R v Robertson, 1839

This was a criminal information for libel against the defendant, Mr. Gilbert Robertson, the proprietor and publisher of the True Colonist.

The Solicitor-General appeared for the plaintiff; Mr. Robertson defended himself.

This case having been called on at the conclusion of the trial of prisoners, the defendant, Mr. Gilbert Robertson, complained of the want of due notification, and his inability to plead in consequence - that he was not provided with the witnesses requisite to establish his defence, whom it was his intention to call, if he had been aware that the present proceeding would have been persevered in on the part of the plaintiff; but that as he had been present at the last sessions, when this case had been called on, and no one had appeared for the plaintiff, he concluded the matter was dropped, and that he should hear no more about it. He had, however, much to his surprise, been summoned from a sick bed to attend the court that day, and being now called on he would address a few remarks to His Honor on the subject of the information itself filed against him by the Attorney-General which he had no doubt would elicit some observations from His Honor.

His Honor - I do not want, Sir, to make any observations. The proper mode of addressing the court is through an affidavit, for I am not here to sit to determine upon the statements which you may think proper to make impugning the conduct of any party. Such a proceeding would be highly irregular; but if there was anything of which you had to complain, it was competent for you to have addressed the court in the form of an affidavit, and the court would then use its discretion in interposing to correct the irregularity. His Honor then stated, that if it was want of due notification of which the defendant now complained, and that could be proved - as a copy of the information must be delivered twenty days before the trial - he could traverse the case to the ensuring sessions.

The Solicitor-General said, that a notice had been served upon him in ample time to allow him to plead at the present sessions.

Mr. Robertson replied, that he had certainly received some paper, but he had altogether disregarded it.

The Solicitor-General. - Possibly your Honor will take the defendant’s own confession, that he did receive such notice.

His Honor asked if the plaintiff were not in a condition to prove it, when Mr. Dobson, the solicitor for the plaintiff said, that though such notice had been served, there was no affidavit of the fact.

His Honor was requested by the defendant to read through the information, in the hope and believing that His Honor on seeing the ridiculous nature of the contents would at once dismiss the matter out of court, but His Honor remarked that this was a little too much to expect, considering that it extended to twenty-five folios, nor did he think that in doing so would in any way serve the defendant’s cause.

Mr. Robertson being then called upon to plead, pleaded “not guilty,” when bail having been taken for his appearance at the next sessions, the case was traversed over to that period.

This was a criminal prosecution, at the suit of Mr. Jacomb, against Mr. G. Robertson, the proprietor of the True Colonist, for an alleged libel, which appeared in that Journal some time ago; the Solicitor General conducted the case, on the part of the Crown, and Mr. Robertson defended himself.

In opening the case, the Solicitor General observed, that, as the Information was very long - indeed, enough to frighten a lawyer, even, to look at, he would not read it, unless Mr. Robertson wished it.

The Solicitor General then observed, that, as the information was so long, he should be brief in his remarks, and he proceeded to point out the libellous nature of the two articles, contained, respectively, in the True Colonist of the 7th and 14th December last; these, the learned Counsel contended, referred to his client, Mr. Jacomb, whom they maliciously and unlawfully libelled, traduced, vilifies, and ridiculed.

The articles were now read, that of the 7th December, being headed, “Death and the Bailiff,” and that of the 14th, “Worse than Dodson and Fogg”. The Solicitor General here entered into an explanation of the very libellous meaning of the heading, “Worse than Dodson and Fogg,” and evinced an intimate acquaintance with that inimitable production, The Pickwick Papers. The libellous matter was then urged to apply to Robert Jacomb, Esq., J. P, and a Lieutenant in Her Majesty’s Navy, and the arguments were supported by a reference to cases which showed that the heading of a libel was a most important matter. Amongst the cases adduced, was one about a horse stealer in Shropshire; and another relating to threatening letters. There was a pertinent allusion also, to Seneca’s Morals, and Johnson’s Dictionary. The learned counsel animadverted on the want of caution exhibited by the defendant; he writes the paragraph on a Wednesday, and does not publish till the following Friday - having been previously told by Mr. Abbott, that he had committed an error; thus warned, however, as he was, he could not stop the press for one half hour, when the character of a gentleman was at stake.

