Clarence and Richmond Examiner, Sat 23 Nov 1912 1
COPMANHURST POLICE COURT.
ON Wednesday, before the PM, L Baillie, CC Clarence, and TJ Pocock, J’sP,
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Police v. T O’Brien, charged on an alleged serious offence committed at Glenreagh, was on the application of Constable Calman remanded for eight days for the production of the warrant.
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The Grafton Argus, Wed 2 Apr 1913 2
GRAFTON QUARTER
SESSIONS.
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Tuesday, 1st April, 1913.
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The Grafton Quarter Sessions were opened at the Court House yesterday morning, His Honor Judge Edmunds presiding. The members of the Bar present were Messrs RJ Browning (Crown Prosecutor) and JC Gannon, KC. Solicitors in attendance were Messrs F McGuren, AJ Pollack, DJ Lobban, RC Law, RD Bawden, and T McL Lobban (Maclean).
A number of absentees, who had been summoned as jurors, were, for various reasons, excused by His Honor for non-attendance.
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Clarence and Richmond Examiner, Thu 3 Apr 1913 3
QUARTER SESSIONS.
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THIS Court was opened at Grafton on Tuesday before his Honor Judge Edmunds. Mr RJ Browning attended as Crown Prosecutor.
Several jurors were excused on the ground of illness or other reasons, as testified to by evidence, or explained by affidavit.
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SECOND DAY—WEDNESDAY.
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BESTIALITY.
Thomas O’Brien, on bail, was charged with having on 29th October last at Glenreagh, committed the above offence. He pleaded not guilty, and Messrs McGuren and Pollack appeared on his behalf.
After a jury had been empanelled it was urged on behalf of accused that a material witness was not in attendance. A postponement of the case to next Court was applied for, and granted. The jury were discharged, and accused was released on his former bail, to appear at next Court.
This ended the criminal business, and the Court adjourned at 3.50 pm.
In discharging the jury, his Honor referred to the unsavoury nature of the calendar, but signified his appreciation of the townspeople, who left the Court while the evidence in certain cases was being tendered.
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The Grafton Argus, Fri 4 Apr 1913 4
Wednesday, April 2.
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Before His Honor, Judge Edmunds.
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ALLEGED BESTIALITY.
Thomas O’Brien, forty-five, on bail, pleaded not guilty to a charge of bestiality [with a mare] at Glenreagh on October 29, 1912.
Mr F McGuren (with him Mr AJ Pollack) for accused.
After the jury had been empannelled [sic] it was stated that a material witness for accused had not turned up, and an application for adjournment to next Court was granted, same bail being allowed.
At the request of accused’s Counsel, the jury was discharged, accused to make an affidavit of what evidence he expected the absent witness to give.
The Court then adjourned at 3.50 pm, sine die.
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Clarence and Richmond Examiner, Sat 5 Apr 1913 5
CURRENT EVENTS.
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THE COURTS.
The time allotted for the Quarter Sessions and District Court at Grafton this week has proved insufficient, and with this experience, it is expedient that in future a longer period be allowed the judge to deal with the business. Scarcely three days were given on this occasion for the Sessions and civil court, and had there not been a postponement of three cases on the calendar the District Court would probably not have been entered upon. His Honor sat till 11 pm on Wednesday in order, if possible, to get through the business in sufficient time to leave Grafton for Casino by afternoon train on Thursday, but found that he was unable to do so, and one of the cases had to be postponed. This causes vexatious disappointment and expense to suitors, while it is hardly fair in these eight-hour times to expect judges, members of the legal profession and court officials, to work till nearly midnight in order to clear the lists in the unnecessarily restricted time allowed. The proper administration of justice demands that the business should not be rushed through, and in fixing the dates of the courts it would be advisable to allow ample time to adjudicate, and dispense altogether with night sittings.
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The Grafton Argus, Wed 23 Apr 1913 6
SUPREME COURT.
