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

R. v. Robertson [1840] NSWSupC 36

criminal libel, Naval officer, libel of, court delays

Supreme Court of New South Wales

Dowling C.J., Willis and Stephen JJ, 26 June 1840

Source: Australian, 30 June 1840

            The Queen v G. W. Robertson. - In this case, in which the Attorney General had filed an ex officio information against the defendant, the editor of the Sydney Gazette, for a libel on Captain Nias, of H. M. S. Herald, to which information the defendant had pleaded guilty, the Attorney General moved for convenience of the defendant, as well as for the Crown, that the Court should appoint a day for giving judgment. Their Honors named Saturday next, as the day on which they would deliver the judgment of the Court, and intimated that should the defendant wish to put in before the Court any affidavits in mitigation, that the same should be submitted to the Attorney General (by courtesy) two days pervious. Mr. a'Beckett stated that he appeared on the part of the defendant, and intimated that the suggestion of the Court should be complied with.

Dowling C.J., Willis and Stephen JJ., 13 July 1840

Source: Sydney Herald, 17 July 1840 [1]

The Queen v. Robertson - In this case the Attorney-General had filed an ex officioinformation against the defendant, who is Editor of the Sydney Gazette, for having written and published on the 15th of April 1840, a libel on Captain Joseph Nias, R. M., Commander of Her Majesty's ship Herald, then cruising on this station.  On the case being called, the Attorney-General said he had to complain of the Court having been adjourned from Friday till the 13th instant Monday, when the Court was to have given judgment in the case.  In consequence of this adjournment, he (the Attorney General) had on Saturday morning come to Court in full costume, to do his duty as a public officer, when he was surprised to find the doors closed.  In consequence of which had the defendant been refractory he was under no obligation to have appeared before the Court to day, in order to receive sentence.  The Chief Justice said it was necessary for him to set himself right with the Court, respecting what had fallen from the Attorney-General.  On Friday when the Court had been opened, the only case for trial, Mann & another, v. Macquoid, had to be postponed till next term because a Jury could not be formed, although one had been summoned, and a tales prayed.  After this case had been so disposed of Mr. A'Beckett the senior gentleman of the bar then present, applied to him to adjourn the Court till Monday, in order to enable professional gentlemen to get their business arranged for the purpose of passing it through the Court before the end of the term, on which His Honor mentioned the case of the Queen v. Robertson, as having been set down for Saturday, when Mr.A'Beckett stated that as he was retained by Mr. Robertson he had authority to consent to the case being postponed till to-day, and therefore the adjournment had been made for the convenience of the profession, when the Attorney-General was not in Court.

            The Attorney-General stated that the reason why he had mentioned the case was, that unless the defendant had consented it would have been incumbent on him to give Mr. Robertson notice to have appeared to-day instead of Saturday.

            The Chief Justice thought that the Attorney-General was labouring under a mistake, as the terms of the defendant's recognizance was that he should appear every day after the date named in it, until he received judgment; he (the Chief Justice) had since the adjournment seen the Attorney-General in another place, but the circumstance of the adjournment had entirely slipt from his mind, or he would have named it to him.

            The Attorney-General then rose and prayed the judgment of the Court on the defendant, who had pleaded guilty to the libel charged in information.

