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SUPREME COURT-CRIMINAL

SITTINGS.

{Before the Chief Justice and a Jury.)

WEDNESDAY, APRIL 13. The Court sat at 10 a.m.

Attempted Rape.

George Cooke was charged with attempt- ing to commit a rape upon one, Elizabeth Peacock, on the 22nd of January.

The Attorney General prosecuted, and the defendant, who pleaded not guilty, was de- fended by. Mr. R.S. Haynes.

The Attorney-General, in opening the case to the jury; said that Cooke lived in the vicinity of York, ; and a family named Pea- cock also lived there. Elizabeth Peacock  

lived with her parents and brothers and

sister, and was somewhere about eighteen years of age. On the 22nd of January, she

left her home at twenty-five minutes to six in the evening, to go to the house of a man named Levi Ingram, for the purpose of getting the mail. Cooke's people lived very close to Peacock's and lngram's, the latter only a short distance from Peacock's. There was a track from Peacock's to Ingram's, and as Miss Peacock went along this track, she saw George Cooke and his brother Henry, who was   with him, the two then chopping trees close

alongside the track. She went past them-   they did aot speak-and on to Ingram's place,

and got the mail, which consisted of letters and papers, at six o'clock. Five minutes after, she left Ingram's, and returned along   the track with the letters and papers, to- wards her own house. As she was passing along the track where she saw the Cooke's,  

she saw George Cooke. He caught hold of her by the dress. She told him to let her go, which he refused to do, making an indecent remark to her. He then tripped her up. The learned counsel having described the alleged assault, which was of a very gross nature, said the girl shouted for Mrs. Ingram, who would tell them she heard a shriek shortly after Elizabeth Peacock left her.   The girl made a very sturdy resistance, and during her struggles, Cooke said to her, "If you don't shut up, I'll smother. you." Ulti- mately, she managed to get away from him. She went some distance towards Mrs Ingram's, but did not go the whole way, as  

she changed her mind. Seeing Cooke go away, she returned, picked up her letters, papers and hat, and went home. Upon her   arrival home, she presented herself to her mother and brother, and after-   wards to her father, all of whom saw her, and would speak as to the state she was in. Her jacket was torn about the shoulders, and her skirt was rent. There were bruises on her, and her lips and nose were scratched and bleeding. Her hair was dishevelled and full of leaves and sand. Mrs. Ingram, the next morning, went to the spot where the struggle took place, and there picked up an American stamp, which she had noticed on one of the papers she had given to the girl the previous day. Some hairpins   belonging to the girl were also found on the spot. After the girl returned home on the evening of the occurrence, her mother took her up at once to the Cooke's house, and the mother complained to one of the Misses Cooke of the treatment her daughter had received from George. The girl also accused Cooke, who was then at home, and he in effect denied that he was the man. Miss Peacock would tell them it was George Cooke, that she had known him for years, and that she had no doubt of his being the man who assaulted her. Some attempt   was made in the Police Court to show that Cooke was not there. As he had said, when   Mrs. and Miss. Peacock got to the Cookes', they found George busying himself about the horses. The girl's statement was that when Cooke rose up, he walked in the direction of his own home. He (the learned counsel) would put evidence in the box to show that Cooke came home, that he was out in this direction cutting wood, and was seen by two witnesses to go towards his home shortly be- fore Mrs. and Miss Peacock went there. Having concluded his address, the Attorney General called

The prosecutrix, who was put in the box, and gave evidence in support of the learned  

counsel's opening statement. ~ When she passed the brothers on her way to Ingram's, Henry was chopping wood, and George was looking at her. Amongst the mails she re-   ceived from Mrs. Ingram were an American paper and a Western Mail. When her mother charged George Cooke with the assault, he said, "I have been here half an hour bedding the horses." Witness said, " You know it is you, George." After tea, witness went a second time to Cooke's, with her father.   She had not removed the marks of the strug- gle. They saw Cooke's father in the yard,     and her father called his attention to witness's  

condition.

