Below also see: James O’Brien, John O’Brien and James Brogan, 1908 – Perjury
Goulburn Evening Penny Post, Thu 11 Jun 1908 1
GOULBURN QUARTER SESSIONS.
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Thursday, June 11.
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Before his Honor Acting Judge H Montgomerie Hamilton.
INDECENT BEHAVIOUR.
[Patrick] Michael O’Brien was charged with indecent exposure on 6th March at Gunning Flat, and pleaded not guilty.
Mr Thomas appeared on his behalf.
Proceeding.
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Goulburn Evening Penny Post, Sat 13 Jun 1908 2
QUARTER SESSIONS.
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Thursday, June 11.
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Before his Honor Acting Judge H Montgomerie Hamilton.
INDECENT BEHAVIOUR.
[Patrick] Michael O’Brien was charged with indecent exposure [of himself to Thomas Albert Fogg, 5 years and 9 months old] on 6th March at Gunning Flat, and pleaded not guilty.
Mr Thomas appeared on his behalf.
Thomas Albert Fogg (boy), Frederick William Cannon, Alfred Fogg (father of boy), and Constable [William Henry Millard] Face were witnesses for the Crown. For defence accused made a statement from the dock, and the witnesses were James Brogan, John O’Brien, and James O’Brien.
The jury retired at 5.40 and returned at 6.20 with a verdict of guilty. The foreman announced a rider was added to the effect that the prisoner had no idea of carrying out the intention implied in the words he used when the offence was committed.
His Honor noted a number of points raised by Mr Thomas. In sentencing the accused his Honor said he was quite convinced the jury could come to no other conclusion than the one they had arrived at, and he was still of the opinion the prisoner was not of such intellectual capacity as to make him appreciate the disgusting nature of the offence. He felt quite convinced that it was best, from the criminal and social point of view, the prisoner should be removed for a period to where he would be kindly treated and well watched and every inquiry made into his intellectual capacity, with a view of strengthening it and of reforming him, if it could be done, under the humane methods of this country. The sentence of the Court was that he be imprisoned for a period of six months with hard labour. His Honor spoke strongly regarding perjury, and said he would leave further action to the proper authorities.
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Michael O’Brien, Gaol photo sheet 3
![SRNSW: NRS2232, [3/5976], Goulburn Gaol photographic description book, 6 May 1907-17 May 1909, No. 2160, p. 113, R5121.](../../images/trials/1908-OBrien-5976-gaol-photo-2160.jpg "SRNSW: NRS2232, [3/5976], Goulburn Gaol photographic description book, 6 May 1907-17 May 1909, No. 2160, p. 113, R5121.") |
Gaol Photo Sheet - Transcribed Details
No. 2160
Goulburn
Date when Portrait was taken: 20-7-1908
Name: Michael O’Brien
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Native place: Grabben Gullen Year of birth: 17-3-1880 Arrived Ship: Trade or occupation Religion: R. C. Education, degree of: R & W Height: 5' 10" Weight On committal: 152 Colour of hair: Brown Colour of eyes: Grey |
Marks or special features: 1 Vaccination mark upper right arm |
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(No. of previous Portrait ... ) CONVICTIONS |
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| Where and When | Offence. | Sentence | |||
|
Goulburn Q.S |
11 |
|
1908 |
Indecent exposure |
6 months H.L. |
James O’Brien, John O’Brien and James Brogan, 1908
Goulburn Evening Penny Post, Tue 4 Aug 1908 4
GOULBURN POLICE COURT.
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Monday, August 3.
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Before the PM.
ALLEGED PERJURY.
James O’Brien was charged with committing perjury at the Goulburn Quarter Sessions on 11th June last in the case Rex v. [Patrick] Michael O’Brien for indecent exposure at Reid’s Flat.
John O’Brien and James Brogan were charged with the same offence.
Mr Thomas appeared for the accused.
Constable Begbie, [of] Frogmore, deposed that on 1st August he proceeded, in company with Constable Buckley, to Reid’s Flat and from there to Gunning Flat, where he saw accused James O’Brien and told him he (witness) had a warrant for his arrest; accused when the warrant was read made no reply.
To Mr Thomas: Accused did not make a complaint about any man attempting to levy blackmail on him; accused had come to him on other business; accused had a farm near Gunning Flat.
A remand till Monday next was asked for. This was granted, bail being allowed—self in £200, with two sureties in £100 or one in £200.
Constable Begbie gave evidence of arrest of John O’Brien and James Bogan. These two accused were also remanded, the same bail being fixed in each case.
