Warning: count(): Parameter must be an array or an object that implements Countable in /nfs/c07/h03/mnt/178353/domains/unfitforpublication.org.au/html/plugins/system/gantry/gantry.php on line 406
1897, Patrick McNamara - Unfit For Publication
Text Size

 


Below also see: Patrick Kelly, 1901,
Patrick Kelly, 1902

 

The Dubbo Liberal and Macquarie Advocate, Sat 23 Apr 1898 1

CIRCUIT COURT.
————
Tuesday, April 19.
(Before His Honor Mr Justice Cohen.)

    Mr GH Taylor, JP, Deputy Sheriff attended his Honor.
    Mr Mocatta prosecuted for the Crown.

W, April 20th.
A NORTH BOURKE CASE.

    Patrick Macnamara [aka Patrick Kelly] was charged with committing a capital offence on an elderly woman named Rachel Pye, at North Bourke, on 3rd December last. The accused was defended by Mr Mason, instructed by Mr Booth.

    The Crown Prosecutor having opened the case called the following evidence:—

    Rachel Pye deposed she was 68 years of age; on the day in question she went to the house of a neighbour named Mrs Meadows, and thence to the Overland Hotel in Darling street; on leaving the hotel the accused followed her; she was under the influence of drink and fell down; accused came up and made an indecent proposal to her; she went on and accused pulled her down and assaulted her; she resisted to the utmost of her power; a man named Dunley came up and rescued her from accused.

    Cross-examined by Mr Mason: She was supported by the local Benevolent Society; it was not a fact that she had been walking about with accused earlier in the day; she received no money from the accused; had only had two small glasses of beer that day; she had been to Mrs Meadows to see her about going to Bourke to get some clothes for her (Mrs Meadows’) children.

    The witness’s depositions at the Police Court hearing were put in and read.

    Mary Pearson, a widow, living at North Bourke near the Overland Hotel, deposed that on the afternoon of 3rd December she saw the accused and Mrs Pye walking along the road arm-in-arm together; he proposed to the woman to go round the tend; she refused; they went on and both fell in the wheel track; they got up again and went on, and the woman fell alone; the man, who was slightly behind at the time, went on and indecently interfered with her; witness then sent her daughter for the police; Mr Dunley came up and kicked the man away and lifted the woman up; they were about 130 yards from her; the woman was doing nothing during the assault.

    Cross-examined by Mr Mason: She was not on friendly terms with Mrs Pye or Mrs Meadows, but had no unfriendly feeling towards either.

    John Dunley, residing at North Bourke, deposed that on the afternoon in question he saw a man and woman struggling in the track, the woman was resisting; witness went up and kicked the man away and picked up the woman; Constable Cupitt came up and removed her, there was blood on the woman’s face.

    By Mr Mason: They were about 150 yards from Mrs Meadows’ house, at which he (witness) was.

    By His Honor: The nearest houses to the man and woman were 30 to 40 yards away; he (witness) was from five to ten minutes getting to the place from Mrs Meadows’ house; at first thought it was two men fighting and did not hurry towards them; was within a few yards when he discovered otherwise; the road was a main one and was frequented to a good extent.

    The witness’s depositions taken at the Police Court hearing were put in and read.

    Constable S[ydney] T[arleton] Cupitt, stationed at North Bourke, deposed that on the day in question he was sent for by Mrs Pearson, who pointed out two figures apparently struggling on the ground rather over 100 yards away; Dunley reached the place a few seconds before witness; the woman was struggling. Dunley interfered and kicked the man away. Witness took the woman to the lock-up; she was weak and exhausted, and under the influence of drink. Had a conversation with her on the way. She complained that accused had assaulted her, and said she had resisted him to the utmost of her power. Formally arrested her on a charge of drunkenness. On searching her at the lock-up found nothing in her pockets. Later witness went back and found accused still lying on the ground, practically as he left him, removed him to the lock-up. On the way accused asked if he had been a blackguard, and witness replied in the affirmative. On reaching the lock-up accused denied having seen the old woman before. Then removed him to gaol on the charge of attempting to commit an offence on Mrs Pye.

