Chapter IV: Part II: The Crown Case (2)

Dunstan was then called to corroborate Harding. He was awaiting trial with Harding for housebreaking, and at the Police Court he had pleaded guilty, and had exonerated Harding. It should be recalled here, however, that when the two men came up for trial, and the same course was adopted, the jury declined to accept the story that Harding knew nothing of the charge, and he was found guilty of receiving. Dunstan had twice previously been convicted of larceny, and he was one of the five that were in the remand yard on January 23. His story was that he heard certain answers made by Ross, but only one question put by Harding. The answers were: “I was talking to the girl”; “if they do find any wine inside her, that ain’t to say I gave it to her”; “my brother was serving”; “I left my girl at half-past 10”; “I ain’t the only man that has got a disease”; “no, a bike”; “I will ask the old bastard what he was doing there at half-past 1”; “Ammunition Works.” The only question he heard Harding ask was: “How was she dressed?”

Dunstan admitted that when Ross came back from the inquest Ross said to him: “That is a nice cobber of yours, to go into the box and swear a man’s life away.” Dunstan had not been called at the inquest. He said that he first told the Governor what he had heard on the Friday or the Saturday two or three days after the inquest. He had had opportunities for quiet talks with Harding in the meantime, but there had been no conversations on the subject of Harding’s evidence. He said he had never read in the papers any account of Harding’s evidence. Harding had asked him had he heard the conversation, and he had told Harding that what he had heard he would tell to the governor of the gaol. He had not told Harding, because he “didn’t have much time for him.” Being shown a copy of the “Herald,” with Harding’s photograph in it, and being asked if he had seen that before, he said: “I do believe I did.” He couldn’t say when it was, but it was when it was in gaol. He had said that he never read a paper in gaol, but that didn’t mean that he had never seen one. It was only a passing glance of the “Herald” as he walked up and down the yard.

Harding, who had been out of court, was then recalled, and further cross-examined by Mr. Maxwell. He said that, on the day following the inquest, he and Dunstan were reading a paper, either the “Age” or the “Herald”—that is, he was reading it aloud, and Dunstan was looking over his shoulder. He had often had papers lent from the adjoining yards, and on these occasions Dunstan got the benefit of them.

ROSS’S MOVEMENTS.

We now come to a different class of evidence—the evidence which purported to tell of the movements of Ross on the important dates. The conflict between this evidence and the supposed confessions and the inherent improbability of the evidence itself will be dealt with later.

David Alberts, an eccentric-looking individual, who described himself as a vaudeville artist, residing at 47 Little Smith Street, Fitzroy, said that he left home about half-past 6, and between half-past 7 and a quarter to 8 he walked into the Arcade through the Little Collins Street gate. Opposite the wine saloon he saw a man whom he now recognised as Ross. The man asked him if he could lend him a pencil. Alberts said: “I am sorry; I have not got one,” and walked on. He went as far as the middle of the building, and seeing there was no light in the office upstairs, he walked back, and the man was then standing in the doorway of the wine saloon. He recognised Ross by his gold teeth and by his hair, which was brushed neatly back. It would, he said, be about three weeks after the incident that he went to the Detective Office and reported it. He knew the reward was offered in the meantime, “but,” he said, “I was looking for no reward.” It should, however, be mentioned here that he has shared in the reward. It may also be taken as certain that, if Alberts was honest, he was mistaken, for the evidence that Ross was at home between 7 and 8, and came back to Footscray on the tram with Mrs. Kee and George Dawsey, may be accepted as being beyond question. Apart from that, however, it is simply incredible that a man who was engaged in the gruesome task of washing away the bloodstains of a murdered victim, and who would have the deepest interest in keeping his presence in the Arcade at an unwonted hour a close secret, should have gone out deliberately to ask a passer-by for a lead pencil, which could be of no imaginable service to him.

Alexander Olson, who described himself as a phrenologist, carrying on business in the Eastern Arcade, said that, between 9 and a quarter past 9, he walked out into Little Collins Street, to go to a Chinese laundry, and he saw the accused man pacing up and down between the back gate of the Eastern Market and the back gate of the Eastern Arcade. How this evidence, so far from being damaging, supports the truthfulness of Ross’s statement to the police, can be seen by a reference to the statement, for this was the exact time that he was waiting outside the Arcade gates for Gladys Wain.

