A PRESUMPTION of INNOCENCE

A PRESUMPTION of INNOCENCE1

PRELUDE:2

Tuesday April 11, 1922: 3

The Western Australian morning sun already had a bite to it, promising a return to semi-summer heat. The flies had arrived in swarms at the first scent of blood. 4

Six people were gathered around the body. Mrs. Travis, mouth agape, wide-eyed, held young Chris face first against her apron. Ashen-faced her husband knelt next to the body, bloodied rock in one hand, baby Jean cradled in the other. Behind him the truck driver restrained an overwrought and aggressive Bill Ferguson. Within this somber circle lay the body of the station’s owner, James Hardinge, his life’s blood and brain matter oozing from his smashed left eye socket and cheek bone. The gore trickled down his face, over some rocks and dripped into the dry West Australian dirt.5

Eventually, the truck driver instructed quietly, “Mrs. Travis, please take your children into the house; and then bring a blanket out for Mr. Hardinge.”6

“Yes, yes” she mumbled in stupified obedience. Taking the infant from her husband, she led young Chris towards the main house as instructed. The two other men seemed to come out of a trance. Getting up, Travis looked at his bloodied hand as if seeing the blood for the first time.7

The truck driver spoke with kindness, but with authority, “Mr. Ferguson, will you please stay here with Mr. Hardinge while Mr. Travis and I unload the last of the supplies from the truck. There’s a good man, sir.” 8

Glaring at Travis as he brushed past, the older man meekly allowed the strapping driver, who seemed naturally to take command in the face of death, to guide him to a position next to the body of his friend and business partner.9

“This way, please Mr. Travis. Once we empty the truck we can load the body, and I can drive him into Southern Cross.” The farmhand complied, and the circle shrank to two, one dead, one swearing vengence.10

*11

Introduction12

“Pops” kept a journal from the day he joined the 10th Light Horse in 1915, until he retired from his law practice in 1962. When he died in 1971, Patricia and I inherited our grandfather’s multi-volume set of journals. Written in his copperplate script, it was a labour of love over the next decade for us to transcribe and type up this remarkable piece of family and social history. 13

‘Pops’ grew up on a farm near Northam, Western Australia, where he attended highschool. He worked on the family farm until the outbreak of the Great War, and volunteered for the 10th Light Horse as soon as possible. Wounded on the Gallipoli Peninsula, he later served in Palestine and Jordan. The war had changed him, as it had so many others, and when he returned to W.A. in 1919 he found that he didn’t fit in at home any more. Drifting around, he eventually got a job as a teamster with the G.W. Curtis Cartage Pty Ltd in Merredin, driving a 12-horse wagon in the wheat-belt. When the company imported a half-dozen refurbished war-surplus Leyland RAF-type Lorries, he was given a stake-sided one and sent to Southern Cross to run a one truck agency, just he and a clerk.14

I’m the ‘who-dunnit’ fan in the family, so this section in Grandfather Hamilton’s journals dealing with his first “case” holds special attraction for me. 15

* 16

Chapter 1: Accusation and Arrest.17

After delivering the corpse to the doctor for examination, David Hamilton drove Bill Ferguson around to the police station. Seething with rage, Ferguson jumped out of the cab before Hamilton could come to a full stop. Ferguson burst throught the station door like a mad man, taking Constables Dickson and McFee by surprise. “Wor Jems is dede,’ the overwrought Geordie burst out, “an tha mangril Travis kilt em! Youz lot best nab em n’ew, afor the gadgie hadaway on youz!18

Dickson, who really didn’t understand the man’s excited Geordie dialect, at least had presence of mind enough to calmly sit Ferguson down, and ask him to take a few breaths before telling his story. He also asked constable McFee, his junior at the station, to brew up some tea.19

By then the lorry driver had walked in. “James Hardinge is dead,” Hamilton announced calmly. “We just left him with Doc Harris. It may have been an accident. Or, it may have been a killing.” 20

Hamilton took a chair next to Ferguson. It took over an hour to get the details out of Ferguson coherently. Hamilton only confirmed that he hadn’t seen the death.21

As soon as he had received an opinion from Dr. Harris, and a sworn statement from Bill Ferguson, Constable Dickson drove the police station’s rattletrap Model T along the Marvel Loch track south to ‘Tyneside Farm’. Pullling up in front of the Travis cottage he knocked on the door. A downcast Mr. Travis openned the door, and took afright at the presence of the police constable. 22

“Mr. Christopher Travis?” the constable enquired.23

“Yes,” the nervous Travis answered.24

“Christopher Travis, I am arresting you in the name of the Crown for the unlawful killing of your employer, Mr. James Hardinge. You are required to accompany me to the Southern Cross police station for questioning. Will you come along quietly, sir?”25

“This is all a mistake! I didn’t kill Mr, Hardinge. He fell, it was an accident!” he protested vehemently.26

The constable, seeing the man’s distressed resistence, placed manicles on him, and led him out to the car, seating him in the back, where the handcuffs were attached to shackles mounted in the floor.27

A picture of defeat, Mrs. Travis merely stood at the door of the pitiful shack, babe in arms, and toddler Christopher at her side. “Hitch up the wagon, luv, and come after, into So’ Cross. There’s a good lass,” Mr. Travis called out, attempting an encouraging tone, as the ten year old tourer chugged off down the dusty track. “We’ll soon sort this, and I’ll need the wagon to get home.” 28

