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The Trials of Eric Mareo

Chapter Eight — 'J'Accuse': Facts and Phalluses

page 119

Chapter Eight
'J'Accuse': Facts and Phalluses

The Mareo Trials Held a mirror up to New Zealand society that reflected, at least initially, a less than comforting image. And after the commutation of the sentence certain individuals, aided by the bureaucratic machine, went to some lengths to ensure that Mareo remained in gaol. However, the tale of professional and bureaucratic inertia, tunnel vision and, on occasion, downright dishonesty that this bespeaks should be balanced by another tale. From the very beginning Mareo had his supporters. Some were musicians who had worked with him, but many had never met the man. Most simply recognised that a terrible injustice had been committed and, even during the war years when the world was preoccupied with rather more important matters, they were quite tenacious in their various campaigns for his release. If Mareo's years in gaol show the lengths to which people will go to defend prejudice, they also show the extraordinary persistence of reason in the face of prejudice. Although the trials and their aftermath reflect an image of a rather repressive and conformist society, they also reflect the fact that the country could support a not inconsiderable number of men and women committed to speaking out against injustice.

This is not to say that all of Mareo's supporters were entirely reasonable. Mrs Irene Holmes, for example, wrote to the Minister of Justice to inform him that at a meeting of their 'neighborhood circle' in the 'chapel' a '"visitor" came through, as the expression is, and began in a faltering whisper' to communicate a message relevant to Mareo's fate. Apparently neither Mrs Holmes nor the 'visitor' were aware that Mareo's life was no longer in danger, because the latter, who identified himself as the notorious murderer Bayley, having departed this world a few years earlier and 'been through hell', declared that page 120he was now 'alright', repentant and, not surprisingly, an opponent of capital punishment.1

Others were reasonable but just eccentric. One such was a Dr G.M. Smith, a Scottish immigrant to the 'backblocks' of Northland. Dr Smith had read about the first trial in the newspapers and realised, on the basis of his extensive experience with a babiturate (nembutal) similar to veronal, that the Crown's doctors' 'principle' that a patient could not relapse into a coma was wrong. Initially Dr Smith contacted Mareo's counsel, then wrote to the Minister of Justice (assuring him that the Prime Minister could vouch for his seriousness), and later acted as a medical adviser for the Defence during the second trial. However as the Department of Health discovered when it made enquiries about his professional standing, Dr Smith had 'his own ideas about dress' (including the assumption that a doctor could wear his hair long and shirts without ties and shamelessly unbuttoned), and was generally known as 'an advocate of lost causes'.2 The Whangarei police were later to elaborate on Dr Smith's dress sense, noting that

he either goes bare-footed in-doors or in Hospital, or only wears sandals outdoors. He always wears a canoe shirt, wide open at the neck and chest, sports jacket and grey slacks. He appears in the Supreme Court witness box in this garb, but his eccentricity in dress is probably envied by Bench and Counsel, especially in summer weather.3

And on the subject of Smith's outspokenness, a close acquaintance, Sir Douglas Robb, would later write - rather grandly - that Dr Smith was

… a unique character, one of great natural endowments, but tortured inwardly, who was ready to tilt a lance at established pomp and humbugs. One thinks of Ajax defying the lightning, of Ulysses deriding Polyphemus, or of Don Quixote charging the windmills - all done in the guise, almost the garb, of an Old Testament prophet. Dr Kemble Welch [Smith's biographer] thinks of Socrates, the self-styled gadfly, stinging society page 121into a greater awareness of its collective crimes, follies and misfortunes.4

It may well have been Dr Smith's flamboyance that made Mareo's lawyers refrain from calling him as a witness. However, he remained a tireless campaigner for Mareo's release, detailing the flaws in the medical aspects of the Prosecution's case in a book of medical reminiscences written after the trials.5 Interestingly, the author of the Whangarei police report, Detective Sergeant J.B. Finlay, plainly admired Dr Smith's medical abilities, crediting him with being 'one of the first, if not the first doctor, in New Zealand to fully appreciate the value of suphalilamide [sic] drugs' and concluding that '[p]ersonally, I have a rather high regard for Doctor Smith and consider that I could best describe him as a "rough diamond" but no fool'.6 Despite such advice, Dallard, the Controller-General of Prisons, was dismissive, writing in a memorandum to the Minister of Justice that 'it is fairly common comment that Dr. Smith of Rawene is somewhat of a crank'.7