    By Mr Mason: Was not aware that he (witness) had previously stated, at the Police Court hearing, that accused’s remark was made at the station in answer to the charge, and not on the way in.

    The witness’s depositions at the Police Court hearing were put in and read.

    Further cross-examination: Did not know that the accused suffered for six weeks afterwards from the effect of the kick in the ribs. One rib was broken. Witness had never seen accused before the day of the occurrence. Accused had £1 19s 3d on him when arrested.

    This closed the case for the Crown.

    The accused, Patrick Macnamara, deposed he was a gardener, residing at North Bourke, and was 47 years of age. Had formerly worked for Mr Machattie in Bourke district. After being paid off there the last week in November, he walked into North Bourke and stayed at the Overland Hotel—which he reached on 1st December. Had a few drinks and felt very queer after them. On the morning of 3rd December, had £17 odd. Met Rachel Pye that day in the street—a back street at the read of the Overland Hotel. She asked him to come to the hotel and have a drink, and he refused. She then asked him to come to Mrs Meadows’. He went part of the way. Not far from the house, she threw herself down, and said she would stay there. Gave her 5s. Whatever happened later, was with her consent. Remembered no more till he received a kick. One of his ribs was broken. Did not know for two or three days afterwards what happened to him. Had to have his ribs andaged [sic–bandaged] for six weeks afterwards and was under the doctor’s treatment for some weeks later. They (he and prosecutrix) were walking arm-in-arm before the occurrence. He had £6 odd in the morning, and had only £1 19s 3d when arrested.

    By the Crown Prosecutor: It was a fact that he had represented by letter to the police that a man in the hotel had taken his hat containing several pounds. Other money was in his stocking but he had since lost it. Did not effect his purpose on the woman. Did not remember asking the constable if he (accused) had been a blackguard. Owing to his drunkenness, and suffering from the broken rib, he was not in his right senses for some three or four days afterwards.

    William Worthington, licensee of the Overland Hotel, North Bourke, deposed he knew the prosecutrix and accused. Saw both on the day in question. They left the hotel arm-in-arm; they were both drunk. Saw them fall down about 100 yards from his house. They got up and went on together. Did not see them again till he saw the constable bringing them back. On the previous day, witness cashed a cheque for £20 for the accused. Knew very little of the character of prosecutrix, and did not know how she got her living.

    Witness was cross-examined by the Crown Prosecutor at some length on various details.

    William Murphy, hotel keeper at North Bourke, deposed that he personally knew nothing as to the character of prosecutrix. She had the reputation of being of low character, and given to drinking, and he had frequently seen men leaving his house with her—especially drunken men. Was aware she was assisted by the Bourke Benevolent Society; and presumed she did not sustain, in their opinion, the character just referred to. Had only seen accused once before.

    Witness applied to the Court for expenses. His Honor at first told him he must look to the accused. But ultimately (after consultation with the Crown Prosecutor) said that, by virtue of a section in the Act, allowing the Crown to defray the expenses of material witnesses for the defence, it was probable the Crown would grant expenses in his case.

    Counsel addressed the jury.

    His Honor summed up, pointing out that the parties were under the influence of drink at the time, and that this would tend somewhat to invalidate their evidence. There was nothing to show that prosecutrix endeavoured to raise any alarm by screaming. The evidence as a rule did not speak definitely of resistance on her part, and there was little to show—apart from the evidence of Dunley—that she was not to a greater or lesser extent, a consenting party. The evidence of the constable alone went to bear out Dunley’s evidence as to resistance. It was somewhat in favour of the accused that no evidence was given as to bruises on prosecutrix’s body. Whether they took the view that a capital offence was attempted or merely that both parties were behaving in an unusual manner the case was a shocking one, showing the degraded state to which drunken habits reduced men and women. The material contradiction of prosecutrix’s evidence as to the walking arm-in-arm with accused would, he thought, justify the jury in entertaining doubts as to the extent to which she could be believed. The evidence as to the searching of prosecutrix at the lock-up was not conclusive, as it would seem pockets only were searched, and accused’s story as to the 5s was not absolutely disproved. The very admissions on the part of the accused went to operate in favour of the testimony given by himself on his own behalf. His Honor then read the evidence, and invited the jury to consider whether the Crown had made out its case beyond reasonable doubt on any one of the three charges on which it was possible to find accused guilty.

