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Chapter XX
A Murder Charge that Failed

On the morning of December 8th, 1917, Christchurch was startled by the news of a brutal murder. The victim was a child, a boy about three years of age, who had been since he was a few weeks old the inmate of a private receiving-home for foundlings in a cottage in the suburb of Addington. Under our law with regard to infants, State foundlings may be boarded out under police supervision with private families who are licensed to receive them.

At eight o'clock in the morning of the day in question the child was missing from his bed, and presently his dead body was found lying in a potato patch at the back of the house. The face had been smashed in with such force that the head was sunk up to the ears in the newly dug ground. Close by lay a garden spade covered with blood, and a large screw-wrench or spanner similarly stained. There were footprints of stockinged or bare feet leading from the back door of the cottage to the place where the body was found. Medical experts thought the child had been dead about four hours.

At eight o'clock on the same evening the child's mother was arrested at the waiting-room, and page 284parcels office connected with the Christchurch Tramway Shelter in Cathedral Square, in the centre of the town. A few days later a brother of the accused woman, a driver employed by a firm of carriers in the North Island, came down to Christchurch to see me, and said he desired to retain my services for the defence of his sister. I had made it a rule, since my marriage, not to accept retainers in child-murder cases; but instead of refusing to act for him, which would have appeared ungracious, I named a fee which I felt confident would be prohibitive in the case of a man in his circumstances. He expressed himself as deeply disappointed, told me frankly he could not find the fee, and returned the same evening to the North Island.

A few days later he came back, to my surprise, and brought the fee with him. He had raised part of it by a mortgage on his cottage home, and his employers, with whom he had been for many years, had lent him the rest. I had placed myself in an awkward dilemma. I pointed out that with the substantial fee he was now able to pay, he could secure the services of a very eminent criminal Counsel from Dunedin, whom I named, who had a large experience in such cases, and who had no equal at the New Zealand Bar in handling them. But my client was obdurate. He had, he said, with great difficulty raised the fee I had named, and he held me to my bargain. He wanted me and no one else. I found myself for the first time since I had been at the Bar saddled with the responsibility of defending a person accused of a crime for which, if convicted, she would certainly be executed. It was a gruesome situation, which I loathed, but I page 285saw no honourable way of escape from the position in which my own foolishness had placed me.

Prima facie, fortunately, the case for the Crown was weak, and but for a circumstance to which I shall presently have to refer, there should be no difficulty in securing an acquittal.

The following were the main points upon which the Crown relied: The child was received into a home as a foundling on February 6th, 1915, at three weeks old. From that date till November 30th, 1917, the accused had never seen it. It was a heavy, well-grown boy. She was a slim, delicate-looking girl of very slight build. She had been in domestic service in various parts of the North Island, and had successfully eluded the attempts of the police to serve her with maintenance proceedings. Towards the end of 1917, however, she was served with a summons, and after a good deal of reluctance and demur on her part, consented on November 27th to a maintenance order of 5s. a week being made against her. She was anxious that no publicity should be given to the proceedings, and wanted to be assured that the order would not include past maintenance, but should operate as from the day on which it was made. Being satisfied on this point, she finally consented to the order, and on the afternoon of December 8th, the day when the child had been murdered, and exactly a fortnight after the making of the order, she posted a 10s. note, addressed to the Clerk of the Court, with her name written on the outside of the envelope.

Some weeks before the service of the summons upon her she had made application to the central office of the Christchurch Receiving Home for page 286permission to see her child. She did not know of the address where the child was boarded out, and had not in fact seen it since a few weeks after its birth. She explained that her reason for now desiring to see it was that a friend of hers, a widower with several children, residing in the North Island, wished to adopt the child. This, of course, would relieve her of the obligation of the weekly payments for maintenance in the home. Her importunity finally prevailed, and an appointment was made with her to call at the central office of the Receiving Home at Christchurch on the afternoon of December 6th, when the child would be brought there for her to see. She saw the child for ten or fifteen minutes; she was told the name of the people with whom it was boarded out, but, for reasons that will presently appear, no hint was given her of their address.

