Skip to Content

Decisions of the Superior Courts of New South Wales, 1788-1899

R v Hayes [1830] NSWSupC 73

press freedom, press laws

Supreme Court of New South Wales

Forbes C.J., 24 September 1830

Source: Sydney Gazette, 28 September 1830[1 ]

(Before the Chief Justice and a Special Jury.)

The King against Hayes.

This was an information of debt, at the suit of the King, to recover certain penalties alleged to have been incurred by the defendant, by a breach of the local Act for regulating the printing and publishing of newspapers and other papers of a like nature.  Plea, the general issue.

Mr. W. H. Moore stated the case, and called the following witnesses:

Mr. G. W. Newcombe - I am a clerk in the office of the Colonial Secretary, and am specially authorised by him to receive the copies of newspapers published in the Colony, under the local Act; I produce the affidavit of the defendant, declaring himself editor, printer, publisher, and proprietor, of the Australian newspaper; the signature is the defendant's, and the jurat is the Colonial Secretary's; I produce a paper filed, in conformity with the Act, by the defendant, in the office, dated the 9th October, 1829; part of it is obliterated with ink, and was so at the time it was filed; we had other copies supplied to the office, but they were not obliterated in the same manner as the paper filed under the Act; when this paper was delivered to me there was a gentleman in the room, and I pointed out to him the manner in which it was obliterated.

Cross-examined by Mr. Stephen - There are a good many clerks in the Colonial Secretary's office; I am appointed to receive the file papers; I generally lock the papers up immediately after I receive them; I received this paper about 3 o'clock in the afternoon; I recollect precisely what I did with the paper when I received it; I wrote to the defendant respecting a newspaper similarly obliterated, on a former occasion, and no notice was taken of it by him; I am almost sure I wrote in my own name, but I will not swear positively; if I had written in the name of Mr. McLeay, the answer might have been sent to him; I pointed out the obliteration to Mr. McLeay on the day I received the paper; it was afterwards sent to the late Mr. Sampson, and from him to Mr. Baxter, and Mr. Moore; I will not swear at this distance of time that the paper now produced is the same I received on that day; I did receive a paper on the 9th October, published on that day, signed by the defendant with his name and place of abode; I saw other papers of that date, bearing the same heading and purporting to be edited, printed, and published by the defendant; the papers are not always delivered into my hands in the first instance; the paper of the 9th October was delivered to me by the messenger who had delivered the papers from the Australian office for some time before.

Mr. Francis Verett, said, I am a clerk in the office of the Colonial Secretary; I remember my attention being called by Mr. Newcomb to some obliterations in an Australian newspaper filed in the office; it was on the 9th of October last; I believe this to be the paper; I saw the paper delivered at the office by a messenger, whom I believed to belong to the Australian office, as I had seen him before; I do not know of any other autograph copy of the paper being left that day,

Cross-examined. - This is the paper I believe; another paper might be obliterated in the same way; I put no mark on the paper I saw delivered; it is now nearly twelve months since I saw it.

This was the case on the part of the Crown.

Mr. Stephen, on the part of the defendant, contended, first, that the evidence adduced went to establish that the defendant did deliver at the office of the Colonial Secretary, one of the papers published by him on the 9th of October, 1828, signed with his name and place of abode, in his own hand-writing; and, secondly, that the charge against the defendant neither came within the meaning or the spirit of the 14th sec. of the Act, the object of which was to provide proof of publication by the defendant, and which object could be as well attained by the production of any other paper of the same date and title, as by that filed in the office of the Colonial Secretary.

The defendant called no witnesses.

