Trial – The West Australian – Day 6

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The Trial as Reported by The West Australian Newspaper

Day 6

SUPREME COURT-CRIMINAL SITTINGS.

(Before His Honor the Chief Justice and a Common Jury.)

TUESDAY, JULY 7th.

The Court reassembled at 10 o clock, when the hearing of the charge against Warburton, Bevan, and San Qui, arraigned for the murder of Mr. Anketell was resumed.

Dr. Waylen, the Colonial Surgeon, was recalled, and the Chief Justice, addressing him, said : The evidence you have given, Dr. Waylen, is to my mind so important that I thought I would trouble you to come again to answer a few questions. Are you perfectly clear in your own mind that the stains which you subjected to scientific analysis were the stains of blood of mammalian blood?

Witness : I am.

His Honor : When did you make your examination?

Witness : On the 27th April I made the first, and on three subsequent occasions

His Honor : That would be three months after the murder. Did you find the blood corpuscles in a pretty perfect condition?

Witness : I did, especially on the boots.

His Honor : Did you use any high magnifying power?

Witness : 300 diameter.

His Honor : I have been looking at Taylor’s Medical Jurisprudence, and I find that Taylor says that if corpuscles of the form and size of those found in mammalian blood are visible under the microscope, there can be no doubt that the liquid is blood; such evidence, however, could only be received from one who had been accustomed to the use of the microscope and to the examination of blood. Taylor also said that the corpuscles, after some time had elapsed, were seldom so spherical and perfect in form as when fresh, and, in some cases only fragments of the envelopes could be seen. Do you still say that these corpuscles were in a perfect state of preservation?

Witness : The moistened ones were, but I could not discover them in the dried state at all

His Honor: You still say that after three months had elapsed the corpuscles were not broken?

Witness : They were not ; but perfect in form.

His Honor : Have you often, may I ask you, undertaken this sort of examination?

Witness : Two or three times before. I was assisted in this examinations by Dr. Stephens.

His Honor : I find that Taylor says that the power of the microscope required for such examinations as this should be from 300 to 500 diameters. You say you used a 300 diameter-the lowest diameter which Taylor says is necessary for such a purpose, and the spots were of a certain age, and you still say that the corpuscles were perfect?

Witness : I do.

His Honor : Are you perfectly satisfied in your own mind?

Witness : I am positive.

Joseph Polak, gaoler at Roebourne, deposed to hearing a conversation at the lockup between Bevan and his wife, in the course of which the former said to Mrs. Bevan that he supposed they would all have to suffer, but that there was nothing against them but the tracks.

Two or three witnesses were then recalled, to throw light upon the evidence which they had already given ; and, the prisoners’ statements before the magistrate having been put in, this closed the case for the Crown.

Mr. Stevens then addressed the jury -on behalf of Warburton. He said the crime which a few months ago startled and filled the community with consternation and which was now alleged against the prisoners, was probably the most brutal that had ever disgraced the annals of the colony and outraged public feeling, and the man or men who were charged, however innocently, with such a crime, must naturally arouse in the breast of every right-minded man a feeling of prejudice against them. Every motion, every word, every deed attributed to such men was turned into evidence of guilt, so prone was human nature to take for granted the guilt of men arrested and charged with a crime so brutal and so cowardly as this most atrocious murder. He therefore hoped the Jury would, as far as possible, approach the consideration of the evidence against the accused with an unprejudiced mind, and carefully examine and test every link in the long chain of evidence which” the Crown had put together, to connect them with this most foul and dastardly murder. If a solitary link in that chain was faulty-for there was no direct evidence connecting any of the prisoners with the crime-they must cast it aside, and the chain was broken.

Counsel then proceeded to analyse the evidence. As to the medical testimony, neither of the medical gentlemen examined could go so far as to say that the blood found on Warburton’s boot, or on the hat alleged but not proved, to have been his, was human blood ; all they could say was that it was mammalian blood. The medical evidence, by itself was therefore of little or no value.

