by Carol Baxter
One man declared that Louisa should hang because her deeds were worse than those of Jack the Ripper. ‘Hers is a crime not of butchering of the few horrible minutes, but the torturing, hour by hour, day by day, of those who depended on her for loving sustenance instead of the worst of all, slow murder.’
Another argued that she shouldn’t hang because women weren’t smart enough to know what they were doing. Are you serious? mocked a third. ‘What man or woman can be said to be stupid who can plan a murder in such a manner that he or she can subsequently haggle three consecutive juries?’
• • •
‘If the champions of Louisa Collins want to obtain a commutation of the death sentence, they would do well to devote their attention to finding solid rather than sentimental grounds,’ declared the Sydney Morning Herald. The editor—an ardent supporter of the death penalty—said that those begging for mercy had offered three arguments to justify their plea: that the condemned was a woman; that previous juries had been unable to agree upon a verdict; and that it was the Christmas season in the centennial year. He dismissed ‘Christmas’ as a ridiculous argument, evidently forgetting that Henry Parkes’ pleas to Governor Carrington for mercy for the Mount Rennie rapists dwelt at length on the harm to the colony’s reputation if the youths were hanged in the lead-up to the centenary celebrations.
Regarding the ‘hung jury’ argument, the editor said that its force depended entirely on the voting proportions. If a large proportion had voted for a conviction with only a single juror disagreeing, the mandated punishment should be carried out.
No doubt the editor was assuming that there were only one or two hold-outs in an otherwise landslide of guilty votes. The Crown refrained from advising him that, by virtue of his own argument, Louisa should be reprieved because the combined voting numbers in the first two Collins juries had been two-to-one in favour of her acquittal.
As for the ‘woman’ argument, the Herald’s editor suggested that the mercy advocates should reverse the situation and ask if they would be crying out for mercy if Collins had poisoned Louisa. ‘If women hold the same rights and privileges as men, and share the same advantages of the law and society alike with them, they should also share the responsibilities that their citizenship places upon them. There is no equality between men and women if there is not an equality of responsibility.’
But that’s the point, another letter-writer declared as he offered a counter argument as solid as granite itself. ‘Women are not citizens; they have no voice in enacting the laws of the country; they have to obey because they have no share, nor are they consulted, in electing the lawmakers; they have no representation in the parliament of the country, although taxed as if they are citizens. That is taxation without representation, the worst of tyrannies.’
Any politician worth his votes knew that ‘taxation without representation’ was the bogeyman that had lost Britain its greatest colony: the United States of America. Fortunately, the odd voteless woman signing a mercy petition for a black-hearted female criminal wouldn’t be likely to generate a political revolt. Or would it?
Most of the press recognised that New South Wales was at a political crossroad, that the decision made in the next couple of weeks could set the ultimate precedent in the matter of the execution of women. ‘If Louisa Collins is not hanged,’ declared the Sydney Morning Herald, ‘then we can hang no woman in time to come, for none could commit a worse crime.’
Chapter 39
It is better that ten guilty persons escape than that one innocent suffer.
William Blackstone, Commentaries on the Laws of England
As Sydneysiders pinned mistletoe to doorways and cooked their Christmas feasts, Frederick Lee’s thoughts were far from the season’s festivities. Louisa’s case had been mentioned again in parliament on 20 December, the evening after the acrimonious debate. One of Parkes’ supporters had asked the premier if the government would cover the cost of defence counsel if Louisa wanted to appeal to the full court. Parkes replied, ‘I can assure the honourable gentleman and the House that I will take it upon myself to extend every possible consideration to this unhappy woman. If it is a question of money to secure counsel for her under any supposable circumstances, certainly counsel shall be paid. In any case whatever, where any attempt may be made to place the conduct of this unhappy woman in a better light, or to serve the ends of justice in her favour, the government will render every conceivable assistance.’
