Queanbeyan Age, Wed 30 Nov 1898 1
Tuesday, November 29th.
(Before Mr Maitland, PM, Messrs Wright, Gale, Blackall and Beatty, JsP.)
Archibald McDonald was charged that he did on the 20th inst, within view of a certain highway, near Williamdale [sic–Williamsdale], expose himself for a considerable time and thus commit indecency.
Sergeant Willis applied that the case be tried with closed doors, as the evidence was not fit for the public ears.
Mr H O’Brien applied that the two cases be heard together.
Sergeant Willis objected
Mr H O’Brien held that the information was wrongly laid. The special Act overuled [sic] all common law. He submitted that the Sergeant was wrong in attempting to proceed at common law, as in 1893 a special statute was based, and if the police were proceeding under the Criminal Amendment Act they had adopted a wrong form of information. He had never known any case for years in which a case of this kind had been brought up for committal. He submitted that the information was fatal to the case going on any further.
The Bench rulled [sic] that the information was correct, and took a note of Mr O’Brien’s objection.
The Bench asked the public to leave the court, which they did.
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Queanbeyan Age, Sat 3 Dec 1898 2
Tuesday, November 29th.
(Before Mr Maitland, PM, Messrs Wright, Gale, Blackall and Beatty, JsP.)
Archibald McDonald, charged with two offences on same day, and near same places, was defended by Mr H O’Brien.
Sergeant Willis deposed: I produce two plans of the places where these offences took place. The first one shows the spot of the offence viewed by Ann Rebecca and May Blunt, and the second one shows the place of offence viewed by Wilhemina [sic] Ellen Mayo, Elizabeth Alice Mayo, Ada Mayo, and Ernest Mayo. The distance from the main road is 173 yards. It is also very close to the platform yard which runs down from the good-shed. The red spot on the second plan where the second offence is said to have taken place is 153 yards from the road, and is also near the platform. A person at either spot could be plainly seen from the main road and also from the platform yard. On 24th inst I served defendant with a summons for each of these cases. He said he did not know what was meant. He also said, “Some of the people have a down on me,” and he was by himself that day. I asked him if he saw Mrs Mayo on that day, and he said “I believe I did.”
To Mr O’Brien: There are no remains of a stake fence between the line and the spot on the plan, nor between the road and the spot.
Ann Rebecca Bunt deposed: On last Sunday week I was going to Mrs Mayo’s along the railway, my sister was with me. I passed the Rob Roy platform. When I was on the platform I saw defendant standing in the woolshed, at the place where the fireplace had been taken out. He was looking towards me. He went towards the back. I went along the line. Defendant came from the woolshed towards the railway fence. We were about 15 yards distant. He kept looking at us. (Witness then described the exposure). We ran down the line, and he came after us on horseback, calling out bad names. I won’t say he meant us, he may have had a dog with him. I could see the main road clearly from where the offence was committed.
Mr O’Brien submitted the witness to a severe cross examination.
Mabel May Bunt, a girl of 8, was not sworn, but her statement was taken. It was a corroboration of her sisters.
In the second case, Wilhelmina Ellen Mayo, wife of John Mayo, of Rob Roy, deposed: I know defendant. He lives at Rob Roy. On last Sunday week I was up at the platform yards. Mrs Bunt and her daughters and one of her young sons, Elizabeth Mayo, Ada Mayo, Ernest Mayo, and some children were with us. Mrs Bunt and her family left us after we passed the platform. I saw McDonald at the gate, putting sheep through. We were going towards home. When we were about 6 or 7 yards away, he stopped between the red gates, and committed the offence. One could see the Cooma road from where this happened quite plain. It was between six and seven o’clock in the evening when this occurred.
To Mr O’Brien: He did the offence deliberately. He had plenty of cover had he desired it. McDonald and us have not been good friends. A person on the Cooma road could have seen accused when he was exposed. I laid the information in both the charges before the Court.
Elizabeth Alice Mayo, daughter of the last witness, corroborated the evidence given by her mother.
To Mr O’Brien: I will swear a person of the road could have seen the spot where defendant stopped. I have looked when passing along the road. The noise he made was not a groan. I have never known such a noise to be caused by pain.
Ada Mayo, aged 13, gave similar evidence.
Ernest Mayo, aged 10, gave no fresh evidence.
Mr O’Brien submitted that there was no case made out.
The Bench decided that a prima facie case had been made out of indecency.
Mr O’Brien said he had several witnesses to call, but defendant reserved his defence.
McDonald was then committed to take his trial at the Goulburn Sessions Court to be held on January 31, 1899.
Defendant was admitted to bail, self in £20 in each case, and two sureties of£20 or one of £40.
Bail was obtained.
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The Goulburn Herald, Wed 1 Feb 1899 3
GOULBURN QUARTER SESSIONS
COMMENCED yesterday before his Honor Judge Fitzhardinge. Mr Belcher represented the sheriff. Mr Armstrong prosecuted for the crown. The other members of the legal profession present were Messrs Rose (barrister), Betts, O’Brien, Howard, Sendall, Thomas, McCarthy, Meyer, and Crick (solicitors).
