice.  (The learned gentleman here quoted Lord Kenyon's opinion, that the jury must consider the time and circumstances attending the publication in forming their judgment.)  It was by the attendant circumstances that the jury could judge what were the intentions of the defendant, and whether he had published the letter maliciously or not.  In the highest crime known to the law, murder, although the fact of killing may be clear, the circumstances attending the killing may be such as to prevent the party being convicts of murder; because the circumstances may rebut that malice which is necessarily to be inferred in a case of murder.  In criminal informations for libel, malice is the gist of the offence, and if the jury found a verdict upon which no judgment could be entered, and would in fact, be a verdict of not guilty.  When the jury took all the circumstances into consideration, it would be for them to say whether it was not written at the impulse of the moment, and under such provocation, that the defendant was entitled to his acquittal.  The Court, he was happy to say, was never anxious to infringe the privileges of juries, and he would show that the doctrine he had laid down was not merely theoretical, but had been acted upon in the very case he had before alluded to.  Lord Kenyon in his charge to the jury said, ``I am bound on my oath to tell you, that I consider this to be a wicked malicious libel, written with the intention of vilifying the Government, and making the people discontented with the constitution under which they lived."  Stronger language than this a Judge could not use, and yet a general verdict of not guilty was returned; and as a matter of history it is well known that the verdict was approved of, and to this day is recorded to the credit of the jury.  He would now look at the circumstances of the case before the Court.  It appeared, for it was stated both by the Attorney-General in his evidence, and Mr. a'Beckett in his opening speech, that Mr. Macalister, at the instance of his friends and brother magistrates, resolved to propose himself as a candidate for the situation of Chairman of Quarter Sessions, for a purpose which he should always be happy to support; for if the magistrates are to have the election of their own Chairman, let them have it without any interruption from Government or Government Officers; if it is not right to let them have it, take the right away from them, but have no half-and-half measures; do not let them have the right of election in theory, but deny it them in fact.  The magistrates had been told that it was not necessary they should have a barrister for Chairman, but could find among their number many fitted for the situation.  He would avoid as much as possible saying anything against a party not before the Court, but he thought that what he was about saying would convince His Honor that he (Mr. Foster,) had not put a question to the Attorney-General that was not material to the issue.  After Mr. Macalister's nomination, another party, whom he would not have called the Government nominee, had he not been called so on the other side, made an exhibition in the Court just before the election, in which he was assisted by the Attorney-General; in fact there were not wanted wicked people, who called it the electioneering field-day for the benefit of the Government nominee; happening to look in, and seeing who were playing first and second fiddle, he (Mr. Foster,) went away again.  Shortly afterwards the election took place, and he would have found no fault with any one for expressing his opinions; but they were not addressing a number of forty shilling freeholders, there was no reason to cajole and talk as if they were addressing a mob, they were all gentlemen - men of rank and character, and no Magistrates had a right to impun the motives [?] ridicule the claims of any one; they had only a right to speak of the qualifications of the candidates in proper decent language, and not go beyond it.  And who was it that did go beyond it?  Was it some hot headed young men recently appointed to the Magistracy who did not know his duty?  No, it was no other than Her Majesty's Attorney-General, who went to the meeting professing that he went because he considered it his duty to protect the Magistrates; he went there in all the pomp of office in order to tell the Magistrates that they were in leading strings; and was it proper under such circumstances for the Attorney-General to compare the pretensions of one of the candidates with those of the Chief Constable, a man whose circumstances when he first came to the Colony were well known, or to the crier of the Court; was it proper, would it have been decent in the youngest Magistrate present to have charged one of those candidates with acting upon political motives; had a party who used expressions like these any right to complain of a milk-and-water letter like the alleged libel.  The prosecutor must certainly have had strange ideas of the composition of juries in this Colony, if he for a moment thought he should be able to induce a jury to convict the defendant. - He would cite a case in point.  A prosecutes B for calling him a thief, and B proves that just before A had called him a rascal; would not any jury say these parties are quits, we will acquit the defendant.  If the Jury balanced the offensive matter in this case he was confident they would find that a considerable debt was due to the prosecutor.  The remarks that he had made were upon the assumption that Mr. Plunkett had a right to act as a Magistrate; indeed, Mr. a'Beckett in his opening said something about its being the Attorney-General's duty to attend the election, and on that point he would take issue with his learned friend.  He would contend that the Attorney-General acted unconstitutionally in interfering with the election, or if he had the right he must say he committed a great breach of propriety.  