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Goulburn Evening Penny Post, Tue 11 Aug 1908 5
GOULBURN POLICE COURT.
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Monday, 10th August.
Before the PM and Mr CH Roberts.
…
ALLEGED PERJURY.
James Brogan was charged with committing perjury at the Goulburn Quarter Sessions on 11th June last in the case of Rex v. [Patrick] Michael O’Brien.
Mr Thomas appeared for accused.
Sub-inspector [Richard] Roden deposed that produced order and authority to initiate prosecution in this matter; on the 11th June last witness was present in court at the Quarter Sessions, when a charge of indecent exposure was preferred against [Patrick] Michael O’Brien. Witness went on to give formal evidence. Continuing, he said accused stated in his evidence on 6th March last: “It was Friday I went to O’Brien’s place to see about a horse; I saw Michael, James, and John; I saw about the horse; Mick and I went up the paddock to get some sheep, this was about half an hour after I got there; I walked to O’Brien’s place, but we went on horseback to the paddock; we mustered the sheep and gave them some salt; I believe 1400 acres were in it; we mustered them at the top end of the paddock; afterwards we looked at some cattle in the same paddock; we were away about an hour or an hour and a half; when we got back I went into the house and saw the time; it was 7 o’clock; I stayed for tea and then went home.”
To Mr Thomas: Witness was in court during the whole of O’Brien’s case.
Fitzjames Clancey, sheriff’s officer, deposed that accused said: “I went to O’Brien’s place in the afternoon about five o’clock or half-past about a horse; I saw accused, and after some time we went away to give salt to the sheep and did not return till after seven o’clock;” accused also said there were three O’Briens there.
Senior-sergeant McHardy also gave corroborative evidence.
Frederick W Cannon, labourer, residing at Bigga, after giving similar evidence of the 6th he (witness) went to O’Brien Bros.’ premises and whilst there Michael O’Brien said to Thomas Alfred Fogg, a boy, certain words; witness was standing in the doorway of the kitchen or outhouse; James O’Brien was in the opposite corner of the room mixing some poison; he saw Michael, James, and John there, but Brogan was not present.
To Mr Thomas: He had been about the district 10 months, and was originally one of the Sydney unemployed; witness mentioned the matter to Fogg the next day; witness was not in the court during the whole of Fogg’s evidence; he had permission to go out.
Witness was further cross-examined by Mr Thomas.
Thomas Alfred Fogg, a boy of a bout six, gave evidence. He stated that on the day the offence was committed by Michael O’Brien he saw the other two O’Briens and Cannon at the place, but did not see accused; he did not know what time it was, but it was in the evening.
Witness was cross-examined by Mr Thomas.
Alfred William Fogg, labourer, residing at Reid’s Flat, and father of the last witness, deposed that accused had said at the Quarter Sessions that he was working with witness on the 6th and left about four o’clock to go to O’Brien’s; witness heard accused give other evidence; on the 6th Brogan and he went to work together pretty early; on their road home they robbed a bees’ nest; that took them about half an hour, and they got home about seven o’clock; witness’s wife met them by appointment about a mile and a half from home; she brought the buckets; they sat down and had supper, when James Brogan left to go to bed; that would be about eight o’clock or a little later; witness saw Cannon late that night.
To Mr Thomas: Witness did not have tea with Cannon that night; Cannon at that time was staying with witness.
Mrs Fogg gave evidence of a similar character to that of her husband.
The court then adjourned till 2 o’clock.
On resuming, Mr Boileau, CPS, was called. He deposed that he produced a certain conviction against Michael O’Brien; he also produced the indictment upon which he was charged.
Mr Thomas objected to the certificate of conviction, and asked that a note be made of it.
This concluded the case for the Crown.
Accused pleaded not guilty and reserved his defence. He was committed to stand his trial at the Goulburn Sessions on 6th October. Bail was allowed—self in £80 and two sureties in £40 or one in £80.
Mr Roberts here left the Bench.
James O’Brien was charged that on 11th June he committed perjury at the Goulburn Quarter Sessions in the case of Rex v. Michael O’Brien.
John O’Brien was similarly charged.
At the suggestion of Mr Thomas, who appeared for the defendants, the cases were heard together.
The Police Court was at this stage adjourned till the conclusion of the Shire Appeal Court.
On resuming,
Sub-inspector Roden deposed that at the court accused, James O’Brien, said that “Michael O’Brien and Brogan went to get some sheep, and they were away till about seven o’clock; Brogan was with me all the time; Cannon and the boy Fogg came to my place that afternoon about sundown, towards six o’clock; Cannon came for a bit of flour; he was starving;” accused went on to say that Cannon went away when he got the flour.
