SERIOUS CASE.

Taranaki Daily News, 15 February 1922, Page 3

SERIOUS CASE.

MARRIED MAN CHARGED. VERDICT OF GUILTY. JURY’S PLEA FOR THE WIFE. A young man of twenty-one, Henry lan Douglas Mackay, was before the Supreme Court, New Plymouth, yesterday, on a charge of carnally knowing a girl under the age of sixteen years. The offence was alleged to have taken place at Stratford towards the end of last year, and there were five counts," to which Mackay pleaded not guilty. He was defended by Mr. L. M. Moss (Stratford), and the case was conducted by the Crown Prosecutor (Mr. C. H. Weston), with him Mr. A. Coleman (Stratford).

The following jury was empanelled: Messrs. A. R. Knight, Chas. Bond, L. Jackson, M. J. Armstrong, L. S. McKoy, S. Oliver, C. McLeod, E. Medway, W. B. Kivell. AJr. Armstrong was chosen foreman.

Before the case was opened, the Crown Prosecutor asked if His Honor considered the case one for which the Court should be cleared. Mr. Justice Chapman did not think that this action was necessary.

Outlining the case, the Crown Prosecutor opened by dealing with the legal aspect. It was obvious, he said, that young girls must be protected until they were sixteen. Until she reached the required age her consent had nothing whatever to do with the matter. The only defence open to the accused was whether he had reasonable cause to believe that she was over the age of sixteen.

The facts were that Mackay was a married man living on the Pembroke Road, Stratford, near to the family of which the girl in question was one. Accused had resided there for some 2J years. The girl would be sixteen in March next, and the offences were alleged to have occurred in September last, at the end of October and at the beginning of November. A MATTER OF CLOTHES. There would be no difficulty, of course, counsel said, in coming to the conclusion that the girl was a consenting party. It was not until November that the affair was discovered. One night they were awakened by some cats outside. At the time the girl had a cold, and the mother, thinking the daughter might have been coughing, went into the next room. Mackay attempted to disguise his identity by putting his head under the bedclothes. He resisted attempts to pull them off, but the mother eventually succeeded, and '■then Mackay put his hands over his face. She was not now able to identify accused by his features, but she noticed that he was wearing a brown waistcoat, and the daughter would also swear that accused was the man who was in the room. After this event the news of the occurrence became knWwn to other people on the road, and it was freely talked about. Accused was subsequently arrested. He was asked by the police to show his clothing. He produced a vest colored blue, and said this was the only one he had. If the jury were satisfied with the evidence regarding the brown vest it was clear Mackay had lied to the police. The girl saw accused about a week after they were discovered, and talked the matter over with him. Mackay, it was stated, said he was going to burn his clothes, and if this was true, counsel remarked, it showed that he recognised the danger of the clothes being identified, and the importance of having them destroyed.

It might be argued, the Crown Prosecutor continued, that accused had reasonable cause to believe that the girl was over 16. Against this was the fact that the girl left school as soon as she was 14, and, according to her statement, she told Mackay at that that she left because she was 14. Tn conversation with the girl once Mackay said he supposed if he was caught he would get six or seven years. Apparently he knew quite we’ll the risk he was running. The evidence of the girl and her parents was on the lines of counsel’s address. THE CROSS-EXAMINATION. In reply to cross-examination, the principal witness said she had never gone to a dance without escort. Her brother always went with her. Coming home she had often been with Mackay, but she was not alone with anyone else. The night of the oecurence at King Edward Park she had gone to town with her brother. He had left her to go fur a shave and told her to wait for him. She met Mackay in the main street. She had never vorn long skirts, and had not put her hair up. She thought she told Mackay that the teacher wanted her to go back to school until she was fourteen. That would be after the beginning of March. She had guessed the date of the visit to King Edward Park, but she was sure the event actually took place. She was certain of the other dates. On the occasions when Mackay used to come to the house he used to give her warning from outside the window as her bed was next to it. She was positive Mackay was wearing a brown vest the night they were discovered. At the time she refused to give the name of the man, because Mackay made her promise not to do so. She first mentioned that he was the man on the next day when she went down to see Dr. Doris Gordon. She did not wish to tell the name, but the doctor .aid that Mackay did not think she was worth stopping and standing up for and she should think the same about himi Witness then gave the name. She never had any relations with any other man besides Mackay. EVIDENCE OF WITNESSES.