Look at the meeting, what was it for?  The Act of Council says that the Magistrates shall assemble in their respective districts once a year to elect a Chairman, and the meaning of that evidently was that the Magistrates that could sit in the Court of Quarter Sessions should nominate the person they wished to preside over them.  This was the opinion of some whom he was bound to reverence and who were formerly of a different opinion.  The Attorney-General said in his evidence that he was the public prosecutor in the Court of Quarter Sessions the same as he was in the Supreme Court; he is so in theory, and if an individual has duties cast upon him which he cannot perform he has a right to resign his situation.  By the New South Wales Act the Attorney-General is substituted for a Grand Jury, not only in the Supreme Court but in the Court of Quarter Sessions, and every man that is put upon his trial in this Colony has a right to have the impartial opinion of the Attorney-General before he is tried, and if he is put upon his trial without that, no matter what difficulties are in the way, he has injustice done him, and has a right to complain. -- Is it nothing for a man although acquitted to have to hold up his hand at the bar?  Could a party who had such duties entrusted to them delegate them to another.  He would ask any person of common sense with what propriety the Attorney-General could sit upon the Bench after acting as a Grand Jury.  Suppose during the trial that objections were taken against the information, could it be tolerated that the party who was responsible for the correctness of the information should appear upon the Bench and judge of its sufficiency -- the thing was preposterous.  It had been said that the Attorney-General could sit when appeal cases were heard; this is only a very small part of the business of the Court, but he could show that even in that case the Attorney-General could not sit with propriety.  The Magistrates have to try whether the convictions are good, and whether certain fines that have been imposed are to become due to the Crown, and would it be seemly to see the person whose duty it was to see the fines paid sitting on the Bench.  Another reason why the Jury should acquit the defendant was that the election did, as had been admitted on the other side, cause considerable political excitement.  One of the candidates was supposed to be the nominee of the Government, and it was therefore peculiarly incumbent upon all Crown Officers to abstain from interfering.  What effect could it have when the principal Law Officer of the Government was seen taking such an active part in the proceeding?  Was it not sufficient to confirm the impression?  But what duties might not have been cast upon the Attorney-General; suppose there had been any dispute as to legality of the election, to whom could it have been referred but the Attorney-General? and this alone ought to have prevented him from attending.  He (Mr. F.) cared nothing about high flown expressions of integrity from any man; he judged of every man by his acts, and he had no hesitation from his knowledge of human nature in saying that it was quite impossible that his decision could be formed without bias.  The Government would of course act upon the decision of its law advisers, and he would ask if such a decision, the decision of a partizan would satisfy the public, would it satisfy the parties except the party in whose favour it was given?  He hoped he was saying nothing that was disrespectful to the Attorney-General; he was saying nothing he did no consider himself bound to say.  As to the shaking hands with Mr. Macalister what was that mentioned for; if it had been after the meeting, after he had seen how the Attorney-General had treated him that Mr. Macalister had shaken hands with the prosecutor he would have thrown down his brief and said convict him as soon as you please, but what was the fact, what did it show, why that as his client had shaken hands with the prosecutor he had no malice towards him, that he had the best feeling towards him.  Any Magistrate had a right to propose himself for the office of Chairman, and although he might not form a correct opinion of his own ability he had no right to be abused.  He (Mr. F.) must say that he would rather see a gentleman with such a knowledge of criminal law as every gentleman of liberal education must possess, placed in the situation than see a person without the least knowledge of the Colony thrust into it merely because he was a barrister, or because it might be convenient for him to hold it.  From the evidence of Mr. Cavenagh, that the room was thrown open at the request of the editors and reporters, it was clear that the Attorney-General must have known that he was not speaking to the meeting alone, but that every word uttered by a person of his rank and station would be caught up, and blazened forth in the most conspicuous manner.  It had been asked on the other side why Mr. Macalister did not at the time resent the insult; he was satisfied that his learned friend Mr. a'Beckett, who was as celebrated for his gentlemanly manners and courtesy, would not have gone out of his way to use strong language except it was in his brief - he had talked about giving the lie direct - he was confident his learned friend's instructions must have been very strong indeed before he would have done so, but it served to shew the feelings which actuated his client the prosecutor.  It was asked why he did not at the time resent; why the defendant would never have thought of blustering for the purpose of being bound over to the peace the next moment; it was ridiculous to talk about resenting it at the time, although perhaps the defendant would have been impudent enough to have attempted to do so had he not been taught better sense by his friends. - His client was a man who would

