[libel, of judges – contempt, criticism of judges treated as libel – libel, criminal – criminal procedure]

R. v. Macdougall

Supreme Court of Van Diemen's Land

Montagu J., 4 September 1843

Source: Hobart Town Advertiser, 5 September 1843[1]

Before Mr Justice Montagu and a Civil Jury

LIBEL

            The Attorney General, on his Honor taking his seat, made an application to the Court for an attachment (as we understood) against Mr. Macdougall, the printer and publisher of the Colonial Times, for a libel inserted in a recent number of his paper, reflecting upon the Chief Justice, and Mr. Justice Montagu, and imputing to them corrupt motives in the administration of the law. The learned gentleman cited several cases, in which the Judge of the Court of Queen’s Bench have granted similar applications, where themselves were the parties libelled.

            His Honor (after some conversation between himself and the learned gentleman) observed that the defendant might be prosecuted by indictment at any time; but the present application was placing him in a very unpleasant situation. At all events his first duty was to deliver the gaol, and he should not now entertain the application.

            The Attorney General wished to have the defendant arraigned now, as he had been disappointed in the expectation of having had the manuscript given up, so that he might have preferred an information against the composer, and not the mere printer and publisher.

            His Honor said, this court was not a court of inquisition, to attach the defendant, so as to extract from his evidence against another man. Under those circumstances, nothing could induce him to put the defendant under duress.

            The Attorney General said no such thing was intended. It was always deemed a lenient course, where the manuscript was given up, to get at the original offender, rather than prosecute the publisher.

            His Honor observed, that having known the law of libel twenty-five years ago, he did not require to be instructed in it now, and desired the officer of the court to bring up the prisoners.

Source: Murray’s Review, 8 September 1843

            On Monday, the Attorney-General presented to the Supreme Court an information against Mr. J. C. Macdougall, for having published in the Colonial Times a libel upon the administration of justice. Judge Montagu, who presided, hesitated to permit the information to be filed, upon the ground, that as the Judges were the object of the libel, it would be at variance with his ideas of the “pure” administration of justice, that they, or either of them, should punish in their own case. “What!” said the Judge, “might not a defendant say - ‘you have sentenced me to such and such a punishment, from your sense of justice; and you have sentenced me to so much more, from your feeling of injury to yourself.’” Judge Montagu expressed himself, as respected the information, in terms, and in effect, which did him equal honor as a Judge and as a man. The Attorney-General referred to the constant practices “at home,” in prosecutions of publishers, to cease proceeding against them upon their giving up the author or authors, and stated that he had presented the information against Mr. Macdougall in the expectation that the manuscript would have been given up. This had been publicly offered, with every accompanying contradiction of the statements made, and proper concession for having inadvertently, for causes explained, made them; but to give up the MSS, was then impossible, inasmuch as it had been before given up to the Master of the Court, Mr. Hone, who together with the Judges, was involved in the libel. Judge Montagu said that he would not lend himself to rendering the Court an “inquisition” - to rendering it a thumb-screw to any defendant, thereby to compel him to any course. The Attorney-General disavowed any such intention, and the matter dropt. Mr. Macdougall has certainly done everything in his power to compensate for his error.

Montagu J., 16 September 1843

Source: Hobart Town Advertiser, 19 September 1843

            We have several times mentioned the earnest and persevering applications of the Attorney General, to induce the Court to call up the defendant in this case, (Mr. Macdougall, printer and publisher of the Colonial Times) to plead to a criminal information, filed ex officio, for a libel upon the Judges, and generally as to the administration of justice in this colony.

            Our readers will excuse us for not having published the notes furnished by our reporter on these several occasions, when we state that the cases cited from the books, pro and con; the arguments adduced; and the long conversations which ensued, were in the aggregate, so lengthy as to fill an entire newspaper.

            From the very first, the presiding Judge (Montagu) expressed a strong disinclination so to proceed, on the ground that it would be not only indelicate, but unprecedented, for himself or the Chief Justice to sit as Judges in a case personally affecting themselves; and his Honor, on one occasion observed, that the defendant, if sentenced to a period of confinement, might turn around and say, “You have given me so many months for the libel, and so many on account of your own personal feelings for having been libelled.”

            The Attorney General, on the other side, has urged that by delay, this case would come before the jury as a “stale case,” which he was exceedingly anxious to avoid; that the great distinction was, not that he filed this information as a libel on the judges in their judicial capacity, but because it reflected on the administration of justice generally and therefore affected the public interests. Under these circumstances, he contended, their Honors were bound to call on the defendant to plead; if for no other reason than that he might be called upon to give up the real author - the more guilty party, who had written and composed the libel.

            On one occasion, during the several discussions of these matters of difference between the learned Judges, and the chief Law officer of the Crown, his Honor the Chief Justice was present by special request of Mr. Justice Montagu. In hesitating to accede to the application of the Attorney-General, the Chief Justice utterly disclaimed any wish to proceed by information, to get rid of trial by jury. On the contrary, he had no abhorrence of the learned Attorney General proceeding against the defendant by the less constitutional mode of attachment.