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Tuesday, April 22.
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Before Mr Justice Gordon.
The Grafton sittings of the Supreme Court were opened at the Court House yesterday morning. Mr IR Norris was the Crown Prosecutor and Mr A Thompson, JP, acted as Sheriff’s officer. Mr WS McKenzie was the Judge’s Associate, and Mr Little the shorthand reporter. Mr Black, from the Crown Law Office, was also present.
Walter Arnold, Edward Meally, RN Shaw, Thomas Morrissey, EH Hennings, AG Bailey, and Malcolm Finlayson were excused from attending as jurors.
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ALLEGED BESTIALITY.
Thomas O’Brien was charged with having been guilty of the abominable crime of bestiality at Glenreagh on 29th October, 1912.
Mr F McGuren for the accused, who pleaded not guilty.
The following jury were empannelled [sic]:—JR Campbell, WW Jenkins, T Smith, JJ Shea, ES Francis, FV Darby, Charles Smith, Jacob Zietsch, P McFadden, BWJ Morris, Wm Johnson, TS Baker. None of the jurymen were challenged.
Mr Norris, in opening the case to the jury, said that on the date named O’Brien was a ganger on the railway works and was a hard worker but also a heavy drinker. The Crown case would rest on the evidence of Percy Ward and his employer, George Kelly, a butcher, of Glenreagh, of whom the latter alleges he saw the accused committing the offence on his (Kelly’s) mare, in a shed.
Percy Ward, a youth, deposed that in October he was assistant to Kelly; knew O’Brien before then; on the date named, about 9am, saw a creamy mare being led along by accused, which he knew belonged to Kelly; went and told Kelly and both went down to a shed, where they saw accused committing the offence. (The details are unprintable.) Heard Kelly say to accused, “You dirty cow; you ought to be flogged.” Accused made no answer.
By Mr McGuren: Said at Coramba Police Court that he was not in the shed until ten minutes after Kelly had gone there; his present statement, that he and Kelly went to the shed together, was the correct one. Could not explain why he made an incorrect statement on oath at Coramba. Accused was dressed in working clothes, had a beard on, and was staggering about, drunk.
To His Honor: He and Kelly went to the shed together.
George Kelly, butcher, of Glenreagh, deposed he had known accused for some time. Corroborated Ward’s evidence as to being told something, going to the shed, what he saw there and what he said to accused. Accused did not answer him but went straight over the river, across a log which spanned the stream there, which was a difficult thing to do. Gave information to the police a fortnight later. The mare could not get to the shed of its own accord; sliprails had to be passed.
By Mr McGuren: The log was about a foot wide on the top, not the sort of thing a drunken man could cross. Accused showed signs of drink. Ward went to the shed with witness. The cattle Ward was driving were left on the road while Ward and he were at the shed. The incident happened at 8 o’clock in the morning.
Matthew John Osberg, hotelkeeper, Glenreagh, deposed that accused was at the hotel about 6 am on October 29; had had a few drinks when witness got up and saw him; accused left the hotel between 7 and 8; saw him walk down the five steps; he had had several drinks (whisky), but walked all right.
By Mr McGuren: Accused had breakfast at the hotel, between 6 and 7 o’clock; didn’t know how many drinks accused had; accused had not been on the spree for a couple of days at the hotel; could not say that accused lost his position as a ganger through that spree; know that he did lose it.
Senior-Constable F[rancis] J[ohn] Pritzler, of Coramba, gave formal information of a warrant being issued and sent on the Copmanhurst.
Senior-Constable G[eorge] Calman, of Copmanhurst, deposed to arresting accused at Cangai, where he was working, on November 19. When arrested, accused said he understood the serious nature of the charge, but he was not guilty.
By Mr McGuren: Accused was working at Cangai for two or three years; his wife and family remained at Cangai while he was at Glenreagh so that it was his home he went to when he left Glenreagh.
This was the case for the Crown.
