by Carol Baxter
And then Louisa Collins was indicted for killing two husbands, making hers a unique case in Australia’s criminal history. Its singularity also meant it was the type of case in which the government, or perhaps an influential member of the government, might act improperly in an attempt to gain a conviction.
Could Lee find evidence of unfair behaviour—or perhaps worse—in the Crown’s actions? Most certainly. The problems were manifest and manifold. It began with the Crown’s decision to put Louisa to trial four times. Many people thought this decision reflected a ‘spirit of unreasoning vengeance’. The conservative press wasn’t concerned and, surprisingly, the Bulletin’s editor wasn’t either. Archibald claimed that the custom of trying a case three times was not only ancient but, in the main, benevolent to the accused. If three juries failed to convict, the public opinion held that the accused merited their freedom.
Except that the authorities had tried four times to convict Louisa. ‘I believe there is no record in England of a criminal under such circumstances being placed on trial more than twice,’ Lee wrote in a letter to the Evening News. ‘Where is the limit to be? If four times, why not eight times?’
Notably, neither before Louisa’s fourth trial, when the public first expressed concern about the Crown’s seemingly relentless pursuit of her, nor in its aftermath had the Crown provided examples of triple-trial precedents in an effort to allay community concern. This indicated that no one in the Crown’s law office or in its circle of contacts knew of any such examples—or ones recent enough to seem relevant. So, even though the number of attempts to try her might not reflect malfeasance on the Crown’s part, it certainly reflected an unprecedented level of zealous determination in its endeavours to convict her.
And what about the fact that three previous juries had been unable to reach a verdict? Any attempt to dismiss the fact that three juries had experienced these doubts by arguing that only two were making a judgement on the Collins case lost its traction when it was recollected that the prosecution admitted evidence relating to both husbands’ deaths in the third trial. Three hung juries. Yet, despite that profound evidence of uncertainty, Louisa was going to the gallows because a fourth jury had managed to reach unanimity. When added to the fact that the convicting evidence was only circumstantial, wasn’t the Crown’s decision to refuse a commutation both unfair and unwise?
This raised another question: what procedural or evidentiary difference in the fourth trial was responsible for the different verdict? The answer was obvious: the admission of the evidence relating to Andrews’ death. But should this evidence have been introduced? Not in Lee’s opinion. As he explained in his letters and correspondence, Collins’ death was undoubtedly caused by arsenical poisoning—scientific analysis had provided unequivocal proof—so it was reasonable for the Crown to introduce the Collins evidence into the Andrews trial to help argue that Andrews had also been killed by deliberate arsenical poisoning. Although doing so was prejudicial, this was outweighed by the probative value of the evidence. By contrast, Andrews’ death certificate listed ‘gastroenteritis’ as his cause of death and the chemical evidence suggesting otherwise was flimsy. No scientist, medical practitioner or other expert would ever be able to prove that he had died from arsenical poisoning; it could only be a matter of opinion. And how often had the public read of medical or scientific experts standing in the witness box swearing to an opinion that was diametrically opposed to the opinion of a previous medical or scientific expert?
What would have happened if the Andrews evidence had not been admitted? The chief justice himself said in his summation that the jurors might find it hard to dismiss suicide or accidental death as possibilities when the Collins evidence was examined on its own, but that the likelihood of it being an accidental death was considerably reduced when the Andrews evidence was admitted. Clearly, both the Crown and judiciary had been asking the jurors to conclude that the possibility that Louisa poisoned Andrews made it more likely that she also poisoned Collins. However, this lost sight of the fact that Louisa might have had a motive for poisoning one man and not the other.
Thus, in his opinion, the Crown’s actions were prejudicial and probably illegal. The only way to prove it, though, would be to bring her case before the Supreme Court so the full bench could make its own ruling.
