the unanimous judgment and conscience of 12 men conversant with the affairs and business of life.
The problem was that few men in 1893 had much knowledge about baby farming, disease and infant mortality.
Having dealt with the cause of death problem, Windeyer had to consider the main and sticky issue. Should the discovery of 12 other babies in the former houses of the Makins, as well as the evidence from the unmarried mothers who had relinquished their children to the Makins, have gone to the jury? Sir Julian had argued that this evidence could only be admitted if there was prior evidence of the killing of these babies by the Makins. Windeyer’s reasons for concluding this evidence had been correctly admitted rested on flimsy foundations. Even though past criminal conduct by an accused was not normally admitted, he said, an exception arose when ‘common sense and our experience of life compel us to introduce’ such evidence.
The problem with using commonsense and life experience is the huge variability in both. Windeyer thought that evidence of a defendant’s past criminal conduct could be given when it was ‘so connected with the prisoner as to explain his conduct or motives in the transaction which is the subject of the trial’. But therein lay the problem—the connection had to be woven out of the commonsense and life experience of ordinary human beings. Sometimes this link would be a tight weave, at other times, loose. Windeyer revealed that he was not particularly good at this type of legal weaving since he had woven a very loose thread between Baby Horace’s death and the other dead babies by tying in the assumption that the mere existence of dead babies in the Makins’ former backyards meant there was no other explanation for their deaths but murder. The danger was that juries might assume guilt based solely on a defendant’s past criminal conduct. With no cause of death, this is what the jury must have done in the Makins’ trial when they considered Constable Joyce’s evidence of the 12 other dead babies.
Justice Innes disagreed with Windeyer’s approach. He believed that evidence of previous crimes by a defendant should not be admitted in a criminal trial because he feared that:
if you introduce any loose application of what untrained minds may call “a common-sense view” with reference to the reception of evidence, there may be great danger of the wholesome safeguards which surround the liberty of an accused person . . . being broken in upon and destroyed.
Unlike Windeyer, who thought that failing to admit such evidence would allow a guilty person to go free, Innes believed that the shock is greater and the threat to the justice system more profound ‘when an innocent man is convicted than when a guilty man escapes’.
With no cause of death for Baby D (who was assumed to be Horace), what was the connection between the Makins and the 12 other babies in their previous backyards? Innes recognised that the degree of connection was the problem with Windeyer’s reasoning. Commonsense says that the Makins were connected to the bodies of all 13 infants found in their former backyards, especially since most of the dead babies’ clothes and wrappings had been in the Makins’ possession. Twelve people, using their experience of life, might consider the Makins’ connection to be none other than foul play. But without a cause of death, commonsense also says that more is required before you can say the connection arises out of murder, especially in a society with a high infant mortality rate.19 Another 12 people, looking at the prevalence of congenital syphilis and other childhood diseases at the time, will realise that Constable Joyce’s evidence leads them no closer to a cause of death. Although it shows that the Makins were baby farmers who hid the deaths of their adopted babies by unlawful burial, the evidence points just as easily to death by neglect or disease as it does to death by murder.
Windeyer mistakenly thought that the evidence of the 12 other babies showed similarities with the unlawful death of Baby Horace, but there were no similar acts of killing, just similar burials. Although the Makins’ sudden disappearances from the houses in which the babies were found looked terribly suspicious, as unregistered baby farmers Sarah and John had good reasons for avoiding the law’s scrutiny.
Justice Innes was an astute judge who realised that the admissibility of Constable Joyce’s evidence was dependent on proof of the act causing death and proof of who committed it, John or Sarah. Answers to these questions were necessary, otherwise the problem as to what evidence is enough to prove a connection would be left to:
the varying views and turns of mind of different individual Judges—some, possibly, of an unreasonably convicting turn of mind, others, possibly, of a weak-kneed . . . turn of mind . . . It would introduce . . . an irresponsible discretion in individual Judges which might be disastrous to the due administration of justice.
Innes had Windeyer in mind as ‘an unreasonably convicting’ type of judge when he wrote this, since he made even more pointed comments about his brother judge:
if the loose practice which I understand my brother Windeyer to approve is to obtain, the day will not be far distant when an accused person will be tried and convicted of an offence, not upon evidence connected with that offence, but upon evidence that he has committed similar offences on other occasions.
But there was another assumption buried within Windeyer’s reasoning: ‘people are not in the habit of concealing the death of infants dying naturally by burying them in back yards’. Ordinary people might not, but baby farmers would. Why draw attention to themselves and their business practices by reporting any death, natural or unnatural?
