Pedder C.J., 12 April 1826

Source: Colonial Times, 14 April 1826

This important cause was tried this day.  We purpose in our next to give a full and accurate report of the whole proceedings.  We shall at present merely abstract them.  Mr. Murray stated the cause of action at considerable length.  In the course of his address, he read the libel to the Jury, which consisted of the first charge exhibited by the defendant against the Attorney-General Gellibrand.  It contained five charges against the plaintiff.-1st, that he was the author of the Letters, signed ``A Colonist," which were hostile to the Government of this Colony,-2nd, that he had been formerly a convict.-3rd, that he had been dismissed from a Superintendency of Police.-4th, that he had been brought to the Police office upon charges affecting his character.-5th, that he had lived in a state of concubinage.  For these five charges the plaintiff claimed reparation, on the ground, that the first and second were false in the construction put upon them by the defendant; that the third and fourth were altogether false; the fifth he considered too contemptible to notice.  He argued upon the danger of such slanders as these being put forth by one man against another in the indirect form of charges against a third.  He commented upon the aggravated injury contained in the defendant's plea ``Not Guilty," which, while it virtually admitted the falsehoods of the accusations, shrunk from open justification, yet covertly attempted it by the insidious reference to rumours and reports.  Mr. Murray concluded his address, by asking for the whole amount of the damages laid in the declaration, £2000, which he stated would be inadequate reparation for the injury he had received, the slanders of the defendant having gone to England to His Majesty and his Ministers, where he had no means of reply, or of even knowing by what statements they had been accompanied, and this at a moment when he might receive the most serious injury thereby, his friends being actively occupied in endeavouring to obtain his restoration to the British service, in which he had served upwards of 20 years without reproach.  This is a mere outline of the plaintiff's address.  We shall give it verbatim in our next, the whole proceedings having been taken down in short hand expressly for publication.  It appeared that Mr. Murray had applied to His Excellency the Lieutenant Governor, by Memorial, to enable him to prove that the charges against the Attorney-General, the first of which formed the subject matter of the action, were transmitted to His Excellency by the defendant, but that His Excellency refused to allow the original paper to be produced, it being in His Excellency's possession, or to afford Mr. Murray any aid whatever. Mr. Murray then proceeded, upon the ground that the original libel was not within the possibility of his obtaining it by any legal course, to adduce secondary evidence. Captain Montagu and Mr. Charles Arthur proved that the original charges were in the possession of the Lieutenant Governor-that they were in Mr. Stephen's hand-writing-that a copy produced by Mr. Murray had been taken by Mr. Arthur from the original. Mr. Stephen objected to Mr. Arthur's giving his evidence, upon the ground that he was criminating himself as the mere copier of a libel, and was as liable to a prosecution as the writer.  He referred to a case in which this doctrine was held, and His Honor the Chief Justice ruled that Mr. Arthur's evidence was inadmissible.  The Attorney-General Gellibrand proved that he was present at the house of the Chief Justice, when in Mr. Stephen's presence, the original paper signed by Mr. Stephen, was read and admitted by him to be the series of charges referred to.  That the paper then produced, was transmitted to him by the Lieutenant Governor as a copy thereof, and that he examined it carefully when the original was so read as above, and that it was faithful copy of the original (except as to whether the word Gazette, was not Gazettes.)

Mr. Solicitor Ross proved that he was present at the house of the Chief Justice when the original paper signed by Mr. Stephen was read; that the copy then produced by Mr. Murray, was a faithful copy, he having examined it with the original, when it was read by Mr. Spode in presence of Mr. Stephen, as stated by Mr. Gellibrand.  The proceeding thus far occupied the Court from 10 until 7 o'clock.

The Chief Justice repeatedly expressed his opinion that Mr. Murray could not be permitted to go into secondary evidence, while the original was in existence.  He admitted that Mr. Murray could not possibly obtain it, but he considered that that fact did not bring it within the Rule of Law, by which it was invariably held, that while the original was in existence, not matter how its production might be prevented, unless it was in the possession of the opposite party, no secondary evidence of it could be admitted.

