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

Rodd v Mansfield [1830] NSWSupC 65; sub nom. Rodd v. Mansfield (No. 1) (1830) NSW Sel Cas (Dowling) 802

press freedom, contempt of court, press commentary on pending cases, contempt of court, attachment, law reporting, privilege, libel, qualified privilege

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 11 September 1830

Source: Australian, 17 September 1830[1 ]

Dr. Wardell rose to shew cause against the nisi,

RULE FOR AN ATTACHMENT.

Rodd. v. Mansfield,

granted on the previous Saturday, and returnable to day, on the ground that the defendant, as Editor of the ``Paid Official Organ," the ``Sydney Gazette," in a No of that paper of the 11th ult. had published a certain letter of nearly 3 columns in length, signed VERITAS; accompanied by editorial comments, in support of such letter, both having an evident tendency, and with a design to prejudice the merits of an action for alleged libel, brought by the plaintiff in this case against the defendant, which then was, and still is pending.  After briefly adverting to the subject of the rules the learned counsel for the defendant contended against the procedure by attachment as an extraordinary mode, unknown to the common law, and only resorted to by the court of Chancery, because there was no nearer remedy at hand for contempts, of which Blackstone whom he would quote from as a good standard authority in such cases, had cited several, yet he could discover none with which the attachment applied for in the present instance could be thought to tally so precisely as to leave the aggrieved party without a remedy elsewhere.  Neither the letter in question, nor the comments complained of, were calculated or written with a view to prejudice the cause at issue, therefore could not be held to imply a contempt of court, in the absence of which, there could be no grounds for an attachment; and he wound up by giving it as his opinion, that the motion was only brought to extract costs from his client's pocket, and swell the bill, in proof of which, the printed letter complained of had been copied verbally into the written affidavit upon which the action proceeded.

Mr. Foster, who appeared in support of the rule being made absolute, rose on the other hand, to shew how contempts were incurred in general, and how this in particular was a gross contempt of the court, being calculated to warn the minds of a jury, and to turn the course of justice against his client.  He then went into a lengthy dissertation, on the arguments of the opposite counsel, and the character of the defendant's publication; concluding that the rule should be made absolute.

The Chief Justice said the prerogative, which the court had been called upon to exercise, was one that called for all the most scrupulous delicacy and strict regard to even-handed justice.  Attachment was a process which the court felt had disposition to resort to, when any less arbitrary course happened to lie open for punishing or convincing a defendant.  Looking into the matter complained of, His Honor felt no hesitation in pronouncing it to be objectionable - highly objectionable, and improper.  The letter Veritas was a cool argumentative appeal, and very likely to influence the minds of a Jury, who, taken by the speciousness of the reasoning, might thus come prejudiced into court, to decide a cause of which the defendant, by his comments also, and by studiously drawing the public attention, to that cause had already prejudged its merits.  Judges it was true, were not likely to be influenced in their opinions by any such reasoning; but persons chosen from among the general body of society would doubtless be, and therefore any undue efforts to prejudice their sentiments before the trial of a cause at issue, was a high contempt, which a court of justice could not brook, and ought to punish.

``I pray you vest once the laws to your authority:  To do a great right, do a little wrong. ---"

This Shakespearian quotation which occurred in the course of the letter signed VERITAS, plainly inferred of itself, a high contempt of court; and from a dispassionate view of the whole matter, the learned Judge concluded there were strong grounds for the exercise by the court, of the summary process of attachment for contempt.  However, considering that it was probable the defendant had erred, rather thought inadvertance than design, and that it was the first time he, at least, as Editor and publisher of the ``Sydney Gazette," had been cited before that court contempt, the court thought the justice of the present case would be met by the fact being made public, of this judicial reproof, undisguisedly given; and His Honor would dismiss the rule for an attachment, but expressly on condition of the defendant paying all costs.

Mr. Justice Stephen concurred in opinion with his learned colleague, and took a brief yet luminous and comprehensive review of the matter in question, concluding that he would have felt bound in justice to the offended dignity of the court, to issue the attachment sought for but that he would not dissuade his learned colleagues from pursuing a milder course, in which he now coincided.

Mr. Justice Dowling bestowed a few remarks on the nature of attachments, and the matter at issue, expatiating on the evil consequence resulting from an undue prejudice being raised in the public mind, by a preliminary discussion in public prints of the merits of a pending cause.  In the case of Thurtell, who had been hanged for the murder of Mr. W[?]ar, in Herefordshire, so excited was the public mind, by the press of the day teeming with statements, that in justice to the prisoner, it was considered necessary to delay the trial for several weeks, he concluded with the Chief Justice, and Mr. Justice Stephen, that the rule should be dismissed, on condition of the defendant paying costs.

