This was a surprising turnaround. Clarice’s evidence now unequivocally supported the Crown case that Baby Horace had been murdered and buried at 109 George Street. Had someone asked Clarice to change her evidence? Why else would she deny giving her clear and detailed evidence from three months earlier? Despite his efforts with Clarice, Williamson did not make a dent in the wall of evidence that Mr Healy had skilfully built on the first day of the trial.
Day two of ‘a most extraordinary case’
Agnes Ward, the first witness on day two, had advertised in The Evening News on 27 April 1892 for a ‘kind person’ to adopt her baby son who was ‘very delicate’ and unable to keep his food down, vomiting soon after feeding. He suffered from a hard, swollen stomach and a red rash from the middle of his stomach to his hips, all of which were symptoms of congenital syphilis. His worsening health meant she could no longer look after him.
Sarah Makin had called at the home of Agnes’ midwife in Summer Hill on the evening the advertisement appeared, although Agnes was out. She returned the following morning with reinforcements—John and Daisy—to reassure Mrs Terry, who had become suspicious when Sarah mentioned the family was moving to a farm. Going by the name of Wilkinson, the Makins must have been desperate for money because they waited all day until 5 p.m. for Agnes to return home.
The Makins agreed to adopt her baby for £5, although John explained they were not taking him for the money but to fill the gap caused by the death of their own son. They would put most of the £5 in the bank for him for when he grew up. John wrote out an agreement to complete the bargain under the keen eyes of Mrs Terry.
Although they were living in Kettle Street, Redfern, John said he had an inheritance and was planning to buy a piggery in Balmain or the North Shore. He promised to send the address so Agnes could visit. When, in tears, Agnes handed over her ten-week-old baby, Sarah also cried, explaining, ‘I am very soft. As soon as I see anybody crying I must cry too’. That day was the last time Agnes saw her delicate baby, since she heard nothing more from the Makins.
Mr Williamson decided to object to this type of evidence being given one more time. But on day two Justice Stephen decided a speech was needed, pointing out to Mr Williamson that:
this was a most extraordinary case. In fact, there had been no case like it . . . [Agnes’] child . . . had been received by the accused . . . and nothing further had been heard of it, and other children had been received in a similar manner and nothing further had been heard of them . . . [I]t seemed . . . that the matter must be decided . . . from the common sense standpoint. If the law subsequently decided that . . . [the evidence] was . . . wrongly admitted . . . the prisoners were perfectly safe, for, if found guilty, they would be subsequently discharged [after an appeal]. If . . . he rejected the evidence, he might possibly be interfering with the fair and equitable administration of justice.
Stephen seemed to be admitting that he was out of his depth so he would use his commonsense. If he were wrong in doing so, the appeal court would have the final say. To him, this was better than risking an acquittal because he had excluded what surely was quite powerful evidence.
The Makins had to watch a parade of mothers give evidence about their baby-farming activities even though none of them was connected with the other 12 babies discovered by the police. Next into the witness box was Clara Risby, who had relinquished her child to the Makins when they lived at 16 East Street, then Mary Stacey, who had given her baby daughter to the Makins when they were in George Street. Finally, the evidence of Agnes Todd served to complete the picture that the Makins had had a very busy month in June 1892 as they collected babies and premiums, squeezing more and more children into the house in George Street.
Then came Mrs Hill with her suspicious evidence about picks and shovels, followed by Mr Jordan, who recounted John’s confession and the juicy tidbit that John had confessed to burying the children in Burren Street. By the time the present tenant of 109 George Street, Mrs Ralph, gave her evidence—that Mrs Makin had called to make inquiries about whether the police had found any bodies before three dead babies were discovered in the backyard—some of the jurors must already have made up their minds.
The Crown’s case had now closed. Mr Healy could be well pleased by how each of the Crown’s witnesses had come up to proof, especially Clarice. The judge was on his side and he must have thought if he were a betting man, the odds of losing were very low indeed.
