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Decisions of the Nineteenth Century Tasmanian Superior Courts

R. v. Gellard [1833]

criminal libel - sedition - convict punishment - jury, judge of law and fact - new trial

Supreme Court of Van Diemen's Land

Montagu J., 9 August 1833

Source: Colonist, 13 August 1833 [1]

Mr. George Henry Braune Gellard was held to bail, himself in £200 and two sureties in £200 each, on an Ex-officio Information, filed at the suit of the Attorney-General, for an article which appeared in the "Colonist"Newspaper, of the 16th of April last, wherein it stated that a prisoner of the crown had been flogged to death, and which was incautiously copied in substance from an article that appeared in the "Colonial Times" the preceding week.

The Court then adjourned till Wednesday next.

Montagu J., 14 August 1833

Source: Colonist, 20 August 1833

Before Mr. Justice Montagu, and the following Jury:-

Captain Briggs, 63d regiment, (foreman); Lieutenants Champ, Stubbeman, and Pools; Lieutenant and Pay-master Forster; Lieutenant and Quarter -master Cart; and Ensign Adamson.

EX-OFFICIO INFORMATIONS AGAINST THE COLONIST

Rex, on the prosecution of the Attorney General v Gellard

Mr. G. H. B,. Gellard appeared agreeably to his recognizances, to answer to an ex-officio - Information, filed against him as printer and publisher of the Colonist Newspaper, for an alleged libel which appeared in this Journal of the 16th April last. The paragraph charged as libellous was in reference to the punishment of a man at the Prisoner's Barracks commencing "our blood chills in our views, &c."

On the case being called on, the Attorney-General stated that he had withdrawn the Information, whereupon the defendant was discharged from recognizances; the Attorney-General observing, significantly, I shall want you again presently.

Pedder C.J. and Montagu J., 28-29 August 1833

Source: Tasmanian, 30 August 1833

Before His Honor Mr. Justice Montagu, and a Military Jury

This was a criminal information against Mr. Gellard, for an alleged libel, in the Colonist newspapers.

The defendant, who pleaded by his Counsel, Mr. Gellibrand, Not Guilty, was allowed to sit during the trial, and appeared busily occupied in taking notes.

The Clerk of the Court read the information, which consisted of four counts, charging the defendant with publishing a libel, in the usual manner. The libel was repeatedly read, and officially amplified; and the publication being admitted.

The Attorney General rose and addressed the Court and Jury. They had heard, he said, the nature of the charge upon which the defendant was, this day, placed to take his trial. He, the Attorney General, would abstain from any observations on the nature and tendency of the libel, until he had heard from his learned friend on the other side, what would be the nature of the defence set up, as to its publication by the defendant. The Jury would, no doubt, have an opportunity of hearing from his learned friend, under what peculiar circumstances this libel appeared in the Colonist newspaper. The defendant had admitted himself to be the Publisher, and he, the Attorney General, would rest upon the merits of the case, leaving to Mr. Gellibrand's ingenuity the task of relieving the defendants from the nature of the charge - he would submit to the Jury, whether the matter charged, was not of a libellous tendency, and whether the information did or did not apply to it. If so, he would ask the Jury, whether, under all circumstances, such a paragraph could be put forth in a Colony like this, by a paper circulated largely, with innocent intention? Could, he asked, the utmost stretch of charity, put this construction upon it? He confidently asserted it could not. It was evidently, the design and desire of the Publisher to excite amongst a particular class, just such a feeling as was charged in the information. They would hear from His Honor, that every man entrusted with the publishing of a newspaper, was answerable for whatever appeared in that paper.

[The Learned Gentleman here read the libel, commenting upon it as he proceeded - he then continued.]

You will hear Mr. Gellibrand in defence - in mitigation - in excuse of this charge; but to this, I shall have the opportunity of replying.

[The paper was now put in, and the libel read.]

The Attorney General. - This is my case, Your Honor.

