Age estimations based on skeletal development may also be unreliable since a well-fed baby will increase the lengths of its long bones significantly more compared to an underfed or starved baby. This is why dental age estimation is more reliable than use of the long bones. This type of age estimation is possible even for babies whose teeth have not yet erupted, since unerupted teeth are discernible in the upper and lower jaws with the use of x-rays. But without this tool in 1892, Dr Milford would have only used dental eruption occasionally, since he was frequently required to estimate the ages of babies under the age of six months.
Without the use of modern methods, there was a degree of inaccuracy in Dr Milford’s age estimations. Today forensic scientists know that it is important to use a number of indicators to estimate the age of human remains, including the degree of closure of the cranial sutures in the skull, the appearance of the ossification centres (the sites where bone forms), radiographic measurement of the length and width of the wrist bones, microscopic analysis of bone remodelling, dental eruption and attrition, closure of the ephiphyses (the ends of the long bones), the length and diameter of the long bones, and the length of the vertebral column.
The six bones of the skull can also be used for the age estimation of very young babies, as well as the dense connective tissue, called ‘fontanels’, which separates the skull bones. The extent of fusion of a baby’s skull varies from child to child so that it is possible for an age estimation to be out by several weeks or months.6 Dr Milford’s estimations would also have been hampered when a baby’s remains were so badly decomposed that the skull bones had no connective tissue keeping them together.
But Dr Milford did not know that, in some cases, he was estimating the ages of babies who had been underfed or starved. In such situations, age estimations based on dental development are considered to be more reliable because tooth eruption is less affected by malnutrition than skeletal development.7 But Dr Milford was required to estimate the ages of children who may have had no erupted teeth, and who had suffered malnutrition which, if severe enough, can delay tooth eruption. These factors may account for some of his divergent age estimations such as two to nine weeks for Baby D.
Because of the limitations in Dr Milford’s age estimations, the age he estimated for Baby D was probably not accurate enough to support the jury’s finding that he was the son of Amber Murray. In reality, Baby D’s identity was impossible to determine, something the judge in the Makins’ trial would come to realise.
The Makins would never know that confusion about the identity of Baby D would seal their fate, leaving nothing but bewilderment for the jury in their extraordinary trial, for the appeal judges in both appeals and for anyone looking back from the twenty-first century. Because of this confusion, it is possible the Makins were wrongly convicted of the murder of Amber Murray’s baby.
PART III
TRIALS, APPEALS AND VARIOUS PETITIONS
CHAPTER SEVENTEEN
The trial of the century: a judge out of his depth
6–10 March 1893
On 6 March 1893, the trial of John and Sarah Makin began in the New South Wales Supreme Court for the murder of Horace Amber Murray. Although charges had been laid against the Makins for the manslaughter of Mignonette Davies, this trial did not go ahead as a result of the outcome of the trial concerning Baby Horace.
On 7 January 1893 John pleaded to the Sheriff of the Supreme Court that he was ‘entirely without means’ for his defence in an attempt to gain access to all the depositions (or testimony) that had been given by witnesses in the various inquests:1
I do myself the honor to make application herewith for copies of the depositions in the several cases taken at the Coroner’s Court . . .
Being entirely without means I am reluctantly compelled to adopt this course, and would respectfully ask that they may be furnished me at your earliest possible convenience.
After this letter was received, Constable Joyce made inquiries with the Wollongong police about whether or not further funds were available for John’s defence. Sergeant Grieve replied on 28 January that George Makin, John’s younger brother and the trustee of his mother’s will, had already arranged for £61 to be advanced to Mr Williamson for John’s defence.2 John had also agreed to assign his rights to his monthly payments to the tune of £70 to pay Mr Williamson at his forthcoming trial.
