SOME DONT HANG : Benjamin Bennett CHAPTER II GETTING AWAY WITH MURDER Should an advocate defend a man he knows,

or believes, to be a murderer? Or should he first see an assurance of his clients innocence of, or non-complicity in, a crime before he accepts a brief? And, in the event of a guilty mans acquittal, did the advocate help to cheat justice or was he merely doing his duty? These questions, always puzzling to the layman, applied particularly in the celebrated Natal Taxi Murder when Mr H.J. (Harry) Morris K.C., leading barrister of his time, was counsel at the trial. Long afterwards he admitted to me his client was guilty though acquitted by a jury. Was, the, his greatest case, his Royal Flush he liked to call it, more a triumph in strategy, courtcraft and the field of ballistics, then a triumph of justice? The answer is that an advocate is not a judge nor is it his function to judge or prejudge a client no matter what the charges against him. He is, though, required to accept, even if he does not entirely believe, his clients version and present it to the court in the best form and to the best of his ability. The only exception is when his client confesses his guilt. Were he then to suggest a trumped-up version to help him escape punishment, he would himself be guilty of unethical conduct. When an accused person pleads Not Guilty he does not assert, or try to establish, his innocence through his counsel. He calls on the State to prove his guilt beyond reasonable doubt. If, or when, the State fails to do so, mainly because of counsels skillful cross-examination and presentation of the defence case, he is entitled to a verdict of Not Guilty. Who the guilty part is, or might be, is not the courts concern. Nor is it counsels. Whose word did Morris accept that convinced him he had saved a murderer from the gallows? On the morning of September 22, 1931, hire care owner, Arthus Victor Kimber, was found shot dead. A jovial, heavily-built man of 40, married, with three daughters the eldest 15, the youngest nine, he had lived in Maritzburg for some years and owned three taxis. One he drove himself and he employed Charles V. Mills as an assistant. To all who knew him he was a respected citizen with a pleasant home, a comfortable income, and not a known enemy. It was hard to imagine him a murder victim. At 6.45 the previous evening he and Mills had joined the rank opposite the Maritzburg Town Hall. Soon afterwards Mills left with a fare and Kimber strolled to a tobacconist to buy cigarettes. It was not known exactly how much money he had with him but it was thought to have been between 1 and 1 5s. About 7.30 the taxi rank telephone rang. Kimber, first in line, answered. A passer-by heard him inquire: where do you want to go? He listened to the caller for a moment

and said: Thatll be all right. Come to the rank. Its just opposite the Town Hall. You cant miss it. A few minutes later a man and a woman walked from the direction of the Town Hall, entered Kimbers taxi, and were driven away. At 8.10, Mr James Simpson, out motoring with his wife, saw Kimbers taxi at Polly Shorts Hill. He did not notice the passengers in it. Near this spot another motorist, Mr Percy W. Wilton, passed a taxi traveling along the Durban road. He slackened speed and glimpsed two passengers in the rear seat, a woman who appeared to be wearing a pale yellow frock and brown hat, and a man in a dark suit with light felt hat. Three-quarters-of-an-hour afterwards Kimbers taxi was abandoned in King Edward Avenue, Maritzburg. The headlights had not been switched off. Some while past midnight Mrs Kimber, anxious at her husbands unusual and prolonged absence, drove to the rank. Her inquiries draw a blank. Maybe instinct led her to King Edward Avenue. There was blood on the front seat of her husbands taxi as well as a cartridge case and a bullet. On the floor was a crumpled pale blue silk handkerchief she was positive did not belong to him. Just after sunrise Arthur Kimber was found murdered at the side of the MaritzubrgDurban road, seven to eight miles from the centre of Maritzburg. From the District Surgeons report, the position of the body and the state of the car, the police deduced that Kimbers fare had ordered him to stop. As he did so and, apparently, turned in his seat for instructions, he was shot through the head from the lefthand side of the rear seat. He collapsed and a second shot was fired into his right temple. There were no dragmarks showing the body had been carried to where it lay. The murderer must have been powerfully built or exceptionally strong. Kimber weighed 200 lb. His wallet was missing, indicating robbery as the motive. A few shillings had been overlooked. Nearby were a cheque book and a cartridge case. Besides the dried blood smudge Mrs Kimber had noticed, the police observed a blurred fingerprint on the steering wheel but it was too indistinct for identification. Whoever killed Kimber had most likely worn gloves or hurriedly wiped the wheel and other parts of the taxi touched. There were better prints and impressions on the doors and upholstery but most were Kimbers or of fares and associates with watertight alibis. Evidence of all kinds and varied reliability flowed in. Several persons said they had seen a man and woman enter the taxi, bearing out Wiltons report of a couple in the rear seat near the crime scene. Another man, Mr Arthur Clayton, recalled that about 8.40 p.m. a big sedan had reversed into Durban Road from the street next to King Edward Avenue. The gears were grated as though by an inexperienced driver. At the corner of Bulwer and Boshoff Streets, about twenty minutes walk from where the taxi was abandoned, Mr Edward C. Heher was approached by a man and woman who asked for directions to the centre of the town. He judged he time to be about 8.55. The police launched a search for a man and woman, probably strangers to Maritzburg, and possibly short of money. Three suspects were questioned and released. Eventually the police picked up the trail of a young couple who had stayed at the Royal Hotel, Maritzburg, and left on September 25. They were traced to Cape Town.