• • •
Unbeknown to Frederick Lee, the Bulletin’s editor was putting his own concerns on paper. He argued, similarly, that the Crown’s theory assumed that there was a double murder or none. Was that reasonable? The final jury had been asked to form their verdict in the Collins case based partly on an opinion regarding the Andrews case. Yet the Andrews jury had been unable to agree that Louisa had killed her first husband; moreover, it couldn’t be taken for granted that the current jurors would have found her guilty if they had heard the Andrews case alone. True, it was difficult to keep the two cases distinct, particularly as there was a subtle but legitimate cogency in the Crown’s line of argument—the ‘similar facts’ foundation. Nonetheless, to an ordinary jury, it suggested that the probability that Louisa Collins poisoned Andrews made it very probable that she also poisoned Collins. ‘This is dangerously close to what reasoners know as the vicious cycle,’ warned the Bulletin, referring to the fallacy in reasoning in which the premise is used to prove the conclusion and the conclusion the premise.
And what about the speediness of the final verdict? Three juries had previously sat through the night without reaching unanimity, with the only difference in the fourth trial being the inclusion of the Andrews evidence. That being the case, the fourth jury’s speedy unanimity didn’t make the verdict itself more credible. Rather, it confirmed the influence of that same ‘vicious cycle’ reasoning.
Which raised the subject of the adequacy of Louisa’s legal representation. Her cases were complicated and circumstantial. The prosecution’s arguments were intricate, particularly because of the vicious-cycle reasoning. Even the most skilled advocate would have had his resources and experience taxed. Yet the Crown had appointed only a junior barrister. It should be the Crown’s duty to provide the best legal talent at its disposal when a person’s life was at stake. This was especially important in Louisa’s case because each of the witnesses—including her own children—had graduated from hesitancy to letter-perfection by the time they stood in the witness box for a third . . . fourth . . . fifth . . . sixth time and spoke the critical words that had sentenced her to her death.
• • •
In the meantime, Frederick Lee was continuing to gather information to add to his mercy pleas. Among the issues that worried him was the discrepancy between the amount of liquid claimed to be in the arsenic-laced tumbler—the strongest piece of mute evidence against Louisa, in his opinion. Extraordinary as it may sound, this all-important tumbler had remained in an open cigar box, unsealed and unsecured, for two days. Worse, in that time something had happened to it. Yet no one had made any attempt to account for the diminished liquid. In fact, the authorities treated the problem as if it were of no importance whatsoever. Wasn’t this, at least, grounds for mercy because new information might later come to light explaining the discrepancy?
And what about the fact that May Andrews had admitted, while in the presence of a gaol warder during a visit to her mother, that she had never previously seen the tumbler pointed out to her in the courtroom, the tumbler that the government analyst said contained arsenic. Could May, an intelligent child embroiled in a difficult situation, have provided the answers she thought the threatening authority figures wanted to hear? Clever children were the first to recognise the benefits of a self-serving lie.
Another area of concern was the police’s inability to trace the poison directly to Louisa which, surely, was a critical weakness in the Crown’s chain of circumstantial evidence. While May had said that she saw Rough on Rats in the house, her statement was not supported by anyone else who lived in the house or visited the house or searched it in the aftermath of Collins’ dea
th. Nor had the police been able to find anyone who had sold Rough on Rats to Louisa or purchased it for her or lent it to her. In all cases of poisoning based on circumstantial evidence alone, the ability to trace the poison to the alleged perpetrator was considered crucial. It was even more important in Louisa’s case as there were others living in and visiting the house who could have administered the poison.
Yes, Louisa could have poisoned Collins. But why would a poisoner tell the police—unasked and on multiple occasions—that she alone had given Collins his food, beverages and medicines? Moreover, if she was responsible for administering the poison, why hadn’t she disposed of the contents of the arsenic-filled tumbler? This brought them back to that pivotal yet troubling piece of mute evidence.
