Title: The Gun Alley Tragedy - Record of the Trial of Colin Campbell Ross
Author: Brennan, T. C.
Language: English
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                                          Third Edition

                               The
                        Gun Alley Tragedy

                       Record of the Trial

                            :: of ::

                       COLIN CAMPBELL ROSS

                            Including
            A Critical Examination of the Crown Case
                              with
                  A Summary of the New Evidence

                               by
                 T. C. BRENNAN, Barrister-at-Law

                         [Illustration]

                              1922

    FRASER & JENKINSON, Printers, 343-5 Queen St., Melbourne
           GORDON & GOTCH (Australia) Ltd., Publishers



PREFACE.


No trial in Australian history has created such a public sensation as
did the trial in Melbourne of Colin Campbell Ross for the murder of
the little girl, Alma Tirtschke, on the afternoon of December 30th,
1921. It was presided over by Mr. Justice Schutt and lasted for more
than five days. Mr. H. C. G. Macindoe conducted the case for the Crown
and Mr. G. A. Maxwell appeared, with Mr. T. C. Brennan as junior, for
the defence. For many reasons, it is desirable that the proceedings at
the trial should be placed on record. It is not merely that the story
itself—a veritable page out of real life—makes tragically interesting
reading. The nature of the evidence was so unusual, and the character
of the chief Crown witnesses was so remarkable, that it is entirely in
the interests of justice that the whole proceedings should be reviewed
in the calm light of day.

While the trial was on, and for weeks before it was on, anything in
the nature of a dispassionate review was impossible. Public opinion
was inflamed as it has not been inflamed within the memory of this
generation. Ross was tried for his life in an atmosphere charged and
overcharged with suspicion. Whether guilty or innocent, he entered
the dock in circumstances under which few men are compelled to enter
it. As everyone in Australia knows, he was condemned almost entirely
on the strength of two confessions he was alleged to have made. It
would probably be admitted that, in the absence of those alleged
confessions—which he strenuously denied ever having made—no jury could
have convicted him. It is doubtful, indeed, if without them there was
a case for the jury. But did he actually say what either the woman
Ivy Matthews or the man Harding declared he said? The verdict of the
jury does not supply an answer. The question remains unanswered, and
the doubt in regard to it constitutes the enduring mystery of the Ross
trial.

All students of criminology—and all friends of truth—are under a
debt of gratitude to Mr. Brennan for the cool, precise and perfectly
dispassionate manner in which he has, inter alia, analysed the
statements of these two people, Harding and Matthews. He has placed
the salient features side by side. There seems no escape from the
irresistible logic of his conclusion—that Matthews and Harding, knowing
certain facts about Ross from an outside source, were compelled to fill
in the gaps in their own way. They could not have been drawing from the
one alleged source when they differed so absolutely as to the essential
circumstances of the crime.

As Mr. Brennan points out, he is not undertaking to prove that Ross was
innocent of the Gun Alley murder. Anyone who reads his closely reasoned
pages can have little doubt that such is his opinion. But his task is
simpler. It is to show that Ross should not have been convicted on
the evidence, that the evidence for the Crown was, to a large extent,
contradictory—far more so than in the heat and passion of the trial was
allowed to appear. He is able to go even further than that, and to show
that a great part of it, so far from being cumulative on other parts,
as the jury may have naturally believed, was really destructive of
those other parts.

He has performed his task with care and discretion. No one who reads
Mr. Brennan’s review of the case can doubt that he has thrown off the
role of advocate—ably as he sustained it at the trial and on the two
appeals—and is only anxious to arrive at the truth. There should be no
other desire in the minds of any reader; and the people of Australia,
who cannot possibly have followed the case with the care that Mr.
Brennan has followed it, will appreciate both the value of his work and
the deep interest of the story that he tells. Whether they think the
mystery of the Gun Alley murder was cleared up by the jury’s verdict,
or whether it remains a mystery is for them to say.

                                                 A. J. BUCHANAN.
    Selborne Chambers, Melbourne.



PART I.

INTRODUCTORY.


On the early morning of the last day of the year 1921 the dead
body of a little girl of 12, named Alma Tirtschke, was found by a
bottle-gatherer in an L-shaped right-of-way off Little Collins Street.
She had been violated and strangled, and her nude body had been placed
in Gun Alley.

On the morning of Saturday, February 25th, 1922, Colin Campbell Ross, a
young man of 28, was found guilty of her murder, and on the morning of
April 24th he was executed in the Melbourne Gaol. Face to face with his
Maker, as he himself put it, he asserted his innocence on the scaffold
in terms of such peculiar solemnity as to intensify the feeling,
already widely prevalent, that an innocent man had been done to death.

In the eyes of officialdom the mystery had been cleared up. Detectives
walk the streets with the consciousness that they are the men who
cleared it up and brought the murderer to the gallows. The list of
persons who shared in the reward offered by the Government, with the
amounts allotted to each, has been published.[1] It does nothing to
allay the sense of public uneasiness to reflect that by far the greater
part of the reward has gone to men and women whose society would be
shunned by every decent person. That in itself should be sufficient to
raise doubt. But there are graver reasons for thinking that justice may
have miscarried in this extraordinary case. The purpose of this short
review is to show how strong are the grounds for the prevalent feeling
of uneasiness, and how much reason there is for believing that the
life of Colin Campbell Ross was, as he himself asserted as he went to
the cells with the death sentence ringing in his ears, “Sworn away by
desperate people.”

[1] The Government reward of £1000 was distributed as follows:—Ivy
Matthews, £350; Sydney John Harding, £200; Olive Maddox, £170; George
Arthur Ellis, £50; Joseph Dunstan, £50; David Alberts, £30; Madame
Ghurka, £25; Maisie Russell, £25; Blanche Edmonds, £20; Muriel Edmonds,
£20; Violet Sullivan, £20; Michaluscki Nicoli, £20; Francisco Anselmi,
£20. A reward of £250 offered by the “Herald” was distributed pro rata.
It was never disclosed, either on the trial or in the press, what the
services rendered by Madame Ghurka or Maisie Russell were.

Why, it may be asked, rake over dying embers and fan again into flame
a fire that is dying down? Is it not better that the Ross case should
sink, with Ross, into oblivion? Even if he were now proved innocent,
it may be said, he cannot be recalled to life, and no good purpose
can be served by reviving the case. But in the first place, there are
hundreds of people in whom the memory of the case is still quite fresh.
With them it is not a question of reviving, but of discussing. And even
though Ross be dead, death is not the end of all things. In Ross’s
case it is a small matter compared to the dishonor associated with it.
Ross has left behind him a mother and brothers who bear his name, and
for a generation to come the name of a Ross will never be mentioned
without recalling that particular bearer of it who died an ignominious
death for a revolting murder. If all the truth has not come out, the
community owes it to those of his blood left behind him that it shall
be brought out. It is largely at the solicitation of those bearers
of the name that this review is being written. But the interests
of abstract justice also require something. Ross was condemned on
evidence of a kind which puts the case in a class by itself. It has no
parallel in the annals of British criminal jurisprudence. A perusal of
this review, whether or not it satisfies the reader of the innocence
of Ross, will, at least, satisfy him of the need for a close scrutiny
of evidence of this kind; and future juries will be reminded of the
necessity of never being stampeded by newspaper or popular clamor
into preconceived ideas of the guilt of any man, and of ever being on
their guard against perjury and conspiracy, even though they are not
satisfied that either were present in this case.


THE APPELLATE COURTS.

At the outset it is desirable to correct a wrong impression which,
very widely felt, has tended to allay the feeling of uneasiness in the
public mind. Ross, as is well known, appealed to the Full Court of
Victoria, which dismissed the appeal. Thence he carried his case to the
High Court of Australia, which refused, one learned Judge dissenting,
to interfere with the decision of the Supreme Court. From this fact
it has been assumed that two Appellate Courts, consisting of three
Judges and five Judges respectively, have endorsed the verdict of the
jury. Nothing could be further from the facts. Substantially what the
Appellate Courts were asked to say was (1) that there was no evidence
on which a jury could rightly convict Ross; (2) that the Judge had
failed to direct the jury properly on various points enumerated. To
take the second point first, the Courts both declined to say that there
was any non-direction, though Mr. Justice Isaacs, in the High Court,
held that on one point the Judge had failed to direct the jury properly.

As to the first point, the position is this: An Appellate Court will
not interfere with the finding of a jury if there is any evidence on
which a jury could find as it did. It will not weigh the evidence to
see on which side the balance lies. That is the function of the jury,
and the Court will not usurp that function.

That position was made quite clear in the judgments of both Courts.
In the Supreme Courts the Chief Justice of Victoria said: “There was
abundance of evidence, if the jury believed it, as the jury apparently
did believe it, to support their finding, and we need add nothing more
upon that point.” In the High Court, the Chief Justice of Australia,
speaking for the majority of their Honours, dealt with the same point
thus: “As we have before indicated, there was, in our opinion, abundant
evidence, if the jury believed it, to sustain their verdict. But we
desire to add that, if there be evidence on which reasonable men could
find a verdict of guilty, the determination of the guilt or innocence
of the prisoner is a matter for the jury, and for them alone. And with
their decision, based on such evidence, no Court or Judge has any
right or power to interfere. It is of the highest importance that the
grave responsibility which rests on jurors in this respect should be
thoroughly understood and always maintained.” Even Mr. Justice Isaacs,
who dissented from the majority on a point not material to this review,
was quite at one with his learned brothers on this matter. “The ground
upon which,” said his Honour, “I agree to a rejection of all the other
grounds brought forward by Mr. Brennan is that, however powerful
the considerations he advanced, however tainted and discrepant and
improbable any of the facts relied on by the Crown might be, that was
all matter for the jury alone, and I have no right to express or to
form any opinion about them in favour of the prisoner.”

No Court and no Judge has, therefore, ever pronounced judgment on the
correctness or incorrectness of the jury’s verdict. All that they have
said is that there was some evidence on which the jury could find as it
did, and that that being so, the responsibility for the verdict must
rest with the tribunal which the law has set up to pronounce upon the
evidence. The purpose of this review of the case is to show, not that
the Appellate Courts were wrong, but that there are strong grounds for
believing that the jury was wrong. And that brings us naturally to a
second preliminary point.


WHY THE JURY MISJUDGED.

Not often, indeed, do juries err on the side of convicting an innocent
man. But the circumstances of this case were peculiar. Not merely
was the ravishing of the child and the strangling of her a crime of
a peculiarly detestable nature, but the stripping of the body, and
the placing of it on the cold stones of a squalid alley, though it
really added nothing to the horror of her death, was an incident well
calculated to excite the deepest human sympathy. In addition, it was
a crime of which none but a degenerate would be guilty, and it is an
extremely unfortunate thing that at the inquest the Coroner allowed,
under the guise of evidence, statements to be made by witnesses which
would tend to show that Ross was such a degenerate. Those statements
were not allowed to be made on the trial for the simple reason that
they violated the fundamental rules of evidence. The Coroner allowed
them in, holding that he was not bound by the rules of evidence, and
apparently labouring under the impression that the laws of evidence
are arbitrary rules, tending at times to obscure the truth, instead
of being, as they are, rules evolved from the experience of the ages
as being best calculated to bring out the truth. There was probably
no truth in the statements made, for the plain fact is that Ross had
never been charged with a sexual offence, and had never even been
questioned about one. But such was the interest in the case that every
line written about it was eagerly devoured, and not one member of the
jury was likely to have forgotten what was said on that head at the
inquest—false though it all may have been.

Again, the little girl had been seen near Ross’s wine shop in the
afternoon. Her dead body was found about 115 yards from it. The police
had been 12 days making enquiries about the case before Ross was
arrested. They had followed clues, and abandoned them when they led
nowhere; they had suspected individuals and questioned them, only to
reach a dead-end; they had formed theories, and dropped them because
they could not get the facts to fit them. But the public, from which
a jury is drawn, knew nothing of all this. Indeed, Detective Piggott
said, in his cross-examination: “We had the case well in hand on the
31st.” This may be dismissed as a little bit of puff. It excited the
smiles of Piggott’s brothers in the force, who knew the dead-end the
detectives were at after the first week. If it were strictly accurate,
it would show that Piggott’s conduct of the investigations was
disfigured by a colossal blunder, for the detectives, although they
were in Ross’s saloon on the first day, did not even go into the little
room off the bar from which came the incriminating blanket, though they
knew that the whole place was about to be abandoned and dismantled.
Once Ross was put upon his trial nothing was, or indeed could be,
said which did not appear to point to his guilt. The result was that
the searchlight was thrown directly on to him. Other suspected people
were in the shadows. Everything, therefore, appeared, superficially at
least, to point to his guilt. The crime called for vengeance, and in
all these circumstances it is not wonderful that the jurors were unable
to divest themselves of the preconceptions with which they had gone
into the jury-box.

[Illustration]

Never in the history of serious crimes in Victoria, or, indeed, in the
British Empire, it may be safely said, has a man been convicted on such
a jumbled mass of contradictions as served to convict Ross. The only
explanation of it is that, in view of the nature of the crime, the jury
quite unconsciously formed opinions before they went into the box, and,
with their judgments clouded by their natural indignation, they were
unable to view the matter dispassionately.

How strong public feeling was, how the judgments of even level-headed
men and women were clouded, how completely the public was convinced of
the guilt of Ross before ever he was put upon his trial, is shown by
the fact that the counsel for the defence were criticised, in public
and in private, for accepting briefs in his defence. People holding
those views were apparently unable to see where they led. There is no
logical stopping-place between such views and lynch law. If a man is
to be adjudged guilty on what appears, ex parte, in the press, it is
as logical to blame a judge for trying him as a counsel for defending
him. He is guilty, and why go through the hollow form of trying him?
Why not settle the matter at once in the easy manner of the less
civilised of the American states.

But the position of the bar in these matters has been well settled. The
same view was presented by Lord Chief Justice Reading in 1916 as by
Erskine in 1792. When Erskine took a brief for the defence of Tom Paine
130 years ago, and insisted on holding it in spite of the protests of
the courtiers, his obstinacy, says Lord Chief Justice Campbell, in his
“Lives of the Chancellors,” was much condemned “by many well-meaning
people, ignorant of professional etiquette, and of what is required by
a due regard for the proper administration of criminal justice.” But
Erskine appeared, and on the trial, referring to the storm which his
conduct had provoked, he said:—

      “Little, indeed, did they know me who thought that
    such calumnies would influence my conduct. I will for
    ever, at all hazards, assert the dignity, independence
    and integrity of the English bar, without which
    impartial justice, the most valuable part of the
    British Constitution, can have no existence. From the
    moment that any advocate can be permitted to say that
    he will or will not stand between the Crown and the
    subject arraigned in the court where he daily sits to
    practice, from that moment the liberties of England
    are at an end. If the advocate refuses to defend from
    what he may think of the charge or of the defence, he
    assumes the character of the judge; nay, he assumes
    it before the hour of judgment; and, in proportion to
    his rank and reputation, puts the heavy influence of,
    perhaps, a mistaken opinion into the scale against the
    accused, in whose favor the benevolent principle of
    English law makes all presumptions, and which commands
    the very judge to be his counsel.”

When Sir Roger Casement was tried for treason in 1916, the same
question arose, as it had arisen many times in the interval. Lord Chief
Justice Reading, addressing the jury, then said:—

      “There are some persons who, perhaps a little
    thoughtlessly, are inclined to rebel against the notion
    that a member of the English bar, or members of it,
    should be found to defend a prisoner on a charge of
    treason against the British State. I need not tell you,
    I am sure, gentlemen, that if any person has those
    thoughts in his mind, he has but a poor conception
    of the high obligation and responsibility of the bar
    of England. It is the proud privilege of the bar of
    England that it is ready to come into court and to
    defend a person accused, however grave the charge
    may be. In this case, we are indebted to counsel for
    the defence for the assistance they have given us in
    the trial, and I have no doubt you must feel equally
    indebted. It is of great benefit in the trial of a
    case, more particularly of this importance, that you
    should feel, as we feel, that everything possible that
    could be urged on behalf of the defence has been said,
    and particularly by one who has conducted the defence
    in accordance with the highest traditions of the
    English bar.”

With the lapse of a little time the public may be able to look more
judicially at the case. Let us, therefore, look briefly at the facts.

Though the case took the full legal week, and encroached on the
Saturday, the facts relied upon by the Crown to support its case may be
put in a comparatively short compass.



PART II.

THE CROWN CASE.


The girl, who, so far as is known to the public, was a modest,
obedient, intelligent, quiet child, between 12 and 13 years of age,
left her aunt’s home at Jolimont between half-past 12 and a quarter
to 1, to go to Bennet and Woolcock’s butcher’s shop in Swanston St.,
Melbourne, where her uncle acted as secretary. She wore a navy blue
box-pleated overall, a white blouse with blue spots, and a Panama
hat with a conspicuous badge of a high school on it. At about a
quarter past 1 she arrived at the shop, went upstairs to her uncle’s
room, returned shortly afterwards without seeing her uncle, and left
the shop about a quarter of an hour after her arrival at it, carrying a
parcel of meat some eight or nine pounds in weight. She was next seen
in Little Collins Street, and she evidently went up Little Collins
Street to Russell Street, and down Russell Street into Bourke Street,
because “well after a quarter past 2” she was noticed by Mrs. and Miss
Edmonds about 50 yards from the entrance to the Eastern Arcade. She
went into the Arcade in front of the ladies, and when she was about
half-way through they turned up the stairs to the right, and did not
see her again. Colin Ross at this time, according to Mrs. Edmonds, was
standing in front of his door. In cross-examination, Mrs. Edmonds fixed
the time at which she last saw the girl at a quarter to 3, because, she
said, “I looked at the clock on the balcony.” Between half-past 2 and 3
o’clock Mr. and Mrs. Stanley Young saw the girl come out of the Arcade,
walk across Little Collins Street, and stand at what they described as
the Adam and Eve corner.

[Illustration]

This means that she was standing near a lodging-house kept by a witness
named Ellis, in the delicensed premises which was formerly the Adam
and Eve Hotel. It is on the corner of Little Collins Street and Alfred
Place, Alfred Place being a rather pretentious right-of-way running
through to Collins Street. Had she desired to go to her destination,
which was the Masonic Chambers at the east end of Collins Street,
she might have gone either along Alfred Place to Collins Street, or
up Little Collins Street to Exhibition Street, and thence to Collins
Street. According to Mrs. Young, the girl looked frightened, and she
was seen to drop and pick up her parcel. The Youngs walked on down to
Russell Street, which would take her two or three minutes, they said,
and when they looked back the girl had disappeared. She might have
still been standing in Alfred Place, or she could have returned to the
Arcade, but they do not think she would have had time to have got to
Exhibition Street. That is the last seen of the girl by any witness
whose evidence is admitted by both sides to be credible. It should
be noted that she was then within an easy 10 minutes’ walk of Bennet
and Woolcock’s, and she had taken an hour and a quarter to cover the
distance.


ROSS INTERVIEWED.

The detectives first saw Ross on the morning of the 31st. He said that
he had seen a child answering to the description of the murdered girl,
but in reply to a direct question by Detective Piggott, “Ross, how much
do you know?” he replied: “I do not know anything.” On January 5th they
again saw Ross at his home, and brought him to the Detective Office,
where he was detained for eight hours, and made a statement, which was
taken down in writing. To show how consistent Ross was throughout as to
his movements on the fatal day, it is well that this statement should
be given in full. It is as follows:—

    COLIN CAMPBELL ROSS states:—

      “I am at present out of business. I was the holder
    of the Australian Wine Shop license in the Eastern
    Arcade for about nine months past. The license expired
    on the 31st December, 1921. I reside at ‘Glenross,’
    Ballarat Road, Footscray. On Friday, the 30th December,
    I came into the shop about 2 p.m. It was a very quiet
    day. Between 2 and 3 p.m. I was standing in front of
    my shop, and looking about I saw a girl about 14 or 15
    years of age in the Arcade. She was walking towards
    Bourke Street, and stopped and looked in a fancy dress
    costume window. I later saw her walking back, and she
    appeared to have nothing to do. She wore a dark blue
    dress, pleated, the pleats were large, light blouse,
    white straw hat with a colour on it (looked like a
    college hat), wore dark stockings and boots—she may
    have had shoes on. I went back into the cafe. I cannot
    say where she went. I was about the cafe all the
    afternoon.

      “About 4 o’clock, a friend of mine, Miss Gladys
    Linderman, came to the saloon front. I spoke to her for
    about an hour. She came into the private room, and we
    had a talk in the room off the bar, the one in which
    the cellar is which is unused. She and I went into the
    Arcade at 4.45; remained talking for about 10 minutes.
    I then saw her out into Little Collins Street. I made
    an appointment to meet her again at 9 p.m. at the place
    I left her. I went back into the cafe, and remained
    until 6 p.m., when I left for home, got home about 7
    p.m., had tea, left home at 8 p.m., came into the city,
    waited at the corner of the Arcade in Little Collins
    Street. Miss Linderman came to me at 9 p.m., and we
    went straight into the cafe. We remained in there till
    10.45, then left, locked the place up, went to King
    Street. She went to her home, 276 King Street. After
    leaving her I went to Spencer Street Station, took a
    train, arrived home at 11.50 p.m., and remained there
    all night.

      “I know the shop opposite, No. 33. It is occupied by
    a man named McKenzie. Several men visit there. I have
    seen a stout, foreign man go there. I don’t know his
    name—I never spoke to him in my life. I am sure he
    has not visited the saloon. He has come to my door and
    spoken to me. On one occasion, about four months ago,
    I went over to that shop by his invitation. He desired
    to explain a certain signalling patent. He unlocked the
    door, and I went inside with him. I saw a box affair,
    a couch, and nine or twelve chairs. I did not see the
    patent—it was locked. I have never possessed a key of
    that shop, and no person has ever loaned me one. I have
    two keys of my wine saloon. I had one, and my brother
    Stan had the other. On Friday I possessed one, and my
    brother had the other. These keys are Yale keys. No
    person could enter that wine shop unless let in by my
     brother or myself. I think my brother was in the city
    that night with his friends. I can’t say where he was.

      “On the Saturday I was again in the saloon. It was
    the last day of the license. I saw Mr. Clark, manager
    of the Arcade, about 11 a.m., and arranged with him to
    get me a key of the back gate of the Arcade, which is
    locked by means of a chain and padlock. He gave me a
    key about noon, and I left there about 6.15 p.m. I came
    back to the Arcade at 6.50 a.m., Monday, and a van came
    at 7 a.m., and then took my effects from the saloon,
    which consisted of 26 chairs, 6 tables, a small couch,
    a counter, 2 wooden partitions, shelves, and linoleum
    off the floor, about 20 bottles of wine, and 9 flagons
    of wine. There were two dozen glasses, and about 18
    pictures. My brothers Stanley and Tom were with me. I
    left there at 8.30 a.m., and went home. I handed the
    keys to the caretaker.

      “I cannot say what goes on inside No. 33 in the
    Arcade, but I have seen several women going in and out,
    and in company of McKenzie. I have never seen the other
    man, who looks like an engineer, take women in there.
    The ages of the women would range from about 20 years
    and upwards. I cannot say if any person saw me with
    Gladys Linderman while at the Arcade. I was not in the
    company of any other woman that afternoon or evening
    at the saloon. Close to the saloon, and about 36 feet
    distant, is a man’s lavatory, the door of which is
    generally locked. At night time it is occasionally left
    open. I had a key of that lavatory. The water used in
    my saloon was obtained from a tap in a recess adjoining
    the cafe.”
                                “COLIN CAMPBELL ROSS.”
    Witness: FREDERICK J. PIGGOTT.