Perhaps seeking some control over his defence John wrote two more pleading letters requesting that the depositions be sent ‘at once as I have only two weeks to prepare my defence’. He received a curt reply from the Sheriff of the Supreme Court:
Be so good as to inform Mr. Makin that his brother Mr George Makin has reported that Mr T. M. Williamson has received two sums viz.- £21 and £40 for his defence, that a further sum of £70 is to be paid to Mr Williamson to defray the expense of the trial . . .
Under the circumstances the Crown Solicitor does not supply copy depositions gratuitously.3
The trial of the century begins
On the Monday morning of day one of the trial, twelve men were sworn in as the jury although, for the sake of justice, we hope they were not the same jurors who had sat during the many inquests. When the jurymen took their seats in the jury box of the cedar-lined courtroom, waistcoated in their Sunday best, they joined the talkative curiosity-seekers who packed the public gallery while a crowd at the door tried to cram inside. Sydney had never seen anything like it. Not so much the trial of the decade, it would become the trial of the century, the outcome of which would inform the common law in both England and Australia for more than a hundred years because of the controversial evidence that was allowed to go to the jury.4
As the Makins were brought up from the cells below the courtroom they saw some familiar faces. Mr Healy, who had been counsel assisting the Coroner, was seated at the Bar table as the Crown prosecutor while Mr Williamson, on his left, appeared for the Makins. John made himself comfortable in the dock, crossing his arms and legs. Right to the end, he manifested an air of bravado, his body language announcing he would not be cowed, unlike Sarah, who hid her face with a handkerchief throughout the day.5 Perhaps Blanche and Florence had managed to find a seat in the public gallery along with their uncles, John’s brothers, who keenly felt the shame that John had brought upon their family.
As Justice Stephen entered in a peacock display of horsehair wig and red and purple robes, the courtroom clattered to its collective feet. The customary bowing between judge and lawyers took place. Before the proceedings could begin, the charges against the prisoners were read out by the Sheriff:
John and Sarah Makin, you have been charged with having on 29 June 1892 at 109 George Street, Redfern feloniously and maliciously murdered Horace Amber Murray. You have further been charged with having . . . feloniously and maliciously murdered a certain male infant, whose name to the Attorney-General was unknown.
The second, alternative charge was included in the indictment because Amber Murray’s child had never been baptised or registered in the name of Horace Amber Murray. Officially, Amber’s child was ‘unknown’ to the law, being known only as Baby D.6
The Makins were asked to reply to the charges. Standing like cattle on display, would they have a quick change of heart? Or would the experience of Darlinghurst Gaol make them hold out for the slimmest chance of acquittal? The Sheriff eyed John and asked:
Sheriff: John Makin, how do you plead to the first charge against you, guilty or not guilty?
John Makin: Not guilty.
Sheriff: How do you plead to the second charge, guilty or not guilty?
John Makin: Not guilty.
John’s clear answers resonated around the courtroom. Many were probably more interested to hear from Sarah. Just who was this woman who had betrayed her sex by killing children?
Sheriff: Mrs Sarah Makin, how do you plead to the first charge, guilty or not guilty?
Sarah Makin: Not guilty.
Sheriff: How do you plead to the second charge, g
uilty or not guilty?
Sarah Makin: Not guilty.
Her voice from behind her handkerchief may have trembled but she was still defiant. Right to the end, Sarah considered she was not guilty. Was she deluding herself or was she really innocent of the charges against her?
Mr Healy’s opening address to the jury recounted the story that had been revealed at the inquest in December about the birth of Amber Murray’s ‘fine, strong, healthy’ boy on 30 May 1892 and her advertisement in The Evening News for ‘a kind, motherly person’ to adopt her son. But this trial was not just about the death of Baby Horace. Mr Healy told the jury about all the other police discoveries in the backyards of Burren, George, Levey and Alderson Streets, as well as the many aliases the Makins were known to have used.