As to Harrison’s evidence, with reference to the conversation in the well, that was clearly fabricated, and fabricated for the sake of the reward ; and he was afraid the jury would have to come to the same conclusion with regard to the evidence of that splendid witness for the Crown, Mrs. Caroline Platt. The evidence as to the tracks was also most unsatisfactory, and, so far as Warburton was concerned, in no way conclusive that the tracks were Warburton’s tracks at all much less did it connect him with this crime.

As to the evidence of the police, he thought, without desiring to cast any undue reflection upon those entrusted with the management of the case,-he thought the jury would agree with him that the whole case had been grossly mismanaged, and that evidence which ought to have been forthcoming immediately the murder was committed was not forthcoming for weeks afterwards, when the large rewards offered had a wonderful tendency in sharpening the faculties and in refreshing the memory of the most important witnesses whose evidence the Crown had to rely upon. Was a man’s life to be forfeited upon evidence so obtained, evidence defiled and distorted, by the accursed thirst for filthy lucre?

As to the change said to have been noticeable in Warburton’s manner, what man amongst them, with a horrible crime like this attributed to him, however innocent he might be would not become moody, and agitated, and distressed. Was that to be taken as evidence of guilt? Would they send a human being to the gallows because his manner was changed, or because there was a scratch found on the back of his hand, or because he was heard talking in an undertone? If so, God help us all. Yet, what other evidence was there to connect this man Warburton with the murder? Some thing had been said about his having been seen in Roebourne on the night of the murder ; but what was the value of the evidence on that all-important point?

He alluded to the evidence of the sawyer, Smith ; but what weight could any jury attach to such evidence? What credence would they attach to the evidence of -he would not call him a man, but an article who went into the witness box, and deliberately told them that he did not make this statement although he must have been aware of its importance, if true-until it was pointed out to him that a reward was offered for the conviction of the murderers, and the police had a quiet talk with him. Although called as a witness before the magistrate, he never said anything about having seen Warburton that evening in town; and his evidence, as given upon the present trial, had the strongest doubt cast upon it by the cross examination. He submitted that the whole statement, was a concocted statement; and beyond the witness’s evidence on this part of the case, there was nothing whatever to disprove Warburton’s own story that he left Roebourne the Monday to go to work as usual, and that he was not in town again until dinner time next day, hours after the murder was committed.

Mr. Julian Harper, who appeared for the other two prisoners, said the issue was so grave that he made no apology for reiterating the hope that the jury would endeavour to divest themselves of every impression they had formed of this terrible business before they came into Court. There was no effort perhaps more difficult than for the human mind to banish from it, at any given time, any preconceived notion it may have entertained ; but he implored them, in this most painful case, to endeavor to form their conclusions upon the evidence only. When he said upon the evidence only, he meant to say upon the evidence of credible and respectable witnesses ; and he was afraid none of them could say that all the witnesses put forward by the Crown came within that category. The evidence from beginning to end was merely presumptive. Blame had been cast by his learned friend upon the police, for the manner in which the case had been worked up ; but he thought the police were more the objects of commiseration than of blame. They had it on the highest authority that the world was made out of nothing ; and it appeared to him that, in its construction, the present case very much resembled the original creation. There had been absolutely nothing for those in authority to build upon ; they started with an impression, a mere baseless suspicion, and, with the exception of the medical testimony, the whole of the evidence was based upon preconceived impressions as to the guilt of the prisoners. These suspicions were apparently more strongly impressed upon the minds of the police and the detectives employed in working up the case than even of the other witnesses ; but, if he might be allowed to paraphrase the well known line, ” All things are jaundiced to the jaundiced mind,” he would remind them that all things were detected to a detective’s mind. There was one remarkable thing about this trial which he wished to call their attention to. They had all heard or read of the difference between the English and Scotch forms of verdict. The English system, as they were aware, only admitted of two forms-“Guilty” or “Not guilty” ; whereas, under the Scotch system, there was an intermediate form, “Not proven.” The difference between the last two verdicts was very marked in the result as regards the prisoner charged. A verdict of not guilty exonerated him for ever of the crime alleged against him ; but, under the Scotch verdict, a man might be again put upon his trial if any additional evidence should afterwards be discovered. We did not possess that form of verdict under our English system of jurisprudence, but there was this peculiarity about the present case, that a verdict of not guilty against the three prisoners would simply place them in the same position as if the verdict had been a verdict of ” Not proven”; for these men, at any time hereafter, if any additional evidence should be discovered connecting them with this murder, could be again indicted for exactly the same crime as they were now indicted, for today they were only arraigned for the murder of Mr. Anketell, and they could, at any future time, be again charged with the murder of the other unfortunate victim, should any additional evidence be forthcoming. Therefore, their verdict on the present occasion, if they acquitted the prisoners, would not have the usual effect of a verdict of not guilty under our own system.