Fitzjames Clancey, sheriff’s officer, deposed that accused, James O’Brien, said at the Quarter Sessions that Michael O’Brien and Brogan were away from the house at the time of the alleged offence; he remembered both accused saying that Cannon and Fogg (the boy) had come for some flour.
Senior-sergeant McHardy gave evidence in corroboration; he also deposed that John O’Brien said he had seen Michael O’Brien and Brogan go to salt the sheep; when they came back it was getting on for seven o’clock.
Frederick Cannon gave evidence similar to that of the first case.
Alfred William Fogg, Mrs Fogg, Thomas Alfred Fogg and Mr Boileau, CPS, also gave evidence.
Both accused reserved their defence, and were committed for trial at the Goulburn Quarter Sessions to be held on 6th October. Bail was allowed in ease case—self in £80 and two sureties in £40 or one in £80.
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Goulburn Evening Penny Post, Thu 8 Oct 1908 6
GOULBURN QUARTER
SESSIONS.
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This Court opened this (Tuesday) morning, before his Honor Judge Scholes. Mr Belcher represented the sheriff. Mr Armstrong, KC, was Crown-Prosecutor. The other members of the legal profession present were Messrs A James, MLA (barrister), AM Betts, H O’Brien, EF Thomas, EW Johnson, AE Sendall, PJ Meyer, EA Betts, JC Walsh (solicitors). Three jurors were excused from attending for various grounds.
…
NEW MAGISTRATES SWORN IN.
Messrs SP Jessop, E Ashley, PF O’Brien, Richard D Gray, TP Manion, WH Muffet, CW Southwell, SJ Sykes, and John Keith were sworn in as justices of the peach.
CHARGE OF PERJURY.
James O’Brien (on bail) was charged with committing perjury at Goulburn on 11th June, before his Honor Judge Hamilton, in a case against Michael O’Brien for indecent behaviour
Accused pleaded not guilty, and was defended by Mr James, instructed by Mr EF Thomas.
Mr James applied for the prisoner to be allowed the assistance of his solicitor in striking a jury, as there had been a previous trial, out of which this charge arose.
His Honor granted the application under the circumstances stated.
Prisoner challenged eight jurors, and the Crown ordered three to stand aside.
The Crown-Prosecutor opened the case, stating that the present charge of perjury arose out of a defence put forth by Michael O’Brien, charged with indecent exposure last Quarter Sessions.
Fitzjames Clancy, Sheriff’s Officer at Goulburn, deposed that at the last Court, on 11th June, he administered the oath to the accused, and the latter swore that Michael O’Brien and James Brogan went away from the residence of the O’Briens on March 6 between 4 and 5 pm to give salt to some sheep, and did not return till after 7 pm; the accused fixed the time by saying that Brogan called his attention to a watch hanging on the wall.
Constable Face, stationed at Bermagui, formerly stationed at Reid’s Flat, deposed that on 10th March he went to the residence of the O’Briens, and there saw James, John, and Michael O’Brien; witness had with him two of the Foggs and Wallace Cannon; asked the three brothers if they remembered that on 6th March they saw Cannon and a little boy; they said, “No;” in reply to witness the accused said he saw Cannon and the little boy together all the time, that the boy never left Cannon’s side all the time; John O’Brien said he did not see the boy all the time as he was working in and out of the house; witness then charged Michael O’Brien with indecent assault on 6th March; he replied that he reserved his defence; accused then said, “That’s right, you shut up;” at witness’s request Cannon then stated what he saw Michael O’Brien do as to the assault; after this statement James and John O’Brien became excited, and said it was a lie, that Cannon knew it was; Cannon said it was quite true; all then went to where the alleged offence happened, and Cannon showed where he was standing at the time the offence occurred and where the boy and Michael O’Brien were standing at the time Cannon alleged the offence was committed; John O’Brien then pointed out where he was standing at the time, and Cannon immediately said that John O’Brien was in the kitchen and that James O’Brien was also inside, mixing poison; accused said he was not inside, but at the door; none of the O’Briens then said that Michael O’Brien was away salting sheep, and that Brogan was with him.
To Mr James: Witness did not say at the Frogmore Police Court as he deposed today that he addressed each of the three O’Briens first individually, but he did do so.
The deposition given by Constable Face at Frogmore Police Court in April last was, with the consent of the prisoner, here read to the jury.
Sub-inspector Roden, stationed in Goulburn, deposed that he was present when the accused gave evidence at the last Court in the case of Michael O’Brien, charged with indecent exposure.
