The Baby Farmers

by Annie Cossins

  Stephen also made a mistake when he assumed that Baby D had been murdered even though it was the jury’s job to make that decision. By using the words ‘the child murdered’, Stephen gave the jury a wink and a nudge that he thought the child had been murdered. He reinforced his hint when he said that, even without a cause of death, convictions can still be obtained ‘where they ought to be’.

  But it was at the end of his summing-up that Stephen confused the jury even more. He told them that there was insufficient evidence to prove that Baby D was Horace Amber Murray: ‘I do not see any satisfactory evidence that this child was Horace Amber Murray, and you must take the case on the second count’, the second count being the one charging John and Sarah Makin with the murder of an infant whose name was unknown.18 This meant the jury had to ignore the evidence from Amber Murray and her midwife which had identified the clothing on Baby D as belonging to Horace. Instead, they had to decide whether or not the Makins had killed an unknown baby called Baby D. Did they wonder why Miss Murray’s and Mrs Patrick’s evidence had been given in the first place? If they did, they decided to ignore the problem. Because the jurors were confused, they assumed that Baby D was Horace Amber Murray. When the foreman of the jury read out the verdict, Sarah and John had been found guilty of the murder of Horace Amber Murray, not of Baby D.19

  Without any evidence about how the baby died, it is possible the jury made the leap of logic Mr Healy hoped they would make—that the presence of 12 other babies in the backyards of four houses lived in by the Makins’ was too suspicious and too much of a coincidence. Murder was the only explanation. And if the Makins murdered twelve they must have murdered Baby Horace. It seems as if the presumption of innocence got lost in the compelling and gruesome evidence given by Constable Joyce.

  As it was, most of the problems identified above were not raised in the Makins’ appeal. After all, this was 1893 when the laws of evidence and trial procedure were still in their infancy.

  CHAPTER EIGHTEEN

  The first appeal: the Makins’ struggle against the hand of fate

  23–30 March 1893

  The Makins had not received a fair trial but no-one, except Sarah, John and their lawyer, seemed to be too bothered that justice had been trounced. It was a common view that ‘[t]he Makin case is probably the worst which has ever disfigured the criminal records of Australia’. To anyone following the grisly details of the lives, deaths and discoveries of the unknown babies it was ‘a crime which involve[d] the utmost meanness and callousness and cold-blooded brutality . . . Such an act is a disgrace to civilization’.1

  While one newspaper acknowledged that ‘[n]o one is so eager for convictions as to desire to see them based on evidence improperly admitted’, the number of buried babies found in the former houses of the Makins was enough to satisfy all and sundry that John and Sarah were serial murderers:

  had the Judge excluded the evidence, that would have been a mistake without a cure. They could not have been tried again, had they been acquitted . . . [a]nd the public, aware of the facts connected with the other bodies, and with the cases of the other women . . . would have felt that justice had . . . been administered in the dark.2

  Other newspapers in the colonies also found comfort in the jury’s decision:

  The old saying may be right, and hanging may be the worst use to which a human being can be put: but . . . if ever a man specially deserved to be asphyxiated by the hangman’s rope it is the head of the notorious baby-farming Makin family.3

  Even before the jury returned its verdict, Mr Williamson had put Justice Stephen on notice that he would appeal against Stephen’s decision to allow the jury to hear Constable Joyce’s evidence of the discovery of the 12 other babies. This particular question had apparently never been examined by a court of appeal in ‘the mother country’.4 Were the three colonial appeal judges up to the task?

  A Rolls Royce defence

  While the Makins slummed it in cold, dank and dark Darlinghurst Gaol, the appeal against their convictions would be an expensive enterprise. The couple who had haunted the inner city slums with little furniture (auctioned by John’s brothers for a mere 12 shillings), living hand to mouth by apparently killing babies so they themselves could live, were represented by Rolls Royce legal counsel. Faced with John’s death, the Makin family hired the services of one of the most eminent Queen’s Counsels of the time, Sir Julian Salomons. Had the family been willing to help feed John, Sarah and their children at a fraction of the cost of all the legal fees, the family’s name would not now be synonymous with murder.