The learned Counsel now entered upon a high eulogium of Mr. Jacomb’s character, as a member of an honorable profession, his former comrades and friends at the United Service Club, and, indeed, everywhere would feel an interest in his character. Now, the papers of this Colony circulated over the whole world; and the injury was not only done to Mr. Jacomb here, where the calumny could be contradicted, but in distant parts of the Globe, where no contradiction could follow. After a few more observations, the learned Counsel left the case in the hands of the Jury, perfectly confident, on the authorities he had quoted, that they would find the defendant guilty.

Mr. Robertson having admitted the publication, Mr. T. G. Gregson was called, who proved that the allegations applied to Robert Jacomb, Esq., J. P., of Richmond. On his cross-examination Mr. Gregson stated, that he did not know that Mr. Jacomb had property in Watchorn-street.

Mr. Robertson commenced his defence by observing, that this was the most extraordinary case, which had ever been brought under the notice, even, of His Honor; few men, employed as the prosecutor has been, would have brought such an action as this. He had been charged with having committed a breach of the peace; now, what is a breach of the peace? (Mr. Robertson here defined this offence.) The Solicitor General has aggravated the libel, by calling it false; he hoped that His Honor would permit him to prove that it was true; knowing it to have been true, it would have been a disgrace to him, as one of the conductors of the Public Press, if he had not brought the circumstances under the notice of the Government. Was it becoming in a person, like Mr. Jacomb, to have his name mixed up with a dispute about some wretched brothels in Watchorn-street, and for the sake of a paltry fifty shillings? He, Mr. Robertson, was shown a copy of the warrant, and was told, that the bailiff was sitting in a corner of the room when the dead body of the tenant’s wife was there. Was not that enough to rouse the indignation of any person? This was a case, that could not be brought under the cognizance of the law, for a person might use cruelty in claiming, what he considers to be his right. Mr. Robertson, then, entered into an eloquent eulogium on the power of the Press, and on the influence of Public Opinion, which was far above that of the law. He ridiculed, most bitterly, the Solicitor General’s appeal to the Jury, as regarded the United Service Club; and maintained, that, although Mr. Jacomb was so indignant at being accused of such an act, as that, which had been imputed to him, he could prove every word of it to be true. It was for the Jury, then, to say, whether he was to be handed over to the Sheriff, for exposing this Lieutenant of Her Majesty’s Navy! He would suffer, and rejoice to suffer, if he were convicted in such a cause, where it not for his young and unprotected children; but he should find another Jury in the sympathy of the Public of this Colony; for there were not ten persons in that Court, that would not willingly stand in his place. “And what has Mr. Jacomb done? He did not come to me and contradict the statement; but, finding I was in default, with regard to some regulations under the Newspaper Act, he has an Information laid against me at the Police Office.” We regret that our limits will not allow us to follow Mr. Robertson closely through his address; but those, who were present, will not speedily forget the powerful castigation he bestowed upon that curse to the Colony - usury, and usurers. In exposing the evils, resulting therefrom, he contended, that he had committed no offence against the law, and he cited several opinions to shew, that he was fully justified in exposing such mischief, with a good intention, and for public purposes only. As to any dealings with Mr. Jacomb, he never had any but once, and that was, when he bought sixpennyworth of snuff; there could be no malice, then, if no malice was proved; and His Honour would inform the Jury that there are occasions, when a person publishes what is untrue, but believes it to be true, and that he does so for a good object, that is not punishable. The learned Solicitor-General states, that he published the statement, knowing it to have been false; if he had done so, he should not have had the face to say one word; if he had done it, even, upon light authority, he would have said so, and thrown himself upon the mercy of the Court. His Honor may think it his duty, and perfectly consistent with his oath, to sentence him for the present charge; but public opinion would acquit him. Why did not Mr. Jacomb bring a civil action, when he (Mr. R.) could have proved every word to have been true. There was a statement, even, published in the Colonial Times, by Mr. Jacomb, and others, which proved what was said to have been true; and which, he (Mr. R.) would put in.

