The Unfortunate Victim

by Greg Pyers

  Smyth shrugged.

  Williams was similarly disposed to the grievance. ‘Prison regulations. I cannot interfere in the matter.’

  Thompson began to speak, but was hushed by the judge, who by his weary tone manifestly had had enough.

  ‘I’ve considered the application, and heard the objections to it. The prisoner will be remanded until the next Circuit Court, in July, it being understood that he would then be discharged if the Crown was not ready to proceed with the trial.’

  That, it seemed, was the end of the matter. Not for Pearson Thompson.

  ‘Then might I ask upon what recognisances Your Honour would admit the prisoner to bail?’

  Williams replied without calculation, the bluntness of it surely intended to dissuade Thompson from protest.

  ‘Two hundred and fifty pounds himself, and two sureties of £250 each.’ So, Thompson calculated, that’s Rose and two others each to stump up twice a constable’s yearly pay. The impossibility of bail was thus made clear, and Thompson could do nothing but slump in his chair. But as if the impossible was not enough, Smyth put in the boot.

  ‘Your Honour, I ask that a week’s notice be given to the law officers of the Crown of the intended sureties before they are accepted.’

  ‘Certainly, Mr Smyth, and I might add that my promise to discharge the prisoner at the next sittings, if the Crown was not ready to go on with the trial, would not be binding if the prisoner were admitted to bail.’

  Smyth nodded his acceptance of the conditions. Thompson sighed, and capitulated. ‘I have not the slightest reason to believe that the prisoner will be able to find sureties.’

  Smyth knew as much, and made no remark. The court rose as Judge Williams made his exit and David Rose was escorted from the dock.

  20

  FRIDAY 10th JULY

  78 ELIZABETH STREET MELBOURNE

  SIX MONTHS HAD ELAPSED since Otto had met Tom Chuck. Despite their good intentions, no correspondence had passed between them. This was no surprise to Otto — eighty miles was bound to test an embryonic friendship — but it did weigh on his mind from time to time how he would readily put work ahead of attending to personal matters, such as writing to a friend. His plans for a future in private inquiry enthused and excited him, but at twenty-nine, there were other things to consider; namely, marriage, and having a family. As for Chuck, inattention to a promising acquaintance was a matter Otto intended to redress before too much longer. And then, as fate would have it, he was beaten to the punch by the man himself.

  Chuck’s letter arrived with the morning’s post, and Otto felt as excited as he had as a child with an unopened Christmas gift. He made himself a pot of tea, settled behind his newly arrived desk, and opened the envelope. Along with a brief letter, a newspaper cutting was enclosed. The handwriting was beautiful, on the best-quality paper. He put the cutting to one side and began to read:

  Dear Otto,

  I hope this letter finds you well.

  If by the unlikely possibility it had escaped your renowned hawk-eyed notice, herewith a letter to the editor from Pearson Thompson, barrister, in The Argus on July 3rd. I send it because it brought so sharply to mind our conversation in January. Alas, it would seem to me that far from allaying the fears we expressed at that time, Mr Thompson’s letter only confirms and deepens them. If David Rose is guilty, then well and good. The police seem so sure of it, but such is the apparent sparsity of evidence against him, and consequently so long has he been in custody without trial, is there not doubt enough to be concerned that the real assassin may still be free? But maybe I should not be so troubled by this, not at a time when my dear wife Adeline has been gravely ill after losing the child. If there is a silver lining to the cloud that has hung heavily over us these past months, it is that our young Henry has shown himself to be equal to the challenge. His support is more than a father could ever demand from a lad of his tender years. I’m truly blessed.

  I trust all is well with you and that your progress towards private practice proceeds apace.