The Crown-Prosecutor here put in the order of Acting Judge Hamilton to prosecute in this case.
Mr James admitted that the indictment in this case was exactly what the accused swore at the Court in the case of Michael O’Brien.
Frederick Wallace Cannon, labourer, Bigga, deposed that on 6th March, between 4 and 5 pm, he was at the O’Briens’ place with a lad named Thomas Alfred Fogg; witness saw all three brothers at the house; two of them were inside and Michael O’Brien was outside near an old kitchen; witness went for flour and bought some; witness saw Michael O’Brien commit an exposure; James O’Brien was then in the kitchen mixing poison at the fire-place and John O’Brien was in the main building; James O’Brien could not see his brother Michael; James Brogan was not there; witness then returned to his camp on Fogg’s selection at Reid’s Flat.
To Mr James: Witness did not interfere to prevent the boy going away with Michael O’Brien after he made use of an indecent expression; it was not true that the O’Briens gave witness the flour as he said he was starving; he paid 2s for the flour; he made no reference to any of the O’Briens about what he heard Michael say, although he was there for about an hour; Brogan was not at Fogg’s when witness came home.
Thomas Alfred Fogg, residing at Reid’s Flat, deposed that he was at O’Briens’ place with Cannon; Brogan was not then at O’Briens’; Brogan went away with witness’s father that morning to work, and he was at home when witness returned from the O’Briens’.
Alfred William Fogg, labourer, residing at Reid’s Flat, deposed that on 6th March he was ringbarking some two miles from his residence; James Brogan was working with witness that day; he was stopping in a tent near witness’s; they were together all that day from nine am; on their way home after work they felled a tree in which was a bees’ nest; this took three-quarters of an hour; they then went home about seven o’clock in the evening; after a smoke Brogan went to bed.
To Mr James: Cannon made a statement to witness on 7th March, and witness went to the O’Briens with Cannon on the following Sunday evening, and as soon as the latter went on the verandah the O’Briens took to him and threw him off the verandah; witness did not take any part in the struggle except to keep the O’Briens from kicking Cannon, and said he had not come there for a fight, but to find out the truth of the story that Cannon had told him about his son.
Sarah Jane Fogg, wife of the previous witness, corroborated her husband’s evidence about Brogan being in Fogg’s company all day on 6th March.
The Crown-Prosecutor wanted to put in the certificate of the conviction of Michael O’Brien on the charge of indecent exposure. Mr James objected, and his Honor upheld the objection, therefore the Crown-Prosecutor withdrew his application.
The Crown-Prosecutor put in the evidence in the case of Michael O’Brien, and closed the case for the Crown.
His Honor explained to the jury that if they were prepared to return a verdict of acquittal without hearing the defence they were entitled to do so at once.
Mr Gale (foreman) asked permission for the jury to retire for a few minutes.
His Honor said he would allow them to do so as far as a verdict of not guilty was concerned, but they could not now find the prisoner guilty without hearing the defence.
The jury retired for a few minutes and returned a verdict of not guilty, and the accused was discharged.
CHARGES OF PERJURY.
John O’Brien and James Brogan (on bail) were arraigned on a charge of perjury in the same case—that of Michael O’Brien for indecent exposure.
Prisoners pleaded not guilty.
The Crown-Prosecutor asked that both the accused be remanded for trial at the next Court of Quarter Sessions or such other time or place as the Attorney-General may determine.
The accused were both remanded, and were granted bail on their own recognizance of £25 each.
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Goulburn Evening Penny Post, Sat 17 Oct 1908 7
ALLEGED PERJURY.
The Attorney-General, consequent upon the decision in a case at the Goulburn Quarter Sessions held recently, has decided not to proceed with the cases in which it was alleged that John O’Brien and James Brogan were guilty of perjury at the Quarter Sessions in June last, when Michael O’Brien was convicted of indecent behaviour.
1 Goulburn Evening Penny Post, Thu 11 Jun 1908, p. 2.
2 Goulburn Evening Penny Post, Sat 13 Jun 1908, p. 4. Emphasis added.
3 SRNSW: NRS2232, [3/5976], Goulburn Gaol photographic description book, 6 May 1907-17 May 1909, No. 2160, p. 113, R5121.
4 Goulburn Evening Penny Post, Tue 4 Aug 1908, p. 4. Emphasis added.
5 Goulburn Evening Penny Post, Tue 11 Aug 1908, p. 4. Emphasis added.
6 Goulburn Evening Penny Post, Thu 8 Oct 1908, p. 2. Emphasis added.
7 Goulburn Evening Penny Post, Sat 17 Oct 1908, p. 6.