The learned counsel then proceeded to dissect the evidence, casting ridicule upon that given by some of the witnesses, and notably the old reprobate Harrison and the virtuous Mrs. Platt, as being utterly unreliable, He also asked them to discard from their minds the evidence as to the demeanour of the prisoners after the murder. There was nothing, he submitted, either in the actions or conversations of these men that was not consonant with innocence, and, if the emotions and conversations of the most intensely respectable residents of the town were subjected to the same analysis the result would probably tell as much against them as it told against the prisoners. Every little word that fell from them, every change of colour, was looked upon as a sign of guilt.

O’Connell, the sergeant of police, told them that when he arrested poor San Qui he turned ” all colours” ; “another witness told them, that when he conversed to him about the murder San Qui turned ” black.” San Qui according to the evidence must possess the chameleon-like property of being able to change his colour at will. It was too ridiculous to require their serious consideration.

Dealing with the evidence as to the solitary hair found on the pick, the learned counsel submitted, in the first place, that the medical evidence rejected the hypothesis that the wound on Mr. Burrup’s head, the only wound alleged to have been committed with a pick, could have been committed by the pick produced in evidence. The point of that pick was square and blunt, whereas the wound was round and sharply defined.

There was also room for doubt as to whether the hair was human hair ; but even admitting that it was human hair, and hair out of an eyebrow, there was nothing improbable in the supposition that it was a hair from San Qui’s own eyebrow. It was in evidence that San Qui had been using this pick for digging holes, and it was likely enough that in wiping the perspiration off his brow, he might in doing so have dislodged a hair in his eyebrow which might have become attached to the pick he was working with.

The evidence as to the shirt found in the pool had, he thought, lost whatever value the prosecution might have attached to it, by what had come out in the course of the trial.

None of the evidence, in fact appeared to him likely to cause them any serious trouble. Probably they at first were led to believe that a damning piece of evidence against Bevan was his own statement that he was not in town, after going out to work on Monday morning, until noon next day,-hours after the murder was committed. The only evidence of any weight bearing against this statement was that of Mrs. Hall, who told them that she served him with a gallon of beer early on the Tuesday morning. To that he replied that it was quite possible that Mrs. Hall may have been mistaken as to the time of day when she served Bevan with the beer. It was a remarkable coincidence that Bevan himself in his statement, in which he accounted for all his movements and actions, mentioned the fact that he had a gallon of sugar beer at Mrs. Hall’s on Monday morning, and also again on Tuesday, about noon, when he came into town, after hearing of the murder.

The learned counsel in conclusion said he was going to ask the jury to give the prisoners the benefit of any doubt they might have upon their minds, but he would not do that; for he was reminded of what had fallen from the lips of the learned Judge who had recently presided over perhaps the most important criminal trial of this century, and who, in addressing the jury, said that to ask a jury to give prisoners the benefit of a doubt was mischievous. No man was entitled to anything but what the law gave him. No man ought to be convicted of a criminal offence upon an indictment which subjected him to punishment, unless that offence was fully brought home to him. Unless his guilt was proved, and proved to the hilt, the accused was, by law, not entitled to the benefit of the doubt,-he was entitled to demand that the jury should acquit him.