Mr. Gellibrand, for the defence, delivered one of the very best addresses, which even he has ever delivered in this Court. We regret that our limits will not permit us to insert an accurate report (which we possess) of this very able speech: we shall, however, find room for an epitome. The Learned Gentleman commenced by observing, that he had had some little experience in libel cases in the Mother Country, but, that in all his experience, he never saw a case put to a Jury, with so little evidence, or with such meagre instructions upon points, of which the Jury must, of necessity, he entirely ignorant. He expected, he did confess, that the Attorney General would have addressed them as to the law of the case - of which they, in this instance, were the entire judges - as well as of the fact. "If he had done this," continued Mr. Gellibrand, "I should then have replied to him; but he has availed himself of a right - justly I will confess - by which I am deprived of this privilege; and instead of my replying to him, - he replies to me!" He, Mr. Gellibrand, however, would be perfectly satisfied, that, after explaining the law in this case, a verdict must pass for the defendant. The Jury had to determine two points -

lst - Is the matter libellous?

2nd. - Is it a libel, as charged in the information?

Although it may be per se a libel - that is, a libel in itself - still, if it be not a libel, as charged in the information, a verdict must be returned for the defendant.

[The Learned Counsel here entered into an ingenious, but somewhat spacious, exposition of the actual construction of a libel, - where a libel commences, and where fair discussion actually terminates, &c. &c., it is (he observed) the undoubted right of every man to canvass all public acts - public measures, and, even public men, in connexion with such measures. Such discussion is the very essence of the British Constitution, and the grand prerogative of a free subject.]

Mr. Gellibrand then proceeded, in the same spirited and eloquent strain, to observe, that no person, who heard such a report, as that stated in the libel, could withhold his honest indignation at the offence, or refrain from indulging in the strongest expressions. And by what right had such a person to be suspected or accused of a wrong or an improper motive? There could be no libel, if no improper motive were proved; and what improper or corrupt motive was there in this case? None whatever! Mr. Gellibrand then went on, at great length, to disprove that this article had any intention to impute improper motives to the intention to impute improper motives to the Government - the Government in fact, had nothing to do with it. If the libel had reference to a miserable flagellator - the committing magistrate, or the surgeon, whose duty it was to superintend these punishments, then it might be brought home to the defendant; but, according to the present information, the case could not be sustained. What were the farts of the case? He, Mr. Gellibrand, would briefly tell the Jury. In the early part of the April last, a prisoner, named Hare, absconded from the Penitentiary. He had, on a previous occasion, been guilty of a similar offence, and, on the present occasion, two constables were tried for neglect of duty in suffering Hare to escape. The constables were broken, and Hare sentenced to receive 100 lashes. Before Hare received his punishment, the flagellator was at a public-house, (the Ship Launch) in company with one of the constables, named Fender, who, in the course of conversation, exhibited an angry and vindictive feeling towards Hare, and laid on the table half a sovereign, which, he told the flagellator should be his, if he would punish Hare properly. The flagellator would not take the bribe, but said, that Hare should never break another constable, and that he would sheet it home to him. Hare was brought up for punishment on the following morning, and we punished in the most severe manner.

His Honor. - I do not think you can prove this. You may give in evidence, that you think the man was severely punished.

Mr. Gellibrand in continuation. - Before the publication of the libel, the facts of the case were represented to Mr. Browne, the author of the libel!, and they were related by persons entitled to credit. It was represented to him (Mr. Browne) that a man had been so severely punished, as to endanger his life, - that he was then under medical advice, and not expected to survive. Seeing this, and seeing also, an article in a Contemporary Journal, the Colonial Times, of the previous week, couched nearly in the very same language, Mr. Gellard was at once induced to consent to the insertion of the article.

[A long argument now followed, in which the Learned Counsel endeavoured to show that the libel might just as well apply, as stated in the information, to a soldier flogged at the Military Barracks, as to a prisoner flogged at the Penitentiary. In arguing this point, Mr. Gellibrand evinced a good deal of tact, and considerable discrimination; but he failed, we think, to impress the Jury with the full force of his reasoning.]

In continuation, Mr. Gellibrand insisted that there was no inducement or allegation on the face of the information by which the libel could be made to apply to the Government. The information charges the defendant with wickedly, maliciously, and seditiously exciting the people; every one of the four counts charges him withsedition.

