[larceny - press freedom - contempt of court]

R. v. Dudfield

Supreme Court of Van Diemen's Land

Pedder C.J., 26 January 1838

Source: Hobart Town Courier, 2 February 1838

Before a Military Jury

Captain Lonsdale, Foreman

Asst. Surgeon Smith                                                        Lieut. M. McGregor

Surg. Ed. Pilkington                                                         Lieut. W. Domville

Lieut. Wm. McKnight                                                     Lieut. F. W. Smith

The Attorney General opened the case, by stating that the prisoner at the bar, George Dudfield, stood charged with having feloniously taken, or with having received, knowing it to be stolen, a sheet of foolscap paper, value one penny, on the 6th day of October last, the property of Gilbert Robertson. A question might arise with respect to the value of this sheet of paper -- and no doubt it would be attempted to be shown, that because it had been written upon, it was therefore valueless. The plaintiff in the case had valued the paper at one penny, but he apprehended if the jury could believe, from the evidence which he should place before them, that it was of any value whatever, however infinitesimal, it was quite immaterial, they would find the prisoner guilty. If it was to be understood that the office of every gentleman, or newspaper proprietor, (he did not mean to insinuate any distinction) was to be ransacked; and if men, able as the prisoner was, were to be allowed to abstract documents of such a description with impunity, under the plea of them being of no value, he contended that it would let loose upon society, a dangerous doctrine -- documents of the highest importance might be abstracted, and it might then be said -- “Oh, they are of no value.” But in the present case, he considered the jury must be of opinion that the document in question was of some value, there must be a value of some kind, even if no coin small enough existed adequately to express its value. He would now proceed with the evidence in the case, and would first call --

Gilbert Robertson. -- Is proprietor of the True Colonist newspaper; the sheet of paper in question is my property; the intrinsic value of the paper is one penny; it came into my possession the 19th or 20th of September last; last saw it in his own office; it must have been on the following Friday I last saw it; saw it next in the possession of Captain Forster, the Chief Police Magistrate, about a week after the day I made my first deposition at the Police Office; knows the prisoner; had not seen him between the time of losing the paper and being at the Police Office.

Cross-examined by Dudfield. -- Swears the paper is his property; did not buy it; received it as he received others; believes it did come by post; does not know; that is the reason he considers it to be his property. Never had a copy of that letter afterwards from Mr. Andrew; saw a copy; has known Mr. Andrew a long time; had a communication from Mr. Andrew, but did not receive a copy from him; it is a fact that he received communications reflecting upon Dudfield’s character, and published them.

By A. Stephen, Esq. -- Has not the superintendance of the mechanical department; the paper was not printed until late on Saturday night; has no means of knowing his the M. S. got out of his office; if given to any person applying for it; it would be without his authority; requires all manuscripts to be returned to him after being printed; always ties up and preserves all manuscripts; circumstances occasionally render it necessary; when they accumulate he burns those that are of no use; all could have access to the manuscript while in the composing room; the letter passed from his hands into the compositor’s room; is not positive that he saw it again afterwards; cannot tell if it was dropped, or blown, or swept out; has received several letters in the same hand-writing. Dudfield once wrote him a letter threatening a prosecution if he did not give up the manuscript; considered he was bound for his own protection in preserve manuscripts; if he merely referred to the printed paper he could not tell who the writer might be; now recollects the letter came under cover to a person in town; and was laid on his table; any person could have access to the compositor’s room; the third person could read, but was not acquainted with the contents; heard the evidence of Mr. Hall at the Police-office; heard him say that it might be thrown aside as waste paper, but that it was improbable; does not recollect losing any papers of value before; there were some papers and books, lost not long before from his own office under the same roof; has no doubt that the letter was intended for publication; he did publish it; the purpose of the writer was answered by it; considers the letter became his property after it was published; considers it as much his property as the sovereigns which Mr. Dudfield would give Mr. Stephens would become his; does not know its value as waste paper, but has been astonished at the high price he has obtained for waste paper; last time he saw the letter was the date the paper was published; the paper was not sent till the 30th Sept.