ALLEGED INDECENCY AT ROB ROY.
Archibald McDonald (on bail) was charged with two indecent exposures in a public place at Rob Roy, Queanbeyan district, on 20th November.
The charge being one of misdemeanor [sic], defendant was allowed a seat out of the dock. He pleaded not guilty, and was defended by Mr Rose, instructed by Mr O’Brien. Eight jurors were challenged.
Accused lives within 200 yards of Rob Roy platform on the Cooma railway line and near the main road. He owns a woolshed and trucking yards, which are closer to the line. On the afternoon of Sunday 20th November, the crown case alleged that prisoner indecently exposed himself in view of Mrs Bunt and her two daughters walking on the railway line; and that some hours after he repeated the offence in view of Mrs Mayo and her family.
Some of the witnesses admitted under cross-examination that they would not have seen the extreme offence if they had not looked back after passing accused. They were questioned by Mr Rose about having ill-feeling towards McDonald for closing a school. This they denied.
Defendant [Archibald McDonald] went into the box and denied the offence. He was ill with diarrhoea but took the precaution to go behind a paling fence five feet high and behind a tree. He did not see any of the Bunts, that day till very late in the evening some hours after the time they alleged the offence occurred. He had a disagreement with the elder Bunts and Mayos about his closing the school, and this caused ill-will between them, and he was of the opinion that this prosecution was the result of it.
Mrs McDonald, wife of the accused, Colin McDonald, his father, and Kenneth McIntyre gave evidence to prisoner’s illness and that he was away from the railway line at the time the first offence was alleged to have occurred, and that it was impossible for the Mayos to see prisoner where he was when they passed.
A letter was read from Mr A Chapman, MP, stating that defendant took a prominent part in social events and was well esteemed.
William Pike, mayor of Queanbeyan, spoke in high terms of defendant’s character.
Mr Rose addressed the jury, commenting strongly on the action of Sergeant Willis of Queanbeyan in not having the case dealt with in the police court. He commented that under the circumstances of defendant’s illness he was justified in acting as he did in such a lonely place, and maintained that the evidence showed it unreasonable to believe that the offence was committed as alleged.
His Honor summed up, commending Sergeant Willis for giving heed to the complaints made to him and putting the law in motion but it was a great pity, in his opinion, that the case had not been dealt with at Queanbeyan police court. For a sergeant of the police to press for a committal was wrong and was at least officious on his part. It was his duty to place the evidence before the bench and allow them to determine what action should be taken. In sending the case to Goulburn the bench had shirked their responsibility and cast it upon the jury. There might be a reason for the course taken; it may have been done with the view of having courts of quarter-sessions restored to Queanbeyan, and thinking that he (his Honor) would recommend it. He then reviewed the evidence, pointing out that it was for the jury to decide on which side laid the balance of testimony.
The jury retired at 4.45pm, and after half-an-hour’s absence returned a verdict of not guilty, and defendant was discharged.
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Goulburn Evening Penny Post, Thu 2 Feb 1899 4
GOULBURN QUARTER SESSIONS
BEFORE his Honor Judge Fitzhardinge.
Wednesday, February 1.
His Honor took his seat at 9.30.
CHARGE OF INDECENT EXPOSURE.
Archibald McDonald (on bail) was charged with having, at Rob Roy, near Queanbeyan, on the 20th November last, indecently exposed himself. He pleaded not guilty, and was defended by Mr T Rose, MP, instructed by Mr O’Brien. The information contained four counts, and referred to two different offences.
Accused challenged eight jurymen. As the charge was a misdemeanour, he was allowed to sit outside the dock.
Sergeant Willis, of Queanbeyan, deposed that he made the plans produced of the localities where it was alleged the offences had been committed. Rob Roy was a small railway platform about 14 miles from Queanbeyan, and accused had a wool shed and yards close to the railway line.
To Mr Rose: The spots marked on the plans were pointed out to me by others and I know nothing personally of the offences; Mrs Mayo told me she was not on speaking terms with accused; I heard an application being made in the Police Court on behalf of accused to have the case dealt with summarily and I objected to it because I did not think it was a case that should be dealt with summarily; that was my only reason and the Bench decided that it was not a case for them to deal with; one of th female witnesses in the Police Court offered to show the Court the position in which accused was, but the Police-Magistrate said it was not necessary; I did not put a paling fence, which runs near the spots in question, in the plan because I did not think it necessary; a tree close handy is not shown either; it is not a fact the everything against accused is shown and everything in his favour left out.
Emily Bunt deposed that she lived about a mile from accused’s house at Rob Roy; her mother was a gatekeeper and her father a fettler and they lived on the railway line; between 2 and 3 o’clock on Sunday afternoon, the 20th November, she was going with her sister to see Mrs Mayo, who lived on the other side of the platform; they went along the line and passed the Rob Roy platform and accused’s house; they saw accused in an opening of his woolshed and he came in the direction they were going; he came within 15 or 20 yards of them; she believed he saw them as he was looking at them; he sat down in full view of them and exposed himself; they ran away and he followed them on horseback and called them insulting names.