The man was Richard (Dicky) Louis Mallalieu. Barely 21, he was tall, of massive build, fair and good-looking. Son of former M.P. and retired cotton spinner of Oldham, Yorkshire, England, he had been educated at Cheltenham like other members of his family. One brother was M.P. for Colne Valley, another an Oxford rugger blue. Richard Mallalieu came to South Africa in 1929 as a member of the Oxford Group. He liked the country and decided to farm sheep. With the aid of the 1820 Settlers Association, he became a learner farmer in the Tarkastad district, Eastern Cape. After a year he hired a farm, Klipfontein, near Tarkastad, with 600 to a Tarkastad resident in exchange for a promissory note. On November 8, 1930, during a trip to Port Elizabeth, he bought an Astra automatic pistol and 50 rounds of S.B. ammunition. He explained that he lived alone on his farm and needed the weapon for self-protection. Then Mallalieu met Gwendoline Mary Tolputt who had emigrated to South Africa early in 1931. She was English-born but had lived in Australia or some time. Her stepfather, Dr. Henry Tolputt, practiced at Tarkastad. She was an accomplished young woman who spoke French, Spanish and Italian and claimed some experience of the operatic stage. She was an excellent ballroom dancer and pianist and had a good voice. Once she was invited to appear in a radio programme in Durban. It was her ambition to return eventually to the stage. She gave her age as 23. The less chivalrous said she looked older and saw little of the fascination she had for Mallalieu or the vivacity attributed to her by others. Morris, who may have been prejudiced or ungallant, was even more unflattering. To me, he said, when we spoke about her in after years, she was untidy, unkempt and repulsive, And much else besides. Nevertheless, thee is no accounting for tastes. Dick Mallalieu fell in love with her and they became a recognised couple among the young folk of the village. In April, 1931, he asked Dr and Mrs Tolputt for permission to marry their adopted-daughter. Dr. Tolputt would not agree until he produced his parents written consent which was doubtful. His brother arrived from Cairo on a stop-the-marriage mission and succeeded. Dick and Gwen, however, told their friends they were privately engaged and certainly behaved like lovers with only a brief wait before the wedding bells. One Sunday night, towards the end of May, an agitated Mallalieu ran panting into the police station. He had found his best friend, Lawrence Henry Hollins, dad in the hotel room they shared at week-ends when they came to town from their farms. He had a bullet wound in his head and clutched an Astra pistol in his hand. Next day Mallalieu handed the police a cartridge case he found in the room. Hollins had left a letter explaining why he was taking his life and urging Mallalieu to wait, until December at least, before deciding definitely to wed Gwen Tolputt: Dear Dicky, I am awfully sorry to give you a dirty job to do but will you please attend to matters for me? I should like to make it quite clear - vanity I suppose - that I am doing this with an absolutely sane mind. I realise what I am doing because I honestly consider, after some thought, that life, being a miserable affair, it is better to end it. What I am going to do tonight, I tried to do several days ago, but I had no the courage. So this will show you I have had time to think he matter over.

I should like you to instruct Mr West to wind up my affairs, realise all my assets and pay all my debts. My assets will considerably exceed by debs so that no one will suffer financially by my action. The balance in this country, my car, farm, furniture and stock I leave to you after the debts have been paid. It wont amount to much but it may be a help. With regard to the matter we have discussed more than one - about Gwen - I ask you, once more, to wait until December. Please do no think I am trying to bring undue force to bear by bringing up this matter now. I am only doing so because, through similar circumstances, I am in the position I am today. But this is between ourselves. I dont want anyone else to know, Dick . . . at the expense of appearing sentimental and absurd but I implore you: dont play he fool with love. It is undoubtedly the greatest thing there is. But it can also be the most damnable. I suppose everyone will say I am a coward to take the easiest way out. Well, let them. But everything seems to have gone wring, one after another. Then comes a breaking time, sooner or later. In case there should be any doubt about this letter ask Arthur. He say me write it though, of course, he doesnt know what is in it . . . this is just in case there might be rouble about proving my instructions. I do not understand the legal position too well but I believe this is legal . . . Well, all the best and I am desperately sorry if I am putting anyone to any rouble and I thank you, dick, in advance for all I know you will do for me. I dont want any special burial or funeral. It is a farce anyway. Cheerio and all he best of luck. May you get all I have missed. Lance. The magistrate recorded a verdict of suicide. The police kept the cartridge case for their records but returned the Astra to Malalieu. It was in his luggage on August 22, 1931, when he and Gwen Tolputt set off on a premarriage honeymoon that took them to various parts of the country and landed them in Maritzburg shortly before Kimber was murdered. The story of their travels, from the day they left Tarkastad until their arrest in Cape Town, was pieced together from their own records and the rueful complaints of traders and hoteliers who accepted a steam of worthless cheques. Mallalieu kept a diary, or logbook, in a writing pad and described, with youthful zest and some humour, their rollicking exploits and escapades up and including their stay in Maritzburg. They spent carefree days and passionate nights in Port Elizabeth, walked by the sea, played cards with friends and visited the cinema. Mallalieu bought a car he christened Otto. Able to raise only 150 in cash, he promised to pay the balance of 245 in monthly instalments of 15. After a fortnights leisure and pleasure, they set off for Johannesburg by way of Tarkastads royal Hotel where Mallalieu engaged a room, as usual, for himself and his wife. Pa came round to try to flatten us, Mallalieu duly logged, and only succeeded in getting flattened himself . . . I did a bunk and Gwen followed with a spot of swearing and cussing.

Then Mamma had a brainwave. She yelled, at the top of her voice, right down the street: I want that marriage certificate right now. You will go and unpack it immediately. Our attorney rang up and wants to see it. . . This completely annihilated us as we had already informed Pa we had it with us and, of course, we hadnt. So we filled Otto with petrol and then it was that the TarkaHofmeyr speed record was decisively broken. Funds were low when they reached Johannesburg but this did not deter them from engaging a luxury suite at the Carleton Hotel. A loan from a trusting friend and the issue of rubber cheques met the situation, if only temporarily. Mallalieu decided to sacrifice Otto but before a deal could be clinched, the prospective buyer learned the car had been bought on hire-purchase. The sale fell through and the car was confiscated, but Mallalieu managed to keep one step ahead of the police. The pair took train to Maritzburg and booked a room at the Royal Hotel in the name of Mr and Mrs Phillips. The proprietor, Mr H. Slade, found them quiet, well-mannered, and well-dressed and believed they were honeymooners. But whether they were or not he had reason, from long practised eye, to doubt their ability to pay his bill. He was justified. On their arrival, according to the logbook, they had only 10s 8d. Within a day or two this had dwindled to 6s 4d. They decided to quit smoking until their finances somehow improved. They didnt. By September 21 they had 5s 3d. That evening they announced they intended to catch the midnight train. They left the hotel some time after seven oclock and returned past nine. Their absence was reported to Slade by a sharp-eyed Indian porter, Rajah, who had been sent to their room at eight oclock with the bill and a polite request for payment. They were not in but their luggage appeared to be packed for departure. An hour later Rajah made a second call. They were still out. At the third, Gwen Tolputt opened the door. She was in her nglig. Please tell Mr Slade, she said after glancing at the bill, my husband and I have changed our minds. Well only be leaving after breakfast tomorrow. You can also tell him, she added tartly, we have no intention of leaving without settling our bill. Squashed, Rajah retired to report to his employer. Next morning they decided to prolong their stay and unpacked. Mallalieu cabled his parents in England for money and 20 arrived soon afterwards. Nevertheless, he settled the bill with another dud cheque, drawn in the Tarkastad branch of the Standard Bank and, on September 25, he left with Gwen for Cape Town with expressions of appreciation to Mr Slade for his and his staffs kind attention. Should they ever return to Maritzburg, they assured him, the Royal Hotel would be their first, and only, choice. (They returned to Maritzburg soon afterwards but not to the Royal Hotel. Their accommodation this time was provided by the Department of Prisons). On their journey to the Cape they stopped at a Bloemfontein hotel for a night and signed the guests book Mr and Mrs. D. Havelland. Selection of this name was apparently inspired by the fact that a De Havilland aircraft was in the news at the time. In Cape Town they booked in at the Belgrave Hotel, Strand Street, before moving, one rubber cheque later, to the Union Hotel, Plein Street. There they lived unobtrusively as Mr and Mrs Richard Mallalieu until they left in a car with a pleasantly- spoken, dapper little man with a butterfly collar, who might have called to take them on a sight-seeing tour of the Pensinsula. He was, however, no travel agent or guide but DetectiveSergeant Ernest Evans with a warrant for their arrest.

