Report from The Wingham Chronicle and Manning River Observer on involving brothers Herb & Alf O'Neill.

Wingham Police Court.

A Licensing Case.

(Before Mr. Potts, P.M.)

John Symthe, Edward Dwyer senr., and Edward Dwyer junr., were charged with being on the premises of the Australian Hotel, Wingham, during prohibited hours.

Herbert Thomas O'Neill, licensee, was charged that on the 4th day of April, 1917, he permitted the above defendants to be on the premises.

The two cases were heard together.

Plea not guilty.

Mr. D. Cowan appeared for the defence, and Sergeant Moore conducted the prosecution.

Constable Caldwell deposed: About 9 p.m. on 4th April I went into the Australian Hotel, Wingham; in a room known as “the sewing or telephone room,” I saw there the three drover defendants, Herbert O’Neill (the licensee) and Danny McDonell; I said to O’Neill “What are these men doing here?” He said “McDonell and I are doing business with our drovers.” I said “What are those glasses doing on the table?” He replied “The two drovers (Dwyer and Smythe) and myself had a drink.” I said “Did McDonell have a drink?” He replied “N.” He said “He’s only drinking soft stuff - the last one he had tonight was a soft one.” I said “What time was that?” He said “Before 6.” I said “Are the drovers staying here?” He said “No.” I said “Why did you serve them?” He said they were travellers. I said “They are not travellers, and they never travelled 10 miles.” McDonell said “They only came from the reserve three miles out and they are going back to-night.” I said to Dwyer senr., “Is that correct?” He “replied “Yes.” I said to O’Neill “These men are not travellers.” He Said “They are in my employ, and I consider I am entitled to serve them.” He said “I was doing business with these men.“ I said “What was the business?” He replied “I had to pay them for working for me.” I said “If you paid them they are not in your employ.” He said “The agreement is that these men are to take the cattle from a reserve to McDonell’s place at Cundle Plains to-morrow.” One of the Dwyer’s (Dwyer, junr.) said he did not know he was offending, and he did not know anything about the liquor law. Smythe said he was sorry if he did anything wrong.

To Sergeant Moore: When McDonell said they were going back to the reserve, Dwyer said that was correct. Could not say for a positive fact when the cattle came on to the reserve; was out that direction next morning; saw Dwyer junr.; there were five glasses on the table at the hotel; Mr. O’Neill said he had to pay the men off for bringing the cattle from the Macleay here.

To Mr. Cowan: Did not notice the men in town early on the 4th; did not know they were staying at the hotel all day; did not know they had their meals there, nor that they had a room there; never made inquiries to find out whether they had; knew they were employed to bring cattle over from the Macleay for O’Neill and McDonell to Wingham saleyards; and that they had completed their work that morning; that was a sale day in Wingham; just before tea McDonell spoke to witness on the street, in front of the hotel; he told me he had some business to do at the hotel, and asked if he would be right in going on to the premises; I said “Certainly”; that was about 5 o’clock; could not say whether the other men stayed there for tea; McDonell got back to the hotel some time before 7; knew that because Constable Read and myself were in the hotel; am quite certain of that; spoke to O’Neill and McDonell; there were others there; they were in the old dining room; that was at 7 o’clock; I looked it my watch; will positively swear it was 7 o’clock: could not say whether Constable Read had it down as 7 o’clock too; Read saw my report to the Superintendent I suppose; he also had to report on it; there were some glasses in the dining room, and I asked McDonell on that occasion if he had had a drink; he told me “No;” in the sowing room I asked O’Neill if McDonell had had a drink; if he did anything wrong I would catch him; it was not in trying to get at McDonell that I worried O’Neill and the others: he told me he had to do business there; Read and myself had not been waiting outside - we had been down to Harry Cross’; did not notice, when we came across the street, Dwyer junr. come outside and take Smythe in; Read and I went straight across and into the hotel; had a look in the other rooms and then went on to the sewing room; saw O’Neill with a cheque; he showed me the cheque, and McDonell showed me a heap of accounts he had been going through; there were some glasses on the table then; made some notes at the time; I put down Edward Dwyer, senr., near Kempsey; Edward Dwyer, junr., near Kempsey, or Crown St, Surrey Hills ; John Symthe, near Kempsey; Danny McDonell and Herbert O’Neill; I also put down the date - 4th April, 1917, 9 p.m.; that was all; might have missed some of the conversation that took place in the telephone room; was in the room about 10 minutes; would not swear to it; O’Neill did not say he had finished with the accounts; he said he was paying them; when 1 went into the room first I don’t remember saying “Isn’t this a bit strong” or “This is a bit over the odds.” Would not swear I did not say it. I might have said it; Did not straight away say to McDonell “Did you have a drink?” Did not say at the start to O’Neill “Did you serve McDonell with a drink.” McDonell did not say to me “Don’t you think I could get a drink at home without coming here after hours to get it.” Deny that I said to O’Neill “Did you serve these other men with a drink?” O’Neill did not reply “No, but they care travellers, and I think I’m entitled to serve them;” did say to O’Neill “You’ve been making it a bit strong - you served Taylor the Comboyne car driver the night after that case in Wingham;” Read said “It’s a funny thing - there are five of you here, and there are five glasses.” The glasses were generally small ones; do not know whisky glasses from tommy-dod beer glasses; they were either whisky or tommy-dod beer ones; I never saw the two younger defendants before that night; do not know what brand of spiritual fault they had; did not ask them what they had that night.

