The National Advocate, Fri 8 Feb 1929 1
ACCUSED AT DISADVANTAGE
JUDGE THOMSON SEVERE
WILL SEE JUSTICE DONE
Severe comments on the manner in which a case against a prisoner charged with a serious offence was being conducted were made at the Bathurst Quarter Sessions last evening by Judge Thomson. It came out that the accused, who was a returned soldier 2 suffering from hardness of hearing as a result of the war, had been unable to secure legal aid, and that witnesses whom he had subpoenaed in his defence had not put in an appearance. Judge Thomson made it clear that he would make representations with a view to having an investigation into the case, and declared that while he was on the Bench he would see that every prisoner who came before him would receive the justice to which he was entitled.
The missing witnesses who were called by the accused, were Drs Salter and Davidson, and Sister Faulkiner, all of Blayney.
His Honor: Were these subpoenas served?
The Crown Prosecutor (Mr BV Stacy) said he could not say why the witnesses were not present.
His Honor: I cannot understand why these witnesses are not here, as they have been subpoenaed.
The Crown Prosecutor: I have a copy of the subpoena here.
His Honor: They have accepted service. This man has applied for legal aid, and why people do not come here when they are subpoenaed I do not know. An investigation should be made into these things. Prisoners in gaol should be given every possible assistance in preparing their defence.
His Honor was told that the subpoenas had been served. He said it was utterly futile serving subpoenas if witnesses were not bound to attend. “We cannot get them here,” he said, “and the State is put to the expense of serving the subpoenas.”
The Crown Prosecutor made a remark which was inaudible in the press box.
His Honor intimated that he would make representation to the Department of Justice to see that things were conducted properly. “I think it is the duty of the Crown to see that these witnesses are brought here and that those who apply for legal aid should get it.”
The Crown Prosecutor said that the matter did not rest with him.
His Honor said that before a person was arraigned he should be given all the assistance possible.
The Crown Prosecutor said that if the Justice Department did not consider the case one for legal aid, he could do nothing further in the matter. The accused’s application for legal aid had been inquired into, and according to the Under Secretary for Justice, they did not consider it was a case of that type.
His Honor: That conveys nothing to me. What are the cases in which legal aid are given? All that I am in justice bound to do is to see that justice is administered in this man’s case, and I am determined to see that it is so administered while I am on the Bench. Everyone should receive justice in New South Wales, and if this man wishes for an adjournment of his case I shall grant it.
Accused: Can you give me legal aid?
His Honor: I cannot do that for you; I do not administer the Justice Department.
Accused: I have been three months waiting and I cannot wait any longer. I want to call Dr Salter and Dr Davidson.
Sgt Rhall: He has been called but he is not present.
His Honor then had Sgt Ryan, of Blayney brought into the witness box, and sharply questioned him.
“Did you serve these subpoenas”? asked His Honor.
Sgt Ryan: I did personally to each of them. He added that he understood the witnesses were not bound to attend.
His Honor: What is the use of serving subpoenas if the witnesses are not forced to attend. You knew his expenses are not paid by the Crown.
Sgt Ryan pointed out that the doctors would find it difficult to secure locum tenens, and they had asked him for expenses, and he could not guarantee them their expenses.
His Honor: Then why was not the accused informed that these witnesses would not be here? You are in charge of this case.
Sgt Ryan: I was in charge at the lower court.
His Honor: You are still assisting in the prosecution here, and preparing the evidence.
Sgt Ryan: I had no definite information, and the depositions—
His Honor: I am not talking about that. Why did you not warn him that the witnesses were not here?
Sgt Ryan said he knew they were not about the court all day, and added that the case was not entirely in his hands.
His Honor: He should have been informed that the case was not ready to go on. I do not understand conduct of that sort. In future I hope you will give all the assistance you can to accused persons to enable them to get their witnesses here. If the Crown will not do it, accused persons are entitled to have someone to act for them.
Another witness, Mr Pat Driscoll, who it was stated had also been subpoenaed likewise failed to answer to his name.
Early in the proceedings, the accused said that he was hard of hearing and suffered from bad memory, the effects of the war. He had been unable to obtain bail, and had been refused his depositions taken at the lower court. He had applied to the Governor of Bathurst Gaol for legal aid and had been refused. He had subpoenaed two medical witnesses, but probably they would not appear. “I cannot locate my witnesses,” he added, and I ask your Honor to consider these facts.”
His Honor: When was he committed?
The Crown Prosecutor: On December 13.
His Honor: Did you ask the Gaol Authorities to get witnesses for you?
Accused said he could not hear, and His Honor repeated the question.
“Yes sir,” replied accused. He added that he had subpoenaed two doctors.
His Honor: Have they subpoenaed them for you?
The accused, Albert Coleman, a young man, was charged with having indecently assaulted a boy [Francis Arthur Barnes, 11] at Blayney. The jury acquitted him after a brief retirement.
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Lithgow Mercury, Mon 11 Feb 1929 3
At Quarter Sessions.