With such a public affirmative, Lee took action. The following morning he engaged solicitors Slattery & Heydon to take on Louisa’s appeal. Thomas Slattery was a member of parliament—one of George Dibbs’ Opposition—so he couldn’t receive payment from the Crown, although, as he told Lee, he had no desire for such remuneration anyway. Even so, he would require official confirmation of the Crown’s offer if he were to engage a barrister to act for Louisa.
Lee wrote to Parkes to advise that Louisa’s solicitors were ready to move the Supreme Court to quash her conviction and required the government’s authorisation to engage a barrister. Cleverly, he asked that the premier appoint a Queen’s Counsel to take charge of the appeal. He justified his request on the grounds that Lusk’s experience with the case meant that he should be engaged as a junior barrister, but that bar etiquette was such that Lusk, as a long-standing member of the bar, couldn’t be a ‘junior’ to one more junior than he. Lee’s request was approved.
While some newspaper editors muttered that the Crown wouldn’t fund such a case if Louisa were a man, the Sydney Morning Herald thought it wise that the public’s concerns about her case should be openly raised in the full court before irreparable steps were taken. ‘It is impossible to calculate the disastrous effect such a blunder might have on the public mind.’
Of course, Frederick Lee was more concerned about the disastrous effect on Louisa herself if she went to the gallows unjustly.
In the meantime, Lee’s concerns had grown rather than diminished. During the recent debate about Louisa’s case, a parliamentarian had intimated that the Crown had conspired with the judiciary to oust the judge scheduled to preside over her fourth trial and replace him with a more desirable choice. ‘The Crown tried at every possible step to convict this woman,’ parliamentarian Walker had told the House. ‘It had so presupposed her guilt and prejudged her that it moved every machinery within its power in order to get a particular judge, the chief justice, to preside at the trial.’
Surely such a judicial manipulation breached the guidelines of the Westminster system, the touted separation of powers and independence of the judiciary.
There was more. The premier himself had told parliament that the chief justice explicitly refused to recommend mercy because Louisa had been ‘ably defended’. Yet her appeal would show otherwise—and, if his surmises were correct, it would show that the chief justice was well aware of the fact.
• • •
At ten am on Friday 28 December, three sombre-faced judges walked into the Banco courtroom in the Supreme Court building at the corner of Elizabeth and King streets and sat at the bench. A strange hush came over the room: not the usual diminution of sound that accompanied the ‘court is in session’ announcement, but one broken by squeaks of surprise as each individual face was identified. Among the note-taking pressmen, only the Echo’s correspondent would remark that it was ‘singular’ that the three judges hearing the appeal to quash Louisa’s conviction for murdering Collins were the same three judges who had presided over her three trials for murdering Collins.
The recently deceased William Bede Dalley would have frowned at the bench’s composition. As attorney-general, he had helped to legislate the Supreme Court Appellate Jurisdiction Act of 1884 and, in doing so, had intended to prevent convicting judges from participating in appeals. He had argued that judges were no more exempt than anyone else from holding wrongful views or from persuading themselves of their own accuracy, and that they would be likely to bring to the appellate courts an ‘intell
ectual interest’—at the very least—in sustaining their judgments. That being the case, the bill stated: ‘No Judge of the Supreme Court shall sit on the hearing of an appeal from or on a motion to set aside any judgment, order, decree, ruling or decision made by him.’
Unfortunately, the act covered civil appeals only as there was no criminal appeals court. Common-law doctrine held that the jury’s verdict on the facts in a criminal trial was final and sacrosanct. Even though the need for an avenue of criminal appeal had long been recognised, it would be another three decades—the year 1912, in fact—before New South Wales established its own Court of Criminal Appeal.
Louisa’s team suppressed any feelings of alarm at the bench’s composition. There was nothing they could do to change it and no point in complaining.