The hour of their appearance in the Cape Town Magistrates Court was a close secret. Scarcely a soul knew who they were or on what charge they had been arrested. Even the magistrate summoned to the Bench in an unused courtroom to make a formal order for their removal, under escort, to Maritzburg, was unaware of the details. The precautions were considered necessary to prevent them from being seen by the public and possibly photographed before they attended an identification parade.

On October 28, 1931 Richard Malalieu and Gwen Tolputt appeared before the Maritzburg magistrate for preparatory examination on an allegation of murdering Arthur Victor Kimber. The Prosecutor, Mr E.G. Halse, first called Slade and his wife and the porter, Rajah, to prove he prisoners were away from the hotel at the time the crime was committed. Afraid of being bilked, Slade said he had watched the hotel entrance all evening. He did not see them return and suggested they had re-entered their room by way of the fire escape. Hehers evidence established they had approached him in the street at 8.55 p.m. Halse next dealt with their travels, shortage of funds and the attempt to raise them, and suggested Kimber might have been shot for the cash he carried. But the vital evidence concerned Malalieus Astra pistol and the cartridge cases produced as exhibits. One had admittedly been ejected from the Astra when Hollins was shot. Two more had been found in Kimbers taxi, one by his wife, the other by the police. All appeared to be similar in size, make and type. Government firearms expert Captain M.S. Barroclough, was convinced, after examination, the three cartridge cases had been ejected from one and the same weapon. Considerable attention was also devoted to the blue silk handkerchief. It was of a type not readily obtainable in South Africa at the time. Detectives were unable to buy one like it at any store in Maritzburg. Halse tried to prove Mallalieu was the owner with evidence that a similar blue handkerchief had been seen in his possession. An African woman, who laundered for him on his farm, selected from the exhibits a handkerchief marked with the letter M as one she had washed and ironed. Next, a Durban laundryman said he had put on the M for identification. The handkerchief had been in a bundle of washing sent to his depot from a room Mallalieu and Gwen Tolputt occupied at the Marine Hotel, Durban. Government analysts who examined their clothing stated they found a few pinpoints of blood on Mallalieus gloves and the toe of one of his shoes. There was, however, insufficient for precipitant tests for human blood. Then a hair had been detected on the pistol. In case it was Hollins, the body was exhumed but clinical examination and comparison were inconclusive. Sensation of the preparatory examination was a confession Gwen Tolputt had made to a middle-aged woman, Mrs Mary Ellis, who was serving a term for counterfeiting. At first, the two women merely exchanged formal greetings but on the third morning, when Mrs. Ellis was in the exercise yard, Miss Tolputt beckoned to her. She asked me what I was in gail for? Mrs. Ellis said. I told her and she said she was in for murder. I asked her who she had murdered. She replied that it was a taxi-driver named Arthus Kimber.

My fiance, Dick Mallalieu and I, Mrs Ellis quoted Gwen Tolputt as saying, engaged a taxi to Durban and on the Durban Road I told the driver to stop a few minutes. Them Dick shot him in the left temple. I listened, Mrs Ellis told the court, but said nothing. She then went on: Dick got out of the taxi and pulled Kimber to the ground. While I reversed, Dick searched him. He took a pound from him, all he could find, in two ten shilling notes. Kimber was moaning so much I told Dick to give him another one to finish him off. With that, he gave him a second shot somewhere over the eyebrow. We then got back into the taxi and returned to Maritzburg. According to Mrs Ellis, Gwen Tolputt said she and Mallalieu abandoned the taxi and walked back to their hotel. They lost their way in their excitement and asked a man to direct them. We meant to do in several that night. Gwen Tolputt was supposed to have boasted. But, after the murder of Kimber, we had no nerve left. Mrs Ellis asked, in surprise, why they had picked on and killed a poor taxi driver. Because, came the reply, we thought he would have quite a bit of money on him. But, Mrs Ellis said, Ive always heard taxi drivers are poor. They never have much on them. Miss Tolputt disagreed. One taxi driver she knew in England had 20 in his wallet. We did it, she was alleged to have confessed, because we needed money to leave for Cape Town. With the pound Dick took from Kimber we cabled his parents and got 20. In subsequent conversations, Mrs Ellis and Miss Tolputt told her Mallalieu showed wonderful strength in hauling Kimber out of the taxi. They had both worn gloves but still she feared the police might find fingerprints on the steering wheel as Dick had removed a glove to search Kimber more easily. They purposely left the blue silk handkerchief behind so that the police would no suspect a woman. They had examined it carefully before their departure from the hotel and were positive it bore no name or initials.

One day a much concerned Gwen Tolputt returned from court to tell Mrs Ellis the handkerchief bore the initial M. She pointed to a similar M on her stockings which, she said, had been sent to a Durban laundry. On another occasion, during the preparatory examination, Miss Tolputt said witnesses were identifying her, as a passenger in the taxi, by a yellow dress though she had not worn one. Actually, she had on a costume and blue jumper and Dick a pair of light grey trousers and dark jacket. According to Mrs. Ellis, Miss Tolputt also mentioned she had scratched he toes of he shoes and rubbed banana skins on them to remove bloodstains. In case of arrest, they faked their diaries to coincide with their intended evidence. She believed someone interfered with, or searched, the body after they left the scene as Kimbers cheque book had been removed from his pocket. Being short of money in Cape Town they pawned a pocket knife and a bracelet they bought in Durban. They planned to do in some Indians in Cape Town to get money for their fares to England. However . . . Dick had no nerve left after the murder at Maritzburg. But Ive got a wonderful nerve. I could do it again. There was the possibility that Mrs Ellis had read newspaper reports of the evidence and invented the confession in the hope of getting a remission of sentence. The Crown attempted, therefore, to prove it was from Miss Tolputt alone she could have learned these details. She herself insisted she had seen neither newspapers nor visitors with whom she might have discussed the murder. The cells were wire-netted and newspapers could not possibly have been passed from one to another. She had received only one letter a fortnight from her daughter and her own letters all passed through the matrons hands. None contained a reference to the Kimber case. When the prosecutor asked what had induced her to report Gwen Tolputts confession to the police, Mrs Ellis said: It was working on my nerves so much that I became quite ill. I felt that, by saying nothing, I was concealing a murder. I couldnt eat and I was examined by a doctor who ordered extra milk and a tonic for me. I know I promised Miss Tolputt I wouldnt divulge her secret but it preyed on my mind. She threatened to kill me if I talked. Once who said to me: I am trusting you with my life. So I assured her it would be all right and I wouldnt blab. Them she smiled and told me it relieved her mind to tell someone of the murder. Gaol superintendent Cecil Jones confirmed that it would have been possible for the two women to have spoken to each other without being overheard and that Mrs Ellis had received no newspapers with accounts of the preparatory examination. Her mail was read and censored by prison staff members before being handed to her. No incoming or outgoing letters had mentioned the Kimber murder. The police matron had a different story. According to her, Gwen Tolputt said: Matron, Dick Malalieu and I are innocent of this crime. We were waiting for funds to arrive from England. At the time Kimber was shot, Dick and I were out walking. We know nothing at all about it . . . When Harry Morris K.C. accepted the brief for the defence he set to work in his usual methodical way. He read and weighted each word of evidence at the

