First true civil libel case in Australia
The 'Philo Free' trial of John Thomas Campbell
In 1817, 16-year-old George Allen was just a few months into his legal training when he found himself amidst one of the most interesting legal cases in the colony of New South Wales. George had just entered his articles of clerkship with Frederick Garling when Garling was appointed to represent defendant John Thomas Campbell in the first true civil libel case in Australia.
John Thomas Campbell, secretary to Governor Lachlan Macquarie and a well-known gentleman, was charged by Reverend Samuel Marsden with printing libellous matter. The document in question was a letter to the editor of The Sydney Gazette and New South Wales Advertiser (the colony’s first newspaper, and the only one in publication at the time), published under the pseudonym 'Philo Free'. Marsden was a divisive character, much derided for his manner and methods and the sarcastic letter obliquely accused him of misappropriating funds intended for an evangelical mission to New Zealand, introducing alcohol to the Islanders and neglecting the needs of the Australian First Nations peoples. As Campbell was the official censor of the colony's newspaper, Marsden believed he was responsible.
Garling represented Campbell whose only defence was that his conduct was a reasonable oversight, the result of his preoccupation with more pressing matters of public office and his enthusiasm to see the matter of the misappropriated funds revived publicly.
The trial was held in the Criminal Court over three days and was reported on at length. At the conclusion of the trial, Campbell was found to have 'permitted a public letter to be printed… which tended to vilify the public conduct of the prosecutor [Mr Marsden].' However, the jury's verdict was neither 'guilty' nor 'not guilty' due to technical issues with the way the trial was run. Subsequently, the criminal case was dismissed. Dissatisfied with the outcome and angered by the newspaper reports, Marsden filed a claim for civil libel with the Supreme Court. At the civil trial, the court found in Marsden's favour and he was awarded £200 in damages. This time, the newspaper did not publish any mention of the trial.
During the trial, Edward Charles Close (a soldier who may have been present as a juror) took the time to draw the court scene, providing a portrait of the young George Allen. George had a front row seat to the action and is situated in the middle of the courtroom behind the desk, looking straight ahead. Frederick Garling is to the left of George, dressed in black and holding up a piece of paper as he addresses defendant John Thomas Campbell. Reverend Samuel Marsden is to the far right, wearing blue. His arm rests on the barrier.
Image: Close, E. C. (1817). Edward Charles Close - New South Wales Sketchbook: Sea Voyage, Sydney, Illawarra, Newcastle, Morpeth, C. 1817-1840.
Collection of Mitchell Library, State Library of New South Wales