John Andrew, knows the letter, it is in his hand-writing; sent it by post to Hobart in an envelope; not addressed to Mr. Robertson but a mutual friend; put it in the post-office himself at Oatlands; thinks some days after it bears date; is quite certain it is the same letter; next time he saw it was at the police-office.

Cross-examined by Mr. Stephen. --  Has sent several letters to Mr. Robertson in a similar way; they referred frequently to persons in and about Oatlands; there was a considerable extract published from another letter; has seen many communications from Oatlands referring to Dudfield in the True Colonist.

M. Forster, Esq. -- I received that letter from the Police Magistrate at Oatlands, on the 4th October 1837; Mr. Robertson saw it my possession that morning.

J. Whitefoord, Esq. -- I know the letter produced; I received it under cover from Mr. Anstey, I forwarded it to the Chief Police Magistrate on the following day.

John Andrew recalled by Mr. Stephen. -- Did not write that letter at the Police Office; the paper was his own private property; does not recollect if paper of that kind was at the Police Office; we had wire wove.

Mr. Whitefoord’s examination continued. -- Recognizes the paper to be of the same description as that used at the Police Office; it bears the same water mark; this is a sheet of paper which was in use at the time, the property of the Crown; it has the same quality and appearance; the quality is peculiar; the first of the kind ever saw in use at the Police Office; Mr. Andrew had uncontrolled access to Government paper; I was ill at the time; he had no right to use that paper for such a purpose; it was for public purposes only; I do not know that there was any other paper of a similar quality; I receive the Government paper from the office of the Chief Police Magistrate; Mr. Anstey was at the time senior Magistrate of the district; the letter refers to persons in Oatlands; I never had any communication with Dudfield respecting the letter, or respecting any other; the letter in question does not contain any reference to Dudfield; whether the postscript refers to him or not, I cannot tell; it contains no reflection upon him.

Cross examined. -- Notwithstanding Mr. Andrew’s account, I believe the paper to be the property of the Crown, from its quality, water marks, and my belief that Mr. Andrew is capable of such an action; I never had any quarrel with him; I would do him good if I could and would not do him any harm; I do not know how the Chief Police Office is supplied with paper; whether by tender or not; I can put no other interpretation upon this postscript, than that it refers to the Police Office reports.

W. T. N. Champ, Esq. -- I am Assistant Police Magistrate, this is the statement made by Dudfield, when called upon to account for his possession of the paper said to be stolen from Mr. Robertson.

By the Judge. -- All the country Police Offices are supplied with paper from the Chief Police Magistrate.

Benjamin Allison. -- Is a servant to Mr. Anstey; knows the paper; received from Dudfield 2nd October, to give to Mr. Anstey; gave it the same evening; Dudfield told him he had received it in town; he said he had received it at Hefford’s.

Cross-examined. -- Dudfield gave it me quite open; told me I might read it myself, but not to give it to any other person but Mr. Anstey; the coach had just come in; was about to get on my horse to go to Mr. Anstey’s; knows Hefford; always stops at his home when in town.

William Neale. -- Lives at the Eastern marshes; knows Mr. McEwen; had a conversation with him about Dudfield; had a conversation with Dudfield, about the letter; did not see it; Dudfield said he found out the person who signed himself ‘True Blue;’ Dudfield said it was Mr. Andrew; he said he received the letter at a man’s house named Hefford; did not tell him who he had received it from, or that it had cost him a good sum of money.

John Hall. -- is a printer; was employed 29th Sept. on the True Colonist; knows the letter, composed part of it, in type; on the 28th Sept. received it from Mr. Robertson; saw it last on the following day in the printing office; never saw the letter, after it was printed, in Mr. Robertson’s premises after he gave it to Green.

