23

FRIDAY 28th JULY

THE THIRD AND FINAL DAY OF THE TRIAL

IF DAVID ROSE WERE to be hanged, so it seemed to Tom, it would be for a pipe. Every witness who testified to have seen the prisoner smoking was asked to identify a pipe from a selection offered. And so the theme continued on this, the third day. Trooper Brady, Sergeant Telford, and Constables Mansell and Dawson each declared — some for the second time — that the pipe identified was not his and that it wasn’t he who had placed it on the meat safe. Nor had any of them seen it on the meat safe — a point Tom still found curious. Only Detective Walker had noticed it there, at least until Detective Williams took possession of it a week after the murder.

The outstanding matter of the identification of the hairs on the marital sheets was clarified mid-morning when Sydney Gibbons, the analytical chemist, and Detective Walker were recalled.

Walker informed the court that at ten past eight o’clock the night before he had taken four hairs from George Stuart’s head and four from his beard. With Stuart in Daylesford, this had necessitated considerable travel, and trouble in finding the man.

‘Yes,’ Gibbons said in reply to Smyth, ‘I received the hairs from Detective Walker.’

‘And on examining them, what could you conclude?’

‘Only that the curly hair found on the sheets might be the husband’s, or the prisoner’s.’

The anti-climax was farcical, and Pearson Thompson, with a broad, incredulous grin and much head-shaking, indicated that he had no questions for the witness.

Tom could understand why the prosecution should posit the pipe as the key link between David Rose and the murder scene, but the stowed shirt? What did it matter if it was Rose’s, and if he chose to hide it? The bloodstains on it were mere specks, and could not even be verified as human. Still, the prosecution called two further witnesses to describe in detail the attire they had seen the prisoner wear in the time they had associated with him in various employments. But now the prosecution unwrapped something bigger: the foreshadowed testimony of Mr Michael Wolf, the man with whom Rose had worked at Dr Coates’s farm after he left Cheesbrough’s. There was glee in Smyth’s demeanour now, like that of a poker player about to lay before all a winning hand. Tom recalled Smyth’s preview of Wolf’s testimony in his opening remarks, and how the gallery had been horrified by a mere taster of what might come.

Tom watched this witness settle himself in the box, legs slightly apart, his hands before him holding a peaked cap. If there was anything lupine about him, it wasn’t apparent; the man was slender, with darting eyes and a wary manner. Fox would be apt, Tom thought. The man even had red hair.

‘On Sunday, we were together in the hut,’ Wolf began in answer to Smyth. ‘I was lying on the top bunk. The prisoner asked me to hold a neck-tie — a black silk one.’

‘What time was this?’ Smyth said, as much to raise the suspense as for clarity.

‘This was eleven o’clock. I was stretched in the bunk, reading a newspaper. He wanted me to hold the tie so he could sharpen a razor. I did so, lying on my bunk. He commenced sharpening and I said, “It is a good razor.” He said, “Yes, it is a good razor, that it cut a person’s throat.”’

It was the second time the jury had heard this, but there was no diminution of the horror of it. Tom wondered whether Wolf’s testimony was being rendered all the more believable because it was familiar. Was this a clever ploy by Smyth? He looked at the jurors, and wondered just how wise this assembly of country shopkeepers could be to the wiles of a sharp lawyer.

‘How did you react to this horrifying revelation?’ Smyth said.

‘I said, “Whose throat did it cut?” And he said, “It would not be right for you to know everything.” I told Rose I would break it into pieces sooner than use such a razor!’ Wolf thumped the railing. Smyth let a moment pass, before proceeding.

‘What did you do?’

‘I continued lying in my bunk.’

At this, Tom’s eyebrows rose; it seemed that Wolf’s indignation had escalated considerably over the intervening months.

‘Did you have other conversations with the prisoner?’ Smyth said.

‘I did. The morning before, on the Saturday, he asked me if I knew anything of the Daylesford murder. I said no, and he said, “A person came down the chimney and cut the deceased’s throat when her husband was on night-shift.” He said that her throat was cut, and “he likely got his will of her”, and that it was “just the price of her or of any other person who served a man as she did.”’

The court was suddenly alive with the sounds of sudden inhalations, of groans, of mumblings and whispers. Jurors shifted uncomfortably in their seats, and all — Tom included — cast looks to the man in the dock. It seemed necessary to put a face to the crime, as if doing so would make it comprehensible.

Smyth pressed on.

‘Tell us, Mr Wolf, did the prisoner speak about this most grave matter on other occasions?’

‘He did, several times over a few days. He seemed very excited about it. When he spoke to me, he asked what I thought of it. He asked me, “Supposing a man done it by himself, could they bring any evidence against him, or he be found guilty of it?” I said I knew nothing at all about that.’

‘And how long was the prisoner at Coates’?’

‘Eight days. He left on Sunday afternoon, the 8th of January, after an altercation with Doctor Coates.’

Pearson Thompson had been busy taking notes throughout this testimony, and was quickly to his feet when Smyth resumed his seat. Wolf seemed immediately on his guard, as if steeling himself for questions he would rather not answer. Thompson offered no reassuring smile; instead, a disbelieving smirk.

‘Mr Wolf, tell the court a little about yourself — what work you do, how long you’ve been in this colony …’

‘I’m a labouring man, from Limerick, Ireland. I’ve been a year in this colony. I was in the constabulary, but left of my own free will.’

‘Well, a policeman’s salary is not all that grand, is it?’

‘I was paid two pound thirteen shillings a month. It was sufficient.’

‘You would have heard of the £200 reward posted for the apprehension of Mrs Stuart’s killer, no doubt?’

‘I did. Though I don’t expect to get any of it.’

‘Really? After that testimony you just gave to my learned friend? Was there a witness to the conversation you had with the prisoner?’

‘No.’

‘When did you hear about the murder?’

‘People were talking of it on Saturday.’

‘And when did you read about the murder?’

‘I read it in the paper on Sunday, and the conversation was on Saturday.’

‘Saturday the 31st December?’

‘Yes.’

‘Which paper?’

‘The Argus, but an account of the murder wasn’t in Saturday’s Argus. That was the paper I was reading, and the paper the prisoner saw. I saw the account of the murder on Sunday, and the conversation with the prisoner about the murder was on Saturday.’

‘But people were talking about the murder on the Saturday.’

‘Yes, but I didn’t get to hear of it. I had heard nothing of the murder on Saturday, when the prisoner was speaking to me at work. He told me he had come from Daylesford.’

‘Maybe the prisoner read about the murder in the paper, or heard about it from someone.’

‘He didn’t say he’d read the paper or heard any rumours. He had not been in Kingston, and the hotels were closed.’

Tom was confused. Wolf seemed to be making suppositions he was not entitled to make. Surely the jury would see that. Or were they less concerned with examining precisely what Wolf had said than impressed by the sense he conveyed of something being not quite right? Any juror not paying full attention — and there seemed to be a few, if vacant looks could be so interpreted — might simply defer to others when considering testimony. They didn’t want to have to think; they wanted to be told, to be reassured, that their verdict was the right verdict. If this were the case, the prosecution would win the day, for Smyth’s performance was polished and assured. Thompson’s, though it had its lucid moments and minor victories, was patchy, and at times bewildering with opportunities not taken to ask important questions. Nevertheless, weren’t the facts on the side of acquittal, Tom wondered? If only Otto could be here to offer an expert assessment.

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 murder 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 with 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.

‘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 trough 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 and 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.’