For his part, Constable Dickson concentrated on driving the ageing machine along the rough track, and did not try to shout over the noise to his now miserable passenger. Travis merely stared, dumbfounded, at the bush ahead of him, afraid to contemplate the possible outcome of his arrest.29

Tears flowing in trepidation, Mrs. Travis obeyed her husband’s instruction. Once the two horses were hitched to the farm’s wagon she bundled up some scones and water, spare nappies, with coats and blankets against the evening chill she anticipated during the drive back, and headed off to Southern Cross. It would be dusk before she could get there. As she prodded the plodding horses, mercifully the baby slept, and Christopher was subdued into silence by the magnitude of the confusion of the day’s events. Mrs. Travis poured out a litany of mumbled prayers, heartfelt petitions in the face of overwhelming disaster.30

*31

Bill Ferguson and some of his mates from the pub stood outside the two-man police station awaiting the return of Constable Dickson and the prisoner. Grief, anger, resentment, and a desire for revenge, combined with a few too many pints of lager, had brought these men to the point of combustion. As they waited they only became angrier; until the remaining constable, Patrick McFee, had to come outside and warn them that they were in danger of being arrested themselves, for drunk and disorderly conduct. That subdued them into sullen silence, if not sobriety, and they simmered slowly until Constable Dickson arrived with this prisoner.32

Constable McFee wisely came out of the station and whispered in Dickson’s ear before he could unchain the prisoner. Dickson looked over at the restless group of four men, and tapped the nighstick on his belt meaningfully for them to observe. Then he and McFee quickly frogmarched the hapless Travis into the station and locked him into a cell. Only then did Dickson emerge and talk with Ferguson.33

“What’s all this in aid of then?” the bulky constable asked, legs sread, arms akimbo, accusingly.34

“Mi mate Jems is dede! Kilt by tha bludie Travis. Sa us com alang ta maek shur tha hacky gadgie na hadaway fram yehsel,” said Ferguson, his Geordie accent made more incomprehensible by alcohol.35

“We just wanted to make sure you did your duty, constable. That’s all,” added one of his mates in clarification. He turned to Ferguson and said, “Let’s go Bill, and make the funeral arrangements.”36

Ferguson allowed himself to be led away, but not before he bellowed a curse on the incarcerated Travis that was designed to freeze rosebuds; ending with the promise “Us yll see yer hung, ya murdren swyn, maek buk onnit!” 37

Constable Dickson watched the men until they turned the corner of Antares Street. Then he went inside. “They’re gone. Let’s be having Mr. Travis out of his cell now, and book him proper. Then I’ll get on the phone to Merredin and chase up the Magistrate.”38

*39

Mrs. Travis, weary and fretful, arrived in Southern Cross just at dusk, as she had anticipated. After a tearful and intimidating stop at the police station she took the children to the Country Womens’ Association hall, and the three of them bedded down there in the wagonbed for the night. She and Chris finished off the scones she’d wisely brought. The baby at least was breast-fed. In the morning she could go to Sommerfield’s store and buy some canned Nestles for young Christopher. She had no comprehension of the stress tomorrow would bring.40

***41

Chapter 2: The Preliminary Hearing, day one, Wednesday the 12th.42

The fourteen-hour steamtrain journey from Perth to Kalgoorlie was made bearable for the two men by having only boarded at Northam and disembarked at Southern Cross. This abreviated journey was both restful and comfortable, compaired to the twenty or more hours a road journey would have taken by car. Once off the train, McKinley Hemsworth, Barrister, and Thomas Grantford, Solicitor, took their matched pair of Gladstone bags and walked to where a pre-arranged carriage waited. It took them to the boarding house of one Mrs. Jennifer Stowecroft, widow of Colonel Stowecrost, late of the Scott’s Greys, and formerly a client of Mr. Grantford. 43

After depositing their luggage they took the carriage directly to the police station to interview Mr. Christopher Travis.44

At the same time Magistrate Arlington C. Worthington was arriving in town, having suffered the chauffered drive from Merredin over the lamentable track that was called a road. He was driven to the residence of shopkeeper William Summerfield. The driver then went on to the police station to announce the magistrate’s arrival.45

The Magistrate was met at the door by Summerfield himself, and they exchanged the requisite Masonic handshake and greetings before entering the sittingroom of the substantial house. Summerfield had come to Southern Cross in its earliest days, when it was a supply centre for the Coolgardie and Kalgoorlie goldfields, and choosing the more relieable ‘prospecting’ of merchandising, made a modest fortune off his store. Handing the Magistrate a large Scotch and tonic, Summerfield toasted his health, and perfunctorily asked after his several hours’ drive out from Merredin. Once the pleasantries were out of the way, Summerfield got down to business.46

“Hardinge was one of ours. While it is one man’s word against another, as far as I can tell, it is essential that Travis swing for Jim’s death. He had, ah, “connections”, in the community that will not be pleased if Travis is not bound over for trial. Indeed, members of the lodge would see it as a direct undermining of their influence hereabouts if this Travis bloke weren’t sent to Perth for trial. And that could be tricky for me, if you take my drift.”47