  Salomons was the only son of a merchant in Birmingham. He had arrived in Sydney at the young age of 17, starting his working life as a lowly stockbroker’s clerk and then as an assistant in a bookshop. But Sydney was good to this young migrant, holding out opportunities that may not have been available in crusty old England. Four years after his arrival, Salomons had passed the examinations of the Barristers’ Admission Board.5

  A photograph of Salomons, later in life, depicts a thin-lipped man with a fleshy face and determined chin. Though not particularly attractive and considered to be short, his picture gives the impression of a man of authority. Described as having a ‘certain emotional brashness and vanity . . . a caustic tongue and a mordant wit’, he was a workaholic run by unknown demons. This resulted in a breakdown and admission to Bay View House, a private ‘lunatic’ asylum at Tempe some distance from the city, for four months in 1866.6

  Despite this setback, Salomons went on to become Solicitor-General for the government and was later appointed to the Legislative Council in 1870, although he resigned a few months later. Despite or because of these appointments, his recurring mental problems saw him take several trips to Europe for his ‘health’, perhaps persuaded by his wife that seclusion in Europe would attract less attention than a ‘lunatic’ asylum in Tempe.

  Seven years before he represented the Makins, Salomons was a short man with a big reputation. When the Chief Justice of the Supreme Court died in 1886, Salomons was offered the post after two other eminent barristers turned it down. Reluctantly, he accepted. But Salomons was not popular amongst his fellow judges. In a class-ridden, small-town, colonial world, Salomons lacked ‘“artistocratic position”, judicial balance and dignity’.7 Perhaps his lack of these qualities was due to bipolar disorder, since he appeared to suffer from some of its symptoms—unbounded energy, high intellect and addictive work habits with periods of depression.

  A well-respected judge, Sir William Windeyer, in front of whom Salomons would argue the appeal for the Makins, told him he was unacceptable as Chief Justice, accusing him of ‘always breaking down mentally’.8 Perhaps Windeyer instinctively knew that the pressures of the job of Chief Justice would combine like oil and water with Salomons’ mental fragility. Windeyer’s opinions were so harsh that Salomons remarked they would ‘make any intercourse in the future between him and me quite impossible’.9 They obviously bit deeply since Salomons was the only Chief Justice in New South Wales to resign before he took his oath of office, doing so 12 days after his appointment on 19 November 1886.

  Nonetheless, he continued to seek and was rewarded with high office—he served as a member of the New South Wales Legislative Council for 12 years between 1887 and 1899 and was Vice-President of the Executive Council for two different periods.10 Knighted in 1891, two years before Salomons represented the Makins, Sir Julian’s eminence must have burned bright for John Makin’s family, who hoped that his legal and oratory skills would be enough to turn the Makins’ fate the other way.

  The appeal begins

  In the Supreme Court of New South Wales on 23 March 1893, Sir Julian appeared before the three Court of Appeal judges who would decide the case: Justices Windeyer, Innes and Foster. Although some may think the law works in mysterious yet just ways, these judges were men of their times, each carrying their own baggage of beliefs and sympathies, who lived a world away from the working-class streets inhabited by baby farmer
s. The appeal was dominated by Sir William Windeyer, who was known for his concerns about the social disadvantages experienced by women. Because of this:

  [he] proved controversial in criminal cases. With a rigorous and unrelenting sense of the retribution that he believed criminal justice demanded, he had a sympathy verging on the emotional for the victims of crime, especially women.11

  His ‘crusading impulse’ to protect women from oppression had been instilled in him by his mother and his wife, Mary.12 Controversially for the times, both Windeyer and Mary believed that ‘contraception and family planning were fundamental to the removal of disadvantage’ for women.13 The Makins’ case represented a collision between Windeyer’s beliefs and the day to day realities for working-class women like Miss Amber Murray, whose social disadvantage had led her to the baby-farmer’s door. For Windeyer, the link between lack of contraception, social disadvantage and the parasitical baby farmer could not have been clearer.