He Honor. - No, Mr. Gellibrand, only the first and third - the second and fourth do not mention anything about sedition.

Mr. Gellibrand. - Well, Gentlemen, you must find this libel exactly as it is stated in the information, before you can convict the defendant. This libel is published - not against a wretched flagellator - nor a magistrate - nor the officiating surgeon, but against the Government!. Now the very words of the libel deny this: - the Colonial Authorities are called upon, for their own credit sake, to investigate this matter. (Here Mr. Gellibrand read a passage in the article to this effect.) All that was meant by that article was this:- A man was flogged to such a degree that he died under the lash; the circumstances could not be known to the Colonial Government, and they are mentioned in the newspaper with a view of drawing the attention of the proper authorities to their consideration. If any person believed honestly, that a man was taken from the halberds to the hospital in extremis mortuis, could he have expressed himself in milder terms? If such an occurrence were true, and the defendant believed it to be true, could he, as a public Journalist, have remained silent? Certainly not - and I say, that it was his duty to make public such an atrocious affair. The Learned Gentleman went on to prove, that there was no sedition in the libel, at all events: the libel was published in April, and the defendant was not prosecuted till August! This will show that neither His Majesty's Attorney General, nor the Government itself, considered there was much sedition in the matter. After some further observations on this point. Mr. Gellibrand proceeded to say, that it was very important for the Jury accurately to know their duties on the present occasion, which were different to those on ordinary cases. In common cases, the Jury had nothing to do with the law, but merely the fact; in this case, however, they were judges of both the law and the fact.

His Honor - Are they not so in every case, Mr. Gellibrand?

Attorney General. - Certainly!

His Honor. - The Jury in every case are the sole and sovereign judges of both the law and the fact. I may give my opinion, but the Jury are not bound to follow it.

Mr. Gellibrand. - Your Honor supposes, perhaps, that I was going to tell the Jury not to mind -

His Honor. - No, indeed: I merely say, that in this, as in every other cases, the Jury are the sole judges of the case in every respect.

Mr. Gellibrand. - There is surely a small distinction. In common criminal cases, the Jury are bound to receive the law from the Judge, and to convict or acquit, according to his direction.

His Honor. - I may give an opinion - but suppose they will not take it?

Mr. Gellibrand. - Then, your Honor can't help it. (A laugh.)

The Jury, at all events, in this case, were judges of the law and the fact. As to the law there was very little doubt, and he left it to the judgment of the Jury, whether they could convict the defendant on the present information. After recapitulating the principal points of his defence, he proceeded to quote a judgment of Lord Ellenborough, in the case of the King against Lambert and Perry, for a libel, in 1810, on George the Third in theMorning Chronicle, of which the former was proprietor, and the latter the editor. Mr. Gellibrand characterized the Judge's observation, as "one of the most beautiful passages extant in any law-book."

Mr. Wm. Maycock. - Is landlord of the Ship Launch public-house; has known the defendant lately; knows Fender, and a man called Big Sandy, who is flagellator at the Penitentiary.

His Honor. - Are you going to prove all the circumstances you have stated to the Jury?

Mr. Gellibrand. - I am about to prove, that Mr. Maycock, having heard a conversation between Fender and the flagellator, informed Mr. Gellard of it.

His Honor. - Would not that very much aggravate the libel, it not being true?

Attorney General. - Certainly; I do not in the least object to the course Mr. Gellibrand is pursuing.

[A desultory conversation here took place as to the propriety of receiving Mr. Maycock's evidence, or any other, as to the conversation in his house. His Honor decided that it was travelling out of the record to do so; but if there were any benefit in this to the defendant, he certainly should receive it. There certainly ought to have been an inducement in the information to connect the libel with the Government.]