This statement was obtained largely, as all police statements are, by
question and answer, and committed to paper in narrative form. When it
was concluded, further questions, more disjointed, were put to Ross,
and his answers being given, the question and answer were committed
to writing, and were signed by Ross. The supplementary statement thus
obtained is as follows:—

      “I admit I did walk up and down Little Collins Street
    in front of the Arcade from about 8.45 until 9 p.m.
    I say there was not a light in my saloon after 10.45
    p.m., unless my brother was in there. My brother was
    first to enter my saloon on the Saturday morning. I
    came while the detectives were talking to my brother.
    He did not make any complaint about the condition of
    the shop when I arrived. I did have two blankets in the
    saloon. They were used as a rug or cover for the couch
    to lie down on in the afternoons. I was home all day
    Thursday. I was not well. I did not leave the shop on
    Friday and say that I was ill. I was not away from the
    saloon during the afternoon of Friday. I can give no
    reason why my brother should say I was away ill. I have
    not been engaged in a telephone conversation with a man
    named Williams. I have not spoken on a telephone since
    Thursday, 29th. I remember, before Miss G. Linderman
    came to the cafe, there were two young women in the
    bar. They would be 19 or 20 years of age, and they left
    the saloon in company with two men. That was on Friday,
    30th. In my opinion No. 33 is a brothel. Several men
    have keys of the room.”

                                “COLIN CAMPBELL ROSS.”
    Witness: FREDERICK J. PIGGOTT.

Ross was still further interrogated, but this part of his statement
was not taken down in writing. Piggott said: “Where did you have lunch
on Friday, December 30th?” and he replied: “At home,” and question and
answer proceeded as follow:—

What time did you get into your wine bar?—About 2 o’clock.

Who was in the bar?—A man named Allen and a woman.

Who was the woman?—I do not know, but Detective Lee ordered her out.

What time did you see Gladys Linderman?—About 4.45, and I remained
talking with her about three-quarters of an hour.[2]

[2] By comparing this question and answer with the statement, it will
be seen that Piggott was slightly in error here. What Ross said was
that it was 4.45 when he and Gladys left the saloon.

What time did you leave her?—About 6 o’clock, but I had to meet her
again.

Did you meet her?—Yes, I met her at 9 o’clock, as arranged.

What time did she leave?—About half-past 10.

Where did she go?—I saw her home. I got the train, and got home about
midnight.

This was the material that the police had to work on up to that time,
but about Tuesday, January 10, they received an important addition to
their stock of knowledge from a girl named Olive Maddox. This girl,
an admitted prostitute, said that, being a bit “potty” on Monday,
January 9, she had a conversation with Ivy Matthews, who advised her
to go and tell the police what she knew. What she told the police will
appear from her evidence to be given later. It is important to remember
that at this time, according to the police, Ivy Matthews had herself
given no information to them. In fact, she had been interrogated by
the detectives on January 5, and had told them that she knew nothing.
More than that, she met certain members of the Ross family outside the
Detective Office on that night, and indignantly protested against being
brought there to be catechised, saying that she knew nothing about the
matter. On the day of Ross’s arrest she was again at the Detective
Office, and seems to have hinted at something, because, while declining
to make any statement, she said: “Bring me face to face with Colin, and
I will ask him some questions.” She was never brought “face to face”
with Colin Ross. There is ample reason for believing that though the
police knew that when she came to give her evidence Matthews would
advance their case, they did not know exactly what she was going to
say. The position, therefore, is that, on January 23, the police had
practically no evidence against Ross. On that day Harding disclosed his
“confession,” and by January 26 Matthews had given to the world her
account of what she alleged she had seen and what she alleged Ross had
told her.


THE TRIAL.

Ross was committed at the Coroner’s inquest on January 26, and came
up for trial before Mr. Justice Schutt on February 20. Evidence was
given, as indicated above, as to the movements of the girl on the day
of her death. Medical evidence, to be dealt with later, was also given
and then the Crown called a succession of witnesses, who deposed as
to certain extraordinary “facts,” and as to certain admissions or
confessions supposed to have been made by Ross.


THE BLOODY BOTTLE.

The first of these was a man named Francis Lane Upton. Upton had not
been called at the inquest. The defence had been served with notice
that he would be called on the trial, and a short summary of his
evidence was given, according to practice. His evidence is remarkable,
not so much for its glaring improbability as for the fact that it was
dramatically abandoned by the Crown Prosecutor in his closing address
to the jury with the contemptuous intimation that he would not ask the
jury to “swing a cat on it.” How it has been assessed by the police is
shown by the fact that, in the distribution of the reward offered by
the Crown, Upton has not shared. That his evidence was prompted wholly
by a desire to share in the reward, or gain notoriety, was revealed by
his cross-examination. When that is borne in mind, it supplies its own
comment on the Crown’s contention that it is incredible that witnesses
like Olive Maddox, Ivy Matthews, Sydney Harding, and Joseph Dunstan
would have been so wicked as to come forward with false testimony to
swear away the life of an innocent man.

The story told by Upton was that he was a labourer out of work, that he
had been about the town on December 30, fell asleep in the Flagstaff
Gardens, walked through the Victoria Markets “and all round trying
to rake up a drink,” and found himself, at about half-past 12 or 1
o’clock, at Ross’s saloon, which he had heard of some months before. By
this time he was sober, but very thirsty. Entering the Arcade by the
little Collins Street gate, and seeing a light in the saloon, he went
to the second door of the establishment—the door nearer Bourke Street.
It was not locked, and he pushed it, and it came open. As he did so he
heard a woman’s voice saying: “Oh, my God, darling, how are we going to
get rid of it?” Just then Ross said: “There is somebody here,” and he
rushed out like a lunatic. Upton said to him when he got to the door:
“What about a bottle?” Ross had a bar towel or some such thing on his
arm, his hands were covered with something that looked like blood; he
rushed back, and seized a bottle from behind the bar, thrust it into
Upton’s hands, and pushed him from the room, without even waiting to
take the money which Upton had ready in his hand. Upton walked down
Little Collins Street to Russell Street, where he discovered that there
was blood on the bottle. He walked on down Little Collins Street to
William Street, thence down to Flinders Street, and at the corner of
William Street and Flinders Street he disposed of the bottle (out of
which he had had one drink) in what he described as a culvert or sewer.

In cross-examination it was disclosed that Upton had come from the
Mallee a day or two before the tragedy. He read of the murder in the
Footscray Gardens on the Monday, and he immediately returned to the
Mallee, worked in several places, drank the proceeds of his labour,
heard about the reward, and, when he was without money, went to the
Donald Police Station and told the officer in charge that he “was
connected with Alma Tirtschke’s murder.” He was detained, and a
detective went up from Melbourne to bring him down. Upton’s evidence
may be dismissed with the remark that it was physically impossible for
him to have seen from where he said he was the things he said that he
did see (for a glance at the plan will show that, from the second door,
he could not see the cubicle), and with the further observation that
his evidence having been formally repudiated by the Crown, no notice
whatever was taken of it in either Court of Appeal. He was a derelict,
a drunkard, a wife deserter, a notorious romancer, a convicted
criminal, and his evidence was a fitting prologue to that which was
immediately to follow.


OLIVE MADDOX’S EVIDENCE.

Olive May Maddox was the next witness. She was living at the time of
the inquest at Cambridge Street, Collingwood, and when asked, “Have you
any other means of livelihood but prostitution?” she answered: “No,
not exactly.” She said she knew Ross well, and she used to visit his
premises every day up to the time of the shooting affray. (That was
in the previous November, and up to that time Ivy Matthews had been
employed there.) Since the shooting affray she had only visited the
cafe “once, sometimes twice, sometimes three times or four times or
five times a week at the most.” She went to the wine cafe on December
30 at five minutes past 5, walked straight into the bar with another
girl named Jean Dyson, and ordered two drinks at the counter. She then
looked into the parlour through the curtains hanging from the arched
doorway between the two main rooms in the saloon, and seeing a girl
named Lil. Harrison in that room she went in. As she passed the beaded
curtains of the small compartment on the right she saw the little
girl in it—that is to say, she described the girl she saw, and if her
evidence is true there can be no doubt the girl was Alma Tirtschke.
There was a glass in front of her, “but you couldn’t tell whether the
contents were white or whether it was empty.” There were, she said,
a couple of strange men also in the room. The two men were near the
entrance, and the girl was near the corner. After talking to Harrison
for a time, she came back into the bar to her friend, and seeing Ross,
she said, “Hello, Col., she is a young kid to be drinking.” He replied:
“Oh, if she wants it she can have it.”

At a quarter past 5 Maddox left, and she returned about five minutes
to 6. She ordered drinks, and went again into the other room. Lil.
Harrison was still there, but the little girl was no longer in the
beaded room. Maddox left soon after 6, and she did not see Ross on that
occasion. She next saw him on Thursday night, January 5, “down where
the old Repatriation was in Jolimont, just off Flinders Street.” Maddox
had been there with some girls, and Ross, when she saw him, was with
“a girl named Florrie Dobson and another named Pauline Warburton, and
their two young chaps.” “We started talking about different things,”
she said, “and then Ross said: ‘What do you think about this case,
Ol.?’ I said: ‘I don’t know; if I knew anything I wouldn’t tell the
police.’ He said: ‘You don’t want to tell them if you know anything.
The papers all say that she was a goody-goody, but that is only for the
sake of the public. She was a cheeky little devil, and’”—and he added a
disgusting comment. He said also, the witness added: “I tried to pool
the b⸺ b⸺ of a Madame Ghurka. The police came to me and asked me if I
saw anything about the little girl, and I told them I saw her looking
in Madame Ghurka’s window, and I tried to pool the b⸺ b⸺ because she
decoys little girls when they are missing away from home.”

In her cross-examination Maddox admitted that she knew from the papers
the description of the little girl’s dress, and that it was after
she had had a conversation with Ivy Matthews on the subject that she
informed the police. That conversation took place on the Tuesday,
January 10. She told Matthews she was afraid to go to the police on
account of her convictions, and Matthews asked her whether she really
had any doubt it was the little girl, and she said she was positive.
Matthews said: “The police cannot touch you,” and she replied: “Well, I
will chance it, and go and do it.” She also admitted that on Saturday
afternoon, December 31, she was arrested for absconding from her bail,
and she remained in the watchhouse until the Sunday afternoon. It is
worthy of note that no proceedings have been taken against Olive Maddox
on that charge. She admitted also that the meeting on the Thursday
evening was purely by chance, as far as she was concerned. Asked how
many people were in the saloon when she was there at 5 o’clock, she
said she did not know how many were in the bar, but in the parlour
there were two girls she knew, and one she didn’t know, and two or
three men, and there were two other men in the beaded room with the
little girl.

Therefore, there were seven or eight persons who were in as good a
position as Maddox to see the little girl, if, in fact, she had been in
the saloon.


THE MATTHEWS CONFESSION.

Ivy Matthews was the next witness. She “didn’t quite know” what to say
her occupation was, as just at present she was out of employment, but
she had been a barmaid. She had been employed by the accused from the
23rd of December, 1920, up to some time in November, 1921. She left the
day following Ross’s acquittal on the shooting charge. She described
minutely the interior of the wine saloon as it was in her time, and on
being shown two blankets, said that one of them—a greeny-blue military
blanket—was on the couch in the cubicle in her time, but not the
other, a reddish brown blanket. On the afternoon of Friday, December
30, she was at the bar door, she said, talking to Stanley Ross, who
had beckoned her up while she was talking to a friend in the Arcade.
Whilst she was talking to Stanley, Colin Ross came out of the little
room at the end of the bar, and as he opened the curtains to come out
she saw a child sitting on a chair. Colin came along the bar and poured
out a drink. She saw the glass, but did not see what was poured into
it. Colin returned to the little room, and as, he did so he must have
said something to the girl, because she parted the curtains “and looked
straight out at me.” She gave a very minute description of the child’s
hair and clothing, considering the very cursory glance she admitted
having had. Colin, she said, must have noticed her, but he did not
acknowledge her in any way.

Matthews said nothing of how long she stayed. Next day, at the
Melbourne Hotel, at 3 o’clock, where she had an appointment, she read
in “Truth,” so she said, of the murder of the little girl, and she
went straight to Ross’s wine cafe. “He was busy serving behind the
bar,” she continued, “and I walked past the wine cafe door twice. I
mean that I walked past and I came back again. The second time he saw
me and he came to the door without a coat, and he spoke to me [although
he wouldn’t acknowledge her on the previous day]. I was the first
to speak. I said, ‘I see about this murder; why did you do it?’ He
said,‘What are you getting at?’ I said, ‘You know very well; why did
you do it, Colin?’ He said, ‘Do what?’ I said, ‘You know very well what
you did. That child was in your wine cafe yesterday afternoon, for I
saw her.’ He said, ‘Not me.’ And with that he said, ‘People are looking
at us; walk out into Little Collins Street, Ivy, and I will follow
you.’ He returned to the wine cafe and put on his coat. I stood at the
corner in Little Collins Street for perhaps two minutes, and then he
followed me. Before that, when he said, ‘I did not do anything like
that,’ I said, ‘Don’t tell me that, because I know too well it is you,
for I saw the child in your place yesterday.’ It was then he passed the
remark that people were looking.”

“When he came into Little Collins Street what did he say,” she was
asked.

“I cannot think of the exact words,” she replied.

“Well, tell us the substance of it,” said His Honour.

Mr. Macindoe: What did he say when you resumed the conversation?—First
of all he tried to make out that I did not see the girl.

His Honour: Well, what did he say?—He said it was not the child. He
simply said: “You know I did not have that child in there.” I said,
“Gracious me, I looked at the child myself, and I know it was the same
child by the descriptions given,” and for a long while he hung out that
this was not the child.

Mr. Macindoe: How did he hang out?—He said it was not the child. I
cannot tell you exactly every word he said.

This was in the Arcade?—It was in Little Collins Street, just at the
corner of the Arcade.

Well, what then?—I was so sure it was the child, and I would make him
know it was the child.

Will you tell us what he said?—I am trying to explain it.

His Honour: You have been told several times that you are only supposed
to tell what was done, or what was said, between you and the accused,
instead of telling your inferences, or assumptions, or suppositions.
Tell us now what took place—what was said.

Mr. Macindoe: Don’t tell us why he said things; just tell us what
he said.—Well, at last he told me that it was the child. He told me
that the child came to him while he was at the door, on the Friday
afternoon. He said there was no business; there was no one there and
he was standing at his door, and when the child came up and asked him
for a drink he said, “I took her in and gave her a lemonade.” I said,
“When the child came and asked you for a drink of lemonade why didn’t
you take her into the bar? Why did you take her to that little room?” I
said, “I know you too well. I know what you are with little children.”
He said: “On my life, Ivy, I did not take her in there with any evil
intention, but when I got her there I found that she knew absolutely
what I was going to do with her if I wanted her. Assuming that this⸺”

Mr. Macindoe: Never mind the assumption. Did he say what he
assumed?—Well, you cannot expect me to say it just the way he put it to
me.

His Honour: No, it is the substance of it we want.—Well, I am trying to
tell you to the best of my ability.

I am not saying that you are not, but tell us what he said.—He said
that after taking the child in there he gave her a drink of lemonade.
He did not say wine; he said lemonade. And she stayed on there talking
to him for a while. She stayed there until about four. He said a girl
named Gladys came to see him and he told the child to go through to
the little room with curtains and he kept her in there until Gladys
Linderman left, and he then brought her back into the little private
room.

Mr. Macindoe: What did he say then?—After that, he said he stayed with
her during the rest of the afternoon, with the full intention at six
o’clock of letting her go; but when six o’clock came she remained on.
He said that after six o’clock, when Stanley went, he left us in there
together. I could not tell you just exactly what he said that led up to
the⸺

His Honour: No, you need not tell us exactly; just as far as you
remember the substance of it.—I can remember everything quite well, but
it is⸺

His Honour: I think if you would not go quite so fast you would
remember better.

Mr. Macindoe: What did he say then?—Just after that he said that he had
outraged the child; he said that between six and eight o’clock he had
outraged her.

What did he say about it?—What do you mean?

Well, I suppose he didn’t say, “I outraged the child”? No, that is the
hardest part of it.—I cannot say it.

His Honour: Is it because you cannot remember it, or because it is too
foul?—It is because the language he used is too foul. I cannot say it.

Will you write it down?—I will try to the best of my ability to say it.

Mr. Macindoe: What was it, as near you can remember?—He said, first of
all, “After Stan went, I got fooling about with her, and you know the
disease I am suffering from, and when in the company of young children
I feel I cannot control myself. It was all over in a minute.”

Are those his words?—That is just using my own language.

His Honour: Is that the substance of what he said?—Yes, that is the
substance, and he said: “After it was all over I could have taken a
knife and slashed her up, and myself too, because she led me on to it.
He tried to point out to me that, so he believed, she went there for an
immoral purpose. That is what he said to me. That is what he tried to
imply to my mind.”

The witness then wrote down the exact words used, which was a statement
in coarse language that the girl had previously been tampered with.

The witness went on to tell what happened after the girl’s death.
“After it had happened, he said that he had a friend to meet—a girl
friend. He took the body of the little girl and put it into the beaded
room, and left it wrapped up in a blanket, and at nine o’clock, or
half-past nine he brought a girl named Gladys Wain there. She stayed
until ten o’clock. He took her home at ten o’clock, and came back
between ten and half-past, after seeing her to the station or tram, and
removed the body from the beaded room into the small room off the bar.
He then went to Footscray by train, but came back again between one
and two a.m. I asked him how he got back, and he said he came by motor
car, and went in there and looked for a place to put the body. He first
thought of putting it in the recess alongside the wine cafe, but that
the ‘Skytalians’ would be blamed for a thing like that. Then he thought
he would put it in Mac’s room (that is room 33 opposite, occupied by a
man named McKenzie). I said what an awful thing to do. He said: ‘I did
the very best thing. I put it in the street.’”

It will be noted that up to this time the witness had not said a word
of the actual death of the child, and that great difficulty had been
experienced in dragging a consecutive story from her. She was brought
back to the main point by the question: “Did he tell you at any time
how the girl had died?” She answered: “I had better write it down. He
strangled her while he was going with her. He said he strangled her
in his passion. He said he heard or saw where they were saying a cord
had been round the child’s neck. He said that was not so. He said: ‘I
pressed round her with my hands. I did not mean to kill her; but it was
my passion that did it.’ He said she was dead before he knew where he
was. That was just his words to me.”

In cross-examination, the witness absolutely declined to say anything
that would let light in on her past life. She objected to saying where
she lived, and when that was forced from her she said at an apartment
house at 25 Rathdown Street. Asked if among the people who lived
there was a woman named Julia Gibson, she replied that she was the
proprietress. Asked if Julia Gibson was identical with Madame Ghurka,
she said she did not feel called upon to say anything as to the names
Mrs. Gibson assumed. She knew her as Mrs. Gibson, the proprietress of
the boarding-house, but didn’t know she was a fortune-teller, though
she knew her as a phrenologist. She had lived with her since the
previous November. She admitted that she had made several additions to
her evidence as given at the inquest, and these are so suggestive that
they will be referred to in more detail later. She admitted that she
had gone—or “may have gone”—at different times under the names of Ivy
Sutton, Ivy Dolan, and Ivy Marshall. She swore that she was married,
but declined to say what her married name was. She admitted that Ross
had dismissed her from his employ following the shooting case with
the intimation that, after the evidence she had given in the case, he
“would not have a bitch like her about the premises.” “Those were his
exact words to me,” she said. She admitted that, after her dismissal,
she claimed to be a partner, and that a lengthy correspondence ensued
between her solicitor and Ross, in which she demanded a week’s wages
in lieu of notice, and claimed a share in the partnership; that Ross
claimed £10 from her as a debt, and that her solicitors wrote to him,
in reply, accusing him of insulting her by calling her Miss Matthews,
instead of Mrs., “on account of not being able to force from her the
sum of £10 which he wished to obtain.” She admitted that Ross sued her
for the £10, but withdrew the case on the morning of the return of
the summons in petty sessions; that her solicitor wrote saying that,
if the costs were not paid, a warrant would issue. All these letters
were written with her authority, but she denied that there was any
ill-feeling whatever between her and Ross. She did admit, however, that
Ross and she had never spoken from the day she left his employ until
the day she spoke to him about the tragedy.

By comparing the evidence which Matthews gave at the inquest with
that which she gave at the trial, it will be seen that on the trial
important additions were made. The significance of the additions will
be discussed later when her evidence is being analysed, but here it
may be said that at the inquest she said nothing about Ross going back
for his coat; she never mentioned the name of Gladys Wain (or Gladys
Linderman), or anything about meeting with such a woman. She did not
say in the Coroner’s Court anything about the tragedy having happened
after Stanley left; she did not say anything about Ross having got the
murdered girl in the afternoon to go from the little room (the cubicle)
off the bar to the little room off the parlour (the beaded room), in
order to clear the way for Gladys Wain, or about having brought her
back when Gladys Wain was gone; she did not say that Ross had said
that, when Gladys was coming in the evening, he took the dead body from
the cubicle to the beaded room, and then came back between 10 o’clock
and half-past 10, and shifted it from the beaded room back to the
cubicle.

What is more important than all this, at the inquest Matthews made
the conversations all take place in Little Collins Street. In one way
this may seem a small matter, but it is very important, because when
one is retailing a conversation he can clearly visualise the place
where he was standing when certain things were said. Matthews’s exact
words at the inquest were: “After I passed the third time he came out,
and I spoke to him in Little Collins Street.” She gives some words of
the conversation, and then she added: “then he told me to walk along
a little bit, as people were looking at us from the Arcade. I walked
along a little bit, and several people went past, and they could
have noticed me.” On the trial the witness made the early part of
the conversation take place at the door of the saloon, and then the
suggestion came from Ross, she says, that they should walk out into
Little Collins Street, as people were looking at them. The significance
of this alteration will also be adverted to later.


HARDING’S STORY.

Deferring comment upon these matters for the moment, we will proceed
with the evidence of the next disreputable witness—the odious Sydney
John Harding, who now obtains £250 out of the reward and a free pardon
for his “services to the State.”

Harding at this time was awaiting trial on a charge of shopbreaking,
together with another man named Joseph Dunstan. He had a list of
convictions at the time so long that he could not remember them all. He
was a wife deserter, and was living in adultery with the so-called Ruby
Harding. A verdict of guilty against him might almost of a certainty
have been expected to result in an indeterminate sentence for him.
The “key,” as it is called, has a peculiar terror for criminals. As
he lay in the Melbourne Gaol awaiting trial he had a tremendously
strong inducement to try and render some service to the State. Harding
arrived in Melbourne from Sydney on January 4, a fugitive from
justice. He was on bail in that city, and he bolted. He was arrested on
the 9th, and lodged in the Melbourne Gaol. He was in the remand yard
with different persons, including Ross at different times, and on the
23rd of January was in the yard with four men, again including Ross.
The conversation was general for a while, he said, and then reverted to
Ross’s case.

“I remarked to Ross,” he said, “that a girl named Ruby, whom we both
knew, informed me that a woman was down in the female division of the
prison in connection with his case. He said: ‘I wonder if it is Ivy
Matthews?’ I said: ‘It could hardly have been her, for Ruby knows her,
and would have told me so.’ He said: ‘I wonder what she says?’ I said:
‘Can she say anything?’ and he said: ‘No.’ I said: ‘Why worry?’” Ross
and he meantime were walking up and down the yard, which is triangular
in shape, while Dunstan, because he had rheumatism, was sitting under
the shed on a form, “idly turning over the pages of a magazine.”

