[criminal procedure – criminal libel – separation of powers – Queen’s Birthday holiday]

R. v. Goodwin

Supreme Court of Van Diemen’s Land

In banco, Pedder C.J. and Montagu J., 7 May 1839

Source: Tasmanian, 10 May 1839[1]

            Mr. Herbert Jones, Solicitor-General, moved their Honors for a rule nisi, calling upon Mr. William Lushington Goodwin, editor and proprietor of the Cornwall Chronicle, to shew cause why a criminal information should not be filed against him, for a false, scandalous, and defamatory libel, of and concerning Edward McDowell, Esq., Attorney-General, contained in the Cornwall Chronicle of the 6th April, in an article headed “The Attorney-General.” He held an affidavit from the Colonial Secretary’s Office, as to the proprietorship of the paper. The article in question appeared upon the first day of the sittings of the Court at Launceston, last month, at which time the Attorney-General was expected to act as counsel in a case in which Mr. Goodwin was defendant. The article in which the libellous matter was contained, was headed in large letters, “The Attorney-General,” He would read to their Honours the libel complain of - (Here the learned gentleman read a portion of the article complained of, which for certain  reasons we would rather decline copying.) Had he stopped here, the matter might have been passed over without further notice, for he was sure that every gentleman who heard him, would bear him out in saying that, of all persons, his friend, Her Majesty’s Attorney-General, was the last who would have taken any notice of such remarks; he knew of no one who left to the press so unrestricted a right to comment upon the actions and conduct of public men as the Attorney-General. The article proceeded as follows: - (Another portion of the article was here read.) Now, he felt assured, that no one was less influenced by mercinary motives than his friend, the Attorney-General, perhaps he was almost negligent of his own interest in that respect. The article continued - (Here the learned Counsel read another short extract from the supposed libel.) Had there been nothing even further than this, perhaps there would have been no further notice taken of it, so totally was it devoid of truth, but the remainder of the article was far more malignant and serious in its representation. - (Here the Solicitor-General read the remainder of the article.) He then continued, - The offensive nature of the whole tenor of this article must be apparent to any one and that it reflected upon his friend, Mr. McDowell, in the high situation of Attorney-General, was self-evident. He (Mr. Jones) should not condescend to give a verbal contradiction to the slander, but it was necessary for any one coming before that Court with an application like the present, to deny the imputations upon oath, and he held in his hand an affidavit of the Attorney-General, which denied the allegations set forth to the libel, as gross falsehoods, reflecting upon his character without the shadow of truth. The affidavit set forth that three causes, Anderson v. Field, Friend v. Goodwin, and White v. Dixon, were upon the paper in the month of January for trial at Launceston, and he was retained as Counsel for plaintiff in each case, but the cases did not come on for trial that term, but went over to that of April; that he never made any application for fees in any or either of the causes, either in the month of January or April; that in the causes Friend v. Goodwin, and White v. Dixon, he received no fees, except what were given in January last; that upon Mr. Roberts, of the firm of Cartwright and Allport, applying to him in the cause Anderson v. Field, in the month of April, to know what fee he would require; he informed him that he should require none whatever, except what he had already received; when he arrived in Launceston, he received a letter from Mr. G.S.W. Horne, the plaintiff’s Attorney in that case, appointing a consultation and containing a fee. This Mr. Jones remarked, he knew to be the fact, he having received a similar letter himself, and was present when the Attorney-General opened his letter. On these grounds, Mr. Goodwin had founded his attack upon the Attorney-General, imputing to him motives, that every one who had heard his affidavit must feel convinced were unfounded, and the Attorney-General would be wanting in respect to the situation he held - to the profession to which he belonged - and to their Honors who presided upon the Bench, if he allowed the slander to pass unnoticed. Mr. Goodwin had a verdict hanging over him for very heavy damages, which was the only cause why the Attorney-General had adopted the present course.

Judge Montagu wished to knew, whether the information could be filed in the name of the Attorney-General, or whether some other person in the Court would sign for him. Upon reference to the 38th section, however, of the Act in Council, His Honor remarked, that when the Attorney-General prosecuted as Attorney-General, he could not do so in his own name, but in that of some other person, appointed by the Lieutenant Governor, or acting Governor for the time being.

Sir John Pedder, - It will be necessary to get a special appointment for that purpose.

