A Serious Charge

Southland Times, Issue 18062, 4 February 1903, Page 2

A Serious Charge

ALLEGED ILLEGAL OPERATION

At the Police Court josterday, before Mr S. E. McCarthy, S.M., James Alexander Fullarton, medical practitioner. was charged with unlawlully using an instrument on Margaret Bates, domestic servant, with intent to procure "a miscarriage.— Mr T. M. Macdonald prosecuted on behalf of the Crown, and Messrs Solomon mid W. Y. H. Hall appeared for the accused. Mr W. Macalister watched the proceedings on behalf of the witness William Campbell, and Mr Henderson for the mother of the- witness Margaret Bates.

Before the opening statement was made Mr Henderson drew his Worship's attention to the fact that he had not been allowed access to the girl. The police had had her under their surveillance, but he considered he had a right to interview her and explain the position she was in.

Mr Maedonald said that he was unaware of -this. The police had acted in the interest of justice.-

Mr Solomon said that while ho had no right to interfere. he thought the accused was interested in this matter. If Mr Henderson was acting as legal adviser to this girl and her people it was a most extraordinary state of affairs if. in the interest of justice, he rhould not have the opportunity of consulting the girl. It suggested a position, to the legal mind, of the most vital consideration in this case. If the witness was an alleged accomplice, who was to give evidence, she was entitled to obtain advice, and were he (.learned counsel) adviser to this girl he should insist on seeing her. • '

Mr Macdonald ; Mr Henderson appears only for the mother.

Mr Henderson ; And the girl too. She is a minor. ;

Mr Macdonald said that the conterttlon" would t* a matter for comment' during the case, but was not ens flor the court to deal with at this stage.

Mr Solomon remarked that it would be a matter for more than comment.

Mr Macdonald requested, and his Worship agreed, that the case should be heard with closed ' doors. The body of the court was cleared, and witnesses ordered out of court.

Mr Macdpnald, in opening Ihe case for the prosecution, said that the accused was a professional man in Tnvercargill, and he (counsel) could say at this stage that he regretted to see him in this position, charged with an oflenco for which he was liable to imprisonment for life. The facts of the case were contained in a very narrow compass. Margaret Bates was a young woman in domestic service, between eighteen and nineteen, years old,'* an.d had been keeping con* pany with William Campbell, coal merchant, Invercargill, for the last two or. three years. During the last twelve months the intimacy. was increased ' with the result that in October she suspected that -she was in the family way. She spoke to. Campbell about her condition and a raedical man was consulted, but it was too early to pronounce definitely. Later on towards tho end. of the j'ear she again ■poke to Campbell, and went to Dr Fullarton to ascertain her condition. He told her she was pregnant, and this was communicated to Campbell, who interviewed Dr Fullarton and asked him to take steps to remove the child for £20. This occurred on Thursday or Friday, Bth ory&th January, and on the 13th Campbell paid £16 <. u t of the £20, and was told to send thegirl Wong that evening. Sho arrived as arranged, and an instrument was used upon her. She became unwoli, and •gain consulted the accused, a>id on the Saturday following left for Ryal Bush, where the miscarriage took place at the house of a friend, Mrs Pert. T)r Fullarton was sent for and treated her, and sorao conversation took i,lace be?'twoen her and the doctor In tho r t t»senc»of Mrs Pert. The facts came to the knowledge of the police, who took up the case, and if the facts were proved to his Worship's satisfaction accused should be committed for .trial. .Counsel called Margaret Bates; who was about to enter the witness-box when

Mr Henderson said that he raust again ask the court's permission to consult his client before she went into ihe box.

His Worship said that he would make no order.

Mr Macdonald pointed out that there was no suggestion of Mr Hendsrson appearing for the girl till he (Mr Macdonald) mentioned it ; he said tjhat he simply appeared for the mother. If Mr Henderson aaid now that he appeared for the girl counsel suggested that he did so without the authority of .the. girl at all.

Mr Henderson said that she was a minor : he again asked f.hat she be in* terviewed by counsel before she vent into the box.

Mr Solomon said that it would be a most extraordinary thing if the request of his learned friend were declined when the evidence of the girl would ■ subject her to a criminal prosecution ; it was a most un-English proceeding.