“After saying ‘Why worry?’” said Harding, “I said: ‘Did you see the
girl?’ He said: ‘Yes.’ I said: ‘How was she dressed?’ He said: ‘She
was dressed in a blue skirt and a white blouse, and a light-coloured
hat with a ribbon band around it, and black shoes and stockings.’ I
said: ‘Did you tell the detectives you saw her?’ and he said: ‘Yes,
but I told them she had black boots on.’ I said: ‘Did you speak to the
girl?’ and he said: ‘No.’ After a little while he said to me: ‘What do
you think of the case?’ I said: ‘I do not know any of the details of
the case, and, therefore, I am not qualified to offer an opinion.’ We
ceased talking on that for a little while, and continued walking up
and down, and then he said to me: ‘Can a man trust you?’ I said: ‘Yes;
I have known you a good time, and have not done you any harm, have
I?’ He said: ‘No.’ I said: ‘Did you speak to the girl?’ and he said:
‘Yes.’ I said: ‘Where?’ He said she was standing in front of Madame
Ghurka’s, and she came down the Arcade, and when she got in front of
his place he spoke to her, and she took no notice of him at first. He
said: ‘You have nothing to be afraid of. I own this place, and if you
are tired you can come in and sit down.’ I asked him what time this
was. He said about a quarter to 3, or a quarter past 3, I am not sure
which. I said: ‘Did you tell the detectives you spoke to her?’ and
he said: ‘No.’ I said: ‘Did you take her into the cafe?’ and he said
yes, she went in, and he took her into the cubicle near the counter. I
said: ‘Could not any of your customers see her?’ He said: ‘No; we were
not busy that day, and the customers were in the parlour.’ When he had
the girl in the cubicle, he said, he spoke to her for a few moments,
and then offered her a drink of sweet wine. She at first refused it,
but eventually accepted it and sipped it, and appeared to like it. He
said he gave her a second glass, and gave her in all three glasses.
He said about this time a woman whom he knew came to the door of the
cafe, and he went and spoke to her for about three-quarters of an hour,
that when she left he went back to the cubicle and the girl was asleep.
About this time his own girl came to the door of the cafe, and he went
and spoke to her until nearly 6 o’clock. I asked him who served his
customers while he was talking to the girl. He said his brother did. I
said: ‘Could not your brother see the girl in the cubicle when he went
behind the counter to get the drinks?’ He said: ‘No, the screen was
down, and when the screen was down no one dared to go into the cubicle.’

“At 6 o’clock, or a few seconds afterwards, he closed the wine cafe
and went back into the cubicle. The little girl was still asleep, and
he could not resist the temptation. I asked him did she call out, and
he said: ‘Yes, she moaned and sang out,’ but he put his hand over her
mouth, and she stopped and appeared to faint. After a little time
she commenced again to call out, and he went in to stop her, and
in endeavoring to stop her from singing out, he said, he must have
choked her. He further added that ‘you will hear them saying that she
was choked with a piece of wire or a piece of rope, but that was not
so.’ He said he picked up her hand, and it appeared to be like a dead
person’s hand, because it fell just like a dead person’s hand would
do. I said to him: ‘I suppose you got very excited when you realised
what had happened?’ He said: ‘No; I got suddenly cool, and commenced
to think.’ There was a great deal of blood about, he said, and he got
a bucket and got some water from the tap, and washed the cubicle and
around the cubicle, but seeing that, by comparison, the rest of the
bar looked dirtier than the cubicle, he washed the whole lot. I asked
him: ‘What time was this—7 or 8?’ and he said: ‘Yes, about that time.’
I said: ‘Was it before you met your girl?’ He said: ‘Yes,’ that he had
time to clean himself and go for a walk around the town before meeting
his girl. I asked him did he meet his girl, and he said he did. I said:
‘You took a risk, didn’t you, in meeting her?’ He said: ‘No, I would
have taken a bigger risk had I not met her, because I would have had a
job to prove my whereabouts.’ I said: ‘Could not she see the girl when
she went into the wine cafe?’ He said: ‘No, we had our drink in the
parlour.’

“He said he took his girl home at half-past 10, and caught the twenty
to 11 train to Footscray. When he got to Footscray he got on to the
electric tram for his home. Whilst on the tram he created a diversion
so as to attract the attention of the passengers and conductor, so that
he could have them as witnesses to prove an alibi. I asked him if he
went home, and he said: ‘Yes.’ I said: ‘Did you come back to Melbourne
by car?’ He said: ‘No,’ that he had a bike. I said: ‘A motor bike?’ He
said: ‘No, a push bike.’ I said: ‘Have you a push bike of your own?’ He
said: ‘No, but a man I know, who lives near us, had a push bike, and I
know where it is kept.’ I said: ‘Did you go straight into the Arcade?’
He said: ‘Yes.’ I said: ‘But the gates are locked there at night.’ He
said: ‘Yes, but I have a key.’ I said: ‘When you went to the Arcade did
you go straight in and remove the body?’ He said: ‘No. I went in and
took the girl’s clothes off,’ that he went out and walked around the
block to see if there was anybody about, that he came back and rolled
the body in a coat or an overcoat—I don’t know which—and carried it to
the lane. I asked him was he going to put it in the sewer, and he said
he did not know. I said: ‘Did you not know there was a sewer there?’ He
said he did, but he heard somebody coming, and he went from the lane
into Little Collins Street, and saw a man coming down from the Adam and
Eve Hotel. He added that, if they tried to put that over him, he would
ask what the old bastard was doing there at 1 o’clock in the morning.
I said: ‘Where did you go then?’ He said he went back to the cafe. I
asked him what he did with the clothes. He said he made a bundle of
them, put them on his bicycle, and rode to Footscray, that when he got
to the first hotel on the Footscray road he got off the bicycle and sat
on the side of the road and tore the clothing into strips and bits. He
went round with the bicycle and distributed the strips and bits along
the road, and when he came to the bridge crossing the river he threw
one shoe and some of the strips into the river, and then distributed
more strips, and went down the road and down Nicholson street to the
Ammunition Works, to the river, and threw the other shoe and some more
strips in. He then went back and got his bicycle and rode home to bed.

“Before this I said: ‘Supposing they open the girl’s stomach and find
wine in it?’ He said: ‘What do they want to open her stomach for when
they know she died of strangulation?’ I said: ‘Suppose they do open
it?’ He said: ‘I’m not the only one who could give her wine; couldn’t
I sell a bottle of wine over the counter in the Arcade to anyone, and
couldn’t they give it to her to drink?’ I said: ‘That is so.’ He then
said: ‘What do you think of the case?’ I said: ‘Pretty good; have you
told anybody else?’ He said: ‘No. Sonenberg told me to keep my mouth
shut.’ I said: ‘Why didn’t you keep your mouth shut?’ He said: ‘I can
trust you; anyhow, you are in here.’”

On the next day, said Harding, the conversation was resumed. “I asked
him did he always have a screen up in that cubicle. He said: ‘No; I
used the one in the parlour—the red screen.’” Ross also said (according
to the witness) that there was a good deal of blood about, and on being
asked by the Crown Prosecutor: “Did he say anything about the old man
again?” Harding replied: “He passed the remark that this old bloke,
about 70 years of age, was there, and if they put that over on him he
said: ‘I will ask what he was doing there, and that he is just the sort
of fellow they would pick for that sort of crime, and that they would
never think a young fellow like me would do it.’”

In cross-examination, Harding was asked by Mr. Maxwell: “Did Ross tell
you that, on that night, he had had hard luck in that he was seen by so
many people?” “He did not,” said Harding.

“Did he not tell you that, when he was in the Arcade, a man had come up
and asked him whether he could lend him a pencil?”—No.

Mr. Maxwell was slightly in error there, for what Alberts had said was
that Ross came to him and asked him for a pencil.

“Did he not tell you that, while he was preparing the body for removal,
a man pushed his way into the wine cafe, and that he (Ross) went
out with his hand covered with blood, and served him with a bloody
bottle?”—“No.”

“Did he not tell you that he had told about the tragedy to Ivy
Matthews?”—“No; each time he mentioned Ivy Matthews it was with some
execration.”

Asked as to his record, Harding said he was 30 years of age, had been
convicted “about nine or ten times—it might be eleven.” His offences
included housebreaking, larceny, assault, wounding, escaping from
custody, and a fourteen days’ “solitary” while in prison for making
false statements against two warders. The confession, he said, was made
on Monday, January 23rd, and that same evening he sent for the governor
and asked him to send for Detective Walsh, and when Walsh came he
communicated it to them. The inquest was on the 25th and 26th, and it
finished about midday on the latter date. He thought he saw a report of
his evidence in the “Age” of the next day, and Dunstan might have seen
that report. When asked how long he remained in gaol after making his
statement to the Governor, he answered: “Until the 27th of January—no,
it was more than that, I think the 30th January.”


DUNSTAN’S CORROBORATION.

Dunstan was then called to corroborate Harding. He was awaiting trial
with Harding for housebreaking, and at the Police Court he had pleaded
guilty, and had exonerated Harding. It should be recalled here,
however, that when the two men came up for trial, and the same course
was adopted, the jury declined to accept the story that Harding knew
nothing of the charge, and he was found guilty of receiving. Dunstan
had twice previously been convicted of larceny, and he was one of the
five that were in the remand yard on January 23. His story was that
he heard certain answers made by Ross, but only one question put by
Harding. The answers were: “I was talking to the girl”; “if they do
find any wine inside her, that ain’t to say I gave it to her”; “my
brother was serving”; “I left my girl at half-past 10”; “I ain’t the
only man that has got a disease”; “no, a bike”; “I will ask the old
bastard what he was doing there at half-past 1”; “Ammunition Works.”
The only question he heard Harding ask was: “How was she dressed?”

Dunstan admitted that when Ross came back from the inquest Ross said
to him: “That is a nice cobber of yours, to go into the box and swear
a man’s life away.” Dunstan had not been called at the inquest. He said
that he first told the Governor what he had heard on the Friday or the
Saturday two or three days after the inquest. He had had opportunities
for quiet talks with Harding in the meantime, but there had been no
conversations on the subject of Harding’s evidence. He said he had
never read in the papers any account of Harding’s evidence. Harding had
asked him had he heard the conversation, and he had told Harding that
what he had heard he would tell to the governor of the gaol. He had not
told Harding, because he “didn’t have much time for him.” Being shown a
copy of the “Herald,” with Harding’s photograph in it, and being asked
if he had seen that before, he said: “I do believe I did.” He couldn’t
say when it was, but it was when it was in gaol. He had said that he
never read a paper in gaol, but that didn’t mean that he had never seen
one. It was only a passing glance of the “Herald” as he walked up and
down the yard.

Harding, who had been out of court, was then recalled, and further
cross-examined by Mr. Maxwell. He said that, on the day following the
inquest, he and Dunstan were reading a paper, either the “Age” or the
“Herald”—that is, he was reading it aloud, and Dunstan was looking over
his shoulder. He had often had papers lent from the adjoining yards,
and on these occasions Dunstan got the benefit of them.


ROSS’S MOVEMENTS.

We now come to a different class of evidence—the evidence which
purported to tell of the movements of Ross on the important dates. The
conflict between this evidence and the supposed confessions and the
inherent improbability of the evidence itself will be dealt with later.

David Alberts, an eccentric-looking individual, who described himself
as a vaudeville artist, residing at 47 Little Smith Street, Fitzroy,
said that he left home about half-past 6, and between half-past 7 and
a quarter to 8 he walked into the Arcade through the Little Collins
Street gate. Opposite the wine saloon he saw a man whom he now
recognised as Ross. The man asked him if he could lend him a pencil.
Alberts said: “I am sorry; I have not got one,” and walked on. He
went as far as the middle of the building, and seeing there was no
light in the office upstairs, he walked back, and the man was then
standing in the doorway of the wine saloon. He recognised Ross by his
gold teeth and by his hair, which was brushed neatly back. It would,
he said, be about three weeks after the incident that he went to the
Detective Office and reported it. He knew the reward was offered
in the meantime, “but,” he said, “I was looking for no reward.” It
should, however, be mentioned here that he has shared in the reward.
It may also be taken as certain that, if Alberts was honest, he was
mistaken, for the evidence that Ross was at home between 7 and 8, and
came back to Footscray on the tram with Mrs. Kee and George Dawsey,
may be accepted as being beyond question. Apart from that, however, it
is simply incredible that a man who was engaged in the gruesome task
of washing away the bloodstains of a murdered victim, and who would
have the deepest interest in keeping his presence in the Arcade at an
unwonted hour a close secret, should have gone out deliberately to ask
a passer-by for a lead pencil, which could be of no imaginable service
to him.

Alexander Olson, who described himself as a phrenologist, carrying on
business in the Eastern Arcade, said that, between 9 and a quarter
past 9, he walked out into Little Collins Street, to go to a Chinese
laundry, and he saw the accused man pacing up and down between the back
gate of the Eastern Market and the back gate of the Eastern Arcade. How
this evidence, so far from being damaging, supports the truthfulness
of Ross’s statement to the police, can be seen by a reference to the
statement, for this was the exact time that he was waiting outside the
Arcade gates for Gladys Wain.

Then we come to the evidence of George Arthur Ellis, “and very
important evidence it is,” said Mr. Justice Schutt in summing up to
the jury. Ellis keeps the “lodging-house” previously referred to as
the old Adam and Eve Hotel. On the night of the 30th December he was
sitting at his front door, at the corner of Alfred Place and Little
Collins Street. He saw Ross a little after 9 on that night. He next saw
him before 10 o’clock, then at 11, and two or three times after that,
until ten minutes to 1, when the witness wound his clocks and went to
bed. Ross was walking in and out of the Arcade. There was an arc lamp,
hung over the centre of the street, between where the witness sat and
where Ross was walking up and down. At a quarter to 1 two Italians
came out of the Arcade and bade him good-night. Some time after he had
gone in he heard a loud report, and he rushed out on to the pavement,
and looked up and down for a few seconds, but saw no one. He had never
before seen Ross until that night. The light was almost equal to broad
daylight, and he admitted that he would be as obvious to Ross as
Ross was to him. When the two Italians came out the man walked down
towards Russell Street. They went up to Exhibition Street, and when
Ellis turned to look again Ross was back at his post. He would walk in
and out of the Arcade. Half the gates were open, and it was very dark
inside. He first informed the police of what he had seen on the Sunday
after the tragedy. His house, he said, was a lodging-house—night and
day. Anyone could get a bed for the night; they paid in advance, and
were sometimes gone before he got up. He identified Ross on the day
he was arrested—January 12. He had known the wine shop for years, but
had never been in it, though he had seen some “terrible bad characters
there,” and had seen some “terrible carryings on” there as he had been
coming through from Bourke Street. It was his habit to sit outside his
lodging-house every night as long as it was fine.

The two Italians, Michaluscki Nicoli and Francisco Anselmi, had been
in the Italian Club until about a quarter to 1. The club is at the
Little Collins Street end of the Arcade, upstairs, and the stairs go
up close to the wine saloon. There was an electric light upstairs, and
as they came down they noticed a light in the wine shop. When they
got into Little Collins Street one of them saw a man walking towards
Russell Street. They said “Good-night” to Ellis, and walked up towards
Exhibition Street. A third Italian, Baptisti Rollandi, the caretaker
of the Italian Club, came down about a quarter of an hour or twenty
minutes after Nicoli and Anselmi had gone, to lock the back gate, and
he saw no light in the wine shop when he came down. It was his duty to
lock the gate when the last member had left the club, whatever time
that happened to be.

A curious piece of evidence came out quite incidentally whilst this
last witness was in the box. Ross, at about 3 o’clock, or half-past 3,
on the Friday, had asked Rollandi for the loan of a key of the back
gate. The witness said: “I can’t give my key to anybody; go to Mr.
Clarke, the manager; he might give you one.” This looked suspicious,
until it was revealed that Ross wanted the key in order to get into
the Arcade early on the Monday morning to remove his things from the
saloon, Saturday being the last night of the license, and Monday being
the New Year’s Day holiday. The prisoner did get the key from Mr.
Clarke on the Saturday afternoon, and did remove his things early on
the Monday morning. This was mentioned to the police in the statement,
was no doubt verified by the detectives, and was not challenged when
Mr. Clarke was called. So far, therefore, from the circumstances of
Ross wishing to borrow the key being incriminating, it was entirely
in his favor, for it showed he had no key of his own, and is almost
conclusive evidence against his having told Harding that he had a key,
or having told Matthews that he came back “between 1 and 2,” when he
could not have got into the Arcade unless he had a key.


THE SHEEN OF GOLDEN HAIRS.

Two other pieces of evidence, of still another class, were used against
Ross. One was that hairs, which it was claimed were identified as
Alma Tirtschke’s, were found on blankets taken from Ross’s house at
Footscray on January 12; the other was that pieces of serge, which it
was claimed were identified as being part of the child’s dress, were
found on January 27 on the Footscray road, thus confirming the supposed
confession to Harding.

The story of the hair is one of the most remarkable and one of the most
unsatisfactory, in a case every feature of which is unsatisfactory.
On January 3, the day Alma Tirtschke was buried, Constable Portingale
went to the house where the body was lying, and with a pair of scissors
he cut a lock of hair from the left side of her head, just over the
ear, “and about six inches from her head.” When the detectives went
to Colin Ross’s house to arrest him on January 12, nearly a fortnight
after the tragedy, they took two blankets from a sofa in a vestibule.
“Brophy and I,” said Piggott, “opened one of the brown blankets which
were folded up. I turned the blanket back, and I could see the sheen of
what appeared to be some golden coloured hair. I said to all present:
‘Fold those blankets, and carefully place them in the car; they must
go to the Government Analyst.’” They did go to the Government Analyst
next day. Where they were kept in the meantime was not disclosed on the
trial, except that Ross, at about 2 o’clock on the afternoon of his
arrest, saw them lying across the back of a chair in the clerk’s room
of the Detective Office. The detectives, in the room of the Government
Analyst (Mr. Price), next day, spread the “reddish brown blanket” over
a wooden screen, and removed from it in his presence twenty-two hairs.
Five hairs were taken from the other blanket by Mr. Price himself. Mr.
Price then took ten or twelve hairs from the envelope containing Alma’s
hair. They had an average length, he said, of 6½ inches, the longest of
them being 9 inches. Let it be remembered that these were cut 6 inches
from the girl’s head. He then took the twenty-two hairs, and found
they, too, averaged 6½ inches, but the longest of them were 15, 12, 10,
9 inches, down to 2½ inches.

“They were not identical in colour with the hairs in the envelope,”
said Mr. Price; “they were of a light auburn colour. They were not a
deep red; they were of a light red colour. They were not cut-off hairs;
they had fallen out, or had been taken from the scalp somehow or other.
They did not appear to have been forcibly removed. One had a bulb root,
but the others did not show the presence of any bulbous portion or
root, as they would if dragged direct from the scalp. I came to the
conclusion that they were hairs about to be cast off in the ordinary
process of nature.”

“If hairs were cast off,” Mr. Price was asked, “would there be any
distinction in their colour as compared with hair that was actually
growing?” “Well, I cannot say that directly,” he replied, “but the
conclusion I formed, as regards the hairs I found on the blanket, was
that they did not come from the frontal portion; that they had not
been exposed much to the light; that they came from the back portion
of the head, and that that is the reason why their colour was not as
deep as those on the front portion.” The two sets of hair, he said,
were “very similar.” Microscopically, they agreed, because there was a
kind of coarseness about them, and when treated with caustic soda it
tended to bring out the pith portion of the hair, “and that pith was
identical with the hairs on the blanket.” The five hairs from the grey
blanket, Mr. Price said, were “similar in colour” to the hairs on the
reddish brown blanket, but that was all he had to say about them. When
being re-examined, he said that his reason for thinking the front and
back of the hair would differ was that in one head he had tested “the
frontal portion was quite red, and the hair from the back of the head
quite dark.”

On cross-examination, Mr. Price admitted that it was “several years”
since he had last made an examination of hairs from any woman’s head.
“It does not often come under my notice,” he added. He had made very
few such examinations in his life. Not only did the hairs from the
child’s head and the hairs from the blankets differ in colour, he said,
but they differed in diameter, and it was possible, but not probable,
that the hairs on the blankets may have come from another head. He had
examined many hairs since he had conducted this particular examination,
and he had, in the course of his examination, found some hairs that
were as like Alma Tirtschke’s as the hairs on the blankets.

It will be shown later that Mr. Price might, on the facts which he
deposed to, have been called as a powerful witness for the defence.
Yet in the atmosphere that prevailed, it seemed to be assumed that his
evidence advanced the case for the prosecution.


THE FINDING OF THE SERGE.

The finding of some pieces of serge on the Footscray Road, on the 26th
or 27th day of January, was also relied on strongly by the Crown. Mrs.
Violet May Sullivan was on the Footscray Road on January 26, and she
saw certain strips of serge on the left-hand side going to Kensington.
She didn’t pick them up. On the next day she read, in the alleged
confession to Harding, that Ross had said that he had strewn the serge
of the girl’s dress on the Footscray Road, and Mrs. Sullivan went back
to the road, and on the opposite side to where she had seen it on the
previous day she saw a roll of serge. She picked it up and handed it to
the local police. One piece she left at home. The serge was produced in
court. One piece was fairly large, in no sense a strip, looked quite
new and fresh, and bore no signs, as Mr. Justice Isaacs indicated in
his High Court judgment, of having lain on a dusty and busy road for
nearly four weeks. Of the rest, one was a strip of a quite different
texture, and looked much older than the piece. There were also a couple
of other fragments. None of them appeared to have been four weeks in
the dust. The serge that she had seen on the first day, Mrs. Sullivan
said, resembled the fragments, but were not like the larger piece, so
that, whether it was the same bundle she saw on both days does not
appear. When Mrs. Murdoch, the girl’s aunt, was in the box, the serge
was handed to her for identification, and she was asked to say what
she had to say about it. “It is very similar to the serge she had on
on that day,” said the witness. “All of it?” she was asked. “That has
nothing to do with it, I should say,” said the witness, discarding the
larger piece. The three other pieces, she said, were “very similar”
to the material of which the girl’s dress was composed. When asked
further, she said she recognised a row of stitching on two of the
pieces. “Do you recognise it as a row of stitching you did yourself?”
she was asked, and she answered: “No; I =fancy= the stitching
there is from the old stuff I made up. I =believe= that is the
stitching. It did have stitching on.” She remembered the old stitching,
because she had had some difficulty in ironing it out. She made the
dress out of old material. It was box-pleated, and the stuff she had
in her hand =looked= to be box-pleated, =but= there was a
portion missing.

Summarised, then, Mrs. Murdoch’s identification amounted to this, that
she remembered there was some stitching on the dress that she had made
up, and there was also a little bit of stitching on two of the three
pieces handed to her which she “fancied” was the same stitching, while
the fourth piece handed to her, which was part of the same bundle, “had
nothing to do with it.” It was on such “evidence” that Colin Ross was
hanged!

It will be remembered that Harding’s account of what Ross said was that
he “tore the clothing into strips and bits, and distributed them along
the road.” Yet we are asked to believe that, by some operation of the
laws of cohesion peculiar to the Footscray Road, four or more of them
had rolled themselves together by the 26th, and that they had succeeded
by the next day in crossing the road and joining up with another and
dissimilar piece of blue serge.

On January 23 the police knew that Ross was supposed to have said that
he scattered the fragments of the girl’s dress along the Footscray
Road. If this could have been verified it would have clinched the case
against Ross, for it would have established beyond question the fact
of some confession. Every effort should have been directed to clearing
up this point. The road Ross said he took was clearly indicated—so
clearly that it showed beyond question that Harding knew the locality
well. If that is doubted, let anyone who does not know the locality try
to describe Ross’s alleged route after reading the description once.
If one knows the locality, he has a mental picture, as the words are
spoken, which he can reproduce. If he does not, the words are words
merely, and cannot be repeated without rehearsal. But the point is
that, on getting this alleged confession, the detectives should have
got half a dozen men to take the road, or the two roads if necessary,
in a face in order to discover the serge. It was so plain, Mrs.
Sullivan said, that “it could not be missed.” The local police did not
find it, the detective’s agents did not find it, but a casual wayfarer
stumbles across it twice, because “you could not miss it.” Piggott’s
answers to questions were that, on learning of the confession, “we took
certain steps,” and “gave certain directions”; and his explanation of
the failure to find the serge was that his men searched the wrong road!
One would have liked to have heard the comments of, say, the late Mr.
Justice Hodges, on this extraordinary admission.


THE MEDICAL EVIDENCE.