 

 

Dowling J., 21 September 1830

Source: Sydney Gazette, 23 September 1830[2 ]

 

(Before Mr. Justice Dowling and a Common Jury.)

Rodd v. Mansfield.

This was an action to recover compensation in damages for an alleged libellous publication, of and concerning the plaintiff, in the Sydney Gazette of the 26th June last, parporting to be comments of Counsel on evidence given by the plaintiff when examined as a witness on the trial of a certain action, in which one Robert Montgomery Martin was plaintiff, and Ralph Mansfield defendant, tried some time since before the Supreme Court of this Colony.[3 ]

The defendant pleaded the general issue, and also gave notice of justification, inasmuch as the paragraph complained of was a fair, candid, and impartial report of the proceedings in an open Court.

The following gentlemen composed the jury:- Messrs. Cummings (Foreman), Clayton, Dowling, Capite, Cooper, Cracknell, Burn, Douglas, Cox, Coates, Byrnes, and Curtis.

Mr. Foster stated the case for the plaintiff, and called the following witnesses:-

Mr. G. W. Newcombe, clerk in the office of the Colonial Secretary, produced the newspaper filed in the office, under the local Act, and also the affidavit, by which the defendant stated himself to be editor, printer, and publisher of the Sydney Gazette; witness does not know the defendant's handwriting.

Mr. James Campbell, Mr. James Greenfield, and Francis Stephen, Esq., were severally called to prove the defendant's hand-writing on the office newspapers, and also to the affidavit, neither of whom could speak positively.

The Reporter for the Sydney Gazette said - I know the handwriting of the defendant; I believe the signatures on the newspapers now produced to be in his handwriting; I have no doubt that they are; I have seen the defendant write very often.

The defendant's affidavit, setting out that he is editor, printer, and publisher of the Sydney Gazette, filed in the office of the Colonial Secretary, under the provisions of the Act of Council, was here read by the clerk of the court; as was also the alleged libellous publication, and the record of the trial of the cause, Martin v. Mansfield.

Cross-examined by Dr. Wardell - Witness - (looking at the Gazette of June 26th, 1830, put into his hand by counsel) I reported the trial of the cause, Martin v. Mansfield, published in this paper, and furnished the manuscript to the printers; I believe that my reports are generally esteemed correct; I am quiet sure that the evidence of Mr. Rodd, the plaintiff in this case, as reported by me in the case of Martin v. Mansfield, is correct as far as it goes; I have certainly not stated all Mr. Rodd said on that occasion, because he gave a number of answers which, in my judgement, had no bearing on the case; I considered that many of the answers were irrelevant; when a direct answer was given I put it down; I am not aware that any thing is omitted which would have gone in favour of Mr. Rodd; it appeared to me that the cross-examining counsel found it very difficult to obtain direct answers from him, but when one was given I put it down; I consider this to be a candid and impartial report of the evidence given by Mr. Rodd; I had not other motive on earth than to give a fair report; I had no particular instructions from the defendant relative to this trial; I had general instructions from him to be as impartial as I possibly could in my reports, and I have always endeavoured to be so; I am not aware that the fidelity of my reports has in any instance been impugned; I have reported for the Gazette nearly six-years, at all events more than five; the speech of the defendant's counsel in this report, is correct as far as it goes, though it does not contain all he said; I have a perfect recollection, independently of any notes, that the words, the subject of the present action, were made use of by the learned counsel on that occasion; it was impossible to give a fuller report of the trial than is here published, for the want of mechanical means, I commenced writing the trial late in the day, and did not leave off until one or two o'clock in the morning, when the overseer of the compositors sent to me to say that for want of room, he could get in no more; I had no direction from the defendant to leave out the reply of the plaintiff's counsel, or to bear hard upon one person more than another; the defendant never saw the page containing this portion of the trial till after it was published; it was two or three o'clock in the morning before the printers had done composing, and it was then too late to send the page to the defendant; he depends exclusively on my diligence and accuracy in getting out my reports, and never reads any of them, that I am aware of, until after they are published; my sole reason for leaving out part of the case was want of room; the compositor sent to me to say, that he could not get in any more matter, and I went down to the composing room to satisfy myself that his statement was correct; I do not think the defendant knows the plaintiff, and I believe that to have been the reason, as stated in one of his published letters, why he declined publishing the apology dictated by the plaintiff, as it contained assertions to which he could not subscribe, they being made of a person of whom he knew nothing; I am not aware, of my own knowledge, that the defendant made any application to counsel, in order to ascertain whether the expressions attributed to him in this report were correct.