Louisa herself wasn’t present. She would sit in her cell waiting to hear the results of this last-ditch effort. Her attempt to ‘plead the belly’ had failed; the authorities had already announced that she wasn’t pregnant. Perhaps her eminent Queen’s Counsel could find a legal loophole to save her.
• • •
Law reporters from all the major newspapers were in the press gallery. Interest in Louisa’s case was so intense that even the Australian Town and Country Journal would include a detailed report in words that its readers could easily understand. Its law reporter explained that the application aimed to show that there was something so defective in the trial’s proceedings that the conviction was bad and void at law and should accordingly be quashed.
As every lawyer and court reporter knew, if a criminal trial was appropriately conducted, any resulting conviction could not be overturned. Occasionally, though, a mistake of law was made. The defence counsel could point it out during the trial; it was then ‘reserved’ for later consideration. Alternatively, if something occurred that was not noted at the time but reflected a fatal irregularity, a ‘writ of error’ motion could be moved. Louisa’s counsel would try to use one or both of these avenues to quash her verdict. If he succeeded, she would be set at liberty.
Not that the public wanted her to be set free. Not at all. But many—perhaps most—would rather that she wasn’t hanged. All eyes were focused on Queen’s Counsel Francis Rogers, the senior barrister chosen to represent Louisa, as he stood up to address the bench.
‘I wish to point out to the court that there are two points that I desire to put before the bench,’ Rogers began. He explained that his first point related to the admissibility of the evidence regarding Charles Andrews’ death, while his second point dealt with a juror’s receipt of a telegram without the judge or the defence being informed of its contents. He thought that the telegram issue was a matter on which a writ of error might properly lie. Regarding the Andrews evidence, though, the question of its reception had not been reserved at trial so he felt that the point could not be argued.
Hugh Lusk was sitting beside him at the barristers’ table—or perhaps trying to crawl underneath it—shamed by the knowledge that his legal shortcomings might mean the difference between life and death for his client. Further shame was to come: he would be the first barrister struck off the New South Wales roll, albeit for later pecuniary infractions rather than legal misconduct.
‘What are you moving for?’ asked Justice Windeyer bluntly.
‘I am moving on a writ of error to quash the conviction,’ Rogers reported. He added that the attorney-general had told him that the court was sitting only to consider the writ of error so he couldn’t see how he could argue the first point regarding the admissibility of the Andrews evidence.
Rogers was wily. He wasn’t demanding that the bench hear his concerns about the Andrews evidence as he had no legal grounds for raising the subject. Even so, he was hoping to encourage the judges to be less rigid in their application of the law—if they chose to be or if, perhaps, the attorney-general could convince them to be.
‘Of course, we are sitting here for any matter that may be legally brought before the court,’ said Chief Justice Darley, who, if it had been a civil case, wouldn’t have been allowed to sit there at all. ‘But there is no doubt that nothing can be legally brought before us now except such matters as can be dealt with on a writ of error.’
Attorney-General Simpson piped up. ‘On behalf of the Crown, I am perfectly willing that any point in favour of Louisa Collins should be submitted, and argued if necessary, and decided by your Honours.’ The government was desperate to ease the political pressure, especially if it relieved the Executive Council from carrying the burden of this life-or-death decision.
‘Why should there be a different course pursued in this case than in any other?’ Darley challenged, his hand rigidly clutching the rule book. He had no interest in political machinations.
‘I do not see why it should,’ the attorney-general agreed. A quick shuffle backwards as he placated the judges, then he gently pushed forward with his own agenda. ‘Still, if their Honours think fit to allow any points of law which the prisoner should receive the benefit of, though they might not be legally before the court, the Crown is willing that she should have the benefit of them.’
Louisa’s legal team knew they had reached a critical moment in her appeal. The attorney-general—the voice of the executive—had just given his approval for the judiciary to permit the question of the Andrews evidence to be discussed.
The chief justice refused to budge. He stated again that no question had been reserved at trial nor was any question asked to be reserved.