Resent an insult when it was given,

Even in the Court of Heaven.

He dare say he would have resented it at the first convenient time afterwards had not his friends in fact bound him to the peace, and the whole matter would have been treated with contempt, but what was the consequence?  Why, that on the Friday following the Tuesday, the first day on which it was published after the election, the Australian, the organ of the prosecutor's party -

Mr. a'Beckett disclaimed that the Attorney-General belonged to any party, consequently the Australian could not be his organ.

Mr. Foster continued - He had a right to consider the paper the organ of the party, and when Mr. Macalister found the speech of the Attorney-General reported fully, and an insulting paragraph, appended to it, it was not wonderful that he felt excited.  What was said about him (Mr. Foster) he cared not - a man who is in the habit of speaking in Court every day does not mind what is said about him, but what was the imputation cast upon Mr. Macalister?  Why, that in order to procure supporters he had bribed a Magistrate of the Territory to advocate his cause.  When he found all the ridicule and insult that had been heaped upon him by the Attorney-General printed and blazoned forth, and a party who invents slanderous matter is answerable for it when it is printed, did  Mr. Macalister wait four days?  No, on the impulse of the moment he wrote the letter complained of - did that look like malice - did it not show that he had received sufficient provocation to negative any presumption of malice - was he not actually writhing under the provocation he had received, and it was to this part of the case he trusted the Jury would apply the dictum of Lord Kenyon, and look about at all the attendant circumstances.  Was the letter not written at the moment when the defendant had received great, gross provocation, and from a party who had no right to give it.  Was the provocation in the libel equal to the provocation of being told before a meeting of Magistrates that the best way he could decide a point of law would be by tossing up a half-penny, head or tail; and was it fair that twelve months afterwards a Jury should be summoned into that box to try the case.  He had gone into the case thus fully because his client was anxious that the hole of the facts should be before the public, in order that they might contrast his conduct with that of the prosecutor, and he felt that if his client had committed ten times greater offence than he had, if he had committed an actual instead of a constructive assault, although the Jury might have been constrained to find a verdict of guilty, it would have been accompanied by such a recommendation as would have been tantamount to a verdict of acquittal. --  But he denied that his client had published the libel, he had published the letter but it was not the libel which the Attorney-General said it was.  Where matter which by itself is not libellous is rendered so by extrinsic matters it is necessary that the extrinsic matter be set forth in the declaration, and that the inuendo must fully declare the meaning which is considered libellous.  If one of these is omitted or incorrectly stated it is impossible that a defendant can be found guilty.  The libellous matter complained of was not libellous in itself, and unless the Jury considered that the libel meant that the Attorney-General had outraged British Feeling, British rights, and British justice in filing informations against the parties and bringing them to trial they were bound to acquit the defendant.  Without the inuendo there would be no libel, because there were a variety of innocent ways in which it might be read; he would mention one, it might mean that the Attorney-General as counsel against these parties in a civil action had laboured to get immense damages from them, knowing that they had done nothing wrong which would be an outrage upon British feeling and British justice, but would be no crime in the Attorney-General who would be bound to do the best he could for his client.  The prosecutor was tied up, and unless the Jury in plain language considered that the libel charged him with having through political dishonesty filed the informations against those gentlemen, and thus committed the outrages alluded to, they were bound to acquit the prisoner.  (The learned gentleman quoted a case to bear him out in this position.)  He was willing to admit that the letter contained as grave a charge against the Attorney-General as could be made if it was made deliberately; if the Attorney-General actually was charged with political motives, and deliberately, it was a very grave offence, but not if at the time it was made the defendant was smarting under great provocation.  