The last class of evidence, though given first on the trial, was the
medical testimony. It showed that there was an abrasion on the left
side of the neck which extended across the mid-line, and measured
2½ inches in length by ⁷/₁₆ of an inch in breadth at its widest
part. Below this, on the left side of the neck, there was a narrower
abrasion, about ⅛ of an inch in width, and not extending across the
mid-line. There was another abrasion on the left side of the lower
jaw, an inch in length, and a quarter of an inch in breadth. There was
a small abrasion on the outer side of the right eye, a small abrasion
in the centre of the upper lip, another small abrasion at the back of
the right elbow, and the skin of the back of the left elbow had been
slightly rubbed. There was some bruising and lividity on the right
side of the face. The upper part of the chest was livid, and showed
small hæmorrhages. Hæmorrhages were also found in the scalp and on the
surface of the eyes. There were some small bruises on the right side of
the neck. Internally, there was a bruise on the left tonsil.

In view of absurd rumours that have been circulated as to the injuries
to the body, it is well to give Dr. Mollison’s next words as he uttered
them: “I think those were all the abrasions and bruises.” It has got
abroad that there were facts about this case that were unprintable.
There is no truth in the report. With the exception of one coarse
sentence said to have been used to Matthews, and one coarse word said
by Harding to have been used by himself, there was nothing in the case,
from start to finish, which has not appeared, either literally or
euphemistically, in the reputable press. The child had been violated,
but the cause of death, in the doctor’s opinion, was strangulation from
throttling. The violation would have led to a considerable amount of
blood being lost. The stomach was opened, and contained some thick,
dark-coloured fluid, mixed with food. No smell or trace of alcohol
was detected, but the doctor added that the smell of alcohol would
disappear fairly rapidly. In this, it may be here stated, Dr. Mollison
is not supported by a number of other medical men of standing. The
post-mortem examination was held within a few hours of the discovery
of the body, and within about sixteen hours of the child’s death,
if she died between 6 and 7. “Alcohol,” said the doctor, “starts to
be absorbed almost immediately it is swallowed.” This subject was
discussed at the British Medical Association Conference in Glasgow
at the end of July, 1922. Professor Mellanby, who has made a special
study of the effects of alcohol on heredity, said that, “after a good
carouse, it had taken from ten to eighteen hours for the alcohol to be
cleared out of the circulation of a man.” Now, three glasses of sweet
wine is a “good carouse” for a child who probably never drank a glass
of wine before. Sweet wine contains a very high percentage of alcohol.
Accepting the Harding story, the girl was dead within an hour or two
of taking them, and the process of clearing the alcohol out of the
circulation would cease, or be greatly retarded. And still the fact
remains that no trace of alcohol was found in the body.


DETECTIVE BROPHY’S BLUNDER.

That was the full case as made by the Crown against Ross, with the
exception of an admission said to have been made to Detective Brophy.
This admission may be stated and dealt with at once. Brophy said that,
on the 16th of January, he took a man named White to the Melbourne
Gaol, and confronted him with Ross. White said: “Yes, that is the man.”
Brophy then said: “This man has identified you as the man whom he saw
in the Arcade speaking to the little girl, Alma.” Ross said: “Oh,”
and then, turning to White, he said: “What time was that?” White said
about 3.30. Ross said: “Yes, that’s quite right.” Ross’s version of the
conversation, as given in evidence, was that Brophy said: “This man
says he saw you talking to a girl in the Arcade at 3.30, and he said:
‘That is correct.’” Brophy made no comment. It is not only clear that
Ross’s was the correct account, but it is extremely hard to see how an
intelligent man could have any doubt about it. Let us look at the facts.

Ross had denied on December 31, when first seen by the detectives, that
he had spoken to “the girl Alma,” but had said that he was speaking
to a girl at the door at about the time mentioned; in his written
statement on January 5 he denied that he had spoken to the girl; when
brought to the Detective Office, under arrest, on January 12, Piggott
said to him: “It will be proved that the little girl was seen in your
wine shop on December 30,” and he promptly answered: “That’s a lie.”
From first to last he had denied specifically that he had ever spoken
to the girl Alma, and from first to last he had said that he was
speaking to Gladys Wain at the saloon door about that time. Gladys
Wain, it should be remarked, though a married woman, is very small,
and extremely girlish in appearance. Yet we are asked to believe that
Ross, by a quite casual remark on January 16, made an admission, the
most important by far he had made during the course of the police
investigation, and that one of the detectives in charge of the case
turned away from him without the slightest comment on his startling
admission.

But there is the further fact that White cannot have said that he saw
Ross speaking to “the little girl Alma,” for the simple reason that
White did not know Alma. From that it follows that Brophy could not
have said, if he were speaking accurately—and a detective should be
accurate—that “this man saw you speaking to the little girl Alma.”
If Ross had intended to refer to Alma, he would not, and need not,
have inquired “What time was that?” The time would have been quite
unimportant. If he had another girl in his mind, the enquiry as to
the time was natural. In any case, the evidence never should have
been tendered or admitted, for if it was sought to be proved that
Ross was seen speaking to the murdered girl the proper way to prove
it, according to the “rule of best evidence,” was to call White to
prove it. And White was not called, not because he had disappeared,
but because it was known that he would not swear that he had seen Ross
“talking to the little girl Alma.”

[Illustration]



PART III.

ANALYSIS OF THE EVIDENCE.


In seeking to show how doubtful it is that Ross should have been
convicted on the evidence, it is not proposed to go deeply into the
case for the defence, and argue that the weight of testimony lay with
the prisoner. It will be shown later that not one word that Ross said
as to his movements was shown to be false, and that every word he did
say was supported by strong evidence, but in the meantime the Crown
evidence will be subjected to analysis, with a view of showing that
from it it was impossible to arrive at a certain conclusion that Ross
was guilty.


WHY CONFESS TO MATTHEWS.

Let us take first the evidence of Ivy Matthews. Suppose Ross were
guilty, why should he have made a confession to this woman? They were
at daggers drawn. He had cast her out of his employment with terms of
the deepest insult. They had fought bitterly, through their lawyers,
almost up to the date of the tragedy. They had not seen one another,
much less spoken to one another, between the date she was turned out of
his employment and the 31st of December. Yet on the 31st of December,
according to the Matthews evidence, we have them addressing one another
as “Ive” and “Colin,” and we have Ross handing his life over to the
unsafe keeping of this “woman scorned.”

The strongest appeals were made through the press for anyone who saw
the child to inform the police. But Ivy Matthews, if her evidence is
true, not only saw the child in the saloon on the Friday, but on the
Saturday she had a full confession from Ross. Yet she remained silent,
according to herself and the detectives, until she gave her evidence at
the inquest. She gave no reason for keeping silence, and she gave two
reasons for eventually speaking. At the inquest she said: “I pledged
my word to Ross I would not give evidence against him,” but even if
he had not been arrested, she said: “Perhaps my conscience might have
made me tell.” “If some other man had been put in the dock on this
charge,” she added, “I would have come up and said Ross is the guilty
man.” On the trial, when asked why, if she had given her word, she had
not kept it, she answered: “Would you expect me, a woman, to keep the
secret?” But the fact is that she did keep the “secret” for over three
weeks. At the inquest she said that the circumstance that the £1000
reward was offered should not be put to her, for, she said, “money and
those sort of things hold no interest for me. I do not suppose I will
get anything, and I do not want it.” But, again, the fact is that now
she has been allotted £350 out of the £1000 Government reward offered,
and £87/10/- out of the £250 offered by the “Herald.” This is not a
negligible inducement for a lady who had done no work between November
and the end of February.


CHANGES IN MATTHEWS’S EVIDENCE.

But it is the changes in Matthews’s evidence, as between the inquest
and the trial, that cast the most doubt on it. She makes Colin Ross in
his confession, as retailed at the trial, get the girl to come out of
the cubicle in the afternoon, and stay in the beaded room for an hour
or so, while he talks to Gladys Wain; she makes him bring the girl
back to the cubicle when Gladys Wain is gone; she makes him cause the
girl’s death there after 6 o’clock, and then carry the dead body back
to the beaded room, in order that he may make love to Gladys Wain in
the cubicle later on; she makes him come back, after seeing Gladys Wain
home, and carry the dead body back from the beaded room to the cubicle.

There are several features about that narration which are absolutely
incredible. Nothing was said about any of these incidents at the
inquest. In the first place, how did this modest, good, retiring
little girl come to remain for over an hour in the beaded room in the
afternoon, while Ross talked with Gladys Wain in the cubicle? It was
separated from the Arcade only by a sheet of glass, and there were two
doors opening into the Arcade through which the girl could have passed.
Again, it is utterly unbelievable that Ross would have indulged in the
unnecessary perambulations with the dead body, as deposed to, and it is
equally unbelievable that, if he had done so, he would have given those
details to a person to whom he was confessing the simple fact of the
murder.

Why, then, were the additions put in? The answer is quite simple.
At the inquest Olive Maddox gave her evidence before Matthews, and
Matthews was out of court. Olive Maddox said that she saw the child in
the beaded room at five minutes to 5. Ivy Matthews followed her into
the witness box, and said that she saw the child in the cubicle at 3
o’clock. How or why did it come about that the child went from the
one room to the other? On the trial Matthews has to be, or thinks she
ought to be, ready with an explanation. So she makes Ross say that he
sent the little girl into the beaded room while he was with Gladys Wain
in the cubicle. According to the stage setting, the death has to take
place in the cubicle, for there is where the only couch was, and there
is where the blankets with the sheen of golden hair came from. So Ross
is made to say that, when Gladys went, he got Alma to come back again
from the beaded room to the cubicle, where she met her death soon after
6. Ross in his statement said that Gladys Wain was with him again in
the cubicle in the evening from 9.15 for over an hour. The police were
satisfied that that was a fact. Matthews has again to reconcile her
story with that position, and again she is equal to it. She makes Ross
say that he carried the dead body from the cubicle to the beaded room
in order that he may make love to Gladys in the cubicle. But before she
gave her evidence on the trial, the hero of the bloody bottle had been
in the box, and his evidence had appeared in print. He is supposed to
have seen and heard certain things which showed that the body was in
the cubicle after midnight. Matthews thinks it desirable to meet that,
so she makes Ross say that he came back to the cafe after seeing Gladys
home, and before he went home himself, and carried the body once more
back from the beaded room to the cubicle. No possible theory can be
advanced why Ross should have done all these things; no possible theory
can be advanced why, if he had done them, he should have given the
details of them to Matthews. But if we assume Matthews’s knowledge of
Maddox’s evidence, and Upton’s evidence, and her knowledge that Gladys
Wain was in the cubicle from 9.15 until after 10.30—all of which we
are entitled to assume—then we are in possession of ample material for
explaining why Matthews should have invented the details.

Then there is the change in the place at which the conversation is
supposed to have taken place. At the inquest it was put as beginning
in Little Collins Street, at the end of the Arcade, and as being
resumed a short distance from the end of the Arcade, but still in the
street. On the trial it was put as beginning, and going on for a little
time, at the door of the saloon, and then as being resumed, when Ross
suggested that people were looking, out in Little Collins Street. The
significance of this change will not be realised unless it is disclosed
that just prior to the trial notice was served on the defence that it
was proposed to call as a witness on the trial Julia Gibson, otherwise
Madame Ghurka, to prove that she saw Ross talking to Matthews on the
Saturday afternoon. Ghurka was not, in fact, called. There may be some
doubt as to whether her evidence would have been admissible. Probably
it would have been admitted in rebuttal, when Ross swore that he did
not have any conversation with Matthews on that afternoon. At any rate,
her evidence was not tendered. The fact remains, however, that Ghurka
must have told the police, or Ivy Matthews must have told the police,
that Ghurka saw the two in conversation, and was prepared to testify to
it. She could not, from her own door, have seen them in conversation in
Little Collins Street.

Matthews, in her evidence, said that she had not told the police that
Madame Ghurka had seem Ross talking to her, and added that, if Madame
Ghurka was to give evidence of having seen them conversing, she did
not know how the police acquired the information. When asked, however,
“Have you discussed with Madame Ghurka at any time anything about this
case?” she answered: “To say I had not would be a lie—I have.”

It has been published in a Sydney paper, which, during and after the
trial, was in the closest touch With the witnesses for the Crown,
that it was Madame Ghurka who induced Matthews to tell all she knew
about the case. It is also a fact that both were well acquainted
with Ross, and both were unfriendly with him, a circumstance which
would make discussion natural; and that Matthews had lived at Madame
Ghurka’s house from November, 1921, up to the date of the trial, a
circumstance which would make discussion easy. It is also a fact that
Madame Ghurka and two of her family have shared in the reward, though
nothing has ever appeared officially to show what services Madame
Ghurka rendered to the police, which entitled her thus to share. We
may assume, further, that the reward was not allocated until the views
of the police had been ascertained. When we know what Madame Ghurka’s
services to the State under this head were, and when we know—what may
appear irrelevant, but what is very germane to the matter in hand—why
nobody was ever prosecuted for the recent theft of Ivy Matthew’s box
of clothing, and when we know why a charge of indecent language laid
against Sydney John Harding was precipitately withdrawn when called
on in the police court, then we shall know something which has a very
close connection with the making of a case against Colin Ross.[3] And
if Madame Ghurka gave information (undisclosed) to the police, which
they felt entitled her to share in the reward, her information should
be considered in the light of the fact that she gave evidence in a
recent divorce suit, and was then described by the presiding judge as
a “bitter, vindictive woman,” and “the sort of woman who would say
anything, whether it was true or false.”

[3] Ivy Matthews, in June, 1922, reported that a box of clothing,
containing some money which she had ready packed to take to Sydney, had
been stolen. It had been called for by a cabman in her absence, and
taken away. Some weeks afterwards the box was discovered at the railway
station; but about £20 worth of the clothes were missing. That was the
last ever heard—publicly—of the matter. In September, 1922, Harding was
arrested on a charge of indecent language. When his case was called on
next morning at the police court, the prosecuting sergeant said, “The
accused has apologised to the constable; the constable is satisfied,
and wishes to withdraw the charge.” It was withdrawn accordingly.
All offenders do not get so easily out of their troubles, and plain
constables are not, as a rule, allowed to withdraw charges for public
offences. But no doubt Harding was able to say, “I have done the State
some service, and they know it”—with the accent on the “they.”


POWERS OF INVENTIVENESS.

Incidentally, during the trial, a remarkable sidelight was thrown
on Ivy Matthew’s powers of invention, and her unscrupulousness in
exercising them. The Crown Prosecutor cross-examined Mrs. Ross at some
length as to a visit she is supposed to have paid to Ivy Matthews on
February 6, in order to “beseech” her not to give evidence against her
son. The passage is worth transcribing in full.

“Have you ever discussed anything with Ivy Matthews?” asked Mr.
Macindoe, the Crown Prosecutor. “No,” was the answer, “I have only had
one conversation with Ivy Matthews in my life,” and question and answer
proceeded as follow:—

When was that?—That was the time of the shooting affair. That is some
time back.

I am going to remind you of the 6th of February last?—I had no
conversation with Ivy Matthews on February 6.

Do you know what day of the week it was?—No, I could not tell you.

Do you know where you were on February 6?—On February 6 I would be
home. I have not been out of my home very much since this trouble has
been on.

You have been into town since this trouble?—I have only been into town
to see my son Colin.

Have you not seen Ivy Matthews since the inquest?—At the inquest, but
not since the inquest.

Do you know where Rathdown Street is?—I know Rathdown Street.

Do you know where Mrs. Julia Gibson (Madame Ghurka) lives?—I do not.

No idea?—I have not the slightest idea where she lives.

Do you know where Ivy Matthews lives?—I do not.

Or was living in February?—I do not.

Did you not go to the house where Ivy Matthews was living in February
of this year?—I did not.

You swear that?—I will swear it.

You know, of course, that Ivy Matthews had given evidence at the
Morgue?—I did; at the Coroner’s inquiry, you mean?

Yes; and that she had given evidence against your son?—Yes; I know that.

Have you ever seen her and talked about that evidence?—I have never set
eyes on Ivy Matthews since the day I saw her at the Coroner’s Court.

Do you say you did not go to the house in Rathdown Street, and were
shown into the parlour by a maid on February 6, and that you asked for
Ivy Matthews, and that Ivy Matthews came down to that parlour?—I did
not; I can swear it.

And that you besought her not to give evidence?—No. I never did.

If you had done it would you say so?—I would. I had no reason to do so.
Ivy Matthews is a woman I would not demean myself to talk to, let alone
to plead to.

Why?—I talked to her once and once only, and that was quite sufficient
for me.

Those who heard Mrs. Ross’s answers to the questions put to her,
saw the look of mystification spreading over her face as they were
developed, heard her solemn declaration that she had never even set
eyes on Ivy Matthews since the day she saw her at the Coroner’s Court,
heard her earnest, low-voiced assertion that “Ivy Matthews is a woman I
would not demean myself to talk to, let alone to plead to,” could not,
for a moment, doubt that she was speaking the truth. A somewhat similar
line of cross-examination was pursued when Stanley and Ronald Ross were
in the witness box, but in their case a different date was alleged.
Stanley Ross was cross-examined on the point as follows:—

Do you remember, on February 3, the Friday night after the inquest,
going to Rathdown Street, Carlton?—No.

Did you know where Ivy Matthews lived?—No.

Will you swear you did not know that Ivy Matthews lived in Rathdown
Street?—I know she lived in Rathdown Street, but I could not take you
to the place.

I did not ask you that, I asked you if you knew where she lived in
Rathdown Street?—No.

Did you and your brother Ronald go to Madame Ghurka’s or Mrs. Gibson’s
house on the night of February 3?—No.

Or at any time in February?—No.

I am going to put this to you that a maid-servant opened the door to
you?—No.

And that you went in and brought Ivy Matthews to the gate to talk to
your brother Ronald?—Never in my life; I could not tell you where
Madame Ghurka, or Mrs. Gibson, lives.

So you say—and did you say to Ivy Matthews: “Are you going on with
this?”—No.

Or did your brother?—No.

And when she said: “I am” did you then, or did your brother, say to
her: “If you give evidence you will have your lights put out”?—No.

Or anything to that effect?—No.

Have you ever spoken to Ivy Matthews since last December?—Yes.

Where?—On the Thursday, January 5, that we were detained at the
detective office.

Since then have you spoken to her?—No.

Never seen her?—No, only at the Morgue. I saw her at the inquest.

You did not speak to her there?—No.

When Ronald Ross was under cross-examination, he was questioned as to
the same alleged interview. A woman was asked to stand up in Court, and
he was asked if he knew her by sight. His answer was: “I never saw her
in my life before.” He was then further interrogated.—

Did you go to Rathdown Street on February 3 last and see that young
woman?—I never saw that woman in my life before.

Did you see Ivy Matthews on February 3?—I did not.

At Rathdown Street, Carlton?—No. I did not.

Did you and your brother go out there to see her?—No.

Were you together on that day?—We might have been.

Were you at Rathdown Street on that day?—I say I do not remember where
I was.

You might have been?—Perhaps I might have been; on that particular day
goodness knows where I might have been.

Did you go with your brother to a house where Ivy Matthews lives?—I did
not.

Did your brother go to the front door and ask Ivy Matthews to come to
the front gate?—I do not know.

In your presence?—He did not.

Did Ivy Matthews come to the front gate and did you tell her if she
went on with this case she would have her lights put out?—No; I did not.

You would admit it if you had done it?—Yes; I am here to tell the truth.

One brother was out of Court while the other was giving his evidence.
It was again perfectly clear that neither brother had the slightest
knowledge of any such interview. It would have been competent for the
Crown to have called evidence to prove this conversation if it had
taken place, but no application was made to call the evidence.

There is an importance—indeed a tremendous importance—about this series
of questions which, as they led to nothing, may not be appreciated by
the layman. According to the rules of cross-examination, Counsel may
not ask random questions. His questions must have a basis of knowledge,
or at least of information, to rest upon. Before the Crown Prosecutor
could ask these questions, he must have had information to the effect
indicated by his cross-examination. It is impossible to conjecture
anyone who was in a position to give such information but Ivy Matthews.
If that be so, then Matthews absolutely invented the stories. There is
not a scintilla of truth in either of them.

But in still another way Matthews’ story can be shown to be, if not
false, at least highly improbable. She said that at 3 o’clock on the
Friday she was standing at the door of the wine saloon, talking to
Stanley Ross. “I was at the wine cafe door,” she said, “but not in
the saloon.” She came to the door, she said, because Stanley beckoned
her up from lower down the Arcade, where she was talking to a friend.
Stanley, of course, denies this absolutely. But if it were true, then
Stanley, in order to see her standing down the Arcade, must himself
have been standing flush with the building line of the cafe, and could
not have been in the recess by which the door is entered. When she
came to Stanley, she said she saw Ross come out of the cubicle, and as
he did so she saw the little girl sitting on a chair in it. When Ross
got the drink and went back, she says he must have spoken to the girl
because “she parted the curtains and looked straight out.”

[Illustration]

Now if Ross had taken that little girl into the room, one would have
thought that he would have been very anxious not to reveal her presence
unnecessarily. According to Matthews, he seems to have been at pains to
disclose it.

But if the plan of the saloon[4] (on page 68) is looked at, it will be
noticed that before Matthews could even see the curtains on the cubicle
she would have to be standing right in the doorway of the saloon and
not merely flush with the building line. There are two circumstances
which make it improbable that she would be so standing. One is that
if Stanley were standing clear of, or even flush with, the building
line, the conversation, if any, would be likely to take place where he
was standing. The other is that she was not likely to stand right in
the doorway of the saloon, when she was not on speaking terms with the
proprietor of it. But again, the child, in order to be seen at all,
would have to have her chair almost blocking the 2ft. 7in. doorway of
the cubicle. The whole room is only 6ft. by 5ft. 5in., and Ross must
have placed her in the only portion of it in which she could be seen
by a person standing right in the doorway. Yet Matthews’ glance was
sufficient to enable her to describe the girl as wearing a little
mushroom-shaped hat “coming round her face something like mine”—a white
hat with a maroon sort of band like the one produced, pushed back a
little from the face, but coming down around the face, a white blouse
or jumper “with just straps over the shoulder; her hair was a sort of
auburn shade, not particularly a ginger hair, but that pretty shade
of auburn,” while as to her age “she struck me as being 12 or 13.” An
excellent example of instantaneous mental photography in colours!

[4] This plan is only approximately to scale. The sloping wall going
in to the doorway is actually not at as sharp an angle as the plan
shows. Each of the big rooms is, over all, 15ft. 10in. x 11ft. 4in.
The cubicle occupies 6ft. x 5ft. 5in. of the one room, and the beaded
room occupies 7ft. 6in. x 6ft. 7in. of the other room. The walls of the
beaded room went almost up to the ceiling. There was no door where the
“arch door” is shown, but only a doorway with curtains hanging in it.

There are some further facts about Matthews which help to explain why
she, although, according to the detectives, she made no statement to
them until she gave her evidence in the Coroner’s Court on January 25,
has yet got away with the lion’s share of the reward. That, however,
will be dealt with fully when we come to deal, under the head of the
new evidence, with the extraordinary story of a man named Halliwell.


OLIVE MADDOX TESTED.

Olive Maddox’s testimony is also worthy of a few lines of examination.
She said that, having seen the girl in the beaded room, two men also
being in it, she came out and said to Ross: “That is a young kid to
be drinking there.” The room in which the child was alleged to be was
only 7ft. by 6ft. 7in. The girl, therefore, must have been within three
or four feet of the men. Ivy Matthews, in her evidence at the Morgue,
said it was no unusual thing, when respectable women came into the
place for a drink with a child, to show them into the little room.
Olive Maddox, a daily visitor to the place in Matthews’ time, must have
known of this practice. Therefore, even if she did see the child in
the same little room with two men, there was not the slightest thing
about the circumstance to suggest that she was not with one of the men,
and everything to suggest that she was. At the worst, she had an empty
lemonade glass in front of her, and that, combined with the fact that
she was with two men, would never have prompted Maddox to say anything
about “a young kid” drinking.

