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.

HALLIWELL’S STRANGE STORY.

Reference has been made more than once to an extraordinary story told by a young man named Percy Halliwell, and as it has gone unchallenged, in circumstances which seemed to call for challenge if it were untrue, it may be given first place in the recital of the fresh facts. Detective Piggott was strong throughout the case in his assertion that Ivy Matthews had never made any statement to the police as to what she could or would say. Literally that was, no doubt, true, but it remains to be seen whether, in view of what follows, it was not an assertion which, while literally true, was well calculated to create a totally false impression. When representations were being made to the Government with a view of securing a reprieve of Ross, pending an appeal to the Privy Council, a statutory declaration by Halliwell was (inter alia) laid before the Attorney-General. This declaration, in addition to being laid before the Government, has been published in the press, and it has never been contradicted. In it Halliwell said that he was in the saloon during the Friday afternoon; that at 6 o’clock he was in the cubicle with the two Rosses and another man named Evans (who, in the meantime, had left the country), and that they drank a bottle of beer in it; that they all left together, and that it would have been impossible for the little girl to have been in the saloon without him seeing her. His evidence about the bottle of beer is all the more valuable because neither Stanley nor Colin Ross were asked anything about it on the trial, and, consequently, said nothing of it.

Halliwell’s declaration then goes on to say that on Monday, January 9, Ivy Matthews called at his house in Gore Street, Fitzroy, and told him that she had told the detectives that he had made a key for Ross. Halliwell said: “That is untrue.” It is important to remember that, at this time, the problem of how Ross, if he were the murderer, got back to the Arcade, was troubling the detectives, and Matthews appears to have come forward with a suggestion, for she knew that Halliwell was a locksmith. Matthews then said: “I want you to tell the detectives you made a key,” and she said that she also wanted him to tell the detectives that he was in the saloon on the Saturday, and asked Ross if he knew anything of the murder, and that Ross replied: “I have never been a ‘shelf’”—a “shelf” being, in criminal language, an informer. Matthews then said to him: “I’ve got a friend down at the corner in a motor, who is very much interested in this case, and I want you to tell him what I have said to you.” He accompanied her to the corner of Westgarth Street, where he found Detective Piggott in a car. Piggott directed him to sit in the front seat with the driver, and Matthews got up beside Piggott on the back seat. Piggott after a time said to him: “What about those keys?” and he replied that he knew nothing about them. Piggott said: “I want you to come to the Detective Office with me,” but Matthews said: “I want to see him this afternoon.” Piggott and Matthews had a conversation, and then Matthews said to Halliwell: “I want you to meet me at the corner of the Queen’s Mansions at 3 o’clock this afternoon,” and when Halliwell said he did not know where they were, she explained that they were at the corner of Rathdown and Victoria streets. He then got out of the car, and later he met Matthews at the time and place appointed. She took him to her house, supplied him with some drink, and then said: “I don’t want you to slip in anything I told you this morning; why did you tell Piggott you never made the keys?” Halliwell said: “I was only telling the truth when I said it.” She then sent him to the Detective Office, where he was questioned by Piggott and Brophy. When he said he was at the saloon on the Friday Piggott said: “No, it was on the Thursday,” and told him he was also there on the Saturday, and that the conversation, as indicated above, took place between him and Ross. Halliwell signed a statement and left. There is little doubt that statement contains the assertion that Halliwell was at the saloon on the Thursday.

The simple fact that Halliwell was in the saloon on the Friday, and could not have failed to see the murdered girl had she been there, was put before the Court of Criminal Appeal on affidavit. In reply, Detective Brophy filed an affidavit that Halliwell, before the trial, called at the Detective Office and informed Detective Piggott and himself that Stanley and Ronald Ross wanted him to swear that he was in the saloon with Colin Ross when they closed the place on the night of Friday, December 30. Brophy said to him: “Were you there?” and Halliwell replied: “No, but they wanted me to say so, and I am not going to commit perjury.” Nothing was said in the affidavit as to whether or not he gave a signed statement to the police, but if he did it is not clear why he should have been got to sign a statement that he was in the saloon on the Thursday (which could have been of no affirmative use to the police), unless he had said something about being there on the Friday. The fact remains that he was never called as a witness by the Crown, which proves that he was not prepared to assist the Crown case. He was not called for the defence for two reasons—firstly, because the statement he had signed effectually prevented him being called; and, secondly, because, when seen at the court, he told Ross’s solicitor that “what he had to say he would say in the box.” When it was too late, Halliwell was willing to make amends, and was firm in his assertion that he was in the saloon on the Friday afternoon, as stated above.