“I see your point William, but I think we can allow the facts to determine the outcome. But don’t forget, the Preliminary Hearing merely establishes if a prima facie case exists. It’s up to the Senior Sergent presenting the deposition to prove the merits. He drove me here, and should be down at the station now to write up his deposition. I should be able to wrap up the whole thing in this afternoon’s sitting.”48

Summerfield refilled their glasses. The magistrate was to lodge overnight with Sommerfield, and dine with a few fellow Masons that night. But now he needed to change and go to the courthouse to prepare for the hearing that would seal Christopher Travis’ fate.49

*50

The accused was brought in and placed in the dock, with constable McFee standing behind him. Senior Sergent Macintosh stood at the prosecutor’s desk. Barister Hemsworth at the defense table, with the solicitor seated behind him. The courtroom, built in the heyday of the goldrush thiry years before, was filled with Hamilton, a glowering Ferguson and his three mates, Mrs. Travis, and several local leading lights. Mrs. Travis’ children had been left with a CWA friend for the afternoon.51

“Hear ye! Hear ye! The Court of Petty Sessions for the Shire of Yilgarn is now in session. Magistrate Mr. Arlington C. Worthington presiding,” announced the clerk. “All rise.” There was a scraping of chairs and a shuffling of feet.52

The magistrate entered in his robed formality, and took his elevated seat. Those present resumed their seats with a repeat of the noise.53

“This is a Preliminary Hearing,” Worthington began as preamble, “in the death of Mr. James Hardinge, of this shire. Senior Sergent Macintosh is presenting the deposition for the Crown. I see that Mr. Travis has retained counsel. If you please, sir.”54

The barrister took the magistrate’s invitation for introductions. “McKinley Hemsworth QC, barrister; ably led by Mr. Thomas Grantford, Solicitor; practicing in Northam and York, Your Honour, and today representing Mr. Travis.”55

“Your reputation preceeds you, Mr. Hemsworth. But, pray tell us how a barrister of your formidable practice comes to represent a Southern Cross farm hand?” A question the local Masons wished to know, as well as did the puzzled magistrate.56

“I received a phone call from the local Member for Northam, Your Honour, requesting that I attend this hearing on Mr. Travis’ behalf. We immediately made arrangements to take the train here.” There was a quiet but anxious stir among the lodge members at the mention of the state’s Deputy Premier; a man known for his anti-Masonic views.57

The magistrate hid his displeasure at the politisation of the hearing. “Very well, Mr. Hemsworth, let us proceed. Senior Sergant Macintosh, please read out the charges.”58

“Your Honour, the Crown alleges that on the morning of this Tuesday just past, Mr. Christorpher Travis, labourer of ‘Tyneside Farm’ in Yilgarn Shire, did willfully and unlawfully murder his employer, Mr. James Hardinge by striking him on the head with a rock. The charges have been sworn to by an eye-witness.”59

“How does the accused plead?”60

Mr. Hemsworth stood and addressed the magistrate. “If Your Honour pleases, my client enters a plea of ‘Not Guilty’; and requests that this Preliminary Hearing hear oral evidence from four witnesses on this charge.”61

The Senior Sergent interrupted immediately, “Objection Your Honour! Such a request for oral evidence is uncalled for, unwarrented, and a waste of the court’s time. The witnesses would have to be subpoened, which would delay the hearing and inconvenience the court.” The sergent knew his magistrate’s preferences well. 62

Hemsworth responded calmly to the sergent’s plea. “Your Honour. I appreciate the prosecutor’s concern for the court’s time and processes. I would remind the senior sergent that there is ample precedent for the taking of oral evidence in a Preliminary Hearing,” bowing slightly towards the bench he continued, “though of course always at the Magistrate’s discretion. Secondly, three of the four witnesses are already in this courtroom, and may be so ordered by the court to give oral testimony. The fourth is Doctor Harris, who may easily be fetched from his office by Constable Dickson at a time convenient to the court. My main purpose in requesting oral testimeony is precisely to spare the court additional time and expense; for I believe that a full canvassing of the witnesses testimony at this time will demonstrate conclusively that no Prima Facie case exists. Far better, Your Honour, to have the Crown’s case be proved unsound now, rather than in the Supreme Court; where time and expense would be most publically compounded.” ‘And the magistrate’s judgement besmirched’, he didn’t have to add.63

The magistrate contemplated the barrister’s argument for several minutes. But underneath the arguments he searched his mind for deeper issues. The Deputy Premier’s hand was here somehow, and that fact urged him to act with due caution.64

“Objection overruled. Oral testimony by the four witnesses is hereby ordered from the bench.” Looking at the rear wall, the magistrate said, “Given the hour, I will hear evidence until four P.M. If we have not concluded the oral testimony by that time, then we will re-convene at nine A.M. tomorrow. At this time I will allow a fifteen minute recess for the Crown and counsel to prepare, and for Doctor Harris’s presence to be obtained. Will the clerk please escort the witnesses into the hallway, and see to it that they speak to no one.”65

