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

Coleson v. Webb [1847] NSWSupC 14


Supreme Court of New South Wales

Stephen C.J., 11 October 1847

Source: Sydney Morning Herald, 12 October 1847, in Supreme Court Collection, Vol. 2, pp 17-18

The CHIEF JUSTICE delivered the judgment of the Court as follows:

The declaration in this case alleged, in addition to the usual inducement as to the plaintiff's good character, that before the committing of the grievances thereinafter mentioned, the plaintiff was and carried on the business of a licensed publican; and that the defendant, intending to injure the plaintiff in his good name, and to cause it to be believed that he had been guilty of the offence thereinafter stated to have been imputed to him, maliciously spoke the following words concerning the plaintiff: "He is a thief---he allowed three robberies to be committed in his public-house." There was no innuendo, as to the meaning of these words.

The defendant pleaded not guilty; and the cause was tried before Mr. Justice Therry, when a verdict was returned for the defendant. His Honor told the Jury, that unless they thought the defendant meant to impute a felony to the plaintiff, they should find that verdict. At the special sittings of the Court, in August last, Mr. Darvall for the plaintiff objected to that charge as a misdirection. He complained that the Judge further told the Jury, that they must be satisfied that the defendant designed in fact to subject the plaintiff to the punishment of felony. This was not sustained, however, by his Honor's report or recollection. Mr. Darvall maintained that the words had a definite meaning; that in their natural sense they imputed felony;--- that the Judge should have directed the Jury, therefore, that the proof of anything else being intended lay on the defendant; and that, in the absence of any such evidence, or any explanatory matter to put an innocent meaning on the words, they should be taken in their ordinary signification; in, at all events, as the bystanders understood them. On these points, he cited Penfold v. Westcote, 2. N.R. 335; Fisher v. Clement, 10. B. and C. 472; and Tomlinson v. Brittlebank, 4. B. and Ad. 630. He submitted, however, that even if a felony were not imputed, the words were still actionable; since the declaration did not charge, that the defendant imputed a felony to the plaintiff, but only an offence. The latter portion of the words charged a misdemeanour; not that the plaintiff robbed, but that he allowed robberies to be committed. No question certainly appears to have been put to the Jury, specifically, as to this portion of the words; nor as to any other offence than a larceny --- being that, to which (if any offence at all) the first portion of them pointed. On the other hand, it would seem that no question was sought, or suggested, at the trial, to be so put.

We have considered the questions in this case; and we are of opinion, on the whole, that there ought to be a new trial. It is not very clear, from the words, whether the defendant meant to impute two offences, or one offence only; but, according to the declaration the latter was his meaning. If the words 'he is a thief,' had stood alone, the learned counsel would have been right in contending, that they ought to have been taken, prima facie, in their natural and ordinary sense; and that the proof of their having been used in any other, lay on the defendant. But, coupled as these words are with others, which impute specifically an offence of a different degree and quality,--- not larceny, but the allowing of larcenies by others, --- we think their meaning ambiguous, to say the least; and, consequently, that it lay upon the plaintiff to show, by the evidence of those who heard the words, or otherwise, that felony was imputed by them. In Penfold v. Westcote, the word thief was not qualified by other words, though accompanied by various words of abuse. But in Thompson v. Bernard, 1 Camp. 48, where words charging felony were accompanied by express allusion to a transaction, which amounted to a breach of trust merely, Lord Ellenborough directed a nonsuit.

The words "he is a thief---he allowed three robberies to be committed"--- should therefore be taken to mean, according to that case, as they certainly may mean, in the absence of any evidence to the contrary, that the plaintiff had committed some act, in respect of which the word thief was applied, not in its proper sense, but simply as a term of opprobrium and abuse. The latter portion of the words, however, we are all of opinion, should have been put specifically to the Jury; as in themselves conveying, according to their natural sense, the imputation of an offence punishable by law. (See 1 Russ. On Crimes, title Misprision.) If they were used in any other sense, it will lie on the defendant to show it. But, with respect to both portions of the words, the rules will be the same. The fair and natural import of the whole, where there is no ambiguity, will be the guide. If there be an ambiguity, it must be removed by the plaintiff, in either case the defendant may show --- if he can --- that the words were used, in fact, in a sense differing from the one imputed to him. But, in determining that question, the ordinary test is --- in what sense were they understood, at the time, by those who heard them.

Unless the Jury shall be satisfied, by the defendant, that no offence was imputed by the latter portion of the words, they will give damages in respect of that portion. If they shall be satisfied, by the plaintiff, that an offence was imputed by the first portion, then (but then only) the Jury will give damages in respect of that imputation also. In each case, the words merely of abuse may be looked at, as matter of aggravation. Should damages be found, the Court will conclude (2 Saund. 171. b .) that a direction to that effect was given.

As, from whatever cause, the attention of the Jury was not called to the second portion of the words, irrespective of the first portion, and the direction as to that portion, we conceive, should have been in substance the one here suggested, we think that the Rule for a New Trial must be absolute. The costs to abide the event.

Published by the Division of Law, Macquarie University