She left the Home before the child, but was seen loitering in the neighbourhood of the tramway stop where the nurse-girl, in whose charge it was, boarded the tram, on their way back to its home. Seeing the mother on the same tram, the girl got off and returned to the Receiving Home with the child. The authorities telephoned for a taxi and gave the man strict injunctions not to tell anyone where he was taking his fare. On the following day the accused spoke to the taxi-driver on his stand and sought to obtain the information from him; but he swore positively that he had told her nothing.

On that same day, however, December 7th, the accused had apparently found out from some source in what quarter of the town the foster-parents were living, because she was seen loitering in the neighbourhood, and accosted two little girls who happened page 287to be the children of the foster-parents, and asked them where they lived. She was taken to the street and shown the house, and quite frankly gave the children her own name.

For a few days prior to this date the accused had been in service in a house in Christchurch. On the afternoon of the 7th a new dress arrived for her from Wellington by parcel post. It was a cream serge dress with a thin black stripe. She told her mistress that she was leaving that day, and did so without further notice. She packed her other belongings into a small suitcase, and put on the serge dress which had just arrived by post.

On the afternoon of the 7th she left the suitcase in the parcels office at the Tramway Shelter, paying the usual fee therefor, and getting the usual ticket. She next visited a boarding-house for "casuals" where she had stayed once before, and booked a room for the night. This room, however, was not slept in, and there was no evidence as to where she had spent the night between the 7th and 8th—that is to say, the night when the child was murdered.

On the morning of the 8th, between eight and nine o'clock, she called on a lady in Christchurch, a Mrs. B—, in response to an advertisement for a housemaid for the country. Mrs. B—— gave evidence of the interview. The girl had no references, but said that she could procure them. She was asked about her past experience in service, and finally, after fifteen minutes' conversation, Mrs. B— engaged her and gave her instructions to report herself on the following Monday. Mrs. B— remembered that at the interview she wore a white serge dress with a thin black stripe, and that she page 288looked neat and tidy; but both before the Magistrate and before the jury in the Supreme Court Mrs. B— made no other comment upon the condition or appearance of her clothes.

That evening at eight o'clock—that is to say, some sixteen hours after the murder had been committed, and about twelve hours after the interview with Mrs. B—, she called at the parcels office, surrendered her ticket, and obtained her suitcase. She was thereupon arrested.

She made no admissions of any sort on her arrest, though she gave her correct name. In answer to the question as to where she had spent the preceding night, she merely said, "Why should I tell you? It is my business where I was last night."

On being charged with murder, she spoke no word.

At the time of the arrest she was wearing the same white serge dress with the black stripe that she had worn the previous afternoon, and that she had been wearing that morning when she called upon Mrs. B—. As all her luggage other than that dress was in the suitcase in the tramways parcels office, it is obvious that if she committed the crime she must have been wearing the same white dress at that time as she wore when arrested. The detective swore that the front of the skirt to the depth of about 8 to 10 inches was quite damp and wrinkled, as if it had been recently washed. But Mrs. B— apparently noticed nothing peculiar about her dress when she called on her at eight o'clock that morning. If the dress had blood-stains on the lower part of the front of it at, say, three or four in the morning, page 289she would certainly have washed it there and then, one would think. And if she had done so, it would certainly have dried by eight o'clock in the evening, for December 8th was a scorching hot day. The detective also swore that her stockings were damp in the front, very dirty from wet soil, and that there were seeds of grass stuck in them much like the seeds of grass that grew in the garden surrounding the cottage.

The inmates of the cottage on the night of the murder were the following: in an inner room in separate beds there slept three foundling boys, the murdered child of about three, a boy between four and five, and a boy of ten. In a room adjoining the children's room, through which alone access could be had to it, slept two girls of six and fourteen. In another room opening into the passage-way, down which the guilty one must have passed, slept a young man, some twenty years of age; whilst in the kitchen, through which alone egress into the yard could be had, slept a boy, a son of the house, some sixteen years of age. What must have happened was this: the murderer or murderess entered the house by the kitchen door, passed through the kitchen where a lad was lying asleep, passed the open door of the boarder's room, passed through a room where two girls lay, and, entering the boys' room, selected by no better aid than moonlight the right child among three, carried him without waking him through the same rooms, passed the same five sleeping people again without waking any of them, and then did the child to death by means of the spade and the spanner in the manner already described, again without making any noise.

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Such was substantially the direct evidence upon which the case for the Crown depended.