The Attorney General said it would be idle to pretend in a case of this kind, where nearly thirty witnesses had been examined, that every witness was equally worthy of belief (?) and there may have been parts of the case in which the evidence did not appear so satisfactory as they could wish in a case of this importance. The Crown had put before them all the evidence they had been able to produce, and it was hardly fair to say, because some of the facts deposed to were minute in themselves, that the Crown asked them to return a verdict upon those facts alone. Every light, however dim, that the Crown could throw upon this crime had been thrown upon it ; and what the prosecution asked was not that this particular fact, or that particular fact, or any other facts, should be taken by the jury as constituting evidence sufficient in their minds to bring home this crime to the prisoners ; but whether the whole of the facts put together did not lead to the reasonable belief-a belief so reasonable that if it occurred in any of the ordinary affairs of life they would act upon it, without doubt -whether the whole of those facts did not lead to a reasonable belief in the guilt of the prisoners.

Again, a point had been made by counsel of the fact that a reward was offered, and that some of the witnesses did not give their evidence until after the reward was announced. He was not there to say whether or not it was desirable that rewards for the discovery of crimes should be offered. The fact remained that a reward was offered in this case to anybody who came forward and gave evidence that would lead to the conviction of the murderers. But if that fact was to weigh against the evidence of the witnesses, it would weigh against the evidence in all cases where rewards were offered, and it would prevent juries from giving a verdict in such cases at all, adverse to prisoners. The question of offering a reward might affect some of the witnesses-that was to say it might be a fair subject for observation ; but to say that because a reward was offered it influenced the minds of all these witnesses, was, he thought, going far beyond what the facts justified.

On behalf of the Crown he asked them to look at the case as a whole, and consider the different facts as deposed by the different witnesses ; he would ask them to weigh the evidence of those witnesses and to weigh the probability of the facts deposed ; he would ask them to put this question to themselves, ” Is there a body of facts proved against the prisoners, or any of them, that lead us beyond all reasonable doubt to the conclusion that they were mixed up with this murder?” Certain facts connected with the case were beyond dispute. No one could contend that the murder was not prearranged, that the crime was committed without premeditation. The time chosen was the dead of night. The habits of the victims and the promises would in all probability be known to the persons who were about to attempt the crime. Furthermore, no one could doubt but that it was a crime committed by several persons, or at any rate by more than one person ; and all must agree that the deaths wore instantaneous. No cries were heard, nor was there evidence of any struggle on the premises, and the doctor had told them that any of the wounds on the head of the unfortunate victims would cause immediate death, or at any rate immediate insensibility. Another fact which could not be denied was that the three prisoners were intimate ; and it was in evidence that three men were seen at 4 o’clock in the morning of the murder going away from the direction of the bank.

A great deal had been said about the witness who gave them that evidence, and it was attempted to throw discredit upon her testimony. But, so far as the Crown was concerned, if they put Mrs. Platt’s evidence on one side altogether, the case would stand pretty near where it was. They knew that a murder was committed that morning, they knew that there must have been more than one person concerned in it, they know that the murderers would slink away in the early morning as soon as they had accomplished their object, and they knew from the tracks that they took a certain direction. He was therefore quite content to put Mrs. Platt’s evidence on one side.

The learned counsel then dealt with the evidence of the witness Harrison, and next addressed himself to the evidence as to the prisoner Bevan and Warburton having been seen in town, both on the night of the murder and early next morning. It was only natural, he said, that these men, if they intended committing the crime, should avoid as much as possible being seen in town that night, and that after the deed was committed they should return as soon as possible to where they were at work. It was therefore not to be wondered at that they had not been seen by many persons. But, according to the evidence of one witness, the three prisoners were soon together in the town that evening ; Warburton was seen by another witness crossing Noonan’s yard early next morning ; and there could be no doubt that Mrs. Hall served Bevan with a gallon of beer between 7 and 8 o’clock” on the morning of the murder. It had been suggested that Mrs. Hall might have made a mistake as to the date, but she was pressed upon that point, and there was the entry in her book of the sale of this beer, Bevan having no money to pay for it.

