The Unfortunate Victim

by Greg Pyers

  ‘If the prisoner had a reason for getting rid of the knife,’ he said, ‘it was an article which could be easily disposed of.’ So, Tom paraphrased to himself, as if it might clarify matters: Rose was said to have a particular knife, which he could have used to commit a murder, which would be the reason he would dispose of the knife, and this would be easy to do, it being a knife. ‘Jesus Christ Almighty,’ he muttered. Smyth was treating the jury as children; but then, they seemed to be believing his performance as children. Seemingly lest his whole confection be examined, Smyth moved on promptly, with some remark or two about treating the prisoner fairly, and then, after a small bow to the jury, straightened his gown and resumed his seat.

  The moments of silence following rendered the air colder, now that the distraction of the contest was finally ended. Muffled conversations broke out and filled the void. Tom kept his own company, preferring not to speculate over Rose’s fate; there was enough of that going on already all around him. He watched Judge Barry, busy collating his notes. He looked at Rose, sitting motionless on his chair, elbows on his knees and face to the floor. There had to be too much doubt, surely, to find him guilty, let alone to send the man to his death. Tom considered he might even leave now; it was too late for the coach, but he could get an early night and be back with Adeline for breakfast. How fortunate he was to have such a wife, a woman so loving to accept without question that he had to be here. He wanted nothing more now than to be with her.

  Barry had put down his pen, and was looking up over his spectacles. He nodded to Watkins, who called for order. Tom decided it was best to stay, to hear what the learned man made of what had transpired these past three days.

  ‘Gentlemen of the jury, I have observed that the evidence upon which the Crown relies is to a certain extent direct evidence, and to a certain extent presumptive, or circumstantial, evidence. Most crimes of this nature are decided upon circumstantial evidence, inasmuch as it rarely happens that witnesses are found who were present at the commission of a deliberate murder, and that kind of testimony is frequently thought to afford the best proof. With respect to the comparative weight due to direct and presumptive evidence, it has been said by a high authority that circumstances are in many cases of greater force, and more to be depended on, than the testimony of living witnesses; for witnesses might be mistaken themselves, or be wickedly disposed to deceive others, whereas circumstances and presumptions, naturally arising from facts proved, could not err.’

  Tom didn’t know where to begin to even write a brief summary of this reasoning. He would have liked to, for digestion with Otto later. Alas, it was lost on him. Maybe it didn’t matter; maybe this was a judge’s standard opening at a murder trial. Still Barry kept on, and for as long as Tom heard mention of ‘circumstantial evidence’ and ‘juries drawing hasty conclusions’ and ‘fallacious inferences’, he let the words flow by his ears on the close courtroom air. But he remained alert enough to know, when the judge had left the theoretical and general for the practical and specific, to be again attentive.

  ‘The evidence against the accused to justify conviction should be such as to exclude to a moral certainty every hypothesis which does not point to his guilt. You must be of the opinion that it is not merely consistent with the prisoner’s guilt, but inconsistent with his innocence, bearing in mind that the first great presumption was the innocence of the accused until he be proved guilty.’

  Barry here paused for a sip of water from a glass, a cough, and a minor two-handed adjustment to his wig. With a glance to the jury, he proceeded.

  ‘If it were necessary to search for motives in this case, many could be found. If this woman were violated before death, the motive to take away her life was, perhaps, the strongest that could have actuated the man who violated her, for if she survived the dishonour his life would be in peril. But if she were not violated, and I am inclined to the opinion that she was not, there were two equally strong motives for the taking of her life. One: the attempt at violence is a crime of great enormity, punishable with a severe sentence. Two: the man, disappointed by meeting with the resistance of a powerful and virtuous woman, might have been actuated by the cruel impulse of disappointed lust, and thus have taken her life. This latter motive is the stronger of the two.’