But the vast majority of Mareo's supporters were not so colourful. In October of 1940, E.G. Hemmerde KC, the Recorder for Liverpool and one of Britain's most distinguished criminal lawyers, read the reports of both trials at his sister's request (who presumably knew, or knew of, Mareo when he lived in England) and concluded that 'there is a grave danger that here has been a serious miscarriage of justice', largely on the grounds that, since there is no reason to suspect that Whitington and the Rianos were not telling the truth, it was 'quite incredible' that Stark was speaking honestly 'when she said she never knew Mrs Mareo to take drugs'.8

However, the most important opinion came from the man on whose medical opinions, ironically, the Crown's case had largely rested, Sir William Willcox. At the instigation of Mareo's 'friends', Sir William read a full transcript of the first trial and 'some information about the second trial', formed the view that Stark's evidence was unreliable, and concluded that it was 'not … at all likely that a third dose was given on Saturday night' page 122[original emphasis], and that a 'self-administered' dose on the Saturday morning had caused her to die of 'Veronal Pneumonia'.9 Subsequently, two petitions were submitted to Parliament calling for a review of the case primarily on the basis of this report. On 30 November and 1 December 1942 Parliament's Statutes Revision Committee met to hear the petitions. Both Crown prosecutors attended the hearing as did O'Leary, together with Mareo's solictors, K.C. Aekins and Hugh Roland Biss.

In the words of Sergeant Hamilton (who was in attendance and took notes) Mareo's supporters 'divided their attack'. First Biss told the Committee that statements made by Stark to the police were in material respects at odds with the evidence she had given at trial. Biss contended that when these earlier statements were compared with Stark's testimony, it became apparent that her evidence had been 'developed' to fit the Crown theory of the case. He argued that because the Defence were not shown the earlier statements they had been denied the opportunity to put the discrepancies to Stark and, therefore, the opportunity potentially to undermine the 'sheet anchor' of the Prosecution.

These allegations were the cause of some controversy in the Committee, not because it was thought that in withholding the statements the police were guilty of any wrongdoing, but because it was evident that Mareo's lawyers had seen the police files containing Stark's statements after the trials. Biss told the Committee that the files had been made available by the Minister of Justice, Mason. Mason, who was present at the hearing, took full responsibility for the matter, and is recorded as saying 'that if it came to the point where the file could not be available and truth and Justice were going to suffer he would get out of it', by which he presumably meant he would quit politics.

O'Leary then dealt with the Willcox Report and went through Whitington's evidence of Thelma's pre-existing veronal habit, saying that he was a truthful witness. O'Leary also read aloud the three 'lesbian' letters, although his object in doing so is unclear from Hamilton's report.

From the Sergeant's notes it appears that the principal page 123preoccupation of the members of the Committee, in common with all Mareo's detractors, was his 'failure' to take the witness stand. O'Leary simply responded that he took full responsibility for that decision, saying it was made on the best judgement he could exercise, including his concern that, were Mareo called upon to testify, matters peripheral to those at issue would be unduly emphasised to his detriment. To emphasise the point, O'Leary referred to the fact that it appeared that Whitington's credibility as a witness had been unfairly damaged in the eyes of the public (and the jury) merely because he admitted to being separated from his wife.10 On 4 December the Select Committee recommended that no action be taken on the petitions.