Mr Williamson addresses the jury
On day three of the trial, the Makins offered no defence and called no witnesses. As at the inquests, Sarah and John had decided not to give their own version of events. This meant the trial proceeded to hear the closing addresses of the prosecutor and defence counsel. On the morning of Thursday 9 March, Mr Williamson stood to address the jury. It was a fine speech. He must have been up most of the night preparing it. He began by stating the obvious—that the baby-farming activities of the Makins had been publicised widely during the many coronial inquiries. He urged the jury, as men who would perform ‘their duty honourably’, to put out of their minds anything they had heard outside the court, including any articles and reports that may have influenced them.
Williamson reminded them that Mr Healy had said during his opening address that the Makins had taken six children to Burren Street on 29 June. At no stage during the trial had Healy sought to withdraw this statement. But Healy ‘could not blow hot and cold’ because the witnesses did not support his assertion. Clarice had denied saying that six children had accompanied her family on the fateful night they moved to Burren Street. It is unclear from the court report what Williamson then said. Presumably he stressed that if Baby Horace had been the sixth baby in 109 George Street and six babies were taken to Burren Street, then Amber Murray’s baby could not have been one of the three babies discovered in the backyard of George Street.
Williamson informed the jury of the ‘two features’ in the case that ‘required their special attention’:
1. Did Horace Amber Murray die, and, if he had died, had the remains been identified?
2. If [there was identification] had he died from natural causes or had he been murdered?
He told the jury that the Crown had ‘attempted to build a house without a foundation’ because it had not produced any evidence to prove the cause of death of Baby D: ‘was it not an insult to [your] intelligence that [you] should be asked to think that because certain children had been found dead’, Miss Murray’s baby had been murdered?
Williamson was stressing that in a murder trial the Crown has to prove that the defendant committed the act causing death. This had not been done by Mr Healy because he was hoping the jury would make a leap of logic from the existence of dead babies in the backyards of Burren and George streets to the assumption that the Makins had murdered Baby Horace. It was a very tempting leap to make. But people ought not to be convicted of murder based on leaps of logic. The missing stepping stone was a cause of death. How did Baby Horace die?
When Mr Healy addressed the jury after Mr Williamson he focused on the question the jurors would have been asking themselves—why didn’t the Makins give evidence? Although this type of comment by a prosecutor is not allowed in criminal trials these days, it was permissible in 1893. Healy also pointed out that the defence had not called any member of the Makin family to give evidence about what happened to Baby Horace. Again this failure pointed to the fact that the Makins had something to hide.
When Justice Stephen turned to the jury to begin his summing-up of the trial he made a startling admission—he ‘now had to undertake the most arduous task that had ever fallen to his lot . . . in dealing with criminal cases’. He told the jury that the Makins’ failure to give evidence should not be used against them because the law allowed them their right to silence. But he also revealed that other judges thought the opposite.
To find the Makins guilty, said Stephen, the jurymen had to be satisfied that ‘the child murdered’ was the son of Amber M
urray. This was a very unfortunate phrase. He was assuming that Baby D had died as a result of murder, the very question the jury had to decide. He had probably made the same leap of logic Healy was hoping the jury would make.
Stephen reminded the jury that in ‘99 cases out of 100’ the cause of death was known in murder cases. Even though it was not known in this case, he urged the jurymen:
but in the administration of justice [you] must not be daunted at the outset for that reason, because in certain cases, if that happened, convictions would not be obtained where they ought to be.
Justice Stephen was hinting that this case might be one where a conviction ‘ought to be’ obtained. He reminded them that Amber Murray’s child had been at the Makins’ house in George Street on 27 June, which meant the child:
had been in the vicinity of the place where its body had been found—it had not been 100 miles away. Bodies of infants had been subsequently dug up in the yard. What did that secret burial . . . point to? Who buried the bodies? If the prisoners did not do it . . . who had done it?