  Yours,

  Tom

  Otto let the letter lie on his desk while he took a moment to gaze idly out over Elizabeth Street, so busy with Friday commerce. The poor fellow. His poor wife. What a man of compassion Tom Chuck really was, he thought, to wear his heart so openly upon his sleeve, and for a man he barely knew. Was this a virtue, Otto wondered? It was unusual, certainly, in his experience. He supposed he ought to feel honoured to be so trusted with such private revelation. He did feel honoured. He picked up the enclosed cutting. No, he hadn’t seen it before; the Rose case had receded somewhat in his priorities. He began to read, as usual, with pencil poised:

  Melbourne Argus,

  Friday 3rd July

  Sir,

  Now that the public press has at last given its opinion of the gross injustice that has been done the prisoner David Rose, charged with the murder of Margaret Stuart, by his lengthened imprisonment of nearly six months, and his having been remanded twice upon the most flimsy evidence — or rather no evidence at all — as counsel for that deeply injured man, I am induced to give the public some information on that subject, which I believe they are ignorant of.

  He was prior to his committal to Castlemaine Gaol confined for four weeks in the lock-up of this township (Daylesford), and subsequently brought before the judge at the next Castlemaine Assizes, in February last, and remanded at the instance of the Crown prosecutor. His confinement was then continued till the following Castlemaine Assizes, in April last, when, as his counsel, I made a special application to the judge (Williams) that he should either then be tried or be immediately discharged. My application was strenuously resisted by Crown prosecutor Smyth, who had no additional evidence to bring forward against the prisoner. Judge Williams refused then to discharge the prisoner, but made a peremptory order that he should be either tried at Castlemaine in July next, or be then discharged. Conceiving, as I did, that the conduct of the Crown prosecutor was utterly repugnant to the English law, and a cruel oppression against the prisoner, I did not hesitate to give public expression of my opinion that such was the case. Indeed, it is monstrous that the Crown prosecutor should thus be empowered to put any prisoner on his trial when he pleases, and to refuse to have him tried until the time when it is convenient for him to do so.

  It will thus appear that David Rose will have been imprisoned nearly seven months before he will be brought up before the judge for the third time, and then to be discharged, as no evidence has been, or can be, procured upon which the Crown prosecutor can file an information against him.

  Will the Government compensate David Rose for this cruel incarceration, and if so, to what amount? The English Parliament compensated Baxter to the extent of £15,000 for his illegal imprisonment; and the Legislative Assembly of this colony compensated Windsor (£1500) for the illegal sentence he underwent. These compensations for cruel wrongs on these individuals will form precedents for a proper remuneration to which David Rose will be entitled.

  Such an injustice could not have been committed in England against any prisoner, as the Grand Jury of that country would long ago have either found a true bill against David Rose, and put him on his trial, or ignored it, upon which he would have been entitled to his discharge.

  This being the case, let me ask why the criminal laws of this colony are not assimilated to those in England? The former were passed expressly to keep down the convict population of New South Wales; and are they to be perpetuated in this colony, thereby realising in regard to Victoria the never to-be-forgotten expression of Lord Redesdale, when Lord Chancellor of Ireland, that he found in that country ‘one law for the rich, and another for the poor’.

  Is it just that the Government should provide counsel and pay witnesses for the prosecutor, and leave the prisoner (generally without money and without friends) to defend himself against such an adversary, with his h
and allowed to any extent in the public purse?

  Trusting that these remarks may make some impression on the public mind in regard to the injustice done the prisoner David Rose.

  I am, Sir, your obedient servant,

  Pearson Thompson

  Counsel for David Rose.

  Castlemaine, June 28th.

  P.S. — The husband of the late Margaret Stuart wholly acquits the prisoner, and points to a different person as the murderer of his deceased wife. — P. T.

  Otto looked at the newsprint, now nigh unreadable with annotations. Good God in heaven, he thought, what was silly old Pearson hoping to achieve by such shrill public bleating? It was all very well to set out the facts of his client’s circumstances, but to aver that there would be and could be no evidence brought against him, and further, that the accused would not only be discharged but would also be entitled to mountains of compensation was such unsubstantiated pre-empting that it could not possibly prompt a mote of public sympathy. The only impression on the public mind that Pearson was likely to make was that he, as the detained man’s counsel, was not competent to contest the charge in a court of law, given that he considered the proper processes of the law ought to be subordinate to the opinion of the bereaved husband!

