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Decisions of the Nineteenth Century Tasmanian Superior Courts

R. v. Bent [1827]

criminal libel

Supreme Court of Van Diemen's Land
Pedder C.J., 15 May 1827
Source: Hobart Town Gazette, 19 May 1827 [1]

The trial of Mr. Andrew Bent, for printing and publishing two scandalous and malicious libels in the "Colonial Times" newspaper of the 2d of February last, was this day decided. The one was an extract from the "Australian" paper published in Sydney, regarding the payment of what is termed Head-money by the crew and passengers of the ship Australia which sailed from this port in December last. So long ago as October, 1811, it appeared that Governor Macquarie, by an order in the Gazette of that date, had directed that a fee of half-a-crown should be paid by all free persons leaving the colony, and that fee had continued to be so paid until about two months ago, when the Lieutenant Governor was pleased to discontinue it, and the libel in question imputed improper motives to his Excellency in exacting it from the ship Australia.
The other libel in the "Colonial Times" of the same date, consisted of a charge made against his Excellency of having issued a special order for Mr. Thomas, the Colonial Treasurer, to supply the Commissariat with 1000 bushels of wheat at 6s. 6d. when other settlers could obtain only 5s. Mr. Thomas proved that he had tendered 1000 bushes at 5s. 6d. in September last, to the Stores at Launceston, which were accepted, and Mr. Moodie proved that he had advertised for tenders of wheat in August and September, and had received from 50 to 60 tenders. Several of them were above 7s. but all at and under 6s. 6d. were accepted, and Mr. Thomas's tender at 5s. 6d. being the lowest, was among the number. Mr. Bent employed no counsel, and read a short written defence, wherein he shewed that he had made all the reparation in his power by contradicting the statements in his paper of the following week. The jury found him Guilty, and he was held to bail to appear before the court on such day as may be appointed for him to receive judgment.

Source: Colonial Times, 18 May 1827

In the Supreme Court, on Wednesday last, the trial the King v. Bent, the Proprietor of the Colonial Times, for two alleged libels on the Lieutenant Governor, published in that Journal of the 2d of February last, came on. The articles alluded to as libellous are - a paragraph, stating by misconception, that Mr. Jocelyn Thomas, as a Public Officer, had received a special order to turn 1000 bushels of wheat into the Commissariat Stores at Launceston, at 6s. 6d. per bushel; and the other an article on head-money, copied in the same paper without comment, from The Australian. It will be seen by reference to the Colonial Times of the following week, that the statement, respecting the wheat was contradicted, by a communicant, who stated that Mr. Thomas had not a special order, but that he turned in by tender 1000 bushels of wheat, at 5s. d. only. On the trial, Mr. Thomas gave similar testimony, which was corroborated by Mr. Commissary Moodie, who further stated, that at the time alluded (Sept. last), he accepted all tenders at and under 6s. 6d. per bushel; which, with the proof of the publication, concluded this feature of the case. With regard to the article copied from The Australian, Mr. Emmett, Chief Clerk in the Colonial Secretary's Office, stated, that pursuant to a Government and General Order, so far back as the 12th of October, 1811, the head-money, a fee of 2s. 6d. exacted on each person, passenger or seaman, who left the port of the River Derwent, was demanded. This was received during Colonel Sorell's administration, and was continued in Colonel Arthur's, and had not taken its rise in the latter. He had been Principal Clerk for three years to the Lieutenant Governor's Secretary, before the Colonial Secretary came from England. - The head-money had up to April, 1826, been appropriated to his and the Secretary's use - 1s. to the former, and 1s. 6d. to the latter. After that period, the Secretary's proportion went to the Public Fund; but Mr. Emmett continued to receive his part of the fee till the 1st of January last; when the whole sum of 2s. 6d. was devoted to the Colonial Revenue, by the direction of the local Government; and it has since that period been considered a Public Money, and applied to Public purposes. About six weeks back, the head-money was abolished altogether. - Mr. Emmett concluded his statement, by observing, that the Australian Company's ship Australia, cleared out from Hobart Town in December last. It will be remembered, that it was the exaction on this ship which called forth the article in question from The Australian, and also, one from theColonial Times; but for copying the former, and not for publishing the latter, Mr. Bent is now prosecuted. The defendant, who was not attended by any Counsel, said, were he to attempt to defend, by a lengthened discussion, the charges exhibited against him, it would perhaps be only to occupy more time than was necessary; and to call more attention to the subject already deemed too widely circulated, than it would have otherwise have obtained. On this account especially, he declined taking Counsel into Court, and would only plead in his own defence, what had subsequently to the libellous matter appeared in the Colonial Times, in reference to it, -- as proving that he wished to counteract any mis-apprehension, which might have arisen in the Public mind, in consequence. - He therefore requested, that the Clerk of the Court might be permitted to read the articles alluded to, to the Jury, as that was the only defence he intended to make. With that he left the whole to the decision to the decision of the Court. But His Honor Chief Justice Pedder ruled that in Law, they could not then be admitted, although in a subsequent stage of the proceedings, they might be brought forward in mitigation of judgment; because the articles, offered in palliation of the offensive matter, did not appear in the same Papers, but subsequent ones. His Honor then charged the Jury, very impartially observing, that they were to consider whether there was any malice displayed in the articles in question, or not, on the part of the defendant. They were to judge of this from the general tendency of the articles; and if they found themselves satisfied they were published with an intent to bring His Excellency the Lieutenant Governor into contempt and hatred, they were certainly libels; but if any doubts existed in their minds of a malicious intention, at the time of publication on the part of the defendant, he was, to all intents and purposes, entitled to an acquittal. The Jury retired for a short time, and returned a verdict of guilty of publishing the articles in question. Mr. Bent was required to enter into recognizances - himself in £100, and two sureties of £50 each, to appear before the present Session of Oyer and Terminer and General Gaol Delivery, to receive judgment, when called upon; and we have some reason for thinking that judgment will be given on Tuesday.
The Solicitor General, Mr. Stephen, conducted the prosecution; and observed in the course of the trial, that had the defendant given up the person, on whose information the paragraph respecting the wheat was written, he would never have been brought to trial.

Notes

[1] Like their counterparts in Sydney, the Hobart newspapers campaigned on the issues of press freedom, trial by jury and taxation without representation: see for example Colonial Times, 23 February, 2 March and 18 May 1827; and see Hobart Town Gazette, 28 April 1827. See also R. v. Bent, 1826.

Published by the Division of Law, Macquarie University and the School of History and Classics, University of Tasmania