Dr. Doris C. Gordon, of Stratford, gave evidence as to having made an examination of the girl on November 4, the day after one of the alleged offences had occurred. Ralph D. McDonald, farmer, of Pembroke Road, Stratford, who formerly employed Mackay, related a conversation he had with accused shortly after hearing of the charge. He urged Mackay to tell his wife of the occurrence and not to allow her to get the nevys from a roundabout source. Mackay ’ replied that the time was not ready to tell his wife and that there were others in the case. Details of another statement made by Mackay were given by Frank R. Newbold, employee at the Pembroke dairy factory. He said he met accused in the town and asked him about the rumor concerning Mackay and the girl. He replied, “Yes, that is right. I supgoie a man ought to be strung up tor

it. It’s no use people thinking lam going to run away. lam going to take all that is coming to me.” Sergt. Dale, Stratford, gave evidence as to making a visit to Mackay’s house and effecting his arrest. THE DEFENCE. Mr. Moss intimated that he did not propose to call any evidence for the defence, but would rest the case on the weakness of the story brought by the prosecution. He remarked that in cases of the sort it was a most difficult matter for the accused person to find any evidence which would bear on the circumstances. It was not proposed to set up any defence of alibi. During the whole time that these offences were alleged to have occurred accused was living in the neighborhood of the girl’s hous*e, and this was one of the strongest points the Crown had brought. The jury would have to be satisfied, however, that tue accused man was the man who had intercourse with the girl. There were one or two elements of the case, which if taken away, made the argument for the Crcxwn very much weaker. One of these was that Mackay, unfortunately for himself, lived close to the girl’s house. Counsel stressed the fact that every accusation was based on the girl’s direct statement in the box, or on what she h; d told someone else. The jury would have to consider whether they could convict a man on the unsupported evidence of the girl. It had to be remembered that she was a consenting party and that the man syas there at her z invitation. Counsel quoted a statement of Mr. Justice Edwards during a similar case, the judge on that occasion having referred to the fact that there was a grave difficulty of false charges being made by the girl with whose consent the offence had been committed. The very fact that the offence had been committed with her consent made it very probable that a girl would endeavor to conceal the offender. Counsel characterised the evidence of identification brought by the Crown as “lamentably weak,” and attacked the credibility of the statement that accused visited the girl’s room on four different nights. He doubted whether this could have been possible without detection, seeing that her parents occupied the next room. Even if the question of identification was got over there was the matter of age. The girl said she had told accused that she had to stay $t school until she was fourteen, but she could not recollect when or where the statement was made, nor any of the circumstances surrounding it. JUDGE’S SUMMING UP. Summing up, His Honor pointed out that the fact of the girl giving her consent was no defence t The defence was open that an accused had reasonable cause to believe that the girl was over the age of 16, but it did not apply to cases where the identity of' the man was in question. Dealing with the question of identification, His Honor said that in the course of the case no other man had been mentioned as being in any way on intimate terms with the girl. In a case of the kind a jurylooked for corroboration if it could be obtained, but there was no law requiring corroboration. In other words, if it was thought- that the girl was a truthful witness in the long detailed narrative no more was required. It was necessary, of course, that they should consider the evidence most carefully to see whether it was inconsistent. It would, of course, be a comparatively easy thing to tell a story of one man which would be perfectly true of another, and that was why prudent juries looked for corroboration. To upset an elaborate concoction it was necessary to find out how early the charge was made. In this case, however, the accused’s name was mentioned to the doctor the day after the last alleged offence took place. JURY ASK A QUESTION.

The jury retired at 6.40 p.m. After a retirement of 2J Jjours the jury returned to consult His Honor on a point about the defence. They asked: “Was the point raised by the defence that the accused did not have reason to know the girl’s age? If not, can we consider the point?”

In reply His Honor said: “I can’t say that the defence distinctly raised that question. Counsel for the defence may find himself in such case in a somewhat awkward position, because if he raises the point he does so only on the assumption that accused has had intercourse with the girl. He naturally does not care to make that assumpXpn when criticising the evidence of the Crown as being insufficient to prove the principal fact. “The first thing that the Crown has to satisfy you is that the act was committed by accused. If the law says that such-and-such a thing shall be the defence the usual view of that is that it is for the accused in some way to claim that as his defence. Therefore the duty of the jury is to consider whether that defence is made out. The law is that it shall be sufficient defence if it is made to appear to the jury that the accused had reasonable cause to believe that the girl was over the age of sixteen. The question is: Has that been, made to appear to the jury? How are you to determine that? Only by reference to the evidence given by one side only. The girl’s evidence is the only evidence before you in this.” VERDICT OF GUILTY. After a further ten minutes’ retirement the jury came to an agreement. Their verdict was one of guilty, with a plea for leniency on behalf of accused’s wife and child. Mr. Moss intimated that he desired to address His Honbr on the question of sentence, and asked if decision would be deferred till this morning. His Honor said he would defer passing of sentence tsl this morning. In thanking the jury for their attendance he said they had been kept somewhat late, but no doubt had given the case very careful attention, hnd he approved of their verdict.