Then we come to the evidence of George Arthur Ellis, “and very important evidence it is,” said Mr. Justice Schutt in summing up to the jury. Ellis keeps the “lodging-house” previously referred to as the old Adam and Eve Hotel. On the night of the 30th December he was sitting at his front door, at the corner of Alfred Place and Little Collins Street. He saw Ross a little after 9 on that night. He next saw him before 10 o’clock, then at 11, and two or three times after that, until ten minutes to 1, when the witness wound his clocks and went to bed. Ross was walking in and out of the Arcade. There was an arc lamp, hung over the centre of the street, between where the witness sat and where Ross was walking up and down. At a quarter to 1 two Italians came out of the Arcade and bade him good-night. Some time after he had gone in he heard a loud report, and he rushed out on to the pavement, and looked up and down for a few seconds, but saw no one. He had never before seen Ross until that night. The light was almost equal to broad daylight, and he admitted that he would be as obvious to Ross as Ross was to him. When the two Italians came out the man walked down towards Russell Street. They went up to Exhibition Street, and when Ellis turned to look again Ross was back at his post. He would walk in and out of the Arcade. Half the gates were open, and it was very dark inside. He first informed the police of what he had seen on the Sunday after the tragedy. His house, he said, was a lodging-house—night and day. Anyone could get a bed for the night; they paid in advance, and were sometimes gone before he got up. He identified Ross on the day he was arrested—January 12. He had known the wine shop for years, but had never been in it, though he had seen some “terrible bad characters there,” and had seen some “terrible carryings on” there as he had been coming through from Bourke Street. It was his habit to sit outside his lodging-house every night as long as it was fine.

The two Italians, Michaluscki Nicoli and Francisco Anselmi, had been in the Italian Club until about a quarter to 1. The club is at the Little Collins Street end of the Arcade, upstairs, and the stairs go up close to the wine saloon. There was an electric light upstairs, and as they came down they noticed a light in the wine shop. When they got into Little Collins Street one of them saw a man walking towards Russell Street. They said “Good-night” to Ellis, and walked up towards Exhibition Street. A third Italian, Baptisti Rollandi, the caretaker of the Italian Club, came down about a quarter of an hour or twenty minutes after Nicoli and Anselmi had gone, to lock the back gate, and he saw no light in the wine shop when he came down. It was his duty to lock the gate when the last member had left the club, whatever time that happened to be.

A curious piece of evidence came out quite incidentally whilst this last witness was in the box. Ross, at about 3 o’clock, or half-past 3, on the Friday, had asked Rollandi for the loan of a key of the back gate. The witness said: “I can’t give my key to anybody; go to Mr. Clarke, the manager; he might give you one.” This looked suspicious, until it was revealed that Ross wanted the key in order to get into the Arcade early on the Monday morning to remove his things from the saloon, Saturday being the last night of the license, and Monday being the New Year’s Day holiday. The prisoner did get the key from Mr. Clarke on the Saturday afternoon, and did remove his things early on the Monday morning. This was mentioned to the police in the statement, was no doubt verified by the detectives, and was not challenged when Mr. Clarke was called. So far, therefore, from the circumstances of Ross wishing to borrow the key being incriminating, it was entirely in his favor, for it showed he had no key of his own, and is almost conclusive evidence against his having told Harding that he had a key, or having told Matthews that he came back “between 1 and 2,” when he could not have got into the Arcade unless he had a key.

THE SHEEN OF GOLDEN HAIRS.

Two other pieces of evidence, of still another class, were used against Ross. One was that hairs, which it was claimed were identified as Alma Tirtschke’s, were found on blankets taken from Ross’s house at Footscray on January 12; the other was that pieces of serge, which it was claimed were identified as being part of the child’s dress, were found on January 27 on the Footscray road, thus confirming the supposed confession to Harding.

