SUPREME COURT.

Otago Witness, Issue 3713, 12 May 1925, Page 53

SUPREME COURT.

Tuesday, May 5. (Before his Honor Mr Justice Sim.) His Honor took hi« seat at 10.30 a.m. THE GRAND JURY. The following were empanelled as a Grand Jury:— Christopher Haslett (foreman), William George Barr, James Braid, James Farquharson, Ernest Roland Burton, Thomas Steel Coull, Charles Joshua Martin, Oscar Balk, John Brugh, Benjamin Thurston Wade, Vernon Smith. James Taylor, James Long, Charles Edward Jonea, Ambrose Alfred Hudson, Arthur James Howison. Robert David Nimmo, Alfred Henry O’Keefe, James Quaile, Harry Edward Skinner, Sidney Edmund Dermont Neill, Percival Haxton Matthews, James Begg M'Callum. HIS HONOR’S CHARGE, In his charge to the Grand Jury his Honor said there were only three cases to occupy its attention. Unfortunately, they were all sexual cases, and all the charges were in connection with children, some of whom were very young. The most serious charge was one in which George Alexander Milne, who occupied a motor garage at Hampden, was charged with an unnatural offence in connection with a boy 8£ years of age. There were also charges of indecent assault on a boy of 12 years, one of 10 years, one of 11 years, another of 12 years. The depositions before the magistrate established a prima facie case against the accused, and he thought the Grand Jury would come to the conclusion that a true bill should be returned in connection with all the charges. The next case, said his Honor, was one In which Alexander Forsyth Gouldsbury was charged with unlawful carnal knowledge of a girl under 16 years of age. It appeared from the depositions that the accused was a farmer living at East Taieri and that the girl went to work at his place at Christmas time in 1923. The girl stated that shortly after that time tile accused began to have intercourse with her and that such a 6tate of affairs continued for some time. The girl gave birth to a child on February 7, 1925, and •he stated that the accused was the father of it. The charge against the accused was confined to one particular date—January 25, 1925. According to the depositions the girl was bom on January 29, 1909, and was, therefore, 16 years of age in January of the present year. Under the section of the Crimes Act which dealt with offences of this kind it was provided tnat no prosecution should be commenced more than six months after the commission of the offence. The reason why the pnly charge against the accused related to January 25 was that that was the only date within the six months before the girl attained the age of 16 years to which definite reference could be made. The remaining case, his Honor said, was one in which Walter Miller was charged with committing an indecent assault on a girl 7i years of age. It appeared that the accused got the girl to go some messages for him and got her into his house, where he treated her in an indecent way. When Detective Roycroft saw the accused he practically admitted the offence, stating that he had taken the girl on his knee, placed his hand on her, and foolishly kissed TRUE BILLS The Grand Jury found true bills in connection with all three cases. PRISONERS FOR SENTENCE. BREAKING, ENTERING, AND THEFT. Sampson Robert Clelland waa brought up for sentence on a charge of breaking, entering, and theft at Pukeuri, in which he had pleaded guilty in the lower court. Mr J. B. Callan, who appeared, said he had been instructed by the accused’s relatives to appear for him. The accused was one of three brothers, who had never had the care of parents. The three of them had been brought up by their grand- . parents —the father and mother of accused’s mother. They were given into the care of the grandparents when the accused was three years of age. The inference to be drawn from what was known of accused was that he was of a dishonest tendency. Another charge was alleged against the accused, but this had not been pursued by the police so it had to be assumed that it could not be substantiated. So far the various charges to which the accused had pleaded guilty were concerned, these were concealed from the grandfather. In his home he was quite a good boy, and there was no reason to believe that he was other than honest. The difficulty appeared to be that the boy’s father was no good, and it was feared that the lad had inherited evil tendencies. When the time came for the return of the accused to his home every care would be taken of him. Regarding the accused’s brothers one was 18 months older than the accused, and the other was 18 months younger. Restitution had been made of the amount stolen. The Probation Officer handed in his report regarding the accused. His Honor asked if all the money taken had been recovered. Mr F. B Adams (Crown Prosecutor) said it was understood that the money had all been recovered. The accused was on two years’ probation when the offence was committed. He had just been informed that the aocusod had recently admitted the theft of an accordeon. It had to be remembered that the theft of the money was made under circumstances which threw grave suspicion on an innocent man. His Honor said the accused would be detained for reformative purposes for a period of three years. INDECENT ASSAULT. George M’Ewen, who had pleaded guilty to a charge of indecent assault on a female, come up for sentence. The accused, who was not represented by counsol, said he had nothing to say. In reply to his Honor Mr Adams said the ago of the girl was four years. His Honor said that the accused would be detained for reformative purposes for a period of three years. PUBLIC SERVANT’S THEFT.