The Chief Justice - Gentlemen of the Jury.  This is an information of debt - a crown proceeding - by means of which the king, through Mr. Moore, seeks to recover the sum of £100, being the amount of a forfeiture claimed on the ground of an alleged neglect of duty, in a breach of a certain Act of the local legislature, entituled ``An Act for preventing the mischiefs arising from the printing and publishing of newspapers, and other papers of a like nature, by persons not known, and for regulating the printing and publication of such papers in other respects, and also for restraining the abuses arising from the publication of blasphemous and seditious libels.  The information contains three counts, the substance of which has been already detailed to you by Mr. Moore, who prosecutes on the part of the crown.  The first count sets out by stating, that the defendant is the publisher of a certain newspaper called the Australian, and then goes on to recite, that, by a certain ordinance of His Excellency the Governor, with the advice of the Legislative Council, it was enacted that, from and after the 1st day of May, 1827, every printer, or publisher of any public newspaper, should, on each day of publication, deliver to the Colonial Secretary, or to some person to be appointed by him to receive the same, one copy of the newspaper so published by him, signed with his name and place of abode, in his own proper handwriting.  It then does on to state, that after the passing of this Act, the defendant, so being the editor, printer, and publisher of the Australian, on a certain day, namely, the 9th October, 1828, did not deliver to the Colonial Secretary, or to a person duly appointed by him to receive the same, one of the papers so published by him, signed with his name and place of abode, in his own proper handwriting, but had therein wholly failed and made default, whereby he has forfeited to our Sovereign Lord the King the sum of £100.  The second count, in nearly the same words, states that after the passing of the Act, namely, on the 9th day of October, 1828, the defendant disregarding the same, did not on that day, nor at any other time, deliver to the Colonial Secretary, or to a person duly appointed by him to receive the same, a copy of the newspaper so published by him, signed with his name and place of abode, in his own proper handwriting, but had therein wholly failed and made default.  The third count, more concisely, but in terms substantially the same, sets out that the defendant, being the editor, printer, and publisher of the Australian, after the passing of the Act, and after the 1st day of May, to wit, on the 9th October, 1828, printed a certain set or number of papers, and did not deliver to the Colonial Secretary, or to a person duly appointed by him to receive the same, one of the said papers, signed, in his own proper handwriting, with his name and place of abode, but had therein wholly failed and made default.  Gentlemen, to this information the defendant has pleaded nil debet, and you are now assembled to try whether the fact charged against him has been proved, under such direction as I shall think it necessary to give you in point of law, as respects this case.  Gentlemen, the Act on which this information is founded and which was passed for the purpose, as it recites, of ``preventing the mischiefs arising from the printing and publishing newspapers, and papers of a like nature, by persons not known, and for regulating the printing and publication of such papers in other respects; and also for restraining the abuses arising from the publication of blasphemous and seditious libels," among other provisions, contains a clause requiring that certain securities shall be entered into by the editors, printers, and publishers of newspapers, that certain affidavit shall be made by them, and deposited in the Colonial Secretary's Office; and also, that, from and after the 1st day of May, 1827, every editor, printer, or publisher of a newspaper, or other such paper, shall, upon every day upon which the same shall be published, deliver to the Colonial Secretary for the time being, at his office, or to some person to be duly appointed by him to receive the same, one of the papers so published, upon each such day, signed by the printer or publisher thereof, in his handwriting, with his name and place of abode, under a penalty of one hundred pounds, in every case of neglect.  Gentlemen, the object of the Act is this: it has often happened, in cases of actions or indictments against the publishers of newspapers, that very great difficulty has occurred in bringing home the fact of publication to the party charged to be the publisher.  In order to remedy this inconvenience, the Act in question was passed, whereby it is provided that an affidavit filed in the office of the Colonial Secretary, containing the necessary jurat, and the name of the subscribing party, shall be conclusive of the fact of publishing any paper bearing the same title and imprint as those described in the affidavit, and proof sufficient on the trial of any action or information, for matter contained in such newspaper, reflecting on the character of any individual.  In addition to the filing of this affidavit, however, it is provided, - it would rather appear, for more abundant caution - that on each day of publication, the editor, printer, or publisher of every newspaper, or other such paper, shall deliver to the Colonial Secretary, or to a person duly appointed by him to receive the same, one of the papers so published, signed in is own handwriting, with his name and place of abode, to be carefully kept by the Colonial Secretary in his office, but which may occasionally be had by any party applying, as proof, on the trial of any action or indictment.  