preparatory examination. He noted every strength and weakness, every word of corroboration and contradiction. With particular care he studied Barrocloughs findings and, with the aid of a home-made microscope, pored over photographs of bullets and cartridge cases and marks on them. These were then submitted to Major Burrard D.S.O., an eminent British ballistics expert. Hie report was to be a cornerstone of the defence and the basis of much cross-examination. Morris, who knowledge of ballistics was considerable, also consulted leading textbooks in the Public Library in preparation for his tussle with Barraclough. But when he arrived in Maritzburg he found the defence team working on lines he considered ill-advised, if not dangerous. They believed that if they could prove the Astras firing pin rotated, the Crown would be unable to establish that the cartridge cases of the test bullets fired from Mallalieus pistol corresponded with those in Kimbers taxi. In this way the Crowns identification of the Astra would be weakened. Morris realised this was a fallacy. On the contrary, the Crown would be able to contend, from other marks on he cartridge cases, they were all fired from the same weapon. And the discrepancy he had observed with his own microscope in the distances between ejector mark and firing pin mark would be valueless in establishing the identity, or dissimilarity, of the cases. He switched the defence line, deciding to concentrate instead on an attempt to prove the distances varied on the two photographs of the respective cartridges. Nothing further was said about the possibility of the differences being caused by a rotating firing pin. Morris interviewed a number of potential defence witnesses who offered alibis for Mallalieu and Gwen Tolputt. Most were time wasters such as the man who insisted Kimber had been shot by a Rand gunman who had a grudge against him for his part in the Rand Revolution of 1922! Others, genuine in their beliefs, were obviously mistaken in their facts. In the event, the defence had to stand or fall by Mallalieus account of his movements and the extent to which Barrocloughs findings could be shaken. Officials on the staff of the Natal Attorney-General, Mr Lennox-Ward K.C. were also at work on the Crown case. Lennox-Ward, who was to prosecute at the trial, was on holiday in England and it was essential for him to have a full report on his return. One member of the legal team who attended the firearm tests and subjected the honeymoon diaries to every kind of analysis, without profit, suggested a novel line of inquiry based on the clue of the blue silk handkerchief. I believed, he told me, that the Malalieus, being country gentle folk, would probably have dealt with the same firm in their town for many years. In the conditions then existing in England, it might have been possible to trance the purchase of this somewhat unusual article. It was photographed in colour and the C.I.D. were directed to seek Scotland Yards assistance. This was done but nothing came of it. There was no record of a sale of such a handkerchief to any of the Mallalieus. It was, at best, a long shot because the handkerchief might have been bought anywhere, even in London. Still, I believed it worth trying. Pinned on to Mallalieu

- my informant assured me he was not punning - it would have been damning evidence. But Morris made sure it wasnt.

The trial opened at the Maritzburg Criminal Sessions on March 8, 1932 before Mr Justice Matthews and a jury. Mallalieu and Gwen Tolputt stood as far as possible apart in the dock and exchanged no word or smile. He appeared to be studying an indefinable speck on the wall ahead of him, and hid his manacled hands beneath a khaki coat. Behind him a constable stood with holstered revolver. At adjournments armed police guarded al doors and passages as though to prevent or foil a Houdini-like escape bid. They could scarcely have been there to protect him from the violence of an angry crowd for he enjoyed more friendly smiles than ugly looks. Perhaps the reason was that Kimber was only a humble taxi driver, now known impersonally as the deceased, whereas Mallalieu was the handsome young son of a wealthy father who had defied the conventions with his skylarking, hotel bilking, and trial-honeymoon in those unpermissive days. Court audiences are invariably more intrigued and impressed by the deeds of the living than wrongs to the dead.

At first he was driven by car, morning and afternoon, between goal and court but subsequently a closed police van spared him the daily humiliation and the gaping of street crowds. Lennon-Ward led Reg. Rosenow, later Mr Justice Rosenow, and Halse, for the Crown Morris junior was Frank Shaw who also became a judge. Unlike most others, Maritzurgs courtroom had no well. Bench and jury box were only slightly above floor level. The judge faced across the breadth instead of the length of the room with counsels semi-circular table before him. The public gallery was a mezzanine on three sides. The wily Morris chose and occupied the left hand side of the table with his junior beside and his attorney behind him. This placed him close to the jury. They could miss no quip, gesture or exchanges with his junior - when hey were intended to overhear them. He, in turn, missed no whisper or jury reactions which he picked up on the sensitive wavelength of his intuition. It was a psychological advantage and he was to make he most of it, particularly in his address when he deliberately left his seat and moved over to the fascinated and, by then, awed jury. Immediately after the jurors had been chosen and sworn, Morris applied for separate trials, suggesting the proper and fairest course would be to try Malalieu first. If the pair were in he dock together, he well knew, Gwen Tolputts confession would prejudice Mallalieu though legally it was not evidence against him and the jury would be solemnly warned to ignore it. But Morris realised no jury of laymen would be able to exclude such damning testimony even temporarily from their minds or remain uninfluenced by it.

The Attorney-General opposed he application and the court was cleared during legal argument. Next day the judge agreed to a separation of trials but, before Mallalieu could plead, Lennox-Ward requested a postponement to enable him to reserve a point of law arising from the ruling. The judge replied that even if he were to agree, and the Appellate Division were asked to decide, the matter could be carried no further. The Attorney-General was not satisfied. He proposed approaching the Minister of Justice to ascertain whether he would state a case to the Appellate Division. Morris protested. The Attorney-General, he charged, was trifling with the court, trying to persuade the judge to provide machinery that might be used to reverse his ruling. Once more the judge was with Morris. I cannot conceive of any circumstance, he said, in which my order can be upset. The Appel- late Division can give a ruling only for guidance in the future. In any event, I am not prepared to postpone the rial on the mere supposition that the Minister might choose to exercise his powers to direct a special case to be stated. Still Lennox-Ward was reluctant to admit or accept defeat. Turning to Morris, he muttered that if the trials were separated, he would proceed with Gwen Tolputts first. The threat was serious. It meant her confession would be blazoned in he newspapers before Mallalieu stood trial which was what Morris wanted, at all costs, to avoid. With a convincing show of righteous indignation he accused the Attorney-General of threatening to stultify the courts order. Diplomatically, Mr. Justice Matthews declined to believe Lennox-Ward would not give loyal effect to the letter and spirit of his order. To make certain, however, he directed that Miss Tolputt leave the dock until Mallalieus trial was concluded.* Lennox-Wards only alternative was to withdraw the indictment and re-indict later, incurring the expense of sending dozens of witnesses home to all parts of the country and bringing them back again. He telephoned the Minister in Cape Town for approval of this step. It was refused. So Mallalieus trial opened and, with a smile of satisfaction, Morris sat back and listened to the opening address.
*While paying tribute to Morris ingenuity and courtcraft, lawyers have since contended the judge had no right to stipulate the order of trail. The Appellate Division later confirmed this.

The Attorney-General dealt first with his weakest point, motive. Mallalieu had need money, desperately. He had resorted to all sorts of schemes on his travels to raise funds. Before he left Tarkastad his bank had refused him a further overdraft. He was penniless. Yet he continued to issue cheques. On the evening of September 21 he and Gwen Tolputt had only a few shillings between them. And that night Kimber was shot. His pocket wallet disappeared and next day Mallalieu had enough money to cable his parents in England. The Attorney-General quoted a schedule to show the couple would have had the time and opportunity to commit the murder. If they had walked briskly from where the taxi was abandoned, they would have reached the corner about the time Heher said he saw them. There was also he more direct evidence, the cartridge cases and the blue silk handkerchief.

Lennox-Ward called his witnesses. Morris, at his most persuasive and scintillating, tested and probed their testimony. Definite assertions appeared to be assumptions. Recollections faded into after-thoughts. Rumour and hearsay had been intermingled with facts. He was able to show some of the witnesses were incapable of telling the whole truth even if, or when, they wanted to. A Tarkastad woman said she had seen Hollins with the blue silk handkerchief. The implication was that Mallalieu had taken it from his dead friends belongings. Yet she hesitated in identifying a handkerchief she herself had given Hollins as a gift. How then, Morris demanded, could she be positive about another handkerchief Hollins was supposed to have sued and in which she had far less personal interest? Others who linked the handkerchief with Mallalieu and his laundry agreed they might have been mistaken when they claimed it was among his possessions. The laundryman who at first insisted he had received a handkerchief with the initial M from Mallalieus hotel room, admitted he could not, after all, say in which batch of washing it had actually been folded. The handkerchiefs value as a vital clue seemed to be doubtful, if not destroyed. Lennox-Ward tried to establish that Malalieu had no money to cable his parents till the day after Kimbers death and the disappearance of the wallet containing 1 or 1 5s. But, through cross-examination and evidence, Morris showed the cable could most likely have been sent with the few shillings Gwen Tolputt still had. The money motive, too, appeared to be shaken. The pathologist who examined the hair on he Astra pistol believed it might have come from Kimbers head but he admitted he had no sample of Mallalieus own hair for comparison. At this, Morris remarked that Mallalieu had the pistol for a considerable time. It was just as likely the hair was his. The pathologist could not dispute it. Witnesses who asserted at the preparatory examination they had seen a man and woman entering, or travelling in, Kimbers taxi were not at all sure, under adroit questioning, that the two were Mallalieu and Gwen Tolputt. They were vague or uncertain about height and dress. The few physical characteristics they were able to recall might have fitted a dozen other fares. For instance, Wilton believed the woman wore a pale yellow frock and brown hat, her companion a dark sports jacket and light felt hat. Morris instructions were that on the night of the crime Gwen Tolputt had on a dark blue coat and skirt and an orange and green beret. Had she been seen at the rear of the taxi in this outfit the distinctive colours would surely have been noticed and distinguishable. Mallalieu, on the other hand, wore flannels and a dark jacket. He had no sport coat. Yet the woman passengers companion was supposed to have worn one.

Successful though he appeared to be in casting doubt on he passengers identity and, therefore, of the murderers, Morris spent an anxious quarter-of-anhour while he Attorney-General examined a witness who claimed to have

observed a woman in a telephone booth near the Maritzburg Town Hall shortly before Kimber left the rank. Morris feared if the witness were asked to identify the woman, the reply might be Miss Tolputt. Fortunately for him, Lennox-Ward hesitated and decided not to put the direct question. The wrong answer to him might have meant the virtual end of the Crown case. Morris handled this witness with care and courtesy. He, too, avoided mention of the telephone booth and its occupant. And, when judge and jury showed a similar, gratifying, lack of curiosity he sighed with relief. With Barroclough in the witness-box, the trial reached its crucial phase. Both counsel realised everything hinged on his findings - that the cartridge cases in Kimbers taxi and Hollins room were ejected from the same Astra pistol. In his opening address, Lennox-Ward had emphasised and Barraclough confirmed, that the cases bore the same S.B. mark and identical ejector imprints. He also suggested that Astra pistols were hard to come by and that the person who possessed one in Maritzburg on the night of September 21 was most likely the killer. But Morris had other evidence. He found a dealer who had sold all but one of his stock of 144 Astras. It was reasonable to assume that other dealers had sold some as well. Another link in the Crowns chain was weakened. Nevertheless, Barracloughs evidence seem formidable. No two firing pins, he said definitely, left exactly the same impressions on a cartridge case but any one weapon always gave the identical print. When empty cases were automatically ejected, they bore characteristic markings though their depth might vary slightly according to the violence of the operation. He was handed the bullets and cases, recovered from Kimbers taxi and Hollins room, as well as others after tests conducted with Mallalieus pistol. All, he claimed, had characteristics and identical markings and had been fired from the Astra in Mallalieus possession. Barraclough had taken so many photographs that a special table was needed for them. Morris feigned despair as he surveyed the formidable pile. It was good strategy to convey to the jury that the technical jargon they were about to hear would probably prove too much for them as mere laymen. He, however, know every line on every photograph. In all his wide experience as ballistics expert, Barraclough insisted he had seen similar marks produced on bullets and cartridges only by pistols of the same make and calibre. And that was what the bulk of the photographs was intended to prove. Like a lecturer with a class of dull students, he pointed to the markings on the cases ejected from six different Astras obtained in Pretoria. They were different, he declared, all the way through. There was no possibility of similarity between them. He was definite. Morris rose slowly to his feet. He hitched his gown and smoothed out his creased silk waistcoat. He never took his eyes off Barraclough. They probed, measured, and summed up. Then he attacked. It was a tough, direct assault. There was no need now for the courteous approach or the attempt to beguile an awkward witness with charm or suggestion. You have never, he emphasised the word never . . . been opposed by another firearms expert in South Africa? Barraclough agreed.

And none of those who have previously cross-examined you knew much about the subject? Not that I am aware of.

Morris chuckled but he did not smile. He intended to show that era had ended. There was some preliminary sparring over ballistics treatises, the mechanism and peculiarities of firearms and ammunition. Then, casually, he picked up a photograph purporting to depict the bases of two separate cartridge cases. He knew, from careful pre-trial scrutiny, it was of one base only. Would Barraclough please explain? Barraclough was apologetic. He was wrong. Morris right. The effect of the error, unfortunately, was that no photograph of the cartridge case found in the taxi was available as an exhibit at the magistrates court hearing. It had been printed but mislaid. Morris was in no mood for unfortunate errors or apologies. Because of your carelessness, he snapped, the defence has been gravely handicapped. The absence of this photograph means that the opportunity for investigating it has passed. The defence cannot get that opportunity again. You realise that, do you not? The Attorney-General hastened to the rescue. He explained that he, too, had noticed the error while examining he photographs. New ones had been taken and the defence notified during the course of the trial. The mistake could be seen with the naked eye, he added sharply. My learned friend could see it as well as anybody. Morris chuckled again, now, ominously. Quite so. I saw it. He paused. The only person who did not, he said angrily, was the . . . expert! The words stung like a whiplash. He pointed to other apparent differences in photographs of bullets and cartridge cases. Barraclough countered that these were merely the result of light and shade. They were caused by the position in which the exhibits were photographed. Hmm, came from a sceptical Morris. He selected other photographs of the taxi, Hollins, and test cartridge cases and invited Barraclough to examine the exhibit numbers. Two had been transposed. That, he said for the jurys benefit, was also a handicap to the defence. We submitted the exhibits to our expert in England and now, for the first time, we learn here is a further error, that the exhibits are not what they purport to be. He picked up another photograph of the cartridge cases set in a row - two from the taxi, one from Hollins room and the fourth ejected at the test. Which of the, he asked, had a bevelled edge. The reply was definite: The test cartridge case. Morris disagreed. He claimed bevelling appeared only on one of the cases recovered from the taxi. That, Barraclough maintained, is an optical illusion. Well, Morris growled, I cant see bevelling where you say it is.

The cases were standing on a bed of plasticine, Barraclough explained, and the bevelled edge sank below the surface. Impatiently Morris threw up his hands. Perhaps even he did not fully realise he had scored a point that was to have immense significance at a later stage of the rial. Do you suggest, he pressed on, that whenever differences are pointed out, his lordship, the jury and counsel have invariably to be satisfied with your ipsi dixit? No, Barraclough said mildly. That is precisely why I put in these photographs. He added incongruously: I never rely on photographs myself. But we do, Morris said testily, and we are asked to by the Crown. If you dont attach importance to your photographs why should the jury? The question seemed unanswerable. Now, Barraclough was less dogmatic. He was prepared to agree that the same firing pin or ejector in a pistol could make varying marks. But he claimed they would be in depth only.

Morris knew the importance of this answer to the defence. His attorney, Jack Power, had made an important discovery under the home-made microscope. The firing pin indentations were elongated and ran, in relation to the ejector marks, in different directions. Morris suddenly switched his tactics. He became more conciliatory. He believed that on the replies he could coax from Barraclough an important part of his case might be based. Do you agree, he said, that, if the distance between the firing pin indentations and the ejector marks on two cartridge cases agree with each other to within one ten-thousandth of an inch, the two may, but not must, have been fired from the same weapon? Correct. Morris put his next question. Do you agree that if the distances between these points do not agree to within one ten-thousandth of an inch, the two cartridges were not fired from the same weapon? Again the answer was Yes. There was also an affirmatory reply to the question whether the distances between the firing pin indentations and the ejector marks on he two cartridge cases did, in fact, agree to within one ten-thousandth of an inch. Morris waited. He was like a general confident of victory. The enemy defences were crumbling. He watched the expert, his hands toying with his gown. It was good drama. He knew the jury were straining for his next question. He was fairly certain of the answer. Did you, he asked, measure these distanced with a micrometer or any other instrument? No, Barraclough admitted. Up went Morris eyebrows in feigned surprise. Oh! With what, may I asked, did you measure them? With my eye.

My eye! Morris repeated. The inflection in his voice was obvious. With his reply Barraclough destroyed much of the effect of his scientific evidence. The expert who had admitted errors in photographs and transposed exhibit numbers was also prepared to decide on an accused mans guilt or innocence by the visual measurement of the equivalent of an eyelid flicker. Morris followed up swiftly. He placed the tracing of one cartridge case base on another. The ejector marks coincided but the firing pin indentations did not. What had Barraclough to say to this? He blamed the misleading nature of the photographs for the apparent discrepancy. Morris flashed back: If the photographs, produced by the Crown were misleading there could be little justification for putting them before the jury!. Next he invited Barraclough to examine he scratches on the sides o the cartridge cases ejected in Hollins room, the taxi, and at the tests. All were identical (the expert said) and had been imprinted by the same weapon when the cases passed from magazine to chamber. He could not say exactly how he scratches were produced. Nor had he made tests with other Astra pistols to ascertain whether the scratches were common to this particular type of firearm or to a series turned out by the factory. When he repeated he had used six Astra pistols, apart from Mallalieus, in the tests, Morris suggested these might still not have been sufficient. You had the opportunity to examine and test many more firearms. Remember, a man might hang on this evidence. . . From my point of view, Barraclough said definitely, six pistols were not even required.

And from my point of view, Morris retorted, I am going to suggest that a great deal more experience was required in this case than the expert (the work was almost spat) appears to have shown! Barraclough had been under cross-examination for seven hours. Morris sat down hoarse and weary. His gown was rolled up and almost off his shoulders but he was satisfied with the obvious effects of Barracloughs admissions on the jury. He might have been even more so had he overhead Barracloughs comment outside the court. That bastard, Morris, he growled, accused me of practically everything, except committing the bloody murder. Mallalieu was the main witness in his defence. He was col, lucid and unruffled. Dit you, was Morris first question, have anything to do, directly or indirectly, with the murder of Arthus Victor Kimber?. The reply was brief but emphatic, I did not. Did you ever have in your possession anything that belonged to Lawrence Hollins? Handkerchief, sports jacket or anything else? The reply was the same. I did not. So far as he knew, there was no truth in the suggestion that the blue silk handkerchief, found in the taxi, was among his washing sent to the laundry from the Marine Hotel, Durban.