Cross-examined. -- Green is a compositor; the copy is put under the frame when composed, and after collected and tied up, the letter was not printed until the Saturday; the manuscript would be tied up on the Monday; himself, Green and his two sons, were at work that day; the pressmen passed through the room that day; the copy was deposited on the ledger of the frame, 4 or 5 inches from the ground; it is possible, but very improbable, that it would be chucked on one side as waste paper.

Mr. P. S. Tomlins -- the police offices in the interior are supplied with paper from the colonial stores, which are supplied by tender.

Hugh Green -- is a compositor; knows the prisoner; has seen the letter before; set a part of it up; saw it last on his own frame, it was open.

By the Judge -- Mr Hall told him he had finished it for him the next morning.

Cross-examined -- The paper was worked off on Saturday instead of Friday; there was a good deal of hurry and confusion; Mr. Hall finished it before he came in the morning; Mr. Hall was in the habit of getting up early with his two lads to forward the paper.

Jeremiah Hefford -- Knows Dudfield; he came down by coach on the 29th Sept. and left the 2nd October; Mrs. Hefford was taken ill on the lst Oct. and kept her bed till her death.

Cross-examined -- A man named Spring was in my service; also a man named Harrison.

Here the case for the prosecution closed, Dudfield’s statement at the police office was read, and Mr. Stephen proceeded to address the jury for the prisoner; in so doing, the learned gentleman reminded the jury, that although Dudfield was charged with having received this letter feloniously knowing it to have been stolen, yet he was not charged with having manifested a want of caution, for not to enter into the question of newspaper squibbling to inquire how far he may be justified in seeking to obtain possession of such a document, and the motives by which he had been induced -- What were the circumstances? It would appear that the letter had been given to him at a public house, and that at the time it was not published; there was no secrecy about it, he took it openly and having carried it with him to Oatlands, he then accidentally meeting with Allison, a servant of Mr. Anstey’s, gave it to him to convey to his master, because it contained reflections upon him and the Police Magistrate at Oatlands; he contended that such conduct exhibited any thing but a guilty intention, he submitted there was nothing extraordinary in it, indeed he would ask whether he did not deserve praise, instead of censure, for exposing the conduct of a man who, screened by his official situation, sent communications to the editor of a newspaper to be published, of a base and heartless nature, containing unjust and highly unbecoming reflections upon the magistrates in whose very office he was himself writing and acting in a confidential capacity. But another question arose on this case, respecting the value, if any could be affixed, of the precious document. It had been contended, that it must be of some value even if it were infinitesimal; he knew that philosophy taught us that the particle was so small but that it was yet capable of subdivision, but he submitted that there could be no difference between a value that could not be assigned, and no value at all, for if it was of a value less than a farthing how was it to be estimated, where were our ideas of value to terminate. The jury had only the unsupported evidence of Mr. Robertson to prove that it was of any value, and he submitted that it was yet a question of argument whether it was his property at all, if the jury should be of opinion that the paper was the property of the crown, there would be an end of the argument at once, and if they did consider it the property of government, he did not know how Mr. Andrew would escape a prosecution for larceny; but he would not rest the merits of the case upon these arguments, but would at once proceed to call his witnesses in proof of his assertion. The learned gentleman then called

Edward Spring -- was servant at Mr. Hefford’s in Sept. last; knows Dudfield; he left town the 2nd Oct.; Dudfield was at Hefford’s 30th Sept.; he received some letters; he came in between 3 and 4 in the afternoon, went into the parlour, witness was waiting on some visitors in the parlour; Mrs. Hefford said “Mr. Dudfield here’s a letter for you,’ she gave it to Mr. Dudfield; witness saw no other paper given; it was after our dinner hour; letters were frequently left there for Mr. Dudfield when in town.

By the Jury -- Knows a man named Green, one of Mr. Robertson’s men; he was not there that day; Mrs. Hefford did not say who brought the letter.

