SUPREME COURT.—CRIMINAL BUSINESS.

Otago Daily Times, Issue 264, 24 October 1862, Page 5

SUPREME COURT.—CRIMINAL BUSINESS.

Thuusdat, 23rd October. (Before His Houor Mr Justice Uresson.) His Honor took his seat at 10 o'clock. CHARGE OF RAPE. Michael Malony was indicted for having on the 20th August, at Wetherstone's, commuted a rape oil Marry Ann Smith, and Patrick. Kiunary was charged with having been present* aiding and abetting. Mr. Barton defended the prisoners. All the main facts of the case were published in Tuesday's.ii?sue, they having been stated during the trial ot the prisoner for au assault, with intent to maim, upon Patrick Thomas Monk,, a miner. The short facts are these: —On the 20th of August, Mrs Monk went together into Wetherstone township, she wanting to shop. They called at the Eureka Hotel. There Kinnary went up to Mrs Smith i and said, " I think you're my little wife j" and she turned away without replying. ' Monk and Mrs Smith went, on to the Waver!ey Hole], and then? both prisoners were present, drinking and making a noise. Monaghan, landlord of the Southern Cress, offered to lend Monk a candle and a bottle (to use as a lantern), and toshow him and Mrs Smith over the bad places on the road. He went with them to the foot of the first hill towards the diggings ; and soon afterwards while going up the hill, Monk received a blow on the right temple, which felled him. Mrs Smith swore that, this blow was struck by Kinnary, with a Jong and heavy stick, and that he repeated the blows. Malony had, meanwhile, seized Mrs Smith, but failing to throw her down, he called out, "Pat, bring the waddyT' Kinnary replied;. " Can't ; yoii manage her? I'll soon] settle! her, as I have settled tffis fellow, and I ye done

for him.' He came across and gave her a violent kick on the thigh, which caused her to fall: and then, while Kinnary stood over her 'with'" a sticV ! swearing he would kill her if she' was not still. mVlony effected his purpose. Two men had come up previously.'bat they not heeding Mrs Smith's entreaty,— *or God's sake will you protect me from violence!" and there's a man nearly killed as well"—turned as soon as Kinuarv had spoken to them, and went on their way. Monk had by this timo crawled to the ' shelter ot a "race," and while there he saw a man come towards 3nm flourishing a stick, and shouting "Where's that wretch, till I've-done fo? him i fliat man tamed to speak to the two comlner up the hill, and the light which he carried enabled Monk to see his face, and to be sure that h« was Kumars Malony and Kinnary forced Mrs Smith along the hillside for a short distance, and complied with her request that they would set her' some water. Kinnary then attempted to throw her down. She bes>ged him to desist, saying that she should die if furfner molested; but he vowed that die or not she should $?o no further and he perpetrated- an outrage upon her. Afterwards Malony repeated, the offence: and it was also committed by Martin Brogan. who happened to 3ome up at the time. Kinnr.ry agreed to show her to herjent, after asking " Will th *re be any one there 1 " afl& beins: told " No." : She partly opened the door, and although her husband and another man was in the tent she called to Kinnary that all was right, and he entered. She jumped up, placed her back against the door, and said " Tv »t's the man thats neaily killed Monk, and has greatly insulted me, as 111 explain presently." Kinnary tried to break out at the b;ick of the tent, but failed, and the other men induced him to be quiet after lie had threatened to have the place mobbed. Mrs Smith ran and roused some neighbours, and Kinnary w;>s taken into custody ; Malony being arrested 'in h4 tent soon afterwar-Js.

The Crown Prosecutor, in stating the case, sug gewetUhat Monk's having been able to remove nnd hide himself, before Kinnary returned flourishing his stick and shouting about " doing" for that wretch possibly, or even probably, saved the life of th« p-o----secufnx ; for, li.-ul they believed that Monk was dead the prisoners might have done what had been done in similar cases—take au-ay the life of the victim of ihdr lusts, so as to prevent the possibility oftlieir outrages being proved against them. Monk having escaped, tiiis motive could not operate. Mrs Smith's ohject in inducing Kinnary to conduct her home was ciearl'v that she might get him into custody. His goin»might appear hazardous, but he was told that there ▼mild he no om- there ; and he would, no doubt, perceive that if lie could remain snum time in her t jnt alone with her that circumstance would go fato negative any charge that he had previously committed upon her an assault with vio'ence. Fortunately, he fell into the trap. The evidence taken in ilie trial for assault was read by the Judge, and each witness was-further examined and cross-examined.