  The old man had done his client no good service with this bewailing of procedure, and if on seeing it in print he hadn’t been just a little embarrassed by his words, then heaven help David Rose. Still, Otto thought, Thompson had at least reminded him of the feebleness of the police case, which to their shame seemed no less feeble than it had been back in January when Rose had first been arrested. What were they doing up there in Daylesford? Surely, he thought, unless evidence was found, or a more likely suspect apprehended, the charge would have to be dropped. That would almost be a pity, for a trial might be just what was needed to bring police incompetence to public attention, at last and spectacularly. Now that would be something to relish!

  Otto folded the pages and returned them to the envelope. He was glad to have received Chuck’s letter, not as much for its content as for its having been sent; it was a thoughtful act, and composed at a time of great personal tribulation. He took a sheet of paper, and ink from his drawer, and penned his reply.

  My Dear Tom,

  Thank you for your letter, and Thompson’s lament, which I had not seen. But I must declare that I am quite distressed to learn of your loss. In a time of such personal trial, that you remain troubled by a concern that justice be done for a man unknown to you, speaks to me of a rare selflessness. You truly are a man of courage and conviction, and your beloved Adeline could not be in better, more attentive care. I send her my earnest wish that her recovery will not be long in coming.

  My own circumstances, while hardly comparable, will, for the next two or three weeks, take my attention from that sorry case. In a few days I shall be sailing for Auckland, there to explore opportunities for my new private-inquiry office. I know you also will be busy, but perhaps, if circumstances allow, you might keep me informed of the course of the trial? I would greatly look forward to hearing your observations upon my return.

  Yours,

  Otto.

  21

  WEDNESDAY 26th JULY, CASTLEMAINE COURT HOUSE

  THE TRIAL, THE QUEEN V DAVID ROSE, BEGINS …

  HIS HONOUR SIR REDMOND Barry sat wigged and gowned in his lofty chair, and waited with imperious forbearance for those below to be seated for the nine o’clock start. Tom Chuck was among them, third row back in a full public gallery. He’d been informed by the police that he might be called as a witness, just to attest to the photographs. But he had come the twenty-five miles anyway, for a reason of his own: simply, to know that a monster was not still at large, that the creator of the horror in the cottage was the man in the dock. He’d been watching David Rose closely, but saw no snarl, no angry gesture — just a stooped and impotent figure who’d shuffled to his place, where now he sat, blinking like a frightened child. He was as unshaven and as rudely garbed as Tom remembered him from January, but back then his face was coloured and full, not leached and drawn from having spent six-and-a-half months in the shadows and damp of a stone cell.

  The crime and the man charged with its commission never seemed more at odds with each other, and Tom needed to see that the processes of justice would reconcile the two. Adeline, now with health restored, and being the understanding wife that she was, had given her blessing for him to set aside these few days; she’d suffered his nightmares, seen the lack of joy in his work, and wanted her husband’s melancholy done with. And he was honoured that Otto Berliner should suggest he be his eyes and ears in court. So now Tom took out his pencil and notebook, ready to record his observations.

  To the left of the gallery sat a forbidding phalanx of policemen, Superintendent Nicolson the most notable among them in the uniform of his rank. To the right, the jury; save for their Sunday-best attire, they formed an unremarkable double row of twelve local men of various age. Two publicans, a blacksmith, a tinsmith, a boot-maker, a storekeeper, a gardener, a butcher, a fruiterer, a carpenter, a miner, and a puddler from the ironworks comprised the collective brain that would decide David Rose’s fate.