To Sergeant Moore: O’Neill said McDonell was drinking soft stuff.

Constable Read deposed: I am a Constable of Police, stationed at Tinonee; was in Wingham on the 4th April ; about 9 o’clock on the night of the 4th I saw the defendants in the telephone room at the Australian Hotel; Constable Caldwell said to O’Neill “Are you doing business with these men?” O’Neill said “Yes.” Constable Caldwell said “Did you serve these men with drink?” Mr. O’Neill said “Not all of them - the two Dwyers, Smythe, and myself had a drink.” I said to Mr. O’Neill “It’s a funny thing there are five glasses on the table - has anyone else been in the room?” He replied “No – we’ve been here all the time doing business. Constable Caldwell said “Do you mean to say that McDonell’s been here all night and had no drink?” Mr. O’Neill said “ Yes.” Constable Caldwell said “McDonell likes a drink;” Mr. O’Neill said “Yes, but he’s only drinking soft stuff, and the last one he had was before 6 o’clock.” Constable Caldwell said “What about the drovers - are they travellers?” Mr. O’Neill said “Yes.” Constable Caldwell asked him where they came from; he said they had cattle out the reserve, were going back there; Constable Caldwell said “They haven’t travelled ten miles, and they are not travellers.” Mr. McDonell. said “They only came from the reserve and they are going back there to-night.” Constable Caldwell (turning to Dwyer, senr.) said “is that correct?” He replied “Yes.” Mr. O’Neill said “These men are in my employ, and I consider I have a right to serve them.” Constable Caldwell asked Mr. O’Neill what business he was doing with them, and he said he was paying them off; Constable Caldwell said “If you have paid them off they are not in your employ, and you have no right to serve, them.” One of the Dwyer’s said he did not know he had done wrong, as he did not know anything about the liquor laws; Smythe said he was sorry if he had done wrong; witness then walked into the billiard room.

To Mr. Cowan: I left all the note taking to Caldwell; when I had to write a report I had Caldwell’s report on the table; just know the Dwyer’s by sight; could not tell which of the Dwyer’s made the admission I referred to in evidence; did not make any notes that night; had been up all the night before; O’Neill told us the men finished the job when they brought the cattle to the yards; he also said arrangements had been made for the cattle to be taken to McDonell’s place at Cundle Plains from the reserve; did not know the men had been staying at the hotel during that day; Caldwell did not lead me to believe that it they were in O’Neill’s employ he could not serve them; before entering the hotel, to best of witness’ belief, he and Caldwell had been over at Cross’ Hotel; entered the Australian Hotel by the front door; we saw one man go in to the hotel as we crossed the street; two men could have gone in; Caldwell said “Do you mean to say McDonell has been here all night, and not had a drink;” about a quarter to eight saw McDonell in the old dining room; was aware that McDonell had told Caldwell he wanted to do business in the hotel that night; when asked by Caldwell if he served the men O’Neill said “Not all of them.” He might have said “They are travellers, and I think I could serve if I want to.” witness drew attention to five glasses being on the table; they were not what are called “whisky glasses.” They all appeared to have had drink in them; there was froth on them; O’Neill had his cheque book on the table, and also a lot of accounts; he told us he had arranged for the men to go out to the reserve and take the cattle down next morning to Cundle Plains.

Mr. Cowan said that His Worship would see that, up to that stage, defendants were proper inmates of the hotel.