Mr. Jones submitted, that the Solicitor-General was the most proper party.

Sir John Pedder wished to know who the party was to be appointed, whether an officer to sign in general, or a special appointment for this particular case. He thought that the Court, if they saw fit, might grant the rule, subject to the appointment of an officer by the Governor.

Judge Montagu - Should not the officer be in existence, then, no doubt, they would be in a situation to call upon Mr. Goodwin to shew cause; but he could never consent to their calling upon the defendant to come there with his counsel and witnesses, at a great expense, when the Governor might say, - “Oh, this is not a fit cause for a prosecution, and I shan’t appoint an officer.” This might be the language used; he could not consent to the rule being granted, until the officer was appointed, as it did not follow that if the officer was appointed the Court would grant the rule, or the rule being granted, that the Governor would appoint an officer.

Sir John Pedder thought that the rule might be granted, calling upon the defendant to shew cause why a criminal information should not be filed against him, by an officer to be appointed by the Governor.

Mr. Jones was sorry to see so serious a division in the Bench.

Judge Montagu. - Serious division, Sir, serious division; what do you mean, Sir, by serious division? it is a conscientious opinion at which I have arrived.

Mr. Jones intended nothing disrespectful, what he meant by “serious division,” was, that the Bench were not likely to come to an unanimous opinion; he thought, if the Court appointed any particular officer, it would be the better course, otherwise it would look like the Government dictating to the Judges.

Judge Montagu. - Oh, Mr. Solicitor-General, I can never arrive at any such conclusion; in the present day, no man would impute to the Government a dictating to the Judges; none but malicious men, at least, would make such an imputation; it would be very wrong, if they were to bring any man to that bar at a great expense, without they had power to try, convict, and sentence.

Sir John Pedder. - You had better get the appointment first, and apply to the Court afterwards.

Mr. Jones thought from something that had fallen from Judge Montagu, that it might have the effect, in a certain quarter, of preventing the appointment.

Judge Montagu. - Certainly not; for he thought, upon the officer being appointed, that it was a fit and proper case to call upon the defendant to shew cause.

The motion was then ordered to stand over till Friday.

Mr. Stewart moved, that the affidavit upon which he had moved in the early part of the day, might be amended, as it contained two or three clerical errors.

The Court could not consent to this; the affidavit was upon the files of the Court, and a rule had been obtained upon it; the rule might be staved, and he might apply upon fresh affidavits - which was consented to.

The Court then closed.

In banco, Pedder C.J. and Montagu J., 10 May 1839

Source: Tasmanian, 17 May 1839

At the opening of the Court, the Solicitor General stated, in re Goodwin, that, in accordance to the ruling of Mr. Justice Montagu, on Tuesday last, a proper person had been appointed to sign the information; the appointment was under the hand and seal of the Lieut. Governor, and was gazetted yesterday.

Mr. Justice Montagu observed, that, although the Court could not refuse to grant the rule, yet no judgment could follow, unless the parties were before the Court, if a rule nisi were granted, it did not follow, under the circumstances that it would be made absolute.

The Solicitor General said, that point could be discussed another day.

Mr. Justice Montagu said, he did not see how any discussion at all could occur; the rule might be granted, on the understanding, that nothing, which might occur, should necessarily make it absolute. The Chief Justice concuring, the rule nisi was granted.

In banco, Pedder C.J. and Montagu J., 14 May 1839

Source: Tasmanian, 24 May 1839

            Before the closing of the Court, the Solicitor General, in the case of the Attorney General v. Goodwin, moved – no person appearing for the defendant, - to have the rule for a criminal information made absolute.  Some discussion ensued, with respect to the shortness of time allowed to Mr. Goodwin, to make the necessary replies, and, it was ultimately agreed, that the case stand over till the latter end of the Term.

In banco, Pedder C.J. and Montagu J., 28 May 1839

Source: Tasmanian, 7 June1839

            The Solicitor General moved that the rule nisi obtained in this case, calling upon the defendant to show cause why a criminal information should not be filed against him, should be made absolute. He made this application upon affidavit of service; the rule was obtained on the 17th May; and served upon the defendant one[sic] 18th; the rule was made returnable on Friday, the 24th, but that being the Queen’s Birthday, the Court did not sit, and he now made the application, as soon after the return of the rule as possible.