The defence was here closed, and the Attorney General rose to reply -- the learned gentleman commenced by stating that he was not a little astonished at one part of the address which the jury had heard from his learned friend, he certainly was not prepared for it; they had been told by his learned friend, with well acted sincerity, that Dudfield’s conduct entitled him to the thanks of the community, but he considered that he had failed in shewing any one instance in which his conduct was entitled to praise; he for one would contend, that the prisoner did not deserve eulogy. His learned friend had said, that the prosecution was weak -- that it was a signal failure; he indeed admitted, that the defence was ingenious, but he contended that it had been completely contradicted. In allusion to Dudfield’s defence, wherein it was stated that he had received the letter from Mrs. Hefford, the learned gentleman said, he had often heard that dead men tell no tales, and he presumed the maxim held good with respect to dead women.

His Honour summed up at some length, going carefully and minutely through the evidence.

The jury retired, and after an absence of about 20 minutes, returned with a verdict of Not Guilty.

Pedder C.J., 26 January 1838

Source: True Colonist, 2 February 1838[1]

ADMINISTRATION OF JUSTICE

Last week the Court House was crowded on two occasions, to hear trials of comparatively little individual interest in themselves, but both involving most important considerations to the interests of society. In both cases, the results were by one party celebrated by rejoicings, while the well ordered portions of the community was filled with astonishment, and every well thinking man drew the contrast between these acquittals and some equally surprising convictions, that had been witnessed in the colony. And the general expression is, “compare the acquittals in those cases with the conviction of Robert Bryan -- contrast the evidence and say what confidence can be placed in the administration of justice under present circumstances; it is surely high time that we should now reiterate our petition for trial by civil juries according to the constitution of England. And if his Honor the Chief Justice could with propriety express what he evidently thought upon the subject -- most people think that he felt anythink [sic] but satisfied with the verdicts in both cases. We are bound to give the Jury credit for deciding in good conscience and according to their judgment, but the audience was certainly impressed with an opinion that their conduct on the second trial was to say the least extremely precipitous, and that of the foreman in particular, highly indecorous to the court. The first trial to which we refer, was that of [George Dudfield] for feloniously receiving one manuscript sheet of foolscap, stolen from the printing office of this paper. Our readers will recollect that several articles appeared in this paper exposing the strange proceedings of George Dudfield and the magistrates and the police establishment at Oatlands. The parties so exposed were of course anxious to discover the source from whence that information was derive. And of course they were not any way fastidious as to the means by which their ends were to be accomplished. One of our correspondents at Oatlands suspecting that letters addressed to us might be interrupted -- forwarded his communications undercover to a friend of ours in Hobart Town. About the end of September, we received a letter signed “True Blue,” exposing certain irregularities in the Oatlands district, which was printed and published on Saturday the 30th of that month. Dudfield was at the same time in Hobart Town -- and returned to Oatlands on the Monday -- having obtained possession of the manuscript before the paper was published. By the next post we received a letter from the author informing us that George Dudfield had obtained the MS, by bribing a man in our printing office, and had sent it to Mr. Anstey, by whom it was forwarded to Mr. Whitfoord -- who thought it of such importance that he forwarded a mounted dragoon with it to Captain Forster. Such are the purposes for which this costly establishment is maintained. On receiving this information we waited upon Captain Forster, who acknowledged that the stolen manuscript had been forwarded to him by Mr. Whitefoord. We laid an information against Mr. Whitefoord for feloniously receiving it. On the investigation of this charge it appeared that it had been forwarded to him by Mr. Anstey who received it from Dudfield. The charge against Mr. Whitefoord being then dismissed, we next proceeded against Dudfield -- who set up a very ingenious defence, that he had received it amongst a number of other papers in a sealed cover addressed to him from a woman named Hefford, who had very opportunely died before the loss of the paper was discovered. To corroborate this he called Hefford, “Ned Spring” and a person named Harrison, the two latter proved that he had received one letter and some gilt edge paper at Heffords on the day, on which the manuscript was lost -- he also called Mr. Henry Soloman who proved that on the same day he had left a letter for Dudfield at Heffords -- containing a bill for acceptance.