Notlnug of importance was elicited from Monk. Miry Arm Snvth uave further evidence, which • innot be published. She positively denied that, she had over-had improper intimacy with Monk. A Ion"----series of questions was put "as to her lite in the colonies, preparatory to Ihe calling of witnesses for the defence. She said she was ignorant of, or denied all that was suggested or imputed to her. # Dr S. Anderson, who said he had constantly leen m attendance upon Mrs Smith since the 23n[ Au"us& was; confident that she had been subjected to great violence, ail appearances being consistent with' the idea, of rape having hi en committed. Mr Barton address*! the jury for the prisoners He. eommcuted upon tlie difficulties incident to his position, as to which an eminent authority had declared that the charge of nip* was easy to make, hard to prove, and harder to defend. In this cas> there wore special difficulties. He could not deny that i.lonk was assaulted with a view to getting him out of the way; but the question fbrgthe jury was whether there was such a resistance onthe prosi-cutrix's part as to emstitute rape, or whether Kinnary's goin'"to her t«nt subsequently did not shew that, from what he knew, or from common repute, as to her character, he regarded what had passed as an ordinary every day occurrence.

The following witnesses were called : Michael U'Brien said that, he came to Otago in December last. In August, he was away to Coromanuel. Malony had been a mate of his for seven years and Kmnary for the fair months prior to his starting fat Coromandel. They did pretty well. Malonvwas a hard-working industrious man, nofgiven to drink and (as he always thought him) quiet and orderly', when he came from Coromandel he went up to GabuePs Gully, and on his return to Dunedin, he saw Mr hmith at fie Bendigo Boarding House. She asked whether he thought the prisoners had any friends ai Gabriel's. Hasaid " Yea," and she said she thought not, because if theyhad, some of them would have come to her before .she went to the Gabriel's Police Court and settled this affair. She also said that she had thought the reason he came to the same boarding house as herself, was that he had come to make a settlement ; and only on Tuesday night she said that she would have made a settlement, had he spoken about it a few days before, but that now it was too late. By the Crown Prosecutor: He never made any proposal to her abaut settling the matter- She said' that Mr Smith had told her that he (witness) had come for the purpose. He first heard of this affair wlun he returned to Dunedin, and after he had seen the prisoners in gaol, he went to see how the claim belonging to them was going on. He found it deserted, and the boxes and thin.es taken away, and so lie thought he would return and see how the chaps got on, before he set in to wovk. He went to the Bendigo simply because he knew the landlord four or rive years in Bendigo. He (the witness) told Smith that he thought he could have settled the affair if he had beeu on Gabriel's at the time, but that it was no use trying now. He had not brought a soldier's wife or any other female from Auckland. Ke-«xaraiued: Smith frequently spoke about the affair. Alexander Ross, a prisoner in the gaol, was placed in the dock, and risked if he knew the prosi Ciitrix who was beside him. He answered, " I never saw the woman in my life before." He also said that he did not know Mr Smith. Mr Barton, to clear himself, wished to state that on the previous evening in the gaol, Boss told him everything which he had put to Mrs Smith as tn her former life. Of course, he had had no opportunity till now of confronting Ross with Mrs Smith. Martin Brogan (the third, man charged with the rape) was brought up in custody, and detaied a number of disgusting acts which he said took place in Smith's tent about a fortnight before tho 20sh August. The object was to prove that with the wit-ne-s and others Mrs Smith had been simply a common prostitute. By the Crown Prosecutor (after being cautioned that he was not bound to answer any ques ion tending to criminate hi;use)f) : On the night of the 20th August liefli ct saw the prisoners and Mrs Smithon Wetbers'tone's, coming downtowardsthe Caledonian B otel. He then went to his tent, but afterwards, as Malony was drunk, he went to the hotel to get him home. He was not there ; but a bit up the hill, he met Malony and Mrs i^nrith coming down together. He was pretty drank. They all three went down to the track into the gully, towards home. He did not see Kinnaiy thm . Presently afterwards ■'he saw Kiunary, who had a bottle. He asked Kiunary if there was any Uiing in the bottle, and hesaid "Yes." They had a dri;>k of brandy, all four round, arid then went right <iown the track home, except that lie stopped talking to Mslony, who was so drurk that he could scan-ely st mrl. He swore that nothing else occurred between Mrs Smith and himself on that occasion. He was one of. the two men who came up with the light, and Kinuary spoke to the other man, not to him (the witness). What he said was to the effect, '* Stop back." and the two of them passed on. Ihe name of the other man was James Dynan. He never heard a word from Mrs Smith; there was a light voice like, but he could make nothing of it; and passe lon. He did not hearKinnary say, "-Where's that wretch, tili Ido for him" He (the witness) was, at the time, on his way to the head of the gully, where his tent was. Re-examined: James Dynan was one of the men who had been .sent for as a witness from the Diuistan, but could not be found. The Crown Prosecutor proceeded to reply on the case, and he was twice interrupted by Mr Barton, on ■ the ground that the facts were not being correctly stated, as upon the evidence. The Crown Prosecutor was commenting upon the absence of all the men.; who, it had been contended would have been able to prove that there was no screaming, as if in resistance. * This, he said, was the more remarkable after the ex- '■ traordin arily large sums of money that, had been spent I on the defence, and the handsome fee paid to the • learned counsel. Suvely, with all this,, witnesses > would have been found if it was not the fact-that a " mo3t gross outrage had been committed. :"::' Mr Barton said that this was not fair comment. a. _. . The Crown Prosecutor thought it was quite fair. £ ' The Judge hoped these interruptions would now be Q stopped.-;: He would not endure them,Mt-trouldissue " an order of committal. (- Mr Barton must ask bis Honor to tell the jury that 0 he had applied to the court for a postponement of '» trial, on the very ground that two of the men referred r 8 to, who were-material witnesses, for, the'prisoners, c could not be found. 3 The Judge said that Mr Barton bad himself, told lf the jury of the fact. These interruptions were most y extraordinary. He never, in all bis experience, knew " any one to behave so in a court of justice-rmuch less IV a barrister.' w, The Crown Prosecutor again dwelt upon- the large - < sum of money which had been expended without get--111 ting witnesses for the defence. The learned counsel Je hadhimselfßpokettofittothejury,

Mr Barton : The money was paid in only two da\> before the trial.

The Crown Prosecutor said that extraordinary •ii.;itshad been made to get up the defence. Her* was the learned eouns 1 going out of bis way—visitini in gaol—a thing winch he the Crown Prose cutor would undertake to say was never heard of a> having been done by a barrister in England. Mr Barton made an observation which the reporter^ could not hear; and added that he wished the Crowr, I roseeutor would state facts only, The Judge : Mr Barton, I make an order to comMuf you. Take j.f r Barton into custody. The learned counsel stripped off his wig and gown, and stepped to a scat at the back of the "dock. , i'he Crown Prosecutor continued his address, lining that the evidence of Mrs Smith was, in many res pects, fully confirmed, and that the jury could only find the prisoners guilty. * His Honor, in summing up, said, that after the attention paid by the jury, he did not think it necessary to go minutely through the evidence; tor the leading tacts were very distinct, and ho doubted not | ™a* tjl.ey were dearly in the recollection of the jury if the jury believed that the act complained of was done by Malony against the will of the prosecutrix and that Kiunary was present, encouraging or aidin" him by word or deed, they must find both prisoners" acuity. It mattered not what might have been the previous character of the prosecutrix. He considered the medical cvi lence strongly corroborative of th<story of the prosecutrix. The jary, before retirin«r, requested the Jud°-e to read two portions of the evidence; and this was clone.

The jury retired shortly before five o'clock. When nir Barton had been in custody half-an-hour, The Judge : Is Mr Barton here ] The Kegistrar : Yes, your Honor. The Judge : Mr Barton, you are now released. Ilm learned Counsel took his place at the table resumed his gown, and mentioned an objection which' after the order of committal, had been handed in for the learned counsel by Mr Wilson Gray. Mr Barton said he was not sure of the provisions of the local ordinance, but he presumed they would be such as to substantiate the objection, that in the absence of proof that Dr Anderson's being qualified to practice nad been gazetted, he was not entitled to give evidence as an expert. The Judge thought there was nothing in the point A man gave evidence as an expert because of his medical skill, and thn certificates of that skill, Dr. Anderson swore ho, nine month•< ago, handed to the proper authorities at Tuapcka. It was another matter whether fte3 could be recovered without proof of publication. The jury returned in six or seven minute*, and gave a verdict of Guilty against both pris-onors. _ The Judge: I should hare b-en jrreatly surprised if you had found any other verdict. qenflfiuen; it would have shaken my faith in Dunedin juries if you had. I don't know how you could have found any other verdict. At the request of the Crown Prosecutor, tire prisoner? were aaain Jirraigned, Kinnary as the principal and Malouey as the- accessory, They pleaded Not Guil'y. The Crown Prosecutor proposed to state the next morning what he would do in the matter. The Judare said there were now two committals aorainst each prisoner, and lie thought the ends of justice would by satisfied, without trying them on a third indictment:. The Crown Prosecutor was quite content to net upon the suggestion, and a formal verdict of Not Guilty was taken. The prisoners were removed, and the Court adjourned.