The story of the hair is one of the most remarkable and one of the most unsatisfactory, in a case every feature of which is unsatisfactory. On January 3, the day Alma Tirtschke was buried, Constable Portingale went to the house where the body was lying, and with a pair of scissors he cut a lock of hair from the left side of her head, just over the ear, “and about six inches from her head.” When the detectives went to Colin Ross’s house to arrest him on January 12, nearly a fortnight after the tragedy, they took two blankets from a sofa in a vestibule. “Brophy and I,” said Piggott, “opened one of the brown blankets which were folded up. I turned the blanket back, and I could see the sheen of what appeared to be some golden coloured hair. I said to all present: ‘Fold those blankets, and carefully place them in the car; they must go to the Government Analyst.’” They did go to the Government Analyst next day. Where they were kept in the meantime was not disclosed on the trial, except that Ross, at about 2 o’clock on the afternoon of his arrest, saw them lying across the back of a chair in the clerk’s room of the Detective Office. The detectives, in the room of the Government Analyst (Mr. Price), next day, spread the “reddish brown blanket” over a wooden screen, and removed from it in his presence twenty-two hairs. Five hairs were taken from the other blanket by Mr. Price himself. Mr. Price then took ten or twelve hairs from the envelope containing Alma’s hair. They had an average length, he said, of 6½ inches, the longest of them being 9 inches. Let it be remembered that these were cut 6 inches from the girl’s head. He then took the twenty-two hairs, and found they, too, averaged 6½ inches, but the longest of them were 15, 12, 10, 9 inches, down to 2½ inches.

“They were not identical in colour with the hairs in the envelope,” said Mr. Price; “they were of a light auburn colour. They were not a deep red; they were of a light red colour. They were not cut-off hairs; they had fallen out, or had been taken from the scalp somehow or other. They did not appear to have been forcibly removed. One had a bulb root, but the others did not show the presence of any bulbous portion or root, as they would if dragged direct from the scalp. I came to the conclusion that they were hairs about to be cast off in the ordinary process of nature.”

“If hairs were cast off,” Mr. Price was asked, “would there be any distinction in their colour as compared with hair that was actually growing?” “Well, I cannot say that directly,” he replied, “but the conclusion I formed, as regards the hairs I found on the blanket, was that they did not come from the frontal portion; that they had not been exposed much to the light; that they came from the back portion of the head, and that that is the reason why their colour was not as deep as those on the front portion.” The two sets of hair, he said, were “very similar.” Microscopically, they agreed, because there was a kind of coarseness about them, and when treated with caustic soda it tended to bring out the pith portion of the hair, “and that pith was identical with the hairs on the blanket.” The five hairs from the grey blanket, Mr. Price said, were “similar in colour” to the hairs on the reddish brown blanket, but that was all he had to say about them. When being re-examined, he said that his reason for thinking the front and back of the hair would differ was that in one head he had tested “the frontal portion was quite red, and the hair from the back of the head quite dark.”

On cross-examination, Mr. Price admitted that it was “several years” since he had last made an examination of hairs from any woman’s head. “It does not often come under my notice,” he added. He had made very few such examinations in his life. Not only did the hairs from the child’s head and the hairs from the blankets differ in colour, he said, but they differed in diameter, and it was possible, but not probable, that the hairs on the blankets may have come from another head. He had examined many hairs since he had conducted this particular examination, and he had, in the course of his examination, found some hairs that were as like Alma Tirtschke’s as the hairs on the blankets.

It will be shown later that Mr. Price might, on the facts which he deposed to, have been called as a powerful witness for the defence. Yet in the atmosphere that prevailed, it seemed to be assumed that his evidence advanced the case for the prosecution.

THE FINDING OF THE SERGE.

