KELBURN RAID CASE

Dominion, Volume 11, Issue 257, 18 July 1918, Page 7

KELBURN RAID CASE

a RESERVED JUDGMENT f \N ll GRIFFIN AND OLSEN RELEASED it a APPEALS ALLOWED n A t o In tho Supremo Court yesterday His 0 Honour Mr. Justice Hosking delivered ( ] his reserved judgment in the appeal *< brought by -Mary Uriflin against the do- g eision of Mr. S. 1:1. M'Onrttiy, S M., wliu 0 it, will be remembered convicted and v sentenced hor. to twelve months' refor- j, mativo treatment on a charge of keeping a house of ill-feme. In his judgment llis Honour said that the appeal was on both law and iact. "By the regulations," continued Hi' Honour, ""house of ill-fame' means any premises used for the purpose of ' prostitution whether by one woman or more -than one. Prostitution, as stated ~ bv tho .Magistrate, is defined by Mur- , 1-iiv's Oxford dictionary as the praciice • of promiscuous uncliastity lor hire, i his c definition is substantially that lot- ' lowed bv tlio Court of Criminal Appeal \ in Kngland in n recent decision. To ; establish prostitution there must lie not j only a practice of oromiscuous or i:>- J dUeriniinato uncliastity, but it must be j shown to have been for hire or gain." J After referring to the evidence aivon ' before His Honour and the evidence 1 givon beforo the Magistrate, His Hon- 1 our went on to say: "Tho position, how- 1 ever, is that this Court has before it < materials on tho subject of the appel- • lants' means going to the question of I whether an inference of hire or gain ought to- be drawn that were not sub- ' milted .o the Magistrate. I consider 1 thot lliggins v. itarsack (17, N.Z.L.H.. i 2-2) contains the guide which in'these 1 circumstances I ought to follow, namely, I I hat the appeal is a retrial. Hint the i decision must be independent of tlio i ' Magistrate's finding and that a criminal < charge, as this is, must be 'proved be- < yonil reasonable doubt,' as the phrase i goes. 1 A Most Serious Charge. "The charge in this ease is one of tho ' most serious that can be made against a woman, and apart from any rule of law, one would naturally look for evi- 1 de'neo of a convincing character in support of it. The, poinc to which counsel stated the appeal was specially directed 1 was that, assuming the evidence as to. the conduct of the appellant, and of tlio other women to establish that promiscuous or indiscriminate uncliastity was practised in the house, there was no direct evidence that it was lor hire Hi at the acts'of uncliastity were committed. There being no direct oviilene.o to tlio point, the prosecution contends, OS it must, that upon the. whole of the circumstances I he inference of hire iii inevitable oil a reasonable consideration of those circumstances; aud it is the circumstances which are found to bo proved as facts by direct evidenco, and not matters which, though given in evidence, arc not established, upon which one must proceed. In I ho present caso not only is it denied that the inference must be drawn from the circumstances, assuming fliem to be proved, but lac most essential circumstances themselves are denied. ■Evidence Must bo Sufficient. "Assuming the, evidence of ihc circumstances to be established, then, in order lo sustain a conviction, or a verdict of guilty, as a jury's finding is de> c'/ribed. the evidence must be sufficient lo negative nr exclude any reasonable hypothesis consistent with the acts oi uncliastity having been neither indiscriminate nor fov hire. AYilli reierenc.* to the point of hire, the Magistrate says: 'finch evidence (that is direct evidence) of money passing must bo difficult to procure. There was, however, a chain of circumstances which strongly suggests that such money did pass, and I so find.' J. understand this, that he meant that the probability of money passing wits so strong that to his mind it negatived any other hypothesis. In support of this probability ho slates his conclusions as to the income and expenditure of the appellant, Airs. Griffin, aud does not accept the evidence given as lo the monthly allowance made by her father. It was, of course, essential to discuss that aspect of the surrounding circumstances, because if'n woman has sufficient means to inn comfortably, and is not shown to spend beyond thoso means, or to liavi; accumulated money or effects beyond what her income allows, the intereiice that hire was the purpose of her michaslity rwiuires muro cogent evidence to support it than if those conditions were not present. In ordinary charges of prostitution the inference of hire is realty the only ono that can be drawn if ic is not shown that I ho woman has any olher sufficient means of living up to the standard she does. Beyond the discussion of Mrs. Griffin's private resources the Magistrate does not discuss the chain of circumstances to which he refers, and so this Court is without the advantage of knowing whether his t.on«iusion would have bee.i the same if the additional materials placed beforo this Court on that point had been beforo him." Justice for Mis; Elliott. Referring lo tho evidence so far as it involved Miss Marion Elliott, His Honour said: ['She was dismissed from the charge against her before the Magistrate on the ground that 'such acts of immorality as slio has