Re-examined.  The trial took place on Wednesday the 23rd of June, and the report was published on the Saturday following; I see a quantity of matter in the last page, which might have been taken out to make way for the remainder of the trial, had not that part of the paper been printed off in the early part of the evening; I commenced writing the report on the Friday about one o'clock; had I commenced the day before, I might have written the whole of it out, and it might have been inserted, supposing all other matter had been omitted; more could not have been published, consistent with out other arrangements, or with the mechanical means we possessed; I have once or twice continued the report of a trial into a second paper, but that was where the cause occupied more than one day; Mr. Wentworth, and the learned  Judge who tried the cause, might have made some observations exculpatory of Mr. Rodd, in reference to the animadversions on his testimony by the defendant's counsel, and I have no doubt that I took them down, if any such were made, but I do not remember them; the leading article in the same paper which contains the report, commences with the words, ``We give a full report of the trial, Martin against Mansfield, &c.," but I can explain that: - before I left the office, on the morning the trial was to take place, I asked Mr. Mansfield if he wished a full report of the case?  he said he did, as full as I could make it, and that article was written by him, under the belief that I would make a full report; I reported the case correctly to the best of the skill and talent I possessed, and without any intention or instruction to act unfairly towards any party; I am still in the employ of the defendant as reporter; I have no interest in making this appear to be a correct report, at least no pecuniary interest; if it be proved not be a correct report, it will only show that I am not so infalliable as I have been considered to be; the trial, Martin v. Mansfield, lasted from the usual time the court sits in the morning till 7 or 8 o'clock at night.

Mr. S. Stephen - consider this paragraph imputes an intention to the plaintiff to suppress the truth; the tenor of it is to impute an improper intention, with some improper view; I cannot say what precise motive is imputed in suppressing the truth; it imputes that he was not willing to give testimony favourable to the party for whom Dr. Wardell was concerned; the paragraph would unquestionably, in my opinion, injure Mr. Rodd in the estimation of those who were unacquainted with him; I do not consider this to be a fair report of the trial, as Mr. Wentworth's reply is not given; I was present at the trial and heard the reply; I think there was something said favourable to Mr. Rodd, but I cannot recollect what it was; it went to rebut the remarks on Mr. Rodd's evidence.

Cross-examined by Dr. Wardell - I do not mean to say, that what is stated is not fairly reported; the speech of the plaintiff's counsel, and the whole of the evidence on both sides are reported; the evidence of the plaintiff is reported at greater length than that of any other witness : reading the plaintiff's evidence, as reported here, and contrasting it with the remarks of counsel, I consider the latter unjust; I consider the report unfair, as Mr. Wentworth's speech is omitted; the poison is sent forth without the antidote.

Dr. Wardell - nay, the antidote does go forth with the poison, or rather before it.  The evidence is the antidote.

The learned Counsel here read the correspondence between the plaintiff and defendant referred to in the opening speech of the plaintiff's counsel, and asked witness - Supposing that to be read by any party with whom you say the paragraph complained of would be likely to injure the plaintiff, do you think it would do him any injury then?  Witness - No, I should think that a sufficient apology if the remarks had been made of me. - You think that any honourable man who honestly wanted an apology for a supposed injury and nothing more, would be satisfied with that? - I would be satisfied if I had been the subject of the paragraph.

Cross-examined - If that explanation had not been given till after action brought, it might alter the case; many persons might se the aspersions and never see the apology; persons might read the report of the speech, and not the evidence.  [An apology written by the plaintiff, but which the defendant refused to adopt, was here put into the witness's hand] I certainly would not insert this apology as a composition, otherwise I see no objection to it.

Dr. Moran and Mr. Unwin, a solicitor, gave evidence pretty much to the same effect.

The record of the case Martin v. Mansfield, was here put in evidence.  Upon examination it appeared that the summons was issued on the 20th July, and altered out of Court, by some person to the 29th; the action was commenced on the 30th, and the correspondence between the plaintiff and defendant, together with the defendant's expression of regret, were published on the 31st.

The paragraph charged in the declaration was here put in and read:-

``Gentlemen, you have heard the evidence of Mr. Wilton and Mr. Rodd, unwilling witnesses too, as you must have perceived - who, at the close of their examination, dropped their voices, and admitted that they had heard of disturbances in reference to the plaintiff, though not with respect to his exhorbitant [sic] charges.  Gentlemen, such a piece of evidence, coming from such witnesses, evidently proves their intention to state any thing rather than what they were called upon to state, under the sanction of their oaths when put into that box."