Cross-examined : Witness said the track was a beaten one over hard country,; it was gravelly where the struggle took place.

She was on friendly terms with the Cookes, who lived about half a mile from the place. She passed the two brothers about a dozen paces. She was positive about the times she had spoken of. The struggle took place 400 yards from Mrs. Ingram's. She knew   what a salmon gum tree was. Defendant had been hidden behind a gum tree. She never   told defendant's father he was standing behind a salmon gum. George Pearson, a schoolmaster, who lived at Quellington, and was 70 years of age, once rushed at her   from behind a tree. She gave evidence against him concerning this in a case of libel, but he, notwithstanding that, retained his position at Quellington. She never com- plained to Mrs. Cooke-except about Pearson on that one occasion- when he wrote on her slate he would meet her at the fence that went to Cooke's, and she then asked Mrs. Cooke to accompany her past the fence. Witness was a pupil of Pearson's at the time. She did not complain to Mrs. Cooke about Pearson rushing at her from behind the tree. When she got away from Cooke, she was afraid to go homewards at first, as he was going in that direction. It took her nearly half an hour to walk home, and the sun was just going down when she arrived. She cried all the way home. When her mother went up to Cooke's with her, witness did not stand behind her mother laughing. If Jane Cooke said she did, Jane Cooke was wrong, very wrong indeed. It was no laughing matter. Constable Bird came out on the Saturday week following (30th January), and asked if there were any complaints, and she said there were none. Witness informed Sergeant O'Connell on the 1st of February, and laid an information the following day.  

Re-examined: Witness did not report the matter to Bird because she did not want to get Cooke into trouble. Her mother also

saw Bird.  

Mary Peacock, mother of the last witness, stated that when her daughter returned home on the afternoon of the alleged occur- rence, she was crying. Her description of   the girl's appearance corroborated that given by the prosecutrix. When they went up to   Cooke's, old Cooke was not there, but Jane Cooke was. After hearing their complaint, Jane Cooke went to look for her brother, and they followed. Witness asked him when they   got to him if he was not ashamed to treat her daughter in that way. He asked when. She replied, "About half-an hour ago." He said

he had not, and Elizabeth said, " You know it was you, George," and he replied that he had been bedding the horses. The reason witness did not report the matter to Bird when he called, was that she had known the defendant since his birth and did not want to get him into trouble, and besides his parents were very spiteful, and had been very spiteful to her since this case. She had know the Cookes at their present place for the last twenty-six years. She lived about three quarters of a mile from Ingram's, and Cooke's was a little further from Ingram's.

Cross-examined: After the arrest of Cooke, she went to Mr. Spry's because Cooke sent her. She told him Cooke sent her. Mr. Spry did not refuse to see her. Mr. Spry told her to go back and not to mind. She never told Mr.-Spry or anyone else that she would not have laid the information had it not been for Sergeant O'Connell threaten-  

ing to lock them all up for compounding a felony. The only thing the sergeant had said to her was that it was very wrong of her not to report it before. Her daughter had com- plained to her of Pearson over two years ago. Her daughter was then at school at Pearson's. Her daughter complained twice-when she said that Mrs. Cooke had to go home with her, and when she said Pearson rushed at her from behind a tree. When witness   accused Cooke, he did not deny it in words, but gave her to understand by his language that he was not there. She never told any- one that Sergeant O'Connell had said she could be punished for compounding a felony. No one said such a thing to her. A police- man, whose name she could not recollect did tell her she was liable to be had down in this Court for not reporting it. She did not state in the York Police Court that she was told in York by a policeman she would be com- pounding a felony if she did not lay an information. If it appeared on the deposi- tions that she did, it was wrong. She did not understand the meaning of the term.

Frederick Peacock, father of the prose- cutrix, gave some corroborative evidence as to the girl's appearance on the afternoon of the 22nd of January, and to his visit with her to the Cooke's in the evening, when they went to see defendant's father. Witness said, " Come and see the state my daughter is in ; George Cooke has done it." Cooke did not seem to take much notice of it.