    After twenty minutes’ deliberation the jury returned into court with a verdict of not guilty, and accused was discharged.. His Honor, in conveying the verdict to him, said that upon the evidence he himself thought the jury had come to a right conclusion. At the same time he hoped that the peril that he (Macnamara) had been in under that charge would be a warning to him—a lesson to him never again to take a drop of drink. It was only on the previous day that a jury had felt themselves constrained, despite their feelings to bring in a verdict of guilty against a man who held a very high character. He (Macnamara) had had a very narrow escape. Unless he got the better of his drinking propensities he must not be surprised if he found himself even in greater peril for another offence. He (his Honor) trusted the whole matter would be a very wholesome warning to him.

————

    The continuation of our report will be found on an inside page.

PRISONERS AS WITNESSES.

WHEN the measure providing that prisoners on trial might become competent witnesses in their own behalf passed into law in this colony a few years ago, it was thought that another step in advance had been made towards effecting a more unerring dispensation of justice. Such a measure as that which now appears on our statue books was sought to be introduced by Lord Bramwell in the British Parliament about twelve years ago, but was at the time defeated. Certainly a step was taken in the direction by the English Criminal Law Amendment Act of 1885, which renders persons accused of various offences against women competent, though not compellable, witnesses. Sufficient time has now elapsed to prove the working of our own Act, and to demonstrated whether the system is an aid or an obstacle to the finding of a true verdict. The object of the measure was undoubtedly to ensure to every prisoner in a criminal case that fair play which it has always been the glory of a British Court of Justice to exhibit. But the practical operation of the Act causes one to pause and consider whether it has not given rise to greater evils than those it sought to remedy. First, there is the injury which may accrue to society through the escape of some criminal, who may have the wit to palm off some plausible story on a jury, and by its means secure an acquittal, or at all events a disagreement. If it be said that an intelligent jury is not to be imposed upon, and would regard with grave suspicion the evidence of a prisoner in his own defence, then the very object of the measure in itself would be defeated. A man who was really guilty would feel that his liberty, or perhaps his life, was at stake, and would hardly be likely to give such a truthful statement of the case as would prove inimical to his chances of release. Even an English judge who very strongly advocated the practice of accused persons giving evidence in their own defence in criminal cases makes this admission:—“In cases where life, liberty, and character were at stake I have no doubt contradictions would become more pointed, and the provision of false or misleading evidence more artful and complete. I have, in short, little doubt that if prisoners were made competent witnesses, there would be a considerable increase of perjury.” This admission, coming from one who is an ardent advocate of the system, is very damaging to his argument.

    We have this aspect of the case very aptly illustrated by an incident which occurred in one of our provincial courts of justice only a few weeks ago. A prisoner was told by the presiding judge that he was privileged to enter the witness box, and give evidence in his own defence if he desired to do so. After a moment or two of hesitation the accused replied, “No, your Honor, it’s too great a temptation.” A temptation to what? Evidently to try to “make the worse appear the better part.” But in the case mentioned the accused seems to have had sufficient conscience left to avoid the commission of the greater evil. It may be urged that no innocent man would hesitate to go into the box and tell his own story. It would almost follow as a natural sequence that only those who availed themselves of the privilege would stand a chance of being deemed innocent; and that those who declined to give evidence in their own defence would be assumed to be guilty. And here is made apparent one of the gravest defects of the Act—the prejudicing of a prisoner who might possibly be innocent. There might be many causes influencing such a one not to give evidence. Knowing his own innocence, and trusting to his own integrity, he might feel convinced that nothing but a verdict of acquittal could be recorded. He might have confidence that the evidence as already presented would not have sufficient force to convict him in the minds of an average jury; or, knowing the sublime uncertainty of the law, even if facts were somewhat against him he might hesitate at taking the risk of making bad worse at the hands of a cross-examining Crown Prosecutor. It can hardly be denied that, in spite of these and other causes deciding an accused person not to give evidence in his own behalf, his refusing to do so would be likely to have a most prejudicial effect on the minds of a jury.

