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.