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Decisions of the Nineteenth Century Tasmanian Superior Courts

R. v. Browne (No. 1) [1833]

criminal libel - newspapers, production methods - libel, publication

Supreme Court of Van Diemen's Land

Montagu J., 14 August 1833

Source: Tasmanian, 16 August 1833 [1]

This was a criminal information, filed by the Attorney General against the defendant, for a libel inserted, in theColonist newspaper in April last. The information, citing the libel, with the usual form and expressions, was read at length by the Clerk of the Court, and the libel itself, having reference to the flogging to death of a man at the Prisoners' Barrack, was repeated several times.

The Attorney General, in a brief address, which was characterized by his usual force and perspicacity, observed, that he should abstain from urging anything as to the character and tendency of this libel; and should, therefore, call no witnesses to prove this part of his case. He would content himself with bringing home to the defendant at the bar, the writing and publishing of the libel, and leave to the Jury themselves its tendency and application. He would adopt the short and simple duty of bringing home to the defendant, the authorship of the libel; and having done so, he would leave to the assistance, ingenuity, and agreeable eloquence of Mr. Gellibrand, the task of defending it.

Mr. A Bent stated, that the Colonist is published at his office, and that it was so published in April last; that he had received notice to produce the manuscript of the libel, but, that, having no charge or control over the manuscripts, he had not done so; that he did not know whether he had ever seen the manuscript of the article in question, but if he did, it was on the day of publication; and that he could not say by whom the article was written.

Mr. Gellard, on being examined, stated, that he was the Publisher, but not the Editor of the Colonist in April last; that the manuscript of the article in question was read to him by Mr. Browne, before it was set up; that he knew Mr. Browne's hand-writing, but did not see the hand-writing of the present manuscript; that he saw the article in print; and that he had some conversation with the defendant afterwards, when he understood him to say, that he was the author; that he never heard him deny the authorship; that he considered himself responsible for whatever appeared in the "Colonist;" that he had had some conversation with Mr. Browne, in consequence of the proceedings which had been instituted against him, but that he did not (!) recollect the particulars; he understood Mr. Browne to day, that be, Mr. Browne, had written to the Attorney General, avowing himself the author; that he afterwards went to Mr. Browne, and finding he had not done so, expressed his surprise. This witness further stated, that when the defendant read over the article in manuscript to him, he had every reason to believe it was his own production.

Attorney General (warmly.) - Did you not, Sir, tell me, that the manuscript was in the hand-writing of the defendant - and that this hand-writing was so remarkable, that you could readily identify it?

Witness. - Not to my recollection.

[Considerable evasion was here evinced by this witness; but no official notice was taken of it, and the case proceeded.]

On his cross-examination by Mr. Gellibrand, he stated, that he could not tell how long the manuscript was shown to him before the publication of the libel; neither could he swear to every word of it, as previously read over to him by the defendant.

Matthew Hopwood. - Is a Compositor at Mr. Bent's Office; was so last April; but does not recollect ever having seen the present article in manuscript.

Robert Fergie. - Also a Compositor, ditto.

Robert Wilson. - Also a Compositor, ditto.

Hugh Green. - Part Compositor and part Pressman, ditto.

The defendant here interposed, and was going on to say, that he wished to relieve the witnesses of an onuswhich seemed to be cast upon them by -

Mr. Gellibrand. - Will you please to hold your tongue, Mr. Browne? If you wish to defend you own cause, do so - but if you do, I will walk out of Court."

[Mr. Browne, of course, deferred - and Mr. Gellibrand did not "walk out of Court."]

The Attorney General - This is my case, your Honour.

"Mr Gellibrand. - I submit, your Honor, that this is no case at all." The learned Counsel, with his accustomed tact and ability, here entered into a brief argument on the facts of the case. It rested merely upon legal technicalities, which were fully admitted by the Court. An acquittal was accordingly directed - and the defendant was discharged.

Notes

[1] This was Frances Edward Douglas Browne, see E.M. Miller, Pressmen and Governors, Sydney: Sydney University Press, 1973, p. 172.

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