Mr. Murray argued, that he had proved he had done every thing in his power to obtain it.  That His Excellency the Lieutenant Governor having it in his possession, and peremptorily refusing to permit it to be produced, placed it as much without his reach as if it had been lost or destroyed.  That as to him it was hermetically sealed up, and being wholly and altogether out of his power, it being absolutely and physically impossible for him to obtain it, he was at liberty give the next best evidence, particularly when he was enabled to produce a copy which had been examined with the original in the presence of Mr. Stephen himself, who had not only admitted the original to be such, but that it had been accurately copied into Mr. Murray's declaration.  That the Lieutenant Governor's power being paramount to the reach of any judicial process, the original was altogether lost to him, at least for the purposes of this action.  Upon these grounds and other similar, which Mr. Murray argued at much length, and with great anxiety, he urged that he was entitled of right to produce the next best evidence, unquestionable as such evidence was, and the accuracy of which was acknowledged by the defendant.

The Chief Justice adhered to his former opinion.  He observed, if Mr. Murray was injured by the original being so withheld, redress would be open to him hereafter.

Mr. Murray in reference to this, stated that at his time of life, the probability of being enabled to find His Excellency Lieutenant Governor Arthur in England, so as to bring an action against him there, with the additional difficulty of having to obtain evidence from the distance of half the globe, rendered such an expectation of reparation hopeless.  After a lengthened discussion, His Honor the Chief Justice decided that he could not receive secondary evidence, while the original paper was proved to be in existence, and that the plaintiff must be nonsuited.  It was however suggested, that if a case could be made out in the shape of a Bill of Exceptions, or in some other way, so as to enable the case to go to England upon appeal, such a course might be adopted, if the Chief Justice should decide that the plaintiff had the power of appeal.  At the opening of the case Mr. Murray had requested to have the evidence taken down with that view.  The Chief Justice refused this, upon the ground that as no damages were apparent, the plaintiff did not possess the power of appeal.  Mr. Murray cited the case of Campbell v. McArthur, at Sydney, which was a Bill filed in Equity; Decree for the defendant; Appeal lodged by the plaintiff, and now before the Privy Council in England.  The Chief Justice, however, was still of the same opinion, and the evidence was not taken down.  His Honor however stated, if on Mr. Murray's application he should consider that an appeal lay, he should not object to it.  Mr. Stephen stated, that he should certainly throw no obstacles in the way, but that if Mr. Murray was merely non-suited, as the case was not finally concluded, but that a fresh action might any day be brought, he should certainly object to appeal, under these circumstances.  Mr. Murray then offered to let a verdict be recorded for the defendant, upon the express understanding that Mr. Stephen should not object to the appeal, if the Judge should consider the right existed, and the point was accurately defined to be, that inasmuch as the original paper was in the possession of the Lieutenant Governor, that His Excellency has refused to produce it, and that Mr. Murray had not the power of compelling its production, that it was, under these circumstances, so entirely lost to him, that he should have been permitted to have given the copy he possessed as the next best evidence to be obtained.  Mr. Murray is to move for the appeal on Wednesday next, and a verdict was recorded for the defendant.