There it was—the admission that Darley must know that Louisa had not been ably defended. If she had been ably represented, her counsel would have asked that the point of evidence be reserved for later consideration, allowing that point to now be discussed.
The chief justice opened up slightly, saying that he had taken great precautions to ensure that the Andrews evidence dealt only with his death by poisoning and that he had refused the Crown’s attempts to discuss motive. He also reminded Louisa’s counsel that the evidence relating to Collins’ death had been introduced into the Andrews trial without the point being reserved in that instance either.
And there it was again. Darley had just told the court that Louisa’s counsel had failed to ably defend her a second time.
Darley added that, even though the point had not been reserved, the common-law judges had met in the aftermath of the Andrews trial to consider the admissibility question, knowing that Louisa faced another charge. They felt that they needed to decide what course of action the court should take if the same type of evidence was submitted in a future trial.
Frederick Lee hadn’t known this. It was a new and startling piece of information. It also proved beyond a shadow of doubt that the chief justice must have realised that Louisa was not ably defended. So why had he said otherwise to the Executive Council?
Windeyer took up the discussion, explaining that the common-law judges had decided that the evidence regarding Andrews’ death was just as admissible as in a case of forgery or passing bad money where evidence was offered to show that it had happened before. He added, ‘Where a number of persons died by poisoning, you could not shut out from consideration the fact that they all died in the same way, showing that it was not a mere matter of chance, but that the persons died from poison as a matter of design.’
Justice Foster confirmed that he too had no doubts on that point. In fact, he was surprised that the evidence regarding Andrews’ death had not been introduced in the first trial.
Accepting defeat, Rogers backed away from the subject. Certainly, the judges were well aware of the importance of the Andrews evidence in convicting Louisa and had already decided that case law supported its admission. Whether Darley’s decision to admit the evidence reflected legal brilliance or otherwise would not, unfortunately, be exposed to the harsh light of a legal challenge.
• • •
Louisa had been paying more attention during her trial than her critics had realised. Through her veil of apparent disinterest,
she had noticed that a juror was given a telegram without anyone in authority checking what it said. When she eventually told her counsel, he recognised that this was the type of mistake that could be argued in a ‘writ of error’ motion. If successful, her conviction would be quashed.
Rogers asked the chief justice about his own memory of the telegram incident. Darley reported that he couldn’t recollect seeing anything at all—not a telegram nor a juror receiving something that might have been a telegram. However, the Crown prosecutor said that he remembered seeing a juror receive some sort of communication and calling out his answer, ‘It is all right.’ They all knew that the only way members of the public could inform a sequestered juror about matters of personal importance was via a telegram. So what had this particular telegram communicated?
Darley grumbled, ‘Is every trial to be upset because something gets into the hands of a juryman in this way?’
‘I may say that I cannot think of anything more dangerous than an unopened telegram going into the hands of a juryman,’ countered Rogers. ‘I do not say that there was anything in this telegram, but in the case of some great political trial, a communication might be handed to a juryman which would have the greatest possible influence upon him.’
After further fruitless discussion, the court adjourned until two pm so a clerk could make enquiries at the telegraph office. During the break, the juror himself was found. He advised that the telegram was merely a request to know if he needed any clothes in the event of further detention. The telegram confirmed his recollection.
Chief Justice Darley was the first to provide his opinion. He said that to accept a writ of error on the matter of the telegram would require evidence that some mischief had been caused by its introduction and there was no evidence of this. Windeyer said that if they found error in this instance they would be setting a dangerous precedent, that plans could be made to send innocuous communications to jurors in the hope of overturning unwanted verdicts. Foster dismissed any suggestion of irregularity. All three pointed out that, having heard the cases themselves, they also thought that the evidence against Louisa was compelling and that she was guilty of murdering both husbands. With the thump of a gavel, they refused Louisa’s application for a writ of error and confirmed her conviction. Her last avenue of judicial appeal was now closed.
