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.”)
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.