  Judge Barry referred to the matter of Rose’s inquiry about Cheesbrough’s dog, and to the mode of entry by the killer into Stuart’s cottage. For each, he left the jury to decide the import. He was similarly disposed to the evidence of the hidden shirt, and the blood and hair analyses. He acknowledged the inconclusiveness of Sarah Spinks’ evidence, too. And then he came to the words exchanged between the prisoner and his alleged victim.

  ‘The remark made by the prisoner in the conversation he had with the deceased woman a few days before her death might be considered as merely rude compliments, or familiar expressions of admiration, but there is a significance in his inquiry about the time at which Mrs Stuart’s husband went to work, and in his asking where the little girl Louisa Goulding lived, as by that means he became aware that the woman was alone at night when her husband was absent.’

  Which doesn’t mean he acted on it, Tom thought the judge might add. And how reliable is the recollection of a girl of such tender years?

  ‘The medical evidence fixes the time of the woman’s death at about eleven o’clock, and supposing the prisoner to have left Cheesbrough’s at nine o’clock on the night of the murder, he would have had two hours to travel six miles and eleven chains. That time is ample, as it was proved by the apprehending constable that he himself walked that distance at the ordinary pace in one hour and thirty-five minutes.’ Yes, he did, Judge Barry, during daylight hours! Tom exhaled in exasperation. Was he the only man in the room who thought this significant?

  And then came the pipe, the item central to the prosecution. What would the judge make of this, Tom wondered. Presumably, that Hathaway’s evidence was strong and remarkable, and the varying testimonies taken together were contrary to any suggestion that the police had concocted a story to implicate the prisoner. Well, Tom thought, Pearson Thompson had already, humiliatingly, conceded this point.

  Barry advised the jurors that the mode of entry to the Stuart house had not been proved as being by the chimney, and then he came to the testimony of Michael Wolf. He cautioned the jury that they had to be assured that the words reported as being by the prisoner were in fact used by the prisoner, and meant by the prisoner in the way they were reported. On hearing this sage advice, Tom looked in turn to Rose and Thompson for their reception of it. Rose seemed utterly indifferent, and perhaps wasn’t even listening. Thompson nodded his concurrence, and exchanged a tiny smile with Geake. And then followed a statement from the judge that so astonished Tom for its lack of sagacity that he made sure to scribble it down verbatim so that he might share it with Otto at the first opportunity.

  Some closing remarks from the judge passed Tom by as being of the kind made at the end of all such cases, and then came Barry’s final words of all, addressed to the jury: ‘It is now half-past nine o’clock. I charge you now to retire to consider your verdict.’

  Tom stood with the rest of the court as the judge stood and left for his room. Despite the hour and the many hours already endured, the public gallery had remained full throughout. The dock was already vacated; Rose had been promptly taken to his cell, where Pearson Thompson would now be headed. How long the jury would take, Tom couldn’t guess, not being familiar with such things. Would a long deliberation indicate uncertainty in their thinking? Did they know already, delaying their verdict merely to give the appearance of giving due consideration? If the jury shared his thinking, though, there’d be a finding of not guilty, and his own confusion would make sense.

  Tom went out to the rear yard, where twenty or more men stood around in small groups, stamping their feet and lighting pipes to keep out the chill; others were taking the opportunity to empty their bladders in the t
rough mounted for the purpose in a small shed. The mood was light, with laughter and discussions taking place about all manner of things, from the trial itself to current affairs and domestic trivia. They might have been theatregoers at interval. Tom could detect no mood of uncertainty here, no concern that the verdict would not be the right one; that is, that Rose was the killer. But maybe they knew this before the case even began.

  At twenty past ten o’clock, the jury filed in. The prisoner was led to the dock. All rose as Judge Barry entered. He took his seat, and the court settled. On the judge’s nod, Watkins stood and read the names of the jury, and then addressed them collectively, ‘Gentlemen, have you agreed upon your verdict?’

  Foreman Beard, the oldest of the twelve, stood, as stiff as a guardsman. ‘We have.’ One juror let his head fall forward; another looked to the ceiling.