committed cannot reasonably be held to amount to actively assisting in the keeping or management of the. house, and that sho was neither tho keeper nor manager thereof.' Although so dismissed, the'eonduet to which she was said to have been party was brought out in detail as part of tlie case for the prosecution on this appeal, as it was before the Magistrate, so as to raise the implication that slio was one of the women who had been submitting themselves for hire at this house. .The evidence of the three medical men wlio examined her was given orally before this Court, aud her own deposition was put in. In justice to- her,- notwithstanding I lie assumption of tho circumstances which I lie Court is invited to adopt, I desirn to state that in my judgment a conclusion that she was guilty of sexual intercourse would he wholly -unjustified by the evidence, notwithstanding the evidence of . the constables. . . . The evidence of the Hire;', medical men is unanimous as to their deduction from their examination that she was virgo intucta. Superadded to that is tho evidenco that slio was not only willing, but anxious to be examined. For the girl to submit thus to an examination, which if she had been guilty would be highly likely, if not certain, to lead to condemnation, is evidence of the strougest kind to show that she spoke truly on her oath when she denied intercourse with men " After reviewing the evidence of tho constables, His Honour continued: "In my judgment, ..upon Ihc evidence rightly viewed, tho case against Miss Elliott wholly broko down on its merits, and not merely technically, as I lie Magistrate would, seem to inioly. "In dealing with the case oil tho assumption or busis that unehastity was practised in the house, it would not bo fair to do so without some qualifications. There is in the first place the breakdown of the identification of. Miss Elliott with the acts of intercourse deposed lo against her. Then thej;e is the inciaeuc doposed to by a lady who was temporarily living next door. She says that on going honjo about 10 or 10.30 p.m. on February 19 the blind of tho appellant's bedroom (the window is a easement window) flapped buck. Sho turned and saw through the window the appellant in bed with a man. The witness says she did not stop, but just turned round end looked. I have not tho least doubt of the perfect honesty of this witness, but such a momentary observation (without evidence as to whether the room was lighted beyond what tho moon or tho street lamp would do) can hardly bo relied upon as a firm basis lo act upon. A complaint had already gone in from the house she was living in. Tricklebank's Evidence, "Then with regard to the incidents deposed to by Constable Tricklebunk n? having occurred on January 31, that hesavratßp.nl. with lighls oniiitho defendant's bedroom a man lying in bed between tlio appellant nnd Miss Olson, and, on February 2, that ho saw Irwo j civilians in her bedroom at 10 p.m., and

that from shortly niter Unit until 11.45 nt least lio lieunl men ami a woman talk- - ini?, there is a difficulty ill tlio _ way owing io lite tact that on January -o Dr. Sliaud was cillicit in antl iound tile defendant very ill, that, lie saw her again on January 23 and 31 and February 5 nt her house, and on each occasion she was ill hed, which lie had ordered her to keen to. He says he docs not think U Ehc was in a lit comlitiou to have sexual w intercourse during that period. Of course, B it is possible, as the doctor says, for the si ixc*ls mentioned to lisivc occiiri'o.l as stated. An observation must also i» T made with regard to the incidents in April, and that is that there is no identification of the men seen m tho house or com ins or going 1))' name except in ono case, that of G •. on April o. A j distinction is made bv 'military olneers, y 'ships' officers,' 'civilians,' and .a ?er- , scant-major, 1 but one is left in the dailc ns to how often the same men came and wont. This is very important Iroiu tlie point of view of promiscuity. Evening Entertainments. "Reference must also 1)0 made to the class of evenings from time to tune held nt the house. It appears that wlnlo appellant and Hiss Olsen were living at Civile Ouay both of tlieni were acriuaintcd* with several military officers, who from time to lime passed through camp, Miwi Olsen, who plays the piano and sings, is described as a good entertainer. She was tlies encased to ail absent ofli* eev who bait made her an allotment. These moil used to visit at Clyde Quay. Military men for the most, part were I lib visitors at the house in Upland Load horn tho time the defendant ami M>,3 Oiscn went there. The two Mi» Lfhotls (one of I hem in particular) and another yo;mg woman were puEcnt. At times civilians and other acnuaiiitancci) were there, as on tho hatuidav night of tlio raid when a "soldier and his wife who ha . been there before, and a, inaiuea woman, who'had .with her a young woman pissing through Wei ington, were present by inntatioy. . Nothing io said i Uainst tho respectability of theso peo- i pie. These gatherings seem to have taken place regularly on Saturdays, al- | though' t'liov occurred on other-days, ine men at limes lieer i\nd vnisfcy, • or both, with them. The usual form ot euterUiiumcnt appears to luue been music, occasionally dancing, mostly cliorus ringing and vjigtiiuc. i-hero was not room, it is sa.id, for more than two couples to dancc ut a time. Ihe neighbour:; de.