The Solicitor-General, with regret, objected to the statement from the Times being read.

Mr. R., continued, the learned Solicitor General directed the attention of the jury to the head of the two articles, thus copying the celebrated Mr. Sergeant Buxfux in his eloquent appeal about “Chops and tomato sauce.” The learned counsel had but recently arrived in this Colony, but there is in it one or two lawyers, knows as Dodson and Fogg, but he did not know that the Solicitor General alluded to a gentleman, whom a misprint in the Colonist had identified with one of that worthy firm. The Solicitor General says, no man of feeling could help being indignant with the landlord; and yet this landlord associates with men of honor, and was a magistrate, while he (Mr. R.) is described as Gilbert Robertson, of Hobart Town, with no calling - no profession - no anything! But what (continued Mr. R.) will be thought of Mr. Jacomb, when I show you, that he did this thing? Mr. Jacomb charges me with falsehood, because I said the poor man Day was 70 years old, instead of 66. The Under Sheriff supplied the poor creatures with clothes, through the medium of the Benevolent Society, and these clothes the landlord would have sold, if not prevented.”

Mr. Robertson submitted, that he was entitled to prove all he could, and was determined to have the prosecutor in the box.

His Honor ruled, that Robertson might prove, that he had good and reasonable grounds for believing what he had written, but he could not prove the actual truth.

Mr. Peet, who proved, that Mr. Robertson had made enquiry of him, as to how he, witness, came to a knowledge of the case.

Mr. Peet testified, that the facts of the case were communicated to him by Mr. Wintle, whom he had known for several years, and believed what he said.

Edward Abbott, Esq., J. P. - Was present when the facts, in the alleged libel, were made known to Mr. Robertson; recollects that Mr. Peet was asked, in his presence, as to the truth of the statements made.

In his cross-examination, Mr. Abbott said, that a day or two afterwards, he informed Mr. Robertson, that he had seen some of Mr. Jacomb’s friends, and recommended Mr. R. to alter the statement.

On his re-examination, Mr. Abbott stated, that he recollected, when Mr. Jacomb’s solicitor mentioned the matter to him, he was told it was too late to alter the paper that day.

Mr. R. L. Murray had read the matter in dispute; was present, when the facts were stated by Mr. Peet; recollects Mr. Robertson asking his advice about this business; does not recollect distinctly; thinks Mr. R. did consult him; recollects saying, he would publish the statement himself.

On his cross-examination, Mr. Murray said, he had known Mr. Peet for many years, and had sold him a house.

Mr. S. J. Wintle deposed, that he had had some conversation with Mr. G. R. about the imputed libels - but did not recollect at what particular time, but thinks it was about the 4th or 7th of December; witness told Mr. R. that he had seen a distress warrant, from Captain Jacomb, to a man, whose wife was lying dead; the amount of which was 50s.

A short discussion here ensued, on the subject of Mr. Wintle’s being at loggerheads with Mr. Jacomb; but His Honor stopped it; Mr. Wintle, however, observed, that he had not the slightest quarrel with Mr. Jacomb; all that he wanted, was justice.

Mr. D. McKay; knew the prosecutor, and knew of the publication of the case in the Colonist; (statement was here referred to.)

Mr. McKay on his cross-examination, stated, that he was a house agent, and employed by Mr. Wintle, to get possession of some disputed property; and, to a question, put to him, by Mr. R. he answered, that he saw a corpse in the room at Day’s house.

Mr. John Dobson, on being called, objected to be examined, as he was the Attorney in the case; but the objection was over-ruled, and the examination proceeded. Recollects a conversation with Mr. R., after the publication of the first libel, and, also, one with Mr. Abbott, who said there was something to appear against Mr. Jacomb. The article related to a distraint in a house, in which there was a corpse; but he, witness, would not believe it; never heard, even, that there was a distraint; Mr. Edward Abbott told witness, that Mr. R. was very wrong in doing this.

Mr. Dobson. - I will not swear this positively; at this lapse of time, I cannot repeat the express words; I recollect nothing about a Qui Tam information; there was an information at the Police-office, but you had no sureties; the information was at the suit of Mr. Jacomb, - under the Newspaper Act; I swear, that I do not believe, you are worth a single shilling in the world; but, if sureties had been found, a civil action would have been brought.