  If appearances were to count in the jurors’ calculations, the Crown had more than a head start. Prosecutor Charles Alexander Smyth and his colleague, Butler Cole Aspinall, were bright men in their thirties, crisply dressed in fabric finer than was usually seen in Castlemaine. Even beneath their wigs, their hair was bouncingly clean, their eyes clear and wide, their postures assured and certain. And if by chance their youth and swagger might have irritated some, sober gravitas was lent to the team by the staid and grey-templed Crown Solicitor, Henry Gurner. This was a prosecution that looked ready for the contest, one that commanded respect and inspired confidence.

  In opposition, at law and in look, was the defence. Led by the oldest man in the room — senior to Judge Barry by twenty years — stooped and deliberate of movement, was learned counsel Pearson Thompson. His suit was smart, if a little old, and of a cut superior to the crumpled tweed worn by his colleague, the lean-bodied Daylesford solicitor James Geake.

  On the call of the clerk, Watkins, the respective teams broke from their huddles, allowing proceedings to begin.

  Into the silence rose Smyth. He gazed about the room, as if to familiarise himself with the architecture, then, thrusting his right hand towards the dock, turned to address the jury.

  ‘The prisoner at the bar stands charged with the wilful murder of Margaret Stuart, the wife of a miner at Daylesford, on the night of the 28th of December 1864. I am well aware that the public has given great attention to this case and that the press has commented upon it on several occasions; and such being the case, it is almost impossible but that most persons have already arrived at some conclusion respecting it. I mention this because I want to impress upon you good gentlemen of the jury the necessity of banishing all foregone conclusions, if you have any, and rest your convictions on the evidence, and that alone. I hope you will consider the particulars, which will be elicited carefully and dispassionately, and discard all reports and comments. I believe you will do your duty both to the Crown and the public. And now, to the particulars of the case.’

  He paused to consult his notes, then told a tale of innocence and evil.

  ‘The woman at the time of her death was seventeen years of age. She lived with her husband at Albert Street, Daylesford. The house was situated on the brow of a hill, and was a small wooden erection containing two rooms. The husband used to go to work at different periods of time; sometimes he was engaged at night, and at other times in the day. When engaged in the night shift, he usually left home at 4.00 p.m. and returned at midnight. I draw your attention now to this model of the house …’

  JOE LATHAM’S LEFT ARM corralled a bowl of porridge, his right loading spoonfuls into his mouth. His wife bustled in, bearing lengths of wood for th
e fire.

  ‘I said I’d do that,’ he said.

  ‘Don’t trouble yourself; it’s done now.’

  Alice Latham emptied the pieces onto the hearth and brushed down her apron. She stood and sighed. She wanted to know nothing of the Rose trial until its conclusion, and even then she’d wait for word rather than seek it. She prayed only that it would all be over quickly and that no more would ever be said.

  Behind her, Joe blew out a long breath. He stood, sending his chair squealing across the boards and his bowl wobbling like a coin. Alice turned.

  ‘What is it?’

  A vein had filled in his neck; another bulged across his forehead. ‘This house. You. This fucking life. I’m sick of it!’

  Two young daughters appeared at the door. On their father’s glare, they withdrew. Alice retreated to the trough to begin the dishes.

  He was behind her now, cooing. ‘I’m sorry, love.’ She felt his hands at her buttocks, fingers kneading. His breath was in her ears now, his tongue at her neck.

  ‘Come on, Alice,’ he breathed. She closed her eyes and gripped the dishcloth as her dress was gathered and lifted. ‘God, you smell good. I’ve missed your smell.’ His breathing was hard; any appeal to desist was now futile. Her drawers were torn to the floor, and all she could do was brace herself and endure.

  CROWN PROSECUTOR SMYTH HANDED a photograph to Frederick Beard, the foreman of the jury.

  ‘I want each of you now to study this photograph, taken of the victim as she lay, near nude and mutilated.’ The shocking image was passed along the two rows, variously to winces and frowns and faces that gave nothing away.

  ‘The question arises as to how you gentlemen of the jury are to connect the prisoner at the bar with the individual who so cruelly butchered this woman; and I say butchered, because it is the only word that seems to convey an idea of the manner in which the unfortunate victim was murdered.’