Mabel Bunt, aged 8 years, corroborated her sister’s statement. Both witnesses were cross-examined at length by Mr Rose.
Mrs Mayo, wife of John Mayo, boundary rider employed by Mr Campbell, deposed that on 20th November, about 6 o’clock in the evening, she went for a walk along the railway line towards Rob Roy platform; Mrs Bunt and two of her daughters and four of her own children were with her; they parted with the Bunts at the platform and witness and her children turned back home; they saw accused near the platform yarding some sheep; he was walking in front of them and passed through a gate; at this time they were only a few yards behind him; he only went partly through the gate and he then sat down and exposed himself; she was certain he saw them as he looked back two or three times; he passed an insulting remark and made a noise like a wild beast; witness and the children were very much frightened by accused’s conduct.
To Mr Rose: Accused had the school at Rob Roy closed and my children have now to walk 2½ miles instead of three quarters of a mile as formerly; I did not say that accused was too mean to allow the woolshed to be used as a school, and that he would lose by it.
Two of Mrs Mayo’s daughters gave corroborative evidence.
Accused [Archibald McDonald] deposed that he was a grazier; on the day in question he was suffering from diarrhoea and vomiting, and had been from Saturday morning; he did not see the Misses Bunt on the first occasion as he was just near the railway station at that time; on all occasions he was behind obstacles and could not be seen; on the second occasion he heard the women laughing and he got up; the witnesses had shown a good deal of ill-feeling towards him because he had the school at Rob Roy closed; the noise came from the vomiting.
To the Crown-Prosecutor: The Bunts and Mayos have been enemies of mine for the last two years and they have told people that they hoped I would get into some trouble or other; I am of opinion that is the reason why they have sworn to the charges against me.
Mrs McDonald, wife of accused, Colin McDonald, Kenneth McIntyre, and John McIntyre also gave evidence as to accused’s state of health.
Evidence as to character was given by Mr William White, Mayor of Queanbeyan, and a written testimony from Mr A Chapman, MP, was handed in.
Mr Rose, in opening his address to the jury, commented on the action of Sergeant Willis in leaving out certain obstacles in the plans produced, and in refusing to have the case dealt with summarily at Queanbeyan. He referred to the high character of the accused, and made a strong appeal on his behalf.
His Honor, in summing up, said that when the sergeant drew the plans he had only heard the statements of Miss Bunt and Mrs Mayo, and had no means of knowing that it would be material that the position of any trees or stumps or other fences should be placed in the plans. The sergeant had very properly, being a man of experience, listened to the story told to him by those making the complaints, and, in accordance with that story, he put the criminal law in motion and drew the plans to elucidate the evidence. His Honor referred to the evidence of character given in accused’s favour, and said that no character could be higher. That was a matter to be taken seriously into consideration; but on the other hand, so far as the evidence went, the witnesses called on behalf of the Crown were equally of good character. His Honor also said that it seemed a pity that the case should ever have come before a jury. Certainly, in his opinion, it seemed to be pre-eminently a case that should have been dealt with on the spot by the presiding magistrates, and he could not perceive why it had not been dealt with. If the policeman present in court had persuaded the magistrates not to deal with it, all he could say was that he had acted officiously and altogether beyond his duties. It was his duty to bring the case before the magistrates, and it was their duty to deal with it in a summary way if they thought fit, or send it on to a higher court. There might be something underlying the case altogether. It might be that the sergeant wished to magnify the importance of the district by having a case sent to the Quarter Sessions; but if that were the object, in the hope of getting him to report favourably on the re-establishment of the Quarter Sessions at Queanbeyan, he could say that it would fail. Of course, the jury had nothing to do with that matter, but it was a pity the case had not been dealt with at once, especially when the accused wished it.
After about an hour’s retirement the jury returned with a verdict of not guilty, and accused was discharged.
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The Scrutineer and Berrima District Press, Sat 4 Feb 1899 5
GOULBURN QUARTER SESSIONS.
The Quarter Sessions commenced before Judge Fitzhardinge. Mr J Armstrong was Crown Prosecutor.
Archibald McDonald pleaded not guilty to a charge of indecent exposure at Rob Roy, near Queanbeyan. He was defended by Mr Rose, and acquitted.
1 Queanbeyan Age, Wed 30 Nov 1898, p. 2. Emphasis added.
2 Queanbeyan Age, Sat 3 Dec 1898, p. 2. Emphasis added.
3 The Goulburn Herald, Wed 1 Feb 1899, p. 2.
4 Goulburn Evening Penny Post, Thu 2 Feb 1899, p. 4.
5 The Scrutineer and Berrima District Press, Sat 4 Feb 1899, p. 2.