  ‘How say you? Is the prisoner at the bar, David Rose, guilty or not guilty?’

  ‘Guilty,’ Beard said, and sat down, eyes steady and jaw set.

  Watkins nodded. ‘Gentlemen of the jury, hearken to your verdict, as the court records it: The Queen against David Rose, for murder. Verdict: Guilty! So say you all?’

  A resounding chorus of ‘Aye,’ was given, and Watkins turned to the box.

  ‘Prisoner at the bar, David Rose, you have been found guilty of the wilful murder of Margaret Stuart. Do you know, or have you anything to say, why sentence of death should not be passed upon you, according to law?’

  David Rose had remained seated during the verdict, sitting forward, his head down, denying the gallery. At the clerk’s invitation, he looked up and rose to his feet. He seemed suddenly faint, and grasped the railing in front of him. And though he was shaking, when he spoke it was with certainty.

  ‘I am not the man who committed the murder.’

  From behind Tom came a scoff; a few heads shook in contempt. Someone muttered, ‘Liar.’

  Rose looked about the room. With so many faces turned in his direction, he may have crumbled. Instead, he found his voice and used it to plead.

  ‘The words I spoke to the woman were words of friendship. I went to camp on the Friday evening, and the dead woman, who was gathering sticks, came to me. She walked up to me and looked me in the eye, as though she had some strange suspecting of what I was going to do there. I bid her good evening, and she nodded her head. I said to her, “I am going to camp here until the Christmas holidays are over,” and she nodded her head again. I had been harvesting up the country and I had been digging. I said, “You are a nice-looking girl, and it is a pity you have not a sweetheart.” She smiled and said, “I am a married woman.” I answered her, “I will say no more, or perhaps I shall get my nose broke.” I went into the township. I afterwards met her husband, who by his look seemed to challenge me. He wished me good evening. This is all what passed. This is all what I am guilty of. These are all the words I said. I said all this to the policemen, when they took me. This is all I know about it.’

  He looked to the jury, then to his counsel. Thompson looked back, and could offer only a wince. Rose retreated to his chair, and slumped there.

  Clerk Watkins was already to his feet. ‘I call now for silence while the sentence of death is pronounced.’ He sat down.

  Tom felt the pulse knock in his ears. His breathing had quickened, and a light-headedness dulled his hearing. He swallowed to suppress a rising nausea, and closed his eyes to the thought that a man not ten yards from where he sat would now hear that the state was going to put him to death. Tom looked to the jury — ordinary men much like him. Yet they were so sure of their decision. How?

  Redmond Barry cleared his throat. Tom was on the brink of throwing up. He gripped the bench under him with both hands, and swallowed hard as Barry began, prompted by notes to which he referred.

  ‘David Rose, you have been indicted for the murder of Margaret Stuart, a young and apparently well-behaved and virtuous woman. You have been found guilty of that atrocious crime, after careful inquiry, which has occupied the attention of the jury for three days. The crime was committed under circumstances that can find but few parallels in any country. It was attended by circumstances which show remarkable daring in the commission of the offence, and it has required marked intelligence and continued perseverance to bring you to the bar of justice.’ He looked up now, and waited a moment for Rose to lift his own head.

  ‘I believe you must feel convinced you have been fairly tried.’

  Rose saw that all eyes were upon him. He looked to the bench and spoke, his voice wavering.

  ‘Your Honour, I am an innocent man, and I beg for life. I did not do that dreadful deed. Let me appear what I may, I am not the man who did it, and I know no more about it that the angels in heaven or the innocent, unborn child. If I’m spared, I will do all to produce the murderer.’

  A man behind Tom muttered, ‘Squeal, you fucking animal.’ Someone shooshed him.

  Judge Barry allowed a moment to pass before speaking, lest Rose had not finished.

  ‘The case has been conducted in a manner which shows that no pains have been spared to give you every opportunity of establishing your innocence. It is rare to find a case where so many witnesses have been called in which there has been so little variance between the statements.’

