by Pip Smith
Winter mutated into spring. Sunlight pushed against the borders of day and night and Cohen found it harder to sleep. A trial meant life-and-death stakes, a bigger courtroom, a jury of twelve men whose prejudices and opinions actually mattered. A trial meant a barrister would do all the talking and word on Phillip Street was that William Coyle, KC—also known as ‘The Bulldog’—was booked to represent the Crown. How on earth could Sydney’s best barrister be matched? What Cohen needed was a maverick, or some upstart graduate full of bravado and bite, immediately ready to take on the most difficult case of his career. But Cohen would not be the man to decide who should represent his client at trial. No, such decisions were to be made by the Crown, and the Crown chose Archibald McDonell.
Archie McDonell was a man of soft edges. He was not plump, but his gentle eyes, generous moustache and heaviness of step gave the impression he was an eater. Far from the bright-eyed pup Cohen had hoped for, McDonell was an old man, but without the experience or wisdom that was, sometimes, the saving grace of old men. He was new to the legal profession and painfully reclusive. Rumour had it he would rather spend an evening in his bedroom at his brother’s house (he did not even own his own house) reading through his collection of books on sexual perversion than share a scotch with a colleague at a Phillip Street bar. Anyone would have thought that he—a bachelor at fifty-two—was a sexual pervert himself, but being too shy to meet his kind in the Hyde Park toilets, had to resort to his library for like-minded company. Perhaps he would bring a certain specialised knowledge to the case, Cohen hoped, because by then he could hope for little else.
THE MIDDLE-CLASS WOMEN
We rose early, when the light filtering through the London plane trees was a pale yellow and green. We took the tram into town, or our husbands drove us in on their way to work, or we travelled into town on the train. It was a novelty, seeing the men on their way to work, bleary-eyed in their overcoats and hats. Some of them read the paper. Some of them read cloth-bound books. Some looked out the windows and flicked their eyes past telegraph poles and the red-tiled roofs of houses. How we would have liked to know what they were thinking. Did some of them have mistresses? Secret harems they visited in the privacy of their imaginations? We wondered if they knew we were there, watching.
We arrived at the court when the air was still fresh and the sandstone steps had not yet been warmed by the sun. We caught sheepish glances from each other. Some of us had never been to a murder trial before, and felt guilty for taking such an interest. Our husbands thought we were morbid—they could not understand it—but we weren’t the only ones there. Young men gathered outside the court, too, with bloodlust in their eyes. We all had our own reasons for attending the trial, and few of them were known to us. For some, the man-woman was a thing of wonder. We could not imagine running away to sea, we could not imagine passing as a man through the streets of Sydney or learning what it was men talked about when we were not around. She had done all these things, and more. Some resented her. We might have wanted to be sailors, too, but were not precocious enough to entertain the fantasy. And what of the daughter? The dead wife? The man-woman’s freedom came at great cost to other people. Let that be a lesson.
The lawyers snuck up on us like a stealthy circus in the night. They wore anaemic clown wigs and slapstick gowns that smacked their ankles and rose up in gusts of wind as they ascended the court steps. When the large metal doors were pushed open, we made our way into the gallery, making new friends as we did. And where did you travel from today? Ashfield. Oh, do you know Mrs So-and-so? Yes, she is on the school committee. Et cetera. If there was a lull in conversation, we marvelled at the building, at the grandness of it. We watched the dock for signs of a small man in a suit, but he never turned up. Instead, at ten o’clock, a woman. She was frail, in black buttoned boots with brown cloth tops, a white linen dress and a black woollen coat. Her shaking hand was hiding under the lapel of her dress like a mouse under a leaf. She glanced at our faces, as if they were the faces of cats, with needles for teeth and sharp, extracted claws.
The barrister for the Crown—the man they called The Bulldog—stood and told us in a loud clear voice that he found it hard to refrain from referring to the accused as a ‘he’, but when he did we were to understand he meant the accused, who posed as a man, and definitely stated that she was a man, and married two different women as a man. So many lies were told, he said. He told the jury they must closely examine all her statements and ask the reason for them. They must ask themselves: why all these lies and subterfuges? But they must not convict on them. He may as well have told them not to think of a white elephant. Don’t, he might have said. No elephants. Tusk-tusk.
