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

Re Port Phillip Herald Newspaper

contempt of court- law reports, newspapers

Supreme Court of New South Wales, Port Phillip

Willis J., 20 August 1841

Source: Port Phillip Patriot, 23 August 1841

Friday, August 20th ---Before His Honor the Resident Judge, and the following Jury of inhabitants:---

John Rankin, John Sutch, John Richardson, John Hunter Patterson, Robert Reeves, Thomas H. Power, James Palmer, Thomas Strode, James Purves, William Patterson, George Somerville, and Thomas Robbins, (Foreman.)

RE THE PORT PHILLIP HERALD NEWSPAPER--- Misreporting.--- The Crown Prosecutor said, I hold in my hand the Port Phillip Herald newspaper of the 17th instant, in which I perceive a report, that seems in my humble judgment to have a tendency to bring this Court into contempt. To show the public that the language coming from the Bench is not reported with the purity it should be, I will read the paragraph---

"His Honor in alluding to the incorrect committals of the Melbourne Police Bench (for the particulars of which we regret we have not room to-day), remarked to Mr. Croke, that he could well understand the difficulties under which the Crown Prosecutor laboured in framing indictments, because to his knowledge Mr. Simpson, observed His Honor, with particular emphasis, had actually committed a man for trial without even signing the committal."

The language, reported as coming from the bench, I can most distinctly state was never uttered by your Honor. Under these circumstances and for the reason I have already mentioned, I humbly move for a rule nisi, for an attachment against George Cavenagh, for publishing a false account of the proceedings of this court.

Judge Willis. That I have the power of punishing persons guilty of misrepresenting the proceedings of this court, can admit of no doubt. The privilege of publishing reports of judicial proceedings with impunity is, as Mr. Starkie observes in his book on libel (vol. 1, page 299) notwithstanding the inconvenience and mischief which such publication may occasion to individuals, founded on grounds of public policy and convenience; the condition necessarily annexed to immunity, is, that the proceedings shall be fairly, impartially, and correctly reported." Is the report in question fair, impartial, and correct?

If the editor of the paper will swear that the paragraph in question was transcribed from notes taken in the court, and the person who took those notes will swear he believes that he took them correctly, I shall be satisfied at once to let the matter rest, with a caution to the reporter to be more accurate in future; I must, however, declare that the report in question is extremely false; if wilfully so, and published by the parties, knowing it to be so, with any malicious or mischievous motive or design, the party subjects himself to a heavy responsibility. I am reported in mentioning Mr. Simpson's name from the bench, to have used marked emphasis: that I most positively deny, as well as having used the word, 'committal,' at all; the word, 'committal,' may perhaps have been inserted, by mistake, for recognizance, which was the term used, as the parties may not have understood the difference. In my remarks, in order to exculpate the other magistrates, I mentioned the name of Mr. Simpson; I see there is an article in the Herald of to-day intended as an apology; I, however, think it but an aggravation of the offence. I hold in my hand an old Sydney paper, containing a very correct report of a case tried before His Honor, Mr. Justice Burton---the case ofO'Reilly v. Hallfor misrepresenting a case in the newspaper of which he was the proprietor, to the prejudice of the plaintiff, and for which he was severely punished. Let Mr. Cavenagh be sent for, and in the meantime I will consider whether I shall grant your application or not; I will not endure the false assertions of any man, who happens to have a press and type at his command.

Mr. Cavenagh who was in Court, here stepped forward, and was thus addressed by His Honor, "you have heard what has passed in court within the last quarter of an hour, relative to the statements which have appeared in your newspaper, and which I again assert are false; I also consider the publication was inserted to widen the breach between Mr. Simpson and myself. I will at all times facilitate to the utmost in my power correct reports going to the public, when it can be done with propriety, of whatever takes place before me in my judicial capacity. I hold it, however, to be an imperative duty to stop the progress of erroneous reports of the proceedings of a court of justice, more especially if the error be wilful; I also consider the article in this day's Herald an aggravation of your offence.

Mr. Cavenagh---Your Honor that article was intended as an apology.

Judge Willis---I do not consider it as such; are you prepared, Mr. Cavenagh, to swear that you believe the report inserted in your paper to be correct, and is the person who furnished that report to you, prepared to swear that what he reported took place in this court---or will you declare who furnished you with that report?

Mr. Cavenagh---I can assure your Honor that I had no intention of misrepresenting the proceedings of the court; the report was furnished by a friend, but if any person is to be punished it must be myself, as I cannot give up the name of the person who furnished the report. I again assure your Honor that I had no intention of misrepresenting the proceedings.

Judge Willis---I will this time receive your apology.

Mr. Cavenagh---Your Honor is aware that freedom of discussion is the privilege of the press.

Judge Willis---I will always encourage freedom of discussion in the press, but never wilful and malicious falsehoods---you had better be silent and not oblige me to take that step on your verbal statement which I have just declined to take on your written falsehoods.

Mr. Cavenagh---Your Honor, I contend---

Judge Willis---Your best course is to be silent, and to be thankful for the clemency I have shown you.

Mr. Cavenagh then retired.

Published by the Division of Law, Macquarie University