When the case was called on for trial and the Jury sworn, the Chief Justice asked Dudfield if he had any counsel -- he said NO! The Attorney General briefly related the facts, and commented on the evil consequences to society if such offences as that charged against the prisoner were allowed to pass with impunity. He also explained the law as to the necessity of proving an article to be of some intrinsic value before it could be the subject of a felony -- but at the same time, that if they thought it of any value, even the lowest denomination, and the unlawful receiving were proved, they must convict. After a very clear and unvarnished exposition of the case he called --

MR. GILBERT ROBERTSON, who proved the loss of the M. S. -- identified it, sand fixed the value at one half-penny. Dudfield was proceeding hand gallop, with a course of cross examination which must inevitably have led proof of his guilt, when Mr. Stephen who had entered the court with Mr. Whitefoord, addressed the Court, saying that he had received a Brief and retainer as Counsel for Dudfield, that he was quite prepared for the case, but that he had told the person who retained him, that he would not act unless he saw Dudfield, and discovered that he, Dudfield wished to employ him -- that he had nevertheless been waiting in the Court in readiness to conduct the case if Dudfield desired. Dudfield hesitated for some time, evidently shewing that the retainer had been sent by some kind and deeply interested friend, without the knowledge of the client. At length after exchanging a glance of intelligence with Mr, Whitefoord, who appeared to take great interest in the case, Dudfield said he wished to have Mr. Stephen for his Counsel. The learned gentleman then undertook the cross examination, and very soon extricated his client from the danger of bringing out the truth into which he was fast running. The learned Counsel very evidently and most successfully led the attention of the Jury from the merits of the case, and tried to puzzle the witness – lst. by shewing that the paper might by possibility have been lost not stolen. 2nd. -- That it was of no value. 3d. -- That he, the person to whom it was addressed, could have no property in it after he had printed and published it, thereby fulfilling the object for which it was sent to him. He set up a 4th defence, evidently at the suggestion of Mr. Whitefoord, viz. -- That the paper on which the M. S. was written, was the property of the Crown. Mr. Whitefoord being examined as to this point, came ready prepared with paper of similar description, which he said was used in the Police-office at Oatland’s, and gave his evidence with a vindictive asperity of manner and expression which excited the disgust of every man of honesty or gentlemanlike feeling in the Court -- and which drew upon him the severe and well merited castigation of the Attorney General’s sarcasm. But it was evident that the poor empty creature had no feeling of the figure which he cut under Mr. McDowall’s scalpel. Mr. Andrew swore that the paper was his own private property, that he bought it at Davis’s the week that Sir John Franklin arrived. Mr. Tomlins who was afterwards called, stated that the supplies of paper forwarded by the Chief Police Magistrate to Oatlands about the time the M.S. was written, were furnished by Mr. Davis.

A gentleman standing at the Court House door, shewed us a roll of manuscript, written on similar paper, and we find in our own office, a number of circulars printed on paper bearing the same water mark and similar in every respect, which no doubt had been purchased from Mr. Davis, with whom we dealt extensively for stationery at the time they were dated. It was probably the practice at Oatlands to use government stationery for all purposes, and on the knowledge of this, Mr. Whitefoord might have suggested to his friend the chance of succeeding in such a defence -- but when we heard Dudfield moot the same point at the Police-office, we thought that it was a “forlorn hope.” It surely was a defence that no man would have set up who was not conscious that he had committed the act imputed to him, and consequently relied on a quibble to escape conviction. For if the paper on which the manuscript was written had been the property of the Crown -- would it either morally or in law justify either the thief or the receiver.