The Bulldog paused. He looked at us. Was he turning red? He looked like a schoolboy who had seen a woman in a bathing suit for the first time in his life. ‘There is another matter,’ he half whispered to the judge, ‘although it is an unpleasant subject to speak of in the presence of women.’
‘We must not hesitate for one moment on account of the women,’ the judge said. He was wearing a red gown and a white wig. He looked like Father Christmas but less likely to fly through the clouds on a sleigh. ‘If women choose to come to a criminal court,’ he said, ‘they cannot be considered.’
We looked at each other and raised our brows. It is funny what men think we shouldn’t know.
The Bulldog changed his voice so that it was as cool and loud and strong as a mountain stream. ‘The accused has been through the form of marriage with two women,’ he said, ‘and later I will suggest something like a motive for getting rid of Mrs Birkett. The accused was so practised in deceit as to deceive these two women into the belief that she was a man. It was only in the end, when that deceit was discovered, and there were quarrels, that this person sought an opportunity to get rid of the person who would possibly broadcast her deceit.’
We listened to witnesses say what we had already read in the paper. Our eyes wandered. We scrutinised the man-woman’s face to see if she looked guilty, but she only looked calm. How about now? we thought, looking quickly to try to catch her out. Or now? No, she had turned her face into an iron wall, she was not going to give any more of herself away.
We tried to piece the facts together. Over the 1917 Eight-Hour Day weekend, Harry Crawford had been darting about like a skittish fish. The Bulldog was suggesting Crawford went to the riverbank three times: to kill his wife on the Friday, to clean away the traces he left behind on the Sunday, and to dispose of the body on the Monday. Or maybe the accused had stayed by the body from Saturday night through to Monday afternoon, was that what he was saying?
When the court adjourned for lunch we cleared the matter up over sandwiches and tea. The gun, we said. Remember, they found a gun in her portmanteau. Alright, so the man-woman shot her ‘wife’ twice through the heart, and burned her chest, and shoved her fist into the blistering wound to pull out the bullets. We shrieked in delight. Oh, how gruesome! One of us choked on a crust and had to be thumped on the back. No, we said, she made the wife drunk with whisky, or perhaps she poisoned the whisky and then shot her through the heart, and when she fell she hit her head on a rock, and then the man-woman doused her in kerosene and burned her. But there is no evidence of bullets, we said (our tea had gone cold, we pushed it aside), there is no evidence of poison, no evidence of violence. So? Are the only events that happen the events that leave a trace?
After lunch we saw a skull. The real skull of the burned woman. A doctor pulled it out of a box as if he were in Hamlet and this was his only scene. We looked to see if the man-woman flinched or winced or blinked out of rhythm. She didn’t. This was probably because she had seen it before. It had a large crack up the back. So there, The Bulldog seemed to be saying. There is your evidence of violence.
The man-woman’s barrister, the one who looked more like a walrus than a bulldog, started asking the doctor about men and women, about how some men were more like women, and some women were more like men. Sex inverts they
called them. He asked the doctor about sexual inversion, and the doctor said yes, a lot of literature had come up, but the red judge didn’t know what they were talking about. ‘Are you setting up insanity or not?’ he said to The Walrus. ‘Oh, certainly not,’ The Walrus said. Then he carried on his conversation with the doctor, asking if it was not a fact that when the hands were extended normally in front of the body, palms upwards, the elbows of a woman were closer together than those of a man. ‘That might have some bearing on the case if you were setting up insanity, but as you say you are not, I cannot see what it is leading to,’ the red judge said.
‘I want to show,’ said The Walrus, ‘that the accused had the masculine angle of the arms.’
We looked at our elbows, to see what shapes they made.