Herbert Thomas O’Neill deposed. I am licensee of the Australian Hotel, Wingham; I remember the police coming into my hotel on the 4th April between 8 and 10 minutes past; almost immediately went into the sewing room; after seeing Mr. Dwyer, Smythe was sent for when the business finished; the three drovers were employed by McDonell and myself to bring cattle from the Lower Macleay; they arrived at the yards between 9 and 10 on the 4th April; that completed their contract; they gave a hand to draft the cattle, and then secured a room, washed, and had meals at the hotel; that night was doing business in the sewing room; accounts were passed, and I prepared a cheque; paid them off, and then arranged for them to take cattle down to Cundle Plains; this was a new job; had written the cheque out, and had it in my hand, when the police came in; was going to go into the bar and cash it; Smythe came in about five minutes before the police came, he came in to get his share of the money; young Dwyer went out and brought him in; up to that time I had not served any drinks in that room; none were served to to them while we were in that room; Caldwell and Read both walked into the sowing room; Caldwell said “Don’t you think this is a bit strong, Mr. O’Neill?” I said “What do you mean, Mr. Caldwell – didn’t Mr. McDonell go out and see you to-night, and tell you we had some business to settle with the drovers?” He replied “He did - but it oughtn’t to take all night.” He pulled out his watch, and looked, and said “It’s 2 minutes to 9.” He said “Do you dispute that Mr. O’Neill?” I said “Certainly not.“ He asked me did I serve McDonell with drink. I said “No, but those other men are travellers, and I think I would be quite justified in serving them with a drink.” He said “Where did they stay last night?” I said “They camped on the reserve.” He said “That wouldn’t be 10 miles away, arid they would not be entitled to a drink.” Witness told him he considered they were travellers until they got black to the Macleay; he quoted some cases to me to show they were not travellers; did not say I had served them; no doubt I would have served them when the business had been finished - that was my intention; that was why I argued with Caldwell that I had a right to serve them; McDonell did the computing of accounts; there were glasses on the table when the party came in; they were there when he (witness) went in; did not know Smythe’s name; did not say “The two Dwyers, Smythe, and myself had a drink.” I said I considered them entitled to be served; the drovers were actually staying at the hotel until the other arrangement was made for them to take the cattle to Cundle Plains; they went back to the reserve, I think, that night; don’t think I served them during the day; they could have had a drink that day; McDonell has been drinking soft stuff ; the men had been at the hotel all day, and helped to draft the cattle in the yards.

To Sergeant Moore: Was on the Macleay, and handed the cattle over to the three men; Mr. Dwyer, senr., was in charge; so much per day per man was arranged for; arranged in the first place with Mr. Dwyer; he engaged who he liked; the cheque was made out to Dwyer, senr.; Dwyer, junr. and Smythe were Dwyer, senr.’s men; Dwyer, sen. had the travelling statement; on sale day it was not) usual for men to come and get a room to have a wash in; they do go to the bath room; keep a book for booking up rooms; have not the book here; did not tell the police they had a room booked; orders for drinks had not been taken when the cheque was made out; did not consider it suspicious for five glasses to be in a room when there were five persons in there; last served drinks to persons in the old dining room; served no drinks in that room that night.

The Sergeant said if Mr. O’Neill had said these men had booked up a room, and produced the book, probably that would have finished it.

Mr. Cowan said the book could be sent for.

Mr. O’Neill said Caldwell never asked him if the men had booked a room.

To Mr. Cowan: Did not serve the men with drink that night.

Edward Dwyer deposed: I am a drover and reside at Kempsey; remember being in the sewing room at O’Neill’s Hotel on 4th April; remember going out to the verandah and taking Smythe into the room; that was two or three minutes before the police came; when I went out I saw two men coming out of the park; did not know at the time whether they were police or not; there were no drinks served in that room that night; I was not drinking at all; I had sandy blight; had a sarsaparilla and lemonade during the day; saw the glasses in the room; I did not use one of them; I did not make a remark to the police, but I said nothing about the liquor law; I said it was hard lines if we could not come in to get our money without being summoned; it was about 10 when we got the cattle to the yards; went up to the hotel about dinner time; we asked for a room – don’t know whether it was Alf. O’Neill or one of the girls we asked for the room; we had finished the job, and intended to stay that night at the hotel; had our meals there, and stayed till we were paid.

To Sergeant Moore: I did not ask for a room; we went into a room on the back verandah; the others washed and I went with them; we had a tent at the reserve; intended leaving everything there; did not consider there was any risk; there was one camp on the reserve; we left our horses in Gollan’s paddock; it is just at the corner of the reserve; asked someone whose paddock it was, and was told it was Gollan’s; Mr. McDonell said to put them in.