When it is remembered that Matthews and Maddox were old and close
acquaintances, and that Maddox admitted that it was after consultation
with Matthews that she decided to speak to the police, and when it is
remembered that this consultation was just at the time that Matthews
was trying to enlist the services of Halliwell, which will be referred
to later, and when it is remembered that just at this time the reward
had been increased to £1250 (including £250 offered by the “Herald”),
it does not seem hard to suggest what may have happened. Matthews says
that she saw a drink being brought into the cubicle to the child at
3 o’clock. It was suggested in the Appeal Courts that Maddox was to
say that she saw the child in that room at 5 o’clock, with an empty
glass before her; that Maddox was a stupid girl—according to her own
testimony, barely able to read; that she blundered in the simple task
assigned to her by the master mind, and put the child in the wrong
room. The rooms at that time had no distinguishing names. It was
not until the trial that they became known as the “cubicle” and the
“beaded” room. Matthews did not know at the inquest of this blunder,
but on the trial she tried to repair it by telling the absurd story of
how Ross got the girl to go into the beaded room, and kept her there by
some form of mesmerism for over an hour, while he entertained Gladys
Wain in the cubicle.

Maddox herself says that when she saw the girl in the beaded room
there were three girls and two men in the adjoining parlour, and there
were two men in the little room with her. It was a busy afternoon,
the eve of the closing of the wine saloon, and almost the eve of the
New Year. If that girl were in the wine shop from 3 until 5 or 6 she
would have been seen by anything from fifty to a hundred people. It is
incredible that all these people were degenerates, who would connive
at a dastardly outrage, by whomsoever committed. Yet the simple fact
remains that the only persons who came forward, in response to earnest
and widely-published appeals for information about the girl, were
the prostitute, Olive Maddox, and her mysterious friend, with the
inscrutable past, Ivy Matthews. And neither of them came forward until
a handsome reward was offered for the information. Of this reward,
Ivy Matthews has received £437/10/-, and Olive Maddox £214/5/-. If we
know all the services rendered by each, the positions should have been
reversed, for it was Olive Maddox who first gave the information which
put the police on what they, no doubt, still honestly believe was the
right trail. But do we know all? It will be shown later that, at the
time Colin Ross’s doom was sealed, we did not.


HARDING’S COCK-AND-BULL STORY.

Turning now to the alleged confession to Harding, it will be seen that
it will bear analysis no better than Matthews’s. The questions supposed
to have been put by Harding bear their own refutation.

Take the words near the opening:—“I said: ‘Did you see the girl?’ He
said: ‘Yes!’” What would have happened had the conversation reached
that interesting stage? All eagerness, Harding would have followed it
up by asking what happened. But what does he do? He inquires weakly,
like a lady of fashion: “How was she dressed?” With great minuteness
Ross described her dress, down to her shoes and stockings, and with
great accuracy Harding remembered it all. Then Harding inquired, still
curbing his curiosity: “Did you tell the detectives that you saw her?”
And Ross replied: “Yes; but I told them that she had black boots”—a
little touch not borne out by Ross’s written statement, but clearly
designed to furnish corroboration of Harding’s story that Ross had
confessed. Then a little later on we have Harding interposing with
the unreal inquiry: “What time was this?” as if time were, at that
stage of the inquiry, either important or interesting. There are many
other questions equally unreal. The purpose of all of them is quite
clear. They are plainly detective questions, devised to establish at
the outset, as he had no doubt been instructed to establish, or as
he knew by experience detectives are wont to establish, the identity
of the girl Ross was talking about. There was to be left no room for
misunderstanding, such as Brophy left in his bungled interview of the
16th.

Again, take the question supposed to have been put by Harding when
the conversation was resumed on the second day. It is on a different
footing from the others. “I asked him,” said Harding, “did you always
have a screen up in that cubicle?” and Ross is supposed to have
replied: “No; I used the one in the parlour—the red screen.” The
reference, apparently, was to the screen which hung in the arched
doorway between the two main rooms of the saloon. Can any earthly
reason be suggested why Harding should have put such a question to
Ross? The only possible answer is: “None whatever.” But a reason can
be suggested why, if his story were an invention, he should have
invented that particular part of it. Harding had been in the saloon,
and he could not have missed the conspicuous screen that hung between
the two rooms. He would probably not have remembered clearly whether
there was a curtain over the cubicle door or not. For aught he knew,
he might have been confronted by fifty witnesses who could swear truly
that there never had been a curtain there. He tried to rise to the
occasion, and invented the ludicrous story of Ross having said that he
removed the large curtain and hung it over the cubicle door to hide the
little girl from the public gaze—the same little girl as, according
to Matthews, Ross got deliberately to reveal herself when Matthews
took her hasty glance over Stanley Ross’s shoulder. The idea of Ross
removing the large curtain from between the rooms and hanging it over
the cubicle door (all in the presence of Stanley), in order to prevent
Stanley, amongst others, from seeing the girl, would be laughable if
anything about this terrible case could be laughable.

Being reticent up to a certain stage, Ross, according to Harding, then
determined to speak, for what reason no one can suggest, seeing that
he knew Harding’s reputation as a “shelf,” and seeing that he had been
warned by his solicitor to “keep his mouth closed.” That much Harding
admitted, but in fact Ross was warned that the remand yard would be
full of pimps. The Harding touch was made apparent by another little
incident. He makes Ross throughout speak of the small compartment at
the end of the bar as “the cubicle.” It is a most fitting name, and
it has stuck to the room throughout the trial, but it had never been
called that by the Rosses. They had never even heard the word, and
prior to the trial did not know what it meant. But Harding, during
his inglorious war service, had been employed on a hospital ship,
and that is the expression used in hospitals to denote a little room
with a couch in it such as this. Then Ross is made to say that none
of the customers could see the girl because they were in the parlour,
whereas, according to Matthews, the little girl thrust her head out
as if in order to be seen, and, indeed, thrust it out in pursuance of
Ross’s suggestion, and, according to Maddox, she was in the beaded room
with two of the customers, and was seen by Maddox herself, who was an
excellent customer. But, furthermore, if the Maddox story is true, the
customers would have had to be in the parlour in order to see her, for
the beaded room is part of the parlour. Then Ross offered this quiet,
bashful little girl a glass of wine, and she took three, and fell off
into a stupor in the cubicle, though, according to Matthews, he gave
her a glass of lemonade, and afterwards sent her over to the beaded
room, where she was seen by Olive Maddox, bright and alert, sitting up
with an empty glass before her, at 5 o’clock.

The idea that Stanley should have seen, and been a party to, his
brother’s lust, was too much even for the credibility of a Harding, so
Ross is made to say that Stanley couldn’t see the girl when he went
behind the counter, because the screen was down, “and when the screen
was down no one dared to go into the cubicle.” The absurdity of the
story of the screen in one aspect has already been referred to, but
a glance at the plan will show its absurdity in another aspect. But
even the plan does not show that the cubicle walls were only 6 ft. 4
in. in height, the lower 3 ft. being thin lining boards, and the upper
3 ft. 4 in. being glass. There was no top or ceiling to it. A girl
could scarcely breathe in that cubicle without its being noticed by a
man squeezing in and out at the end of the bar counter. Everything,
according to Harding, took place in the cubicle, and the girl never
left it from the time she went in at 3 o’clock until she was carried
out, dead and nude, between 1 and 2 o’clock next morning. There are
none of the perambulations by the child when alive, or by Ross when the
child was dead, backwards and forwards with the body to and from the
cubicle of which Matthews speaks.

According to the Harding confession, the crime was consummated soon
after 6, and the girl was dead. The fact that no trace of blood was
ever known to have been seen in the room had to be accounted for, so
Harding makes Ross first wash out the cubicle, and then the whole
bar. The washing of the cubicle would suggest itself to a much cruder
imagination than Harding’s, but the little touch about the rest of
the bar was worthy of him. Even Piggott and Brophy, when they had the
matter so “well in hand” on the morning of the 31st, that they did not
think to go into the cubicle, might be expected to notice that one
part of the bar was cleaner than the other, for Harding would not have
dreamt that the detectives would neglect the elementary step of looking
into the cubicle. And so Harding put in the touch of verisimilitude
about the washing of the whole bar.

If Harding’s story be true, then it was while Ross was engaged in this
labour of scrubbing out the bar, with the dead body of an outraged and
murdered child keeping vigil over him, that he went out into the Arcade
to borrow a lead pencil from the vaudeville artist, Alberts, who just
happened to have reason, at the psychological moment, to walk half-way
through the Arcade and back again, like a famous character in history.
Of course Mr. Alberts may have been mistaken in his identification, but
at least he, too, as has been said, has shared in the reward for the
information he gave.

Having finished his task of scrubbing out the bar, Ross had time on his
hands—still accepting the Harding narrative—to clean himself up and go
for a walk before meeting his girl. Having honoured his appointment,
and met his girl at 9 o’clock—though, as a tragedy had occurred in the
meantime which might have been expected to, and did, in fact, cost
him his life, he would have been excused for breaking it—one would
have thought that he would have suggested a walk in the park, or about
the streets—anywhere but back to where the stark body of the little
girl was awaiting him. Had he walked down Bourke Street the alibi
that he was so anxious, according to Harding, to establish would have
been much better established, for he might have been seen by a dozen
acquaintances, and the risk which even Harding saw he was taking would
have been avoided. But no! Ross must go and sit for an hour and a
half with his lady love a few yards away from the child he had foully
murdered so recently, and whose body he must dispose of within the next
few hours, under pain of death.


CONFLICTS IN THE CONFESSIONS.

Harding, so he says (and Harding “is an honourable man”) puts the
question to him directly: “Could Gladys not see the girl when she
went into the wine cafe?” “No,” said Ross, “we had our drink in the
parlour.” This again is the exact opposite of what Matthews says he
said, for Matthews makes him carry the dead body out of the cubicle
into the beaded room (which is part of the parlour) in order that the
cubicle may be free for his reception of Gladys Wain. It might be
thought that Ross had special reasons for wanting the cubicle, as it
had a couch in it, but any idea that sexual misconduct took place that
night is negatived by the fact that Ross was physically unfit and that
Gladys Wain knew it.

Harding next makes Ross, after seeing Gladys Wain home, himself take
train for Footscray, though he fixes the time at about an hour earlier
than it was in fact shown, by overwhelming independent testimony, to
have been. He also makes Ross say that he created a diversion on the
tram in order to call attention to himself, and have the conductor and
other witnesses to prove an alibi. The closest inquiries by the police,
which it may be assumed were made, failed to disclose the faintest
evidence of this “diversion.” In fact, it was absolutely negatived by
the three men, merely casual acquaintances, who travelled home with
Ross that night. Not only that, but the defence knows exactly how this
story of the row on the tram originated. A witness named Patterson,
on hearing of Ross’s arrest, went voluntarily to the local police
station to say that he had travelled home with Ross that night on the
tram. He was questioned as to the date, to see whether he was making
any mistake; and by way of fixing the actual night he said that he
remembered it because there had been a disturbance in the fish shop
where he was having supper with another man in Footscray, before taking
the tram for Maidstone, on which he saw Ross. The local police appear
to have misunderstood what he said, and reported the disturbance as
taking place on the tram. The Ross brothers, Ronald and Stanley, were
cross-examined as to whether they themselves had not called on the
motorman and conductor of the tram, and themselves indicated that a
disturbance had taken place on it. The cross-examination only served,
once again, to show the honesty of their belief in their brother’s
case, for it revealed that they went to the tram office to find the
names of the conductor and motorman who had charge of the tram Colin
travelled by, to ascertain if they had noticed Colin on the tram, and
to get, if possible, the names of any passengers on it.

Harding next put the question to Ross: “Did you come back by car?” A
motor would naturally suggest itself as the means by which he would
return to town, and it will be remembered that, according to Ivy
Matthews, he said he had come back by car. But that was a matter that
could be tested, and the detectives had no doubt satisfied themselves
by inquiry before this that Ross did not return by a car. So Harding
makes him reply to the query by saying: “No, a bike.” “A motor bike?”
asked Harding. “No, a push bike,” Ross is supposed to have replied.
Harding probably knew that Ross had no bicycle of his own, or at
least he guarded against that contingency by making Ross say that he
knew a man who had a bike and knew where it was kept. The questions
and answers which follow are specially notable as carrying on their
face the mark of falsehood. Harding’s narrative at this point was—“I
said, ‘Did you go straight into the Arcade?’ He said, ‘Yes.’ I said,
‘But the gates are locked there at night?’ He said, ‘Yes, but I have
a key.’ I said, ‘When you went to the Arcade, did you go straight in
and remove the body?’ He said, ‘No, I went in and took the girl’s
clothes off and went out and walked around the block to see if there
was anyone about.’” The stilted nature of the dialogue suggests at
once that it is the invention of a crude fictionist. But it suggests
a good deal more than that. How did Harding know, if he had not been
told, that the gates were locked at that time? How did he know, if he
had not been told, that a tenant in the ordinary course, would not
have a key to the Arcade? That is the first thing that would suggest
itself if Ross said that he went straight back to the Arcade. The
walking round the block to see if there was anybody about is equally
incredible, for there might be nobody about when Ross walked around
the block on one occasion, and several about when he came out with the
body two or three minutes later. The purpose of that unreal inquiry,
and the others that follow was to get answers fitting in with the story
told by the vigilant lodging-house keeper, Ellis. But Ellis, with all
his vigilance, strangely enough never saw Ross enter the Arcade with
a bicycle. How that part of the story not only does not fit in with
Ellis’s, but violently conflicts with it, will be shown in a moment.


A MODEL LODGING-HOUSE KEEPER.

Ellis’s story may be taken up here and analysed. He, as has been said,
is a lodging-house keeper, but the sort of lodging-house he keeps is
known by another name among the ribald. He saw Ross, according to his
evidence, “a little after 9, before 10, then at 11, and two or three
times between that and 10 minutes to 1,” when he retired. Strange
to say, he did not see Ross go in with Gladys Wain or come out with
her, though the sight of a young couple near his “lodging-house” is
just the sort of thing that might have been expected to attract his
attention. He did not see Ross come back on the bicycle, as he had been
said to do, though one would have thought he could not have failed to
see it, if it were a fact, and if he did keep constant vigil until
nearly 1 o’clock.

It should, however, be noted that Ellis did not say, in so many words,
that he saw Ross at the times mentioned. According to the evidence, he
told the police on the Sunday following the murder that he saw a man
whom he did not know, and had never seen before, walking in and out
of the Arcade, as stated. On the 12th, when Ross was arrested, Ellis
was brought to the Detective Office, and he there and then identified
Ross as being the man whom he had seen. Ellis lives within a few yards
of the Eastern Arcade, and according to his own evidence, knew all
about the wine saloon. Through the Arcade would be his direct way to
Bourke Street. Ross had received great publicity seven or eight weeks
previously in connection with what has been referred to as the Arcade
shooting case. Ellis must have been an extraordinarily unobservant man
if, in spite of that publicity, of his knowledge of the wine saloon,
and of its close proximity to his residence, he had never set eyes
on Ross before. When called upon to identify Ross, he was bound, of
course, to say that he had never seen him before, because, if he knew
Ross, he would have been asked how it was that he did not tell the
detectives that it was Ross he saw walking in and out. It is also
curious if Piggott, as he said, had the case “well in hand” on the
first day, and had Ellis’s statement on the following day, that he
did not confront Ellis with Ross until a fortnight had elapsed. But,
conceding Ellis’s honesty, it is surely risking much to depend on the
fortnight-old observations of a witness who is so unobservant that he
had never observed a man who carried on business within a few yards of
him, and who, a couple of months before, was locally “the cynosure of
every eye, the observed of all observers.”

But if the story told in the confessions is true, then Ellis can
not have seen Ross “at 11, and two or three times between that and
10 minutes to 1,” for Ross was away at Footscray at the time. Apart
altogether from the confessions, it was proved by overwhelming
independent evidence that Ross did catch a train at Spencer Street at
about 11.30, and caught a tram which left him at the terminus, not far
from his home, shortly before midnight.

But here, again, apart from the evidence, the story told by Ellis is so
inherently improbable as to render it incredible, even conceding, as
has been said, that it was honest. The theory put forward for the Crown
was that Ross, in his anxiety and restlessness, was walking in and out
of the Arcade. If Ross were anxious and restless it would be about
the safety of his own neck. The safety of his own neck could be best
assured by keeping his presence at the Arcade, late at night, a secret.
Whatever his uneasiness, he was hardly likely to have let that fact
lapse from before his mind for an instant. It is incredible, on the one
hand, that he should have contemplated disposing of the body before
midnight in such a brilliantly-lighted and well-frequented spot. The
street might be empty while Ross was patrolling it, and yet before he
could go in to the saloon and get the body and carry it to Gun Alley, a
dozen people, including a constable, might be in it. It is incredible,
on the other hand, if he did contemplate disposing of it, and was
waiting for Ellis to disappear, that he should have needlessly exposed
himself to Ellis when, from the darkness of the Arcade (which Ellis
deposed to) he could have seen every movement of Ellis without himself
being seen. Ross must have known Ellis well by sight, and, whatever are
the facts, must have believed that Ellis would know him.

This is one of the points at which the Crown case became not only
absolutely incoherent, but absolutely inconsistent. The evidence of
the Italians about seeing the light in the wine saloon at 10 minutes
to 1, of the caretaker that there was no light twenty minutes later,
of Ellis hearing a mysterious noise after he had retired and coming
out to see what caused it, of the Harding confession that Ross heard
Ellis coming and desisted from putting the body in the sewer, was all
designed to show that Ross chose the moment after the two Italians had
left and Ellis had retired, and before the caretaker closed the gate,
to rush out with the body and carry it to Gun Alley. But the Matthews
confession and the rest of the Harding confession were put forward to
show that after the gates were closed Ross came back, and, with his own
key, opened the gates and disposed of the body. The Matthews confession
makes him return “between 1 and 2,” and Harding’s confession makes
him say, in effect at any rate, that the gates were closed when he
got back, and that he opened them with his own key. A long interval,
according to the Harding confession, occurred between Ross’s return and
the disposal of the body, for in the meantime he took off the girl’s
clothes, and washed the body, and walked around the block. The gates
would be locked long before this, and Ross had no key. The stories,
therefore, fail hopelessly to fit in the one with the other. The mark
of truth is that it must fit in with every other truth, while the mark
of falsehood is that it can only be made, by whatever ingenuity, to fit
in with a limited number of truths. If the Ellis evidence is true, the
Harding and Matthews evidence on this point cannot be true. It may be
true in the limited sense of being a true narration of what Ross said,
but it cannot be true in the important sense of being a true recital of
what Ross did. And unfortunately, in this case the jury was not told
that the vital thing was not what Ross said, if he said anything, but
what he did, and was not asked to consider why he should have said he
was at Footscray if, in fact, he was parading up and down in front of
Ellis.


CONFESSIONS COMPARED.

Then the objection will be raised, as it was raised by no less august
a tribunal than the High Court, that even though the two confessions
disagree in important details, and conflict hopelessly with the direct
evidence of Ellis, they are in agreement in the main fact that they
contain the admission that Ross outraged and killed the child, and
disposed of the body in the alley, and are in agreement in a number
of minor points. It is, however, the points of agreement and of
disagreement that suggest so strongly that the two confessions were
fabricated. Let us look at the facts.

On January 23 the police had no account of the supposed confession
from either Matthews or Harding. By January 25 they had both. Let us
see how they agree. It is essential in testing the confessions to keep
in mind what the police knew on January 23. We can deal afterwards
with the question whether what the police knew Harding and Matthews
also knew, or probably knew. The police knew that the girl was in the
vicinity of the Arcade at about 3 o’clock. They knew that Ross had
been talking to Gladys Wain in the saloon for about an hour after four
o’clock in the afternoon; they knew he was to meet, and did meet,
Gladys Wain at 9 o’clock; that he went home for tea in the meantime;
and that he was with her for over an hour after 9.15; they knew
that he went home late by train to Footscray, and thence by tram to
Maidstone. All these things were in Ross’s statement made on January 5,
and the police had the opportunity of testing them. They interviewed
Gladys Wain and apparently they satisfied themselves as to the truth
of Ross’s statement so far as it concerned her. They knew that the
dead girl had been outraged and had been murdered by strangulation;
and they knew that though at first it was said that the marks around
the girl’s neck pointed to strangulation by a cord or wire, that this
was disproved by the medical examination (see the “Herald” of January
6 and January 10). They knew that the body was not in the alley at
1 o’clock (see the “Herald” of January 2); and they knew that Ellis
had said that he had seen a man going in and out of the Arcade up to
nearly 1 o’clock. They knew that Ross was suffering from a venereal
disease. With these points settled, there were only five matters to be
filled in by conjecture if Ross was to be saddled with the crime. One
was how did the girl actually get into the saloon, the second was how
did Gladys Wain fail to see anything of the girl when she was there
in the afternoon. The third was the exact manner of the girl’s death.
The fourth was how was Gladys Wain prevented from seeing the body when
she came in at 9 o’clock. The fifth was how did Ross get back from
Footscray late at night to dispose of the body. How these matters
of conjecture were filled in in the two alleged confessions can be
seen clearly by the following parallels. (The rooms indicated will be
described in the terms used through the trial, not in the terms used in
the “confessions.”)

    THE MATTHEWS                       THE HARDING
    CONFESSION.                        CONFESSION.

    (1) The child came up         When the child got opposite
    and asked him for a           his place he spoke
    drink. He gave her a          to her, and she took no
    glass of lemonade and         notice of him at first. He
    took her into the cubicle.    said: “You have nothing
                                  to be afraid of; I own this
                                  place, and if you are tired
                                  you can come in and sit down.”
                                  She went in and he took her
                                  into the cubicle and induced
                                  her to take three glasses of
                                  sweet wine.

    (2) She stayed there          About this time a
    until about four. Stanley     woman whom he knew
    could see her too. A girl     came to the door of the
    named Gladys Wain came        cafe, and he spoke to her
    to see him, and he told       for about three-quarters
    the child to go through to    of an hour, and when he
    the beaded room, and he       went back to the cubicle
    “kept her in there”           the girl was asleep. A
    [how?] until Gladys left,     little later “his own girl”
    and then brought her back     came to the door of the
    into the cubicle.             cafe, and he spoke to her
                                  until nearly 6 o’clock.
                                  Stanley couldn’t see her
                                  when he was serving, because
                                  the screen was down, and when
                                  the screen was down no one
                                  dared go into the cubicle.

    (3) After 6 o’clock,          At 6 o’clock the girl
    when Stanley left, he got     was still asleep in the cubicle,
    “fooling about with her”      and “I could not resist
    (she being quite alert and    the temptation.” She
    knowing what was              moaned a little and
    meant), and it was all        seemed to faint. I left
    over in a minute. “I          the room, and after a
    strangled her in my           little time she commenced
    passion.” After it was all    to call out again, and I
    over, “I could have taken     went in to stop her, and
    a knife and slashed her up    in endeavouring to stop
    and myself too, because       her I must have choked
    she led me on to it.”         her. I got suddenly cool
                                  and commenced to think.

    (4) He had to meet a          “Could Gladys not see
    girl friend, so he took the   the girl when you went
    body from the cubicle         into the cafe?” No, as
    and put it in the beaded      the body was in the cubicle,
    room off the big room,        we had our drink in
    and brought Gladys Wain       the big room.
    into the cubicle, and when
    Gladys was gone he
    brought the body back
    into the cubicle.

    (5) I asked him how           I said: “Did you go
    he got back, and he said      back by car?” He said,
    he came back by motor car.    “No”; he had a bike. I
                                  said: “A motor bike?” He
                                  said: “No, a push bike.”

It will be seen that on every point about which nothing was known to
the police, the two “confessions” are absolutely at variance. On the
points known to the police, they absolutely agree except that Harding
(rightly) makes Ross speak to another girl at the door before he
speaks to Gladys Wain. This the police knew from Stanley’s statement,
though it is not in Ross’s written statement. Further comment on these
suggestive facts seems unnecessary.


WAS THERE “INSIDE” KNOWLEDGE?