“All rise,” intoned the clerk as the magistrate swept out of the room and into his antechamber. Almost immediately there was a knock on his door, and Sommerfield entered without waiting. “What is going on?” he demanded to know. “This isn’t a trial! How can you allow this? Hemsworth must have some trick up his sleeve!”66

“Calm down Bill,” Worthington said in his friendliest tone, to cover his insecurity. “It is perfectly legal to request oral testimony; even if it is not the norm at hearings. And,” he continued, in order to forstall a tirade by the doyen of the local plutocracy, “if the Deputy Premier is behind this, then to reject the request would surely lead to some significantly unpleasant consequences.”67

“But for a farm hand? It doesn’t make sense! What’s to be gained?”68

“Listen Bill. By allowing oral testimony I have given us time. Time for you to make some phone calls to Perth. And time for me to find out what tricks Hemsworth is trying to slip by us. I still have the last say, regardless of what the testimony is. If the facts give me the latitude, then I can bind this Travis fellow over for trial. Once he is in Perth, we can easily out-manoeuver the Deputy Premier and bring about the execution of Travis for the murder of your lodge brother.”69

“Yes, yes. Alright. We’ll let it go your way,” the local influence pedler agreed, albeit reluctantly.70

Once the Court of Petty Sessions had reconvened, Bill Ferguson was called to give the first testimony. After being sworn in, he stood glaring at Travis as Senior Sergent Macintosh began the questioning by asking, “Would you please describe Mr Hardinge’s death in your own words.”71

“W’ wuz unladding Daffid’s lorry. Daffid and wuh wuz tha cuddy, an tot hacky Traffis war on tha tray.”72

“Excuse me, Mr Ferguson, just a moment please.” Looking down at the clerk, the Magistrate asked, “Can you understand this man’s Geordie dialect well enough to transcribe it into standard English?”73

“Yes, Your Honour, I believe so.”74

“Very well. Please continue Mr Ferguson.”75

“Aye, weel…. Wor met Jems wuz aboot mekin banter wit tha lass. Tha lass haad tha wee bairn inner arms like, and wee Chris wor at nee. Tha bluddy Traffis get up angry like, an cummup aw nebby, jumpin doon frommat lorry tray. Tha lass cried aut laud “Christopher!” like. Tha hacky gadgie e’ grabb ahaad offen a rook and strook wor met Jems innat eye!” Pointing at Mr Travis Ferguson said “Wuz him, wannit, wot kilt wor met Jems, aye.” His friends in the audience growled their approval, until a baleful eye from the magistrate silenced them.76

“Thank you Mr Ferguson,” said the Senior Sergent.77

Barrister Hemsworth stood and addressed the witness. “Mr Ferguson, we all share your distress at the death of your friend. As I understand it, the two of you were business partners. Is that that correct?78

“Aye. W’ cam aut to ‘Stralyer after tha Boer War an worked in Kal. Then cam w' her to So’ Cross.”79

“You served together in the Boer War?”80

“Aye. Seddit dint a.”81

“And you were both from Newcastle?”82

“Aye. Bairns and laddies booth.” 83

“I understood you to testify that you saw Mr Travis actually strike Mr Hardinge.”84

“Aye, us saw im do’t, a did.”85

“Why did Mr Travis get down from the lorry?”86

Ferguson looked uncomfortable, and replied, “Dunno, do a?”87

“Did he often chat up Mrs Travis?”88

Again the answer, “Dunno, do a?”89

Hemsworth changed tack. “Why was Mr Travis on the Lorry, and not carrying the sacks?”90

Ferguson sneered, “Tha divvie’s no strang. E’ cudna cuddy a sek iz’lf.”91

“Are you saying then, that Mr. Travis was not strong enough to carry a sack himself, so Mr. Hardinge put him to unloading the truck while you and Mr Hamilton carried the sacks and boxes into the barn?”92

“Aye, s’tru. E drug em ta tallgate, an us cuddy them inta tha shed.”93

The barrister turned to the Magistrate, “Your Honour, I have no more questions of this witness at this time, though I reserve the right to recall him at a later hour.”94

“Very well, Mr. Hemsworth. Call your next witness Senior Sergent.”95

David Hamilton was called and sworn in.96

“Mr. Hamilton,” the Senior Sergent began, “ would you please repeat the testimony you gave to Constables Dickson and MacFee.”97

Hamilton began in a clear, confident voice, “On the morning of Mr Hardinge’s death I drove a lorry-load of equipment and supplies out to “Tyneside Farm”. Mr Travis was on the truck doing the unloading, while Mr Ferguson and I carried the sacks and boxes into the barn. Mr Hardinge was talking with Mrs Travis, standing between the truck and her vegetable garden. As I shouldered a bag, I heard Mr Travis jump down and walk over to his wife and Mr. Hardinge. They began arguing hotly, though I could not hear the actual argument, only the angry tone. I was entering the barn when I heard Mrs Travis scream “Christopher, no! Stop!” The next thing I heard was Mr Ferguson cursing Mr Travis at the top of his lungs and calling him a murderer. I dropped the sack I was carrying and ran to the commotion. I found Mr. Travis kneeling beside the body of Mr Hardinge. In his right arm he held his baby daughter, his left hand held a bloodied rock. Mrs Travis was standing nearby, holding their three year old boy to her side. Mr Ferguson was beside himself in anger, and I had to restrain him because he began beating Mr Travis on the head and back with his fists.”98