Gentlemen, this is the law on the subject, and it is now declared by this information, that in these particulars the defendant has wholly failed and made default: that is, that he did not on the 9th day of October, 1828, deliver into the office of the Colonial Secretary, one of the papers published by him on that day, signed with is name and place of abode, in his own proper handwriting.  The evidence, however, which has been taken in this case, and which I will now read to you, goes to establish that all the provisions of the Act have been complied with, save that a mutilated paper has been filed in the office of the Colonial Secretary, which, it is contended by Mr. Moore on the part of the crown, is not a paper under the meaning of the Act.  Gentlemen, this is the particular point for your enquiry.  It is in evidence that a paper bearing the same title and imprint as that described in the affidavit of the defendant, signed by him with his name and place of abode, was delivered, on the day it bears date, at the office of the Colonial Secretary, and for which a receipt was given in these words:- ``Received an autograph copy of this day's Australian, G. W. Newcombe, October 9, 1828."  Gentlemen, it appears, therefore, that every part of the law has been complied with, unless, as contended on the part of the crown, the paper laid in evidence before you this day, he considered not to be such a paper as is contemplated by the Act.  The questions, then, for your consideration, are, first, was that obliteration on the paper laid in evidence, at the time it was received by Mr. Newcombe? - and, secondly, assuming it to have been, is it such an obliteration as to destroy its legal description, and enable you to say, that it is not, de facto, one of the papers published by the defendant on the day it bears date?  [The learned Judge here read his notes of the evidence.]  Gentlemen, this is all the evidence that has been laid before you.  With respect to the evidence of identity, it has been pressed on your attention by the counsel for the defendant, that, owing to the length of time which has elapsed, and the circuit which the paper has taken, first from the Colonial Secretary to the late Solicitor General, thence to the Attorney General, and from his to Mr. Moore, that all proof of its identity is lost: - that fact, however, is a matter of evidence, and it is for you to say, upon the testimony of Mr. Newcombe and Mr. Virett, that they believe it to be the same, whether you can arrive at any other conclusion than that it is the paper delivered into the office of the Colonial Secretary, on the 9th October, 1828.  If you should be satisfied of that fact, then the next and most important point for your consideration is, whether you can say that this is not one of the papers published on that day.  That I understand to be the sole point contended for by the crown officer; namely, that this provision of the law has not been complied with, inasmuch as a paper, obliterated in one part as that in evidence before you is, cannot be deemed to be a paper within the meaning of the Act.  Gentlemen, as I before stated to you, this is the only question you have to try.  Supposing that obliteration to have been made by the defendant, it is difficult to suppose the precise object with which it was done.  In case of an action for libellous matter contained in any newspaper, it is not necessary to produce the paper filed in the Colonial Secretary's Office; the defendant's affidavit, together with any other paper of the same date and title, being quite sufficient to establish the proof of publication required by the Act.  Certainly the Act contemplates that the paper filed in the Colonial Secretary's Office may become necessary, as a matter of proof, owing to the care with which it is kept, and other circumstances, although such paper is, in law, no better proof than any other paper.  It is, therefore, difficult to collect the precise object of making this errasure [sic], seeing that any other newspaper of that day would be just as good proof in a court of justtce [sic] as this particular paper.  Gentlemen, I put the case to you, to say how far the defendant has done and omitted to do those acts which the information charges him with having made default in.  It is in evidence, that on the day on which it was published, either this or a paper of the same date, was delivered into the office of the Colonial Secretary, signed by the defendant, in his own handwriting, with his name and place of abode.  So far all the requisites of the act have been complied with; and it is simply a matter of fact for you to say, whether this is one of the papers so published.  Gentlemen, if this is not one of the papers so published  what is it? - My opinion, as a matter of fact, is, that it does fall within the meaning of the Act; and however the receiving clerk might have refused such a paper, seeing it was to be paid for, that I should have some difficulty in coming to any other conclusion.  I am aware that the policy of the law might be defeated, under supposable circumstances, if a paper so filed were much obliterated; but, as in the present case, where two lines only are errased [sic], I entertain serious doubts how far a verdict against the defendant could be upheld under a penal statute like this, although there may be such a misprision of the Act as to admit of some other form of proceeding.  Gentlemen, I put it to you, as a matter of fact - and a simple one it is - to say, whether, from the scoring on that paper, its legal description is so destroyed that it is no longer to be considered as one of the papers published on the day it bears date.

The jury consulted together for a few minutes, and, without leaving the box, found a verdict for the defendant.

 

Notes

[1 ] For its exuberant report of this case and its commentary, see Australian, 1 October 1830.  The tone of its report may be judged by its headlines:

" A ROWLAND FOR AN OLIVER!

Might AGAINST Right.

TRUMPHERY ACTION AT LAW.

TRIAL BY JURY!!

TRIUMPH OF THE PRESS!!!"

See also R. v. Hall, 1830.

Published by the Division of Law, Macquarie University