by Greg Pyers
Smyth’s recalling of Doctor Doolittle elicited puzzled looks, even among the staid-faced jurors, for what could he add that hadn’t been said before?
‘Doctor Doolittle,’ Smyth said, ‘thank you for your attendance again.’
Doolittle nodded. He seemed to Tom a gentleman, a man of thoroughness and integrity. Maybe this was behind Smyth’s calling him.
‘Doctor, you’ve examined the knife found in the prisoner’s swag?’
‘I have.’
‘Would you say that the murder may have been committed with it?’
‘It may have, yes.’
‘Thank you, Doctor. Oh, one last thing. This pipe, found on the meat safe …’ Smyth held up the pipe. ‘Did you put it there?’
‘No. And neither is it my pipe.’
‘Thank you. No further questions, Your Honour. That concludes the case for the prosecution.’
Smyth sat down and shared a nod with Aspinall at a job well done.
Judge Barry made a note or two, and looked to the clock.
‘We’ll adjourn now for lunch, and resume with the statement for the defence at two. Mr Thompson?’
Thompson acknowledged this with a curt nod.
‘All rise,’ Watkins directed.
Tom left promptly in search of a quiet tearoom or the like, where he could collect his thoughts and be away from the speculations that were already the subject of every conversation.
GEORGE STUART STEPPED OFF the bucket at the top of the New Wombat shaft to find Joyce Pitman standing there, beaming at him like a proud mother. Is she here for me? he wondered. She was on her way over.
‘Mr Stuart,’ she said. ‘I thought you might be at the trial.’
‘No, I’m not. As you can see. I’ve said my piece there, and it’s best I set my mind now to other matters.’ He began to walk off. She hesitated, then caught him up.
She lifted a small billycan. ‘Perhaps you’d care for some hearty stew? It’s hot, if you’d like some now. I brought a spoon.’ She held it out.
George looked at her, perplexed by this unprecedented attention. But then he thought, what man would turn down such an offer? Not his kind.
He took the spoon. ‘Thank you, Mrs Pitman. I will. It’s very thoughtful of you.’
WHEN ALL WERE SEATED and quiet, Pearson Thompson rose slowly to his feet. He steadied himself a moment, as though lunch had been a little hard to digest. Judge Barry looked over his spectacles to indicate that everyone was waiting. The barrister began, with a disclosure that stilled the room.
‘Your Honour, I have been taken very unwell this afternoon, and I’m not sure that I can go on with this case, but I will try.’
‘Very well,’ Judge Barry said, in a tone which suggested that Thompson might have to die before an adjournment would be considered.
Thompson read the judge’s mood correctly. He coughed gently into his handkerchief, took a sip of water from a glass, and, after a moment where it seemed he was riding out a headache, looked up at the twelve men and began his petition.
‘Members of the jury, this case is one of the greatest importance, one upon which the life or death of a fellow human being hangs.’ He pointed to Rose, as if anyone needed the clarification. ‘You will see that the prisoner stands in the dock at a great disadvantage, as arrayed against him are two eminent counsel, a perfect army of police, and, in fact, such an amount of collective talent as has ever been witnessed in this court, while I am his only advocate. The Crown contends against him with a golden shield, while the unfortunate man is without money or scrip.’
He swept his gaze across the jurors, perhaps for a sign that his plea for their sympathy had registered. He coughed and resumed.
‘I charge you, good gentlemen of the jury, to dismiss from your minds any preconceived notions as to the presumed guilt of the prisoner. His alleged crime has been the talk of the whole country, and the entire press had been in arms against him. You are trying a case of murder, the most horrible that has ever come under my notice, for if there ever was a deed that exceeded all others in atrocity, the killing of Margaret Stuart is such a one.’
Here he paused, a little longer than he might have intended as he riffled through his notes. Coughs from the gallery and one from the judge drew attention to the delay. At last, with the sought page at hand, he continued, with great dramatic vigour — his supposed ill-health apparently no longer of concern.