            Mr. A'Beckett  rose to address the Court in mitigation, on which the Chief Justice stated that the regular mode was for the information to be read, and if the defendant pleaded guilty, after it had been read to hear what he or his counsel had to urge in mitigation of the offence.  The information was then read, charging the defendant with having written and published on the 14th of April 1840, a scandalous and malicious libel on Captain Joseph Nias R. N., Commander of Her Majesty's ShipHerald, charging him with cruelty, being unfit to have the command of any vessel in her Majesty's service, inciting the crew and officers not to obey the orders of the said Joseph Nias, Commander of H. M. S. Herald, and insinuating that the said Captain Nias by his tyrannical conduct had some years ago caused a person to commit suicide on shipboard in the Mediteranean.  The information also alledged that the defendant had by his writing (in the said article), tended to weaken the Queen's authority over her subjects.  After the information had been read, Mr. A'Beckett in mitigation, stated that the defendant had pleaded guilty to the charges alledged against him in the document already read to the court,  His client had only one object in view, and that was to repair as far as possible the injury he had unwittingly done to Captain Nias, against whom his client had no personal feeling - On the contrary, his client had, long before the present case originated, acted as the advocate of Captain Nias, in opposition to the majority of the other portions of the Colonial Press, by which Captain Nias had been attacked pretty sharply towards the end of last year.  The Chief Justice here said, if there was an affidavit or any documentary evidence, the proper way was to have it read and afterwards hear Counsel, on which Mr.A'Beckett handed in an affidavit by the defendant to which a letter was attached from which it appeared that the defendant in the present case had been induced to take up the subject of the Herald and her commanding officer under the following circumstances.  Just before the vessel sailed from Sydney in last April, about £320 in specie had been put on board for one of the midshipmen named Webber, which Captain Nias at first took little notice of, as that midshipman was then on shore - It afterwards came to the knowledge of the Captain that the money had been shipped for the purpose of enabling Mr. Webber to carry on traffic during the cruize, and as there is an explicit rule against Naval Officers on board her Majesty's ships carrying on traffic in any Port, Captain Nias ordered the money to be sent back in the same boat that had brought it to the Herald.  On Mr. Webber's being acquainted with Captain Nias's orders he became insolent and was ordered under arrest, and on his refusing to comply, the Captain told the Master at Arms to force him into a compliance.  It appeared also that a highly coloured account of the dispute between Nias and Webber had been drawn up by the Surgeon of the vessel, in which Nias was very much abused; this letter was sent on shore to Dr. Mc Kellar for the purpose of being inserted in the "Herald" Newspaper, but Dr. Mc Kellar thought proper to send it to the Editor of the Sydney Gazette, having first removed the name of the writer, and the place it was written from, but at the same time Mc Kellar assured defendant that the author of the letter was a respectable person and to be relied on.  In consequence of this assurance, Mr. Robertson wrote and published the article referred to in the information, which, besides being a highly coloured account of the affray between the Captain and Midshipman, contained a number of allusions to Captain Nias's previous history, and insinuating that in consequence of his tyrannical conduct one Gentleman had destroyed himself, when in the service on the Mediterranean station, as well as telling the crew and officers of the Herald that they would be justified in refusing to obey such a demon as Captain Nias.  It further appeared that on the article in question being published Mr. Robertson was made aware of the real state of the dispute and immediately wrote an apology which was in type when the received the letter from the Crown Solicitor, informing him of proceedings being taken against him.  Mr. a'Beckett in mitigation of punishment informed the Court that his client had written and published the apology spontaneously and that as he had expressed a feeling of deep regret for having done an injury to Captain Nias, and still continued to do so, he was entitled to claim merely a nominal sentence from the Court, especially as he had by his previous conduct taken the part of Captain Nias in opposition to the other portion of the Sydney press; he also stated that the language in a paragraph which appeared in theSydney Herald concerning Captain Nias, was still stronger than that for which the defendant had been brought on the floor of the Court, he also submitted to the Court that as the Herald sailed before the publication, that no evil arose from the article in question and that no disloyal feelings influenced the composition of it, the thought was apparent from defendant being a writer on the side of the high Church and Tory side of politics.

            Mr. Foster followed on the same side and urged the Court to take the defendant's subsequent conduct in connexion with the article into consideration as well as the manner in which he had defended Captain Nias at the close of last year, as proper grounds for the Court awarding a mitigated sentence.

            Mr. Windeyer also appeared for the defendant and submitted that as he had been grossly imposed upon by Lane's letter, he was a victim and had proved his sincere desire to keep the Queen's service pure, by giving up the name of the author, whose conduct, to say the least of it, was unworthy of a gentleman holding the Queen's commission.

            The Attorney-General in aggravation stated, that he was perfectly willing to give the defendant full credit for every fact contained in his affidavit, as well as for his having been imposed on by the letter of Lane, he also had nothing to say about Mr. Robertson being a high Church and Tory advocate, but whatever principles he advocated he could not allow him to advocate them in such a way as to injure the rest of Her Majesty's subjects.  There were, however, several things contained in the article which were not even hinted at in the letter, as exemplified in that which suggested that Captain Nias should be suspended from the yard-arm of the vessel as well as that which indirectly charged Captain Nias with murder.  He thought that the Court could not conscientiously discharge its duty to the public without making an example of the defendant, so as to be a caution to those who had the controul of the public press.  With respect to Dr. McKellar he was determined that he should be prosecuted unless he put him (the Attorney-General) in a condition to prosecute the writer of the letter, as he was by his conduct altogether unworthy of holding Her Majesty's Commission, and as soon as he (the Attorney-General) was in a condition to identify the letter with the writer it should be forwarded to the proper quarter in order that he might be removed from the situation he so improperly occupied.  He had no desire to circumscribe the liberty and freedom of the press but it must be kept within such bounds as were compatable with the liberty of the subject, and he trusted that the sentence of the Court would be such as would teach the gentlemen at the head of the press not to interfere with the internal arrangements of the army and navy in the manner in which the present defendant had done, the direct tendency of which was to excite insubordination and mutiny on board a British ship of war.