“What transpired then, Mr. Hamilton?”99

"While I held Mr Ferguson I instructed Mrs Travis to take the children inside the house, and bring a blanket back for Mr. Hardinge. I then instructed Mr Travis to help me finish the unloading; and directed Mr Ferguson to stay with his friend’s body.”100

“It was evident then that Mr Hardinge was dead?”101

“Yes. He wasn’t breathing, and the damage to his face and skull was significant, as was the amount of brain matter and blood on the ground. He was clearly dead.”102

“What happened then?”103

“Mr Travis and I quickly unloaded the last of the items from the truck. By then Mrs Travis had brought one of Mr Hardinge’s blankets from the main house. Mr Ferguson and I wrapped the body and carried it to the truck, where I tied it down securely. Wishing to keep Mr Ferguson and Mr Travis seperated I instructed the Travis’s to stay at the farm. I then drove Mr Ferguson and the corpse into Southern Cross to Doctor Harris’ surgery. Mr Ferguson and I then went on to the police station to make our statements.”104

“Your Honour, I have no further questions of this witness.”105

“Thank you Senior Sergent. Mr. Hemsworth.”106

“Your Honour…” .."Mr Hamilton, you served in the Great War, I believe.”107

“Yes, sir. In the 10th Light Horse.”108

“And you saw action in Gallipoli and the Middle East, is that correct?”109

“Yes, sir.”110

“So, it is safe to assume, that while you are not a medical person, you are familiar with fatal wounds.”111

“I believe that to be so, yes.”112

“And you attributed Mr Hardginge’s wound to the rock in Mr Travis’ hand, is that correct?”113

“Yes, sir. It appeared large, heavy and sharp enough to have inflicted the wound, yes.”114

“You say sharp. How do you mean?”115

“The rock was pyramid in shape, probably six or seven inches tall, and four or five inches wide, with a flat base. I think it was some form of quartz. It was covered in blood and gore.”116

“You stated that Mr Travis was holding the rock in his left hand. How so? Was he hefting it in his palm; or grasping it to strike?”117

Hamilton thought for a moment. “No, neither of those. He was resting his weight on it, kind of holding its side.”118

“I see. And the baby, Jean isn’t it, where was she?”119

“He had her craddled in the crook of his right arm. He was kneeling beside the body, between it and the truck.”120

“So, as I understand it, you did not see Mr Travis actually strike the deceased, is that correct.”121

“No, I did not see him strike Mr Hardinge. I was in the barn; and the truck would have been in my line of sight in any event.”122

“Where was Mr Ferguson when you were in the barn?”123

“He had just dropped his sack on the pile and passed me as I entered.”124

“Mr. Hamilton, do you often make deliveries to “Tyneside Farm”?125

“I have recently, sir. Mr Hardinge was putting up additional outbuildings. The previous week I’d delivered lumber, a keg of nails and roofing iron. This week it was cement, oats for his draft horses, some drygoods, and a crate of live poultry.”126

“Did Mr Ferguson discuss the alleged murder with you on the drive into Southern Cross?”127

“No, sir. He did not speak to me during the drive; just muttered to himself a lot, curses and the like on Mr Travis, mostly. Stared out the window, shocked I’d guess, loosing an old friend and all.”128

“When did you first hear Mr Ferguson accuse Mr Travis of murdering Mr Hardinge?”129

“At the police station. He made a statement accusing Mr Travis. But it seems he was the only witness.”130

“Thank you Mr Hamilton. Your Honour, I have no more questions at this time. However, again, I would reseerve the right to recall this witness later.”131

“So granted. Mr. Hamilton you are excused. Call Doctor Harris.”132

Doctor Harris, an elderly man who had only openned a practice in Southern Cross since the end of the Great War, entered the courtroom and took the oath.133

“Dr. Harris, you examined the body of Mr Hardinge when it was brought to your surgery yesterday, is that correct?”134

“Yes, Senior Sergent. Mr. Hamilton and Mr Ferguson brought the corpse in through the back entrance, and on my instructions I sent them on to the police station while I examined the deceased.”135

“What were your observations and conclusions?”136

“The victim’s left orbit and cheek bone were smashed and the bone fragments driven into the frontal brain tissue. The left eye had been destroyed by whatever object had penetrated the socket. There was a deep jagged wound in the frontal lobe of the brain, and chips of stone were embedded in the grey matter. There was evidence of massive bleeding from the wound.”137

“In your opinion, doctor, what caused the injury?”138

“A single blow to the head by a rock of roughly triangular shape, with a long pointed end. There did not appear to be any other wounds on the body, except scrapes on his hands and forearms. He had also been drinking prior to his death, as the smell of whiskey was still pronounced.”139

“Thank you doctor.” Mr. Hemsworth?”140

Thank you Senior Sergent”….. Doctor, Had Mr Hardinge ever been a patient of yours?”141

“No, I only knew him be reputation.”142

“Reputation? Could you elaborate, pease?"143

“Objection, Your Honour, such evidence amounts to hearsay.”144

“Your Honour,” countered the barrister, “as this is only a hearing and not a trial I would request that hearsay be admissable; as firsthand corroberating testimony can be drawn later from the community if you deem it necessary.”145