The Attorney General, in reply, stated that Mr. Gellibrand had commenced his speech in sorrow, and concluded it with dissatisfaction. He had witnessed, he said, many trials for libel in the Mother Country, but never saw a case, where so much was left to the Jury, and so little stated by the person, who had now the honour to address them. But he (the Attorney General), knew the gentlemen whom he was addressing, and he did not deem it necessary to travel far out of a beaten path before so intelligent a Jury. His learned friend had occupied, engaged - interested, he should rather say - their earnest attention, and had concluded his animated address by a high eulogium upon my Lord Ellenborough, calling upon them to obey the doctrine of that learned and exemplary judge. He himself had unfortunately fallen under the censure of his learned friend, for not having used more rapidity in bringing this case before a Jury: the gentleman on his right hand, however (Mr. Allport), could well explain this circumstance, and the motives under which he (the Attorney General), acted. Months ago, proceedings were commenced against the proprietor, or registered proprietor, or whatever title he now rejoiceth to assume; but some difficulty occurred in consequence of the proprietor's absence on his farm; but when Mr. Gellard's name was given up as the author, proceedings were instituted against him. And what has been Mr. Gellard's treatment by the Attorney General of this Colony? He would tell them. Mr. Gellard called upon him, and said he could prove that the article in question was written by a Mr. Browne. "I appeal to His Honor (continued the learned gentleman), whether such a statement is in any way reconcileable with the evidence, which Mr. Gellard gave in this Court on Mr. Browne's trial? I feel it necessary to make these remarks, for the justification of my own character, and I maintain, that Mr. Gellard's evidence on that occasion is perfectly at variance with what has now transpired. Mr. Maycock hears a conversation, which he imparts to the defendant, who forthwith carries it to Mr. Browne, who transforms it into an article. Does not this show themala fides of the defendant in this case? He was formerly called upon to answer legally for his conduct, and I now call upon him to answer morally for it: - and did I not do this duty to the Colony, I should be grossly neglectful of that duty, as well as of the duty to myself. It was my duty, therefore, to proceed against Mr. Gellard again, - and I have done so." The Attorney General proceeded to direct the attention of the Jury to the points of the libel, and animadverted with considerable force and humour, upon Mr. Gellibrand's definition of the law of libel. He briefly described the origin, and passing of Fox's celebrated Act; and, in conclusion, called upon the Jury to discharge a conscientious duty towards the Government and the public. The people of this Colony were infinitely more interested in their decision, than the Government could be; it would, also, above all, cast a protection over the Press, which neither the arrogance of power, nor the subtlety of the law, could overcome; and by silencing the calumnies of a faction, confer an infinite benefit upon the Press itself. If such passages, as the one now under consideration, were allowed, and such falsehoods permitted, as are week after week, and day after day put forth, the influence of this powerful organ would be destroyed. Their verdicts, he trusted, would prevent this, and calm the apprehensions of those persons, who feared that the Press of this Colony would be brought into disgrace. He alone was answerable for this prosecution, - he had done it without advice:-

"Me me adsum; feci; in me revertite telum!"

If there should be any doubt in the minds of the Jury, in God's name! let the defendant have the benefit of it; - he for one should not be dissatisfied.

His Honor addressed the Jury with great exactness and ability; he pointed out to them the most material points for their consideration; and went over the libel verbatim et seriatim; and we regret, exceedingly, that our limits will not permit us to give the address at length: it was, as the Jury, and every person in Court, seemed to feel, forcibly characterized by the ready acumen for which the Learned Judge is so remarkable.

After being absent about an hour and a half, the Jury found the defendant Guilty upon the fourth count, - that is - guilty of publishing a libel, with intent to bring disrepute, odium, and disgrace, upon the Colonial Government. He was ordered to be brought up on Thursday for judgment, and admitted to the same bail as formerly.

. . .

Thursday, August 29th

All the criminal trials being disposed of, Mr. Gellard was brought up for judgment; he appeared, accordingly, on the floor of the Court, and Mr. Gellibrand moved for a new trial.

His Honor. - I do not think I am competent to hear your motion, Mr. Gellibrand. I am here in the capacity of a Commissioner for gaol delivery, and all I can do is to pass sentence.

After some discussion, however, the Chief Justice was sent for - and the two Judges sat in Banco.

Mr. Gellibrand then moved for a rule to shew cause why a new trial should not be granted, on the ground that no evidence had been submitted to the Court to prove the application of the matter, charged as libellous. The defendant was convicted on the fourth count, which charged the libellous matter, to be of a particular character. The Learned Counsel pursued a very ingenious and animated argument, tending to prove that the Jury had arrived at an erroneous conclusion, from the facts submitted to them.