Cross-examined: Cooke, sen., said, "It's all a parcel of lies." Witness and his daughter came away then. Witness thought it was a nasty matter, altogether, and that George Cooke ought to have had some punishment for it. He did not lay the information because he did not like to get the defendant into serious trouble.

James Peacock, a brother of the prosecu- trix, gave corroborative evidence as to the appearance of his sister when she came home after the alleged assault, and told witness and his mother together what had taken place. She gave them to understand that defendant had tried to commit a rape. The next afternoon the girl complained of her back being sore, and witness's mother showed him two bruises on his sister's shoulders. When his sister came home the previous day, the sun was just about going down. The bruises were greenish, and about the size of a two-shilling piece.

Nothing of interest was elicited in cross

examination.

Daniel O'Connell, sergeant of police stationed at York, deposed that he was at Quellington on the 1st of February, and re- ceived information there of this assault. In consequence of this he took certain measure- ments with a tape of the distances between the various localities, including the scene of the alleged assault, which was pointed out to him by Elizabeth Peacock. From the spot to Ingram's was 475 yards ; from Peacock's to Ingram's, along the track 1364 yards. The spot was about the same distance from Cooke's as it was from Peacock's.

Cross-examined: Constable Bird accom- panied him to Peacock's, and was he thought present part of the time. Witness saw Elizabeth and her father. Witness did not tell the girl either in Bird's presence or out of it that if she did not come into York and lay an information, she would be prosecuted for compounding a felony. The soil at the spot was clayey and gravelly. The country was jam and gum. The tree the girl pointed out to him as being that from behind which the defendant had come was about a foot thick.

Mary Ann Ingram deposed she was the wife of Levi Ingram, and lived about half a mile from Cooke's and three-quarters of a mile from Peacock's. The mail came to her place every Friday fortnight. Witness saw Elizabeth Peacock at her place about a quarter to six on the afternoon in question. Witness gave her two newspapers and four letters. One paper was an American paper stamped with an American stamp. The girl did not stay long, as she said her mother was poorly. She asked witness the time, and she looked and told her it was five minutes past six. About five or six minutes after the girl left, witness heard a loud scream or holloa. The following morning between six and seven o'clock, Mrs. Peacock and her daughter came over. The girl's lips were torn, and the skin was off her lips and nose in several places. In consequence of what the girl said, witness accompanied her, and her mother to a certain spot on the right hand side of the track, pointed out by the girl. The ground there was very much dis- turbed, and there were tracks of a man's and woman's feet "intermixed." Witness picked up a hairpin and an American stamp, the latter of which resembled that on the paper she gave Elizabeth the previous evening. The distance from witness's house was 400 yards or 500 yards.

Cross-examined : The girl remained at her house about twenty minutes talking. The girl, in coming over the next morning, with her mother, would pass by the same place. She was not on bad terms with the Cookes, and had never, in consequence of Cooke having given evidence against her brother-in law in a case, said she would make it warm for the Cookes. It was not hard soil, but

soft.

Billy Junya, aboriginal native, deposed that he was working at Cooke's in January last, and that one evening that month he saw the prosecutrix and her mother come up. George Cooke was then shifting chaff, at the wheat heap. The day before that, he thought, witness saw George Cooke working at grubbing trees near the track from Peacock's, but he did not think he saw him on the day the girl and her mother came up. George Cooke went out that way that day, and came home just after sundown, a little while before the girl and her mother came. Defendant came across the field, from the north where the track lay. Witness was in the yard until they came up, and George Cooke was also there at the chaff the whole time. Witness did not see him bed down the horses. They get home about together.

Cross-examined : This happened a week before he left. The first person who spoke to him about it was the sergeant, after he left   Cooke's. The horses were bedded down when witness got home.

Re-examined : Henry Cooke was taking the horses to water when witness got home that evening.