Finally, in terms of motive, the Crown had struggled to provide an explanation as to why Louisa would want to kill Collins, which undermined its ‘double murder’ scenario. On the other hand, regarding Andrews’ death, it must be remembered that Collins had as much to gain as Louisa if her husband was eliminated.
• • •
The question of Collins’ possible culpability in Andrews’ death was one that also intrigued Archibald, the Bulletin’s editor, so much so that he crafted a story that might account for Collins’ actions. ‘His mind was low in type, and he had no conscience,’ began Archibald, ‘and his illicit love had become an infatuation.’ With little inclination to work but unable to live on credit at his new lodging house, Collins faced a dilemma—until he devised a solution. All that separated him from his lover and financial freedom was her husband. He had spotted a box of Rough on Rats during his illicit visits to the house, which led to an idea. But should he involve Louisa? Even though she was delightfully immoral, it didn’t mean that she would join him in carrying out his plan. If she spurned the idea, she would no doubt spurn him as well. If she fell in with his scheme, what certainty did he have that she would not turn on him if their crime was discovered? So, secretly, on his visits to the house, he began leaving smidgens of arsenic in the beer Andrews would consume in the evening. Before long, he had gained everything he desired.
Fifteen months later, his beloved son was dead, his finances were pitiful because of intermittent work and gambling, and he was in despair. Horror at what he had done—what he had become—overwhelmed him. In this state of despair, he decided that he needed to suffer as his victim had suffered. That was when he consumed the first dose of arsenic. He thought it would kill him, but it didn’t. He took more and more again, keeping an arsenic packet in his trouser pocket to allow ready access. His concerned wife kept calling the doctor, but he didn’t tell anyone what he was doing. Finally, he put a large dose into his bedside cup and succeeded in killing himself.
‘We do not seriously say that the foregoing story is the true story of Collins’ death,’ Archibald concluded. ‘The theory that Collins murdered Andrews and afterwards committed suicide may not be, prima facie, as strong as the elaborate and well-woven theory on which the Crown has obtained a conviction; but, still, it is one of the many hitherto unconsidered explanations of this mysterious crime.’ He argued that the Crown had perfected its case as it went along, and that little incidents which would be meaningless outside the Crown’s case or would pass as the words and actions of a half-tipsy woman had become laden with significance when viewed through the prism of their theory. Many of these incidents would become unimportant again if his new theory was argued, while others would present themselves as powerful sources of confirmation.
Significantly, for example, his theory offered a motive for Collins’ death whereas the Crown had been unable to provide a motive that adequately explained Louisa’s decision to kill him. ‘All this we do say while believing Mrs Collins to be guilty,’ Archibald added with brutal honesty, ‘but we have lived to be disillusioned of many ideas just as strong as that which we entertain concerning the guilt of Mrs Louisa Collins.’
In his own deliberations about the verdict, Archibald had reached the conclusion that the question of Louisa’s guilt or innocence was not the primary issue, but whether the jury had reached its verdict in a manner that invested it with legal certainty. Yet how could the verdict have legal certainty if the jurors were victims of fallacious arguments and if the defence hadn’t the skills to adequately counter them? Moreover, while there should be legal certainty to justify a guilty verdict in any trial, there must be the highest moral certainty to justify an execution. And how could the highest moral certainty exist when twenty-four men—or thirty-six, if the Andrews jurors were included—had deliberated long and hard without being able to reach that necessary legal certainty?
Surely, the absence of legal and moral certainty should serve as an impassable gulf between Louisa and the gallows. ‘Men should never voluntarily put it out of their power to unsay a thing said, to undo a thing done,’ he warned. He reminded his readers of the recent reports about two English prisoners found innocent after ten years of hard labour and the impossibility of freeing them if they had already been hanged. The men were tried before a British jury under British law. Would a Sydney jury have done any better?
• • •
As the gallows clock kept ticking, letters continued to be written in cottages and terraces, farmhouses and mansions, not only in New South Wales but all across the country, as if the final ‘death’ or ‘mercy’ decision would rest on the number of different arguments proposed.