David Charles M'Gill, who had pleaded guilty in the lower court to a charge of wilfully detaining a postal packet and the theft as a public servant of £9 in money belonging to an insurance company, came up for sentence. Mr C. J. L. White, who appeared for the accused, said he wus 30 years of age and was a single man. He had a previous conviction against him in Christchurch while be waa employed at the Supreme Court.

Drink waa the cause of that trouble. He was ordered to come up for sentence when called on for that offence, no term of imprisonment being imposed. He had left drink alone in tne interim. He served in the Great War and returned home with a good record. During his absence at the war his father had tailed in business. He had two delicate brothers, and since the accused had been before tne lower court a serious accident had befallen one of the three younger children in the family. The family history recently was most unfortunate and the accused was praotically the sole support of his aged father ana mother. This was one of those cases where the accused took the money with the intention of returning it. The letter was taken with the object of oovering up a previous offence. Accused felt his position very keenly, and in fact waa so ashamed of himself that he would not apply for bail, and preferred to remain in prison after his committal for sentenoe, and it was only after considerable persuasion by his parents that he was induced to accept release on bail. He asked that leniency should be shown the accused on the grounds of his previous good conduct. Mr Adams said he had nothing to add to the police report His Honor said there were three charges of theft alleged against accused In 1010. Had he made complete restitution? Mr Adams said there was nothing In the records to show.

His Honor said the police report showed that there was a suspicion that the accused took other postal packets. Letters containing life insurance premiumfftad gone astray. Mr Adams said the accused apparently took the money from a friend, thinking the friend would not be hard on him. Mr White said the accused denied knowing anything about the thefts referred to by his Honor. It could be said in ac cused’s favour that he had made a clean breast of everything he was charged with. His Honor said that was not quite correct. He had made no confession. The probation officer did not go so far as to recommend probation, but Indicated that if probation were granted something might be done. In dealing with accused he had to consider his previous offences as prac Ideally wiped out by his good war record. Under these circumstances he would release the accused on probation for a period of three years, one condition being that h*> made restitution of £9 to the Provident Life Assurance Company forthwith, and paid the costs of the prosecution, amounting to £5 Is Bd. Mr White said it had just been pointed out to him that the accused was not in a position to make restitution of the £9 forthwith. He asked if time could not be allowed in which to pay. His Honor said lie would allow one. calendar month in which to make restitution of the £9, and two months in which to pay the costs of the prosecution. A further condition would be that he took out a prohibition order against himself and renewed it from time to time. THEFT OF MOTOR CARS.

John Alexander Robertson, who hud pleaded guilty to the theft of motor cars (two charges), was brought up for sentence.

Mr White, who appeared for the accused, said he was 29 years of age. He was married and had three children, whose ages were four, three, and one and a-lialf years respectively He Lad been working in various parts of dominion. At present he was serving a sentence for issn ing valueless cheques. All these offences practicully arose out of one set of circumstances. It was the issue of the valueless cheques which had led to his undoing. The circulation of these valueless cheques left a burning trail behind him. He would appeal to his Honor to deal as lightly as possible with the accused.

