WHY THE JURY MISJUDGED.
Not often, indeed, do juries err on the side of convicting an innocent man. But the circumstances of this case were peculiar. Not merely was the ravishing of the child and the strangling of her a crime of a peculiarly detestable nature, but the stripping of the body, and the placing of it on the cold stones of a squalid alley, though it really added nothing to the horror of her death, was an incident well calculated to excite the deepest human sympathy. In addition, it was a crime of which none but a degenerate would be guilty, and it is an extremely unfortunate thing that at the inquest the Coroner allowed, under the guise of evidence, statements to be made by witnesses which would tend to show that Ross was such a degenerate. Those statements were not allowed to be made on the trial for the simple reason that they violated the fundamental rules of evidence. The Coroner allowed them in, holding that he was not bound by the rules of evidence, and apparently labouring under the impression that the laws of evidence are arbitrary rules, tending at times to obscure the truth, instead of being, as they are, rules evolved from the experience of the ages as being best calculated to bring out the truth. There was probably no truth in the statements made, for the plain fact is that Ross had never been charged with a sexual offence, and had never even been questioned about one. But such was the interest in the case that every line written about it was eagerly devoured, and not one member of the jury was likely to have forgotten what was said on that head at the inquest—false though it all may have been.
Again, the little girl had been seen near Ross’s wine shop in the afternoon. Her dead body was found about 115 yards from it. The police had been 12 days making enquiries about the case before Ross was arrested. They had followed clues, and abandoned them when they led nowhere; they had suspected individuals and questioned them, only to reach a dead-end; they had formed theories, and dropped them because they could not get the facts to fit them. But the public, from which a jury is drawn, knew nothing of all this. Indeed, Detective Piggott said, in his cross-examination: “We had the case well in hand on the 31st.” This may be dismissed as a little bit of puff. It excited the smiles of Piggott’s brothers in the force, who knew the dead-end the detectives were at after the first week. If it were strictly accurate, it would show that Piggott’s conduct of the investigations was disfigured by a colossal blunder, for the detectives, although they were in Ross’s saloon on the first day, did not even go into the little room off the bar from which came the incriminating blanket, though they knew that the whole place was about to be abandoned and dismantled. Once Ross was put upon his trial nothing was, or indeed could be, said which did not appear to point to his guilt. The result was that the searchlight was thrown directly on to him. Other suspected people were in the shadows. Everything, therefore, appeared, superficially at least, to point to his guilt. The crime called for vengeance, and in all these circumstances it is not wonderful that the jurors were unable to divest themselves of the preconceptions with which they had gone into the jury-box.
Never in the history of serious crimes in Victoria, or, indeed, in the British Empire, it may be safely said, has a man been convicted on such a jumbled mass of contradictions as served to convict Ross. The only explanation of it is that, in view of the nature of the crime, the jury quite unconsciously formed opinions before they went into the box, and, with their judgments clouded by their natural indignation, they were unable to view the matter dispassionately.
How strong public feeling was, how the judgments of even level-headed men and women were clouded, how completely the public was convinced of the guilt of Ross before ever he was put upon his trial, is shown by the fact that the counsel for the defence were criticised, in public and in private, for accepting briefs in his defence. People holding those views were apparently unable to see where they led. There is no logical stopping-place between such views and lynch law. If a man is to be adjudged guilty on what appears, ex parte, in the press, it is as logical to blame a judge for trying him as a counsel for defending him. He is guilty, and why go through the hollow form of trying him? Why not settle the matter at once in the easy manner of the less civilised of the American states.
But the position of the bar in these matters has been well settled. The same view was presented by Lord Chief Justice Reading in 1916 as by Erskine in 1792. When Erskine took a brief for the defence of Tom Paine 130 years ago, and insisted on holding it in spite of the protests of the courtiers, his obstinacy, says Lord Chief Justice Campbell, in his “Lives of the Chancellors,” was much condemned “by many well-meaning people, ignorant of professional etiquette, and of what is required by a due regard for the proper administration of criminal justice.” But Erskine appeared, and on the trial, referring to the storm which his conduct had provoked, he said:—
“Little, indeed, did they know me who thought that such calumnies would influence my conduct. I will for ever, at all hazards, assert the dignity, independence and integrity of the English bar, without which impartial justice, the most valuable part of the British Constitution, can have no existence. From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in the court where he daily sits to practice, from that moment the liberties of England are at an end. If the advocate refuses to defend from what he may think of the charge or of the defence, he assumes the character of the judge; nay, he assumes it before the hour of judgment; and, in proportion to his rank and reputation, puts the heavy influence of, perhaps, a mistaken opinion into the scale against the accused, in whose favor the benevolent principle of English law makes all presumptions, and which commands the very judge to be his counsel.”