As our lunches digested, the afternoon dragged. One of the jurymen yawned. A willie wagtail rested on the windowsill and sang. When a large female witness was asked if she knew the accused, she looked the man-woman straight in the eye and said, ‘I know the accused and she knows me.’ How many women did this man-woman know, we wondered, and not just know, but know? Had we missed out? Was she somehow more potent than the average man?
On the trains and trams that took us home to our husbands we talked. What happened to the girl? we asked. The daughter? She had been a hostile witness at the hearing, there was no way they would bring her back. But some of us missed her. She was beautiful and fierce and fragile. One of us said she had a cousin who had a friend who lived in Darlington, where the daughter lived with Arthur, her husband. Husband? Yes. And guess when they got married? When? The day before she gave evidence at the police court. No! Yes. And she gave evidence as Josephine Falleni, not Whitby, which would have been her proper name. Well. Maybe she thought she could lie under oath if she gave a different name. Poor girl. And my cousin’s friend, she says that the man-woman worked her passage from New Zealand on a steamer. She had to sleep with a lead pipe under her pillow, and one day she was in the ship’s bathroom when a sailor bashed down the door and had his way with her. So the girl is the product of a rape, then? And do you know something else? The man-woman once stabbed her daughter’s beau Arthur with a knife during a fight. No! Yes, possibly because he got the girl into trouble. Or perhaps the man-woman was jealous she didn’t have the girl to herself anymore. Or perhaps she did not want the same thing to happen to her daughter that had happened to her in the ship bathroom, who can say?
Once our travelling companions alighted, we had a few moments to ourselves. We had been swept away by the thrill of getting to the bottom of things, but at the bottom of things was a woman who was fierce and fragile and beautiful in her own way, too. We wondered what she was doing. Was she sitting in her cell, rocking back and forth, going over and over the Eight-Hour Day until she had completely forgotten where, or who, she was?
The next morning we heard the policeman, the main policeman. He was big, with a muscly neck and an excellent memory. He could remember when he and Watkins arrested the man-woman and brought her into the station to give a voluntary statement. He remembered when she volunteered to take off her clothes for the Government Medical Officer and then said, ‘This is a terrible thing for me and the worry of my life.’ He said they went to the man-woman’s house and the wife was there crying, and then they found, in a locked portmanteau, they found—
The Bulldog held a prosthetic phallus by a thin leather strap. He held it out from himself, with his face slightly turned, as if it was a rotting rodent he’d pulled from a drain. He walked towards the jury, to make sure they had seen it. They reeled back, ever so slightly. He turned to face us, and we craned our necks so that we could see past the fascinators and hats. It was large, but not too large. More intriguingly, it was soiled. It was made of rags and capped with rubber. We imagined that it smelled, but of course, from where we were sitting, we couldn’t smell a thing. We looked at the man-woman. Now? Will she cry now? She looked pale, perhaps. Drained of life, that’s all. Now The Bulldog was showing us a gun, but all we could see was that other thing, the ‘article’. It was like a gun, in a way. Hard and black and dangerous. We felt a tingle between the legs.
The Walrus stood. He said the accused was in a very nervous state, and would make a statement from the dock. What, we thought, after her phallus has been shown to all and sundry?
We watched her grip the railing hard. She was speaking, apparently, but no one could hear what she said. ‘Speak up,’ the red judge said. ‘Your Honour and gentlemen of the jury,’ she repeated. Her voice was thin, about to break. ‘I have been three months in Long Bay Gaol and am near a nervous breakdown. I would like to make a statement, but my constitution will not allow me. I do not know anything at all about this charge. I am perfectly innocent, and I do not know what the woman done. We never had any serious rows; only just a few words, but nothing to speak of. Therefore, I am absolutely innocent of this charge against me.’
She trailed off and there was a silence. We looked to The Walrus. Will he ask her any questions? Will he remind her of her lines? He looked as if he were drowning and praying for a wave to end it quick.
The Walrus called a manufacturer, a Mr David Horace Love. In 1917 he had managed the cornflour mills up the river from where the body was found. He had seen a madwoman about the area, whose appearance matched the description of the burned woman. What? we thought. Is he trying to say the burned woman was not Annie Birkett at all? Next it was The Bulldog’s turn to ask questions. No, Mr Love said, he could not swear to the woman again. Yes, Mr Love said, he knew that the madwoman had been located.