            On Saturday, Mr. Justice Montagu expressed similar sentiments in the most earnest manner. He described an ancient mode of torture, by a dreadful instrument called the “Scavenger’s Daughter,” and by another called the “Little Ease;” and he avowed his opinion that the mental torture of compelling, by process of law, a defendant to criminate himself, or another party, was only a modern mode of effecting the same object intended by the “Scavenger’s Daughter,” and the “Little Ease.”

            The result was, that the Attorney General’s application to bring the defendant up to plead, stands adjourned until the next session of the Court, in order that their Honors may have sufficient time to look more fully into the “Crown Cases,” analogous to the one under consideration.

            No one who has listened to the lengthy arguments in this case, and the conversations in court, can have any doubt as to the earnestness of the Attorney General to prevent the administration of justice from being brought into contempt; or of the Judges to avoid the adoption of unlawful proceedings.

Source: Hobart Town Courier, 22 September 1843[2]

            The last Criminal Session has been one of more than ordinary interest, as regards the number as well as the nature of the cases disposed of; but that which seems to have created the greatest excitement, from its novelty, was an ex officio information against the printer of a newspaper, for a libel on the administration of justice in the Supreme Court; novel, inasmuch as it is the first proceeding of that nature resorted to by the present Attorney-General during his tenure in office here. Our notices of the late proceedings have necessarily been very brief, in consequence of press of other matters; but we cannot fail to observe that one of our contemporaries, who assumes to a certain extent to have set them forth in detail, has not only failed to do so, but to the suppressio veri has superadded the suggestio falsi. No bystander, possessing an ordinary share of discernment or candour, could fail to have observed and admitted that, during the various descriptions in this case, the object of the prosecutor throughout was to shield the defendant from the inquisitorial proceeding by attachment, which he stated he understood had been had recourse to by the Supreme Court in a former case of a like description, and to substitute for it the more constitutional one of trial by jury. If any proof of this desire on his part were wanting, we would quote that learned gentleman’s observations in reply to Mr. Justice Montagu’s remarks on the “Scavenger’s Daughter” and the “Little Ease,” as reported in the Hobart Town Advertiser of the 19th instant - they were as follows:

            “I think I have sufficiently evinced my detestations of the “Scavenger’s Daughter” and the “Little Ease,” in refusing to adopt that course which your Honor, on the first day of the session, stated was open to me, namely, by attachment, bringing by compulsion before the Court the party accused, and whilst under duress, compelling him to answer (to his condemnation) interrogations, ingeniously devised, for the purpose of extorting from him the confession of his guilt. I am firmly of opinion that the Attorney-General has a right, and is bound to bring the party accused to answer before a jury of his fellow-colonists; but if your Honor should ultimately decide against that right, because the name of the Judge who is to preside at such trial is incidentally mentioned in the publication complained of, I boldly declare that I would rather the administration of justice were libelled in every newspaper in the colony, than lend the authority of my office, or the sanction of my name, to so unconstitutional and inquisitorial a proceeding as that which your Honor has stated in open to me.”

            Would anybody construe these to be the sentiments of the learned Attorney-General, from perusing the reports and observations of the Advertiser in reference to this case? We pass to another report in the same journal, headed “Coining,” in which the editor mixes up with his report his own observations, as follows:

            “These blunders, in framing informations by the law officers of the Crown against such notorious offenders as those who manufacture counterfeit coin of the realm, does seem a little singular.”

            We pass over the trifling mistake in the grammar of his mother tongue by the learned editor, as a matter of daily occurrence, but we would in fairness ask, where is the blunder, save, as usual, in the editor’s fertile brain? Upon the point of doubt in this case, as stated by His Honor, he has not as yet made up his mind, viz, whether the information should have concluded against the form of the statute or not. The case stands over till the next session, for his Honor’s further consideration. Where is the blunder, in the meantime, of which the Advertiser complains so bitterly? To go back to the previous case of housebreaking, as reported in the same paper, it is stated that

            “The delay in passing sentence arose from a difference between His Honor and the Attorney-General, as to the sufficiency of the information to bear out the charge of housebreaking.”

            Would it not have been more candid and less blundering on the part of the editor, had he stated, as the face was, that His Honor had expressed a doubt whether the information should not have concluded “against the form of the statute,” and that the prosecutor, promptly and successfully, met the objection and dispelled the doubt, by stating that the offence was one at common law? Does the editor jump to the conclusion that every doubt that arises in a judge’s mind necessarily bespeaks a blunder on the part of the prosecutor? If such is to be the standard by which the efficiency of the public prosecutor is to be measured, or if his value is to be estimated by the blundering effusions of an ignorant empyric, we envy him not his position. Candour is undoubtedly a good quality in a critic, but blundering ignorance or suppression of truth, is inexcusable.