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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.