On this evidence alone no jury would have convicted. A jury of trained minds, a jury of lawyers, for example, would, I think, have acquitted without leaving the box. Had I been Judge instead of Counsel, I should have deemed it my duty to tell the jury that they could not safely convict on the evidence. The Crown relied on motive, but the wish to escape a weekly payment of five shillings could hardly be regarded seriously as a motive for such a crime.

As to preparation for the crime, there was, it is true, evidence of obstinate and persistent efforts to ascertain where exactly the child was located; but as will be seen presently, she had strong reasons, very natural in a woman, for resenting the mystery with which the child's whereabouts were enshrouded. Finally, the inconsistent evidence as to marks of washing on the dress, the girl's failure to account for her whereabouts on the night of December 7th-8th, her engaging a room for that night and not occupying it—these were matters of suspicion indeed, but were ail of them capable of an explanation consistent with innocence of the crime, especially if the girl were a person of loose character who might well have strong grounds for reticence in answering police inquiries.

But the Crown's case did not, in fact, rest on this evidence. It rested on evidence which was admitted by the trial Judge, after strong protest on my part, and which I still think was wrongly admitted. Had the jury convicted the accused, I should certainly have applied to have the question of its admissi- page 291bility reserved for the Court of Appeal, and, with much respect for the trial Judge, I venture to believe that tribunal would have come to a different conclusion. The evidence I refer to was as follows:

The child was born on January 11th, 1915. On February 4th the mother left the lying-in home, carrying her baby with her. At a place called Dallington, near Christchurch, half suburban, half dairy-farming district, the River Avon runs between willows, with a public road along one bank. The drop from the crown of the road to the surface of the water is about 14 feet. The bank is covered with long grass, weeds, and willow saplings. The willow trees themselves, which overhang the river, grow out from the bank just at the water's edge.

Some time during the afternoon of February 4th the girl went down this bank and deposited the baby, warmly wrapped in a shawl, on the bank near the roots of a willow tree, and there left it. At nine o'clock that night a farmer on his way home heard an infant's cry from the direction of the river. He procured a lantern, but even with its aid it took him half an hour to find the baby.

The mother of the child managed to get away to the North Island. It was not till the following June that she was traced to a town called Palmerston North, and there arrested. She was brought to Christchurch and charged with abandoning her child. To this charge she pleaded guilty, was sentenced to two years' imprisonment, but was released in January 1917. It was not until some time towards the end of that year that the police again got in touch with her, and began to threaten her with civil proceedings about maintenance.

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The Crown proposed to lead evidence not merely of the fact that the accused had been convicted of abandoning the same child nearly three years before, but of all the circumstances associated with her conduct on that occasion. The Crown produced a survey plan of the locality showing its loneliness, the remoteness of the spot from houses, the proximity of the tree to the water's edge. The farmer was also called to speak as to the difficulty he had in finding the child in the dark. I relied upon the doctrine laid down in "Rex v. Bond "(1906, 2 K.B. 389), and argued that such an act was too remote in time to constitute evidence of similar motive.

To my astonishment, however, the trial Judge, Chapman J., now Sir Frederick Revens Chapman, held the evidence admissible as showing the same motive and the same form of malice towards the same individual throughout, and I had to make the best of it. In so holding, the Judge, in my opinion, went further than was warranted by any of the earlier authorities, and my satisfaction with the verdict of "Not Guilty" was not a little damped by the fact that this robbed me of the opportunity of testing the Judge's ruling in the Court of Appeal, or if need be, in the Privy Council.¹ The admissibility of the evidence was argued by my friend Mr. S. G. Raymond, K.C., who prosecuted on behalf of the Crown. But the point was taken originally by the Judge himself, and I have often wondered whether my learned and very able opponent felt quite easy in his own mind about the decision, and whether he was not in fact a good deal relieved when the jury brought in a verdict of "Not Guilty."