‘No one has a greater abhorrence than I of the crime of murder, but I will tell you that there is another description of murder which is not less atrocious, and that is called judicial murder — the hanging of an innocent man.’ He looked at his client, and so encouraged the jury’s eyes in that direction. Rose lowered his gaze, maybe through shyness, or shame and guilt.
‘I will now proceed to review the evidence, but before doing so I have a serious complaint to make, which is that this case has been got up in a manner the reverse of creditable to the authorities. Things were not managed this way in England, and having practised as an English barrister, as well as an English magistrate, I can affirm that fair play has not been shown to the accused. I recall the trial of Palmer there, for the poisoning of John Parsons Cooke. In that case, the venue had been changed to London on account of the prejudice that existed against the prisoner in his own county …’
Tom Chuck had been jotting some notes to this point, but now his hand was still. He had no knowledge of the workings of court — save for these two-and-a-half days — but this argument of Thompson’s surely was missing the mark, and spectacularly! How was citing cases from England a help to his client? What did these Castlemaine jurors care of legal intricacies? Yet Thompson carried on with an air of supreme belief in the import of what he was saying, while glazed eyes began to blur the vision of juror and public visitor alike.
And what was all that about feeling ill? Was Thompson’s heart in his work? Oh, if only Otto could be there to hear it for himself! Tom wondered how he was getting on in New Zealand, whether he might be back yet …
At last, the old barrister returned from his bizarre detour, back to the specifics of the case.
‘Now, may I say from the outset that, notwithstanding the exertions of the Crown, the evidence against the prisoner is of a very slight character. It does not appear that he had ever taken any liberties with the deceased woman, and the remarks he made to her amounted to mere civilities.’ A wave of his hand was meant to underline just how trifling Rose’s words had been. ‘The evidence showed that the prisoner was a hard-working man, always seeking work when he was not in employment. With reference to connecting the prisoner to the pipe said to have been found on the meat safe, no reliance can be placed on the testimony of any of the witnesses. Does anyone believe the evidence of Hathaway? Was it at all likely that he, not being a smoker himself, would have kept the pipe in his hand for a quarter of an hour while his stable was threatened with destruction by fire? And how would it be possible for that man to have removed heavy bundles of hay with a pipe in his hand? You must remember, gentlemen of the jury, that a reward of £200 has been offered for the discovery of the murderer, and my own impression is that the pipe had been placed on the meat safe designedly with the object of securing the prize. As for the evidence of Hathaway, I believe the man perjured himself.’
This was a comment to raise eyebrows and elicit muttering in the gallery, and an exaggerated open-mouthed expression of mocking disbelief from the prosecution. Judge Barry kept his features tidy, and simply wrote a note. Thompson proceeded confidently.
‘I refer now to the evidence of Mrs Spinks as to the man who was standing at the stump on the night of the murder. She said herself that it was impossible to see him clearly enough on that dark night to be sure of his identity. As for the attempt to prove that the prisoner had walked from Cheesbrough’s place within the time that he was last seen there and the hour at which the mur
der was supposed to have been committed, I say it is not only improbable but impossible! The prosecution didn’t tell you that the short route from Daylesford to that farm is across paddocks covered with ripening corn, and it is impossible that anyone could have made his way through this within the time.’
Tom shifted in his seat; he was finding Thompson’s performance ever more frustrating. Improbable, impossible; it was a matter of opinion. Why not point out the vital fact that Rose would have had to cover the journey in the dark? And what kind of man would walk so far in the dark of a moonless night with murder his objective, all the while smoking a pipe? Tom had stopped writing, to think, and to remind himself that the defendant’s guilt or innocence wasn’t his prime concern; rather, that Rose be fairly tried. This, Tom assumed, would necessitate being rigorously defended.