Edward William Dwyer deposed: I am a drover and reside at Kempsey; was engaged by O’Neill and McDonell to bring a number of cattle over from the Macleay; delivered them at the Wingham saleyards, and drafted them; that completed my job; went to O’Neill’s Hotel after and engaged a room for self and men; believe it was Alf. O’Neill who showed us the room; had our meals there that day; went into the telephone room that night to do business with McDonell and O’Neill; Smythe was not there; he came in after O’Neill drew the cheque out; that might have been five minutes before Constable Caldwell came in; was not served with any drinks in that room that night; it was arranged there for witness to take cattle to Cundle Plains next morning; we had to take some out to the reserve that night; until that arrangement was made it was witness’ intention to stay at the hotel.

To Sergeant Moore: Stayed the night before on the reserve; stayed that night on the reserve; had a camp there; it is a mile and a half from Wingham; there were no loose horses there; they were in Allan’s paddock; am not in the habit of leaving things about; do so sometimes; leave things at Sydney Creek when trucking at Wauchope; had no drink in that room that night; O’Neill paid me and I paid the men; drove the cattle at so much per day; the bills spoken of were for agistment and tucker; am not a teetotaller.

John Smythe deposed: I am a drover and reside at Fern Hill, Macleay River; remember going into the sewing room at O’Neill’s Hotel on the night of 4th April; young Ned Dwyer called me in; was in there three or four minutes before the police came; had no drink in that room.

Donald MccDonell, grazier, residing at Wingham, deposed: I remember 4th last month; O’Neill and I had bought cattle on the Macleay, and we got Dwyer and his men to bring them over; they did this, and put them in the cattle yards on the 4th; was too busy in the cattle yard all day to fix up, and a little while before tea I saw Constable Caldwell and Read; I said “Mr. Caldwell, I’ve got business in the hotel to-night. I have to settle up with my drovers.” Did not have tea at the hotel; got back to the hotel about 8 o’clock or little after; there was no chance of it being 7 o’clock as the Constable had said; the first room I went into was the old dining room; there were others there; then got O’Neill and the men together; went through all accounts, worked out their wages; and we also arranged about the cattle; we arranged for the drovers to deliver 75 head of cattle at Cundle Plains; that was a fresh contract; told them to put the cattle back on the reserve and watch that they did not get away; when the police came in Constable Caldwell said to O’Neill ”Don’t you think you are making this pretty hot -or strong - I wouldn’t be sure which; then he turned to me and said “Did you have a drink McDonell?” I answered “No.” He inquired off O’Neill then “Did you serve McDonell?” He answered “No.” Then he said to O’Neill “Did you serve these other men?” (referring to the three drovers); O’Neill said “No; but I think I’m entitled to do so If I wanted to, as they are travellers;” Read then remarked “It’s a funny thing that in the other room there were four glasses in front of four men, and in this there are five glasses in from of five men.” Mr. Caldwell then addressed me. He said “You seem to be a long while over this business.” Witness reached down to the fire place and produced the accounts, and said it took a long time to do the business; Caldwell said “You never went home to tea;” I said “Yes 1 did - I was only in the old dining room a few minutes when you came in the first time;” the glasses were on the table when I walked into the room; I pushed them out of my way; there was no liquor drunk while I was in the room; there were five glasses there - Constable Read drew my attention to it; I was one of the … look upon it suspiciously, as they did not summon me; have had very few strong drinks since Xmas time; on that day not one.

To Sergeant Moore: O’Neill and I were partners with the cattle; O’Neill and I are good friends - have been so for many years; when the police first ame into the telephone room I think Constable Caldwell spoke to O’Neill first; he did not ask O’Neill “Did you serve those men with drinks?” And O’Neill did not say “No - not all of them.” Would not say the police were telling an untruth; have an idea Caldwell wanted to catch me; there is a “feeling” between Caldwell and myself; told Caldwell what I thought of him one day, and I think he wants to get even with me; it was nearly dark when I left the yards.

This concluded the case.

Mr. Cowan contended that the drovers were inmates. A person travelling from Wingham to Taree, and taking rooms, would have certain rights. The evidence went to show that the drovers originally intended to stay at the hotel that night, until fresh arrangements were made for them to take cattle to Cundle Plains. It was during the time the business was being transacted that the fresh contract was entered into, and up to that time they were entitled to liquor if they so desired. Constable Caldwell had evidently made a mistake, and it was another proof that a young Constable - or any policeman - should take notes at the time, and not trust to his memory next morning.

Sergeant Moore contended that the evidence of the two constables must be taken into consideration. As far as taking notes was concerned, there was nothing to show that any witness on the other side had done that. If the P.M. believed the police, there was, he contended, only one thing to do.

The P.M. said he had decided to convict, and inflicted a fine of 10s and 6s costs in each case - 21 days being allowed in which to pay.

We Understand that an appeal is to be lodged.