“Agreed, Mr. Hemsworth. Objection overruled. Proceed Doctor; but please, no supposition.”146

“Yes Your Honour. As I was saying, Mr Hardinge had a reputation in the area. He was of a type that is given to…ah… rough play, as it were.”147

“And how do you know of this?”148

“I have been called on occasion to the local hotel of a Saturday night to attend to the recipients of a thrashing by Mr Hardinge. And once, I … ahem… I treated a certain woman of the locality for a …. laceration …. inflicted by Mr Hardinge’s. It was not life threatening or disfiguring; merely…. ah…. a reason to avoid sitting for a while.” There was a snicker from Ferguson’s friends. 149

“Anything else?”150

“Well, yes. A member of the Inland Mission once told me that several of the half-caste children in the area were fathered by Mr Hardinge, though he disavowed them entirely it seems.”151

“In the course of your examination, did you take Mr. Hardinge’s measurements?”152

“Yes, he was six feet once inch tall by measurement at the time of his death. I estimated that he weighed between fifteen and seventeem stone.”153

“A formidable person no doubt. Doctor, please look at Mr Travis. Would you please estimate his height and weight.”154

The doctor looked the man over twice, and answered, “I’d estimate five foot seven, and onehundred and ten pounds, give or take.”155

“Thank you doctor. Your Honour I have no further questions of this witness.”156

“Very well. Thank you doctor Harris, you are excused…..Given the hour, court is in recess until tomorrow morning at nine a.m.”157

“All rise,” the clerk intoned. The magistrate left the room, changed out of his robes in his private rome, and repaired to Sommerfield’s house.158

*159

The evening meal at Sommerfield’s, attended by the magistrate, the host and the Masons who had attended court that day was a frosty affair. 160

“It really doesn’t matter, gentlemen,” Worthington ended defensively, “because no testimony has been given that would keep me from binding him over for trial. Tomorrow will be short and sweet I am sure.”161

“But,” asked Addison Granger, the hotel owner, “why has Hemsworth gone to all this trouble?”162

“Does it matter?” replied Worthington. “He has merely shown his hand prematurely, and allowed the Crown to see what sort of defense he’d raise at trial. He has really done us a great favour. Hoisted on his own petard, I’d say!”163

“We’ll all drink to that,” laughed Granger.164

“Just make sure who it is that gets hoisted in the end, Worthington,” a glowering Sommerfield said in dry menace. And the meal ended on that awkward note of self-preservation by the host.165

***166

Chapter 3: The Preliminary hearing, day two, Thursday the 13th.167

“All rise. The Court of Petty Sessions is recalled, the Honourable Mr. Arlington C. Worthington, Magistrate, presiding.”168

A somewhat under-the-weather Magistrate entered from the side room, and took his seat. Last night’s brandy was still causing him a headache. Or was it the political pressure that was mounting on him? He looked around the courtroom and wondered.169

For today, reporters for both the 'West Australian' and the 'Kalgoorlie Miner' newspapers were in court, pencils at the ready. They’d arrived last night, and spent their evening pumping the local constables, the mortician, and Ferguson’s drinking partners for information. Armed with all that [mis]information, today’s decision would make juicy copy to go out over the wires to their respective editors. 170

“Senior Sergent, please call your witness.”171

“I call Mrs. Travis.”172

After Mrs Travis had taken the oath Magistrate Worthington addressed her; perhaps a little more than patronisingly. “Mrs Travis, in a trial, a wife cannot be compelled to give testimony against her husband. This is a preliminary hearing, and you have voluntarily agreed to testify. I remind you that you are under oath to tell the whole truth. Do you undrstand?”173

“Yes, Your Honour,” she replied meekly.174

“You may proceed Senior Sergent.”175

“Mrs Travis, how long have you and your husband worked for Mr Hardinge?”176

“Eighteen months; ever since the farm was taken up by Mr Hardinge and Mr Ferguson.”177

“What were your duties there?”178

“In addition to my own familiy, I cook the meals, keep the main house, do the washin’, tend the vege garden, and mind the chooks.”179

“Your baby, Jean was born some eight months ago, is that correct?”180

“Yes.”181

“Which means that you were with child most of the first year at the farm?”182

“Yes, that is correct.”183

“So, Mr Harding was very considerate of you, in keeping you and your husband on under those circumstances.”184

“I… I guess,” she answered, puzzled by the question.185

“Now, Mrs Travis, I want you to think very carefully, and give me a truthful answer to me next question. Did you see your husband strike Mr Hardinge?”186

“No sir, I did not,” she stated with as much strength as her intimidated personality could muster.187

“Did you scream “Christopher, No! Stop!”188

“Yes.” There was puzzlement in her voice.189

“Which is the truth, Mrs Travis?”190

“I….ah…both…you see…”191

“That will be all Mrs. Travis,” the senior sergent interrupted her, obvious contempt in his voice at the apparent contradiction.192

“I have no further questions of this witness Your Honour.” He seemed satisfied that he had discredited the witness.193

Mr. Hemsworth, you may procede,” the magistrate allowed, slightly bored.194

“Mrs. Travis, please think back on the morning that Mr Hardinge died. What were you and he talking about before your husband climbed down from the back of the truck?”195