The important part of Halliwell’s declaration, however, is not his backing and filling as to whether or not he was in the saloon on the Friday, but whether, on January 9, Ivy Matthews was taking an active part, in co-operation with the detectives, in getting evidence against Ross. This was not mentioned in Halliwell’s declaration as laid before the court, but was in the declaration put before the Cabinet. If she was not, then Halliwell should have been prosecuted for perjury; if she was, then Piggott’s evidence may remain literally true, that Matthews never gave a statement to the police; but its effect was to convey a wrong impression as to the part which Matthews took in making a case against Ross. It will be noted that there is a curious resemblance between the account which Maddox gives of the conversation she had with Ross on Thursday, Jan. 5, and the conversation which Halliwell swears he was asked to say took place on Saturday, December 31, between him and Ross. In neither case was there a direct admission, but in each there was the suggestion that Ross knew all about the tragedy if he would only speak.

There is another fact which shows that Ivy Matthews gave more information to the detectives than the evidence given in court would suggest. In her evidence at the inquest Matthews said that, when she was conversing with Stanley, she said: “Where is Colin?”—an unlikely thing, since she was not on speaking terms with Colin. Stanley said (according to her): “He is not well; he has gone home.” Immediately after, she said, she heard Colin laugh, and she said to Stanley: “I thought Colin was not in?” Stanley said (according to her): “He must have come in by the other door.” In his supplementary statement, made on January 5, which was taken down in answer to questions, Colin Ross said: “I was home all day Thursday—I was not well. I did not leave the shop on Friday and say that I was ill. I was not away from the saloon on the afternoon of Friday. I can give no reason why my brother should say I was ill.” From this it is clear that on or prior to January 5 Ivy Matthews had told the detectives, whatever else she told them, that Stanley had said that Colin was away ill on the Friday.

MADDOX IN THE SALOON.

Another very important thing is now known which was not known on the trial. It concerns Olive Maddox’s visit to the saloon on the afternoon of Friday, December 30, when she is supposed to have seen Alma Tirtschke in the beaded room with a glass before her. (At this time, according to the Harding confession, the little girl was asleep in the cubicle.) Maddox, it will be remembered, said that, when she went into the saloon on that afternoon, at five minutes past 5, there were two girls whom she knew in the parlour, and one whom she did not know. She left, she said, at a quarter past 5, and returned to the saloon at five minutes to 6, but did not see either Colin or the little girl on that visit. The girl whom Maddox did not know came forward voluntarily after Ross had been condemned. She went out on the Saturday night of his conviction to Ross’s house at Maidstone and told what she knew. She was brought to Ross’s solicitor on the Monday, and made a statement as to what took place in the saloon on the fatal Friday afternoon. Her name need not now be mentioned. Suffice it to say she is a respectable girl, a tailoress by occupation, who has never been out of employment a day during the three years she has been in Melbourne. She has no relatives in Melbourne, and she used occasionally to go to the wine shop because it was in a quiet spot, and as she was on holidays at the time she remained on this occasion for over an hour, arriving before 5 and stopping until after 6. She was there when Maddox came in at about 5 o’clock, and she is positive that Alma Tirtschke was not in the saloon at the time. Maddox was under the influence of drink, and was talking excitedly to her two friends. The tailoress sat listening to her, but taking no part in the conversation, and, indeed, refusing to be drawn into it.

Maddox’s story that she left soon after coming in, and returned shortly before 6, is not true, the tailoress says—her stay was unbroken. This girl was cross-examined by Ross’s advisers before she made her declaration, and she remained unshaken in her story. If Maddox’s evidence is fabricated, her reason for saying that she left the place for three-quarters of an hour is obvious. It saves her having to explain how the murdered girl got out of the room and where she went to. This evidence of the tailoress was rejected by the Full Court on the ground that it was not shown that it could not have been procured on the trial. It was dismissed by the Attorney-General as evidence that “would not, and ought not,” to have affected the jury. It is hard to follow this observation, since if the declaration were true it proved that the main part of the case against Ross was false.

OTHER NEW WITNESSES.