‘The morning after the murder, the prisoner was not found in an excited condition,’ Thompson said. ‘I presume it is beyond question that whoever had murdered the woman had come down the chimney, and though the Crown produced a shirt said to belong to the prisoner, there was no attempt to show that there were any marks of soot or whitewash on it. In fact, there were no such marks. Again, if a man had come down the chimney, it would have been impossible for him to have ravished and murdered Mrs Stuart without leaving sooty marks on her person, which, by the evidence of Dr Doolittle, we know is not the case …’
This, Tom thought, was much better; challenging the jury to weigh some key points.
‘… The medical evidence negates the assertion that the deceased had been violated, and there is a total absence of motive on the part of the prisoner for the commission of the crime. You, good gentlemen, must consider that no reason was assigned for the committal of this murder. I appeal to you all, and even to the learned judge himself, whether any of you have ever heard of a murder being committed without some reason being assigned. Let us even go back to the beginning of the world. Did Cain commit a murder without a reason? Did St. Paul, when he murdered the martyr Stephen, was he not persecuting the Christians? Again, did King David commit a murder without assigning a reason? No, he did not, nor had there ever been a murder committed without some reason having been given.’
Tom could scarcely believe what he was hearing. He looked about the room to see Smyth and Aspinall exchange looks; they appeared supremely comfortable — maybe even amused. The judge sat impassively, as did the jurors, perhaps taking their lead from the bench. One or two in the gallery nodded, as if Thompson had struck a rich vein of powerful argument. If he saw this as support, it was enough to encourage him, and on he went, confidently and expressively.
‘If the prisoner had committed this murder, he must have had some reason, as it was hardly probable that he could go to that house and effect his escape without being recognised by some person or other, seeing that he was well known in the district.’
Tom let this go by; like so much of what both Thompson and Smyth had said, the logic eluded him.
‘The evidence with regard to the hairs examined by the analyst is undeserving of attention, and that of Michael Wolf highly questionable. Murderers are usually remarkable for their taciturnity, and how foolish he would be to say he had in his possession a weapon with which he had committed murder. I think that, like Mr Hathaway, Mr Wolf has played loose with the truth.’
Thompson raised his voice over the provoked murmur, and it promptly died away.
‘Gentlemen of the jury, I put it to you that all the evidence brought by the Crown is of a purely circumstantial kind. I contend this whole charge was one trumped up for the sake of fixing the guilt on the prisoner, and is scarcely in any respect reliable. There is nothing in the case but supposition, inferences, and arguments; there is nothing conclusive, and if there is a doubt, that doubt must be given in favour of the prisoner. I now leave the case in your hands, believing you will give it your most judicious, impartial, and serious consideration.’ He fixed his eyes in turn on several of the jury, straightened his suit, and resumed his seat. He hadn’t noticed until then that Smyth had leapt to his feet. Thompson was immediately back to his, speaking as he rose.
‘Your Honour, I must object. The prosecution has no right —’
‘Your Honour,’ Smyth cut in, ‘the Crown does indeed have the right of reply. The defence put in and read the depositions by Mrs Spinks —’
Judge Barry was already nodding. ‘Quite correct, Mr Smyth, this does indeed entitle you to a reply.’
Thompson did his best to look dumbfounded, but it seemed he knew the procedure perfectly well. He sat down without further protest, as Smyth began.
‘Gentlemen of the jury, the prisoner’s counsel here has attempted to create an idea that the police, or other persons, had designedly placed the pipe on the safe. Such a statement is totally unsupported! The evidence called for the Crown fully substantiates all I have said in my opening statement, and I simply ask the jury to weigh well the evidence before acquitting the prisoner.’
‘That pipe is not mine.’
The sudden interruption from the dock caught everyone’s attention. All faces turned to David Rose, standing at the rail with his jaw set and gaze fixed on Smyth. Thompson looked unsure whether to be pleased or not. He glanced at the jurors for their reaction, but Smyth had already reclaimed their attention.