But Justice Stephen was making too many assumptions. What he should have said is that Amber’s son had been in a house where a body, not his body, had been found since whether Baby D was Baby Horace was a fact the jury had to decide, based on all the evidence in the trial. Although it was tempting to think otherwise, the Makins were only on trial for the murder of one baby, not the deaths of the other unfortunate babies.
More confusion was to follow. Stephen said Constable Joyce’s evidence of the 12 other babies had been given to demonstrate that other children adopted by the prisoners had also died, just in case the Makins had decided to argue that Baby D had died of neglect. But Mr Williamson had not mounted any such defence. Justice Stephen, out of his depth, was muddying the waters with too many assumptions.
Certainly, most people would agree that the Makins had buried the babies found in George and Burren streets, given their guilty knowledge about the burials. But illegal burial and killing are two different things. Mr Healy had not presented any evidence about how any of the babies, including Baby D, had died. The jury needed clarification about the cause of death but it was not forthcoming. Maybe this case had tested the limits of the legal minds in the courtroom. As Justice Stephen had said, it was an extraordinary and unique case for which his legal experience had not prepared him.
The verdict
With all of this information and misinformation, the jury retired at 5 p.m. While Stephen had been addressing the jury, Williamson had been busy scribbling away at the Bar table. He handed Stephen a memo containing the points he asked the judge to reserve for an appeal:
1. His Honor was wrong in admitting evidence of the finding of the bodies other than that of Horace Amber Murray;
2. His Honor was wrong in admitting the evidence of [Clara] Risby, Mary Stacey, Agnes Ward, Agnes Todd and [her midwife];
3. there was no evidence to identify the body as that of Horace Amber Murray;
4. there was no evidence of the death or the cause of death of Horace Amber Murray.
The memo reflected what Williamson expected—guilty verdicts.
When the jury filed out of the courtroom to consider its verdict, Sarah and John were taken to a room with their police guards to sit through the same anxious, gnawing wait of the guilty and the innocent alike. By six o’clock the jury had not agreed on a decision. Stephen announced he would return to the courtroom at nine o’clock. At 9.10 p.m., the foreman announced the jury had still not reached a verdict. There was some confusion, since the foreman asked Stephen to ‘repeat the authority . . . as to the establishing of the cause of death’. This was clearly the issue that the lay jurors ought to have wrestled with. Stephen reminded the foreman that ‘he had told them that he did not consider it absolutely necessary that the cause of death should be established in making out a case’. They must be satisfied that the child had ‘met its death, not by a natural means, but some unlawful act’.
This was exactly what the jury wanted to know, said the foreman, but he warned there would be no verdict tonight, suggesting there was dissension in the jury room. The jury was locked up for the night while the Makins returned to their cells via the tunnel that connected the Darlinghurst Courthouse to Darlinghurst Gaol14—all for a restless night.
When the court resumed the next morning, everyone in the public gallery would have watched the jurymen file in with their eyes averted from the Makins, a bad sign which Mr Williamson would have clocked. The tipstaff asked the foreman of the jury:
Tipstaff: Have you agreed on a verdict?
Foreman: Yes.
Tipstaff: How do you find the prisoners, guilty or not guilty?
Foreman: We find the prisoners guilty of the murder of Horace Amber Murray but we strongly recommend the female prisoner to mercy.
The verdict hit the court like a bomb. Sarah ‘threw herself backwards’ in a ‘fainting fit’, ‘sobbing most piteously’, almost falling out of her chair. Two constables rushed to grab her. But John remained impassive: ‘on hearing the decision, [he] manifested no concern’, maintaining ‘stolid indifference’. He did not even assist his wife. While Joyce and his constables may have cheered, perhaps the unmarried mothers, the two Agneses, Amber, Clara and Mary, hugged each other and cried. In the mayhem, Justice Stephen tried to bring everyone to order, banging his gavel.