With reference to the shirt found in the pool and the shirt found in Bevan’s house, it was true that there was some slight difference in the measurement of the two shirts, but the fact remained that two studs, out of a set, were found in the breast of the shirt given to the police by Mrs. Bevan, and that another stud, exactly the same, was found in the neck of the shirt found in the pool.

The learned counsel then dealt with the evidence as to the tracks, which, he said, taken in connection with the other facts proved in evidence, formed another important link in the chain which connected two of the prisoners with the murder. Its importance was emphasised by the denial of the prisoners that they ever went in or out of town by the road where these tracks were most clearly discernible, and by the statement made by Bevan to his wife at the lockup, that there was nothing against them but the tracks.

The blood stains on the boots found in Warburton’s lodgings was another damning piece of evidence, for no satisfactory account had been given as to how that blood came upon the boots. Warburton’s hat, too, found weeks after the murder, hidden away as described, and, what upon it? Marks of blood, again. When facts like these were brought against a man and no reasonable explanation offered, the inference was obvious.

Having commented on the written statement made by Bevan, which, he said, though artfully prepared, was full of improbabilities and afforded strong proof of the prisoner’s guilt, the Attorney General proceeded to deal with the evidence against San Qui, which though different in degree from the evidence against the other two prisoners, was still strong evidence. His scared looks, the bloody knife found in his bundle, of which he gave a false account, the polished axes in the butcher’s shop where San Qui was employed, and the pick with a human hair still adhering to it,-a pick that did not belong to the shop, but had been surreptitiously removed from Zeddi’s premises ; and then again the conversation overheard in the lock-up.

Something had been said about Gilroy in connection with this murder. It was not for him to say whether any others beside the prisoners were or were not concerned in this crime ; the time might yet come when evidence might be found in the future to implicate other men than those in the dock. But he asked them not to allow themselves to be led astray by the fact that others may have been implicated, if they were of opinion that the three prisoners, or any of them were mixed up and took part in the murder.

The Chief Justice, in charging the jury, said there many features associated with the case which give it a peculiar character. In the first place, the social position of the unfortunate gentlemen who were murdered was some what above the average. They were leading men in Roebourne, and they came upon their death not only in a sudden but peculiarly brutal and atrocious manner. The case was also peculiar in this respect, that though the place where this atrocious murder was committed was only a small hamlet, with a population numbering not more than a hundred persons, weeks and even months elapsed before sufficient evidence was collected to justify the authorities in placing the prisoners upon their trial.

There was another most unfortunate feature connected with the case, which no doubt had added to the talk which it had given rise to. He alluded to the large amount of reward offered for the conviction of the guilty parties ; and before he went on, he wished to say this much as to that reward. Rewards were offered, as he understood it, in order to induce somebody more or less inculpated, but not actually inculpated, in a crime which was the subject of investigation, to come out of his secrecy and to tell what he knew about it, for the purpose of bringing his accomplices to justice. But a reward was not offered-and it would be a most dangerous thing for society if people were allowed to labour under the belief that rewards were offered-in order to induce people who were supposed to be honest law-abiding citizens to wait until a money reward was offered before they came forward and said what they had to say with reference to a crime like this. He must in the strongest manner reprobate that idea. People who behaved in that way were worthy of the severest condemnation. A person who waited for weeks and months -he was not speaking of an accomplice, but of honest law-abiding citizens-a person who waited for weeks and months without saying a word about important facts connected with a crime like this, but who, as soon as a reward is offered, comes forward, and volunteers his evidence, such a person, he repeated, deserved the strongest reprobation. That was his opinion. The jury might think differently; but to his mind that person’s evidence, when they came to consider whether upon such evidence they were to hang people or not, was worth nothing. They might think otherwise, but that was his opinion. When it was found that a person like Mrs. Platt was aware of such all-important evidence as she had given, aware of it a few hours after the murder took place, and that she should wait and hang by until a reward was offered before saying a word about it, and then come forward with her information,-if they could trust such evidence, all he could say was, their minds were not constituted like his own mind was constituted.