Undeterred, Mareo's supporters decided to petition the Prisons Board in the following year not once but twice, largely on the basis that the Statutes Revision Committee 'being composed of lay-men were not in a position to properly value and appreciate the medical aspects of the case'.11 Both petitions were unsuccessful. In the same year a third petition was made to Parliament and was heard by the Statutes Revision Committee. Unsurprisingly, given that its membership was identical, this Committee was no more sympathetic than the first. Of these petitioners, perhaps the most noteworthy was Captain Harold Montague Rushworth. Educated at Oxford and a former engineer for the London Flying Corps, officer in the Royal Flying Corps during the Great War, farmer in the Bay of Islands, and a Country Party MP for ten years allied with the Labour Party, Rushworth has been described as 'the cinema ideal of an English gentleman'.12

The following year, 1944, what should have been a crucial submission was made by Sir William's successor as the Senior Official Analyst to the British Home Office, Dr Roche Lynch (who had, incidentally, been offered, but declined, the job of testing Winston Churchill's cigars for poison). Dr Roche Lynch concluded that Thelma had died of pneumonia as a consequence, in the first instance, of having self-administered veronal on the Friday night, and, in the second, of having taken a further dose, probably in 'an automatic state', on the Saturday morning. page 124However, perhaps the most telling aspect of this report is its comments about the Crown's medical witnesses:

I recognise that Dr. Gilmour and the other doctors, and also the analyst who gave evidence at both trials on behalf of the Prosecution, gave their honest views throughout but it is equally clear that they were labouring under a considerable disadvantage in that they had only experienced a very few cases of veronal poisoning, and were quite unfamiliar with certain aspects of such cases.… The New Zealand medical witnesses do not appear to have realised that a person who has taken a possible fatal dose of veronal can become completely comatose and subsequently regain more or less complete consciousness, and then relapse into a coma without taking any further doses of the drug.… The conclusion reached by the New Zealand doctors that Mrs Mareo must have taken a third dose of veronal on the Saturday night for the reason that she regained consciousness and later again became comatose is based on inadequate knowledge of the effects of this drug.13

This report was the basis for a third petition to Parliament that was heard in October 1944. Meredith again appeared, but this time Mareo's supporters were represented by Arthur Sexton. Meredith submitted reports from Mr Griffen and Drs Gilmour, Lynch and Ludbrook in rebuttal of the report by Dr Roche Lynch, and Sexton not unreasonably sought an adjournment so that he could consider, and seek expert advice on them. The adjournment was rather grudgingly granted but the hearing was never reconvened. It seems the petition was overtaken by the events of 1945 and was eventually formally withdrawn in 1946.14

The apparent ease with which the relevant authorities were able to dispatch these petitions might suggest that Mareo had no supporters within the realms of officialdom, but this was not the case. As we have seen, no less a personage than the Minister of Justice and Attorney-General, H.G.R. Mason, had an interest in the case that verged almost on obsession. His archive at the National Library contains hundreds of pages relating to the trial, including the first few pages of a book he was writing about the case when he died in 1975. These pages page 125exist in perhaps a dozen only marginally different versions, as though his book were mirroring its subject matter - his endless and unsuccessful attempts to prove Mareo's innocence.

Mason was a reformer and a man widely regarded, during a parliamentary career that stretched from the first Labour Government of 1935 to his enforced retirement in 1966, as the conscience of his party. Furthermore, as a practising theosophist, vegetarian and teetotaller, he probably understood better than most the pressures within New Zealand society towards conformity. However, Mason was also a lawyer and a mathematician and therefore someone trained to pay attention to the minutiae of a case irrespective of his moral convictions. Thus the most original aspect of his case for the release of Mareo was his close attention to discrepancies between Stark's early statements to the police and her testimony during the trials. In part, these concerned the degree of Thelma's alleged period of consciousness before she received the milk. For example, whereas Stark claimed during the trials that Thelma awoke of her own accord just prior to receiving the cup of milk, in one of her statements to the police she said that she could not keep her awake even though she 'shook' and 'nudge[d]' her. They also concerned the time of this period of alleged consciousness. Again, according to Stark's testimony at the trials, Thelma's request to go to the lavatory was made while Mareo was out of the room preparing the milk, whereas in one of her statements to the police she said that '[i]t would be fully an hour and a half from the time that she mentioned that she wanted to go to the lavatory that we took her there', which must have been some time before she received the milk.15 In short, Mason demonstrates that not only does Stark's later testimony increase Thelma's degree of animation or consciousness, but it also transfers her period of greatest animation from the beginning of the evening to a period just before she was given the milk.