The finding of some pieces of serge on the Footscray Road, on the 26th or 27th day of January, was also relied on strongly by the Crown. Mrs. Violet May Sullivan was on the Footscray Road on January 26, and she saw certain strips of serge on the left-hand side going to Kensington. She didn’t pick them up. On the next day she read, in the alleged confession to Harding, that Ross had said that he had strewn the serge of the girl’s dress on the Footscray Road, and Mrs. Sullivan went back to the road, and on the opposite side to where she had seen it on the previous day she saw a roll of serge. She picked it up and handed it to the local police. One piece she left at home. The serge was produced in court. One piece was fairly large, in no sense a strip, looked quite new and fresh, and bore no signs, as Mr. Justice Isaacs indicated in his High Court judgment, of having lain on a dusty and busy road for nearly four weeks. Of the rest, one was a strip of a quite different texture, and looked much older than the piece. There were also a couple of other fragments. None of them appeared to have been four weeks in the dust. The serge that she had seen on the first day, Mrs. Sullivan said, resembled the fragments, but were not like the larger piece, so that, whether it was the same bundle she saw on both days does not appear. When Mrs. Murdoch, the girl’s aunt, was in the box, the serge was handed to her for identification, and she was asked to say what she had to say about it. “It is very similar to the serge she had on on that day,” said the witness. “All of it?” she was asked. “That has nothing to do with it, I should say,” said the witness, discarding the larger piece. The three other pieces, she said, were “very similar” to the material of which the girl’s dress was composed. When asked further, she said she recognised a row of stitching on two of the pieces. “Do you recognise it as a row of stitching you did yourself?” she was asked, and she answered: “No; I =fancy= the stitching there is from the old stuff I made up. I =believe= that is the stitching. It did have stitching on.” She remembered the old stitching, because she had had some difficulty in ironing it out. She made the dress out of old material. It was box-pleated, and the stuff she had in her hand =looked= to be box-pleated, =but= there was a portion missing.

Summarised, then, Mrs. Murdoch’s identification amounted to this, that she remembered there was some stitching on the dress that she had made up, and there was also a little bit of stitching on two of the three pieces handed to her which she “fancied” was the same stitching, while the fourth piece handed to her, which was part of the same bundle, “had nothing to do with it.” It was on such “evidence” that Colin Ross was hanged!

It will be remembered that Harding’s account of what Ross said was that he “tore the clothing into strips and bits, and distributed them along the road.” Yet we are asked to believe that, by some operation of the laws of cohesion peculiar to the Footscray Road, four or more of them had rolled themselves together by the 26th, and that they had succeeded by the next day in crossing the road and joining up with another and dissimilar piece of blue serge.

On January 23 the police knew that Ross was supposed to have said that he scattered the fragments of the girl’s dress along the Footscray Road. If this could have been verified it would have clinched the case against Ross, for it would have established beyond question the fact of some confession. Every effort should have been directed to clearing up this point. The road Ross said he took was clearly indicated—so clearly that it showed beyond question that Harding knew the locality well. If that is doubted, let anyone who does not know the locality try to describe Ross’s alleged route after reading the description once. If one knows the locality, he has a mental picture, as the words are spoken, which he can reproduce. If he does not, the words are words merely, and cannot be repeated without rehearsal. But the point is that, on getting this alleged confession, the detectives should have got half a dozen men to take the road, or the two roads if necessary, in a face in order to discover the serge. It was so plain, Mrs. Sullivan said, that “it could not be missed.” The local police did not find it, the detective’s agents did not find it, but a casual wayfarer stumbles across it twice, because “you could not miss it.” Piggott’s answers to questions were that, on learning of the confession, “we took certain steps,” and “gave certain directions”; and his explanation of the failure to find the serge was that his men searched the wrong road! One would have liked to have heard the comments of, say, the late Mr. Justice Hodges, on this extraordinary admission.

THE MEDICAL EVIDENCE.

The last class of evidence, though given first on the trial, was the medical testimony. It showed that there was an abrasion on the left side of the neck which extended across the mid-line, and measured 2½ inches in length by ⁷/₁₆ of an inch in breadth at its widest part. Below this, on the left side of the neck, there was a narrower abrasion, about ⅛ of an inch in width, and not extending across the mid-line. There was another abrasion on the left side of the lower jaw, an inch in length, and a quarter of an inch in breadth. There was a small abrasion on the outer side of the right eye, a small abrasion in the centre of the upper lip, another small abrasion at the back of the right elbow, and the skin of the back of the left elbow had been slightly rubbed. There was some bruising and lividity on the right side of the face. The upper part of the chest was livid, and showed small hæmorrhages. Hæmorrhages were also found in the scalp and on the surface of the eyes. There were some small bruises on the right side of the neck. Internally, there was a bruise on the left tonsil.