The learned Judge then proceeded to review the whole of the evidence in its bearing upon the varivarious parts of the case, and upon the prisoners separately. In the course of his remarks he said that in his opinion the police were to blame for not having taken greater care in getting up this case in some respects, the result being that the jury, he was sorry to say, had to assume a great deal of the evidence, if they were inclined to place any weight upon it. But he thought this was the last case in the world in which they had any right to make any assumption. Let them draw their inferences, but make no assumptions. He thought it was a hundred pities, he thought it was much to be regretted, that a case like this had hung fire, so long, and, to him it was a matter of surprise why it had so long hung fire ; for, with a few exceptions, the police had, within a few days of the murder, very nearly as much evidence within their reach as the jury had now before them.

Dealing with the evidence as to the tracks, His Honor said tracking was very good evidence when properly done, and, in a colony like this, they could not get on very well without relying upon the evidence of trackers. But in this particular case he could not help thinking that the police should have carefully compared the tracks of the prisoners with their boots, instead of, as they did, letting the tracks be identified at one time and the boots a long time afterwards.

With regard to the evidence as to the blood stains, Taylor, who was the recognised authority upon medical jurisprudence, pointed out in his work on the subject, that it was a very difficult and delicate operation to analyse blood stains that were not fresh, and that any evidence on the subject must be received with extreme caution, except when coming from those who had been in the habit of using a microscope and using it for these very purposes. Dr. Waylen told them very candidly that he had only made these tests two or three times before, and that he conducted the examination in the present case with an instrument of the lowest power that ought to be used for such a purpose. Dr. Waylen, however, told them that he found the corpuscles perfect in form, although months had elapsed since the murder had been committed. They would of course give due weight to the evidence of a gentleman like the Colonial Surgeon, although it did not come before them with that cachet of authority it would have come from a person who had been used to making such examinations.

In concluding an elaborate charge, His Honor said the prisoners had been ably and judiciously defended, and the whole facts or the case had been marshalled before them by the Attorney General with consummate skill : and what they had to consider was whether those men or any of them were engaged in that horrible crime with which they were charged,-not only were they the men who actually struck the blows but were they in any way concerned in the murder? Whether they were actually present at the murder or not, if they assisted in it, or if they knew that it was going to be committed, they would find them equally guilty. He was going to say if they had any reasonable doubt in their minds, but that was only the expression of a parrot they must have more than an ordinarily reasonable doubt; they would not be justified in allowing a doubt that would operate upon their minds in the ordinary course of business to act upon their minds in the case where the lives of three men are at stake ; but if they had a doubt in their minds, such a doubt as was commensurate with the tremendous issues involved, they were bound to give the prisoners the benefit of it. They must be absolutely certain in their mind, before they could bring them in guilty, that there was no other way of accounting for this brutal tragedy than by convicting them. But, on the other hand, if they thought the police and the Crown had not succeeded in bringing the crime home to the prisoners, in a clear and conclusive manner, they would have to make up their minds to acquit them.

The jury retired to consider their verdict a 6 o’clock, and the Court adjourned until 8 o’clock p.m. On the Court resuming at that hour, the jury brought in a verdict of acquittal in favor of each of the prisoners, who were thereupon discharged from custody.

The verdict was received by the crowd who had assembled about the precincts of the court-house with manifestations of applause, which were immediately suppressed.

The Court, on rising, adjourned until this morning (Wednesday), at half past 10.