They were never asked to consider why he should have made two different confessions to two different people, or why he should have made a confession at all. They were never told that, in dealing with an alleged confession, they must approach the consideration of it in a manner entirely different from that in which they would approach evidence purporting to deal with substantive facts. Indeed, in the passage above quoted, Upton’s evidence of supposed facts is put in exactly the same category as Matthews’s and Harding’s evidence of supposed confessions. The learned lawyer, Sir Michael Foster, author of an historic legal work, may have realised that confessional evidence “is not, in the ordinary course of things, to be disproved by the sort of negative evidence by which the proof of plain facts may be, and often is, confronted,” but a Melbourne common jury was hardly likely to realise that truth by the light of nature. Mr. Justice Cave, in delivering the judgment of a very full Bench in a trumpery case of embezzlement not so very long ago, said: “I would add that, for my part, I always suspect these confessions which are supposed to be the offspring of penitence and remorse, and which, nevertheless, are repudiated by the prisoner at the trial. It is remarkable that it is of very rare occurrence for evidence of a confession to be given when the proof of the prisoner’s guilt is otherwise clear and satisfactory, but, when it is not, the prisoner is not infrequently alleged to have been seized with the desire, born of penitence and remorse, to supplement it with a confession—a desire which vanishes as soon as he appears in a court of justice.” How aptly those words applied to this case! They were never warned that they could take the confessions, if they were satisfied that they were made, and accept as much of them, or either of them, as they chose, but that, if they rejected any portion of them, they could not fill in the gap by conjecture if there was no other evidence on the point. They were never reminded of the difficulties of cross-examining two persons who purport to depose to a confession, for, whatever inconsistency with the facts is pointed out, the witness merely replies, “That may be so; I know nothing but what he told me.” They were told that Ellis’s evidence was important “because it was so contradictory of the evidence of some of the witnesses for the defence,” but they were never reminded that, if Ellis’s evidence was true, they would have to reject a great portion of the supposed confessions to Matthews and Harding.