  Windeyer has also been described as ‘a forceful man, if not a judicial bully, who brooked little dissent in his courtroom’.14 Even worse for the Makins, he had no respect for their colourful lawyer, Sir Julian Salomons. As Sir Julian pushed back his chair at the Bar table, he began his arguments for the sake of saving the necks of John and Sarah. But in case he should be misinterpreted, he announced he was only concerned with the legal arguments in the case, not ‘with the moral culpability of either of these two prisoners’.

  The court report of the long discussions between Sir Julian and the appeal judges shows that they were confused about how the trial had been conducted, as well as the grounds of appeal.15 Sir Julian pointed out that Justice Stephen had decided there was insufficient evidence to identify Baby D as Baby Horace. He had instructed the jury to make a finding only on the second count—that is, whether or not the Makins had murdered an unknown child called Baby D. As stated in the previous chapter, the confused jury ignored this instruction.

  The three appeal judges were also confused, so much so that Sir Julian had to point out, six times, that the question of identity had been withdrawn from the jury. The temperature was rising in the courtroom, judicial tempers were already fraying and voices were getting louder—at one point Sir Julian asked Justice Foster, ‘Does not your Honor see that the body may be that of a child murdered by the accused, but . . . that it is [not] the child of Miss Murray?’

  Finally, the penny dropped for the judges and Sir Julian moved onto his next argument—if the jury only had to decide whether or not the Makins had murdered an unknown child called Baby D, why was the evidence from Miss Murray and Mrs Patrick about the disappearance of Baby Horace allowed to be admitted? Sir Julian then launched his main attack—the evidence regarding the other 12 bodies should not have been admitted as evidence of the murder of Baby D. Why? Because there was no independent evidence of the murder of these other children and none to show how Baby D died. To draw any similarities with the cause of death of the other 12 babies, ‘there must first be evidence of [other] killing, and . . . there must be evidence that the prisoner did the killing’. With no causes of death, the only similarities were similar burials.

  Sir Julian argued there was nothing in the evidence that was ‘inconsistent with the fact that they all died perfectly natural deaths’. The strongest case that could be made against the Makins was that Baby D had died from neglect. This meant the Makins could only have been guilty of manslaughter.

  But Windeyer was unconvinced and made an extraordinary statement which revealed his views at the beginning of the appeal:

  [w]hen once an unlawful killing is established, the presumption is that it is murder, and it is for the prisoner to rebut that presumption.

  Justice Innes interrupted to say that this was no longer the law because of recent legislation that had been passed in Parliament.16 Windeyer was not persuaded and disagreed with his fellow judge. Nowadays we know that Windeyer’s view is contrary to the presumption of innocence and the obligation on the Crown to prove its case beyond reasonable doubt.

  Windeyer posed question after question as he ferreted around for some reason—any reason—to explain why the evidence of the 12 babies was correctly admitted. But Sir Julian would not budge. Furthermore, the evidence could not be used against the female prisoner since there was no other evidence implicating her in the murder of Baby D. Because the court could not say who was guilty out of the two prisoners, both should be acquitted. With that final statement, Sir Julian announced he had finished his submissions. As he made himself comfortable on the brown leather seat behind him, he probably guessed he had already lost even before counsel for the Crown opened his mouth. Justices Innes and Foster had both said very little beside their dominant brother judge.

  Justice Windeyer’s presumptions

  It took the appeal judges a week to consider their decision, which they delivered on 30 March 1893. Sir Julian’s clever arguments had not been enough. The gallows were looming closer for John and Sarah. The main judgment was written by Justice Windeyer, with whom Justice Foster agreed. It went on for 27 pages, full of awkward language and long, convoluted sentences snaking down the pages. Justice Innes went out on a limb and disagreed with Windeyer’s reasons as to why Constable Joyce’s evidence about the 12 babies had been correctly admitted. In the end, he agreed the Makins’ conviction should stand but for different reasons.