She took her time, and seemed embarrased. “I..ah…we…he,” she began in a fluster.196

“It’s alright Mrs. Travis. Take your time. I am sorry that these questions are necessary, but please answer fully.197

She reddened further, but attempted an answer. “He…ah…he was making improper advances, sir.” Her eyes reddened and tears formed. She dabbed at her eyes.198

“He made improper suggestions to you, you say. Did he do this often?”199

“Yes. Especially if I was working in the house alone. He was not a decent man, Mr. Hemsworth. He was always trying to take advantage of me after the baby was born. I was scared of him. And of Mr Ferguson to.”200

“Did Mr Ferguson ever make improper advances towards you?”201

“Yes, sir. But only if Mr Hardinge was away.”202

“Did your husband know about all this?”203

“Not all of it. He guessed a lot, though.”204

“Why didn’t he confront Mr Hardinge?”205

“You didn’t know Mr Hardinge did you? He was a big brute of a man. And my Chris, well he’s a bit on the thin side, isn’t he? Mr Hardinge was mean, especially when he’d been drinking. I don’t say my husband was afraid. It’s just, well, we needed the job you see, to get enough money together to take up our own farm. Then we could leave.” 206

“Thank you Mrs Travis, I’m sorry to have had to ask you those embarrasing questions. Now, please tell us, why did you scream “Christopher, No! Stop!” ?”207

"My son, little Christopher, had been holding my hand while Mr. Hardinge was being …rude. When my husband come up to us Chris wandered off. Next thing I knowd he was following a Tiger-snake over by the vege garden. That’s why I screamed.”208

The Magistrate sat up at that, and looked perplexed, sensing that this seemingly simple case just fell out of his control.209

“What happened then?”210

“I thrust the baby into Chris, my husband’s, arms and pushed past Mr. Hardinge to catch young Chris before he could reach the snake. I’d seen a man die once from a Tiger-snake bite. I had to stop Chris.”211

“You pushed past Mr. Hardinge. How?”212

“I was frightened for Chris. I pushed real hard, ‘cause he was between me an the boy.”213

“Did Mr. Hardinge say anything?”214

Again, she reddened. “Yes.”215

“What was it Mrs Travis?”216

“All I heard was the word 'slag'.”217

“So, you are testifying that you cried out to stop your son from danger, pushed Mr Hardinge out of the way, and ran after your son. Is that correct?”218

“Yes, sir.”219

“When did you next see Mr Hardinge?”220

“After I stopped Chris I scolded him. I heard a terrible sound behind me. When I turned around I saw my husband turning Mr. Hardinge over.”221

“Turning him over?”222

“Yes. Chris, my husband, was holding the baby and kneeling next to Mr. Hardinge’s body. He rolled him over on his back. It was horrible. I shielded young Chris’s face.”223

“Mrs Travis, how was Mr Travis holding the baby?”224

“Same as he always does, in the crook of his right arm.”225

“Did he have a rock in his left hand?”226

“Not holding it like. Just resting his hand on it after he rolled the body over.”227

“Where was the body?” 228

A puzzled look, “On the ground.” There was a twitter from the gallery.229

“No, Mrs Travis. Where was the body; near the truck, near the garden, or what?”230

She thought for a moment. “We’d been closer to the truck. Now he was about half way to the garden; ‘bout where there was a pile of stones for a foundation he was goin’ to build for a new chook house.”231

“A pile of stones, you say?”232

“Yes, sir.”233

“Had he been lying on that pile of stones, do you think?”234

“Must’av. He was a big man, an Chris couldn’t have rolled him off iff’n he weren’t already on that mound, I’d guess.”235

“Thank you Mrs Travis. That will be all.”236

“The witness is excused.”237

“Your Honour, at this time I’d like to recall Mr Ferguson.”238

“Clerk, please recall Mr Ferguson.”239

When Ferguson entered the courtroom he looked a little hesitant. 240

The magistrate reminded him that he was still under oath.241

“Mr Ferguson,” the barrister began, “would you please demonstrate for the court the manner in which Mr Travis is alleged to have struck Mr Hardinge.” Taking a book from his solicitor, Hemsworth handed it to the witness, instructing him, “Please use this in lieu of the stone, if you would.”242

The witness stood in the witness box, raised the book in his right hand, drew his arm back and chopped forward at eye height. “Like that,” he said as he struck outward.243

“Again, please,” requested the barrister. The witness repeated the action, and Worthington retrieved the book with a “thank you.”244

“Mr. Ferguson, to the best of your knowledge, is Mr Travis right or left handed.”245

He glared at the accused, “Rite hendad like, fer sher.”246

“Where was the baby when you allege Mr Travis struck Mr Hardinge?”247

“Bairn? What of tha wee bairn?” a pause, “Her mam haad er.”248

“Her mother had the baby, Mr Ferguson?”249

“Aye, mussta.”250

“Not Mr Travis?”251

“Nowt.”252

The barrister looked long and hard at Ferguson, and said with slow import, “Would it interest you to know that Mr Hamilton and Mrs Travis have both testified that Mr. Travis was holding the baby in his right arm when Mr Hardinge died?”253