Mr. Robertson. - Provided I had found sureties, would your friend, Mr. Jacomb, have been mean enough to have come upon them for compensation?

Solicitor General asked, if this question had anything to do with the matter at issue?

His Honor. - Would Mr. Jacomb have brought a civil action, if sureties had been found?

Mr. Dobson. - Mr. Robertson said he would suffer death first, - before he would contradict, what he knew to be true.

Mr. Jacomb - Is the prosecutor in this case, he certainly, never made any contradiction to the statement in the True Colonist; authorised Mr. Dobson to do what was right upon the occasion, Mr. Dobson never told witness he had called upon Mr. R. for anything, but an apology. Witness published a statement himself, but did not certainly consider it an “apology;” the statement was published in the Colonial Times and Tasmanian. Witness was aware that the same statement appeared in the “True Colonist;” cannot exactly answer the question about playing the informer at the Police-office, under the Newspaper Act; his object was to compel Mr. R. to give security, that he might bring a civil action that Mr. R. might have an opportunity of proving the truth of what he stated.

The Solicitor-General rose to reply; he objected to much of the evidence adduced, as irrelevant to the case; it was, he said, extremely painful to him, to have to contend with one, who was not conversant with the forms of Courts of Law, and especially, as regarded evidence. The learned Gentleman entered into a warm eulogium upon the general character of the Press of this Colony, but he deprecated its tyranny and its licentiousness; he would support it to the fullest extent, in the fair spirit of freedom and liberality, - but, when it exceeded the bounds of moderation, he should set his face against it. The learned gentleman then travelled over the chief points urged and proved by Mr. Robertson, and left the case, entirely, in the hands of the Jury.

His Honor summed up with great candour and impartiality; he pointed out the most material points for the consideration of the Jury, and left it to them to say, whether the Defendant was - or was not - guilty of the charge, stated in the Information.

The Jury retired, and, after a short absence, returned into Court, finding the Defendant guilty upon both Libels.

The Chief Justice having taken his seat, the Solicitor General prayed the judgment of the Court upon Gilbert Robertson, found guilty of libel.

Mr. Robertson addressed the Court. He had not prepared any affidavits, after the full manner in which he had brought the case before His Honor. He should move in mitigation of punishment, in arrest of judgment, and for a new trial, upon two grounds; first, that there did not appear anything in evidence to prove that he had charged Mr. Jacomb with being cognizant of the dead body being in the house, when the bailiff was put in; and, secondly, that in His Honor’s charge to the jury, he had told them to find, whether the articles were put forth for the purpose of exposing the demoralizing effects of the love of money, or whether for the purpose of injuring Mr. Jacomb in his fame and reputation and turning him into ridicule. Upon both the counts the jury returned a general verdict of guilty. His Honor stated that I had good grounds of defence, if I could prove, that I went to parties, who, from their own knowledge, informed me of the facts. There was no evidence of malice proved towards Jacomb, which was requisite to support the verdict . I have brought no law authorities, because I am sure, if His Honor saw any grounds in arrest of judgment, or mitigation of punishment, he would give me the benefit of them. There being no evidence of malice, and the circumstances published being such as the moral interests of society required, - exposing acts abhorrent to every feeling of human nature - I consider good grounds in arrest of judgment. If it was at all the duty of a public writer to repress bad acts, this was a case in which he was particularly called upon, and it consequently became necessary to refer to the actors; but if I had made any unguarded reflection on the conduct of any man, who had caused such acts to be done, the law, stern as it is, would make every allowance for such a publication, - and the sternest Judge who ever sat upon a Bench, although he might be called upon to pass sentence, would, in his own mind, regret the necessity, and consider that the party had done his duty to society as a man and a Christian. His acts were similar to these -

Chief Justice. - I cannot hear any observation in mitigation of punishment, or the other side must reply in aggravation. You were allowed to go fully into the case at the time of trial.

The Solicitor General would not consent, unless he was allowed to call witnesses.