Accused [Thomas O’Brien] made a statement, in which he said he had been on the spree and remembered nothing of the offence. He stayed at his camp that night, then came into Grafton, and stayed here a week. He had £30 on him when he left Glenreagh. Was it likely he would have hung about if he knew a charge like that was hanging over his head. He was in the horrors of drink and stayed in Grafton till he got over them, then drew £7 10s, back pay, from the department’s officer, and went home.
Mat Osberg, recalled, said in answer to Mr McGuren, he had never seen accused with a beard.
John Murphy, a laborer, who had worked in O’Brien’s railway gang, remembered him being superseded by a man named Smith; accused wore no beard at that time.
By Mr Norris: Knew that this case was adjourned at the last Quarter Sessions because a witness, “Tom, the Gripman,” was not present.
Thomas Cooney, a laborer, deposed he did not work in O’Brien’s gang, remembered him being on the spree for a couple of days and going away after it. He saw accused on Tuesday October 29, and accused said he was leaving the job and a man named Smith was being put in his place; he was suffering from drink; had known him three months; never knew him to wear a beard.
By Mr Norris: Did not see accused hand over the books and keys to Smith; witness was known as “Tom, the Gripman”; was at the verandah of the Court House when this case was brought on at the Sessions; did not know the case was then postponed because of his absence; did not remember speaking or drinking with O’Brien that morning; he had been locked up the day before for drunkenness.
This closed the case for the defence.
Mr McGuren, in a few minutes’ address, said the case was a most peculiar one because (1) of the discrepancies in the evidence; (2) because the offence is alleged to have been committed in the presence of two people, one of whom owned the animal, nothing was said to the police for nearly three weeks, and (3) because that these two witnesses on whose evidence alone, the case rested, said accused wore a beard, while many other witnesses, who knew accused well, said they had never known him to wear a beard. From the evidence it was fair to suppose that within two hours accused had 16 to 18 whiskies. Was it then probable that he would be in a condition to commit the offence or to subsequently cross a narrow round log across the creek? His character was not assailed in any way; the Crown Prosecutor, in his opening, said accused was a hard working man.
Mr Norris said that living among a crowd of men – friends – it should have been easier for the defence to show that accused was not there. The only suggestion that he was not the man was the Crown witnesses’ evidence that they thought he had a beard, while the defence witnesses said he had not. Men in the bush did not shave very frequently. Accused said he had been on a spree for a few days, and that period’s growth, added to a heavy moustache such as accused had might easily be called a beard. Mr Norris, after defending the witness Ward from Mr McGuren’s remarks, noted an eminent opinion: “Drunkenness is never a defence unless it amounts to unsoundness of mind.” Could that he said of O’Brien, who had its [sic] wits sufficiently about him to clear out when found and cross a log.
His Honor took seven minutes to sum up and the jury retired at 4.15 pm.
The jury, after about half-an-hour’s retirement, returned with a verdict of not guilty and accused was discharged.
The Court then adjourned till this morning.
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Northern Star, Wed 23 Apr 1913 7
SUPREME COURT.
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GRAFTON SITTINGS.
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Grafton, Tuesday.
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Thomas O’Brien was acquitted on a charge of bestiality.
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Clarence and Richmond Examiner, Thu 24 Apr 1913 8
GRAFTON CIRCUIT COURT
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THIS Court was opened on Tuesday before his Honor Mr Justice Gordon. Mr IR Norris acted as Crown Prosecutor; Mr Black attended from the Crown Law office; Mr WKS Mackenzie acted as associate; Mr Little, as short-hand reporter, took notes of the evidence. Mr Alroy Cohen was the other barrister present.
Messrs W Arnold, E Meally, RN Shaw, and T Morrissey were excused from attendance as jurors on reasons set forth in affidavits. Mr E Hennings was also excused on personal presentation. Messrs Finlayson and HE Bailey were excused on the ground of being stewards at the Ulmarra Show.