But he contended that his client had said no such thing, and before the Jury could convict the defendant, they must be quite satisfied that he had done so; if they considered the point doubtful or ambiguous they must lean to the side of innocence; they must feel no doubt, they must be convinced that by the words used the defendant meant to impute that the prosecutor was actuated by political dishonesty.  He had put the informations against the four gentlemen, in evidence, not for any idle purpose, but for the purpose of proving the defendant's motives. - When the Attorney-General had the informations in his hand he admitted that no great talent was required to draw them, that they were scarcely more than printed forms, and that consequently no legal acument was required, and as fifty informations can be filed without one word being spoken there is no occasion for eloquence, without speaking there cannot be eloquence, and the Jury should have the informations themselves in order to see if they could discover any wit; if therefore, there was no legal acumen, no eloquence; no wit, how could the letter refer to the mere fact of filing the informations, in fact the Attorney-General had libelled himself; as to the political honesty, that he looked upon as a nonentity, it never having heard of any.  As the Attorney-General had libelled himself he had better apply to the Court for an information against himself; in the information they were then trying the Attorney-General, appeared in a twofold capacity, having informed the Court that he had been libelled, but if he applied for an information against himself he would appear in a threefold capacity, and have an information entirely to himself.  He would ask the Jury, as sensible men, without any reference to quibbles, whether they could put the construction on the letter that the Attorney-General had put himself.  He would ask the Attorney-General whether it did not rather refer to the manner in which he conducted the cases in Court, whether it was not for his exercising his right of reply, when he could not recollect even one case in which the right had been exercised before.  He did not make these remarks for the purpose of impugning the Attorney-General's conduct, but to show that at the time it was written, when his client was almost stung to madness by the provocation he had received, he did not know what it meant.  If he (Mr. F.) had had to draw the information and had to guess at the meaning of the letter he would have said that the outrage on British feeling did not refer to the filings of the informations, but to the manner in which the Attorney-General conducted the case as counsel in Court; that it meant that he had conducted them too zealously, that he had taken them all under his own care, when it appeared that he was not in the habit of conducting more than half the cases, that he replied in one of the cases, when he never did before.  He found that there were some people who thought this, and it might be that under the great irritation the defendant might have intended to impute this, but it was all guess; he would have then gone on to say that the said cases having been tried, the libel meant to impute that the Attorney-General had acted with too much zeal, and been actuated by political motives.  This, although a guess, would have been much nearer than the present information; there was great speaking, and some people call great speaking eloquence, and there was room for wit and legal acumen.  He had been taunted with not putting questions to the Attorney-General when he was in the box, but he hated half-and-half measures, and if the Attorney-General wished to clear up his character, the proper course would have been to bring a civil action; then the defendant must have either justified or flinched from it; if he had flinched, then the Attorney-General's character would have been cleared; or if he had justified, then the matter would have been tried - it could not be cleared up by the Attorney-General going into the witness box and swearing to his own motives - it must be proved by other means - by documentary and other evidence; then his character would have been cleared; but his client was not to be juggled into asking questions that would not help his case.  Where criminal motives were imputed to a party, he must be a simpleton to believe that there was any aristocratic method of proving guilty or innocence.  In cases of this kind he was aware of the maxim, the greater the truth the greater the libel, and therefore, if the truth was proved, the case would only be where it was before.  It was absurd to say that because it was a question of motives it must be taken out of the ordinary way; the Attorney-General must submit to the ordinary method of proving his case.  Every day the Court try cases in which the motives of the party are in issue; in the information they were then trying, malice was the gist of the case, the motives were everything.  He had had an irksome duty to perform, but the pain that he had felt had been much relived by the rancorous manner in which the prosecution, or rather the prosecution had been carried on.