  To this, David Rose replied with newfound certainty. ‘Yes, Your Honour, witnesses are witnesses and conscience is conscience, but my word, of course, would not be believed. My conscience is clear, and if there were twice as many witnesses, I shall leave this world as an innocent man, and, perhaps, you will find it all out in time.’

  Judge Barry seemed a little discomfited by the prisoner’s unexpected eloquence; his tone became terse, impatient. ‘The fact of so many witnesses having been called shows the difficulties the Crown have had to contend with, and it is known to all acquainted with the conduct of criminal prosecutions that it is more difficult to support a charge when witnesses are numerous than when they are few in number. Every source of information seems to have been exhausted. There are now but few remarks which I feel called upon to make …’

  David Rose fell to his knees. He bowed his head and clasped his hands as in prayer. Barry continued, somewhat triumphantly, Tom considered. ‘The result of this trial will show those who have recourse to such extremes in crime that, however safe from detection they may believe themselves to be, they are not beyond the reach of the law. It gives me severe pain to be obliged to tell you that I am not justified in holding out any hopes of mercy. That prerogative does not rest with me. My duty will be simply to report upon the trial as it has occurred —’

  Rose stood. He could barely find the breath to speak. ‘I am an innocent man, Your Honour, an innocent man.’

  ‘— but I cannot hold out to you any hope that the extreme penalty of the law will not be carried into effect.’

  Rose tried to speak again, but his throat wouldn’t permit it. Even standing seemed beyond his capacity. A glass of water was handed to him — a gesture as much in consideration for the man as it was for the discomfort of the court. He took it, and was able to say, ‘Is there no chance my innocence being proved now?’

  Judge Barry pressed on.

  ‘A trial of this kind affords to the whole community a great social and moral lesson, more especially to those persons who will not control their evil passions. It is not my intention to weaken the effect of these impressive proceedings by addressing you at greater length. I have now only to entreat you earnestly to employ your remaining time in preparing for eternity. You have appealed to the Supreme Being —’

  ‘Is it possible I am to die an innocent man, Your Honour?’

  ‘— and I entreat you to prepare to appear at the Judgement Seat.’ Barry removed his spectacles, and considered the condemned man’s further interruption.

  ‘Human tribunals may err; the Lord’s judgement cannot. And if you are an innocent man a
nd suffer unjustly in this world, you may be sure of justice and mercy in the next.’

  ‘Jesus Christ,’ Tom muttered.

  ‘I am not the murderer!’

  Barry put on his spectacles, not to read through but to look over. He spoke now as a gentleman gives directions to his butler.

  ‘The sentence of the court is that you, David Rose, be taken back to the place whence you came, and at such time and at such place as His Excellency the Governor may direct, you then and there be hanged by the neck until you be dead, and that your body when dead be taken down and buried within the precincts of the gaol where you were last confined before this sentence of execution is carried into effect. And may the Lord have mercy on your soul.’

  24

  TUESDAY 15th AUGUST

  DAVID ROSE SAT IN a corner of the exercise yard at Castlemaine Gaol, lobbing stones at a weed. Archdeacon Archibald Crawford approached, and stopped at the prisoner’s feet. He lowered himself to his haunches and balanced there, forearms on thighs.

  ‘Good morning, David. How are you today?’

  Rose looked up. ‘Is it in?’

  Crawford pulled a newspaper from his coat pocket. He nodded and handed it over. ‘Yes. Your letter’s there.’ Rose scanned the print. He recognised his name and various other words he’d said, taken down by Crawford the day before. He got to his feet.

  ‘I’ve thought of more,’ he said.

  Crawford was reluctant. He stood. ‘David, you have given an account of yourself, and the newspaper was good enough to publish it. I don’t think they will want more. In any case, writing more will only …’

  ‘Will only what?’

  ‘Will only make people wonder why you didn’t say all of this at the trial. They will think you have been making things up.’