            Their Honors then withdrew for about half an hour, and on their return the Chief Justice ordered the defendant to the stand on the floor of the Court and addressed him as follows:- George William Robertson, you are to receive the judgment of this Court, having been convicted, on your own confession, of publishing in the newspaper called The Sydney Gazette and New South Wales Advertiser, a libel on Joseph Nias, Esq., a captain in the Royal Navy, and commander of Her Majesty's ship of war called the Herald.  The information filed by Her Majesty's Attorney-General, charges, that you maliciously intended to vilify the prosecutor, and to cause it to be believed that he was a person of a malignant and cruel disposition; and that he exercised undue harshness and tyranny towards a Mr. Webber a midshipman under his command; and also intending to stir up and excite discontent and mutiny among the officers of H. M. ship Herald, you did publish the libel in question.  The libel is charged to have been published in your character of Editor of the newspaper in question, - an office which primä facie imports very high qualities both of the heart and mind. - Of the heart - as respects the impulses of justice, fidelity, and truth - of the mind, as respects discrimination, caution, and judgment.  The prosecution which has been instituted against you, does not seem to involve the just liberty of a Free Press, but is aimed at the reckless indulgence of malignant personal vituperation, which is as foreign from the end and purpose of such an Institution, as are a hurricane, a deluge, a conflagration, from the innocent elements of air, water, and fire.  These are invaluable servants, but frightful masters.  So, a free and enlightened Press, is an admirable engine in the developement of truth, and in the diffusion of salutary instruction, but when prostituted for the propagation of personal slander, and the inculcation of principles injurious to the commonwealth, every man becomes interested in reducing it within the bounds of its legitimate functions.  Having confessed the object and tendency of the libel as charged in the information, the Court is bound to presume that it as malignant as it is false.  In mitigation of your offence, it is now alleged, that you are not the real author of the libellous matter, and that you have been the unwitting instrument in publishing another's slander.  If this be so, you stand convicted at all events, of having surrendered that caution, discretion, and cool judgment, which are essential to the qualified editor of a newspaper, and forfeited that confidence which is due to a person holding so important an office.  No innocency of purpose, as the unfortunate and unwitting mechanical instrument (free from moral blame), in the circulation of slander, can be urged on your behalf.  By your own admission, you, the editor, have been so reckless of the responsibility of your own position, as blindly to diffuse the poison put into your hands by an anonymous writer.  Willing as the Court is to give due weight to this topic of mitigation, it is difficult to reconcile it with the introductory paragraph of the libel in question.  Speaking as theEditor, there are these words, "We had hoped that we had already exposed the worst features in the character of the unworthy commander of Her Majesty's shipHerald;" (thus vouching for the facts to be stated) "but we were mistaken - as the following facts will show."  From this it would seem, that this was one if a series of offensive comments on this gentleman's character. Looking at the libel itself, it is difficult to conceive a publication more outrageous in spirit and language.  As it respects the personal character of the prosecutor, the grossness of the vituperation renders it perhaps innocuous, but on public grounds, the libel assumes a character which figuratively invokes the visitation of penal consequences.  It aims at the destruction of that discipline and subordination, which are essential to the very existence of Her Majesty's Navy.  It urges the Officers of Her Majesty's ship Herald, to resist the authority of their Captain, and invites them to such mutinous conduct as would if demonstrated, would inevitably subject them to the forfeiture of their lives.  What can excuse or palliat this passage, speaking of Captain Nias, "We deliberately say, that the officers of the Herald would be justified in refusing to leave New Zealand under the command of the Demon."  That such language would really have the effect, it would be an insult to the gallant officers of Her Majesty's ship Herald to suppose is possible; but that such is the tendency and such the object of the writer, are beyond all question.  Upon the minds of rash and inexperienced youth, whose habits of discipline are yet unsettled, who can say what effect such an invitation might not have?  On public grounds, this Court cannot but regard the libel in question as one calling for the severest reprehension.  The Attorney General of this colony has hitherto most sparingly exercised the power of filing ex officio informations, doubtless from a forbearing tenderness towards the Public Press; but it cannot be questioned, that in this instance he would have exercised an unsound discretion, had he suffered this publication to pass unnoticed.  The topics urged on your behalf, seem to us to be rather grounds of aggravation than palliation.  One prominent circumstance urged is, that this libel did not appear until after Captain Nias had left this port, and consequently that it could not have the effect alleged.  What does this import? - Why, that when this gentleman's back was turned - when he was unable to vindicate his character, and refute the calumny, you became the hand to scatter the poison of an anonymous slanderer - to blast his reputation, and hold him up to the scorn, contempt and hatred of the world! - Is this the spirit that ought to mark the conductor of a public newspaper?  