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ALLEGED ABOMINABLE OFFENCE.
Thomas O’Brien was charged with committing a serious offence on a mare on October 29th at Glenreagh. Mr Norris prosecuted, and Mr F McGuren defended.
Jury:—JR Campbell, W Jenkins, JJ Shea, Ed Francis (Foreman), F Darby, T Smith, C Smith, J Zietsch, £ McFadyen, B Williams, J Morris, W Johnstone, and TS Baker.
Percy Ward deposed to knowing the accused, and that he was a ganger on the railway. He saw the accused on the day in question, and stated what he saw.
In cross-examination the witness admitted that certain statements he had now made did not agree with the evidence he had given at the lower court. The accused was drunk at the time.
George Kelly gave evidence to what had been brought under his notice, and to giving information to the police about fourteen days after the alleged offence.
Matthew John Osberg deposed to accused having several drinks on the morning in question at his hotel at Glenreagh.
Mr McGuren cross-examined witness as to the number of drinks accused had.
Constable Calman, Copmanhurst, gave evidence to arresting the accused at Cangai and bringing him to Copmanhurst.
The accused [Thomas O’Brien] then made a statement from the dock to the effect that he knew noting about the affair. He had been on the spree, and never remembered leaving the hotel.
For the defence, Mr McGuren called Matthew Osberg, who stated that he never saw the accused with a beard.
John Murphy deposed to working in the accused’s gang. He never wore a beard, and had not been on the spree for a few days.
To Mr Norris: He was present at the [Copmanhurst] Police Court when an adjournment was granted for the presence of a witness.
Thomas Cooney deposed to working on the railway construction works at Glenreagh, 9 but not in the accused’s gang. He remembered him being on the spree for a few days, and told the witness that a man named Smith was being put on in his place, and the he was going away. When he saw him he appeared to be suffering from the effects of drink. The accused never wore a beard to his knowledge.
Mr McGuren, in addressing the jury, pointed out the two contradictory stories told by the witness Ward, and asked them to put his evidence aside as it could not be relied upon. The accused in the condition he was in was not capable of committing the offence he was charged with, nor was he able to walk the log across the creek. His mind was a blank, which fully bore out his statement that he was quite incapable of having performed the many acts that the Crown was endeavouring to prove. The man was a hard-working man, and there were many doubts surrounding the case.
Mr Norris, in his address, pointed out that the accused had not denied the charge. The defence had stated that he was so drunk that he did not know what he was doing. Referring to Ward’s evidence, he said that the testimony given at the Police Court was very short, and it was very easy to make a mistake. The accused had sufficient wits about him to cross a log, go to his camp, and named his successor, which showed that he had not too much drink to know what he was doing.
His Honor, in briefly summing up, pointed out that drink was no defence except in cases where it brought on insanity. If there was some reasonable doubt in the case, the prisoner must be given the benefit of the doubt.
The jury, after an absence of about three-quarters of an hour, returned, and entered a verdict of not guilty..
Prisoner was then discharged.
1 Clarence and Richmond Examiner, Sat 23 Nov 1912, p. 2.
2 The Grafton Argus, Wed 2 Apr 1913, p. 2.
3 Clarence and Richmond Examiner, Thu 3 Apr 1913, p. 2.
4 The Grafton Argus, Fri 4 Apr 1913, p. 6.
5 Clarence and Richmond Examiner, Sat 5 Apr 1913, p. 4.
6 The Grafton Argus, Wed 23 Apr 1913, p. 2. Emphasis added.
7 Northern Star, Wed 23 Apr 1913, p. 5.
8 Clarence and Richmond Examiner, Thu 24 Apr 1913, p. 2. Emphasis added.
9 See: Sydney Mail, (NSW), Wed 22 Jan 1913, pp. 8, 46, for a detailed account of the Grafton-Glenreagh section of the North Coast railway construction including images.