At the time when the police made their gruesome discoveries in the various backyards, The Sydney Morning Herald published an interesting observation—because none of the autopsies on the bodies of the 13 babies had found a cause of death, ‘a most important link in the chain of evidence is missing’.7 The absence of this link provided a weak foundation for the trial. Mr Healy probably suspected he would not get a conviction unless the evidence of the other babies was admitted in the trial.
He told the jury it was their job to determine whether Baby D was the child of Amber Murray as he described the uniqueness of the clothing worn by the child—made by Miss Murray’s own hand and recognisable because she ‘was not an expert needlewoman’.
Although Mr Healy informed the jurymen they were to decide the case solely on the evidence and not to consider anything they may have heard, the question to this day is whether or not the Makins received a fair trial and were convicted of the death of the wrong child. To answer that question I will take you into the heart of the trial proceedings and compare them with the way a murder trial would be conducted today.
How to prove a murder has happened when there’s no evidence
In 1892, forensic science was in its infancy. There was no DNA testing that could positively identify Baby D as the child of Amber Murray. It was also not possible for the Crown to prove how the baby had died because of the degree of decomposition of the body.
The fact that a dead baby was found in the backyard of a house where the Makins had lived does not mean they killed him, even if they had buried him. He could have died from natural causes or an accidental overdose of Godfrey’s Cordial. But the Crown did not have to prove how Baby D had died, just the fact that he had been murdered by Sarah or John or both. Was there enough evidence to prove this?
There was sufficient evidence—from Amber Murray, four other unmarried mothers, Amber’s midwife and the prison informant, Jordan—to show that the Makins were baby farmers. This evidence also showed that the Makins were only receiving £2 to £5 in return for adopting babies ‘for life’. Because these premiums were so small, the Makins could not afford to feed and clothe their baby-farmed children for any length of time, giving the Makins ‘an interest in their death’8 and the motive for murder.
The secret burial of Baby D’s body, the initial lies told to Amber and Mrs Patrick that her child was doing well, the lies about the Makins’ move to Hurstville, and the apparent substitution of another baby covered with sores to show Amber how sick her son was, all pointed to the Makins’ concealment of the unnatural death of Baby Horace. This evidence was, however, circumstantial. There were no eyewitnesses—or at least none willing to talk—to describe if, when and how the Makins had killed Amber’s baby. Yet Mr Healy guessed if he was allowed to call Constable Joyce to give evidence that another 12 dead babies had been found in four backyards of houses previously occupied by the Makins, the jury would conclude the Makins were a pair of baby murderers. Whether Justice Stephen would allow this evidence was the key question in the trial. The Crown case depended on it. The Makins’ fate would be decided by it. Without it, Mr Williamson could more easily defend them by arguing that Amber’s baby had contracted a disfiguring rash and within a week had died and been buried in Burren Street. Although the Makins failed to register his death and give him a proper burial, they were not murderers.
But first there had to be some evidence that Horace died an unnatural death, said Justice Stephen. For example, if Horace had died in a foundling hospital and there was evidence that 12 other babies had also died in that hospital, without more evidence, it would not be possible to conclude that Horace had been murdered. But in this case there was more, said Mr Healy. He argued that Horace’s death was unnatural because Amber Murray’s baby had been healthy when she handed him to the Makins while John had admitted to Edward Jordan that he had buried the Burren Street babies. This was sufficient for Justice Stephen to reason that Joyce’s evidence about the discovery of 12 other babies should be heard by the jury because it showed that ‘the prisoners carried on a regular system of getting rid of these unfortunate babies, and to shew that the death of [Horace] was not accidental’.9 But was his reasoning based on too many assumptions?
Constable Joyce is called
There were more than a dozen witnesses who would give evidence in the trial because of the investigations of Constable Joyce,10 so it was fitting that he was the first, a man whose obsessions had paid off as he described how the remains of 13 infants had been discovered in the Makins’ backyards. Joyce’s authority would have added weight to his evidence as the jurymen recognised him as ‘one of them’, a hard-working man compared with the shabbily dressed Makins in their prison garb, the couple who had tried every rat-trick in the book to evade the torch-light of the law on their penny-pinching lives. The Makins carried an aura of guilt about them, with every literate man in the colony having read about their nefarious, baby-farming ways. For a man to stoop to this level to earn a living, and for a woman to abandon her ‘natural’ instincts, was a national shame. The problem faced by the Makins’ lawyer was how to overcome this prejudice.