Another topic urged is, that you promptly made atonement in the subsequent publication by admitting the falsehood of the facts asserted.  The libel was published on the 14th, and on the 16th of April the contradiction appeared, but who can say that the antidote has reached the minds of those who have imbibed the bane?  With this colony there is almost daily intercourse with all quarters of the globe - north, south, east and west.  The slander may have been wafted in all directions on the too ready wings of ill-fame, and have produced irremediable mischief to this gentleman's reputation.  Another topic is, that you have given up the source of information on which you acted; but it appears to us that the circumstances under which you acted in giving publicity to the anonymous slander is another aggravation.  According to your own showing, Dr. McKellar enjoined secresy[sic].  That very circumstance ought to have awakened caution and forbearance.  The tone, temper, and language of the letter, with name torn off, bore internal evidence of falsehood and malignity, and yet, you thought proper to give it publicity, - not in the terms of the letter itself, and notifying at the same time the source of your information, - but you adopted it as your own, and vouched for the facts as of your own knowledge, with the addition of comments, and the invention of circumstances, which even the author himself did not venture to assert.  There is no point on which a military man is so justly tender as an imputation on his courage, and yet this gentleman is stigmatized as a coward?  Had you published the letter as you had received it, then it would have spoken for itself, and all mankind would have at once appreciated the spirit and temper of the writer.  But in spite of the warning to secrecy - awakened as you must have been to suspicion of the truth by the very language of the writer - you deliberately made it your own and it became the theme of a leading article, with exaggerated comments and pointed concoctions, which the writer himself did not venture to suggest.  If the public Press, as has been elsewhere said, be the "fourth estate" of the constitution, let it be governed by the same rules of justice and impartiality that are expected to influence the other three.  It is a mighty engine for good or evil, and in proportion to its influence ought its movements to be guided by caution, skill, and judgment.  All public men are expected to regulate their conduct by obedience to the law, and regard for the happiness and welfare of the community; corruption or abuse it their functions are justly visited with condemnation and punishment.  Upon this responsibility those who have to administer justice on this Bench hold their offices.  Shall, then, the self-appointed conducters of the public Press be exempted from like responsibility, when they erect themselves into a tribunal governed by no defined principle, and take upon themselves to sit in partial judgment upon their fellow-men?  The fact that this publication arose on the impulse of the moment, and under excited feelings, from a belief that the statements were true, is not a legitimate topic to be urged an behalf of an editor,  The manner of the communication imported great heat of temper, which alone ought to have awakened hesitation; but when a man sits down deliberately to compose and write under such circumstances, can it be truly urged that he was under the influence of excited feelings.  There is no disposition in this Court, and I trust never will be to disturb or infringe upon the just liberties of the Press.  The safety and happiness of mankind are involved in the righteous exercise of its powerful influence, but when perverted to unworthy purposes it becomes a scourge more intolerable than any other corruptible institution of civilised society.  The Court gives you entire credit for sincere sorrow, and repentance but we cannot, as conservators of public justice regard this as a sufficient atonement for a deliberately unauthorised publication, so dangerous in its tendency, and so outrageous in its import.  The Court has an anxious duty to discharge involving as it does a discretionary power, which is at all times irksome, but whilst they have on the one hand a just regard for the liberty of the Press, they have on the other an imperative obligation cast upon them to curb its excesses.  If the Court were to be guided by precedents in the punishment of similar libels in the other country, their sentence would be marked by a tone of greater severity than now influences their decision.  Taking all the circumstances of the case into their most anxious consideration, this Court doth order and adjudge, that you be imprisoned in Her Majesty's Gaol at Newcastle for twelve calendar months, and that you do pay a fine to the Queen of £200, and that you be imprisoned in the same Gaol until that fine be paid.

            Mr. Foster applied to have the place of confinement altered to Sydney, which the Court stated had been fixed as being Newcastle, in mercy to the defendant, on account of the wretched state of Sydney Jail.  The Court refused the application, Judge Willis remarking, that one reason why he refused it was, that if complied with, it would have the effect of allowing the defendant to pursue his calling as an Editor.  Mr.A'Beckett submitted, that the Court could not have aimed at depriving him of this, his only means of subsisting himself, and, particularly there being four persons dependent on him for subsistence; and, the imprisonment and fine were the specific, punishment awarded for a specific offence.  The application was refused; but, it was intimated that he might apply to the Governor and Executive Council, by petition.

Notes

[1]              See also Australian, 16 July 1840.

Published by the Division of Law, Macquarie University