Charles Farmer deposed that he was working for Cooke at Quellington last January, and on the 22nd of that month saw Mrs. Peacock and her daughter come up that evening. George Cooke that day had been grubbing behind the school-house, half-a mile from the house and the school. Witness

did not know the way to Ingram's or Peacock's. Witness was sitting down at the school-house, and saw Cooke come home from the direction in which he was grubbing, about half-an-hour before sundown. The time would be about seven o'clock. Witness did not see Henry Cooke at home when George came home, although he might have been. George bedded the horses down as soon as he came home-before the women came. This was the case for the Crown.  

Mr. Haynes, having opened the defence to the jury, called

Frederick Cooke, the father of the prisoner, who deposed that about nine o'clock on the evening in question, he returned from York with his team. Peacock and his daughter came up while witness was in the yard. Peacock said, " See what your son George  

has been doing with my daughter." Witness said, " What has he been doing ?" Peacock said, "Pulling her about." The girl who

was present had not spoken. Witnees said, " When and where ?" Peacock said, " When she was coming from Ingram's with the mail." Witness asked, " When ?" and the girl said, " Just about sundown." Witness asked them to come inside, and they did. The girl said that George had pulled her about, and that he had been standing behind a big salmon-gum tree. His daughter Jane, who was present, said it was a lie, as the boy was home at the time. Witness examined the girl and saw some straw in her hair, but no grass or leaves. Her dress was a bit torn and her face was a little scratched. He thought nothing of the rents on her clothes, as she was often ragged and untidy. Witness said, " You are a girl in the habit of telling lies, and I can't believe a word you say." He had known the girl from childhood, and she bore the character of a liar. It was not the first lie she had told by a score. Witness told her that if he caught his son interfering with her he would break his back;. She then said it was his son, and his daughter said it was not. She and her father then went away, and said nothing more to him. He heard nothing more about it till his son was arrested by Sergeant O'Connell. There was no salmon-gum within eight chains of the spot where the alleged assault took place; it was York gum and jam. Mrs. Ingram had been unfriendly to him since he gave evidence against her brother-in-law in a case, and had threatened him that if " they" could get a chance against him " they" would have him.

Cross-examined: All he knew of Mrs. Ingram's statement being wrong was where she said the ground was sandy, as it was clayey and gravelly. Two people scuffling might kick up the ground and make the

track. There was no straw at the track. He conld not say how the straw got in the girl's hair. He looked at her by candle-light. He made no remark about the

straw.

The Attorney-General: You told her if it   was your son, you would break his back ? Witness: I did.

The Attorney-General : Then you evidently thought some one had done it ?

Witness : Well, I could not say.

His Honour : Did she look as though she had been pulled about ?

Witness : No, except for the straw, and that her hair was rumpled.

The Attorney-General: Were there not some scratches on her face ?

Witness : There was a scratch on her face. It was a little fresh, and there was an

older one.

The Attorney General : Did you not think someone had pulled her about ?

Witness said he did, but he could not tell by whom.

The Attorney General : Why did you say, if "I found it was my son I would break his

back,"

Witness said it was because the girl said

it was his son. The track from Peacock's

was through his land. They had been grubbing two months before that, and on that day were burning. There was a good deal of difference between a jam and a salmon-gum, and it was not likely that a girl would mistake one for the other. He was startled when he heard the girl's charge, and was annoyed, but quite calm enough to know that she said salmon

gum.

Charles Bird deposed that in January last he was a policeman, and was now doing nothing. He left the force on the 7th inst. On the 13th of January last he visited the Peacock's. They made no report to him. He afterwards went out with Sergeant O'Con- nell, and saw Peacock and the girl. The sergeant asked for Mrs. Peacock. Peacock said she had gone to Northam. The sergeant took the girl's statement. Witness heard the sergeant tell them they would have to bring the case on.

Mr. Haynes : What else did he say? Witness hesitated.