Mr. a'Beckett drew His Honor's attention to the second count in which the libel was laid without any inuendoes [sic].

Mr. Justice Willis said that, whether the alleged libel was true or false was not at all material - the provocation was the thing to be punished, not the falsity of the libel.  Under the first count the Jury would have to find whether the inuendoes [sic] alleged in the information were borne out.  With respect to a civil action being brought he had only to remark that Mr. Plunkett, the Solicitor-General of Ireland, did not consider it beneath his dignity to bring a civil action when his motives were libelled, and if in this case a civil action had been brought, and the defendant had justified, the whole truth would have been in issue, and the whole matter more satisfactorily investigated.  Perhaps he had allowed much irregular matter to be introduced into the case but if he had it was with a kindly feeling, in hopes that when the parties had explained it might have the same happy effect that it had in a case on Saturday, but in fact the truth or falsehood of the libel had nothing to do with it, the question was whether it endangered the peace, whether it tended to provoke animosity, whether it tended to injure the prosecutor and provoke his friends to avenge the injury.  Whether the publication was or was not a libel was a question entirely for the Jury, although before the passing of the Act of Parliament known as Fox's Act, the only question for the Jury was whether the matter was published, and whether the inuendoes laid in the information were proved, the Judge or Court only being competent to say whether or not the matter was a libel.  According to the Act the Jury can find a verdict on the whole matter, both as to the law and the fact, although there is a proviso that the Judge can give an opinion if he pleases, but as a matter which was left only to the plain common sense of the Jury, he should be ashamed to give an opinion.  In judging whether the defendant was actuated by bolna fide motives or acted maliciously, the Jury were at full liberty to take into their consideration all the extrinsic circumstances, and therefore it would be for the Jury to say whether the circumstances under which it was published justified the publication.  This was not an ex officio information, but an information filed by leave of the Court, and therefore he (the Judge) refused to step forward and impeach as it were the decision of the Court by privately settling the matter, although he fully appreciated the kindly motives which had influenced the Judges who had undertaken to arbitrate in the case.  The Jury must take into consideration the time and the circumstance, and see which would extenuate the offence, and which support the information, and after this consideration, without reference to the truth or falsehood of the charges in the libel, return their verdict.  (This is but a very meagre report of His Honor's charge, but the Judge speaks very low, and there is generally such a noise at the Bar when  judge is summing up, that it is impossible to hear one-third of what falls from the Bench.)

The Jury returned a verdict of Guilty - but written under very strong provocation and excitement.

The Clerk of Arraigns asked the Jury for the words of their verdict, when His Honor said that all that he could receive was a verdict of guilty or not guilty, but the remark of the Jury, which he considered tantamount to a recommendation to mercy he had entered upon his notes, and would submit to his brother Judges, so that the defendant would have the benefit of it when he came up for judgment.

The defendant ten entered into his own recognizance of £100, and two sureties of £50 each, to appear on the first day of term.

Counsel for the prosecution, Messrs. a'Beckett and Windeyer; for the defendant, Messrs. Foster and Broadhurst.

 

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

Source: Sydney Gazette, 4 December 1838[ 6]

 

Re Lachlan McAlister. - The Chief Justice enquired if Mr. McAlister was in Court.  Being answered in the affirmative, he asked Mr. a'Beckett, Counsel for the Attorney-General (the prosecutor), if he prayed for judgment.

Mr. a'Beckett said he did not pray for judgment against the defendant, who, he said, had entered into recognizances to appear for judgment on the first day of next term.  He further observed that as the offence of which the defendant had been convicted properly came under the jurisdiction of the Court, as a Court of Queen's Bench, he doubted whether their Honors could, in the present instance, set aside the practice.  He added that the defendant did not then appear at the instance of the prosecutor, and he therefore should not pray for judgment.

Mr. Foster contended that the Court should at once give judgment.  The defendant had memorialised the Judges to be brought up that day for judgment, and the prayer of the petition had been acceded to.  Notice of the circumstance had also been served on the other side, of which advantage had been taken by them in preparing affidavits on the case, copies of which had been furnished to the defendant.  He remarked that the delay that would be occasioned to the defendant, if he were obliged to wait until the first day of next term, would be very vexatious, as before that time he wished to be in another part of the Colony.

Mr. Justice Burton said it was perfectly competent for the Court to give judgment on the present occasion, whatever might be the practice in England.  The Supreme Court of this Colony exercised the functions of the Court of Queen's Bench in England and other Courts at the same time, and the only difference was that the Judges had divided the sitting of the Court for the trial of civil and criminal offences.  He observed that the misdemeanor of which the defendant had been convicted came under the denomination of the latter term, and it was therefore competent for the Court, while sitting in criminal sessions, to give judgment.  He added that if the prosecutor declined to pray for judgment, the Court would certainly proceed to give the judgment, although not prayed for; the only difficulty that could present itself would be whether the defendant was on that occasion relieved from his recognizances, or whether they would remain in force until the first day of next term, the period for which they had been entered into.

The Chief Justice said he had considerable doubts as to the jurisdiction of the Court in the case, as by the 9 Geo. IV. the Supreme Court was vested with the powers of the Court of Queen's Bench at home, and, as the case properly came under the jurisdiction of that Court, he entertained a doubt whether it was competent for the Court to adjudicate on that occasion.