‘Gentlemen, we are not assembled here to convict David Rose of murder, but to ascertain if he is guilty of the fearful crime laid to his charge. The prisoner’s mouth is not sealed; he is entitled to make a statement.’
Smyth sat down, beneath a halo of magnanimity.
And now the prisoner did speak.
‘Your Honour, gentlemen of the jury,’ David Rose said, still standing. He was manifestly agitated, and held the railing to steady himself as his feet shuffled. ‘I have been in prison so long I feel too weak to give a full account of matters in support of my case.’ He hung his head, and slumped back into his chair. It was a moment in which Tom felt a great welling of sympathy for the poor man. Murderer or not, the human tragedy of Rose’s situation was impossible to deny. He was on his own here. Not one witness had been called on his behalf, and, as far as Tom could ascertain, there was not one friend or relative in the gallery. What a grim state of affairs, he thought, to have Pearson Thompson as one’s only support.
And now Smyth was moving in.
‘We, the court, have to expect from the prisoner an explanation of the many circumstances upon which the Crown relies for a conviction, but nothing whatsoever has been brought forward to disprove the statements of the Crown’s witnesses. It cannot be denied that the pipe has been fully and clearly identified as the property of the prisoner, and I do not think that you good gentlemen of the jury can come to any conclusion other than that he had left it in Stuart’s house within half an hour of the time at which the murder had been committed …’
This pipe again. Tom was struggling with its significance. Rose denied ownership, though several witnesses attested to it being his. And only Detective Walker saw the pipe on the meat safe. Could so many people have missed it? And even if it was there, and even if it was David Rose’s, did that make him a murderer?
Rose was standing, though he seemed barely capable of it. Smyth motioned to Judge Barry that he had made his point and was happy to let the prisoner speak. And he did, with a denial that was passionate, and of unexpected sophistication.
‘Your Honour, hasn’t a man conscience? And is there not a God? Has not Almighty God put conscience into men? If I was standing on the gallows now, in the presence of my Maker, I’d swear that pipe was never between my lips. Where is conscience? And where is God? Money and gold are the champions of this colony. It has been proved that this is so. I am weak and poor, and so tired I have hardly the power left me to speak for myself.’ He gazed around the room, for want of knowing what else to say or do, and then sat down and buried his face in his hands.
Tom watched w
ith a blank face and an ache in his chest. Could there be anyone in that room who did not feel the slightest shred of compassion for this wretch? Smyth sensed the mood, and was promptly on the offensive, as if there really was a chance the jury might be swayed by pity.
‘I might add, Your Honour, while we are addressing this point, that the charge by learned counsel that the police had placed the pipe on the meat safe in order to convict an innocent man is curious, for does it not mount to an admission that the pipe was the prisoner’s? I would call now for the defence to confirm this, or withdraw.’
All eyes turned to Thompson. After a whisper in his ear from Geake, he stood and made the best fist of an embarrassing back-down.
‘As it cannot be proved, I withdraw.’
Smyth made the shallowest bow, taking care not to appear smug. Thompson sighed with irritation at this false nobility, and Smyth returned to his speculations.
‘I do not believe the razor was the instrument with which the murder was committed. I am inclined to believe the deed was done with the missing clasp-knife, sworn to have been in the possession of the prisoner, and a man of the prisoner’s thrifty habits was not likely to have thrown away a knife without some reason.’
Tom looked to Pearson Thompson. Could the man not object here? On what grounds could Smyth assert that a murder had been committed with a knife he had not seen and could not prove the prisoner had even had in his possession? And if Rose ever had it, he may simply have lost it, or discarded it. Maybe the handle had broken, or it was blunt beyond restoration. And if Smyth believed it was a knife, did that not render Wolf’s testimony invalid? Tom shifted in his seat and sighed heavily, drawing a cross look from the man next to him. And then, on this shaky foundation, Smyth built an even flimsier construction.