Mr Adams said the matter of exchanging cars had almost been a mania with the accused. He would appear to have been unrepentant up to the time of his arrest. No action had been taken with regard to the issue of the valueless cheques in Central Otago. He was not alone in the car when he was arrested. His Honor: There was a woman with him who was not his wife.

Hia Honor, in passing sentence, said the accused wouli be sentenced to 18 months' imprisonment on each of the two charges, the sentences to be cumulative, and to commence at the expiration of the sentence he was at present srving.

PEISONEES FOE TEIAL. OFFENCES ON MALES.

George Alexander Milne pleaded not guilty to charges of having on various dates at Hampden committed an unnatural offence and indecent assault on males. The accused was represented by Mr C. J. L. White.

Mr Adams stated that there were six counts in the indictment against the accused, who was charged with indecently assaulting five separate boys, and with a more serious offence against one of the boys. The evidence in regard to four of the charges would be the boys’ own statements, and in one case there would be the evidence of the boy coupled with the evidence of his father as to the symptoms which the boy afterwards exhibited, and that of a medical man who had to be called in to attend to the boy. Evidence was given by the boyß concerned, by the father of one of them, by Dr Trotter, and by Constable Woodley, of Hampden. This closed the case for the prosecution. . Mr White raised the preliminary point that there was no evidence to support the more serious charge. His Honor said the question was one which the jury was capable of deciding. Mr White said the evidence for the defence would be a complete denial of all the charges. The accused, who had been in business for about four years, had the only garago in the township, and all the boys made a practice of watching him mending curs, etc. Since the outbreak of the infantile paralysis epidemic the boys had boen a perfect post, and the accused was constantly chasing them away. The suggestion was that the boys made up .their story in consequence of the treatment they got from the accused by being chased away. , . The Accused, in the course of his evidence, said he had lived in Hampden off and on all his life. He had been in business in the centre of the town for about four years. Ho conducted a motor garage in the day time and a hairdressing business in the evening. lie had never assaulted any of the boys. It was very difficult to keep the hoys away from the garago as they wanted to play with the tyres. Prao^

tically every day, especially during the infantile paralysis epidemic, he had had to chase boys away from his premises. At one time he was popular with the boys, but he had not been popular since he started to chase them away. Mr White, in addressing the jury, said that before they could convict the accused it had to be proved that an actual offence had been committed. No corroboration was given of the stories told by the various boys. It was extremely easy to trump up charges of this Jund against a man and also extremely difficult to disprove them. The only corroborative evidence of what had been alleged was not forthcoming, although such evidence was alleged to be available. The Crown had absolutely failed to prove the major offence, or anv offence for that matter. Mr Adams said he had no wish to address the jury. His Honor said there were Bix counts in the indictment, one being of a serious nature. In connection with the latter charge the evidence of tho doctor and of the boy’s father was consistent with the allegations made. The whole case depended on whether the jury was satisfied with the evidence of all these boys. The statement of the accused was that all these small boy.s had put. their heads together and laid charges against him. It was for the iury to say whether it was likely that the boys had so conspired. The jury retired at 3.17 p.m.. and returned at 3.42 p.m. with a verdict of guilty on all counts. The accused was remanded for sentence. INDECENT ASSAULT.

Walter Miller was charged with indecent assault on a girl aged 7£. There were two counts in the charge. Mr H. E. Barrowclough (instructed by Messrs Aslin and Brown) appeared for the accused, who pleaded not guilty. Mr Adams said the first charge in the indictment was laid under section 208 of the Crimes Act. and the second, or minor charge, was laid under section 210 of the statute. If they believed tho girl’s story they would have no difficulty in finding the accused guilty. The complainant, who gave her age as seven years and three months, said she had been in accused’s house several times. She remembered going to his house about 10 a.m. She had previously been playing on t.he street with her brother. The accused called out and asked her to go to Richards’s shop for a paper. She said she w'ould have to get her mother’s permission. She got her mother’s consent, and when she returned the accused was not there. He had gone to the shop himself. He then asked her to go for a bunch of carrots and a pound of peaches. She procured these with sixpence which he gave her. When she got the articles she went round to the back door to give them to accused. She met him at the door, and he took the parcels from her. He offered her a peach, which she refused, as it would have given her toothache. She then took a lolly from him. The accused sat down on a chair in the kitchen and took her on his knee and interfered with her clothing. Later he adjusted her clothing and kissed her. She had been to accused’s house with a big girl on another occasion. Those were the only occasions on which she had been to Miller’s house.