The Attorney General complained that he was taken by surprise, inasmuch as he understood Mr. Gellibrand meant to move for an arrest of judgment, and not for a new trial.

After some consultation, their Honors delivered their opinions seriatim - both concurring in the justness of the verdict. Mr. Justice Montagu, in expressing his sentiments, on the subject, gave vent to a fine and an impassioned burst of feeling, in depracation of the base, wicked and horrid motive, which could impute evil to an administration, because it was religious. The effect on the persons in Court was thrilling, and every one seemed deeply impressed with the force of the imputation.

Mr. Gellibrand now moved for an arrest of judgment, on the ground of a want of certainty in the information. There was no inducement, he contended, or inuendo, or averment, calculated to bring home the flogging to any one person; and after a very learned and spirited discussion between himself and the Attorney General - in which cases were quoted and several books referred to - the Court refused the motion, and the defendant was called up for judgment.

[Two affidavits were here put in, in mitigation of punishment. In the first, it was stated, that the article was substantially copied from the Colonial Times - in the second, that the bribe mentioned in the libel, was meant to be imputed to Fender, and not to the Government.]

The Attorney General exposed the fallacy of these, and His Honor proceeded to pass judgment.

In passing sentence, Mr. Justice Montagu delivered one of the most impressive harangues, we have ever had the pleasure to listen to. He took a most admirable view of the power and influence of the Press, - of its capacity to do good, - of its tendency to do evil. He said, that the Editors of public Journals ought always to have in view the public weal, - they were cloathed with a deep responsibility, and ought to exercise their functions without any regard to a selfish, or a vindictive feeling, but with the strictest impartiality. The mischief they might do, was incalculable; the individuals, however, who were attacked in libels, like the present, were not the persons, who might be injured by them; they cared no more for the slanderous abuse, than they did for the winds, which whistled by them; but there were many men - good, learned, excellent men, whose peace of mind, the scurrilous libeller might ruin for ever. In a small community like this, and one so peculiarly constituted, where so many persons were greedy of slander, and liable to all the bad effects of inflammatory addresses; where they preferred hot spirits to wholesome food; it was the bounden duty of the conductor of a public paper, not to pamper or excite this feeling. The Learned Judge, regretted that there existed no statute, which would provide for some specific punishment in these cases; he lamented, exceedingly, that any thing was left to the discretion of the Judge; still he would never shrink from the duties imposed upon him. He should act in this, as in every other instance, without any reference to the responsibility attached to this office; he sat there to administer justice impartially, and he hoped he should always do his duty to the Colony. It was his resolute determination, he observed, to put down the licentiousness of the Press, and if one mode of punishment would not be effectual, he would try another, and even a third, if necessary, till the intolerable nuisance was subverted. In the present case, he believed, a mere fine would be of no salutary use, as the defendant would probably leave the Court, with a contempt for its powers. He should therefore sentence the defendant to a fine of £100, with imprisonment for 12 Calendar Months, in His Majesty's jail of Hobart Town, and to be farther imprisoned until such fine be paid.

The defendant was then taken away in custody, and the present Sessions terminated.

Pedder C.J. and Montagu J., 28-29 August 1833

Source: Colonist, 3 September 1833

Before Mr. Justice Montague and the following Military Jury:-

Captain Mahon, Foreman

Lieutenants, Barrow, Champ, Gibbons, Stubman, Aubyn and Ensign Adamson

Rex, on the prosecution of the Attorney General v.Gellard.

This was another ex-officio case, for the publication of the paragraph contained in the Colonist of the 16th April, respecting the punishment of the man Hare. An information had before been filed against Mr. Gellard as the publisher, but had been withdrawn to make room for the Information against Mr. Browne, as the author, which prosecution being defeated, the present proceedings, being the third were instituted.

The Information contained four counts; the first charging the defendant with publishing a seditious libel; the second with having intended to bring the Government into odium and disgrace; the third the same as the first, only adding that the libel was published in the Colonist; and the fourth the same as the second, with a like addition. The charge having been read by the Junior Clerk of the Court.