Ferguson fair screamed, “Ho’way! Buggar that ye divvie! E cunna, e haad tha rook innit!”254

The magistrate’s gavel crashed down several times as he warned Ferguson to retrain himself.255

“Mr. Ferguson, I put it to you that you did not see Mr Travis strike Mr Hardinge with a rock, because you had not yet returned from the barn, and that you have sworn a false statement to the police and lied under oath in this courtroom."256

Ferguson shook with anger. “Tha’ hacky dog kilt me met, an us’ll see em swang fer i!”257

“Constable Dickson, would you please excort Mr Ferguson from the courtroom, and remain with him in the hallway”; ordered the magistrate.258

“Your Honour,” said barrister Hemsworth, "I would like to call Mr Travis as a witness.”259

“Very well,” a defeated magistrate allowed.260

Travis was led down from the bar and sworn in.261

“Mr. Travis, would you please describe the events that led to Mr Hardinge’s death?”262

Travis, who had experienced several harrowing days, began meekly, “We were unloading Mr Hardinge’s delivery. I was on the truck shifting and Mr Hamilton and Mr Ferguson were humping the bags and boxes into the barn. Mr Hardinge was standing near the truck, chatting up my wife. She was very distressed at his manner, and I jumped off the back of the truck and rushed up to confront him. We had a few hot words. Then Mary screamed, and shoved the baby into my arms. As she pushed past Mr Hardinge he swore at her….”263

“What did he say?”264

“You slag, I’ll kill you!”265

“To your knowledge, had he been driking that morning?”266

“That, and most, Mr Hemsworth.”267

“What happened after Mrs Travis pushed past, and Hardinge cursed her?”268

“He charged after her before I could stop him; but he stumbled against a pile of stones and fell face down on them. He must ‘av struck his head on one. I rolled him off the pile as quick as I could, but he was already surely dead.”269

Did you strike him with a stone?”270

“No, sir.”271

“Could you have struck him?”272

“I had the baby in my arms. Besides, he was to my left, and if I’d had a stone in my hand, I’d have had to strike him with my left hand. I’d of copped him on the right side of his head, not the left eye.”273

“Did you explain this to the police when you were arrested?”274

“As best I could at the time, sir.”275

The magistrate reluctantly smashed down his gavel several times, and with a look of defeat in his eyes, and a long look at the townsmen seated in the gallery, announced: “I find that Mr Christopher Travis has no case to answer in the death of Mr James Hardinge. Mr Travis you are released. Constable McFee, please go and arrest Mr Ferguson on the charges of making a false statement to police, and of perjury. I will hold a Preliminary Hearing this afternoon at one P.M. This court is in recess until then.”276

“All rise,” the clerk intoned.277

Mr Travis sagged out of the dock, relieved, but much drained by the ordeal. Mrs Travis rushed in from the hallway and they embraced long and hard. They both thanked Hemsworth and Grantford profusely, and then left to retrieve their children and take the wagon home.278

David Hamilton was waiting for the legal team as they exited the courthouse. From the judge’s chambers all could hear an unholy row between the magistrate and the lodge members. Hemsworth wore a satisfied smile.279

“Thank you gentlemen, you prevented a miscarriage of justice,” as they walked down street together.280

“It was a very entertaining two days of tilting at windmills, Mr. Hamilton,” said Grantford. “Very entertaining indeed.”281

“From the caterwalling coming from the judge’s chambers,” offered Hemsworth, “I suspect our erstwhile Magistrate will become persona non gratia among his masonic brethren for some time to come.” He chuckled wryly. “Your uncle was most insistent that we intervene, and stir the pot a bit.”282

“What do you think happened?" Asked Grantford.283

“If someone was harrasssing my wife, and had just threatened to kill her, I know I would have done something to stop him,” Hamilton surmised.284

“Perhaps stick out a foot and trip the charging bull?” ventured Grantford.285

“Indeed, perhaps. And that we will never know,” observed Hemsworth. “I doubt that any jury would have convicted Travis; of either murder or manslaughter, at any rate.”286

“Indeed,” concluded Grantford.287

As Hamilton reached his agency on Antares Street, the two legal gentlemen continued on to their lodgings to pack. “Good day, and thank you again,” he said. They tipped their hats in goodbye.288

‘Good thing I phoned Mum,’ Hamilton thought to himself as he entered his office.289

*** 290

POSTSCRIPT291

The preliminary hearing had a great impact upon Grandfather Hamilton. He sought, and gained, entrance to the University of Western Australia, thanks to the good offices of Mr. McKinley Hemsworth QC, and graduated with an LLD. After completing his Articled Clerkship and passing his Bar exam, ‘Pops’ served as defense council in any number of important cases, all of which are notated in his journals. 292

Though Mr. Travis was released from custody, the animosity of the local Masons meant that he could find no work in the wheatbelt. Eventually he and his family settled in Queensland, though sadly he outlived his son Chris, who died as a POW in Burma during World War 2. Jean met and married a Yank in Brisbane, and moved to the USA as a War Bride. Mr and Mrs Travis died within a year of each other, soon after the war. 293

Bill Ferguson, berift of his well-connected friend, was not able to make a go of farming, and walked off the land during the Great Depression. His ultimate fate is unknown. 294

END