‘I will take what objection I like,’ Tilly said. ‘The statements were made for the specific purposes of the Merchant Shipping Act. The objection I take is that they would be admissible in an inquiry into the cause of a shipwreck, but not in a criminal court.’
It was not a point that was ever likely to have been lost on Danckwerts, but Tom had watched the heated argument with the same bemusement as the magistrates. He now understood the reason. The statements they had given at the Customs House had not been preceded by a caution, and it was also arguable that they had not been voluntary since there was a legal duty to report any loss of life at sea.
Tom felt uncomfortable. He wanted the court to acquit him because it recognized that he had told the truth and committed no crime, not because a lawyer’s trick had freed him.
Without their self-incriminating statements, the prosecution had no evidence against them, except… He glanced across the courtroom. Brooks had been watching him and could not avoid meeting his eye for a second before he looked away. The look of guilt that Tom read there convinced him that Danckwerts’ decision to offer no evidence against Brooks was anything but a surprise to him.
To Tilly’s barely concealed fury, Liddicoat ruled in favour of the prosecution after the briefest of consultations with his colleagues. The statements made to the collector of customs by Tom and Stephens, though not Brooks’s deposition, were then read, and Cheesman was called as a witness to swear to their authenticity. Danckwerts also questioned him about the conversation he had had with Tom in the Long Room after the statements had been made.
Tom listened with keen interest, and in his anxiety that the record should be accurate in every respect, he even interrupted when Cheesman was uncertain whether Tom had told him that he inserted the knife on the right or the left side of the neck. ‘It was this side,’ Tom said, putting his finger to his neck.
Stephens gave an involuntary shudder and covered his face with his hands.
Still fuming, Tilly rose to cross-examine Cheesman. ‘This statement was made before you as receiver of wrecks and as principal officer of the customs, was it not? Before he signed the statement, did you caution him in any way?’
‘No. I was not enquiring into a criminal case. The statements were taken as regards the casualty to the vessel.’
‘Did you point out he was accusing himself of a serious crime and was not bound to incriminate himself?’
‘No, I did not. I had not the remotest idea that a crime was to be alleged against them.’ Cheesman looked up, appealing to the public section of the court. ‘I did not know when putting the questions to them that they would be used in evidence against them. Had I done so, I would not have put them.’
‘Did Dudley appear surprised when apprehended?’
‘Yes.’
‘And was he evidently up to that time of the impression he could return home that night?’
Cheesman mopped the sweat from his brow. ‘Yes, he was. It was an impression I shared.’
Tom was unsure if he was telling the truth, or merely trying to appease his local audience. He had no time to ponder the question further, for he was then called into the witness box, to be cross-examined by Danckwerts on one aspect of his statement. ‘Captain Dudley, when you were discussing killing the boy, did not Brooks say he would not have anything to do with it?’
Tom’s gaze was level and his firm voice carried to the back of the court. ‘No, he did not say that.’
Danckwerts frowned. He began to frame another question, then thought better of it and shook his head.
Those six words were the only ones that either Tom or Stephens were to be permitted to utter throughout the entire legal process. Under procedures that had ruled English courts since medieval times, no defendant was permitted to give sworn testimony on his own behalf. It was for the prosecution to prove the case and the defendant’s evidence was regarded as irrelevant since, guilty or not, he would be bound to deny that he had committed the crime.
Earlier in the Victorian era, a Bill was put before the House of Commons to allow a defendant to testify, but it had provoked such a furious parliamentary battle that the proposal was dropped. The law was finally amended when the Criminal Evidence Act was passed in 1898, allowing a defendant either to give an unsworn statement and not be cross-examined, or speak under oath but be subject to cross-examination.
The next witness to be called was Brooks. There was a buzz of excitement around the courtroom as he made his way to the stand at the right-hand end of the bench, at a diagonal from the dock in the centre of the court.
Brooks remained in the box for well over an hour and in all that time, he never once met Tom’s eye, staring straight ahead of him, down the side of the courtroom, looking neither at the bench, nor at Danckwerts as the lawyer led him through his testimony.
He spoke in a low voice, scarcely audible even to the reporters next to the witness box, and Liddicoat was obliged to intervene more than once. ‘We understand that this is painful for you, but please make an effort to speak more distinctly.’
To one of the reporters on the press bench, ‘The impression created by his manner was that he assumed the role of the witness rather reluctantly and that the recital of the sad scenes to which he had been to some extent a participant was painful and repugnant.’
Danckwerts took great care to confirm that impression. ‘This morning when you came here, did you know you were going to be discharged?’
‘No, sir, I did not.’ He shook his head for emphasis.
‘With the exception of the statements you have made to the collector of customs, or the newspapers, or your solicitor, have you made any statement to anyone connected with the prosecution?’
‘No, sir.’
‘Did you know you would be called here as a witness this morning?’
‘No, sir.’
‘Not until you were discharged?’
‘Not then, sir.’
‘Oh, not then,’ Danckwerts said, as if sharing Brooks’s surprise.
‘No, not until just before I was called.’
Danckwerts nodded to himself. ‘Now, while you were adrift in the dinghy, when was the subject of casting lots discussed?’
‘Dudley mentioned it on several occasions, the first soon after we ate the last of the turtle.’
As if to confirm his desertion of his crewmates, Brooks was now calling Tom ‘Dudley’ rather than ‘Captain’.
‘We had nothing to eat for eight days after that,’ Brooks said. ‘It was not agreed to, though. I said, “Let us all die together.”’ He glanced towards Danckwerts as if seeking approval, then reverted to his fixed stare ahead of him.
‘What did the boy say about it?’
‘He didn’t join in the conversation. He was pretty well at the time, but on the fifteenth day he got ill.’
‘Now, turning to the nineteenth day, the day before Richard Parker died, can you remember any conversation which took place about lots that day?’
‘Yes, Dudley said that there would have to be something done. I did not make any answer then. There was not much said that day, we were looking very black at each other.’
‘Who first started the talk about killing Parker the next morning?’
Brooks hesitated, shifting uncomfortably in his seat before replying. ‘We all three were saying that there would have to be something done. We never talked about killing the boy, but I understood what would have to be done by Stephens nodding to the boy and then to me.’