Mr Williamson objected to Joyce’s evidence, arguing that it would adversely affect the minds of the jury. He reminded Stephen that the Makins had only been charged with the murder of one child (Baby D) while the Crown was presenting evidence about the death of several other children, ‘leaving the jury to draw their own conclusions’. Although Stephen conceded the Makins might be prejudiced, he believed the jury had a right to hear that a short time before the discovery of Baby D, other bodies were found in other yards in similar circumstances.
Because there were conflicting opinions from other cases on this particular legal point, Stephen decided to follow the example of an English judge, Justice Butt, who said that ‘the safest rule to be guided by is one’s common sense’. Today a trial judge is required to weigh the strength of this type of evidence against its prejudicial effect, exactly the thing that Williamson was at pains to point out.11 But he had lost round one in a very long legal battle about Joyce’s evidence.
When Amber Murray was called to the witness box, the jurymen must have wondered why a young unmarried woman would publicly reveal her shameful secret if there was no truth to her story that she had advertised for someone to adopt her illegitimate child and received a reply from Mr and Mrs Hill at 109 George Street. When Williamson pressed her about the health of her child she admitted he had suffered from thrush but ‘was perfectly cured’ when adopted by the Makins. Amber’s midwife, Mrs Patrick, also gave evidence that Amber’s son was ‘a very healthy little chap’. In reply to Williamson’s probing questions, she admitted he had suffered from thrush but other than that ‘[n]othing ailed it’.
Williamson was trying to establish that there was something not quite right about Baby Horace when he was adopted. While Amber and Mrs Patrick were keen to stress the baby’s thrush had cleared up by this time, Williamson did not think to press the issue further. Perhaps he was ignorant about the significance of a child who suffers from thrush in the first weeks of life even though he knew that John Makin had apparently taken Baby Horace, covered in bad sores and suffering from a severe case of thrush, to Mrs Patric
k’s house on 5 July 1892.
If a baby has a weakened immune system or an inability to fight infection because of a chronic disease, it has an increased risk of developing thrush (or candidiasis). A baby may suffer some or all of the common symptoms, which include white patches on the tongue and inside of the baby’s mouth and red lesions on its bottom and genitals which may spread to its thighs and abdomen.12 The presence of thrush on Baby Horace indicates that although he appeared healthy he had a weakened immune system, probably as the result of a disease such as congenital syphilis. Williamson had missed something vital to the Makins’ defence—he had failed to emphasise that Baby Horace had suffered from thrush before he was adopted and that the baby taken to Mrs Patrick’s (and seen by Mrs King) by John on 5 July had a very bad case of thrush. All of this suggested that Baby Horace had been taken to Burren Street as Clarice and Daisy had testified at the December inquest so that he could not have been Baby D. In a trial today, the defence would call a doctor to give their opinion about the significance of recurring thrush for a child’s immune system and whether the symptoms described by Mrs King were consistent with that of a syphilitic baby. In an era when syphilis was rife and infant mortality was remarkably high,13 death by natural causes could not be discounted.
Clarice’s loss of memory
The public gallery must have whispered expectantly as Clarice was called to the witness box, the only child of the Makins to give evidence at their trial. She readily informed the court that there had been five or six babies in the George Street house before the move to Burren Street. But instead of repeating what she had said at the inquest in December—that six babies were taken to Burren Street when the family moved—she swore that her father and mother only took five babies and that Baby Horace was not one of them. Questioned closely by Williamson about her previous evidence, she denied giving it even though it had been recorded in her signed deposition.
The Baby Farmers Page 21