This was the plaintiff's case.

Dr. Wardell addressed the jury for the defendant at considerble [sic] length, but called no witnesses.

Mr. Justice Dowling charged the jury to the following effect: - This is an action brought by the plaintiff, a clerk in an attorney's offiee, against the defendant, the editor, printer, and publisher, of the Sydney Gazette, to recover compensation in damages for an alleged libellous publication of and concerning the plaintiff.  The declaration states, that before the publication of the matter charged to be libellous, a certain action was depending in this Court between one Robert Montgomery Martin and Ralph Mansfield, on the trial of which cause the plaintiff in this action and one Mr. Wilton were examined on oath, and gave evidence as witnesses on behalf of the said Robert Montgomery Martin; whereof the defendant being well aware, and contriving and intending to scandalize and defame the plaintiff, did publish, on the 26th June last past, of and concerning the plaintiff and of and concerning the evidence given by him, and of and concerning his conduct when examined as a witness, the following scandalous, false, defamatory, and malicious libel, purporting to be part of the address of counsel on the trial of the cause between the said Robert Montgomery Martin and Ralph Mansfield; that is to say - ``Gentlemen, you have heard the evidence of Mr. Wilton, and Mr. Rodd; unwilling witnesses, too, as you must have perceived - who, at the tail of their examination, dropped their voices, and admitted that they had heard of disturbances, in reference to the plaintiff, though not with respect to his exorbitent [sic] charges.  Gentlemen, such a piece of evidence, coming from such witnesses, evidently proves their intention to state any thing rather than what they were called upon to state under the sanction of their oaths when put into that box" - meaning thereby, that the plaintiff had intended and endeavoured to give unfair and partial testimony on the said trial, and to suppress part of the truth to favour the then plaintiff, Martin.  Gentlemen, in this count of the declaration there is a misdescription in the name of the publication wherein the alleged libellous matter appears, it being described as the Sydney Gazette and New South Advertiser, leaving out the word Wales; but there are still two other counts setting out the same matter, omitting the name of the newspaper, and merely charging the defendant with having printed and published the paragraph complained of.  The second count recites the same matter, only varying the innuendo, and alleging it to mean that the plaintiff intended and endeavoured to give unfair and partial testimony; and the third count sets forth the naked matter without any innuendo to give it a point or meaning, but leaving it for the jury to put their own interpretation upon it.  To this declaration the defendant has pleaded, first, not guilty; and, secondly, has given notice, that, he intends to prove on the trial, assuming the matter laid in the declaration to have been published by him, that he was justified in so doing, as it formed part of a fair and true account of what had taken place in an open court, and was an impartial report, according to the tenor of counsel's remarks, on the trial referred to.  [The learned Judge, here read over the whole of the evidence to the jury, and continued] Gentlemen, it now falls to my lot to direct you as to the course you are to pursue in deciding on this case, according to the law as I find it laid down.  It has been stated to you that the object in bringing this action is in order to vindicate the plaintiff's character, from unwarrantable aspersions, which had been cast upon it by the publication complained of.  Such actions as this ought not to be brought on slight grounds, and it will be for you to ask yourselves, by and by, whether this is such an action as ought to have come before you.  The case, however, having been brought into court, it is our duty to administer the law impartially between the parties as we find it laid down for our guidance.  Gentlemen, every man, who lives in society must feel the vast importance, of having the proceedings in courts of justice fully, fairly, and impartially reported.  It is a maxim of our constitution, that every man is supposed to know the law; and without the benefit which is derived from the privilege of communicating the proceedings of courts of justice to the public, it is manifest that a large proportion of the people must remain wholly ignorant of their relative duties to society.  Law reports, therefore, fairly given, are no doubt of great benefit to the community, and I will now proceed to state to you, what has been held to be privileged in publications of this nature.  It is held to be unlawful to publish ex-parte proceedings, taken before magistrates, or at coroners' inquests, previous to committing a man for trial, or holding him to bail for an offence with which he is charged, the tendency of such a publication being to prejudice the minds of jurymen against the accused, and to deprive him of a fair trial.  The same reason, however, does not apply to the publication of proceedings in an open court, where every man is supposed to be present, and where the whole cases is impartially considered and decided.  