How, it may be asked, could Ivy Matthews and Harding become possessed
of the information the police had? That question is not difficult to
answer. It will be shown later that Ivy Matthews was driving around
with the police on January 9, assisting them to get evidence in the
case, and that she, on her part, was trying to get it manufactured.
If that is so (and a sworn declaration to that effect has gone
unchallenged) then she was not likely to lack any information that the
police thought it might be useful to them for her to have. It has been
stated in the Press that the police employed Chinese spies to see if
evidence could be got against any of the Chinese in the neighbourhood.
The statement, though it ill accords with Piggott’s evidence that
“we had the case well in hand” on December 31, has not been denied.
If Chinese spies were called in to assist in the unravelling of the
crime—and that course of action may have been quite justifiable—the
detectives are not likely to have cried “non tali auxilio” when
Matthews volunteered her services.

As to Sydney Harding, the source of his knowledge can be guessed if
not inferred. Harding was a criminal with a record, like one of the
Arbitration Court disputes, extending beyond the limits of one State.
He was “wanted” in Sydney, when he favoured Melbourne with his society
on January 4. At that time, Detective Walsh, of Sydney, was doing duty
in Melbourne as an exchange officer. He was one of the detectives
engaged on the Ross case and was present at the arrest. On Sunday,
January 22, according to statements since made to Ross’s advisers,
Harding sent for Walsh, whom he knew, and Walsh visited him at the gaol
and had a long interview with him. On Monday, January 23, Ross made the
“confession” to Harding, and that night Harding again sent for Walsh,
as is admitted, and recounted the confession to the Governor in the
presence of the detective.

Neither of these facts—that Ivy Matthews was acting as assistant
detective on January 9, and that Detective Walsh had visited Harding
in the gaol by invitation on January 22—was known at the trial.
Had they been so, they would have provided excellent material for
cross-examination, and would have given the jury something to consider
which was never present to their minds.

It has been suggested that it would be a dreadful thing if the police
had prompted Harding in this matter. It certainly would have been a
dreadful thing if they had prompted him or anybody else to manufacture
a confession, and nobody suggests for a moment that they would do, or
did do, such a thing. But believing Ross guilty, as they no doubt did
believe him guilty, and yet not having sufficient evidence to prove it,
they would have been merely following a commonplace practice if they
had employed Harding to endeavour to get a confession of his guilt. In
one of the daily papers, Mr. Brennan was represented as having said
in argument before the Appeal Court that it would have been a very
dreadful thing for the police so to employ Harding. In fact, he said
the exact opposite. But Harding was a very dangerous agent to employ
on this task. Some at least of the Detective Force knew that he had
volunteered for this kind of duty on a former occasion, and that his
services had been declined. There would have been nothing wrong from
the point of view of anyone engaged in unravelling a mysterious crime
for a detective to have said: “We know this, and that, and the other;
see if you can get from him information on the points we know nothing
about.” And whether that is, or is not, what they did, the simple fact
remains that if they had done so, they would have told him the things
in which the Harding and Matthews “confessions” agree, and would have
assigned to him the duty of filling in the gaps which are filled in by
Harding and Matthews in a manner absolutely at variance the one with
the other.


AN EXPERT ON HAIR.

Nothing could point more strongly to the guilt of Ross than
satisfactory proof that hairs from the head of the murdered girl
were found on a blanket in his private room. It becomes necessary,
therefore, to examine Mr. Price’s evidence, to see whether it does
establish this important fact. It will be seen by a reference to that
evidence, that Mr. Price uses very guarded language. He “came to a
conclusion” about certain things and he “formed the conclusion” about
others, but he at no time definitely stated that the hairs taken from
the blankets were from the same head as the hairs in the envelope. None
the less, the fact cannot be blinked that the tendency of Mr. Price’s
evidence was in that direction, or that in that direction lay the bent
of his mind.

A word of caution as to expert evidence generally may, therefore,
appropriately be given, and if a quotation from “Taylor on Evidence” is
selected, no one who knows anything of the subject, will question the
weight of the authority.

“Perhaps the testimony which least deserves credit with a jury,” says
the author, “is that of skilled witnesses. These gentlemen are usually
required to speak, not to facts, but to opinions; and when this is the
case it is often quite surprising to see with what facility, and to
what an extent, their views can be made to correspond with the wishes
or the interests of the parties who call them. They do not, indeed,
wilfully misrepresent what they think, but their judgments become so
warped by regarding the subject in one point of view, that even when
conscientiously disposed, they are incapable of forming an independent
opinion. Being zealous partisans, their Belief becomes synonymous with
Faith as defined by the Apostle, and it too often is but ‘the substance
of things hoped for, the evidence of things not seen.’ To adopt the
language of Lord Campbell, ‘skilled witnesses come with such a bias
on their minds to support the cause in which they are embarked, that
hardly any weight should be given to their evidence.’”

The first criticism of Mr. Price’s evidence is that he is not an
expert on the subject, and indeed he made no pretence of being one.
He knew nothing about the subject beforehand, and his experiments and
reading were principally done after the event. For all he knows to the
contrary, the pith of all hairs may be identical. He made one admission
in the course of his cross-examination which absolutely destroyed the
probative force of his evidence. In his post-factum observations he
had examined hairs from several auburn heads, and he admitted that he
had found some hair as like Alma Tirtschke’s as the hairs from the
blankets. The “proof,” therefore, resulting from Mr. Price’s evidence
may be reduced to an elementary syllogism as follows:—

    This hair is like Alma’s.
    All hair like Alma’s is not Alma’s.
    Therefore, this hair may (or may not) be Alma’s.

It was said earlier that Mr. Price might, on the facts he deposed to,
have been a powerful witness for the defence. Let us show how this
is so. Suppose, having deposed to the examination of the two sets of
hairs, exactly as given previously, he had been examined by Counsel
for the Defence, and had answered in the following way, would not his
answers have been fully justified by what he had already stated?:—

Defendant’s Counsel—Having examined the two sets of hair, are you of
opinion they did not come from the same head?—I am.

Can you give reasons for your opinion?—I can, many.

What are they?—In the first place, the hair was not of the same average
length, that from the head of the girl being, on the average, six
inches longer than that from the blanket. In the next place, the hair
from the blanket was of a light auburn colour, while the hair from the
head was an auburn colour tending to red or a deep red. What is more
important, the hairs from the two sets were not of the same diameter,
and I cannot imagine why hair from the same head should differ in
diameter. In the next place, in hair I have examined since, the frontal
portion was quite red, and that from the back of the head quite dark,
suggesting that where the hair is exposed, it lightens in colour, while
in this case the hairs, which must have come from the back of the head,
were actually lighter than those which came from nearer the front. In
the next place, I found in my investigations hairs which were quite
as like Alma Tirtschke’s as the hairs on the blanket, and though this
does not prove that they were not Alma’s hairs, it prevents, by an
elementary rule in scientific investigations, any deduction that they
were. Lastly, it appears incredible to me, that if a girl of 13 were
lying on a blanket for three hours she should lose 27 hairs—or rather
that 27 of her hairs should still be remaining on the blankets at the
expiration of a fortnight, during which the blankets had been removed
to a distant suburb, and constantly handled.


A MISSING LINK.

There are other features about this hair examination which call for
comment. When a man is on trial for his life, he himself, his counsel,
and indeed the public generally, are entitled to demand that every
link in the chain connecting him with the murder shall be found in its
place. It was objected on the appeal that a link was missing in the
case of the blankets, since it was not shown where they were during the
night preceding their handing over to the analyst. One of the learned
judges in the High Court asked whether this “sinister suggestion” had
been put to the detectives. With the greatest respect, it is not, in
the first place, a sinister suggestion, but an elementary requirement
in proof; and in the second place, it is no part of the duty of a
defending counsel either to fill up gaps in the Crown evidence, or to
give the Crown witnesses a lead by which they may do it. But a blow
would be struck at the whole administration of justice, if once the
principle were admitted, that evidence, just because it is police
evidence, is not to be subjected to the ordinary tests. The principle
admitted, it would soon come to be known and traded upon, and the
result would be the lowering of the whole morale of the Detective
Force. The logical outcome would be the transfer of the seat of justice
from the Law Courts to the Detective Office. It is the knowledge
that their evidence will have to run the gauntlet of the fiercest
criticism and examination which the skill of the bar can bring to
bear on it which helps to keep the members of the Detective Force up
to their present high standard. On such a question as spiritualistic
manifestations, the sceptics require the exclusion of every opportunity
for fraud, even when the high priest is a man of the reputation of Sir
Conan Doyle; and a prisoner under the shadow of the gallows, who speaks
through his counsel, is entitled to demand the exclusion of every
possibility of fraud, even when a man of the standing of Detective
Piggott is in charge.

It is almost impossible to believe, apart altogether from the question
of Ross’s guilt, or the question of the supposed identity of the hairs,
as deposed to by Mr. Price, that the hairs on the blankets could have
been Alma Tirtschke’s. As was mentioned during the legal argument,
golden hairs do not shine out conspicuously on a reddish brown blanket
when they are well imbedded in the fabric. Yet when Detective Piggott
picked up this reddish brown blanket in the darkness of a vestibule,
a fortnight after it had left the wine saloon, after it had been used
for packing pictures on the day of the removal, after it had been put
out to air on a line, after it had been in use for a fortnight at
Maidstone—all of which was sworn to—his quick eye immediately detected
“the sheen of golden hairs” on it. They must, therefore, have been
lying loosely on it. It would surely have been fair that he and his men
should have immediately started to pick them off—and in the presence
and with the knowledge of Ross. It was hardly in accordance with the
fairness with which the case was investigated throughout, to defer the
picking off until the blankets had been placed, on the following day,
over the screen in the Government Analyst’s room. Nothing was known
by Ross of the discovery of the hairs until the evidence was given, a
fortnight later, at the inquest. It is also remarkable that Piggott,
who, according to his own testimony, had the case against Ross “well in
hand” on December 31, never even went into the cubicle on that day to
see if it would reveal anything, although he knew the place was to be
vacated and dismantled on that very evening.

On the trial, evidence for the defence was given that Mrs. Tom Ross
and her sister, Miss Alice Ballantyne, had gone into the cubicle on
the Wednesday before the murder, and had “done” their hair in it, each
letting her hair down and combing it. Alice Ballantyne’s hair bore
the strongest resemblance to Alma Tirtschke’s, and leaving out the
improbability of the hairs remaining on the blanket for a fortnight, it
was far more likely that 27 hairs would come out under the operation of
combing than that they would come out from a girl simply lying on the
blanket. Something might have been said on this point by Ross had he
been apprised at the time of “the sheen of golden hairs.”

It was not mere thoughtlessness that allowed the examination of the
blankets to be delayed for a fortnight, for, if Ross’s supplementary
statement of January 5 is looked at, it will be seen that he said
on that day, in answer to a question, “I did have two blankets in
the saloon. They were used as a rug or cover to lie down in the
afternoons.” Thus put on his guard, one would have thought that, if
Ross were a guilty man, he would have seen that the blankets did not
rise up a week later to confront him. And one certainly would have
thought that the detectives, if they had the case against Ross “well
in hand” on the 31st, would have seen the desirability, at least on
January 5, of sending out, while they had Ross temporarily in custody,
and getting possession of the blankets.

There was still another fatal weakness in the “reddish brown blanket”
as a link in the chain connecting Ross with the murder. When Ivy
Matthews was shown this blanket, she decisively tossed it aside as not
having been in the saloon in her time. Either it was, or it was not,
in the saloon on December 30. If it was not, the hairs on it could not
have come from Alma Tirtschke’s head. If it was, then how comes it that
not one spot of blood was found on it, when, according to the Harding
“confession,” the place was like a shambles, and, according to the
medical evidence, there would be much bleeding? It may be suggested
that this blanket was under the girl’s head, and another blanket was
under her body, and received the blood stains. If so, it would, if
discovered, have been the most damaging piece of evidence against Ross,
and its disposal must have been a matter of the gravest concern to him.
Yet although he is supposed to have given to Harding the most minute
details of unimportant matters, together with a complete account of
how he disposed of the girl’s dress, he never said one word about this
blanket, or its disposition!


THE GIRL’S ATTIRE.

Another of the facts urged as showing that Ross murdered the girl was
the exact description he gave of her clothing on the morning following
the girl’s disappearance. On being asked by Piggott how the girl was
dressed, he described her dress and her hat with the college band on
it, said in answer to a question that she had on a white blouse, and,
on being asked “what else?” said: “Well, she had black stockings,
and boots or shoes—I think boots.” (In the signed statement the
corresponding passage is “she wore dark stockings and boots, or she may
have had shoes on.”) Again, on being asked about her hair, he said it
was golden coloured and hung down her back.

The answer to the suggestion that that was a minute description for a
man to give of a girl’s dress is that, in the first place, it was given
mainly in answer to questions, and it ought not to be difficult for a
man to visualise the girl’s dress after a lapse of 18 hours, especially
as she was dressed in conventional school-girl style. (Her dress was
quite as accurately described by a hotel porter who saw her walking
up Little Collins Street.) Harding’s “confession” credits Ross with
saying that he told the police she wore boots, and with suggesting that
this was an erroneous description designed to mislead. The evidence
does not bear Harding out, and the idea that in any case the trifling
discrepancy was designed to deceive is ridiculous. And while Harding
suggests that Ross was purposely inaccurate in order to deceive, the
Crown Prosecutor used Ross’s accurate description to show that he
was accurate not merely because he had seen the girl in the Arcade,
but because he had taken her clothing off. Since the question of the
disposal of the clothing was supposed to have been raised by Harding
and dealt with by Ross, it is curious, by the way, that nothing was
said to Harding of the underclothing, or of the distinguishing hat, or
of the parcel of meat, for these, too, had to be disposed of. But this
is only another proof that Harding put nothing into Ross’s mouth which
was likely to be falsified by independent testimony.

Here, again, this very matter of hesitation about the boots or shoes
tells entirely in Ross’s favour. Either he gave a description to the
best of his ability, or he gave a description purposely designed to
deceive. The latter alternative may be dismissed at once, because
the description was so nearly accurate that it is absurd to suppose
it was meant to mislead. There remains, then, the alternative that
he described the dress to the best of his ability. A man describing
the appearance of a conventionally-dressed school-girl has not room
to go far astray. The one thing he would not be likely to remember,
or to carry in the mind’s eye, was whether she had on boots or
shoes—especially if her stockings were black. But if Ross had stripped
the body, that is the one thing that he would have been clear about,
for by the hypothesis he took the boots off, and he could hardly have
forgotten the gruesome task of unlacing them.


THE LIGHT IN THE SALOON.

There is one piece of evidence which causes some difficulty in that
it suggests that someone was in Ross’s saloon after midnight. It is
the evidence of the two Italians who swore that there was a light in
the saloon at 10 minutes to 1. There does not appear to be much room
for mistake in this evidence, for the Italians said they talked with
one another about the unwonted circumstance of the light. There does
not appear to be any reason to doubt their honesty, even though they
have since shared in the reward. During argument before the Appeal
Courts, it was suggested as a possibility that other persons might have
gained access to the saloon. It was proved in evidence by Mr. Clarke,
the Manager of the Arcade, that the door of the saloon nearer Bourke
Street could be opened by inserting a knife or piece of tin between the
bolts of the Yale lock and the part into which it fits, the lock being
loose and the door ill-fitting. Apart from Mr. Clarke’s unchallenged
testimony on this point, the fact may be accepted as being beyond
controversy, for Mr. Clarke, on the eve of the trial, opened the door
in the way mentioned without the slightest difficulty, in the presence
of the counsel and solicitors for Ross.

This being the fact about the door, it was not altogether improbable
that it would be known to some patrons of the wine saloon who were
tenants of the Arcade. The suggestion made in the Appeal Courts was
that other persons with a dead body on their hands, which it was urgent
they should dispose of, might have bethought themselves of the disused
cellars in the wine cafe as a possible hiding place. This would be
the more probable by reason of the fact that it was known that the
following day would be the last on which the wine saloon would be open,
the license expiring with the year. It was known in fact that the
police questioned, and detained for a time, at least one occupier of a
room in the Arcade whose reputation was far from good. In any event,
there is strong evidence that Ross knew nothing about the light in the
saloon if it was, in fact, there. On the day of his arrest, he was
interrogated for the third time by Piggott. Piggott said: “It will be
proved that a light was burning in your wine shop on the early morning
of the 31st.” Ross replied promptly: “That is a lie—a deliberate lie.”
Piggott said: “It will be proved that a little girl was seen in your
wine shop on the afternoon of the 30th.” Ross said: “That’s a lie.” “It
will be proved that she had a glass in front of her and was sitting in
the room,” continued Piggott, and again Ross answered: “That’s a lie.”
And being asked if he had any explanation to give, he added: “You have
got nothing over me.”

If that light had been in the wine saloon at 1 o’clock with Ross’s
knowledge, he must have known, or at least have thought, that the fact
might be proved by a dozen independent and reputable witnesses. If it
had been a fact he would have been ready with an explanation, such as
that they were dismantling the premises. But his emphatic, if not very
polite, answer was: “That’s a lie.” The same remark applies to the
answers in regard to the little girl being seen in the saloon with the
glass in front of her. If she had been there she would, as has already
been said, have been seen probably by a hundred people. But Ross’s
answer to the suggestion that she was there was to brand it as a lie.
And Matthews and Maddox were the only persons called to prove it was
not a lie. That, however, is not the present point. We are dealing with
the light in the saloon.

Since the trial a further fact has been disclosed in connection with
this question which lends a great deal of support to the theory put
forward by counsel on the appeals. A Sydney paper, still in its youth
and advertising stage, has degraded journalism in connection with
the Ross case in a way that is happily rare in the annals of the
newspaper world. As Ross lay in the condemned cell, it gloated over
his impending doom in a manner that showed that it did not appreciate
the cowardice of kicking a man, even a criminal, when he is down. But
it apparently had plenty of money to spend for the work of pushing its
circulation among those who like that kind of literature. Its Melbourne
representative did undoubtedly get well into the secrets connected
with the working up of the case against Ross. In its issue of March
25, it had an article dealing with the preparation of the case which
was clearly inspired. One paragraph referred to “another piece of
unrecorded history,” as follows:

“There is a card school that assembles frequently at the Arcade, or did
prior to the trial. On the night of December 30, the players dispersed
shortly before midnight. They went out of the Arcade by way of Little
Collins Street. Passing the wine shop, they noticed that it was lit up.
But this they also noticed—that Room 33 also showed a light. The tenant
was not in the room. He had lent it to a friend who was entertaining
there a young woman, the daughter of a former officer of police. Ross,
too, had seen the light. He must have noticed it at intervals during
the evening, and watched it with despairing hope that its users would
go away instead of staying on, hour after hour, spoiling his plans.
At last it appeared as though the room was going to be occupied all
night. Some new way had to be found. It was then that he thought of Gun
Alley....”

Ross’s thoughts, it will be seen, are here set down as though the
writer were recording some plain matter of fact. The suggestion is
that Ross had intended putting the body in this room, but was thwarted
by the unfortunate circumstance that someone, not the tenant, had got
the use of it for the night. The allegation about the intention of
Ross to put the body in Room 33 is taken bodily out of the supposed
Matthews confession. It has no other foundation, in fact. How closely
the correspondent was in touch with Ivy Matthews is shown by the fact
that another number of the same paper gave the story of her life. But
again we are face to face with the fact that Harding, to whom Ross is
supposed to have given such minute details of the disposition of the
body, has not a word to say about this unexpected obstacle. A murderer
and a ravisher who was confessing his double crime was hardly likely to
have boggled at admitting, if such were the fact, that he contemplated
disposing of the body by putting it in another man’s room. But at
least, since he gave such details of his plan for disposing of the
body, and his execution of them, it is curious that he said nothing
about the difficulty which the light in Room 33 created.

Again there is the remarkable circumstance that not one of the card
school was produced on the trial to say that in fact there was a light
in the saloon at midnight. But whatever may be the facts about a light
at 10 minutes to 1, it is certain that if there was a light in the
saloon at midnight, Ross was not responsible for it. If the guilt or
innocence of Ross depends upon the question of whether he was, or was
not, in the saloon at midnight, it may be taken to be established, as
clearly and definitely as human testimony can establish any fact, that
Ross is innocent. Those who heard the evidence of Patterson, Studd, and
Bradley, (to be mentioned later) as to Ross going home on the last tram
to Maidstone, the suburb out from Footscray where Ross lived, and had
the advantage of private consultations with these witnesses, cannot
entertain the slightest doubt that Ross was on the tram. Conceivably,
his brother and mother, as deeply interested witnesses, were lying as
to what took place after he got home, though they never wavered, and
were never shaken in the slightest degree in their testimony, but as
to the honesty and accuracy of the three disinterested witnesses named
there can be no doubt whatever. But, even if the confessions are relied
on, it should be noted that both negative the suggestion that Ross was
in the saloon at midnight.

Not a word about the light in room 33 or of the observations of the
card school came out on the trial. Of course, there may be no truth in
the story. But, true or not, no questions concerning either were put
to Ross by the detectives which would have allowed these matters to
get out on the trial. This is not meant as adverse criticism of the
conduct of the case. It merely illustrates what has been said earlier
how events so shaped themselves as to cast all the light on Ross, and
leave others, who at one time or another were suspected, entirely in
the shadow.

The detectives explain the light in the one room by the theory that a
stranger to the room had been given the use of it for the night for
an immoral purpose; they explain the light in Ross’s room, if the
newspaper account is true, by the theory that he is engaged disposing
of a dead body. But if the jury had known that all night a light was
burning, not only in the saloon, but in a room opposite to it, they
might not have been so easily satisfied about either theory, as it is
suggested the detectives were.

No insinuation is made against the fairness with which the detectives
presented the case against Ross. In particular, Piggott’s account
of the conversations with Ross give, with great frankness, Ross’s
answers, when it would have been perfectly easy for the detective, had
he desired to be unfair, to minimise the emphasis Ross put upon his
denials. There are two passages in Taylor’s great work on “Evidence,”
however, which are peculiarly applicable to this case. One deals with
the caution necessary in considering all police evidence.

      “With respect to policemen, constables, and others
    employed in the detection of crime,” says the
    learned author, “their testimony against a prisoner
    should usually be watched with care, not because
    they intentionally pervert the truth, but because
    their professional zeal, fed as it is by an habitual
    intercourse with the vicious, and by the frequent
    contemplation of human nature in its most revolting
    form, almost necessarily leads them to ascribe actions
    to the worst motives, and to give a colouring of guilt
    to facts and conversations which are, perhaps, in
    themselves, consistent with perfect rectitude. ‘That
    all men are guilty till they are proved to be innocent’
    is naturally the creed of the police, but it is a creed
    which finds no sanction in a court or justice.”

The other passage deals with the dangers which have necessarily to be
guarded against in any case depending on circumstantial evidence. Says
the learned author:—

      “It must be remembered that, in a case of
    circumstantial evidence, the facts are collected by
    degrees. Something occurs to raise a suspicion against
    a particular party. Constables and police officers
    are immediately on the alert, and, with professional
    zeal, ransack every place and paper, and examine into
    every circumstance which can tend to establish, not his
    innocence, but his guilt. Presuming him guilty from
    the first, they are apt to consider his acquittal as a
    tacit reflection on their discrimination or skill, and,
    with something like the feeling of a keen sportsman,
    they determine, if possible, to bag their game.
    Innocent actions may thus be misinterpreted, innocent
    words misunderstood, and as men readily believe what
    they anxiously desire, facts the most harmless may be
    construed into strong confirmation of preconceived
    opinions. It is not here asserted that this is
    frequently the case, nor is it intended to disparage
    the police. The feelings by which they are actuated are
    common to all persons who first assume that a fact or
    system is true, and then seek for arguments to support
    and prove its truth.”

Piggott himself admitted that the press were giving them “a pretty
rough time” about their failure to effect an arrest. How “rough” it
was may be gauged from one editorial in “The Argus” about three days
before Ross’s arrest, which said: “As each day passes the grievous
disappointment of the public at the failure of the police to track down
the murderer of the child, Alma Tirtschke, grows more profound.... Even
among citizens less given to displays of anger the sense of disgust is
acute. The detectives and police force of Melbourne are on their trial,
and no matter how exacting they may find the ordeal they must realise
that the public will not tolerate failure on their part.” Being thus
on their trial, with their reputation at stake, they had a tremendous
incentive to try and sheet the crime home.