Mr. Justice Willis said he was at all times sorry to differ in opinion from His Honor the Chief Justice but he entertained no doubt of the competency of the Court to give judgment if it were prayed for.

After some desultory remarks Mr. a'Beckett at length prayed for judgment.

Mr. Foster, counsel for the defendant, declined to put in any affidavits or to say anything in mitigation of punishment.

Mr. a'Beckett then put in certain affidavits in aggravation.  The affidavits he said were put in to explain the reasons for the delay that had taken place in the trial, as that delay had formed a prominent feature in the defence set up by Mr. McAlister.

The Chief Justice asked if the grounds of aggravation had occurred since the trial of the case, for all that occurred at that time and previously was bygone matter.

Mr. a'Beckett said the delay had formed a matter of charge by the defendant against the prosecutor to whom he, on that account, had imputed revengeful feelings.  The learned gentleman then intimated that the affidavits were put in for the purpose of aggravation of punishment.  The affidavits were those of Mr. D. Chambers, the attorney for the plaintiff, and the affidavit of the defendant prepared on the occasion when he opposed the motion, that the rule for the granting of a criminal information should be made absolute, and a latter from Messrs. Unwin and Went, solicitor for the defendant.  Mr. a'Beckett then intimated to Mr. Foster that that was the time for him to speak if he wished to say anything for the defendant.

Mr. Foster replied he should merely rely upon the verdict.

Mr. a'Beckett then observed that it would be necessary for him to enter into an explanation in consequence of the imputation of malice, on account of the delay which had been charged against the prosecutor, which he explained had been occasioned by the defendant.  The learned gentleman, in a lengthy speech, descanted on the grossness of the libel, and addressed the Court in aggravation of punishment.

Mr. Windeyer followed on the same side; he said he wished to explain away the odium of saying anything in aggravation while the other side was silent.  In the course of his remarks Mr. Windeyer took occasion to revert to the trial, and the learned judge who presided on the occasion, whom he said he thought had gone out of his way in some measure to point out a similar case which had occurred between Plunkett, the present Lord Chancellor of Ireland, and Cobbett, when the former had chosen to proceed by civil action.

Mr. Justice Willis interposed, and said he certainly did revert to the case of Lord Chancellor Plunkett against Cobbett for a libel, and had said that the former had chosen to proceed by a civil action.  He added, he had said so, but, he continued, because the Chancellor had chosen to do so, it was no reason why the Attorney-General should do so.  His Honor observed, that he had used the observation, and he repeated it, that he thought Lord Plunkett exercised sound judgment in doing so, and if he (Justice Willis) were Attorney-General, and the same imputations had been thrown on him, he would have tried the case by a civil action, and so allowed the defendant an opportunity to justify what he said.