Soon after pleading not guilty to a charge of indecently assaulting a male person at Blayney, at the Bathurst quarter sessions, Albert Coleman made a brief address to the Judge and jury.
He told them that he was hard of hearing which was a disadvantage; he could not afford to obtain the depositions; he was refused legal aid; could not afford to bring his witnesses here; two of his witnesses could not be found anyway; his memory was not too good as a result of the effects of the war, and he had been unable to obtain bail.
For all these reasons he asked his Honor to watch his interests carefully.
Before commencing the hearing, his Honor asked that all women and young people should leave the precincts of the court as, no doubt, there would be certain unsavoury details. The majority of the spectators followed the example let by the members of the legal profession and finally only a handful were left.
THE IDEAL DETECTIVE.
Sergeant Ryan’s evidence, which opened the hearing, read like a chapter from Cenan Doyle’s “Sherlock Holmes.” He told how he had visited the scene of the alleged crime. He found footprints, two predominating above all others. One was obviously a boy’s while the other had definite peculiarities, which he described with much detail.
Leaving the scene, he, with a constable, took the boy, and he promptly recognised his assailant as the man before the court. Witness then took much pains to reconstruct the footprints in plaster, having first satisfied himself that the only pair of boots in the accused’s possession coincided with them in every detail.
Both the worn boots and the plaster casts were produced for the benefit of the jury.
Then the sergeant went on to draw an elaborate plan of the scene showing its position in regard to an house in the vicinity. The plan made the spot appear a lonely one.
As a result of his investigations, including an inspection by Dr Davidson, who, however, was not called as a witness in the lower court, he charged the accused as above.
In a statement by the accused, it was said that he had consumed two bottles of methylated spirits, and had taken drugs to effect a cure. On this account he was not certain of what happened on the day of the alleged offence.
The boy’s mother told the story of the boy’s return at tea time, graphically describing his mental condition.
Then followed the boy’s story. Frequently passing his tongue over his dry lips, the little lad, only 11 years old, told what he alleged had happened to him on the evening in question. Before commencing he acknowledged a complete understanding of the nature of an oath.
The next witness was Sister Falconer, of Blayney, but call as he would, Sergeant Rhall got no answer. Her depositions from the lower court were admitted.
Then Dr Davidson’s name was called, and again no answer. Dr Salter, too, was called without result.
ABSENCE OF WITNESSES.
With much emphasis His Honor commented that if persons accepted subpoenas they should attend. “Isn’‘t it utter futility if we are going to the trouble to issue subpoenas, and then not have witnesses attend?” he asked. “I shall have to make representations on this matter.”
Further inquiries were made,, and Sergeant Ryan was recalled to the witness box.
Turning to Mr Stacy His Honor said, “You must help me with this matter.”
Mr Stacy: I am doing my best, but I don’t arrange to serve these subpoenas.
His Honor: No, I know you don’t. But prisoners in gaol should be given every assistance in preparing their cases. I think it is the duty of the Crown to see that witnesses are brought here, and that those who apply for legal aid should get it.
Mr Stacy: The Department states that this is not the class of case for legal aid.
“That conveys nothing to me,” continued Judge Thompson [sic]. “What are the cases in which legal aid is given? My business is to see justice done, and if this man wants the case remanded, I’ll see that he gets his request.”
The accused asked the Judge if he could give him legal aid, but His Honor replied he had no power.
Again Dr Slater’s name was called, but the effort brought no reply.
“Of course, he’s not here,” commented the Judge. “No effort has been made to get him here.”
Recalling Sergeant Ryan, the Judge subjected him to a rapid fire of questions. The Sergeant explained that he had served the subpoenas, but the witnesses had indicated that they could not attend without a guarantee of their expenses.
“Why was not the accused told his witnesses would not be here?” Asked Judge Thomson. “Why was I not told that the case was not ready?”
Eventually the case was handed over to the jury after a summing up by His Honor.
After a brief retirement a verdict of not guilty was returned.
Coleman was released.
[The above newspaper] Printed and published by Ernest James Taylor, at the office of Western Newspapers, Ltd 111 Main-street, Lithgow, in the State of New South Wales.
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The Moree Gwydir Examiner and General Advertiser, Thu 14 Feb 1929 4
CRITICISED BY JUDGE.
When Albert Coleman was charged with a serious offence at the Bathurst Quarter Sessions, Judge Thompson criticised the methods of the police in preparing the case against Coleman.
The Judge was told that prisoner, who is a returned soldier, had been unable to secure legal aid, and that the witnesses whom he had subpoenaed in his defence had not turned up.
His Honor said he intended to make recommendations to have an investigation conducted into the case.
Coleman was acquitted.
1 The National Advocate, Fri 8 Feb 1929, p. 5. Emphasis in original and added.
3 Lithgow Mercury, (NSW), Mon 11 Feb 1929, p. 6. Emphasis in original and added.
4 The Moree Gwydir Examiner and General Advertiser, Thu 14 Feb 1929, p. 3.