Mr Macdonald said that the girl was not indictable under this information. He had only to say on behalf of the Crown that no prosecution would be in; stituted against her. His Worship was aware that in cases of this sort where the Crown made use of the evidence of In, witness in the position of this girl, the Crown would protect ihat witness. She had voluntarily made her statement and both she and Campbell had begn, laformed of the positions. Mr Solomon said that Campbell was a man of, mature age. The girl might give evidence which would incriminate horsolf, and Mr Macdonald had no authority to say that a prosecution would not be instituted. He entered his protest against this position. Mr. Macdonald said that accused's counsel appeared £.o be acting in this case for another counsel who was pfepent.. ' ' . j Mr . Solomon sahl that lis f-\Q»t w»» 1 ajectacl by the end 1% >*ac b}s

right to see that she was given an opportunity of exercising her discretion as to whether she would give evidence or not. She might refuse to give evidence and no one could compel her *o do so.

The Magistrate said that the Crown had publicly assured the uitness that

no prosecution would be Instituted against her. It had been pointed out in a recent case before the Chief Justice that although the Crown had no legal right to make any such promise, no one would dare to institute proceedings in the face of it. For that mnson Mr Henderson's application would r*ot b« granted.

Mr Henderson asked that the girl be instructed that she need ' not answer incriminating questions.-

His Worship said that he had already answered Mr Henderson.

Margaret Bates, domestic servant, gave evidence that she was jn service with Mrs McCrae, of Invercargill, up till the 17th January, having been there a little over four months. She was 18 years and 8 months old. Witness then explained her- relations with Campbell which led . lip t-o their consulting Dr Fuller ton. In tJSe consultiiig; room the accused asked her if- she was prepared to go through the bperdtibn ahd she said she was. Witness described what then toolk place and her helng ; . told that the mis-carriage would eveiituate that night or the following day. ; She went out to Ryal Bush to Uay^ witty Miss Pert and the miscarriage occurred there. Witness went to bed, and;Dr Fullarton was telephoned for by Miss Pert, arriving about 7 o'cloclq in the evening. She saw Detective Mcllyeney on Wednesday at Mrs Pert's, and on Thursday saw Dr Mulholland.. Camo to Invercargill that, day and .again saw; Dr Mulholland. Another doctor' saw-- l»er .on Saturday. Went to Mrs'Bowden'Sifwife

of Sergeant Bowde'n) placieMm J3atiji@ay, and was examined there by Hr Mulnolland. Dr Hendry examined her at the Bowmont Street Home, where she had been ever since.. No one but Dr Fullarton hud examined her or given ber medicine since her pregnancy or before th» miscarriage took place. Witness identified the clotjhlng she had worn at; Mrs Perts, and recognised two instruments as similar to those used in the operation. .'■;,'

Mr Solomon did not cross-examine

Mr Macdonald called William Oaxnpbell and Mr Macalister askedfr '^hat/the Crown should give' an undertaking: not to proceed against this witness.; •; ;;Mr Macdonald said -that he fcatf^reitdy done so, and would now repeat 1t..-;'''' '

When the witness Campbell was called, Mr Macalister said that Canipbeli: had consented to give evidence on condition that he received from the Crown an assurance that no proceedings would bo taken against him.The witness could,. no doubt, in Uiis case claim privilege and refuse to answer any mcriininating questions, but in deciding whether, .or not to advise the witness to such*; a

course he .(counsel) had to keep in view the fact that the witness had, before consulting a solicitor, given n -.written statement of facts to the police, which, in the event of a prosecution of thewitness, might be used against him. In. his client's interest (which with ; him must be paramount) he had :ad:yised him, on the strength of the , assurance of the Crown,, to tell what he tcnetv: about the matter. ; T .;; r ;

William Campbell, coal merchant, gave evidence that he' hod been keeping con> pany with the last witness, and ;had been intimate with her during the .last twelve months. He had a coftveraation with Dr Fullartqn and it was arranged .that an -operation would be done <f OP £20 cash Did not pay -the monejr- Ton the first visit. It must have bw -on the Ist or 2nd January when Witness had the first interview, and tTie/niohey was paid four or five days' afterwards. Witness gave other evidence corroborative of the girl's story. - When -te^ told Dr Fullarton that "Mrs ''McCrae^ and tho girl's mother had called 7 on him,. : . : ■:•■ ;and threatened to inform the police, accused said the police could, do liothihg.V

