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

R. v. Smart [1838] NSWSupC 89

criminal libel - election between remedies - criminal procedure

Supreme Court of New South Wales

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

Source: Sydney Herald, 24 September 1838[ 1]

Mr. Foster moved for a rule calling upon Mr. T. W. Smart to show cause why a criminal information should not be filed against him, for a libel upon Isaac Simmons & Co.  The libel, it will be recollected, was the subject of a civil action tried last term, when a verdict was returned for the defendant.  Subsequently, the plaintiffs having obtained additional evidence, preferred a charge at the Police Office, and Mr. Smart was committed to take his trial.  The Attorney-General having refused to file an indictment against Mr, Smart, on the ground that Messrs. Simmons & Co. having elected to proceed civilly, could not afterwards proceed criminally, the present application was made.  Mr. Foster was arguing to show that the civil action did not bar the criminal proceeding, when the Court stopped him by saying, that it would be time enough to argue the point when it was raised, and granted the rule.


Dowling C.J., Burton and Willis JJ, 29 September 1838

Source: Australian, 2 October 1838[ 2]


Ex parte Simmons and others. - Mr Foster moved, that the rule to show cause why a criminal information should not issue against Thomas Weare Smart, granted on Saturday last, be made absolute.

Mr a'Beckett appeared to shew cause, and he would state at once that he had not an affidavit of Mr Smart denying the matter, which would have set the matter at rest at once, Mr Smart had very sufficient reasons, with which he (Mr a'B.) was satisfied, for not making affidavit, and he would, therefore, go at once into the very strong reasons why the Court should at once refuse the application.  If this rule was made absolute, it would be the third ordeal through which Mr Smart would have passed; a civil action had been instituted against him for this alleged libel, in which a verdict had been returned for the defendant upon the evidence adduced for the plaintiffs, the defendant not having called a single witness.  The matter had also been brought before the bench of magistrates, and had been fully gone into there, but the Attorney-General, as grand jury, had refused to file an information upon the evidence laid before him, and had stated his reasons for not doing so at length.  No new evidence was argued as a reason for this applicatino [sic], except that of a man named Hatfield, who had been a clerk to Mr Smart, and whose affidavit was one the most improbable that could be imagined, and he (Mr. a'B.) would ask why this testimony had not been brought forward on the two former cases, if he knew all that he was sworn to in his affidavit.  He hoped the Court would pause before it granted the present application, if it was only on the simple ground of delay.  A civil action had been tried in March last, and a verdict given for the defendant.  No application had been made for a new trial, on the ground of the absence of witnesses, or for any other cause; but in May following, Mr Nichols had received instructions from Simmons & Co. to try Mr Smart criminally, and he was then, after a term had elapsed, taken to the Police-officer, and his case gone into; the Attorney-General must have had good and conscientious reasons for refusing to sign an information.  But this was not all, three weeks had been suffered to elapse after the Attorney-General had notified that he would not file an information before any steps were taken.  He also contended that the publication of the libel was by no means clear as it rested solely on the affidavit of Mr Thomas Stubbs, who said that the paper was handed to him by Mr Lamb as Chairman of the Trustees of Messrs Wright and Long who had received it through the two-penny post.  He called the attention of the Court to the very shallow proof of the hand writing of the libel - not one of the parties would take on themselves to swear that it was Mr Smart's, except Hatfield the clerk who certainly swore point blank to it.  There was nothing mentioned in the affidavits to explain why this man, Hatfield had not been examined as a witness on the former trials, and none of the others would take on themselves to swear positively to it, but simply that, on comparison with his handwriting which had been sent to them at different times it was very like it.  Great stress was laid upon a conversation which took place between Mr Smart and Mr Blackman, another auctioneer, in which he was stated to have said that he knew the contents of the paper, and could prove three times as much against Simmons and Co; but even if he had stated so, it was no proof of the publication of the libel, but a casual remark on a topic which was much talked about at the time.  With respect to the identity of the hand writing he would again direct the Court to the evidence of two respectable merchants, Messrs Lamb and Holt, who had ample opportunity of being well acquainted with Mr Smart's hand writing.  Mr Holt who was well acquainted with it for years could not undertake to swear to it, and Mr Lamb swore that he did not believe it to be Mr S's. hand writing.  He would again state that he might have put in an affidavit from Mr Smart which would have set the matter at rest, but Mr Smart had very prudently refrained from making affidavit from circumstances which need not then be mentioned, and he hoped the Court would not grant the rule in the fact of the refusal of the Attorney-General to file an information; it would, in fact, be censuring the course adopted by one of its own officers, and he thought the Court would require some very strong arguments before it adopted such a course.

Mr. Broadhurst followed on the same side.

Mr Foster appeared in support of the motion.  The application for the Rule was made under a provision of the New South Wales Act, and could have nothing to do with the propriety or impropriety of the Attorney General's refusing to file an information; he would state that he had been found fault with for putting the Attorney General's reasons before the Court, and had he, for one moment thought, that by so doing, any slur would have been cast on the Attorney-General, he would not have done so; he had, however, thought it necessary in making his application to put the whole case, without reserve, before the Court.  (Mr Foster went at length into the affidavits in support of the Rule, which were numerous; alluded to the failure of the civil action caused by the identity of the hand-writing, a very difficult point to prove at any time; to the difficulty of getting persons to make affidavit in cases where they were no way concerned; and concluded by observing on extraordinary fact that Mr Smart had not ventured to exculpate himself by affidavit, which would have put an end to the matter.)

The Chief Justice said that he was not called on to give an opinion on the course adopted by the Attorney-General; and the clause in the New South Wales Act, alluded to by Mr Foster, rendered his going into any of the other points argued, unnecessary.  There was a mass of evidence before the Court, and no exculpatory matter having been put in by the defendant, that evidence would be for the consideration of a Jury.  He was of opinion that the rule should be made absolute.

His Honor Mr Justice Burton differed from his learned brethren.  He should be happy when the time arrived that the Court would be relieved from the anomalous duty of sitting as Judges and Grand Jury.  The law allowed two modes of proceeding for the redress of grievances - the one for private wrong, the other for public injury.  The Attorney-General was bound to watch over the public interest, and take cognizance of any offence against the public; and he had, in the conscientious discharge of his duty, refused to file a bill; then it appeared that this application was not brought by the Attorney-General for a public injury, but for some private end, to which it was unnecessary to allude.  As a Grand Juror, he should not have felt justified in filing a bill; neither should he, sitting as he then did.

Mr Justice Willis agreed with His Honor the Chief Justice, that there was sufficient prima facie evidence before the Court to warrant it in sending the case to a Jury of the country. - Rule made absolute.



[ 1]See also Australian, 25 September 1838; Sydney Gazette, 25 September 1838.  For a related trial, see R. v. Roberts, 1838.

[ 2]See also Sydney Herald, 1 October 1838; Sydney Gazette, 2 October 1838.

Published by the Division of Law, Macquarie University