POINTS THE JURY MISSED.
But even with what they had before them, the mystery still remains how any jury of reasonable men, appreciating the evidence properly, could say that there was no doubt as to Ross’s guilt. Reviewing it as dispassionately as one may, and without comparing it with the evidence for the defence, to be adverted to in a moment, the balance of probability, to say the very least, dips on the side of his innocence. The inherent weakness of the Crown case would remain though not one witness were called for the defence. The unfortunate thing for Ross was that the jury never was told that there was any weakness or inconsistency in the Crown evidence. On the contrary, the evidence was left to them, and, indeed, put to them, as though there was a cumulative force about it. At one stage they were told by the learned Judge that “the accused in his evidence denies what is attributed to him by Brophy, denies the statements of Ivy Matthews incriminating him, denies the statements of Olive Maddox incriminating him, denies Harding’s and Dunstan’s evidence, and denies also the evidence of Upton.” The inherent improbability of the supposed admission to Brophy, or the inherent probability of Ross’s account of it, was never suggested; the conflict between the Matthews and the Harding confessions was never hinted at; the fact that Dunstan had read Harding’s evidence, as given at the Morgue, and had not reported what he is supposed to have heard until after he had read it, was never adverted to; and the fact that Olive Maddox’s evidence could not be true that the girl was awake in the beaded room at 5 o’clock if Harding’s “confession” was true that she was asleep in the cubicle at that time was never referred to.
It was never pointed out to the jury that Harding and Matthews were deposing only to confessions, and that, while it is possible for a man to say things that are verbally inconsistent, it is not possible for him to do things that are actually inconsistent, and that what the jury had to determine was not what Ross said, but what he did.
They were never asked to consider why he should have made two different confessions to two different people, or why he should have made a confession at all. They were never told that, in dealing with an alleged confession, they must approach the consideration of it in a manner entirely different from that in which they would approach evidence purporting to deal with substantive facts. Indeed, in the passage above quoted, Upton’s evidence of supposed facts is put in exactly the same category as Matthews’s and Harding’s evidence of supposed confessions. The learned lawyer, Sir Michael Foster, author of an historic legal work, may have realised that confessional evidence “is not, in the ordinary course of things, to be disproved by the sort of negative evidence by which the proof of plain facts may be, and often is, confronted,” but a Melbourne common jury was hardly likely to realise that truth by the light of nature. Mr. Justice Cave, in delivering the judgment of a very full Bench in a trumpery case of embezzlement not so very long ago, said: “I would add that, for my part, I always suspect these confessions which are supposed to be the offspring of penitence and remorse, and which, nevertheless, are repudiated by the prisoner at the trial. It is remarkable that it is of very rare occurrence for evidence of a confession to be given when the proof of the prisoner’s guilt is otherwise clear and satisfactory, but, when it is not, the prisoner is not infrequently alleged to have been seized with the desire, born of penitence and remorse, to supplement it with a confession—a desire which vanishes as soon as he appears in a court of justice.” How aptly those words applied to this case!
They were never warned that they could take the confessions, if they were satisfied that they were made, and accept as much of them, or either of them, as they chose, but that, if they rejected any portion of them, they could not fill in the gap by conjecture if there was no other evidence on the point.
They were never reminded of the difficulties of cross-examining two persons who purport to depose to a confession, for, whatever inconsistency with the facts is pointed out, the witness merely replies, “That may be so; I know nothing but what he told me.”
They were told that Ellis’s evidence was important “because it was so contradictory of the evidence of some of the witnesses for the defence,” but they were never reminded that, if Ellis’s evidence was true, they would have to reject a great portion of the supposed confessions to Matthews and Harding.
It is extremely likely that, in dealing with Matthews’s and Harding’s evidence, they would reason that “Harding says this” and “Matthews says this,” and then draw inferences unfavourable to Ross from the supposed cumulative effects of the two sets of evidence; and extremely unlikely that they would reason that “Harding says that Ross said this,” and “Matthews says that Ross said that,” and then go on to draw inferences favourable to Ross from the fact that they make him say totally inconsistent things. Yet this is what they should have done. They probably have not yet realised that they were dealing with a case absolutely without parallel in the annals of British criminal jurisprudence, in which they were invited to hang a man on contradictory confessions, which he is alleged, by thoroughly disreputable witnesses, to have made, which on his oath he denied having made, for the making of which no reason could be assigned, and which were so seriously in conflict as to suggest that they were never made.
In the nature of things they were likely to put Harding, Matthews, Maddox, Dunstan, Ellis, and the Italians on one side, and Ross and his witnesses on the other, and were not likely to recall that the one set was a contradictory jumble, and the other set a solid mass of unshaken testimony, much of it disinterested, directed to establishing certain definite things.
To the writer, these all seem matters that it was of the first importance the jury should have had in mind. True it is, that many of them were touched upon in Mr. Maxwell’s eloquent address for the defence; but the last words, and the weightiest words, must always come from the presiding judge. It is also true that before two appeal courts it was urged that these omissions constituted a ground for saying that the summing-up fell short of what was required, and that both courts rejected the contention. But that does not preclude the respectful comment that the jury, overlooking them, may have approached the evidence from the wrong standpoint. That they did, for some reason, approach it from the wrong standpoint seems established by their verdict.
PART IV.
⸻
FRESH FACTS.
There is, perhaps, more truth than poetry in the lines that, “of all the sad words of tongue or pen, the saddest are those, ‘it might have been.’” If everything which is known now had been known on the trial the result might have been different. And, as we can all be wiser after the event, it may even be conceded that, if different use had been made of things that were known, or were at least within the grasp of knowledge, another conclusion might have been arrived at by the jury. Facts not brought out on the trial were placed before the Court of Criminal Appeal, and when all legal remedies had been exhausted were put before the Cabinet. The one tribunal declined, on legal principles (which are not here criticised), to act upon them; the other, in the exercise of its discretion, declined to give weight to them. None the less, they may be of interest to the public, and they may be here appropriately recalled to the public mind with some observations which were not before either court or Cabinet.