-ci'iocd these occftMons as noisy. With eoldiers for tho lime Irec from camp niul in good ripivits. such gather- ( ings might bo readily belioved to be so. No trouble neoms to have been taken by ; : closing windows to prevent annoyance to : the neighbours. Bold liberties ol speech appear to have been taken on occasion. It was oil the occasion of three evenings iD April at which men and one or more additional women were present that several implicating incidents deposed to occurred. • • • Windows Always Open, "A. further matter for consideration is the apparent absence of secrecy with which Ihe doings of tho house took place. As Constable C'attanadi remarked in bis evidence, 'The peculiar thing About the house was that the windows always seemed to be open/ It was this openness which enabled the constables to bear and see so much as they did. Observations were mailo through the window of the children's room, the door of which, Constable Tricklcbauk says, 'was always right open,' of what was going on in Miss Olson's room when tho door of that room was open. The two children before tlie.v went to bed were, as tho constable states, in the .sitting-room with the visitor.-', and the hoy sometimes went to bed tui late as a quarter to 11. Some of the incidents of a man and a woman being in a bedroom look place while the I children were up. Miss Olsen and Lieutenant M . "I also point out Hint while Hiss Olsen was living at Upland ltoad and for Koine little time beiore tho evidence of sonic of the witnesses whoso depositions were read, as well as her own evidence, is that Lieutenant Jl— was anxious to marry her, and was a frequent visitor to the house, being described by one witness us ono of thoiio most often there. As one witness puts it she was keeping company with him. More than ono witness supports this. She sayn herself that as .she had not heard from Lieutenant It — since last October she encouraged Jf—and had resolved to marry him, and would have done so had not the boat let! sooner than expected. A letter from him written after flailing couched in terms of affection to which no exception could bo taken, expresses his fear that she may not wait for him until ho eome.s buck. She visited Mustcrion in April so as to bo near the camp where ho jvns and returned with him lo Wellington on April 21), arriving about 7.30 p.m. lie is sworn by .Miss I'. to have lieeil at the hou.so that evening, live or six other people boinj; there. On that evening, tiie evidence for Ihe prosecution is that she went into her bedroom with a ship's ollicer anil remained throe until 9 o'clock. Letters to the Appellant, "With regard lo the letters to the appellant and „Mis- Olson produced before tho Magistrate, some half-dozen or so were put in evidence before this Court, .t'lvceplin:: two from Miss Olson, all were from .-oldiers. Owing lo their dales, ono iv-.' two lying over a. year old, nolle of them, except one from Miss Olk'D, could have related to matters during tho period Ihe appellant was at Upland Road, and although the retaining of such letters went io Ihe credit of the witnesses their con ton Is could not he used as proof of any statements tho writers chose to mak<J in them." Financial Resources. His Honour then went exhaustively into Ihe financial resources of Mrs. ! Iritfiu and Miss Olsen, and said: "Tho position upon the evidence, therefore, in my-judgment, is that each of the women had a regular income suHicient to live comfortably without seeking money by means of prostitution, and that there is no evidence from which a conclusion can bo drawn thai they hud! monoy or elfccts acquired at Upland Ko.ul beyond what that income might allow." His Honour's Decision. "Now. having regard to the absence of any nroved necessity to earn n living by" practising uncha.iiily for hire; having regard also to Ihe absence of many indicia, usually present in evidence to establish the conclusion on a charge of this nalure; having regard, further, to the evidenco as lo what took placo in the house and to the observations which I liavo made upon tho evidei'.'.'e in tho earlier part of niv judgment, 1" have to ask myself whether the only reasonable inference that can be drawn is that uncliastitv was committed for hire—that is, whether such an inference can be drawn bevoiid reasonable doubt. I have to decide this according to my own reason, not as a matter of law, but. as a matter ot i'ac.t, nnd in my judgment the eireumBtances taken altogether are reasonably Rwceplible of other infiu'ences than that une.hiistitv. if it was promiscuous, was practised for hire in the house in question—in other words, that I hey are not capable of supporting an interence to tho contrary bevon-.l reasonable doubt, it follows,' therefore, that the appeal must be allowed and the appellant disohaiged ''On the'application of Mr. O'Learv, the appeal of Miss Olsen was a lowed, conpi'qucntly, and she was ordered lo bo from custody. At the hearing Mr. P S. K. Macassey appeared for the Crown, Mr. .U • Ja<*6oii for lire. Clrilhn, and Mi. H. • Ofery for Miss Olsen.