He announced he would not sentence the Makins until their appeal was heard, since he wished to ‘be spared the painful reflection’ of passing a sentence should the appeal succeed. Finally, he thanked the jury and discharged them. When he ordered the constables to remove the prisoners from the court, Sarah had the last word as she wailed: ‘It’s Clarie, it’s Clarie, it’s Clarie that did it’. Sobbing bitterly and crying out ‘Oh! Clarie, Clarie, Clarie’ she was assisted down the stairs into the basement of the court by John and a constable, ‘her sorrowful and reproachful cries . . . gradually fading away in the distance’.
Sometimes in the heat of emotion the truth is blurted out. While Sarah’s final attempt to cast blame elsewhere was a habit of hers, she knew that all of her daughters were involved in the family’s baby-farming business, even Clarice, which may have been one of the reasons Clarice decided to give evidence against her parents—to downplay her role in the deaths and to save her own neck.
Surprisingly, there was sympathy for Sarah, who some people thought had acted:
under the domination of her strong-willed husband, of whom she may have stood in fear. Whatever her crimes, the wretched woman’s sufferings since the beginning of this terrible business have evidently been of the most poignant character. Her strongly emotional temperament . . . has supplied one of the most painfully sensational elements in the many dramatic scenes which have characterized the legal revelations of the misdeeds of the inhuman husband and his weak and wicked wife.15
Did the Makins receive a fair trial?
It was not only the jury who had given their verdict. Newspaper editors, the public and even Justice Stephen thought the Makins were guilty because of the evidence about the 12 other babies. But the lengthy jury deliberation shows how difficult it was to convict baby farmers based on circumstantial evidence, even if this had been the most compelling case of the murderous practices of baby farmers that had ever been heard in the Australian colonies.
Compared to the conduct of criminal trials today, the Makins did not receive a fair trial for many reasons. The first glaring problem was that the prosecutor addressed the jury after Mr Williamson. This meant Williamson was unable to counteract any of the issues brought up in Mr Healy’s closing address, in particular, Healy’s focus on the Makins’ decision to remain silent. Today the right to silence is jealously protected by our evidence laws.16 Prosecutors are prohibited from referring to an accused’s decision to remain silent to stop them from indulging in idle speculation as Mr Healy did, including the assumption that many people make—that a silent accused is a guilty accused. Although Justice Stephen had to
ld the jury that the Makins’ failure to give evidence should not be used against them, he also hinted that other judges thought the opposite, giving the jury a green light that they could do so as well.
Because the Makins decided not to give evidence, they were able to avoid a probing cross-examination by Mr Healy. While John may have withstood his incisive questions, Sarah’s emotional volatility may have led to dramatic declarations, dangerous slips of the tongue and fainting fits.
In his closing address, clever Mr Healy had stressed that the Makins had not called any member of their family to explain what happened to Baby Horace, implying they had something to hide. Today, the obligation to call a key witness is on the prosecution rather than the defence because defendants do not have to prove their innocence by calling witnesses.17 Healy could easily have called Florence or Blanche Makin to give evidence but Williamson was not given the chance to retort that Healy should have done so and Justice Stephen did not recognise the problem.
More unfairness to the Makins arose because Stephen decided to allow the evidence from Constable Joyce and the unmarried mothers to be heard by the jury. He justified his decision by saying that if he were wrong in doing so and the Makins were convicted, the appeal court could have the final say. Stephen had gambled with his overriding duty to ensure the Makins received a fair trial by tossing a coin, thus creating a risk that the Makins might be convicted as a result of wrongly admitted evidence.
Stephen knew Constable Joyce’s evidence was likely to produce an emotional reaction and could be misused by the jurymen. For this reason, he should have emphasised that they had to be satisfied, beyond reasonable doubt, that the Makins had committed the ‘guilty act’ causing the baby’s death. He ought to have cautioned the jury that Sarah and John were not on trial for the deaths of the other 12 babies.
The Baby Farmers Page 22