The Attorney General rose. The Court had heard from the proper officer with what the defendant was charged. He should abstain from making any observations on the case until he heard from his learned friend Mr. Gellibrand, what sort of defence would be set up; the Jury would hear from the other side under what circumstances the libel was published - they would have an opportunity of trying the case upon its own merits, and when they heard it, they would be enabled to judge whether under any circumstances under the most extreme extent of charity, such a publication could be sent forth to the world, with a charitable intention - a publication calculated to excite among that class to whom it was particularly addressed, disaffection and disturbance. The Jury would hear the law of the case from Hid Honor; he had only to read the libel; they would hear Mr. Gellibrand in excuse and then he should have an opportunity of answering. (Mr. Gellibrand admitted the publication of the newspaper by the defendant - the matter complained of as libellous was read from the paper, which closed the case for the Crown.)

Mr. Gellibrand rose for the defence. - This was an ex-officio case. There were two questions to be determined. - lst, was the article charged as libellous, a libel per se. - 2d, was it a libel of and concerning His Majesty's Government, as charged in the Information? It had fallen to his lot to hear many libel cases in this Colony, and the Mother Country, but a case so barren of endusement he had never experienced. The learned Advocate then proceeded to state the difficulty of defining where a libel commenced, and where fair discussion ended. It was admitted that every man had a right to canvas the public measures of public men; this was a right of every man, but the moment you went a step further and imputed an improper or a corrupt motive it was a libel. In this case all that the Jury could know of the subject was what was contained in the paper. (Here Mr. Gellibrand read the article.) Now the Gentlemen of the Jury must perceive that there was some foundation for these observations. It was evident on the face of it, that the writer of the article, instead of wishing to impute to the Government the dreadful crime of murder, wished to draw the attention of the Government to some cruelty and abuse practised by some of its subordinate agents. His Majesty's Attorney General had charged the defendant - not with a libel upon some miserable flagellator -not with a libel on the Surgeon who superintended the punishment - not with a libel upon the Magistrates by whose sentence the punishment was inflicted - but with a libel upon His Majesty's Government. It was stated in the Information to be His Majesty's Government which had been injured by the alleged libel. It was all Government - of Government by Government - with consent of Government. Now did it not seem impossible, for any man to say looking at this article, that it was a libel on the Government? If it were a libel at all, it might perhaps with the assistance of the proper allegation be construed into one upon the flagellator; but was he His Majesty's Government? - was a miserable flogger a portion of His Majesty's Government? It would be an absurdity of terms to say so. Could any one say that the writer of this article had any bad intention? - malice is essential constitute a libel. But he would relate the fact. On or about the 4trh or 5th of April.

His Honor. - Mr. Gellibrand, do you intend to prove all these facts?

Mr. Gellibrand. - I do, Sir.

His Honor. - Oh, very well.