We were not sorry to see Mr. Whitefoord exhibit to the Chief Justice and the Attorney General, a specimen of the pure unbiassed evidence which he is capable of giving -- and which made such an impression on the Sheriff and Crown Solicitor in the case of Mr. Masters at Oatlands. It goes far in connection with other circumstances to shew Mr. Whitefoord’s fitness for the situation which he holds. We have seen a paper in his hand writing, relating to Mr. Masters, left on the table of the public office at Oatland’s, for the perusal of the convict constables and all comers, of which few convicts in the chain gang would not be ashamed to acknowledge the authorship -- and we have reason to know that Captain Forster has seen it.

The loss of the paper, property in it, and value, being proved, and the article traced to Dudfield, the case for the prosecution closed. Mr. Stephen commenced his address for the defence, by passing a counsels eulogium on the character and particularly on the wealth of his client. But this did not appear consistant with his usual tact -- for he did not venture to call any witnesses in support of this eulogium, no not even Mr. Whitefoord, the particular friend of his client, although he sat at his elbow. His address was otherwise as usual, most ingenious, and has justly raised the estimate of his talents for “pulling them through,” very much in the opinion of gentlemen who are “likely to get into trouble” or who have friends in that predicament.

The evidence in support of the defence was summed up in that of Edward Spring. We copy it from the Colonial Times --

“E. Spring examined. -- I was a servant at Hefford‘s in September last; I know Dudfield; he returned on Monday, the 2nd October by the coach; Dudfield was at the public-house that day; Dudfield came in on Saturday; he went into the parlour; I was waiting on some visitors that were in the parlour; Mrs. Hefford came in and said, Dudfield, here is a letter for you; she gave it to him; I did not see any other besides that; it was nearly four o’clock; it was after our dinner hour; I do not remember any other letter being given on that day; letters were often left for Dudfield when he is in town; he comes to town above four times a year; I have lived there nearly three years; he always put up there during that time.”

The Attorney-General in reply, exposed the baseness of the defence attempted to be set up by making it appear that Mr. Andrew had embezzled a sheet of paper the property of the crown, and in his peculiar cool cutting style, said enough to Mr. Whitfoord in few words to have made any other man run out of court and hide himself for shame. But Mr. Whitfoord’s armour of stupid arrogance made him proof against the keen edge of Mr. McDowell’s sarcasm. The learned gentleman impressed upon the Jury the serious consequences that must accrue to society if such offences were allowed to pass with impunity -- exposed the boldness of the other point of defence set up, as to getting the manuscript from the poor woman whose death had happened so opportunely for the purposes of such a defence. The Chief Justice summed up the matter with great care and impartiality, pointing out to the Jury, that they had first to consider whether the paper was the property of the prosecutor. For if it was their opinion that it was the property of the crown as alleged for the defence, that the prisoner must be acquitted on this information -- second, whether the paper was of any real value in itself, for they must not regard in their verdict, the adventious value to the prosecutor, however great that value might be -- His Honor clearly shewed, as the counsel on both sides had previously done, the effects of the law for punishing the purloiners of writings however valuable to the owners -- third, whether the prisoner had received it knowing it to be stolen.

The Jury after retiring for a few minutes, astonished the audience with a verdict of NOT GUILTY! Dudfield on leaving the court passed close to the prosecutor, who was standing near the Court House, and assailed him in the most outrageous manner with threats, against which he sought the protection of the court. The Chief Justice told him, that as far as his individual protection was concerned, he must apply to the Magistrates but that the court would do what was necessary to protect its own dignity by punishing the contempt, if the prosecutor would move the court on the first day of term for a rule to shew cause why an attachment should not issue against Dudfield for the contempt. The Attorney General said that he felt it his duty to protect the witnesses for the crown [???] should move for the rule or attachment [???] forget which he said on the first sitting of the court and took with him the affidavit prepared for the purpose.

We understand that there was a splendid entertainment afterwards given at Hefford’s public-house, in honor of the triumph of Messrs. Dudfield and Whitefoord, with an illumination of Chinese lams. And we perceive they are to sing loud Iopeans on the occasion in their Turopenny organ on Saturday.

Notes