That was the case for the defence. The Bulldog had called twenty-seven witnesses. The Walrus had called one.
He will fix things, we thought. When he sums up, The Walrus will say it was an accident, that they had gone to the bush to make amends, drank more than they had intended and had a fight. She tried to leave, and he grabbed her by the wrist, and then she fell. She fell and hit her head on a rock, that’s what the defence will say. We were on the man-woman’s side now, because she was near a nervous breakdown and we felt guilty, just a little, for having wanted her to cry.
The Walrus stood. He cleared his throat. He said it was not only possible but probable that Mrs Birkett was still living and hiding her identity at the present time. His client was in no way at fault. We should look at the matter from this point of view: if a man commits a murder, he can live again, and in time become respectable; but if he commits a sexual crime, can he lift his head and ever assume respectability? And if a man would be so ostracised, what would happen to a woman when her mistake became public? He asked us these questions, and we weren’t sure if he was talking about the man-woman or the wife or who. Then he sat down.
The judge spoke for half an hour and sent the jury on their way. They were young men, and seemed pleased they had been given such an important job. Even the man who had yawned seemed more sprightly now that he was given a task.
The doors of the court were opened and we weren’t sure what to do with ourselves. We have sat here for this long, some of us thought, it would be a shame to miss the verdict now. Yes, but was she guilty of murder beyond reasonable doubt? That would surely take years to determine.
Some of us left. It will be in the paper in the morning, those that left thought. There is no chance we will miss what happened. And yet some of us felt more useful if we stayed, as if our presence might make a difference somehow, and so those of us with companions ate light meals in cafeterias on Oxford Street and imagined we were the jury, deliberating over the man-woman’s guilt.
After our meals, we returned to the waiting room, knitting, reading, watching the doors of the court. When they opened, we took our seats in the gallery, a little ashamed at being the last women there. We watched a juryman hand a slip of paper to a court official, who handed it to the red judge. As he read, he did not give any emotion away. Two young men pulled the black curtains off the wall behind the judge and held them up on either side of his face. From
the gallery, he looked like a black, mythical bird, lifting into the clouds.
Then he said it: she was guilty, and would hang from the neck.
The man-woman somehow managed to speak. ‘I am not guilty, Your Honour. I know nothing whatsoever of this charge. It is only through false evidence that I have been convicted.’
Some of us were glad she had got what she deserved.
Some of us were sick to our stomachs.
We could feel the skin beneath our collars. How tender it was, how soft. For a second, we thought we could feel the scratch of a rope being slipped around our necks.
1Evening News, Monday, 16 August 1920.
2Daily Telegraph, Tuesday, 17 August 1920.
3Evening News, Monday, 16 August 1920.
4Ibid.
5Ibid.
6Truth, Sunday, 22 August 1920.
7Evening News, Monday, 16 August 1920.
8Truth, Sunday, 22 August 1920.
9Daily Telegraph, Tuesday, 17 August 1920.
10Evening News, Monday, 16 August 1920.
11Sydney Morning Herald, Tuesday, 17 August 1920.
12Daily Telegraph, Tuesday, 17 August 1920.
13Truth, Sunday, 22 August 1920.
14Sydney Morning Herald, Tuesday, 17 August 1920.
15Evening News, Wednesday, 18 August 1920.
16Daily Telegraph, Thursday, 19 August 1920.
17Truth, Sunday, 22 August 1920.
18Sun, Wednesday, 18 August 1920.
19Daily Telegraph, Thursday, 19 August 1920.
20Evening News, Wednesday, 18 August 1920.
21Sun, Wednesday, 18 August 1920.
22Daily Telegraph, Thursday, 19 August 1920.
23Sydney Morning Herald, Thursday, 19 August 1920.
24Evening News, Wednesday, 18 August 1920.n
25Truth, Sunday, 22 August 1920.
26Daily Telegraph, Thursday, 19 August 1920.