Mr. Haynes : Come, out with it, Bird.

Witness : He said they would be liable for compounding a felony.

At this stage, Mr. Haynes asked that Frederick Cooke might be re-called, in order that he might give evidence of a remark which, the learned counsel said he was in- structed, the prosecutrix had made to the witness as he was leaving the Court, a few minutes previously, namely, that he had committed upon her the same offence that she alleged his son had committed.

His Honour asked what that could possi- bly have to do with the present case.

Mr. Haynes said it showed that the girl was in the habit of making these statements.

His Honour said it had nothing to do with the present charge, and refused to let the

witness be re-called.

Henry Cooke deposed that he was a brother of the defendant, and had been grubbing on the day in question about a hundred yards from the track. He left off a little better than half-an-hour before sundown. His   brother and he were working together, and knocked off at the same time. They went down towards the yard, and parted about 20 yards from the house. Witness went across the fields to get the horses to take them to water, and his brother went to the stables to clean them and sift the chaff in readiness for witness's return. It took about ten minutes to walk to where they parted company. His brother was not distant from him after five o'clock, and he could have seen anything that his brother did. Witness never saw the girl that afternoon before sundown. He saw Mrs. Peacock and the girl come up in the evening.

Cross-examined: Sometimes they were nearer the track than 100 yards. They always walked home together, and always went up within 20 yards of the house, and always

separated there, and he always went. to get the horses, and George always went to sift the chaff and bed the horses down. That went on all the year round. Witness had seen the girl go to Ingram's for the mail, but not on that day.

The Attorney General : What sort of a girl is she? (Pause). Well, what sort of a girl is she ?

Mr. Haynes: He doesn't know what you mean-whether she's black or white.

Witness (gravely) : Oh, she's white. (Laughter).

The Attorney General: What sort of a character does she bear ?

Witness : A bad character.

The Attorney General : How long.

Witness said for about two years. He always heard people talking about her. He knew nothing of her himself. There had

been a good deal of talking about her since she laid the complaint against his brother. She generally went for the mail about half an-hour before sundown. If the ground was scuffled up it must have been by the horses and cattle rolling.

The -Attorney-General : Do your horses and cattle wear hairpins ? (Laughter.)

Witness said they did not. (Laughter.) When coming across the field he could be seen for forty chains from the house. The school-room was about 20 yards from the house. There were about 40 chains cleared round the house.

Mary Jane Cooke deposed that she was a sister of the defendant, and lived with her father. On the evening in question she received two letters from Ingram's, and while she was reading them she saw her two brothers, George and Henry, coming through the field from where they had been at work. They separated, George going to the stables, and Henry coming towards her, and going into the field for the horses. She saw George pass the school and speak to Farmer. This was about half an hour before sunset. Witness went into the house, and afterwards to the stables, where she found George bedding the horses down. A good while afterwards, about dark, Mrs. Peacock and her daughter came. Mrs. Peacock called to witness and asked her to look at her daughter, as George had been knocking her about. Witness said it could not be George, for he had been at home for better than half an hour before sundown. There was no difference in the girl's clothing from its usual appearance. It had a rent in each shoulder, but she was never tidy. Witness called to George, and as he did not hear, they three went down. Mrs. Peacock accused George, who said he had not seen her coming back from Ingram's, but had seen her going, just before they left off work. The girl was then standing behind her mother laughing. They then went away, and after- wards the girl and her father came.

Cross-examined : Witness noticed, on the first occasion, that there was a sore which was not fresh, and one that was fresh on the girl's upper lip. There was no mark on her   nose. There was a little straw in the back of her hair. The only thing that would lead her to think the girl had been pulled about was the straw in her hair, which was a little rougher than usual. It must have been wheat-straw. The girl offered to take witness and show her the place, but she re- fused. Witness never told George he ought to be ashamed of himself. She did not know what the girl laughed at.

This concluded the evidence for the defence, and the Court at this stage ad- journed till 10 a.m. the following day.

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