Aftermath, after comments
The morning after the decision, the editor of The Sydney Morning Herald was satisfied with the outcome of the Makins’ appeal:
[t]he unanimity of the decision of the Supreme Court . . . will be accepted by the public with that kind of satisfaction which is naturally felt when the common opinion of the community . . . is . . . upheld . . . [by the law] . . . If . . . it had happened that . . . the conviction had been set aside, the result would have been a shock to the mind of the public and a weakening of confidence in the efficiency of our law.20
Another newspaper editor, also certain of the Makins’ ‘slaughter’ of all the infants discovered, was more philosophical in his reflections as he predicted dangerous outcomes:
Nemesis sometimes seems to dawdle but she almost inevitably overtakes her prey . . . The notorious Makin couple . . . have been the latest to discover that the purposes of fate, if slow sometimes, are relentless in their certainty . . . If . . . the Makins had been allowed to escape punishment through some purely technical flaw [that] fact would have been as strong an argument for Lynch law . . . as their atrocious crimes are for the retention of capital punishment.21
To the public and newspaper editors, the Makins’ guilt was obvious. The controversial evidence should have been admitted. This appeal and its outcome might have been the end of story. But there were to be several postscripts—the sentence, another appeal and a final desperate petition to the Governor.
CHAPTER NINETEEN
The law passes sentence
30 March 1893
On the day they lost their appeal, Sarah and John made their final appearance in the Darlinghurst Supreme Court. Sarah had to be assisted into the dock, whereupon she ‘hid her face in a pocket handkerchief’, not removing it the whole time she was in court. Justice Stephen asked ‘if they had anything to say why sentence should not be passed upon them’.1 John stood ‘in that semi-defiant attitude’ which now characterised him, uncowed and without remorse, and simply stated: ‘We are innocent’.
It may have been true they were, in a purely technical sense, innocent of the murder of Horace Amber Murray, since they knew that he had been buried in Burren Street. But likely as not, they were guilty of the manslaughter of Baby Mignonette Davies and other charges never to be laid.
Mr Williamson clambered to his feet and thanked Stephen for his ‘impartiality and fairness shown throughout the trial’, oblivious to the partiality the judge had actually shown. Williamson announced there might be an appeal to the Privy C
ouncil in England. But Stephen was not dissuaded from his task. He turned to the Makins and reminded them ‘[you have been] asked why judgment should not be passed upon you, and you have said nothing’.
John declared, still defiant, ‘I have only got to say that we are innocent; for the sake of our children’. Perhaps he was conscious of the shame enveloping his family, although his daughters knew only too well what he and Sarah had been involved in.
Justice Stephen’s stern voice reverberated around the courtroom as he announced, ‘I have one duty to perform. I am simply the mouthpiece of the law’. Sarah leaned against John, alternately sobbing and moaning throughout Stephen’s long speech. While there was no pleasure for Stephen in sentencing the contrasting pair before him, he was satisfied the jury’s verdict was correct, since he was sentencing them not only for murder but also for ‘wickedness’:
You stand before me . . . convicted of the crime of murder . . . [which was] accompanied by almost every incident that could possibly add to its wickedness. You took money from the mother of [Horace]; you beguiled her with promises which you never meant to perform, having already determined on the death of the child; you misled her by false statements as to your name; you deceived her as to your address . . . Finally, in order to render detection impossible . . . you buried the child in the yard . . . as you would the carcase [sic] of a dog.
Having begun to catalogue their wicked ways, Stephen’s emotions got the better of him. Before him stood the epitome of the underground trade in the lives and deaths of children in the city of Sydney, two people he believed were guilty of the deaths of every baby discovered by the police:
you were engaged in baby-farming in its . . . most hideous and revolting aspect. Three yards of houses in which you lived testified with that ghastly evidence that you were carrying on this nefarious and hellish trade, destroying the lives of those infants for the sake of gain.
It could not be expected that Stephen would inquire into the reasons why John and Sarah trod the degrading baby-farmer path to a conviction for murder, nor into a society that turned a blind eye to mother and child poverty while condemning unmarried mothers, their offspring and the supportive hand of baby farmers. But Stephen had more to say, this time not as the ‘mouthpiece of the law’ but as an ordinary citizen, distressed by everything he had seen and heard:
[t]hese young women [who] testified against you . . . called upon you, each of them with a cry, ‘Where is my child?’ To that cry . . . you . . . have never given an answer . . . and do not even now. Who, then, can doubt that the children met with their deaths in one way or other by criminal conduct on your part? And what for? What for? For a paltry sum of £5, or £3, or £2 . . . sums which you count as nothing against the lives and sufferings, and God knows the sufferings, of these poor babies.
Today, a judge would not make these types of comments, however heartfelt and morally correct, for the obvious reason that Sarah and John had not been found guilty of the murder of the babies of the other unmarried mothers. Then came the blackest moral judgement of all:
Surely two people stand before me whose hearts must be as hard as adamant; utterly indifferent to human suffering, and in whom conscience must be utterly dead. I only hope that in the time that may remain to you your hearts will be softened, and that you will endeavour to find mercy at the hands of Him who gave the lives you have taken away. I do trust you will remember these 13 children—I am not unjust in referring to them—I only hope and trust . . . that though you have given no account of them, the community calls upon you, and you must account to God.
Justice Stephen then placed a black cap on his head, which signified the transformation of judge into executioner:
Nothing remains for me but to pass the sentence of death upon you. The sentence of the Court upon you, John Makin, is that you be taken to . . . the place of execution . . . and that there you be hanged by the neck until your body be dead.