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The task before me was no light one, but yet I felt, and I still feel, that a conviction upon this evidence would not be safe. The difficulty was not so much that the jury were made acquainted in the course of the trial with the fact of a previous conviction in respect of the same child, but that they had placed before them a body of evidence three years old which could not be adequately tested by cross-examination nor rebutted, and from which the jury might easily infer something the accused had neither pleaded guilty to nor been convicted of, namely, an attempt to murder the child. I must contrive somehow to make that appeal to the sporting instinct which seldom fails with a British jury, to make them realise that the introduction of this stale evidence to suggest motive was not giving the accused woman a fair chance. I must also, before the time came for my address, create an atmosphere of protectiveness; no appeal to sympathy would, I felt sure, weigh with that jury, nor was it warranted by the circumstances of the case. But it should be possible, with this unusual kind of evidence led against her, to make them feel subtly that they must protect the woman where the law appeared to press hard upon her.

The surest way of creating this protective attitude in the minds of the jury was to appear to neglect her interests myself. It was, of course, no part of my case to attack or even throw doubt upon the evidence for the Crown. It was not the truthfulness of that evidence that was in question, it was the inferences to be drawn from it. There were in all twenty-seven witnesses examined for the Crown; I cross-examined only six or seven of them, and that very briefly.

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Here let me digress for a moment to refer to a question which I did not ask, though strongly tempted to do so, but which, had I asked it, would have made impossible what afterwards proved to be one of the most effective parts of my address to the jury.

It will be remembered that between 8 a.m. and 9 a.m. on December 8th the accused had an interview with Mrs.B—. It was clear that the white serge dress she wore at that interview was the dress she must have worn if and when she committed the crime. Mrs. B—neither in the Court below nor before the jury made any remark upon the appearance or condition of her clothes. Yet the detective swore that when he arrested her at 8 o'clock in the evening the front of that very dress to a depth of 8 to 10 inches was damp and wrinkled. In this matter the police evidence was corroborated by that of a medical man who saw the accused within half an hour of her arrest. If Mrs. B— had observed anything exceptional about the girl's dress, Counsel for the Crown would surely have elicited from her such an important piece of evidence. Here was my temptation. If I had dared to ask Mrs. B—whether she had noticed blood-stains or marks of recent washing on the dress, and if she had answered "No," the case for the Crown would have been enormously weakened. I knew Mrs.B— personally; she was not the kind of woman who would engage a domestic servant without first looking her over from head to foot for signs of untidiness or slovenliness in her attire. I had actually made up my mind to take the risk, but at the last moment intuition came to my rescue page 295and I didn't. When the jury had retired, I spoke to Mrs. B— and asked her what her answer would have been if I had put a question to her upon the matter, and this is what she said:

"I should have answered that when the girl came to see me I was in bed; the whole time we were speaking she stood by the side of the bed, and I never saw anything of her dress below the knee"

As one witness after another left the box with the laconic "No questions, your Honour," from me, the jury must have begun to wonder whether I was going to put up a fight for the woman at all. I had, as a matter of fact, personally attended the preliminary hearing in the lower Court, and knew exactly the case to be presented against the accused. It was not even necessary, therefore, to take a note, and I pointedly abstained from doing so. I sat with my back to the jury, and during the greater part of the two days occupied by the Crown witnesses I was apparently the most indifferent person in the Court, drawing horses on the blotting-pad in front of me, wiping my monocle, and occasionally appearing to stifle a yawn. The climax of my apparent indifference must have been reached, I think, when at the close of the Crown's case the Judge asked the usual question, "Do you call evidence for the defence?" and I answered, as though awakened out of a reverie and in a tone intended to indicate polite boredom, "Er—no your Honour—oh no." If I know anything at all of the mental processes of an average jury, I venture to think that I had got those twelve men into a mood of indignant protest against my lackadaisical indifference, and a fixed determination to see to page 296it that they, at any rate, would overlook nothing that might tell in her favour.

After Counsel for the Crown had summed up his case I rose to address the jury. I had not a scrap of note to refer to. I spoke to them earnestly for a few moments upon the very grave responsibility which now rested on them, and them alone, and then settled down to my address. Before many minutes had passed I felt the atmosphere subtly changed. They realised that for all my apparent indifference I knew all about that case, and in the course of a speech which lasted three hours I don't think I lost their attention for one moment. I made no appeals to sympathy; there was no allusion to the sex of the accused except where that was absolutely necessary. I made no use of rhetoric, and I don't think there was a single passage in my address that the most friendly critic could have described as eloquent. It was from beginning to end a colourless, unemotional, but I hope logical and closely reasoned analysis of the evidence for the Crown.