  Who was right? Quite clearly the Makins were baby farmers and were guilty of something—unlawful burials, failure to register at least 13 deaths, most likely neglect in the case of some of the babies and murder in relation to others. But those presumptions should have been put to one side because the question at their trial had been whether they had murdered one particular child, an unknown baby called Baby D. Nonetheless, these and other presumptions were allowed to sprout.

  Windeyer’s first presumption was that Baby D had been identified as Baby Horace. Sir Julian had argued otherwise but then abandoned all such arguments. The Makins were left in a very peculiar position—their jury had been instructed it could not decide if Baby D was Horace Amber Murray (due to lack of evidence), the jury had ignored the instruction, the appeal judges ignored the jury’s mistake and Windeyer decided that Baby D was Horace Amber Murray even though this was a decision he could not lawfully make. On any view, the Makins should have been acquitted because the jury’s verdict was unsafe and unsatisfactory.17

  Windeyer said there was no authority to say that in every case of murder ‘the exact mode of killing must be proved’. To raise the bar that high would mean many murderers would literally get away with murder if they were clever enough to destroy all traces of how the killing occurred. But how can a jury decide if a baby has been murdered if there is no evidence about how it died, such as starvation, poisoning or smothering? There was a gap and the gap was filled with assumptions.

  Windeyer focused on the fact that the baby-farming Makins were only receiving ‘small sums’—ranging from £2 to £5—that were ‘obviously inadequate for [the babies’] support [for life]’, which meant they ‘had an interest in their death [and] supplied the motive for murder’. But here is where assumptions creep in like ants rushing to feed. Windeyer conceded that:

  [i]t is true that the conclusion of murder, which the jury were asked to draw from the evidence, was merely a presumption; but, in the absence of eye-witnesses of a crime, presumptions must often be acted upon in the administration of justice, if wrongdoers are not to enjoy immunity from prosecution.

  Windeyer was acknowledging that legal decision-making is imperfect—it may appear to be based on reason but sometimes that reasoning will be flawed because of gaps in the evidence. One may as well toss a coin—heads, murder; tails, death by natural causes. The problem is that juries have to decide one way or the other. When there are gaps in the evidence, their own assumptions, like liquid silicone, will effectively seal them in the same way that Windeyer was using his.

  Windeyer justified his reasons in ways that lawyers would not con
done today. With a greater emphasis on the need for the prosecution to prove its case beyond reasonable doubt, no judge today would get away with saying: ‘[i]f no attempt is made to rebut a strong presumption, it is not surprising that, to the mind of a jury, such presumption becomes conclusive proof of guilt’. Windeyer was referring to the Makins’ failure to give evidence. He went to great lengths to find support for this approach from other judges. But it was a fine line. When did ‘mere loose conjecture’, as one judge said, cross the line to become a presumption that was fair and just? Windeyer thought that presumptions arising from ‘crimes of the highest nature’, such as murder, were stronger or weaker according to the power of the defendant to produce other evidence to rebut them. But what about the presumption of innocence? Windeyer’s reasoning had consigned it to the garbage bin.

  In his separate judgment, Justice Innes was at pains to point out that he did not agree with Windeyer:

  I must not . . . be taken in any way to assent to the proposition that the fact that the accused did not go into the witness-box to give evidence can be regarded, however slightly, as a circumstance to be taken into consideration by the jury as making against the accused.

  What did Sir Julian think when he read Windeyer’s judgment? He had argued that the prosecution had failed to produce sufficient evidence to show that an unlawful killing had occurred but Windeyer had turned the tables on him by arguing that the Makins had failed to produce sufficient evidence to rebut a presumption of murder.18 No matter. This was a mere trifle of logic, light and fluffy like well-beaten cream. Windeyer had great faith in juries, quoting another judge who believed in: