Cross Examination and Argument in The Baccarat Case

Sir William Gordon-Cumming giving evidence with, I believe,
the Prince of Wales observing the testimony

In my previous post I provided a review of The Baccarat Case. This post will delve into addresses of counsel and the cross examination of the key witness in the trial. 

The plaintiff, Sir William Gordon-Cumming, had the tasks of explaining how his actions were not cheating, what he did when confronted and why he signed the dishonouring agreement to secrecy. 

From his opening statement in the trial, Sir Edward Clarke, Q.C. and Solicitor-General, strove mightily to convince the jury the statement signed by Sir Henry was not an admission of guilt but rather an expression of innocence. His eloquence was striking but the prospects of success for Sir William were grim.

In the language of that day I thought it unfortunate Sir William did not consult legal counsel before signing the fateful document. No lawyer would have ever let him near a pen.

As set out in my previous post Sir William denied cheating but going into court also means facing cross-examination. Sir William’s explanations were shredded by Sir Charles Russell, Q.C..

Credibility often hinges on plausibility. Sir William’s explanation that he held counters in his hands during the game so they would not fall off the table sounded convenient rather than an explanation.

His honour evaporated as he acknowledged he had not pressed to know his accusers and to confront them. He described his inaction as an “act of folly” on his part. A man of honour would not shrink from facing his accusers be they one or five. By contrast, his primary accuser, Mr. Lycett Green, sought such an immediate confrontation.

For a man who has risked his life in battle for his country to say he “lost his head” when faced with accusations of cheating was improbable.

In his opening address Sir Edward had advanced a clever argument asserting the Prince of Wales and General Williams would never have signed the document if they believed Sir William actually cheated, for they would be covering up misconduct.

However, when it came time for Sir William to provide the evidence needed to support the argument he became entangled in trying to explain that while he signed because Lord Coventry and General Williams told him it was best for him to sign to avoid scandal they did not believe he was guilty.

A letter from Lord Coventry, General Williams and the Prince of Wales to Sir William destroyed any argument they did not believe he was guilty. The letter spoke of overwhelming evidence against him and stated:

In this we have dealt with you as old friends and in your interest, but we must plainly tell you we consider we have acted quite as leniently as we possibly could under the painful circumstances of the case.

(Sir William was ambushed at trial by this letter and other letters not disclosed before trial. Modern rules to prevent the concealing of evidence would have prevented their use in a current trial and probably drawn sanctions against the party who had withheld the evidence.)

The closing argument of Sir Charles aptly described Sir William as doubly condemned. He was condemned by the direct evidence of the defendants and he was condemned by himself, especially by his actions.

In closing Sir Edward boldly stated that in his opening he had not been as critical of the defendants and their witnesses as might be expected because he had hoped that the defendants, upon hearing Sir William swear he had not cheated, would accept his evidence and not testify against him. It was a breathtaking argument. The defendants had never accepted Sir William’s assertions he had not cheated. To have thought they would change their minds by hearing him testify defies reason.

Sir Edward called the evidence of Mr. and Mrs. Green and Mr. Arthur Stanley Wilson “the random recollections of inexperienced and youthful persons” and suggested all those who testify to cheating on the second night are “persons who come prepared to see a thing who say afterwards that they saw it”. 

He says the précis should be accepted over the evidence of the witnesses where there is contradiction between the document and the evidence. It is a major problem for his argument that the précis was never given to the accusers to review before it was signed.

Sir Edward strove to portray Sir William’s play as “an ordinary procedure in playing the game” of doubling up stakes after a win for three coups in a row. He asserted the accusers were little experienced in the game of baccarat and it was a lack of understanding of how the game was played that caused them to be mistaken that Sir William had cheated. It was the best he could do in the face of their clear evidence that they saw cheating.

Sir Edward moved to the offence by saying Mrs. Wilson, her son, daughter and son-in-law acted improperly in not bringing the matter to Mr. Wilson’s attention. Unfortunately, Sir Edward in the end had to deal with what happened rather than what he asserts should have happened.

He mocks Mr. Lycett Green as a man of 30 whose sole occupation is being Master of Hounds. He further chides him for writing a note to his mother-in-law rather than immediately challenging Sir William.

He calls Mrs. Wilson’s evidence “perfectly ridiculous” on her observations of cheating.

He appropriately raises that no one prior to the night of the accusations had considered Sir William a dishonourable man and why would he risk his honour over such trivial amounts. Yet he never dealt with Sir William, not seeking to confront his accusers that night while Mr. Lycett Green wanted to confront Sir William.

In the end Sir Edward sought to reverse the dishonouring document and put Sir William upon the moral high ground by claiming that he signed  in order to prevent embarrassment and scandal falling upon the Prince of Wales. He was arguing Sir William sacrificed his honour for the good of his nation. Unfortunately for the argument Sir William’s subsequent letters never mentioned such an intention.

In my third post I will discuss the judge’s charge to the jury, the verdict and my thoughts upon the case.

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Shore, W. Teignmouth (editor) - (2020) - The Baccarat Case