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

R. v. Smart [1839] NSWSupC 30

criminal libel

Supreme Court of New South Wales

Willis J., 10 May 1839

Source: Sydney Herald, 13 May 1839[1] 

Before Mr. Justice Willis and a Special Jury.

Mr. T. W. Smart appeared to answer a criminal information, charging him with publishing a libel in the following words --

``Before you appointed men like Simmons and Co. auctioneers, to a large estate like the above, you should, in justice to the creditors, have asked these questions.

``Are you in solvent circumstances?

``Are you not the receivers of stolen property, and have sold at your mart?

``Have you not had stolen property traced to you through the London Police, and has not your names been publicly notified in the London papers?

``Is your guarantee sufficient security for the estate; and in event of any buyers of large quantities becoming insolvent, can you secure us from any loss?

``Gentlemen Trustees, are these men deserving the patronage and support of respectable merchants.

``To Long and Wright's Trustees.

The circumstances of this case have been so often before the public, that it is hardly necessary to repeat them.  About eighteen months since, the firm of Isaac Simmons and Co. were appointed auctioneers to the insolvent estate of Messrs. Wright and Long, and one morning the libel was pushed under Mr. Lamb's (the Chairman of the Trustees) door.

Messrs. Simmons and Co. suspecting that the libel was in the handwriting of Mr. Smart, commenced an action against him, in which a verdict was returned for the defendant.  Having procured additional evidence, they brought him before the Police, and Mr. Smart was committed to take his trial, but the Attorney General refused to file a b[i]ll.  Application was then made to the Supreme Court, for a criminal information, which was granted by the Chief Justice and Mr. Justice Willis, Mr. Justice Burton dissenting; and it was this information upon which Mr. Smart appeared.

Mr. Cohen, the proprietor of the Australian, Mr. Lambe, the Commission Agent, Mr. Stanaway, an upholsterer, (this witness swore to some documents as in the hand-writing of the defendant which were proved not to be), and Mr. James Holt swore that to the best of their belief, the libel was in the handwriting of Mr. Smart.  Mr. Hadfield, formerly a clerk in Mr. Smart's employ, and who has since been prosecuted by Mr. S. for embezzlement, stated that upon going into the defendant's inner office for a book, he saw him writing the libel.  Mr. Blackman, the auctioneer, proved that Mr. Smart said that he knew more than was in the libel to be true, and that he thought rogues ought to be exposed.

The defence was a total denial of all knowledge of the libel.

The Jury, after an absence of about ten minutes, returned a verdict of Not guilty.

The case lasted the whole of Friday, and until two o'clock on Saturday.

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



[1]  For longer accounts, see Sydney Gazette, 11 May 1839.  The Australian named the members of the special jury, and provided an account of the judge's summing up to the jury.  It reported that Willis J. said that the case turned on proof of publication by the defendant, which was a question of fact.  Justice Willis was ill throughout the trial.  See also R. v. Roberts, 1839.

Published by the Division of Law, Macquarie University