Community tension increased. And when the community wasn’t happy, one group of men soon learnt about it: those who occupied the most influential house in Sydney.
Chapter 37
The punishment of death was not intended by the Author of life to be entrusted to the fallible discretion of ordinary human governments.
Henry Parkes
Ninian Melville had been reading the reports about Louisa Collins’ case and was among those troubled by her situation. The one-time undertaker with his long black coat, bulbous pipe and colourful stories had been reincarnated as the member for Northumberland. In that role, he had decided to bring his concerns about Louisa’s case before the Legislative Assembly. Fortunately, parliament was in session although little was getting done.
Relations between Sir Henry Parkes’ government and George Dibbs’ opposition were tense and acrimonious. The financial estimates needed to be completed before parliament closed for Christmas yet the tussle had become ‘a veritable tug-of-war’—vented the Sydney Morning Herald—‘with the whole Parkes’ clientele walking off with the government end of the rope while a batch of gesticulating iconoclasts struggle manfully at the other end, figuratively howling, “Stop thief!” ’ During election rallies two years previously, Parkes had promised to extricate the colony from the government’s financial slough if his men were voted into office. Once he held the reins of government, though, he realised that the much-maligned deficit was his own government’s biggest windfall. Others, who saw through the trickery and deceit, begged the leaders to stop behaving like greedy, petulant children and to start putting the colony’s welfare first.
Melville, a Dibbs supporter, knew that he couldn’t randomly introduce the subject of Louisa’s execution. What topic under discussion would be appropriate? He decided to raise the matter on 19 December under the guise of discussing the financial estimates of the justice department.
‘I trust that the remarks I am about to make will not be misunderstood and that what I am about to say will be received in the spirit in which it is uttered,’ he began.
A look of confusion crossed the faces of some of his companions. It seemed an odd beginning for such a dry subject as the justice department’s bills; however, the ‘bird of evil omen’—as he had been nicknamed—had the floor and no one interrupted him.
‘I intend to refer to the case of the woman Louisa Collins.’
Some were reminded that ‘noisy Ninny’—he of the ‘nimble lip’—had once been the butt of Henry Kendall’s scathing wit in The Song of Ninian Melville. Was the ‘windbag
’ about to commence another ‘howling swell’ in the voice described by a political commentator as being as loud as a trumpet and as discordant as bagpipes?
‘I admit at once that the decision of the Executive could be justified and defended, but I think the circumstances of the case justify me in asking that the decision should be reconsidered.’ He mentioned some of his concerns about Louisa’s case, including the Crown’s relentless attempts to bring her to trial, and he challenged the Minister for Justice to provide a parallel case.
The chairman was used to members attempting to steer parliament’s time in their own direction. ‘I will point out to the honourable member that your remarks are scarcely relevant to the question before the committee.’
Aware that his action would be open to challenge, Melville had prepared a response. ‘With a view to putting myself in order,’ he replied, ‘I intend, as a matter of form, to move a reduction in the salary of the Minister for Justice.’
Parkes thought this an outrageous ploy. ‘The Minister for Justice had really nothing to do with the case!’ he protested.
‘Perhaps the Minister for Justice was not directly responsible for the course taken by the Crown in this prosecution,’ Melville admitted, ‘but the honourable gentleman is the only minister in the House who represents the Department of Justice. There is no attorney-general present.’
‘The attorney-general has nothing to do with it!’ Parkes exploded.
‘The attorney-general has everything to do with it,’ Melville declared firmly, ‘for he filed the bill which caused this woman to be placed on her trial.’ He told the House that he was not going to argue that the woman was innocent, that although there were doubts about the evidence he would accept the inevitable and say that she was guilty. He also recognised that, in confirming her sentence, the Executive Council had not acted improperly. With the judge’s report and the jury’s verdict before them, and with no fresh facts or appeals offered for their consideration, they had little alternative but to let the law take its course.