Source: Colonial Times, 14 April 1826

We call the earnest attention of every Englishman to the proceedings in the Supreme Court, on Wednesday, on the trial, Murray v. Stephen.  Limited as is our sketch, we have given enough thereof to show, that if it is permitted to one man to make written statements against another, charged to be false, malicious, and slanderous; to transmit such to the Lieutenant Governor, and when the accused seeks for redress, by bringing the accuser before the legal Tribunal of the Colony, in a manner where the fullest opportunity of proving the truth of his accusations is afforded, that the course of proceedings should be then stopped by the Lieutenant Governor refusing to allow the statements so made to be produced, which have nevertheless been acted upon in a measure of first rate importance, not less than the suspension of the first Law Officer of the Crown, the King's Attorney-General; when, we say, we see that statements, not matter how false, slanderous, or malicious, can be made to the Lieutenant Governor, can be withheld from production when the accused seeks for redress, it is difficult to find words fit and proper to express the feelings which cannot but arise upon such a state of things.  It would be imagined by every reasonable man, that the Lieutenant Governor would have considered such an investigation most important to himself, because the truth or falsehood of the accusations being ascertained, (as they would have been, by the very nature of the enquiry), to stifle such by the non-production of the charges, is a mode of procedure which it is difficult to understand.  If the charges made by Mr. Stephen against Mr. Murray were proved to have been true, the accuser would have been then publicly justified in having preferred them.  If they were false, the accused would only have received the justice he was entitled to.  But to receive accusations, act upon them, prevent their truth or falsehood being brought to the test before the legal Tribunal of the Country, is, we repeat, a measure which cannot be comprehended.  When we witness the reference made by the Chief Justice to the redress open to Mr. Murray, by the institution of legal proceedings in England, against Lieutenant Governor Arthur, for whatever injury (if any) he may have suffered, by the withholding Mr. Stephen's written statements,. which we repeat the Lieutenant Governor has nevertheless acted upon, and therefore the truth or falsehood of which it became of vital importance to ascertain - when, we say, we witness such a reference as this made to Mr. Murray, we cannot but consider it to afford but poor consolation.  For what injury does he not suffer in the mean-time - and when may Colonel Arthur and himself meet in England so as to have an opportunity - and what difficulty, and expense, and delay must not be necessarily attendant upon the obtaining evidence at such an immense distance?  We repeat, surely the hope of this affords but poor consolation!  And how easily all this might have been avoided, by simply producing the charges!  And what injury could have been effected thereby to any body?  Does not the very withholding them prove that some apprehensions must have been entertained of the consequences which would follow their production?  If Mr. Stephen had told the truth, could any such consequences have been feared? and if he had told falsehoods, and slanderous and malicious ones, should he or any other man be prevented from having such enquired into, and that too by the Lieutenant Governor, the King's Representative!  Again, surely the very investigation itself was in every way as desirable to the Lieutenant Governor as to the parties concerned.  The accuser to prove the charges, the accused to justify himself, and the Lieutenant Governor to ascertain what faith he could place in the representations made to him.  And what possible counterpoise can be urged against all these manifold advantages?  We know of none, unless it is what we cannot allude to.  There is a contingency certainly attached to these proceedings.  It is, that if the result of the trial had been unfavourable to Mr. Stephen - if he had been unable to prove before the legally constituted tribunal of the land, the accusations which he had preferred to an unconstitutional private one, in such case, what would have become of the Attorney-General's suspension, and of certain of the proceedings on which that measure was founded.  But still the importance of ascertaining the truth was not the less, and there can be imagined no better method of doing so, than by a public trial, in the face of the whole Colony, where the accuser and the accused stood face to face, and where the Judge of the Island had to decide upon legal evidence, given under the sanction of an oath!  Mr. Stephen has had such an opportunity afforded him!  Mr. Murray has publicly challenged, publicly courted investigation.  He has put every act of his life at issue with his accuser!  He has dared him to prove his accusations!  He has charged him with making them falsely, maliciously, and slanderously!  He has given him an opportunity of proving that he was indeed the pure and just accuser he stated himself to be, and that his accusations were facts.  Mr. Stephen first shrunk from justifying them.  He availed himself of a form of pleading, which gave him the advantage of having recourse even to rumours, and to hearsays, and to loose Newspaper paragraphs.  And yet even with all this, His Excellency the Lieutenant Governor has thought proper to exercise his high privilege of refusing to produce the document on which the case depended, and Mr. Murray is unable to proceed.  But whose reputation will now stand the fairest? and what have now become of all the base and unfounded slanders with which Mr. Murray has been so long and so indecently assailed! when his accusers dare not meet him upon one single point before the legal Tribunal of the land.  Where are now all their calumnies?  Upon whom will the public voice bestow the meed of approbation?

Pedder C.J., 19 April 1826

Source: Colonial Times, 21 April 1826