In view of absurd rumours that have been circulated as to the injuries to the body, it is well to give Dr. Mollison’s next words as he uttered them: “I think those were all the abrasions and bruises.” It has got abroad that there were facts about this case that were unprintable. There is no truth in the report. With the exception of one coarse sentence said to have been used to Matthews, and one coarse word said by Harding to have been used by himself, there was nothing in the case, from start to finish, which has not appeared, either literally or euphemistically, in the reputable press. The child had been violated, but the cause of death, in the doctor’s opinion, was strangulation from throttling. The violation would have led to a considerable amount of blood being lost. The stomach was opened, and contained some thick, dark-coloured fluid, mixed with food. No smell or trace of alcohol was detected, but the doctor added that the smell of alcohol would disappear fairly rapidly. In this, it may be here stated, Dr. Mollison is not supported by a number of other medical men of standing. The post-mortem examination was held within a few hours of the discovery of the body, and within about sixteen hours of the child’s death, if she died between 6 and 7. “Alcohol,” said the doctor, “starts to be absorbed almost immediately it is swallowed.” This subject was discussed at the British Medical Association Conference in Glasgow at the end of July, 1922. Professor Mellanby, who has made a special study of the effects of alcohol on heredity, said that, “after a good carouse, it had taken from ten to eighteen hours for the alcohol to be cleared out of the circulation of a man.” Now, three glasses of sweet wine is a “good carouse” for a child who probably never drank a glass of wine before. Sweet wine contains a very high percentage of alcohol. Accepting the Harding story, the girl was dead within an hour or two of taking them, and the process of clearing the alcohol out of the circulation would cease, or be greatly retarded. And still the fact remains that no trace of alcohol was found in the body.

DETECTIVE BROPHY’S BLUNDER.

That was the full case as made by the Crown against Ross, with the exception of an admission said to have been made to Detective Brophy. This admission may be stated and dealt with at once. Brophy said that, on the 16th of January, he took a man named White to the Melbourne Gaol, and confronted him with Ross. White said: “Yes, that is the man.” Brophy then said: “This man has identified you as the man whom he saw in the Arcade speaking to the little girl, Alma.” Ross said: “Oh,” and then, turning to White, he said: “What time was that?” White said about 3.30. Ross said: “Yes, that’s quite right.” Ross’s version of the conversation, as given in evidence, was that Brophy said: “This man says he saw you talking to a girl in the Arcade at 3.30, and he said: ‘That is correct.’” Brophy made no comment. It is not only clear that Ross’s was the correct account, but it is extremely hard to see how an intelligent man could have any doubt about it. Let us look at the facts.

Ross had denied on December 31, when first seen by the detectives, that he had spoken to “the girl Alma,” but had said that he was speaking to a girl at the door at about the time mentioned; in his written statement on January 5 he denied that he had spoken to the girl; when brought to the Detective Office, under arrest, on January 12, Piggott said to him: “It will be proved that the little girl was seen in your wine shop on December 30,” and he promptly answered: “That’s a lie.” From first to last he had denied specifically that he had ever spoken to the girl Alma, and from first to last he had said that he was speaking to Gladys Wain at the saloon door about that time. Gladys Wain, it should be remarked, though a married woman, is very small, and extremely girlish in appearance. Yet we are asked to believe that Ross, by a quite casual remark on January 16, made an admission, the most important by far he had made during the course of the police investigation, and that one of the detectives in charge of the case turned away from him without the slightest comment on his startling admission.

But there is the further fact that White cannot have said that he saw Ross speaking to “the little girl Alma,” for the simple reason that White did not know Alma. From that it follows that Brophy could not have said, if he were speaking accurately—and a detective should be accurate—that “this man saw you speaking to the little girl Alma.” If Ross had intended to refer to Alma, he would not, and need not, have inquired “What time was that?” The time would have been quite unimportant. If he had another girl in his mind, the enquiry as to the time was natural. In any case, the evidence never should have been tendered or admitted, for if it was sought to be proved that Ross was seen speaking to the murdered girl the proper way to prove it, according to the “rule of best evidence,” was to call White to prove it. And White was not called, not because he had disappeared, but because it was known that he would not swear that he had seen Ross “talking to the little girl Alma.”