 


 

Patrick Kelly, 1901

The Dubbo Liberal and Macquarie Advocate, Sat 14 Dec 1901 2

POLICE COURT.
————
Wednesday, Dec 11.
(Before Mr J Heane, JP.)

PATRICK KELLY, for indecent behaviour, was fined 20s, in default three days’ imprisonment.

~ ~ ~ ~ ~

The Dubbo Liberal and Macquarie Advocate, Wed 1 Jan 1902 3

POLICE COURT.
————
Thursday, Dec 26.
(Before Mr JA Ryan, JP.)

PATRICK KELLY, for using profane language was fined 20s, in default seven days’ imprisonment.

 


 

Patrick Kelly, 1902

The Dubbo Liberal and Macquarie Advocate, Wed 26 Feb 1902 4

POLICE COURT.
————
Monday, February 24.
(Before Mr TCK McKell, PM.)

————
(Tuesday, February 25).
(Before Mr TCK McKell, PM.)

    Patrick Kelly was before the Court on a charge of attempting to commit an unnatural offence, on the previous day.

    Constable McBaron deposed that about 12 o’clock on previous night he saw defendant in the yard of the Carrington Hotel, and there detected him in certain conduct; arrested defendant later and charged him with the offence.

    Defendant cross-examined the witness at some length.

    Reefer Morris and Sergeant Mackenzie also gave evidence.

    Defendant was committed for trial at the Circuit Court to be held at Dubbo in April next.

~ ~ ~ ~ ~

The Dubbo Liberal and Macquarie Advocate, Wed 9 Apr 1902 5

DUBBO CIRCUIT COURT.
———

THE sittings of the Circuit Court were opened at the Court House on Tuesday before his Honor Judge Cohen. The sheriff (Mr CE Maybury), who accompanied his Honor, had for a time a seat on the Bench, as also had Mr TCK McKell, PM. Mr Allen was his Honor’s Associate.

    Mr Walter Edmunds (instructed by Mr Kidston, of the Crown Low Office) was Crown Prosecutor.

    There being no civil cases, the jurors summoned for the civil side were discharged from attendance.

~ ~ ~ ~ ~

Dubbo Dispatch and Wellington Independent, Sat 12 Apr 1902 6

DUBBO ASSIZE COURT.
———
Tuesday, April 8.
(Before His Honor Mr Justice Cohen.)

    Mr C Maybury, Sheriff, accompanied His Honor.

    Mr W Edmunds prosecuted on behalf of the Crown.

INDECENT EXPOSURE.

    George King, a young married man, was arraigned on a charge of wilfully exposing himself in an indecent manner near a public highway at Wellington, on the 7th of February last.

    Mr Kelly, of Wellington, appeared for the accused, who pleaded not guilty.

    The circumstances of the case, as set forth by the Crown Prosecutor and his witnesses, were to the effect that the accused indecently exposed himself near a roadway, along which three school-girls were passing.

    The principal witness against the accused was a girl ten years of age, whose evidence was not corroborated.

    For the defence, it was denied that the accused was at the place at the time the alleged offence was committed.

    Evidence in favour of accused, especially as to character, was given by two witnesses.

    The jury, after a retirement of half an hour, returned with a verdict of not guilty.

    In a second indictment against the same accused he was charged with having wilfully exposed himself in an indecent manner at the same place and on the same date as those set forth in the previous charge.

    He pleaded not guilty, and was again defended by Mr Kelly.

    The chief witness in this case was a girl about twelve years of age.

    For the defence, the evidence was similar to that in the first case.

    The jury, after a very brief retirement, returned a verdict of not guilty.

BESTIALITY.

    Patrick Kelly was presented on a charge of bestiality [with a pony mare] . The circumstances of the case are unfit for publication. Accused, who was undefended, pleaded not guilty.

    The jury returned a verdict of guilty, adding an opinion that the offence was committed whilst accused was under the influence of drink.