When Sir Roger Casement was tried for treason in 1916, the same question arose, as it had arisen many times in the interval. Lord Chief Justice Reading, addressing the jury, then said:—
“There are some persons who, perhaps a little thoughtlessly, are inclined to rebel against the notion that a member of the English bar, or members of it, should be found to defend a prisoner on a charge of treason against the British State. I need not tell you, I am sure, gentlemen, that if any person has those thoughts in his mind, he has but a poor conception of the high obligation and responsibility of the bar of England. It is the proud privilege of the bar of England that it is ready to come into court and to defend a person accused, however grave the charge may be. In this case, we are indebted to counsel for the defence for the assistance they have given us in the trial, and I have no doubt you must feel equally indebted. It is of great benefit in the trial of a case, more particularly of this importance, that you should feel, as we feel, that everything possible that could be urged on behalf of the defence has been said, and particularly by one who has conducted the defence in accordance with the highest traditions of the English bar.”
With the lapse of a little time the public may be able to look more judicially at the case. Let us, therefore, look briefly at the facts.
Though the case took the full legal week, and encroached on the Saturday, the facts relied upon by the Crown to support its case may be put in a comparatively short compass.
PART II.
⸻
THE CROWN CASE.
The girl, who, so far as is known to the public, was a modest, obedient, intelligent, quiet child, between 12 and 13 years of age, left her aunt’s home at Jolimont between half-past 12 and a quarter to 1, to go to Bennet and Woolcock’s butcher’s shop in Swanston St., Melbourne, where her uncle acted as secretary. She wore a navy blue box-pleated overall, a white blouse with blue spots, and a Panama hat with a conspicuous badge of a high school on it. At about a quarter past 1 she arrived at the shop, went upstairs to her uncle’s room, returned shortly afterwards without seeing her uncle, and left the shop about a quarter of an hour after her arrival at it, carrying a parcel of meat some eight or nine pounds in weight. She was next seen in Little Collins Street, and she evidently went up Little Collins Street to Russell Street, and down Russell Street into Bourke Street, because “well after a quarter past 2” she was noticed by Mrs. and Miss Edmonds about 50 yards from the entrance to the Eastern Arcade. She went into the Arcade in front of the ladies, and when she was about half-way through they turned up the stairs to the right, and did not see her again. Colin Ross at this time, according to Mrs. Edmonds, was standing in front of his door. In cross-examination, Mrs. Edmonds fixed the time at which she last saw the girl at a quarter to 3, because, she said, “I looked at the clock on the balcony.” Between half-past 2 and 3 o’clock Mr. and Mrs. Stanley Young saw the girl come out of the Arcade, walk across Little Collins Street, and stand at what they described as the Adam and Eve corner.
This means that she was standing near a lodging-house kept by a witness named Ellis, in the delicensed premises which was formerly the Adam and Eve Hotel. It is on the corner of Little Collins Street and Alfred Place, Alfred Place being a rather pretentious right-of-way running through to Collins Street. Had she desired to go to her destination, which was the Masonic Chambers at the east end of Collins Street, she might have gone either along Alfred Place to Collins Street, or up Little Collins Street to Exhibition Street, and thence to Collins Street. According to Mrs. Young, the girl looked frightened, and she was seen to drop and pick up her parcel. The Youngs walked on down to Russell Street, which would take her two or three minutes, they said, and when they looked back the girl had disappeared. She might have still been standing in Alfred Place, or she could have returned to the Arcade, but they do not think she would have had time to have got to Exhibition Street. That is the last seen of the girl by any witness whose evidence is admitted by both sides to be credible. It should be noted that she was then within an easy 10 minutes’ walk of Bennet and Woolcock’s, and she had taken an hour and a quarter to cover the distance.