Sarah Pert, Ryal Buah. described Bates coining to to house. 'Next morning about 9 o'clock witness, heard her go out of the house to- 1 he garden Witness' daughter called witness later on, and in consequence t)f what ..she said witness got up and lit the fire ". '■■ Bates lay on the sofa, while " witness '• wade Tier some tea. She said . tHat ; shfc had caught cold, and that she had. been, riding a bicycle and hurt '.heraelt'.^slii .the afternoon telephoned- for . JJr-. : iPuUarton, who made an examination," and Afterwards saw witness ';in/^oth'errrpiamy. l ahd gave her some pills to be administered to the girl, giving certain directions, telling witness to telephone on Monday morning whether she* was bettW or worse, On Wednesday night Detective McJiveney came tb« Ryal Busblvand; witness gave him some of Baten' clothing /produced).

Beatrice" Peart; -.' daughter; of Ihe last witness also gave evidence. :V; ■

Margaret Bates," re-called, gave evidence <that she had ridden a hicycle ' a jtnpnth before the hoHdays. It was ther long In the pedals, . and :"' she experienced some pain. .' ; r ;:f ; . Detective Mcllveney, the informant , in this case;; gaye 1 ! evidence ot what tied up to the of the; acc^se^l sin liia Isurgery on -29th Jahiiary at^3p7a;inv?Accused > said ■'.-"". I suppose 'this is on accountof the rumours that 'that girl has spread about." Jffe tpok and read it, and said thai, -lie:^supposed he must go with witness. 1 WHo^sibok possession of the ledger,'; cashr atftf^case books. Accused asked whether i there was a strong case, and witness replied that he was afraid so^butSwbuid rather not discuss the matter; :.-.' .Took" .posses* sioh of *the instramehts - irt Uie; TUOtti. Had examined 'ttovbookV^and^in'r.the case book found that on I3th< Janukry the.re had been ait erasure of. at T[i«nc»Hed entry,, which witness 'thought was number 18." The t>nly reference 'to Miss Bates was maae/'.pn' : i: the.^lißith"l' iJ Tp"'; ; 'ii[|Bs Bales, care Mrs I>ert. Ryal Busli^'

Mounted-constable' Einmerson gave corroborative evidence of the visit to Ryal Bush arid the arrest of accused in. the ■surgery.'.-;- -.■".' ■ '■ • ■ "■• : '\.--\'- ! ? : ; w\-"' ';:■-'

James A. 3?. Mulholland, medicaVpractitioner; ; evidence^^ that he examined Margaret Bates' on" -the} morrifrig <jjj§ianuary £2nd, at .■ Ryai Birth. "Hfe; iwtifled that she could bs TwioVed /sifely td-In-vercargUl-an«l ahewaa brtbug^t to to'ro. Wither examined her in Sergt. liowden's house the same day* Fouiid'ihat 'sha had aborted, ■within four or : ' five days previously. There was. nothing to V disK close how the miscarriage was caused. Could not say whether it was j roduaed naturally or not/ The girl's evidftaca was consistent with.her condition wheii witness examirietf. her. The instrument produced could be used in such, . a way as to produce a miscarriage. '

To Mr Solomon : As far as the ;intro« duction of the^ 4nstfmnent was concerned, the condition of :ihe , girl was' auite consistent with some other cause. ■ .

Xs> Mr Macdonald V Could -not Recount for the miscarriage in any other )way than the introduction of theHnstrunoent.

Alexander Hehdry, : medical practitioner, gave evidence that- he examined Margaret Bates on the 24th^^ January : at -ith« Bqwuwnt. ' street Home. Was cf opinion that a miscarriage had taken place, but there was nothing to indicate thai cause. The girl's story was consistent with her condition:- Could not account for the miscarriage .in any other . way.

This concluded the evidence, and. accused, who. reserved his defence^wascommitted for trial "at the next sittings of the Supremo Court. Ball was allowed, accused in his own recognisances ot £500, and two sureties of £250 oach. Bailees were present, ;.and their sureties ■were accepted .; '?": , / .

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