The real difficulty of the case, the admission of the evidence to which I had objected, I grappled with at the very outset. As I regard the whole case, and particularly this feature of it, as an interesting illustration of the attitude of a jury to questions of proof, I make no apology for reproducing here that portion of my address which refers to it. I am able to do so practically verbatim, thanks to the very excellent shorthand report made by one of the newspaper representatives present at the trial.

You are doubtless acquainted with that broad principle in our law which forbids the introduction in a trial for one crime of evidence that the accused page 297has at some time or other committed another crime. Our law in general guards an accused person with jealous care from the prejudice and unfairness that might arise from such a course. That is? principle of British law with which you are doubtless fully acquainted. It is not so in French law, nor in German law, nor, I think, in any law other than British law. And it is characteristically British. It does no doubt lead to many a guilty person escaping justice. But it protects infinitely more innocent persons from injustice. It is the expression in our jurisprudence of that same principle which in our social life we prize so highly and which we proudly call "the British sporting instinct."

But, gentlemen, there are exceptions to that principle, and one is this, that on a charge of murder, for example, evidence may be given of previous acts, attempts, assaults, threats, or expressions of ill-will which suggest the motive which instigated the commission of the offence with which the accused is now charged. And such previous acts may be proved, notwithstanding that they involve proof of an earlier crime, provided that the two sets of circumstances are so closely related, so mixed up together, as to form practically one part of a chain, one series of acts constituting a single transaction.

You heard me take formal objection to the evidence, and you heard his Honour overrule that objection. I ventured to submit that the present case did not come within the exception. But his Honour has ruled against me, and the evidence, on that ruling, has been properly tendered and admitted.

It is for you, however, to say what weight is to be attached to that evidence. You will remember, gentlemen, that it is relevant to motive, and to nothing else than motive.

Now, what is it you are asked to infer? Why, page 298this: that the motive which induced this woman to abandon an illegitimate child at three weeks persisted in her mind and instigated her to murder the same child at three years—and to murder it in a peculiarly inhuman and revolting manner.

Is that an inference which appeals to you, gentlemen, as a necessary inference—or even as a commonsense inference? We know, and it is only too true, that girls who have given birth to children out of wedlock do unhappily abandon them in a large number of cases. Sometimes they abandon their infants by giving them in adoption: that is not a crime, but it is an immoral thing to do—much more immoral, I venture to think, than the act of foolish passion which led to their conception. Others procure their premature miscarriage; others conceal their birth; others abandon them as this woman did by the roadside; others—and these are the most wicked—murder them at birth.

But what is the motive In each of these cases? Shame, desire to be rid of the burden of motherhood, mental distress, perhaps, and reaction from a recent confinement. Such cases are unhappily numerous. But how many of such mothers who soon after childbirth desert their children or even put them to death in their distraction—how many of such would after a three-year interval brutally murder that same child?

This child was not a burden to its mother—unless you can construe into a burden an obligation to pay a few shillings a week for its keep; the shame had been incurred; the punishment for the abandonment had been suffered; the mental distress of childbirth must have long since passed.

Can you, gentlemen, find any similarity, any analogy, any relevance whatever, between the motives which instigated this girl to leave her baby in a tree by the roadside the very day she left a page 299maternity home, and the inhuman motives which must have instigated her, if she be guilty, in doing it to death in this unspeakably brutal way nearly three years later?

I suggest, gentlemen, you will come to the conclusion that the motives in the two cases are so widely different, that the circumstances have so changed, that so long a time has intervened, that it would be most unsafe to allow your minds to be influenced in the least degree by the proof, which has been admitted, of this earlier crime.

His Honour will direct you that in considering it you must consider it only from the point of view of motive; you must not let it influence you merely as showing that this woman is not a good woman, that she has offended against the law before. Well, gentlemen, those refinements are easy enough to make if you have trained legal minds. But they are dangerous for a layman: the danger is that you may not succeed in making the distinction, that you may be unconsciously prejudiced and unfairly biased by the evidence. If you agree with me in this, you will follow the only safe course and dismiss this portion of the evidence from your consideration as early as possible in your discussion, and proceed to consider, as I am now about to do, that part of the evidence, and that part only, which bears directly on the crime which someone undoubtedly did commit in the early hours of the 8th December last.