In addition to the discrepancies noted by Mason, a comparison of Stark's statements to police and her evidence reveals other potentially significant omissions and points of departure. In particular, a reduction in emphasis on the amount page 126of alcohol consumed by Thelma is apparent. While in a long statement made two days after Thelma's death. Stark denied that Thelma drank to excess, she said 'Mrs. Mareo was a moderate drinker and was fond of liquor' and said that she would drink a bottle of brandy a week, but that she also drank wine. She admitted that Thelma had been 'under the influence of liquor' at the party on the last night of The Duchess of Danzig and recounted how Thelma had told Dr Walton that she had been drinking and that he had told her 'that it would benefit her health if she did not drink as it was no good for the nervous state she was in'. Thelma then told Stark that she was going to give up alcohol. Stark recorded two occasions on which she had taken wine to Thelma at home and that on the first she (Stark) 'opened a bottle at about 3 pm as the deceased wanted a drink'.16

By way of contrast, in evidence at the second trial all Stark said on the subject was that Thelma might have been 'under the influence' at the Duchess party, that '[w]hen I did see her take a drink, she would generally drink sherry, probably a full wineglassful', and that on the night of the Dixieland party 'Thelma and I were alright that night as far as sobriety goes. We had had a little wine'. Stark flatly denied the Rianos' allegations about the amount of alcohol Thelma had consumed on certain other occasions.17

A similar reduction in emphasis can also be seen if the statements made by Freda Evans to the police are compared with her testimony at the trials. For example on 24 May 1935, Evans said to the police that

[o]n a number of occasions at the house I saw her take sherry… Mareo told me on one occasion when I called that his wife was in bed and… I asked him what was the trouble with his wife and he told me that it was her failing that she took drink. I saw her in bed and he begged her to take a cup of coffee which she reluctantly accepted and when she sat up I noticed in my opinion that he was under the influence of liquor. She had her senses but it was noticeable to me that she had been taking liquor.18
page 127

After Mareo's arrest in September, Evans made a further statement to the police about the incident, in which she seemed to suggest that Mareo offered Thelma drugs rather than coffee, and that Thelma 'was pleased to accept'. She then records Thelma as saying to Mareo, 'You're fond of drugs too aren't you?'19

Nothing about this incident made it into Mrs Evans's testimony at trial. Rather, she simply said:

I did not at any time during rehearsals or during the performances see Mrs Mareo under the influence of liquor.… I have been in their house on several occasions… I never saw her under the influence of liquor in her own home. The only time I ever saw her take anything was a glass of sherry… On one occasion Mareo told me his wife drank too much.20

We can only speculate that it was no accident that several of the statements made by people regarded at an early stage by police as potential witnesses, but later not called by the Prosecution, also spoke of Thelma being a 'heavy drinker' or as having 'a strong smell of liquor' during rehearsals for The Duchess. Given the amount of evidence called that emphasised the opposite (effectively that Thelma 'never' drank), it cannot be assumed that the Prosecution simply regarded these statements as irrelevant.

More tantalising as far as the subject of Stark's pre-trial statements to the police were concerned was the omission of any reference in her later evidence to her allegation that she herself had been the object of Mareo's unwelcome attentions. On 17 April 1935, she recounted to the police what had happened after Thelma's funeral that morning. According to her statement, she and Mareo were in the sitting room at Tenterden Avenue when

Mareo told me 'You know I was in love with a small person but I did the right thing by Thelma and made myself forget about it.' He was referring to his affection he had for me… Mareo had made love to me before he married Thelma but I resented his attentions and he had cooled off…
page 128

Stark went on to say that Mareo's advances resumed after they had met again in Auckland and that he had told her in that context that Thelma wouldn't mind as 'she has been a wife to me only in name'. She continued that after the funeral

[h]e said 'I know that Thelma was in love with you because she told me.' I understood from that that Mareo meant his wife had been a lesbian. He also said other things which I do not like mentioning which include [words omitted from statement]… he said 'Of course I was very considerate towards her and I very rarely bothered her and when I did I never finished inside her.' He said consequently this made me a nervous wreck and I suppose you have heard of such a thing as wet dreams and I used to have them and I was ruined physically.21

It makes sense that the Crown would not have wanted Stark to repeat these statements about Thelma's sexuality in the courtroom. But why did the Crown not question her about Mareo's alleged attempted seduction when clearly this would have counted against him? The only answer we can venture is that talk of Mareo's sexual attraction for her might have endangered her perceived objectivity or neutrality towards him. It might, for example, have allowed Mareo's counsel to imply that she was either prejudiced against Mareo or, somewhat less plausibly, that she might have even welcomed his sexual attention.