The same sentence was pronounced upon Sarah but in her case Stephen had found some mercy in his heart:
In your case, of course, I shall forward to the Executive the recommendation to mercy, where it will receive consideration, but the effect of that consideration I am not able to say. And may God have mercy on your souls.
As the sentence of death was pronounced Sarah collapsed altogether. She was ‘carried bodily out of the court by two constables’ down the steps into the tunnel below the court, sobbing loudly and wailing, ‘Oh! my babies; oh! my babies’. Exactly which babies she was referring to is hard to guess.
The next day, the newspapers confirmed the views of Justice Stephen: ‘from the popular point of view the conviction in one case stands for a conviction in all’.2 Editors and letter writers were not interested in whether or not the Makins had received a fair trial. The horror and shame from having the underbelly of Sydney’s baby market exposed was too great a burden to bear. The Makins had got their just desserts.
CHAPTER TWENTY
Last stop, London
11 April–21 July 1893
The fact that the Makins had decided to appeal to the Privy Council in Britain—the highest court of appeal in the Australian colonies at the time—was a desperate move. But it was their only hope of putting off the gallows now being erected in their minds, if not within the grounds of Darlinghurst Gaol itself.
It was a complicated process with no guaranteed outcome. At stake was a legal principle that had not been acknowledged before—one that had ensured the Makins’ conviction but, with a different set of legal minds, might ensure their acquittal. In order to appeal, however, the Makins would need the consent of the government. The ‘Humble Petition of John Makin and Sarah Makin’, signed by John and Sarah, was sent to the Executive Council on 11 April 1893.1 On the same day, the Council decided to commute Sarah’s death sentence to life imprisonment. It was one small mercy in an otherwise bleak year for the Makins.
Before the Council would consider the Makins’ petition, the Minister of Justice wanted to ensure that if leave to appeal was granted it would be prosecuted straight away. Mr Williamson obtained a statutory declaration from John’s brother, George, verifying that the leave to appeal was ‘bona fide and not for the purposes of delay’ and that he and his other brothers were ‘in a position to pay the costs of such an appeal’. With that assurance, the Makins were in luck. On 21 April 1893, the Council delayed John’s execution for three months to enable him and Sarah to petition the Privy Council for an appeal.2 However, John was informed that if his appeal failed his sentence of death would be carried out, no matter how long the whole process took.
The Executive Council’s decision was controversial. There was disquiet about the ‘indefinite amount of delay’ because no-one knew how long it would take the Privy Council to hear the appeal. Newspaper editors did not like matters to be ‘practically shelved’3 and harked back to a previous case in which an appeal to the Privy Council had taken such a long time, the death sentence was commuted to life imprisonment.4 For the Makins, it was the torture of time, squashed as they were onto the back shelf of life, not knowing when, or if, they would ever taste freedom again. But the Attorney-General, Edmund Barton, who would later become Australia’s first prime minister, decided there was an important legal question to be decided. With a difference of opinion between Justices Windeyer and Innes, Barton recognised this difference was ‘likely to arise frequently in criminal trials [and] there was a need to have the matter settled’.5
The Judicial Committee of the Privy Council was an ancient institution comprised of judicial members of the House of Lords who sat as a court to hear appeals from the British colonies on behalf of the Sovereign, Queen Victoria. As expected, the petition to appeal had captured their legal interest, with the seven Law Lords deciding to review the case of two infamous baby farmers from a far-flung colony.
The Lord High Chancellor, Lord Herschell, announced their verdict in a cable message sent to the New South Wales Government on Friday, 21 July stating ‘the
appeal was dismissed, but the Privy Council will give their reasons in November’.6 These reasons did not become available until 12 December 1893. When the New South Wales Attorney-General received the cable, there was nothing left to do but inform the prisoners and fix the date for John’s execution. Although John died without knowing why his appeal to the Privy Council had been dismissed, ironically, his name lives on in the common law every time his case is cited as precedent, as it has been throughout the last 120 years. It was small comfort to the Makin family that the Privy Council’s decision contained the first statement of principle or legal rule as to when a defendant’s prior criminal conduct could be admitted in a trial.
Short and to the point: the Law Lords have their say
The New South Wales Government had hired an arsenal of barristers to oppose the Makins’ appeal. If Sarah and John could have been colonial flies on the oak-panelled walls of the courtroom they would have dropped to the floor in shock to see the four English barristers who had been hired to oppose their own lawyer’s arguments.7
As it turned out, four brains were better than one since, in their very short judgment, the Privy Council agreed with the four lawyers for the New South Wales Government that the evidence of Constable Joyce and the unmarried mothers was rightly admitted to rebut a suggestion that death was accidental, or to disprove any other defence raised by the defendants. The problem was no such defences had been raised by the Makins because they had denied being baby farmers and denied knowledge of the child. The essence of the Privy Council’s judgment is encapsulated in the statement that ‘[t]heir Lordships do not think it necessary to enter upon a detailed examination of the evidence in the present case’. If they had done so, their reasons would not have withstood closer scrutiny.
The Baby Farmers Page 24