To Mr Barrowclough: She had asked Miller if she could go a message for him. Her mother found fault with her for being so long at Miller’s, and she told her what had happened. She told her mother a lie first. She subsequently told her mother the truth.

Complainant’s mother said her daughter, when accused of being so long away doing a message for Miller, said that the accused had detained her. She said he had kissed her twice and that he had had his hands all over her.

Detective Roycroft said he arrested the accused on February 27 last. Prior to arresting him he interviewed him at his house. Witness was accompanied by Detective Hart. He informed accused of the allegations made against him. He was sitting on a chair at the time. He hung his head and appeared very agitated. > asked him if he knew the girl, and the accused said he did. He also said that he had kissed the girl and also that he had assaulted her. He asked him if he was prepared to make a statement. He replied : “What is the use. of making a statement when I have nothing to gain!” He then arrested accused without a warrant and took him to the police station. Accused said a man was better dead than be charged with an offence of that nature. In addressing the jury Mr Barrowclough said the whole ouestion was whether the girl was telling the truth. He contended that there were several statements in her evidence that were open to suspicion. He did not think that the act of kissing could be held to be an indecent assault in this particular case. The girl had admitted that she had gone to the house of the accused twice of ner own free will in order to run messages for him. So she must have been on fairly friendly terms with him. It was very difficult for an accused person to disprove a charge of this sort in a case where only one girl was concerned. The girl had admitted that when she went home from the house of the accused she was scolded for being so late, and he would suggest that the true story was that when she stated that she had been talking to the accused her mother suggested that something improper had been done and the child adopted the suggestion as a way out of her difficulty. By the law of England it was the usual practice not to ask a man to incriminate himself, but in this case a detective went to the accused’s house with a desire to incriminate the accused. The detective got a statement from the accused in order to secure corroboration of the girl’s statement, and thus be in a position to arrest the man. He submitted that if it had not been for the statement secured by Detective Roycroft from the accused the Crown would not have gone on with the case.

His Honor, in summing up, said there were two counts, the first of indecent assault, and the second of common assault. He thought that if the acoused was to be found guilty if should be on the first count. His Honor then reviewed the evidence at length. It seemed that the suggestion that accused had put his hands on tne girl first originated with the mother. Hie accused admitted that he had taken tho girl on his knee, and foolishly kissed her and put his hands under her olothing. If the jury wero satisfied that the girl’s evidence was substantially true they would have no hesitation in finding a verdict of guilty on tho first count.

The jury retired at 5.24 p.m. turned at 5.37 with a verdict of not guilty on both counts.

Wednesday, May 6. (Before His Honor Mr Justice Sim.) AN INDECENT OFFENCE. Alexander Forsyth Gouldsbury was charged that (1) he did, on January 2, 1925, at East Taieri, unlawfully carnally know a girl over the age of 12 years and under 16 years, and (2) with indecently assaulting the same girl. Mr F. B. Adams appeared for the Crown, and Mr A. O. Hanlon for the accused, who pleaded not guilty. Mr Adams said the first charge was laid under section 216 of the Crimes Act. Cpunsel then explained the legal position with regard to the age of the girl. r lhe he said, was perfectly well aware of the age of the complainant, so that it would be no defence for him to say that he had reason to believe she was over the age of 16 years. The girl was 16 years of age on January 29, so that it would not be an offence for him to have had carnal knowledge of her on January 30 or any later date. Complainant was the daughter of a farmer who lived close to the farm of the accused. The accused , was a married man, and had a family. It appeared that tho girl went to work at hfc house, and it was during this period that familiarity took place, and this state of affairs continued up to January last. With regard to the age of the girl the acoused congratulated her on her sixteenth birthday. He also made three gifts to hor. At Christmas, 1923, he gave her a gold wrist watch, at Christmas, 1924, the gin received a brooch. Both these gifts came through the post. It was the secrecy of these gifts that was significant. Accused subsequently told the complainant that it was he who made the gifts. Complainant, in evidence, 6aid she had known accused for about three years. He had a wife and two children. She gave birih to a child on February 7, 1925. She first had intimacy with the accused early iii March, 1924—tw0 nights after Mrs Gouldsbury went to Dunedin to a nursing home,. She first went to work at accused’s place in December, 1923. Her people lived about five minutes' walk from the accused’s place. She did not know on February 5 that she was going to give birth to a child. To Mr Hanlon: Accused threatened to shoot her and himself if she told her mother of the relations between herself and the accused.

The father of the complainant said that both families were on firendly terms. He remembered speaking to acoused on January 27, 1924, when accused mentioned the complainant’s age and birthday. Accused knew hie daughter’s birthday perfectly well. He had seen his daughter and accused together frequently, setting and attending to rabbit traps. After the child was born accused told witness to see the nurse and a wi_^ e * them “to keep their mouths shut. When complainant was well enough they could get a motor car and get her and the baby removed.

Complftirifcnt’a mother gave evidence on similar lines. Further evidence was given for the prosecution by two brothers of the complainant and by other witnesses. Mr Adams also led evidence regarding the gifts which the accused made to the complainant. Detective Beer said that when he interviewed the accused with reference to tho case, Gouldsbury denied having at any time had intercourse with the complainant He invited accused to make a statement, but he refused.

Mr Hanlon said the Crown pinned its faith to Sunday, January 25, 1925, but he would produce two witnesses to prove that accused was at the farm of a man named Patterson, some jour miles way, at the time specified by the girl. Andrei/ Anton Patterson said he was a farmer residing at Allanton. He knew accused asd saw him at his (witness’s) place on January 25, 1925. Ihe accused’s place was separated from wit.ness’s by some four miles. When he arrived home at 10 a.m. on the date mentioned the accused was at his (witness’s) home. They inspected a hillside plough. On February 23 accused brought witness a cheque for £4 for the plough. He was perfectly certain that Gouldsbury was at his place from 10 a.m. till 4.30 p.m. on January 25. To Mr Adams: The first time accused mentioned the case to him was on March 4. He said: “I may want vou to give evidence, as I am in trouble/* Mr Adams pointed out that on March 4 the accused was before the court in Dunedin. Witness then said he was not too sure as to the date with regard to a hillsido plough. Mr Hanlon, in addressing the jury, said it was either a charge of carnal knowledge or nothing. His Honor said that was so.

Mr Hanlon said the dates on which the accused could be convicted of an offence must have been between May 25, 1924, and January 23, 1925. The Crown was required by law to fix a date, and they did so, but by the greatest chance a tran•action had taken place which proved that on this day accused was ut Patterson’s farm. That all showed the danger of reljing on promiscuous evidence. These facts showed that this girl had not told the truth. With regard to the girl’s age, ho was prepared to admit the Crown’s contention that accused knew that the girl was under 16 years of age when the offences were alleged to have been committed. It was the duty of the jury to take the whole of the evidence into consideration and weigh it pro and con, and give their verdict accordingly. Mr Adams emphasised the serious nature of the charge. It wus also a serious thing for the community, and therefore the jury had to weigh the matter very carefully With regard to the alibi which it had been attempted to prove, the case did not stand or fall on a single date. It was open to the jury to amend the date. It would be noticed that the alibi had not previously been mentiored before that afternoon. Such an alibi had to be accepted with very great caution indeed. His Honor, in summing up, said the jury must devote its consideration to the fact whother accused did unlawfully carnally know the complainant. If the jury were satisfied that accused did between May 28, 1924, and January 25, 1925, carnally Know the complairyint they would convict him on this count. It was open to the jury to convict if they were satisfied that the .offence was committed on any day or date between the dates mentioned. One thing . wae certain, that this girl had given birth to a ohild, and some man w’as tho father of it. It could not bo denied that accused had exceptional opportunities of committing the offence. With regard to the presents, one wondered why the accused should spend seven or eight guineas on a gold watch for the complainant. With regard to the