POINTS THE JURY MISSED.

But even with what they had before them, the mystery still remains
how any jury of reasonable men, appreciating the evidence properly,
could say that there was no doubt as to Ross’s guilt. Reviewing
it as dispassionately as one may, and without comparing it with
the evidence for the defence, to be adverted to in a moment, the
balance of probability, to say the very least, dips on the side of
his innocence. The inherent weakness of the Crown case would remain
though not one witness were called for the defence. The unfortunate
thing for Ross was that the jury never was told that there was any
weakness or inconsistency in the Crown evidence. On the contrary,
the evidence was left to them, and, indeed, put to them, as though
there was a cumulative force about it. At one stage they were told by
the learned Judge that “the accused in his evidence denies what is
attributed to him by Brophy, denies the statements of Ivy Matthews
incriminating him, denies the statements of Olive Maddox incriminating
him, denies Harding’s and Dunstan’s evidence, and denies also the
evidence of Upton.” The inherent improbability of the supposed
admission to Brophy, or the inherent probability of Ross’s account of
it, was never suggested; the conflict between the Matthews and the
Harding confessions was never hinted at; the fact that Dunstan had
read Harding’s evidence, as given at the Morgue, and had not reported
what he is supposed to have heard until after he had read it, was
never adverted to; and the fact that Olive Maddox’s evidence could not
be true that the girl was awake in the beaded room at 5 o’clock if
Harding’s “confession” was true that she was asleep in the cubicle at
that time was never referred to.

It was never pointed out to the jury that Harding and Matthews were
deposing only to confessions, and that, while it is possible for a man
to say things that are verbally inconsistent, it is not possible for
him to do things that are actually inconsistent, and that what the jury
had to determine was not what Ross said, but what he did.

They were never asked to consider why he should have made two different
confessions to two different people, or why he should have made a
confession at all. They were never told that, in dealing with an
alleged confession, they must approach the consideration of it in
a manner entirely different from that in which they would approach
evidence purporting to deal with substantive facts. Indeed, in the
passage above quoted, Upton’s evidence of supposed facts is put in
exactly the same category as Matthews’s and Harding’s evidence of
supposed confessions. The learned lawyer, Sir Michael Foster, author of
an historic legal work, may have realised that confessional evidence
“is not, in the ordinary course of things, to be disproved by the sort
of negative evidence by which the proof of plain facts may be, and
often is, confronted,” but a Melbourne common jury was hardly likely
to realise that truth by the light of nature. Mr. Justice Cave, in
delivering the judgment of a very full Bench in a trumpery case of
embezzlement not so very long ago, said: “I would add that, for my
part, I always suspect these confessions which are supposed to be the
offspring of penitence and remorse, and which, nevertheless, are
repudiated by the prisoner at the trial. It is remarkable that it is of
very rare occurrence for evidence of a confession to be given when the
proof of the prisoner’s guilt is otherwise clear and satisfactory, but,
when it is not, the prisoner is not infrequently alleged to have been
seized with the desire, born of penitence and remorse, to supplement it
with a confession—a desire which vanishes as soon as he appears in a
court of justice.” How aptly those words applied to this case!

They were never warned that they could take the confessions, if they
were satisfied that they were made, and accept as much of them, or
either of them, as they chose, but that, if they rejected any portion
of them, they could not fill in the gap by conjecture if there was no
other evidence on the point.

They were never reminded of the difficulties of cross-examining
two persons who purport to depose to a confession, for, whatever
inconsistency with the facts is pointed out, the witness merely
replies, “That may be so; I know nothing but what he told me.”

They were told that Ellis’s evidence was important “because it was
so contradictory of the evidence of some of the witnesses for the
defence,” but they were never reminded that, if Ellis’s evidence
was true, they would have to reject a great portion of the supposed
confessions to Matthews and Harding.

It is extremely likely that, in dealing with Matthews’s and Harding’s
evidence, they would reason that “Harding says this” and “Matthews
says this,” and then draw inferences unfavourable to Ross from the
supposed cumulative effects of the two sets of evidence; and extremely
unlikely that they would reason that “Harding says that Ross said
this,” and “Matthews says that Ross said that,” and then go on to
draw inferences favourable to Ross from the fact that they make him
say totally inconsistent things. Yet this is what they should have
done. They probably have not yet realised that they were dealing
with a case absolutely without parallel in the annals of British
criminal jurisprudence, in which they were invited to hang a man
on contradictory confessions, which he is alleged, by thoroughly
disreputable witnesses, to have made, which on his oath he denied
having made, for the making of which no reason could be assigned, and
which were so seriously in conflict as to suggest that they were never
made.

In the nature of things they were likely to put Harding, Matthews,
Maddox, Dunstan, Ellis, and the Italians on one side, and Ross and his
witnesses on the other, and were not likely to recall that the one set
was a contradictory jumble, and the other set a solid mass of unshaken
testimony, much of it disinterested, directed to establishing certain
definite things.

To the writer, these all seem matters that it was of the first
importance the jury should have had in mind. True it is, that many
of them were touched upon in Mr. Maxwell’s eloquent address for the
defence; but the last words, and the weightiest words, must always
come from the presiding judge. It is also true that before two appeal
courts it was urged that these omissions constituted a ground for
saying that the summing-up fell short of what was required, and that
both courts rejected the contention. But that does not preclude the
respectful comment that the jury, overlooking them, may have approached
the evidence from the wrong standpoint. That they did, for some reason,
approach it from the wrong standpoint seems established by their
verdict.



PART IV.

FRESH FACTS.


There is, perhaps, more truth than poetry in the lines that, “of all
the sad words of tongue or pen, the saddest are those, ‘it might have
been.’” If everything which is known now had been known on the trial
the result might have been different. And, as we can all be wiser after
the event, it may even be conceded that, if different use had been
made of things that were known, or were at least within the grasp of
knowledge, another conclusion might have been arrived at by the jury.
Facts not brought out on the trial were placed before the Court of
Criminal Appeal, and when all legal remedies had been exhausted were
put before the Cabinet. The one tribunal declined, on legal principles
(which are not here criticised), to act upon them; the other, in the
exercise of its discretion, declined to give weight to them. None the
less, they may be of interest to the public, and they may be here
appropriately recalled to the public mind with some observations which
were not before either court or Cabinet.


HALLIWELL’S STRANGE STORY.

Reference has been made more than once to an extraordinary story told
by a young man named Percy Halliwell, and as it has gone unchallenged,
in circumstances which seemed to call for challenge if it were untrue,
it may be given first place in the recital of the fresh facts.
Detective Piggott was strong throughout the case in his assertion
that Ivy Matthews had never made any statement to the police as to
what she could or would say. Literally that was, no doubt, true, but
it remains to be seen whether, in view of what follows, it was not an
assertion which, while literally true, was well calculated to create
a totally false impression. When representations were being made to
the Government with a view of securing a reprieve of Ross, pending an
appeal to the Privy Council, a statutory declaration by Halliwell was
(inter alia) laid before the Attorney-General. This declaration, in
addition to being laid before the Government, has been published in the
press, and it has never been contradicted. In it Halliwell said that he
was in the saloon during the Friday afternoon; that at 6 o’clock he was
in the cubicle with the two Rosses and another man named Evans (who,
in the meantime, had left the country), and that they drank a bottle
of beer in it; that they all left together, and that it would have
been impossible for the little girl to have been in the saloon without
him seeing her. His evidence about the bottle of beer is all the more
valuable because neither Stanley nor Colin Ross were asked anything
about it on the trial, and, consequently, said nothing of it.

Halliwell’s declaration then goes on to say that on Monday, January
9, Ivy Matthews called at his house in Gore Street, Fitzroy, and told
him that she had told the detectives that he had made a key for Ross.
Halliwell said: “That is untrue.” It is important to remember that, at
this time, the problem of how Ross, if he were the murderer, got back
to the Arcade, was troubling the detectives, and Matthews appears to
have come forward with a suggestion, for she knew that Halliwell was
a locksmith. Matthews then said: “I want you to tell the detectives
you made a key,” and she said that she also wanted him to tell the
detectives that he was in the saloon on the Saturday, and asked Ross if
he knew anything of the murder, and that Ross replied: “I have never
been a ‘shelf’”—a “shelf” being, in criminal language, an informer.
Matthews then said to him: “I’ve got a friend down at the corner in
a motor, who is very much interested in this case, and I want you to
tell him what I have said to you.” He accompanied her to the corner of
Westgarth Street, where he found Detective Piggott in a car. Piggott
directed him to sit in the front seat with the driver, and Matthews
got up beside Piggott on the back seat. Piggott after a time said to
him: “What about those keys?” and he replied that he knew nothing about
them. Piggott said: “I want you to come to the Detective Office with
me,” but Matthews said: “I want to see him this afternoon.” Piggott
and Matthews had a conversation, and then Matthews said to Halliwell:
“I want you to meet me at the corner of the Queen’s Mansions at 3
o’clock this afternoon,” and when Halliwell said he did not know where
they were, she explained that they were at the corner of Rathdown and
Victoria streets. He then got out of the car, and later he met Matthews
at the time and place appointed. She took him to her house, supplied
him with some drink, and then said: “I don’t want you to slip in
anything I told you this morning; why did you tell Piggott you never
made the keys?” Halliwell said: “I was only telling the truth when
I said it.” She then sent him to the Detective Office, where he was
questioned by Piggott and Brophy. When he said he was at the saloon on
the Friday Piggott said: “No, it was on the Thursday,” and told him he
was also there on the Saturday, and that the conversation, as indicated
above, took place between him and Ross. Halliwell signed a statement
and left. There is little doubt that statement contains the assertion
that Halliwell was at the saloon on the Thursday.

The simple fact that Halliwell was in the saloon on the Friday, and
could not have failed to see the murdered girl had she been there,
was put before the Court of Criminal Appeal on affidavit. In reply,
Detective Brophy filed an affidavit that Halliwell, before the trial,
called at the Detective Office and informed Detective Piggott and
himself that Stanley and Ronald Ross wanted him to swear that he was
in the saloon with Colin Ross when they closed the place on the night
of Friday, December 30. Brophy said to him: “Were you there?” and
Halliwell replied: “No, but they wanted me to say so, and I am not
going to commit perjury.” Nothing was said in the affidavit as to
whether or not he gave a signed statement to the police, but if he
did it is not clear why he should have been got to sign a statement
that he was in the saloon on the Thursday (which could have been of
no affirmative use to the police), unless he had said something about
being there on the Friday. The fact remains that he was never called
as a witness by the Crown, which proves that he was not prepared to
assist the Crown case. He was not called for the defence for two
reasons—firstly, because the statement he had signed effectually
prevented him being called; and, secondly, because, when seen at the
court, he told Ross’s solicitor that “what he had to say he would
say in the box.” When it was too late, Halliwell was willing to make
amends, and was firm in his assertion that he was in the saloon on the
Friday afternoon, as stated above.

The important part of Halliwell’s declaration, however, is not his
backing and filling as to whether or not he was in the saloon on the
Friday, but whether, on January 9, Ivy Matthews was taking an active
part, in co-operation with the detectives, in getting evidence against
Ross. This was not mentioned in Halliwell’s declaration as laid before
the court, but was in the declaration put before the Cabinet. If she
was not, then Halliwell should have been prosecuted for perjury; if she
was, then Piggott’s evidence may remain literally true, that Matthews
never gave a statement to the police; but its effect was to convey a
wrong impression as to the part which Matthews took in making a case
against Ross. It will be noted that there is a curious resemblance
between the account which Maddox gives of the conversation she had with
Ross on Thursday, Jan. 5, and the conversation which Halliwell swears
he was asked to say took place on Saturday, December 31, between him
and Ross. In neither case was there a direct admission, but in each
there was the suggestion that Ross knew all about the tragedy if he
would only speak.

There is another fact which shows that Ivy Matthews gave more
information to the detectives than the evidence given in court would
suggest. In her evidence at the inquest Matthews said that, when she
was conversing with Stanley, she said: “Where is Colin?”—an unlikely
thing, since she was not on speaking terms with Colin. Stanley said
(according to her): “He is not well; he has gone home.” Immediately
after, she said, she heard Colin laugh, and she said to Stanley: “I
thought Colin was not in?” Stanley said (according to her): “He must
have come in by the other door.” In his supplementary statement, made
on January 5, which was taken down in answer to questions, Colin Ross
said: “I was home all day Thursday—I was not well. I did not leave the
shop on Friday and say that I was ill. I was not away from the saloon
on the afternoon of Friday. I can give no reason why my brother should
say I was ill.” From this it is clear that on or prior to January 5 Ivy
Matthews had told the detectives, whatever else she told them, that
Stanley had said that Colin was away ill on the Friday.


MADDOX IN THE SALOON.

Another very important thing is now known which was not known on the
trial. It concerns Olive Maddox’s visit to the saloon on the afternoon
of Friday, December 30, when she is supposed to have seen Alma
Tirtschke in the beaded room with a glass before her. (At this time,
according to the Harding confession, the little girl was asleep in the
cubicle.) Maddox, it will be remembered, said that, when she went into
the saloon on that afternoon, at five minutes past 5, there were two
girls whom she knew in the parlour, and one whom she did not know. She
left, she said, at a quarter past 5, and returned to the saloon at five
minutes to 6, but did not see either Colin or the little girl on that
visit. The girl whom Maddox did not know came forward voluntarily after
Ross had been condemned. She went out on the Saturday night of his
conviction to Ross’s house at Maidstone and told what she knew. She was
brought to Ross’s solicitor on the Monday, and made a statement as to
what took place in the saloon on the fatal Friday afternoon. Her name
need not now be mentioned. Suffice it to say she is a respectable girl,
a tailoress by occupation, who has never been out of employment a day
during the three years she has been in Melbourne. She has no relatives
in Melbourne, and she used occasionally to go to the wine shop because
it was in a quiet spot, and as she was on holidays at the time she
remained on this occasion for over an hour, arriving before 5 and
stopping until after 6. She was there when Maddox came in at about 5
o’clock, and she is positive that Alma Tirtschke was not in the saloon
at the time. Maddox was under the influence of drink, and was talking
excitedly to her two friends. The tailoress sat listening to her, but
taking no part in the conversation, and, indeed, refusing to be drawn
into it.

Maddox’s story that she left soon after coming in, and returned shortly
before 6, is not true, the tailoress says—her stay was unbroken.
This girl was cross-examined by Ross’s advisers before she made her
declaration, and she remained unshaken in her story. If Maddox’s
evidence is fabricated, her reason for saying that she left the place
for three-quarters of an hour is obvious. It saves her having to
explain how the murdered girl got out of the room and where she went
to. This evidence of the tailoress was rejected by the Full Court on
the ground that it was not shown that it could not have been procured
on the trial. It was dismissed by the Attorney-General as evidence that
“would not, and ought not,” to have affected the jury. It is hard to
follow this observation, since if the declaration were true it proved
that the main part of the case against Ross was false.


OTHER NEW WITNESSES.

There were other persons about the saloon on the Friday afternoon
who are equally confident that the little girl was not there. When
interrogated by the detectives on the 5th, Ross was asked who was in
his wine bar when he came there on December 30, and he mentioned the
name of a man named Allen, and a woman whom he did not know, but who,
he said, was ordered out of the saloon by Detective Lee. Allen was one
of those whom the defence was anxious to call as a new witness. Every
effort to locate him before the trial failed. After the trial he was
found. He says that he went into the saloon first about a quarter to 2,
and saw there a man named Edwards and two other men. He remained for
some time, then left, and returned again about 5 o’clock, remaining
until 6. He spoke frequently to Colin Ross, heard him talking to
Gladys Wain in the cubicle, but saw nothing of any girl answering the
description of Alma Tirtschke. As many as fifteen and twenty people,
he says, were in the bar at the one time during his stay. One of the
men he saw was Thomas William Jordon. Jordon says that he came in about
a quarter past 3, and remained until 4 o’clock. He, too, saw Victor
McLoughlin, Allen, and Edwards. He talked with Ross frequently, saw him
talking to others, and is confident that there was no little girl in
the saloon during the time he was there. On January 5, the day after
Ross was first interrogated at the Detective Office, he went to the
Detective Office and told Piggott and Brophy what he knew. This was
not denied in Detective Brophy’s affidavit. When Piggott was in the
witness box he was asked as to this interview, but the question was
disallowed, and Jordon was not called as a witness for the defence.
Herbert Victor Edwards and Victor McLoughlin were both prepared to bear
out this evidence. These four young men, though acquainted, were not
of the one party. They came at different times. Some were there for
an unbroken period, and some left and returned, but between them they
covered the whole afternoon. They all knew Ivy Matthews, and none of
them saw her, or saw Ross leave the saloon, as Matthews said he did.
Two of them sat on the form, with their backs to the flimsy cubicle for
some time, and they are confident that, even if the little girl had
been asleep in that room, they would have heard her breathing or moving.

The line of the Crown case indicated that the detective’s view was
that those witnesses were talking of the Thursday, and not the Friday.
Detective Piggott, in perfect honesty, no doubt, tried to establish
that fact early in the investigations. On the day that Ross was
arrested he said to him (inter alia), according to his evidence: “You
told me (on January 5) that Detectives Saker and Lee had put a woman
out of your bar on the Friday.” Ross replied: “So they did.” Brophy,
Lee, and Saker were present, and Piggott said to Lee: “Did you put a
woman out of the bar on Friday?” Lee said: “No,” and Piggott said: “How
do you know?” Lee replied: “Because Saker was with me, and Saker was
on leave on the Friday.” Piggott then said to Ross: “Do you recognise
those as the two men who put the woman out?” and he said: “Yes.”
Piggott said: “But Lee says that Saker was on leave on the Friday,”
and Ross replied: “Well, I must have been making a mistake; it must
have been the Thursday.”

Now, it must be borne in mind that this was a conversation recalling
the incidents of a fortnight previously. Piggott was not necessarily
verbally accurate, and Ross, being under arrest, may have allowed
himself to be “led” into his answers. The first thing to notice is that
Piggott was wrong when he said: “You told me that Detectives Saker and
Lee had put a woman out.” What Ross said, according to Piggott’s own
account of what took place on the 5th, was that “Detective Lee” ordered
her out. Saker’s name was not mentioned. But if Ross had been a guilty
man, his answers would have been all ready prepared, and his candid
admission, “I must have been making a mistake; it must have been the
Thursday,” points to his candour rather than to his cunning.

There was no opportunity of cross-examining either Lee or Saker as to
the date on which they were there, for neither was called as a witness,
but there is every reason to believe that the mistake was made by them,
and not by Ross. One of the four men mentioned above, who saw the
incident, was questioned later on as to the possibility of a mistake.
He had come from the wharf, where he had been on board a ship sailing
that day, and had come thence to the saloon, and he maintains (and
he maintains it in circumstances which can leave no room to impugn
his honesty) that there is not the slightest doubt as to the day that
he was at the saloon. One of the others had come from his factory at
Fitzroy, after it had closed for the week, and though he did not see
the incident, he saw the other men, and he is equally confident that it
was the Friday, and not the Thursday.


THE CROWN’S NEW EVIDENCE.

When the agitation was on foot for Ross’s reprieve the Attorney-General
was reported to have said that he was in possession of evidence which
would convict Ross in five minutes. That statement was officially
denied, but it was always maintained that the Crown were, after the
trial, put in possession of facts which were most damaging against
Ross. All that the present writer can say as to that is this, that he
was made acquainted with the facts in the possession of the Government,
and that those facts were not such as would have the slightest weight
with him in confirming the guilt of Ross.

It has further been publicly said that Ross wrote to Ivy Matthews a
letter which incriminated him, and that Mrs. Ross called on her and
begged her not to use the letter. Matthews is said to have given the
promise not to use it, and in consequence of the visit to have torn it
up. This has appeared in print, but whether Matthews herself ever said
it the present writer does not profess to know. Matthews’s character
was bitterly assailed, both at the inquest and on the trial, and she
never even hinted at such a letter. That she should have destroyed
it, if she received it, is incredible, and Mrs. Ross’s answer to the
allegation that she ever waited on Matthews has already been given in
her own words.

Harding, too, is said to have received from Ross, while Ross was
awaiting execution, a letter which impliedly admitted his guilt, and
he, too, is supposed to have torn it up. In the witness box Harding
was attacked for what he is—the most oily and odious scoundrel that
ever polluted a court of justice. If he had, or had ever received, a
letter from Ross which would have done anything to rehabilitate his
tattered reputation, he would have used it. But, in fact, there is
in Melbourne one man at least whose lightest word would carry more
weight than Harding’s most solemn oath, who knows that Ross did write
a letter to Harding, knows its contents, and knows that, so far from
it containing an implied admission of guilt, it contained exactly the
opposite.

[Illustration]



PART V.

THE DEFENCE.


As has already been said, the purpose of this review is not to set out
the evidence on either side and ask the public to weigh it. That was
the function of the jury, and if they did their work unskilfully there
is no redress in this world. The main purpose has been to set out the
Crown case, and to show, by an analysis of it, that Ross’s guilt could
not, as a matter of logic, be deduced from it with the certainty which
the law requires in criminal cases. How far that has been done the
reader must judge.

None the less it is right to show that Ross, from first to last, did
what was humanly possible to establish his innocence.

As far as his evidence is concerned, it simply followed the lines
of his written statement made on January 5, and his answers to
questions given on that and other dates. His cross-examination left
him absolutely unshaken as to his story, though it has to be admitted
that his demeanour in the box, his unveiled hostility to the police,
his direct allegations against them, his blunt affirmation that what
Harding knew he had been told by “the coppers,” and his assertion that
the hairs on the blanket had been put there by the detectives, were not
calculated to make a favourable impression on the jury. He admitted
that he had spoken to Harding about the case, had told Harding that
he was in prison to keep the public’s mouth closed, and had mentioned
to him that he was with “his girl” that afternoon and evening, but he
denied strongly that he had ever confessed to Harding. He said, also,
that he knew Harding’s reputation as a “shelf,” and defined a “shelf”
as a man who not merely tells tales on prisoners, but makes them up
as well—a man “who hears one thing and builds on it.” It is well,
however, that Ross’s outline of his movements, both on the fatal day
and on January 5, when he is supposed to have made damaging admissions
to Olive Maddox during a chance meeting at Jolimont, should be
recapitulated in order to see how it was borne out by the long string
of witnesses who were called to support him.


ROSS IN THE BOX.

Ross said that when he got into the saloon at about 2 o’clock on the
Friday, he saw there, besides his brother Stanley and others, two
men named Albert Allen and Lewis. He did not see Ivy Matthews that
afternoon, and had not seen her since a couple of days before his trial
for robbery under arms in the November previous. He did see a little
girl “answering the description” of Alma Tirtschke. It should be borne
in mind, in view of Ross’s dying speech, that that was the furthest
he ever went, viz., that he saw a girl, between 14 and 15 years of
age, whose dress answered the description of Alma, but he never spoke
to her, and she had never been in his saloon. She was, when he saw
her first, walking towards Bourke Street, and at his next glance was
looking in the window of a fancy goods shop next to Madame Ghurka’s.
He remained about the saloon all the afternoon, talked to Gladys Wain
for a long time, made an appointment with her to meet him again at 9
o’clock, and left the saloon about ten minutes past 6. He then went
home. When he got home about 7 he met his eldest brother, Ronald,
coming out of the gate. At home he met his mother and his brother Tom,
with whom he had tea. He cleaned himself up, and left home again with
his brother Tom about 8. They went by the tram to Footscray, and saw
and spoke to Mrs. Kee and George Dawsey on the tram. The brothers took
the train together at Footscray, and Tom left him at North Melbourne,
to go to his (Tom’s) wife’s people, the Ballantynes, at West Melbourne.
He got to the Eastern Arcade about a quarter to 9, and waited about
the Little Collins Street entrance until a little after 9, when he
was joined by Gladys Wain. They went into the saloon, and remained
there until half-past 10 or a quarter to 11. They came out into
Little Collins Street, went along Russell Street to Lonsdale Street,
along Lonsdale Street to King Street, where they remained talking for
about ten minutes, close to the girl’s home. He left her at about ten
minutes past 11, and went to Spencer Street, where he took train to
Footscray. He got to Footscray about fourteen minutes to 12. He there
took the tram, and on the tram he met a friend named Herbert Studd,
who introduced him to a man named James Patterson. He got off the
tram at the terminus, and walked from the terminus to his home with
a young fellow named Frederick George Bradley, who was a very casual
acquaintance living further along in Ross’s street. He reached home
about 12, his mother being still up. He went almost straight into the
room, where his brother Ronald was in bed, but awake, and went to bed.
He never left his room that night. His brother, Tom, who was working in
the neighbourhood, and had come back for breakfast, came into the room
about twenty minutes to 7 next morning. He himself had breakfast later
on with his mother and Ronald. He then went in to the Arcade, where he
was told by Stanley of the murder, and was later on interviewed by the
detectives. To them he gave offhand this account of his movements, not
with all these details as to meetings with persons, but exactly the
same account of his main doings on the previous day and night. Stanley,
in the meantime, had given to the detectives his own account of his
own and Colin’s movements, and it exactly corresponded with Colin’s
account, so far as the movements of the two impinged on one another.
In addition to that, the detectives later saw Gladys Wain and got her
independent account, and it, too, exactly coincided with Ross’s account.