In the case of Curry against Walter, which was an action against the proprietor of the Times, for publishing a libel, which consisted in merely stating a speech made by counsel, on a motion for leave to file a criminal information, Lord Chief Justice Eyre, who tried the cause, ruled that it was not a libel, nor the subject of an action, it being a true account of what had passed in court; and, in this opinion the Court of Common Pleas afterwards, on a motion for a new trial, concurred though some of the Judges doubted whether the defendant could avail himself of that defence on the general issue.  This decision was also recognized and adopted by Mr. Justice Lawrence, in the case of the King against Wright, who approved of the doctrine of the importance of reports of judicial proceedings; and also by another Judge, not less celebrated for his regard for the rights of the subject, than for upholding the just prerogatives of the Crown, (Lord Ellenborough), who, in the case of the King against Fisher, said, that trials at law fairly reported, although they may occasionally prove injurious to individuals, have been holden to be privileged; let them continue so privileged.  The benefit they produce is great and permanent, and the evil that arises from them is rare and incidental.  I must say, however, gentlemen, that the authority of the case of Curry and Walter has been shaken, in some degree, by a more recent case, - that of Duncan against Thwaites, in which the present Chief Justice Abbott, speaking of the case of Curry and Walter, says that the doctrine laid down by Chief Justice Eyre, was of great weight in itself, and derived additional authority from the subsequent sanction of Mr. Justice Lawrence, still it should not to be thence inferred that the publication of ex-parte proceeding even in the courts above was to be allowed by law.  Gentlemen, the case of Duncan and Thwaites was founded on a publication of an ex-parte proceedings before the magistrates at a police office, not of a court where the proceedings were final; and I can find no dictum adverse to the publication of fair, honest, and bona fide accounts of the proceedings of courts of justice - nothing to militate against the principle, that bona fide reports, without malice in the publisher, are justifiable in law.  Gentlemen, the questions then, for your consideration are, first, is this publication libellous, without regard to whether it be justifiable in point of law.  If you are satisfied that the interpretation put upon the paragraph by the witnesses who have been called for the plaintiff, is the true interpretation, then I must say that it is undoubtedly libellous.  But, gentlemen, then comes the second question, namely, has the defendant made out his justification as he has undertaken to do?  Is this publication, taken altogether, a fair and candid, although it may be an imperfect report?  Gentlemen, although a detached passage taken from a detailed report of a judicial proceeding, may contain slanderous expressions, still it is competent for you to lay the whole publication before you, and to say whether it is, altogether, a fair, bona fide, candid report, without malice, even though it should be in some respects imperfect.  The publisher of a newspaper is not bound to state every thing that passes in a court of justice: to do so would sometimes require a sheet of paper as large as Salisbury Plains.  It is sufficient if he gives a fair and candid account of the matter at issue, without any undue motive to prejudice either party.  It is for you to say, whether, taken altogether, this is such a report, even though it may be in some respects imperfect, and contain slanderous matter in a detached passage.  In cases of this kind we are not to criticise too minutely where a man fairly and honourably does his duty, without any improper motives.  Gentlemen, this is charged to be a malicious libel, and you must be satisfied that it is so, before you will be warranted in finding a verdict for the plaintiff.  Assuming the words to be libellous, and that you do not consider the defendant has made out the justification he has pleaded, it will be your duty to find a verdict for the plaintiff, with such damages as the nature of the case deserves; if, on the other hand, you should be of opinion that this publication is a fair, candid, bona fide report, without malice, then your verdict ought, under all the circumssances of the case, to be for the defendant.

The Jury retired for a few minutes, and returned a verdict for the defendant.

Counsel for the plaintiff, Mr. Foster; for the defendant, Dr. Wardell and Mr. Allen.

 

Notes

[1 ] See also Sydney Gazette, 2 and 7 September 1830; Australian, 3 and 10 September 1830. And see Rodd v. Mansfield (No. 2), 1830.

Justice Dowling recorded this hearing as follows (Dowling, Select Cases, Archives Office of N.S.W., 2/3466, p. 30):

"The printer and publisher of a Newspaper is liable to be punished by attachment for a contempt of Court in publishing observations before trial of a cause depending in Court, tending to prejudice the fair and impartial trial

"Rodd v Mansfield

"Cause was now shewn against the rule nisi granted the other day against the defendant for a contempt in publishing in the Sydney Gazette observations tending to prejudice the trial of this cause.

"Wardell for Deft & Forster for Plf

" The Court was clearly of opinion that an attachment would lie but taking all the circumstances of the case into consideration they discharged the rule upon payment of costs by the Defendant."

For a similar case, see R. v. Mansfield (No. 2), 1830.

[2 ] See also Australian, 24 September 1830.

[3 ] See Martin v. Mansfield, 1830.

Published by the Division of Law, Macquarie University