girl’s statement about objecting to accused coming into her room, his own experience of similar cases, extending over many years, was that girls not infrequently endeavoured to make out that they did not consent. The defence set up was that the story told by the complainant was a parcel of lies, and that there was nothing in iL As to the alibi, a document had been produced which fixed the date—if the evidence was accepted—as to accused being on Patterson’s farm, and that h© could not have been with the girl at the time she said he was with her. The case for the Crown did not, however, rest on this date. The case for the prosecution covered a long series of dates. It was for the jury to say what credence they attached to' the defence put forward. Was it likely that the girl was going to manufacture such a story, especially against one who had been kind to her and had given her presents? The jury retired at 4.45 p.m., and returned at 5.30 p.m. with a verdict of guilty on the first count—carnal knowledge. The foreman of the jury (Mr G. Meams) said the jury were unanimously of opinion that great clemency should be shown the accused owing to the girl yielding so readily to him. The jury also thought that the mother of the girl was to blame in that she did not give the girl the knowledge a mother was entitled to give her daughter. Prisoner was remanded for sentence until next morning. TEN YEARS’ HARD LABOUR. George Alexander Milne, who was found guilty the previous day of an unnatural offence against a male (one charge) and indecent assault against males (four charges) came un for sentence. Mr C. J. L. White, who appeared for the prisonor, said he had received a testimonial on behalf of the prisoner from the Mayor and councillors of Hampden, where the accused lived. The testimonial was signed by Mr W. Nicolson (Mayor) and 9ix councillors. It stated that the signatories had known the prisoner for a number of years, and had always looked upon him a 9 a decent, respectable young fellow. It came as a shock to the residents of Hampden when it became known that he had been arrested on such charges. His parenta were old and respected early settlers. He (counsel) said he could not say anything ui extenuation of the crime, but he asked ius Honor to deal as leniently as possible with the prisoner under the circumstances.

Mr Adams said he had nothing to add to the police report. Honor said the police report indicated that prisoner was looked upon as a little weak in his mind. What did thal mean?

Mr White said the accused had a severe attack of influenza during the epidemic, and he had not quite recovered from it. His Honor said that the police report showed that the practices of which he waa convicted had been eoing on for some time. For the unnatural offence against male® he would be sentenced to 10 years’ hard labour, and with regard to the offences of indecent assault he would be sentenced to one years’ imprisonment in respect of each, the sentences to be concurrent. Prisoner would therefore have to serve 10 years in all. Thursday, May 7. His Honor took hi® seat on the bench at 10 a.m. PRISONER SENTENCED. Alexander Forsyth Gouldsbury, who wae convicted on the previous day on a charge of carnal knowledge of a girl under 16 years of age, was brought before the court for sentence. Mr F. B. Adams (Crown Proeecutor) said he had been informed that in addition to the case mentioned in the police report one or two other relatives had been somewhat eccentric. The information came from private sources. He had not verified it, but he thought it was accurate. His Honor said that when a jury made a recommendation to mercy he always made an effort to give effect to it if possible. H? was sony that in the present case he could not see his way to give any effect to the recommendation, because he could not agree with the view taken by the jury as to the girl’s conduct. It seemed to him that it was no excuse that the girl, as the jury stated, acceded eo readily to the accused. The accused was a married man, 38 year® of age, and the girl was under 16 years, so he could not regard the fact that the girl yielded readily as mitigating in any way the gravity of the offence. The girl was an inmate of the accused’s house, and was practically entrusted to his care by her parents. The accused took advantage of her while she wa® an inmate of his house. It seemed to him that he must impose the punishment usual in such a case. The accused would De sentenced to five years’ imprisonment with hard labour.