It appears, then, that there was some truth in the allegations made to the Select Committee that Stark's evidence changed after her interviews with the police so as to better suit the Crown's case. Nor do the changes appear to have been limited to the issue of whether the fatal dose must have been in the milk. These changes were quite subtle and it is possible, given the kinds of pressure to which she was subjected and the period of time that elapsed between her first interview with the police and the second trial, they were made quite unconsciously.

For Mason, however, the issue was more fundamental. He formed the view that Stark's statements to the police were less than honest. A memorandum he wrote to Cabinet in 1945 - which finishes by recommending the establishment of a Royal page 129Commission to inquire into Mareo's case - outlines what he believed to be her motivation and is worth quoting at length:

[t]he case has its origin in a story told to detectives by Freda Stark of Mareo's refusal of her repeated pleas to him to get a doctor. And this story cast its shadow over every scene of the resulting drama… The files leave little mystery. The story is only to save herself from sharing the blame for the delay. It is not merely the odium (such as later befell Mareo's secretary [Brownlee]) of not understanding the urgency of medical attention. She learnt from Dr. Dreadon [the doctor called to the house] that trouble was impending for the delay, and when she met detectives she had her story ready, setting herself and Mareo poles apart and exalting herself at Mareo's expense. She and Mareo had been unanimous in thinking at first there was no urgency, because they supposed the illness to be the normal result of abortifacient medicine, and especially because six months earlier Mrs Mareo had gone through at least one experience exactly similar in all respects, real, and supposed, except for the fatal ending. They were also unanimous (when alarm at length arose) in their efforts to avoid a criminal charge against the patient. This caused further delay. Of the two, she was much the more averse to getting a doctor. She alone caused the final and fatal delay of the last 24 hours. While Mareo was sleeping on Sunday afternoon she observed in the patient a new and terrible symptom of the sort which next day heralded imminent death. She concealed this from Mareo. She had indeed food for thought in Dr. Dreadon's words! And little wonder she fainted in [the Lower] Court upon the relaxation of the tension when she safely got through the ordeal of her first public recital of her exculpatory story!22

Given that Mason campaigned for many years for homosexual law reform, it is unlikely that these accusations were motivated by any kind of homophobia. And they are also quite plausible. Since Mareo had been arrested on the flimsiest of evidence, Stark would perhaps have had good reason to fear prosecution. Nevertheless, it should be added in her defence that she was a young and inexperienced woman no doubt in a page 130state of shock as a consequence of her lover's death. Furthermore, as a 'lesbian' she had, unlike Mareo, good reason to fear the prejudice of the police, the judiciary and her 'peers'. And, of course, she was not to know that her perfectly understandable denial of any kind of 'lesbian' relationship was going to rebound on Mareo. If Stark's probity was not of the highest order, the homophobia of the day was certainly a strongly mitigating circumstance.

Soon after the matter was considered and rejected by Cabinet, Harcourt published his defence of Mareo under the pseudonynm of 'Criticus', possibly because he feared some kind of official action against him. Significantly, the book was called I Appeal, its title presumably alluding to 'J'Accuse', Emile Zola's famous open letter protesting the imprisonment of the Jewish Captain Alfred Dreyfus on the notorious Devil's Island. Harcourt would later emigrate to New York where he would become the rector of an Episcopalian church in Long Island and an educational reformer. The biographical note to one of his books published during this period describes him as 'probably the only Anglican clergyman of this century whose pen has been largely responsible for an important legal reform: the establishment of a Criminal Appeal Court in his own country'. Although it is unlikely that I Appeal was 'largely responsible' for this reform, it did, nevertheless, provoke quite a reaction.

