FOUND NOT GUILTY

Taranaki Daily News, 19 February 1935, Page 5

FOUND NOT GUILTY

INCIDENT NEAR CAMP SITE. r - NEW PLYMOUTH MAN DISCHARGED Charged with indecent exposure before two girls near the Belt Road camp site, New Plymouth, in January and July, 1934, James McConville was found not guilty before Mr. Justice Blair at the Supreme Court session at New Plymouth yesterday. The jury returned their verdict after only a brief deliberation. The following jury was empanelled: J. A. Peattie (foreman), A. Shippey, T. P. Reilly, N. R. Milne, N. Kinsella, H. Richards, F. W. Marsden, A.' E. Gillman, L. J. Slyfield, C. A. Downes, L. H. Treweek and J. B. Quay. Mr. R. H. Quilliam appeared for the Crown and Mr. H. R. Billing for the accused.

Last summer, said Mr. Quilliam, two girls, had gone for a walk on Sunday afternoon from the Belt Road camp to Ngamotu. It was alleged that while they were going along the path the accused suddenly appeared before them and committed the offence. The girls went rapidly on, holding no conversation with the man. They felt humiliated but said nothing about the incident. Later, in July of the same year, the girls were out again for their Sunday afternoon walk, and this time when they were walking through the lupins towards the beach at the bottom of Belt Road, McConville appeared again and committed the same offence. In case the Question of identification came up, the girls would say they had known McConville for several years. Both the girls and McConville lived in that locality and the girls had seen him frequently, wandering about, sometimes carrying field glasses. The girls had- said nothing about the incidents until last December. Later, at an identification parade at the New Plymouth police station, they had both, at separate times, picked out McConville as the man who had committed the offence. One of the witnesses said she had no difficulty in recognising the prisoner. In July, of the year before last, she and her sister were walking down Belt Road when a man appeared and exposed himself. She had not known his name but she and her sister knew him as “Sandshoes,” because he always wore sandshoes. She identified him as the man in the dock. After the offence the girls had gone rapidly by, her sister making a sharp remark as they went. FIRST OCCASION. The first occasion on which McConville had committed the offence was in the summer, continued the witness. She and her sister had been going along the Belt Road track leading towards Ngamotu. McConville was looking out to sea but he could see them coming. They had gone by without saying anything. To Mr. Billing, witness admitted' that during the five or six years' in which she had known McConville these were the only two times McConville had committed the offence. They had seen him several other times between the two offences. On both occasions there had been “quite a lot” of lupin at the places where the offences occurred. She had three younger sisters whom she took often to the beach. She had told some friends of the incidents during a discussion when they had been speaking of the case of another man who had been committing offences before children near that locality. Each time they had seen McConville he appeared to be either relieving himself or on the point of doing so.

The younger girl corroborated the evidence of her sister. On the July occasion, she had called the man a “filthy cow,” she said. To Mr. Billing she said one of the incidents had taken place last July, not in July of the previous year. To Mr. Billing she said she had not mentioned the matter to her father and mother. Once or twice her younger sisters had gone through the motor camp by themselves. She had seen McConville on other occasions but he had not repeated the offence. On the second occasion they had come upon him suddenly.

Constable Fleming, Moturoa, said he had interviewed the two girls about the incidents on December 5. He had called at McConville’s house on December 13 and had taken him to the police station. Interviewed the accused said: “K I did do it, it was not intentional; I do not remember doing it.” He . had told Detective Kearney he was not addicted to drink, nor had he been drinking on the two occasions. Later he said, “If I do admit it, what will the verdict be then?” IDENTIFICATION PARADE. After the parade McConville said he was quite satisfied with the parade. It had been fair. “It’s funny,” he said, “I’ve never seen those two girls in my life before.” There was plenty of shelter on the tracks, said the constable, if McConville had wanted to go where he would not be seen.

Mr. Quilliam did not address the jury. There were two incidents in respect to which the accused was charged, said Mr. Billing, in his address. One girl said one of the incidents took place in July of 1934 and the other said it was in July of the previous year. He was not trying to discredit the story of the girls—he had seen from the first that they were honest witnesses—but that showed that young girls could be easily mistaken. He pointed out that the commission of the acts in itself was not enough. There must be as well guilty mind or wilful intent. If, as was quite possible, McConville had merely intended to. relieve himself thinking there was no-one about, then he had not committed the offence with which he was charged. McConville’s action would suggest that he was careless, perhaps, but not wilfully guilty of exposure with intent to annoy. The girls later heard of the case of another man who had. committed offences in the same locality and that, after a considerable lapse of time, suggested that the accused was up to the same practice. Counsel submitted there was no evidence of intent and that the verdict must therefore be one of innocence.

His Honour in’his address to the jury pointed out that the onus was on the Crown to prove an accused person guilty; not on the defence to prove the accused was innocent. It was not so much a question whether the accused person was guilty as whether the Crown had proved him guilty. In speaking of the question of inference His Honour said that if the evidence tendered by the Crown was susceptible to two inferences, one in favour of the accused and the other against him, the jury was bound to accept the inference in favour of the prisoner. The Crown charged the accused not only with exposure but with wilful exposure. That postulated? that the accused must have been shown to know that the girls were coming.