PART I.

INTRODUCTORY.

On the early morning of the last day of the year 1921 the dead body of a little girl of 12, named Alma Tirtschke, was found by a bottle-gatherer in an L-shaped right-of-way off Little Collins Street. She had been violated and strangled, and her nude body had been placed in Gun Alley.

On the morning of Saturday, February 25th, 1922, Colin Campbell Ross, a young man of 28, was found guilty of her murder, and on the morning of April 24th he was executed in the Melbourne Gaol. Face to face with his Maker, as he himself put it, he asserted his innocence on the scaffold in terms of such peculiar solemnity as to intensify the feeling, already widely prevalent, that an innocent man had been done to death.

In the eyes of officialdom the mystery had been cleared up. Detectives walk the streets with the consciousness that they are the men who cleared it up and brought the murderer to the gallows. The list of persons who shared in the reward offered by the Government, with the amounts allotted to each, has been published.[1] It does nothing to allay the sense of public uneasiness to reflect that by far the greater part of the reward has gone to men and women whose society would be shunned by every decent person. That in itself should be sufficient to raise doubt. But there are graver reasons for thinking that justice may have miscarried in this extraordinary case. The purpose of this short review is to show how strong are the grounds for the prevalent feeling of uneasiness, and how much reason there is for believing that the life of Colin Campbell Ross was, as he himself asserted as he went to the cells with the death sentence ringing in his ears, “Sworn away by desperate people.”

[1] The Government reward of £1000 was distributed as follows:—Ivy Matthews, £350; Sydney John Harding, £200; Olive Maddox, £170; George Arthur Ellis, £50; Joseph Dunstan, £50; David Alberts, £30; Madame Ghurka, £25; Maisie Russell, £25; Blanche Edmonds, £20; Muriel Edmonds, £20; Violet Sullivan, £20; Michaluscki Nicoli, £20; Francisco Anselmi, £20. A reward of £250 offered by the “Herald” was distributed pro rata. It was never disclosed, either on the trial or in the press, what the services rendered by Madame Ghurka or Maisie Russell were.

Why, it may be asked, rake over dying embers and fan again into flame a fire that is dying down? Is it not better that the Ross case should sink, with Ross, into oblivion? Even if he were now proved innocent, it may be said, he cannot be recalled to life, and no good purpose can be served by reviving the case. But in the first place, there are hundreds of people in whom the memory of the case is still quite fresh. With them it is not a question of reviving, but of discussing. And even though Ross be dead, death is not the end of all things. In Ross’s case it is a small matter compared to the dishonor associated with it. Ross has left behind him a mother and brothers who bear his name, and for a generation to come the name of a Ross will never be mentioned without recalling that particular bearer of it who died an ignominious death for a revolting murder. If all the truth has not come out, the community owes it to those of his blood left behind him that it shall be brought out. It is largely at the solicitation of those bearers of the name that this review is being written. But the interests of abstract justice also require something. Ross was condemned on evidence of a kind which puts the case in a class by itself. It has no parallel in the annals of British criminal jurisprudence. A perusal of this review, whether or not it satisfies the reader of the innocence of Ross, will, at least, satisfy him of the need for a close scrutiny of evidence of this kind; and future juries will be reminded of the necessity of never being stampeded by newspaper or popular clamor into preconceived ideas of the guilt of any man, and of ever being on their guard against perjury and conspiracy, even though they are not satisfied that either were present in this case.

THE APPELLATE COURTS.

At the outset it is desirable to correct a wrong impression which, very widely felt, has tended to allay the feeling of uneasiness in the public mind. Ross, as is well known, appealed to the Full Court of Victoria, which dismissed the appeal. Thence he carried his case to the High Court of Australia, which refused, one learned Judge dissenting, to interfere with the decision of the Supreme Court. From this fact it has been assumed that two Appellate Courts, consisting of three Judges and five Judges respectively, have endorsed the verdict of the jury. Nothing could be further from the facts. Substantially what the Appellate Courts were asked to say was (1) that there was no evidence on which a jury could rightly convict Ross; (2) that the Judge had failed to direct the jury properly on various points enumerated. To take the second point first, the Courts both declined to say that there was any non-direction, though Mr. Justice Isaacs, in the High Court, held that on one point the Judge had failed to direct the jury properly.

As to the first point, the position is this: An Appellate Court will not interfere with the finding of a jury if there is any evidence on which a jury could find as it did. It will not weigh the evidence to see on which side the balance lies. That is the function of the jury, and the Court will not usurp that function.

That position was made quite clear in the judgments of both Courts. In the Supreme Courts the Chief Justice of Victoria said: “There was abundance of evidence, if the jury believed it, as the jury apparently did believe it, to support their finding, and we need add nothing more upon that point.” In the High Court, the Chief Justice of Australia, speaking for the majority of their Honours, dealt with the same point thus: “As we have before indicated, there was, in our opinion, abundant evidence, if the jury believed it, to sustain their verdict. But we desire to add that, if there be evidence on which reasonable men could find a verdict of guilty, the determination of the guilt or innocence of the prisoner is a matter for the jury, and for them alone. And with their decision, based on such evidence, no Court or Judge has any right or power to interfere. It is of the highest importance that the grave responsibility which rests on jurors in this respect should be thoroughly understood and always maintained.” Even Mr. Justice Isaacs, who dissented from the majority on a point not material to this review, was quite at one with his learned brothers on this matter. “The ground upon which,” said his Honour, “I agree to a rejection of all the other grounds brought forward by Mr. Brennan is that, however powerful the considerations he advanced, however tainted and discrepant and improbable any of the facts relied on by the Crown might be, that was all matter for the jury alone, and I have no right to express or to form any opinion about them in favour of the prisoner.”

No Court and no Judge has, therefore, ever pronounced judgment on the correctness or incorrectness of the jury’s verdict. All that they have said is that there was some evidence on which the jury could find as it did, and that that being so, the responsibility for the verdict must rest with the tribunal which the law has set up to pronounce upon the evidence. The purpose of this review of the case is to show, not that the Appellate Courts were wrong, but that there are strong grounds for believing that the jury was wrong. And that brings us naturally to a second preliminary point.

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.