Mr. Justice Burton, after a consultation with the other Judges, delivered the judgment of the Court.  He said it became his duty to pass upon the defendant the sentence of the Court.  It was painful to be called upon to pass sentence upon a Magistrate for the publication of a libel upon the Attorney-General containing imputations.  In looking over the libel there appeared to be parts which might allude to previous transactions of the Attorney-General; the term political dishonesty might be conceived to allude to the line of politics adopted by that gentleman, but the expression afterwards used by the defendant when he stated that the legal acumen of the Attorney-General had been employed to effect the ruin of four gentlemen, conveyed imputations which he was sure the defendant on reflection would not have used, and which he was sure he ought not to have used.  His Honor then reverted to the length of time that had elapsed since the publication of the libel, and said that the Court could not but remark, and he was bound to notice, that up to the present time there had been no offer of an apology to the Attorney-General or any offer of reparation for the attack which his feelings might suggest.  He observed that there had been no proof of the imputations thrown against the prosecutor attempted by the defendant, although it was as much in his power to do so, and more, when proceeded against by criminal information than by a civil action, as he could not only have put in his own affidavits but also those of any other persons who were cognizant of the facts.  In the affidavit put in by the defendant when he opposed the motion that the rule should be made absolute, he stated that if he were proceeded against by civil action he would justify; he had not done so when it was in his power, the Court were therefore bound to conclude he could not do so.  His Honor observed that he would then turn to the other part of the case.  The Court could not lose sight of what had preceded the libel, the speech of the Attorney-General, but for which it was conceived that the letter would not have been published, and by that circumstance the Court was mainly influenced in its judgment.  He was bound, in justice to the Attorney-General, to say that from the manner in which he had conducted prosecutions in that Court, which he had observed for a long time, that there could be no blame attached to him, and that he entertained the highest respect and esteem for him; but in this instance he was bound to say that the Attorney-General had acted unconstitutionally.  He was not aware whether, at the time of the election of Chairman, the Attorney-General was a magistrate by virtue of his office and as a Member of the Council, or whether he was so by virtue of a special appointment; he was not aware of that fact, but he could not but remark that in attending a meeting of the magistrates, and taking an active part in the election of their Chairman, he acted unconstitutionally; that while he, as a public prosecutor, was vested with the privilege to select what Court he might choose for the trial offences, that he should avail himself of his privilege to sit in judgment on those cases, as he could do by virtue of his being a magistrate, he thought it never could have been the intention of the British Legislature to give him that rank for the purpose of enabling him to assist in the election of a Chairman for the trial of cases he might send before him.  In looking at the speech of the Attorney General on that occasion, he could not but remark that there were many expressions which must have been very offensive to the defendant.  With respect to the qualifications of the defendant for the office he canvassed for, His Honor remarked that if any gentleman was unfit for the office of Chairman, he was unfit to be a Magistrate.  The Chairman was not, as had been stated, the highest judicial officer in the colony, next in rank to the judges, but merely the organ or mouthpiece of the Bench of Magistrates; the Bench was the judge of the law, and not the Chairman.  If the expressions, therefore, of the Attorney General related to the unfitness of the defendant to the situation of Chairman, they related also to his unfitness for the magistracy.  The expressions referring to Jilks, and Allot, the crier of the court, he looked upon as extremely contemptuous, as being made by Her Majesty's Attorney General in aid of the cause he was advocating, and could only be viewed as the expression of a person espousing the side of one of the candidates.  There occurred other expressions also very offensive; and particularly the expression that the defendant's best mode of deciding a point of law would be by tossing up head or harp.  If Mr. McAlister had resented these expressions on the spot in equally offensive terms he would have been justified, but he had not done so, he had had time to cool, and the terms of the letter were less vituperous than would have been warranted if written on the spur of the moment.  He thought it right to mention these terms in explanation of the judgment; he could have wished that the Court had not been called upon to deliver judgment, for the time that had elapsed which had been sufficient to have allowed Mr. McAlister to have retracted the imputations, and on the other side the application in aggravation of punishment might have been spared.  The arrest at Goulburn was rather a harsh proceeding, but the gentlemen conducting the prosecution were of opinion that the defendant kept purposely out of the way.  Under all these circumstances the Court thought itself justified in imposing a fine less heavy on the defendant than would have been done if there had been no provocation - if the speech of the Attorney-General had not preceded the libel.  He therefore thought the Court would sufficiently mark its sense of the matter by ordering and adjudging that the defendant should pay a fine to the Queen of £50, and be committed to the custody of the Sheriff until the fine be paid.  Mr. McAlister immediately paid the fine and left the Court.

 

Notes

[ 1]See also Sydney Herald, 26 February 1838; Sydney Gazette, 1 March 1838; Sydney Herald, 12 March 1838; Australian, 13 March 1838.

The most important change to criminal procedure in this period was the expansion of legal representation for criminal defendants.  On that, see In re Rowe, 1838.

[ 2]See also Sydney Herald, 2 April 1838; Sydney Gazette, 3 April 1838.

[ 3]See also Sydney Herald, 2 April 1838; Sydney Gazette, 3 April 1838.

[ 4]See also Australian, 5 June 1838; Sydney Gazette, 5 June 1838.

[ 5]See also Australian, 22 November 1838; Sydney Gazette, 22 November 1838; and for other proceedings, see Dowling, Proceedings of the Supreme Court, Vol. 155, State Records of New South Wales, 2/3340, p. 146.  For editorial commentary, see for example, Sydney Herald, 21 November 1838.

[ 6]See also Australian, 4 December 1838; Sydney Herald, 3 December 1838. This was also recorded in Burton, Notes of Criminal Cases, vol. 39, State Records of New South Wales, 2/2439, p. 108, stating after the verdict of guilty ``under very strong provocation & excitement" (p. 109).

Published by the Division of Law, Macquarie University