Morris handed him the handkerchief. Was it returned in the wash bag? Mallalieu fingered and approved its silkiness. It seems to be of very good quality, he remarked with the air of one who bought only the best and could judge. No, if it had been sent to me I should have returned it. It certainly isnt mine. The blood flecks on his shoes? He knew, for certain, that after Hollins suicide he had stepped in some blood on the floor. It must still have been on his shoes when they were examined. Next, the gloves. Where did he buy them? In Johannesburg. The blood on them? He might have scratched his face or he might have soiled them at the market. He told of his romance with Gwen Tolputt, their elopement and the diaries they kept as a joke. They posed as a married couple, choosing whatever names came into their heads. He grinned. We didnt get married because I was under age and I didnt want to make a false declaration . . . They decided on the Royal Hotel, Marizburg, after seeing an attractive advertisement on the railway station hoardings. When they booked in he had 10s 8d, the sum reflected in Gwens records. Who, the Judge inquired, handled the money? I handled my own cash, Mallalieu said. Miss Tolputt kept the record and her own money. Did you ever see her with money? The Judge wanted to know. Oh, yes, Mallalieu said readily. When I saw the state of her finances and my own, we discussed what to do. I waned to go back to my farm but she wanted to go to England. I asked her how on earth could we get to England on 10s 8d. He smiled at the recollection. She then said we could cable to England for money with the pound she had. I didnt want my people to pay for the trip. . . but I eventually agreed to send the cable. On the night of September 21 he was in the hotel room smoking his pipe, reading and chatting to Gwen Tolputt. They decided to go for a walk. He wore a dark jacket and a pair of grey flannels. He owned no sports coat or blazer. Gwen put on an orange and green beret. Morris picked up a yellow jumper and skirt from the heap of exhibits.

They were Miss Tolputts, Mallalieu said. She always wore the two together. On that evening he did not think she had on the yellow jumper. He would certainly have noticed it if she had. To the best of his recollection, she wore a dark blue coat with the skirt. They left the hotel between 7.35 p.m. and 7.50 p.m. Without bothering about direction, they eventually reached Bulwer Street. At the corner of Bulwer and Boshoff Streets they paused to discuss their whereabouts. They met a man they later learned was Heher. He directed them to the centre of the town. Leisurely they returned to the hotel and climbed the stairs to their room.

The Attorney-General started his cross-examination by recalling Mallalieus statement that he avoided marriage because it would have entailed making a false declaration. You were not so punctilious in other matters, were you, when it came to making false statements? Mallalieu did not deny it. He agreed he had forged a passport application as well as the name of his attorney. He was frank, too, in his admission that the car he bought was not his own when he said it was and tried to sell it. He was equally candid, almost rueful, in admitting his financial plight, the trail of dishonoured cheques he had left behind him. But, he declared, he had not intended to defraud anyone. He believed his cheques would be met out of the 600 promissory note he had left in Takastad. The Attorney-General turned to the blue silk handkerchief he had already suggested to the jury belonged to Hollins and which Mallalieu had taken after the suicide. You have told us that this handkerchief did not belong to Hollins. Had you anything at all of his among your possessions? Malalieu was non-committal. I cant remember. You were definite enough in your previous evidence when you said you had nothing. He handed Mallalieu a tax receipt in Hollins name. How did it come into his possession? Mallalieu shook his head. He did not know. Lennox-Ward used the technique for testing a possibly fabricated story. He demanded again full details of Mallalieus movements on the night of the crime, the streets along which he and Gwen Tolputt had walked, what and whom they had seen, their conversation, the times. Mallalieu repeated exactly what he had said before. We went to a secluded part of the town, he added. Why? Lennox-Ward snapped. Mallalieu smiled disarmingly. Because lovers do not usually go where it is crowded. Why did he not tell Slade, the hotel proprietor, that evening he would be leaving the following day? Because we were not definite about leaving. We only told him we might be leaving. Mallalieu stood up well to cross-examination. Not once did he falter or try to excuse his escapades and irresponsibility. He was sorry for them, regretted them. But they did not make him a murderer.

Fourteen days after the start of the trial, the Attorney-General began his final address. He urged the jury to allow no sympathy with the relatives of the dead or living influence their emotions or deliberations. They were sworn to reach a verdict on the evidence and on that alone. It was not to prejudice the prisoner, he said, but only to disclose his financial position that the Crown led evidence of his dishonesty and falsehood. It was to show that, on the night of Kimbers death, he was driven to desperation. And that was the motive for the crime. I am not pressing the case beyond the limits of a fair-minded man, but I am here to do my duty. In a nutshell, the Crown case is

- he committed the murder with the woman, Tolputt, and that they were together at the time. It does not matter which of them fired the fatal shots. It is perfectly clear Kimber was shot for gain, that two people went out and deliberately shot him. That being so, if you find two persons did kill him, they are equally responsible. Methodically he analysed the evidence of Kimbers last journey and death and Mallalieus and Miss Tolputts money problems. On September 20, according to Mallalieus own logbook, they had 6s 4d in their possession. Next day, by Miss Tolputts reckoning, this had dwindled to 5s 3d. They were strangers in a strange town. They knew no one. Why did Malalieu not cable to England then? You have the answer, gentlemen of the jury. He did not have the money. You must ask yourselves whether their stay in Maritzburg was one of choice or of necessity. They were in fear of being traced. They wanted to leave. They could not. Can you believe Mallalieus story that they argued for days whether they should go to England - without any money - or return to Tarkastad? At this stage Lennox-Ward suggested, they conceived the robbery-with-violence plan. Why did they select a taxi driver? Obviously, they could not go into the street and kill anyone. They had to find someone they could kill and have a fair chance of escape. Choice of a taxi driver would have several advantages. The crime could be committed at a spot far removed from observation and he was bound to have money on him at the end of the day. There was evidence the couple had cabled England the morning after the murder. The jury could deduce for themselves why this was not reflected in Gwen Tolputts carefully kept accounts. Opportunity for the deed? The Crown submitted Kimber died somewhere about 8.20 p.m. That would have given Mallalieu and Gwen Tolputt, if they were the guilty persons, time to return to Maritzbug, abandon the taxi, and walk to where Heher met them at 8.55 p.m. It was significant that when Mallalieu spoke to Heher he asked to be directed to the centre of the town, not to the Royal Hotel. Was that not the action of one with something to hide? Then there were the silent witnesses in the case and they pointed unerringly to the prisoner. For instance, the blue silk handkerchief. A witness had identified it as one Hollins often used. Who was more likely to possess it after his death than his best friend? There, gentlemen, the Attorney-General said, it a strong case in itself against the prisoner because, whoever killed Kimber, left this handkerchief behind. The laundrymans evidence shows Mallalieu had it a week before the crime. You might say no man would be so foolish or reckless as to commit a deed like this and leave his handkerchief behind at the scene. But if criminals made no mistakes, they would never be brought to justice. This was a mistake. . . And, gentlemen, I was a fatal mistake. In spite of Morris relentless cross-examination, Lennox-Ward contended, Barracloughs evidence stood uncontradicted. The photographs had been provided merely to illustrate the evidence. Apart from that, they were no part of the Crown case. It was significant Barraclough had scarcely been questioned on

he bullets as distinct from the cartridge cases. Surely, if his testimony on this point were wrong, the defence would have refuted it. If, however, his evidence was accepted, and he maintained it should be there could be only one verdict. The Astra pistol was in the prisoners hands on the night Kimber was shot. There was nothing to suggest it had been out of his possession. And that could lead to one conclusion, and one only . . . the murderer, gentlemen of the jury, stands before you.