The Chief Justice could not consent to that course, Mr. Robertson must confine himself to his motion in arrest of judgment, or for a new trial.

Mr. Robertson. - There was no evidence to prove that I charged Mr. Jacomb with being cognisant of the fact, of the corpse being in the house. I even published Mr. Jacomb’s statement, disavowing the fact - that was not a symptom of malice - and upon that ground, there was not the slightest evidence, on which to return a verdict of guilty; and, having only stated a fact, His Honor had charged the Jury on that point. Upon the face of the two libels. I can see nothing that blamed Mr. Jacomb, if any one, it was Mr. Wood, his agent. I have nothing more to say, as His Honor will not permit me to go into arguments in mitigation of punishment. I hope what had passed since, will not weigh against me. I am sure His Honor will give me every advantage, to which I am entitled.

Chief Justice. - A motion for a new trial should be for something upon the face of the record. He did not tell the Jury, there was no evidence that the libel did not charge Mr. Jacomb with putting an execution in the house, knowing the corpse was there. He told them, that if the whole article was to show, the evil effects arising from the usurious getting of money, then, it was no libel; but, if he went out of his way, to impute cruelty and hard-heartedness to Mr. Jacomb, then it was libellous. He saw no grounds for a new trial. Mr. Robertson had urged, that he had sufficient reasons to believe the statements, at the time he published them; and that there was no evidence he had been actuated by malice. Those were no grounds for a new trial. Whether he was guilty or not, malice had nothing to do with it. Once for all, he wished it to be understood, that malice did not convey that popularly understood meaning which it generally received. Although the libel might not, in express terms, charge an offence, yet it might insinuate one, so that every one might understand it, and a man was more guilty of slander by adopting that course, than by a direct statement. The Jury found that this libel did convey those insinuations. On that plea, therefore, there can be no ground for a new trial. He thought there was evidence to show, that the libel applied to Mr. Jacomb, and to insinuate that, he had acted in this heartless manner; if there was any doubt as to the application of the article in the True Colonist of the 7th December, it was explained, and put beyond the possibility of a doubt, by the article of the 14th. He had no doubt, therefore, of the propriety of the verdict the Jury had given. The only question, therefore, left for His Honor’s consideration, is the quantum of punishment to be inflicted upon the defendant. He had offered nothing in extenuation, but urged, that whether true or false, he had reason to believe them true at the time of publication. That was a question for His Honor’s consideration, how far he had made that our; all that he could collect from the evidence, went to show, that the defendant received his intelligence from Mr. Peet, who knew nothing about the matter, but who had received his information from other parties; Mr. Wintle in his evidence, said that the interview he had with Mr. Robertson, was after the first publication, and therefore, the intelligence could not have been gathered from him; thus Mr. Peet comes to defendant and tells him a story, which he immediately sends to the press, without making enquiry as to its truth or falsehood; notwithstanding the caution given him by Mr. Abbott, he still suffers it to be published, without having any communication with the parties, who could have made him acquainted with the matter, until after the publication; and he urges, that the first form being worked off, which contained the libel, he could not withdraw it, but suffered it to go forth. The motive also of the libel, as he states, was to make the Government acquainted with the dirty conduct of this gentleman, and the impropriety of his holding office, he at the time being a Magistrate, and a Lieutenant in the Navy - the length of time which has elapsed, without any expression off sorrow upon the defendant’s part for the injury done - the manner he spoke of going into his shop, and purchasing snuff - all evince a disposition to insult Mr. Jacomb. I may be wrong, (continued His Honor) - in saying - but, perhaps, not - that I am aware of the state of your circumstances, which I shall take into consideration, in passing sentence, which is - That you be confined in Her Majesty’s gaol of Hobart Town for two calendar months - that you pay a fine of £60 to the Queen - and that you be further imprisoned until the fine be paid.

[1] For Robertson see M. Godfrey, ‘Gilbert Robertson (1794-1851)’, ADB, v. 2, pp. 384-5. See also AOT MM 71/10, pp. 299-300 for the Judge’s Report.

[2] See also Hobart Town Courier, 14 June 1839; Hobart Town Advertiser, 7 June 1839; Cornwall Chronicle, 15 June 1839.