Mr. Gellibrand knew that he should expose his own ignorance, if he attempted to justify in this case; he was well aware that he was precluded from doing so, but it was necessary the Jury should know something of the circumstances. In the early part of April - (Mr. Gellibrand here briefly detailed the facts, as given in theColonist the week before last.) The Attorney General says the article was calculated to excite a certain class. Now, he would ask what was there to shew its application to that class. It was as likely to refer to the punishment of a soldier at the barracks, as to the punishment of a convict at the penitentiary, and more so. There was no enducement to connect the facts with the article - the Information was vague throughout, and the application extremely uncertain. The article certainly conveyed allegations against some persons, but whom? The Jury were called upon to find that these allegations were against the Government - not of and concerning the wretched flagellator - not the constable - not the surgeon - not the Magistrate, but the Colonial Government. Here was a circumstance of cruelty alluded to, to which the attention of the Government was called to make an investigation. Could it be reasonable to suppose that the Government could be called upon to enquire into its own acts? The writer presumes that the Government can know nothing of it; and therefore draws attention to the circumstances - and what man, having the feelings of a man, and believing the details which I have before related to you, and express in milder terms his sense of such a wretched transaction. Yet this was termed disaffection in the defendant, when it was clear the very object he had in view was to draw the attention of the authorities to the circumstances of what he believed to be a most atrocious affair. There was one observation he must make - the defendant was prosecuted for this seditious libel? on the 28th of August. When was it published? Why, on the 16th April; and no proceedings had been taken between April and July, when His Majesty's Attorney General first gave any hint of prosecuting for the article; this would shew that neither the Government nor the Attorney General conceived there was much sedition in the matter. The Attorney General had a right to put the defendant on his trial, although a previous Information had been filed against him, and anolo prosequi entered, when Mr. Gellard, was, form a defendant, transmogrified into a witness, and now we have him again on the floor of the Court, figuring as defendant. Had Mr. Gellard been wise, he would have insisted upon an acquittal instead of a nolo prosequi. The Attorney General could not think him an exceedingly dangerous and evil disposed person, or he would not have put him in the witness box. (Considerable argument here took place on the powers of a Jury in libel cases, Mr. Gellibrand contending that they were differently placed in respect to such cases to what they were in cases of felony; that here they were Judges both of law and fact; the Judge ruled they were so in all cases, and declared that Juries were not bound to receive the law from the Judge in any Case. It was usual to pay some difference to the opinion of the Judge, but he could not compel them to be guided by it; all the power which he had was, that if a Jury convicted a prisoner as he thought wrongfully, to levy a nominal fine and discharge him.) Mr. Gellibrand then again recurred to the uncertainty of the application of the alleged libel to the Colonial Government, which he very ingeniously pointed out, both by fact and analogy, clearly proving that comments on the acts of subordinates, Civil or Military could not apply to the Government, i.e. the two Executive Authorities. The learned Gentleman then read a passage from a report of an ex-officio case tried before Lord Ellenborough, and passed a high eulogium on the great beauty of His Lordship's charge to the Jury, as establishing the liberty of the subject upon the dictum of a high Tory Judge. In conclusion, Mr. Gellibrand would say that the matter charged was not a libel - he admitted it imputed something improper to some subordinate agent of Government, but surely the flagellator at the penitentiary is not the Governor of the Colony. If you hold up such a character it is monstrous to say that the Government is mixed up in it; he was confident that the Jury would acquit his client.

Mr. Maycock was then sworn and Mr. Gellibrand had commenced his examination, when His Honor suggested that hearsay evidence might only aggravate the case, and as it did not appear upon the record to what transaction the libel referred, the Court might be receiving evidence not at all bearing upon the question.

Mr. Gellibrand acceded to this, and urged that that difficulty arose from the want of certainty, and therefore he would not call any evidence.

His Honor thought that there should be an endorsement to connect the libel with the record, and this point was reserved for future consideration if necessary.

Our limits prevent our following all the legal arguments which took place during Mr. Gellibrand's able defence.

The Attorney General in reply observed that Mr. Gellibrand had commenced in sorrow and concluded in satisfaction. Mr. Gellibrand had occupied, he should say interested their attention for some time, but he should not follow him over the ground he had traversed. He would be perfectly satisfied for the Jury to follow the dictum of the Noble Lord in the case of Lambert and Perry, as cited by Mr. Gellibrand. He (the Attorney General) had been censured for delaying his prosecution; his only reason for not proceeding earlier was, that he waited for the arrival of the Proprietor in town; all he required was the author, and Mr. Gellard was given up to him as such. Mr. Gellibrand complained of the manner in which Mr. Gellard had been treated - for the vindication of his own character he would explain, Mr. Gellard called upon the Attorney General, and told him that he was not the author, but that he would tell who was; and the statement he then made was utterly at variance with his subsequent evidence - the whole Mr. Gellard had forgotten, when put in that box (pointing to the witness box,) and he (the Attorney General) should be forgetful of what he owed the Government and himself, if he had not proceeded against Mr. Gellard, after such conduct. Then followed a most violent philippic against the clamours of the Press, which was stated to be very thing that was bad as a matter of course, together with some sarcastic remarks upon the good intentions of the Colonist (which by the way we shall not forget.) The latter part of the article the learned Gentleman was about to designate "a clumsy" something, but the word stuck in his throat, and he was obliged to confess he did "not know what to call it," but contended that it did not deprive the article of its venom. He was the sole instigator of these proceedings. He took the whole upon himself! Had Mr. Gellard acted with any thing like candour, he could not have been placed where he was.