It was Morris turn. He had planned to make the jury feel immediately the dramatic impact of his words. He intended his address to be a masterpiece. It was. He always looked back on I with pride as the best he had ever delivered. His colleagues at the Bar said it was more, a model in presentation of facts, critical analysis of evidence, and the destruction of a Crown case by a combination of logic, persuasion and eloquence. He rose slowly to his feet in the sudden hush of the crowded court. He moved towards the jury until he was almost among them. He hitched up his gown, shot out his left hand. The slight, tousled haired figure with rumpled gown and penetrating eyes stood dramatically before them and they, seemingly hypnotised, watched and waited. With startling suddenness he spoke. May it please your lordship and gentlemen of the jury . . . Not a sound was heard in the pause that followed the opening words. This is a solemn occasion, solemn not only for the accused but solemn for yourselves. The accused, Richard Louis Mallalieu, is charged with murder. He has pleased Not Guilty. Upon you rests the responsibility whether the tide of liberty and life of this youth shall cease forever, whether at an appointed time and at an appointed place, he shall be hanged by the next until he is dead, or whether. . . He paused and dropped his voice . . . or whether . . . need I, gentlemen, sketch the more pleasant alternative? For hour after hour, the jury listened with unwavering concentration. First, Morris explained why Gwen Tolputt had given no evidence for the defence. An accused person could not be called as a witness except on his or her application. She was soon to stand trial herself and was, therefore, entitled to refuse to face double cross-examination. The Crown case, he said using his favourite phrase, must be clear, cogent and manifest. Yet here it has shown an utter lack of corroboration in all its essential elements. They very soul of the case is Barracloughs evidence. Without it, there is no case at all. Surely, gentlemen, there should have been mathematical evidence to place it beyond dispute and uncertainty. Surely you, too, are capable of seeing what the expert says he saw. Why was not the comparison microscope brought here to satisfy you as he says he himself was satisfied? The voice was reasonableness itself in its urging to the jurors to see things clearly and logically.

I ask you to say right away you are not satisfied with Barracloughs unsupported and uncorroborated evidence which is, indeed, characteristic of the entire Crown case. He left the ballistics evidence temp0orarily and went on to the particular. Take the handkerchief. There are Takastad resident and inhabitants of the surrounding district, as well as members of his tennis club, who must have seen Hollins with a handkerchief. Yet none of them has been brought here to testify they saw it in his possession. Where is he independent testimony to prove it belonged to him and that it passed into Mallalieus hands? There is none. If there is, you havent heard it. He hammered the point. You have not been treated fairly in this matter, gentlemen. Yet you are asked to hang this boy on a type of evidence that is wholly inadequate. He had a grievance and he was resolved to convince the jury I was justified. The outstanding feature of this case, he said, has been the rushing up of reinforcements to rally the ranks of broken Crown witnesses. There were occasions when handkerchiefs and garments were identified without the defence even being notified. Neither the prisoner nor his counsel were invited. Even now they are unaware how the identification was conducted and what was said and done. That is a not inconsiderable handicap to counsel defending a client for his life. He paused again. All eyes were upon him and ears attuned to his words.

I say these identifications were a hole-and-corner business. I say the methods used were not fair because few witnesses have the moral courage to change their views and opinions when they find afterwards they were wrong. There have been a number of alterations here - in the description of Mallalieus and Miss Tolputts clothing, in he times, and in the evidence of the cartridge case exhibits. Suddenly Morris stopped. There was a flurry at counsels table. A messenger, flushed and breathless, had arrived with a telegram. Faintly annoyed, Morris stared across at his junior, Frank Shaw who nodded at him. Its for you, he said. Morris took the telegram and looked at the Judge who gave him permission to open it. He slit the orange envelope and read the message. He smiled grimly. It is matter of some importance, mlord, he said. He passed the telegram to Lennox-Ward. The Judge frowned. Is this not slightly irregular? he said heavily. I so not want repeated in this court the trial scene in Alice in Wonderland where documents and telegrams come fluttering in. The telegram was handed to the Judge. He read it and motioned the Registrar to show it to the jurors. Morrison did not immediately refer to the contents. They were, however, son to play their part in the most devastating attack on an expert witness ever heard in a South African court. He resumed his address: You are asked to believe that this youth, son of generous parents and with assets of his own, that he and a girl, or woman,

entered into a conspiracy somewhere before 7.30 on the night of September 21 to commit cold-blooded, brutal and diabolical murder. And, to that end, somewhere between 7.30 and 8 oclock they armed themselves with sufficient ammunition and proceeded from their hotel without any endeavour to disguise themselves. . . The girls dress was somewhat distinctive. She wore a beret which showed the whole of her face. They committed the deed, it is said, and were most fortunate to escape without being noticed. Apparently they were skillful, too, he said with gentle irony, and got the body out of the way without staining their hands or clothing with blood. And then, when they were seen by Heher, they displayed no signs of quivering or emotion. Remember, they were supposed to have committed a cruel and wicked murder and had come freshly from the bloody feast. Yet, gentlemen, they were not even panting, these two. They faced people perfectly composed. Even the most hardened criminals could not have done it. His voice was raised in disbelief. This is the incredible story the Crown asks you to accept. He shrugged as if the proposition was a fiction. The couples conduct, on the contrary, was consistent with complete innocence. Was it reasonable that a youth, with murder on his conscience, would want to remind himself of his stay in Maritzburg and keep a diary of his doings in the town? Would such a youth have written: Our finances were at a low ebb and something had to be done. So we cabled the old folks in England. Would it not have been simpler and wiser, if he were the guilty man, to have invented an alibi for the diary? Would he have written as he did: We were overjoyed to see the last of the place. Surely not, gentlemen. He would have thought to himself: I have committed murder. If I write that, I shall be asked why? Morris flipped through the diary as he spoke. Replacing it among the exhibits the added with a faint smile: these are not the sentiments of a murderer. They are the sentiment of a schoolboy.

In any event, the case broke down on he question of identification. No one had seen Mallalieu go into or leave the most prominent telephone booth in the town. The most claimed was that two persons were seen in the road nearby. How was it that so distinctive a man as Mallalieu had not been readily identified?