I Appeal is partly an imaginative re-enactment of the Mareo trials and partly a condemnation of the repressive aspects of New Zealand society. In addition to the courtroom drama, this rather odd book also included a strange fiction in the form of a cautionary tale about how an imaginary 'model village' or 'the pride of democracy' can win the battle against fascism but only by adopting the methods of its enemy. Whereas the Labour government 'might have been reasonably expected to offer some resistance' to various authoritarian tendencies, Harcourt argues, under wartime conditions '[m]any thoughtful students of modern political trends have not failed to observe a disturbing similarity between National Socialism in Germany and the Labour Government's version of socialism in New Zealand'.23 Although the page 131comparison of the Labour Government with Nazi Germany is rather forced, to say the least, there had indeed been severe curtailments of civil liberties during the war years. Pacifists, conscientious objectors, Communists, foreign 'aliens', Jehovah's Witnesses and others were jailed on various charges usually amounting to alleged 'subversion', and freedom of expression was severely curtailed. According to the historian Nancy M. Taylor,

[t]he paradox appeared that in New Zealand, where the [Labour] government's background might have led to consider- ate handling of conscientious objectors, those who would not fight received much harsher treatment than did those in Britain and other Commonwealth countries.24

Both Harcourt's specific and general claims could not, perhaps, be lightly shrugged off.

But Harcourt's general allegations and some of the more specific ones put by Mason were not to be answered by a Royal Commission. Instead, he got his wish for a Court of Criminal Appeal when the Criminal Appeal Act 1945 was passed in December. In the last major step that remained open to Mareo's supporters, an appeal was duly lodged and heard in March and April 1946.

The principal grounds for the appeal were orthodox enough and they are discussed together with the Court's response to them in more detail in the chapter that follows. However, there was one far more bizarre matter that was raised by Mareo's lawyers in chambers and that has never, as far as we are aware, been made public.

On 15 April 1946, 11 years to the day after Thelma's death, it appears that Mareo's lawyer, Arthur Sexton, sought to introduce further new evidence in support of Mareo's acquittal. He had in his possession a signed declaration by George Scott Russell, which said,

In 1936 I was the Associate to Mr Justice Callan during the hearing of the second trial in Rex v Mareo. I was on the floor page 132of the Court looking at the exhibits lying on the court table. One of the plain-clothes Police officials (I am unable at this date to state who this official was), in the course of conversation with those around the table, including myself, pulled out a phallus from his pocket and jokingly said this was the kind of thing they had been using.…

The phallus I saw on the above occasion was a dark rubber penis-shaped article, which the Police official producing it said had originally come from France. There was a slit in the end of the phallus and the Police official said the phallus contained Vaseline in its sac which, on contact with the body, trickled out. I cannot now remember whether the official who produced the phallus was in any way connected with the case.25

In seeking to introduce this evidence at the hearing of the appeal, presumably Sexton wanted to show that the police had suppressed evidence that they thought would harm the Prosecution's case. Sexton's thinking must have been that if such a phallus had indeed been found by them on the Mareo premises, and produced at the trial, the jury would have been confronted with undeniable, tangible evidence that Thelma and Stark were 'perverts'. In the words of Inspector S.G. Hall of the Auckland police, 'Mr Sexton brought the matter of a phallus before the Judges in Chambers with the view of damaging Freda Stark's evidence.'26

Not surprisingly, the story of the phallus produced an immediate and somewhat frantic reaction within the Police Department. An extensive internal inquiry took place but, again unsurprisingly perhaps, yielded no clue as to the existence of the phallus or the identity of the police official in question.

Other than to remark on the general oddity of this turn of events, there is probably little that can be concluded from it. Since it seems most unlikely that Russell made the incident up, it is possible that the police did find a 'phallus' at the house and chose to suppress this evidence. However, it is far more likely that a police officer produced a phallus that he had acquired by other means simply as a 'joke' with his fellows. In either case it does perhaps reinforce what we have argued above about the page 133kind of damage that might well have been done to the case against Mareo if Thelma and Freda had been openly acknowledged as lesbians. In the end, however, it made no difference to Mareo's appeal. According to the Commissioner of Police: 'the Judges ruled out the evidence of the phallus as being inadmissible.'27