There were other persons about the saloon on the Friday afternoon who are equally confident that the little girl was not there. When interrogated by the detectives on the 5th, Ross was asked who was in his wine bar when he came there on December 30, and he mentioned the name of a man named Allen, and a woman whom he did not know, but who, he said, was ordered out of the saloon by Detective Lee. Allen was one of those whom the defence was anxious to call as a new witness. Every effort to locate him before the trial failed. After the trial he was found. He says that he went into the saloon first about a quarter to 2, and saw there a man named Edwards and two other men. He remained for some time, then left, and returned again about 5 o’clock, remaining until 6. He spoke frequently to Colin Ross, heard him talking to Gladys Wain in the cubicle, but saw nothing of any girl answering the description of Alma Tirtschke. As many as fifteen and twenty people, he says, were in the bar at the one time during his stay. One of the men he saw was Thomas William Jordon. Jordon says that he came in about a quarter past 3, and remained until 4 o’clock. He, too, saw Victor McLoughlin, Allen, and Edwards. He talked with Ross frequently, saw him talking to others, and is confident that there was no little girl in the saloon during the time he was there. On January 5, the day after Ross was first interrogated at the Detective Office, he went to the Detective Office and told Piggott and Brophy what he knew. This was not denied in Detective Brophy’s affidavit. When Piggott was in the witness box he was asked as to this interview, but the question was disallowed, and Jordon was not called as a witness for the defence. Herbert Victor Edwards and Victor McLoughlin were both prepared to bear out this evidence. These four young men, though acquainted, were not of the one party. They came at different times. Some were there for an unbroken period, and some left and returned, but between them they covered the whole afternoon. They all knew Ivy Matthews, and none of them saw her, or saw Ross leave the saloon, as Matthews said he did. Two of them sat on the form, with their backs to the flimsy cubicle for some time, and they are confident that, even if the little girl had been asleep in that room, they would have heard her breathing or moving.

The line of the Crown case indicated that the detective’s view was that those witnesses were talking of the Thursday, and not the Friday. Detective Piggott, in perfect honesty, no doubt, tried to establish that fact early in the investigations. On the day that Ross was arrested he said to him (inter alia), according to his evidence: “You told me (on January 5) that Detectives Saker and Lee had put a woman out of your bar on the Friday.” Ross replied: “So they did.” Brophy, Lee, and Saker were present, and Piggott said to Lee: “Did you put a woman out of the bar on Friday?” Lee said: “No,” and Piggott said: “How do you know?” Lee replied: “Because Saker was with me, and Saker was on leave on the Friday.” Piggott then said to Ross: “Do you recognise those as the two men who put the woman out?” and he said: “Yes.” Piggott said: “But Lee says that Saker was on leave on the Friday,” and Ross replied: “Well, I must have been making a mistake; it must have been the Thursday.”

Now, it must be borne in mind that this was a conversation recalling the incidents of a fortnight previously. Piggott was not necessarily verbally accurate, and Ross, being under arrest, may have allowed himself to be “led” into his answers. The first thing to notice is that Piggott was wrong when he said: “You told me that Detectives Saker and Lee had put a woman out.” What Ross said, according to Piggott’s own account of what took place on the 5th, was that “Detective Lee” ordered her out. Saker’s name was not mentioned. But if Ross had been a guilty man, his answers would have been all ready prepared, and his candid admission, “I must have been making a mistake; it must have been the Thursday,” points to his candour rather than to his cunning.

There was no opportunity of cross-examining either Lee or Saker as to the date on which they were there, for neither was called as a witness, but there is every reason to believe that the mistake was made by them, and not by Ross. One of the four men mentioned above, who saw the incident, was questioned later on as to the possibility of a mistake. He had come from the wharf, where he had been on board a ship sailing that day, and had come thence to the saloon, and he maintains (and he maintains it in circumstances which can leave no room to impugn his honesty) that there is not the slightest doubt as to the day that he was at the saloon. One of the others had come from his factory at Fitzroy, after it had closed for the week, and though he did not see the incident, he saw the other men, and he is equally confident that it was the Friday, and not the Thursday.

THE CROWN’S NEW EVIDENCE.

When the agitation was on foot for Ross’s reprieve the Attorney-General was reported to have said that he was in possession of evidence which would convict Ross in five minutes. That statement was officially denied, but it was always maintained that the Crown were, after the trial, put in possession of facts which were most damaging against Ross. All that the present writer can say as to that is this, that he was made acquainted with the facts in the possession of the Government, and that those facts were not such as would have the slightest weight with him in confirming the guilt of Ross.

It has further been publicly said that Ross wrote to Ivy Matthews a letter which incriminated him, and that Mrs. Ross called on her and begged her not to use the letter. Matthews is said to have given the promise not to use it, and in consequence of the visit to have torn it up. This has appeared in print, but whether Matthews herself ever said it the present writer does not profess to know. Matthews’s character was bitterly assailed, both at the inquest and on the trial, and she never even hinted at such a letter. That she should have destroyed it, if she received it, is incredible, and Mrs. Ross’s answer to the allegation that she ever waited on Matthews has already been given in her own words.

Harding, too, is said to have received from Ross, while Ross was awaiting execution, a letter which impliedly admitted his guilt, and he, too, is supposed to have torn it up. In the witness box Harding was attacked for what he is—the most oily and odious scoundrel that ever polluted a court of justice. If he had, or had ever received, a letter from Ross which would have done anything to rehabilitate his tattered reputation, he would have used it. But, in fact, there is in Melbourne one man at least whose lightest word would carry more weight than Harding’s most solemn oath, who knows that Ross did write a letter to Harding, knows its contents, and knows that, so far from it containing an implied admission of guilt, it contained exactly the opposite.