    His Honor said he did not think the jury could have reasonably arrived at any other verdict than guilty, unless they believed that the two principal witnesses (Constable McBaron and Reefer Morris) had sworn falsely. With regard to the jury’s opinion that the crime, which was of an abominable nature, was committed whilst the accused was under the influence of drink, he pointed out that drunkenness was no excuse for such an offence. Addressing accused, his Honor pointed out to him that he had been previously several times convicted of other, though minor, offences, and said that for the horrible crime of which he had been now found guilty he was liable to penal servitude for 5 years. The sentence of the Court would be 18 months’ imprisonment in Dubbo Gaol.

~ ~ ~ ~ ~

The Dubbo Liberal and Macquarie Advocate, Sat 12 Apr 1902 7

DUBBO CIRCUIT COURT.
———
(Before His Honor Mr Justice Cohen).
Tuesday, April 8.

Wednesday, April 9.

ATTEMPTED BESTIALITY.

    Patrick Kelly was before the Court on a charge of attempting to commit the offence of bestiality. The facts of the case have already been dealt with.
    Constable McBaronReefer Morris (late groom at Carrington Hotel), and Sergeant Mackenzie gave evidence on behalf of the Crown.
    For the defence,
    The prisoner, Patrick Kelly, entered the box and gave evidence on his own behalf.
    His Honor summed up, and the jury, after a short retirement, brought in a verdict of guilty, adding that they thought that prisoner was under the influence of drink at the time. His Honor expressed concurrence in the finding, and passed a sentence of imprisonment for eighteen months.
    The district gaols having been declared delivered, the Court sittings terminated.

————

    Mr H Munckton was, on the ground of illness, excused from attendance as a juror.

~ ~ ~ ~ ~


Patrick Kelly, Gaol photo sheet 8

SRNSW: NRS2202, [3/6002], Dubbo Gaol photographic description book, 1897-1920, No. 204, p. 24, R5096.


Gaol Photo Sheet - 
Transcribed Details

No. 204
Dubbo

Date when Portrait was taken: 8-5-1902

Name: Patrick Kelly
(aka Patrick McNamara)

Native place: Ireland

Year of birth: 1850

Arrived       Ship:
in Colony }   Year: Not known

Trade or occupation
previous to conviction  } Gardener

Religion: R. C.

Education, degree of: R & W

Height: 5' 4"

Weight     On committal: 135
in lbs     } On discharge:

Colour of hair: Grey

Colour of eyes: Blue


Marks or special features: 2 deep indentations on left cheek from an abscess

(No. of previous Portrait ... ) 

CONVICTIONS

Where and When Offence. Sentence

Dubbo CC

Narromine PC

Dubbo PC

ditto

ditto

ditto

Dubbo CC

20

  1

11

26

  2

  2

  9

  4

11

12

12

  1

  1

  4

1898

1901

1901

1901

1902

1902

1902

Rape

Idle & disorderly

Indecent Behaviour

Profane Language

Drunk

Profane Language

Attempted Bestiality

Acquitted

(?) or 3 days HL

20/- or 3 days C

20/- or 7 days C

5/- or 2 days HL

20/- or (?) Days

18 months

 


1     The Dubbo Liberal and Macquarie Advocate, Sat 23 Apr 1898, pp. 4, 2. Emphasis added.

2     The Dubbo Liberal and Macquarie Advocate, Sat 14 Dec 1901, p. 2.

3     The Dubbo Liberal and Macquarie Advocate, Wed 1 Jan 1902, p. 4.

4     The Dubbo Liberal and Macquarie Advocate, Wed 26 Feb 1902, p. 2. Emphasis added.

5     The Dubbo Liberal and Macquarie Advocate, Wed 9 Apr 1902, p. 2.

6     Dubbo Dispatch and Wellington Independent, Sat 12 Apr 1902, p. 4. Emphasis added.

7     The Dubbo Liberal and Macquarie Advocate, Sat 12 Apr 1902, p. 4. Emphasis added.

8     SRNSW: NRS2202, [3/6002], Dubbo Gaol photographic description book, 1897-1920, No. 204, p. 24, R5096.