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.