            Mr. Justice Montagu. - It is a common practice, when there are more motions than can be taken by the Court in one day, to mention them, previously to the rising of the Court, and they stand over until the next Court day.

Chief Justice. - The rule is made returnable to show cause upon a particular day; but there is no fault to be found with either party; it is my fault if there be any. The defendant is not now in a situation to do that, which he is called upon to do.

Solicitor-General. - He had the same opportunity of knowing, as every other suitor had; the Court did not sit on Friday.

Mr. Justice Montagu. - I gave no opinion; I only said that the Court would sit on Tuesday; I am afraid that the decision must be against you.

Solicitor-General. - I could not move to make the rule absolute, upon the day it was drawn up, but upon the next or some subsequent day.

Chief Justice. - Suppose we were to make the rule absolute, the defendant might come before us, and say, “gentlemen,” this is a very hard case; I am summoned to attend upon a particular day, - I came down here with my Counsel and witnesses, at a considerable expense, and finding no Court sitting, I went away.

Solicitor-General - He was, by the indulgence of the Court, allowed further time upon the day when the rule was first returnable.

Mr. Justice Montagu. - No indulgence was granted him.

Solicitor-General. - Another week was given to him. I don’t think, as it is within one day of the term, that he should now object to the case being argued; and I don’t think it necessary to disguise the fact, that he has an agent in Court to make an application to your Honors not press the case on to-day.

Mr. T. W. Rowlands. - I have received, your Honors, a letter from Mr. Goodwin to take some proceeding in this case, and a memorial to present to your Honors, but, being irregular, I declined taking any proceedings in the case.

Chief Justice. - It forms are to be observed, they must be so in criminal cases; the intention of the rule is, to give him an opportunity to defend himself from a criminal prosecution, upon a particular day, which, however, he could not do from any fault of his, but mine.

Solicitor-General. - I don’t blame any one.

Chief Justice. - No, but I may be allowed to take the benefit to myself.

Solicitor-General. - Certainly. It will be something like difficulties thrown in the way of the prosecutor, if the rule is not made absolute to day, especially after the indulgence shown to the defendant upon the first day the rule was returnable, I shall despair of making a motion for a new rule.

Mr. Justice Montagu. - Whatever was the practice at home in these cases, was the practice here. The rule is made returnable upon a particular day, and it is then moved to be made absolute, or it expires. That is the simple position in which you stand. It is no matter why the Court did not sit; you cannot now move to make the rule absolute. The defendant might have been here with his Council and witnesses, at a considerable expense, and finding the Court closed, and knowing, perhaps, something of the law, and, that he was not bound to attend upon another day, went away; the defendant might have been actuated by the practice of the Court, and according to the established rules of this Colony, the rule had fallen to the ground. The object of the rule was to give the defendant an opportunity of showing cause why he should not be tried, - and shall the Court indict him, without giving him an opportunity of showing cause. Whatever time it may take, I think the better course is to be slow, and to take care that justice is done.

Chief Justice. - I have no objection to your taking a new rule, if it can be served in time.

Solicitor-General. - The character of the Attorney General is at stake, and I should not be doing my duty, without I moved for a new rule.

Chief Justice. - The Court have hitherto always observed the Sovereign’s birth-day as a holiday, and Mr. Montagu being here, I must bear the blame.

Solicitor-General. - Did you intend to cast the shadow of a reflection upon His Honor.

***

Friday May 31

            The Solicitor General moved, that the rule obtained in this case, be made absolute. He made the application, upon several affidavits, setting forth, that a copy of the rule was given to a daughter of the defendant, as his residence, in Launceston, on the 29th May; when, it was stated, that he had left Launceston for Hobart Town; and upon the evening of Wednesday last, he took a private sitting-room and bed-room, at the “Freemason’s Tavern,” but, he had not been seen there since; he had, however, been seen and conversed with, elsewhere, on the 30th, and there was every reason to suppose, that he was keeping out of the way. The Solicitor General, also, put in the affidavits of service, of two former rules.

Chief Justice. - The rule must be made absolute; and, he wished it to be understood, that the delay which had occurred, had not arisen from any doubt as to the propriety of granting the rule, or of making it absolute.

Mr. Justice Montagu. - All that I said was, that I thought it impossible to refuse the rule. Rule made absolute.