Mr. Justice Montague charged the Jury, we could not help thinking rather on the severe side than otherwise explaining the law; and the Jury retired, and, after about three-quarters of an hour's consultation, returned with a verdict of guilty on the 4th count.

Thursday, August 29, 1833

Shortly after the opening of the Court this morning, Mr. Gellard was called up for judgment, on the ex-officioprosecution of the Attorney General, which had been tried on Wednesday last. Mr. Gellibrand was about to move for a new trial in this case, but was anticipated by the Attorney General, who said a new trial could not be granted, but with the concurrence of the Chief Justice, and which was ruled by the Court. The Attorney General stated that he had no objection to judgment being deferred until the first day of term, the defendant finding sureties to the same amount in which he entered yesterday; to this Mr. Justice Montague would not assent, observing that he did not consider delay at all advantageous in criminal cases, and thought that sentence ought to follow conviction in the course of an hour, if possible. After some further discussion, the Chief Justice was sent for, who appeared on the Bench in the course of a few minutes.

Mr. Gellibrand applied to the Court for a rule to shew cause why a new trial in this case should not be granted. The defendant had been found guilty on the 4th count; but there was no evidence given upon the trial to warrant that conclusion. He begged to be distinctly understood as not bringing his motion on the grounds of misdirection. The learned Gentleman here read the 4th count, and next the article complained of, and contended forcibly that the Jury had come to an erroneous conclusion; the whole context of the article complained of should be taken into consideration, from which it would appear that the intention of the writer was to draw the attention of the Government to the conduct of one of its subordinates, and not to bring it into odium and disgrace, as the indictment set forth. Mr. Gellibrand concluded a very eloquent and forcible address, buy submitting that this case should go before another Jury.

The Attorney General having replied, the Chief Justice decided that a new trial could not be granted in this case, adding that the matter having already gone to the Jury and their decision having been given, the Court by granting a new trial would be assuming to itself the province of the Jury; but His Honor distinctly stated, that if the defendant had been found guilty on matter, not charged in the Information, His Honor was decidedly of opinion that such conviction was wrongful.

Mr. Justice Montague, in giving his opinion, professed to be a friend to the liberty of the Press, but opposed to its licentiousness; he went through the different passages of the article complained of, commenting on each with unmeasured severity, and concluded by concurring in the opinion given by the Chief Justice.

The Chief Justice having retired.

Mr. Gellibrand rose to move an arrest of judgment, and argued the point at considerable length, and with his usual ability. He contended, that were this a civil action, it would have been impossible for the defendant to justify - the information did not state when, where, or in what manner - the man may have been flogged. It might have been at Launceston, at the military barracks, or, in fact, out of the Colony. He, Mr. Gellibrand, submitted that if it was a civil case, it would be a demurrer, because he had nothing to plead to, and that there was no prefatory averment. In support of his argument, he cited the case of the "King v Horne," and that of the "King v Burnett.

The Attorney General replied, and, in conclusion, prayed that judgment might be awarded.

Two affidavits were then put in and read, on the part of the defendant; on one of which the Attorney General commented with great severity. After which Mr. Justice Montague proceeded to pass sentence on the defendant; and after dwelling for some time on the evil tendency of libellous articles, and stating, that in his opinion the crime of braking into a man's house and stealing his goods, was a venial transgression, compared with depriving him of his good name, he declared that so long as he had the honor to fill the situation which he held, he would punish offences of the description, with which the defendant stood charged, in an exemplary manner. This was the first case that came before him, and the sentence would be lenient; the second he would punish with greater rigour, and so on to the third.

The sentence of the Court, therefore, was that the defendant, George Henry Braune Gellard, pay a fine of One Hundred Pounds to the King, be imprisoned twelve months, and until the fine is paid.

Notes

[1] See also Courier, 17 May 1833.

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