Turning to his movements on January 5, Ross said that he was seen by
the detectives at 11 a.m., and detained until 7 p.m. About that there
is no doubt. From the Detective Office he went to Mrs. Linderman’s
(Gladys Wain’s mother), in King Street, saw there the Linderman family,
Mrs. Kennedy, his own mother, and Mrs. Tom Ross, his sister-in-law,
Mrs. Kennedy and his mother arriving soon after him. His mother and
Mrs. Kennedy left before him to go down to the “Age” Office. Mrs. Tom
Ross also left to go to the house of her mother (Mrs. Ballantyne),
some twenty minutes’ walk away, and about 9 he left and went to
Ballantyne’s, where he remained, with several others, until about
half-past 10, when he left, with his brother Stanley and others, to
catch the train at North Melbourne.


STRONG CORROBORATION.

Stanley Gordon Ross said that Colin arrived at the saloon about 2
o’clock on Friday, December 30. He remembered Allen being there at the
time, sitting in the corner, and Lewis coming in a little after. Ivy
Matthews he had not seen that afternoon, and had not spoken to since
about eight or ten days before Christmas. No girl answering to the
description of Alma Tirtschke was in the saloon that afternoon, or
could possibly have been there without him seeing her. His brother was
talking at the door for a good while that afternoon, the first person
he noticed him talking to being a lady in an Assam coat, whose name he
gave. Shortly after 4 o’clock he noticed Colin talking to Gladys Wain,
and about 5 Gladys came into the “cubicle” (though he had never heard
it called by that name before), and remained for about ten minutes or
a quarter of an hour. He remained in the bar until about 6 o’clock,
or a little after, and Colin left before him. Stanley then locked up,
went and had tea at the Commercial Cafe, in Elizabeth Street, had a
shave, and came back into the Arcade at about half-past 7, and got the
lavatory key. He went to the lavatory and returned the key soon after.
There was no person in the saloon at this time. He returned to the
saloon on the following morning, and opened it up according to custom,
swept and scrubbed it out, and saw no signs of it having been scrubbed
on the previous night. Early in the forenoon he was seen by Piggott and
Brophy, who gave him, so he says (though this is denied by Piggott)
a description of the dress worn by the murdered girl, a description
which he, in turn, gave to Colin when Colin arrived soon after.
Stanley and Colin were not, at the time, living in the same house, and
between 6 o’clock on the Friday night and Colin’s arrival at the saloon
on the Saturday morning they had not seen one another.

It is noteworthy that Stanley gave a full account of his movements to
the detectives before they had seen Colin. The evidence he gave exactly
agreed with the statement, except that he told the detectives that he
got back to the saloon on the Friday evening at about 7, whereas in
his evidence he said it was about half-past 7. He explained this very
slight discrepancy by saying that he spoke offhand to the police, but
that, on reckoning up afterwards the time he had spent having tea and
the time he was in the barber’s saloon, he thought it would be about
half-past 7 when he returned to the saloon. The cross-examination of
Stanley on this point was directed to show that he had made the time
half-past 7 because he had heard in the meantime that the witness
Alberts had sworn that he saw Colin Ross in the Arcade at half-past 7.
This was another of the incidents that pointed to the honesty of the
evidence for Ross. Counsel for the defence were under the impression,
owing to some misapprehension, that the answer to Alberts’s evidence
was that he had spoken to Stanley, and had mistaken him for Colin, the
two brothers being very much alike. Alberts, therefore, was not very
strongly cross-examined on the point. He was given permission, after
his evidence had been taken, to leave the court, as he had to go to New
South Wales. In his evidence-in-chief Stanley was asked: “Did you talk
to any person in the Arcade?” (when he returned at half-past 7). The
unexpected answer was “No.” Alberts could not then be got for further
cross-examination. But if the Rosses had desired to make a case on this
point, they could have easily done so by getting Stanley to say that it
was he who had asked Alberts for the lead pencil.

Turning to the events of January 5, Stanley said that, pursuant to a
message left for him where he was boarding, he went to the Detective
Office about a quarter to 7, and found that Colin was still there. He
went by train to Footscray, and he came back to Ballantyne’s, in West
Melbourne (the family of Mrs. Tom Ross), at about half-past 9. There
he met Colin and several other persons, and about half-past 10 he and
Colin and two others left the house for Footscray.

Mrs. Elizabeth Campbell Ross, the mother, said she remembered her son
leaving home on Friday, December 30, after lunch. At about 7 that night
he came home for tea. Her eldest son, Ronald, her married son, Tom, and
herself had had tea when he arrived. She got him his tea, and he left
the house afterwards with Tom. She herself left home, and went down
to Footscray to do some shopping, it being the late shopping night.
She returned at about 10, Ronald arrived soon after, and Colin came in
at midnight and went to bed. She locked up the house and went to bed,
Colin then being in his own and his brother’s room. She got up at 6, to
get Tom’s breakfast at 7, and she closed the door of her son’s room,
as Ronald was a sufferer from malaria, and a light sleeper. Colin and
Ronald were then both in bed. She got them their breakfast later on,
and Colin left to go to the cafe.

On Thursday, January 5, the detectives called and took Colin away at
about 11 a.m. At about 7 o’clock, Mrs. Ross said, accompanied by her
son Tom, she went to the Detective Office, calling at Mrs. Linderman’s
on the way. At the Detective Office they were told that Colin had just
been released. They returned to Mrs. Linderman’s, and saw there the
people mentioned in Colin’s evidence. She and Mrs. Kennedy, in about an
hour’s time, went to the “Age” Office, and from there she went home.


AN UNBROKEN PHALANX.

It is needless to set out in detail the evidence called to support
the story told by the three foregoing witnesses. Suffice it to say
that Tom Ross, Ronald Ross, Gladys Wain, Mrs. Kennedy, Mrs. Kee, Oscar
Dawsey, Herbert Studd, James Patterson, F. G. Bradley, Mrs. Tom Ross,
Mrs. Linderman, and Miss Alice Ballantyne were all called, and each
testified to his or her own portion of the story. There were some
persons at Ballantyne’s house on Thursday, January 5, who were not
called, for the reason that the evidence seemed overwhelming that
Colin Ross was at Ballantyne’s soon after 9 on that date. They would
have been called had it been known that Olive Maddox was going to say
that it was about half-past 9 that she saw Colin at Jolimont. But that
was not said until after the case for the defence was closed. The
Crown Prosecutor then asked leave to recall Olive Maddox to get from
her the time that she said she met Ross at Jolimont. She had been in
court while the evidence for the defence was being given, and knew its
effect. Being recalled, she was questioned as follows:—

Mr. Macindoe: Do you remember the 5th January last—you told us you saw
the accused that night?—Yes.

What time was it?—It may have been—it was—any time after 10 to
half-past 10, when I first seen him.

From 10 to half-past 10!—From 9 to half-past 9—any time until then.

Assuming, however, that Maddox got into the box intending to say that
the time was from 9 to half-past 9, and merely made a slip, it will
be noticed that the time she fixes is significant. It only conflicts
with the witnesses who deposed to seeing Ross at Ballantyne’s, and
is consistent with the testimony of those who swore to seeing him at
Linderman’s, for it was possible, apart from the evidence, that Ross,
after leaving Linderman’s, went to Jolimont. The inherent improbability
that, after having been detained for eight hours by the police, and
questioned about the tragedy, he should have gone to Jolimont, and
should have happened, when there, to meet quite accidentally, one of
the only two people in the world who say they saw the child in the
saloon, would still stand out, even if the poor street-stroller’s
testimony were not confuted by a host of unbroken and unshaken
witnesses.

It is not going too far to describe the whole of the evidence for
the defence as unbroken and unshaken. The test to which it was
subjected was remarkable. The other witnesses were all out of court
while a particular witness was being examined. Some deposed to all
the time covered by Ross, some to part only. Their evidence locked
and interlocked in a remarkable way. All were ably and severely
cross-examined, but with the exception of one slight disagreement as
to which two of three blankets were in the saloon—a natural mistake,
seeing that all the blankets were of the same type, though differing
slightly in colour—not the smallest flaw was revealed in the story
told by any of them. It is true that Ross swore that, when he and
Gladys Wain were in the saloon on the Friday night, the lights were out
some of the time, whereas Gladys Wain swore they were alight “every
minute of the time,” but Gladys Wain knew what Ross had sworn on the
point, and she went into the box insisting on her right to put her own
account of the matter. It was not a case of revealing a conflict by
cross-examination.

The different pieces of evidence were like a mosaic which, when put
together, form a complete and harmonious pattern. From its nature it
was full of pitfalls if concocted. The Crown Prosecutor skilfully
searched the witnesses to find some break in the completed pattern, but
failed signally to do so, and the whole story stood, as every one of
the witnesses stood, absolutely unimpeached before the jury. But the
weakness seems to have been in the jury rather than in the story.

The criticism usually levelled against an alibi is that the witnesses
are either honestly mistaken about the day or have deliberately taken
the movements of another day and applied them to the vital day. The
alibi, if it can be properly called an alibi, in this case was not
open to either criticism. The Friday was the late shopping night,
just before the New Year. It was a day that could be easily recalled
after the lapse of a week or two. The Thursday following was the day
that Ross had been detained by the detectives for eight hours, and was
not likely to be soon forgotten by the members or friends of the Ross
family. Mrs. Ross could be making no mistake about the day, because it
was in regard to her son’s detention that she went to the “Age” Office.
The theory that the wrong day was deliberately chosen by the witnesses
involves the inference that independent witnesses, like Mrs. Kee, Mr.
Dawsey, Mr. Studd, Mr. Patterson, Mr. Bradley, and Mrs. Kennedy, all
took part in a conspiracy with the object of saving a man who, if
guilty, did not deserve to be saved. Anyone who had the advantage of
conferring with them, or of hearing their testimony in the box, could
not fail to be impressed by the story they told.


ROSS’S FIRMNESS.

As far as Ross himself is concerned, he not merely stoutly maintained
his innocence from the day he was arrested to the day he was hanged,
but his conduct and bearing throughout was that of an innocent man. It
was not tactful or amiable. It was blustering and bad-tempered, and
at times aggressive. But it was, throughout, that of a sullen man,
suffering under a sense of wrong.

He made a free statement to the police on the day that the body
was recovered, admitting that he had seen a girl answering to the
description of the murdered girl. On January 5, after, or in the course
of, a detention of eight hours, he made a full statement to the police
which was committed to writing. Not one word of that statement is
shown to have been false, by evidence that is worth a moment’s serious
consideration. A great deal of it the police did not dispute. A solid
phalanx of witnesses, as has been shown, was called on the trial to
bear out the statement, and not the smallest flaw was revealed by a
skilful cross-examination in that long chain of evidence.

But more than that, on Thursday, January 6, the day following his eight
hours’ detention and interrogation, like a man suffering from a sense
of wrong and indignity at the questions put to him and the suggestions
made against him, Ross went boldly back to the Detective Office and
said to Piggott: “Who has been saying these things to you about me?”
Piggott said: “I won’t tell you.” “Well, I want to know,” said Ross.
Piggott replied: “Well, you won’t know. I never divulge where I get my
information. Why are you so anxious to know?” “Because,” said Ross, “I
will warm them up,” and he went so far as to tell Piggott that he did
not believe anyone had told him. Piggott himself gave this in evidence.
It was all very foolish and impudent on Ross’s part, no doubt. It was
characteristic of his quite fearless and “cheeky” attitude throughout.
But a guilty man, who had just escaped from an eight-hour ordeal with
the detectives, might surely be expected to keep as far away from
Russell Street as possible.

Again, on the 12th, the day he was arrested, Ross answered: “That’s
a lie,” “That’s a lie,” to each new allegation made against him. On
the following day he was brought before the Police Court. He was
undefended, and was asked if he had any objection to a remand. “Yes,”
he said, “I don’t require a remand. There is no reason why I should be
here. I can prove my whereabouts on that night. I strongly object to a
remand. I have all my witnesses here.” As he left the dock, remanded,
he called out: “That’s the country’s law,” and then he added, in his
characteristic, blustering tone: “This is a great country, there’s no
doubt about it.” It may have been all simulated, but it did not sound
like simulated indignation.

It is worth recording, too, that his mother, unable to restrain
herself, rose in court that day and said: “I can prove where my son was
that night.”

On the morning of February 25th he was found guilty of murder. Asked if
he had anything to say why the death sentence should not be pronounced,
he stood forward, and, without a quiver on his lip or in his voice,
he answered: “Yes, sir; I still maintain that I am an innocent man,
and that my evidence is correct. If I am hanged, I will be hanged an
innocent man. My life has been sworn away by desperate people.” He
listened calmly to the death sentence, and repeated: “I am an innocent
man.”

Hanged he duly was, or, rather, he was hanged with more than usual
expedition. Within less than a week of his doom being sealed by the
High Court, a special meeting of the Cabinet was called, and his
execution was fixed to take place in a fortnight. The Government,
notwithstanding strong representations, supported by affidavits of new
facts, declined to allow time for an appeal to the Privy Council. Ross
went to the gallows. He was attended by his minister throughout, and
he accepted the ministrations in the most worthy spirit. But he never
wavered for a moment in his profession of innocence, either to his
minister or to his solicitor. Standing on the scaffold, with the rope
around his neck, he delivered a final protestation of his innocence in
words which have rung through Australia.

      “~I am now face to face with my Maker~,” he
    said, “~and I swear by Almighty God that I am an
    innocent man. I never saw the child. I never committed
    the crime, and I don’t know who did it. I never
    confessed to anyone. I ask God to forgive those who
    swore my life away, and I pray God to have mercy on my
    poor, darling mother and my family.~”

Some sticklers for accuracy, who have never made a public speech, and
who, it may be hoped, will not have to make a start with a hangman’s
rope around their neck, and the gallows for a platform, have fastened
on to the words, “I never saw the girl,” as being the assertion of
an untruth. Ross signed a statement that he saw a girl answering the
description of Alma Tirtschke; he went into the witness box and swore
that he had seen such a girl. The words, therefore, at the worst, could
only mean, and could only be read by an intelligent man as meaning,
that he had never spoken to the girl or seen her otherwise than as he
had already said. He was not given much time for correction, or for
second thoughts, because within a moment or two of uttering the words
he had passed to eternity.

But it is now known that Ross’s words were deliberately chosen, and
that he meant to tell the world with his dying breath that he never, as
far as he knew, set eyes on Alma Tirtschke. That being his intention,
his actual words, it must be admitted, went too far, or not far enough,
for from the description he gave of the girl, combined with the other
facts, it appears certain that the girl he saw and described was Alma
Tirtschke. But that he did not mean to recede from the position he had
all along taken up seems so clear as to be beyond the realm of argument
or the reach of adverse comment.


ROSS AND HIS FAMILY.

Cowards, who have sought to steel their consciences against the effects
of Ross’s dying speech, have circulated the story that Ross’s brother
begged him, whatever he did, not to make a confession on the scaffold.
It is part of the same policy of easing the public conscience as the
base and baseless statements about the letters written to Harding
before his execution and to Matthews before his trial. The story of the
farewell injunction to the brother can be most fittingly described as a
dastardly lie. Whether Ross be guilty or innocent, the brothers never
wavered in their belief in his innocence. The idea of a confession
would never be present to the minds of any of them.

There was another thing Ross did on the last night of his life which
has affected many people even more than his dying speech. His family,
including his mother, took farewell of him on the Sunday afternoon.
When they had left him, when all hope of mercy was gone, he sat down
in his cell and wrote to his mother a letter which was not delivered
to her, and was not intended to be delivered to her, until after his
death. It is well worth giving, because it is so strongly in accord
with the attitude he maintained throughout. It is almost impossible to
believe that it is a tremendous piece of hypocrisy. The letter was as
follows:—

      “Good-bye, my darling mother and brothers. On this,
    the last night of my life, I want to tell you that I
    love you all more than ever. Do not fear for to-morrow,
    for I know God will be with me. Try to forgive my
    enemies—let God deal with them. I want you, dear
    mother, and Ronald, to thank all the friends who have
    been so kind to you and me during our trouble. I have
    received nothing but kindness since I have been in
    gaol. Say good-bye to Gladdie for me, and I wish for
    her a happy life. Dear ones, do not fret too much for
    me. The day is coming when my innocence will be proved.
    Good-bye, all my dear ones. Some day you will meet
    again your loving son and brother.

                          “COLIN, x x x x x x x x x x”

Ross has been described as inscrutable, and his conduct as puzzling.
His firmness or obstinacy—it has been called indifferently either—has
been criticised as suggesting a curious nature. But Ross and his
conduct are only inscrutable if one starts with the assumption that he
was a guilty man. Concede that he was innocent, and everything that he
did, or said, or failed to say, not merely ceases to be inscrutable,
but becomes quite natural. It is that, amongst other things, which has
caused the widespread feeling that his life has been “sworn away by
desperate people.”


IS THE MYSTERY SOLVED?

If Ross is innocent, the mystery of the death of Alma Tirtschke
remains. It was, however, no part of Ross’s duty to solve it. In
this connection it is doubtful whether sufficient attention has been
ever paid to the evidence tendered by Joseph Thomas Graham. He is a
cab driver by occupation, middle-aged, respectable, intelligent, and
thoroughly level-headed. On Friday afternoon, December 30, at about
half-past 3, he was in Little Collins Street, nearly opposite the Adam
and Eve lodging-house, when his attention was arrested by a series of
heartrending screams coming apparently from a young girl. They became
higher in pitch as they succeeded one another, to the number of five or
six, and then they died away. They were so noticeable that Graham and a
man on the opposite side of the street both stopped and listened, but
as the screams faded out each man went about his business. On or about
Saturday, January 7, Graham saw a notice in the paper saying that, as
the girl had been throttled, she was probably throttled to stop her
screams, and asking anyone who had heard screams to communicate with
the Detective Office. He went on the Monday to the Detective Office
and reported what he had heard, but his reception does not appear to
have been sympathetic. Graham was never called at the inquest. The
police explanation is that he was not sure whether it was Thursday or
Friday that he heard the screams, and that, in any case, he placed them
as coming from higher up Little Collins Street. Neither explanation
can be accepted, for Graham was absolutely definite as to his every
movement on the Friday, and absolutely definite as to time and place.
An absurd story was told by Detective Brophy about making inquiries in
the neighbourhood, and learning of some child that had a reputation for
screaming, as though an intelligent man could not tell the difference
between the bad-tempered screaming of a naughty child and the agonised
death screams of an adolescent girl. When Ross was condemned Graham
went to his solicitor and repeated his story. That was the first the
defence knew of it. The Full Court heard his evidence, but it declined
to allow a jury to hear it.

Whether it would have had any effect on the jury can now be only a
matter of conjecture. There is this to be said of it, however, that
it fits in with the medical evidence, for it suggests a struggle, and
the medical evidence of the abrasions suggests a struggle. It fits
in, also, with all we know of Alma Tirtschke’s nature. The fact must
be faced that, if the Matthews confession is true, the girl was not
what her relatives believed her. She boldly went to Ross, and boldly
remained in Ross’s saloon for three hours, like a pert and forward
youngster, not to put it any further. If it comes to a choice, most
people will prefer to think of the child as good and innocent and
retiring, rather than to accept anything to the contrary which comes
unsupported from the lips of Ivy Matthews. If the Harding confession is
accepted the matter is very little better, for you then have the girl
walking deliberately back into the Arcade after she was seen in Little
Collins Street by the Youngs, accepting the invitation of a stranger
to come into his wine saloon, and taking wine at his hands—wine of
which no trace could be found when the stomach was opened less than
eighteen hours afterwards. The attractive feature of Graham’s evidence,
if the screams he heard were connected with Alma Tirtschke, is that it
allows us to think of the little girl as we would all like to think
of her—pure, innocent, and modest. That little girl met her death,
in all human probability, within a few minutes of the time she was
last seen alive by the Youngs, she met it in some place which was
much handier to Gun Alley than Ross’s wine saloon, and she met it in
a house provided with a fireplace or other conveniences for disposing
of incriminating evidence. If anyone would like to see one other
improbability in connection with the Crown case against Ross, he should
visit the Little Collins Street entrance of the Arcade by night, and
ask himself whether it is likely that any man would carry the dead
body of a murdered child such a long distance up a brilliantly lighted
thoroughfare even at 1 o’clock in the morning.

[Illustration]



APPENDIX.


During the progress of the trial numberless letters, anonymous and
bearing signatures, were received by Ross’s legal advisers. They were
of all classes—helpful criticism, incoherent comment, threatening,
laudatory, and censorious. One received on the eve of Ross’s execution,
with a covering note asking that it should be handed to him, and saying
that it would have been sent direct only the writer had doubts whether
the prison regulations would allow Ross to get it, bore on its face
some suggestion of genuineness. No one, of course, can say definitely,
but the letter may perhaps be given as possessing some public interest.
The envelope bore the postmark of a small country town, but there was
nothing otherwise to indicate whence or from whom it came. With the
elision of a sentence or two, rather Zola-esque for publication, it was
as follows:—

    “Colin C. Ross,
        “Melbourne Gaol.

      “You have been condemned for a crime which you have
    never committed, and are to suffer for another’s fault.
    Since your conviction you have, no doubt, wondered what
    manner of man the real murderer is who could not only
    encompass the girl’s death, but allow you to suffer in
    his stead.

      “My dear Ross, if it is any satisfaction for you to
    know it, believe me that you die but once, but he will
    continue to die for the rest of his life. Honoured and
    fawned upon by those who know him, the smile upon his
    lips but hides the canker eating into his soul. Day and
    night his life is a hell without the hope of reprieve.
    Gladly would he take your place on Monday next if he had
    himself alone to consider. His reason, then, briefly
    stated, is this: A devoted and loving mother is ill—a
    shock would be fatal. Three loving married sisters,
    whose whole life would be wrecked, to say nothing of
    brothers who have been accustomed to take him as a
    pattern. He cannot sacrifice these. Himself he will
    sacrifice when his mother passes away. He will do it
    by his own hand. He will board the ferry across the
    Styx with a lie on his lips, with the only hope that
    religion is a myth and death annihilation.

      “It is too painful for him to go into the details of
    the crime. It is simply a Jekyll and Hyde existence.
    By a freak of nature, he was not made as other men....
    This girl was not the first.... With a procuress all
    things are possible.... In this case there was no
    intention of murder—the victim unexpectedly collapsed.
    The hands of the woman, in her frenzy, did the rest.

      “May it be some satisfaction to yourself, your
    devoted mother, and the members of your family to know
    that at least one of the legion of the damned, who is
    the cause of your death, is suffering the pangs of
    hell. He may not ask your forgiveness or sympathy, but
    he asks your understanding.”


[Illustration: FINIS.]





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