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The Trials of Eric Mareo


While In Court on the second day of the trial, O'Leary received a telegram from a man called Alex Whitington living in Australia, stating: 'If Called Could Give Material Evidence Support Defence Mareo Case Writing Today.'1 O'Leary cabled back 'What is Nature of Evidence' and Whitington responded the next day: 'Have Frequently Seen Deceased Before Marriage Depressed Taking Veronal.'2 In a letter to the Attorney- General a little more than two weeks later, O'Leary explained that '[a]fter receipt of this cablegram I communicated the contents to the Crown Counsel but they stated, no doubt rightly, that they could do nothing in the matter and I was left to take what steps I felt disposed'.3 Given the time it would have taken to secure Whitington's presence in Auckland (he lived in Adelaide which was about ten days away by ship), O'Leary had little choice but to continue with the trial in the hope that his defence of Mareo would be successful without Whitington's testimony, and presumably knowing that, if it were not, he would be able page 53to seek a new trial on the basis of the new evidence which had come to light. Nevertheless, it must have been, to say the least, frustrating for O'Leary to know that there was now reasonably compelling and independent support for the misadventure/ suicide theory, that could not be revealed to the Court.

As soon as the first trial was over and Mareo had been sentenced to death, O'Leary made an application to the trial judge for leave to appeal to the Court of Appeal on the grounds that the jury's verdict was against the weight of evidence. Before Mr Justice Fair could hear the application, O'Leary received a letter from Whitington, which elaborated upon the matters raised in his telegram. At that point it seems that O'Leary decided to make a further application for a retrial, this time under a statutory provision that allowed the Governor in Council to direct a new trial where he 'entertains a doubt whether such person ought to have been convicted'. O'Leary stated in his application to Mason that if this 'letter is genuine and I can see no reason for thinking otherwise, then Mr Whitington's information is of immense importance and as I have said above goes a long way in establishing the innocence of the accused'.4 A short time later O'Leary received a letter dated 3 March from a Mrs Irene Riano of Melbourne, claiming amongst other things that she had known that Thelma had been 'addicted to headache powders and sleeping potions'.5

Prior to formulating advice to the Governor-General on the retrial application, Mason arranged for both Whitington and Riano to be interviewed by the Australian police. The Australian police also questioned a number of other people and took detailed statements from three of them: William Dawson, who had known the Mareos in Auckland and who confirmed that Thelma was a heavy drinker, 'appeared on the happiest of terms' with Mareo, and had said on one occasion, 'I would rather commit suicide than have an operation or a baby';6 Hilda Hooper, a theatrical who had toured with Thelma, who stated that she had never seen her take 'any tablets other than aspros' or 'drink intoxicating liquor to excess' but who nevertheless believed '[s]he was of a very highly strung nature… occasionally page 54had an attack of appendix and used to express a horror of having an operation'7; and Herbert Kingsland, Mareo's 'right-hand man' for a time in Auckland, who said that the Mareos 'lived very happily together', and that Thelma was 'a heavy wine drinker', would 'frequently… take abnormal numbers of aspros out of a bottle, practically emptying the bottle' and 'was frequently sick for two or three days at a time and… [said] on several occasions that she would sooner commit suicide than have an operation or a child' and 'that she was having trouble with her appendix'.8 Ultimately, Dawson was excused from giving evidence at the second trial because of work commitments and Hooper and Kingsland were not asked.

In the meantime, Mr Justice Fair had turned down the application for leave to appeal. No doubt eager to cover his bets, O'Leary appealed that decision and was heard by a full bench (five judges) of the Court of Appeal between 23 and 26 March 1936. He must have known, however, that it would be an uphill battle. Only in exceptional cases will an appellate court (whose members have not had the benefit of seeing the witnesses or hearing their testimony) declare itself willing to 'second-guess' a jury on matters relating to witness credibility and the determination of issues of fact. Nevertheless, O'Leary valiantly argued that, in failing properly to discount or exclude the possibility that Thelma had administered the veronal to herself, the Prosecution had not proved its case beyond reasonable doubt and the verdict was therefore 'against the weight of evidence'. On 8 April, the Court of Appeal delivered two judgements that unanimously rejected O'Leary's arguments, finding that the jury was entitled to interpret the evidence as it (manifestly) had, and that while the alternative theory put forward by the Defence (that Thelma had caused her own death) was tenable, the jury's rejection of it was not beyond the pale.

Nevertheless, O'Leary's alternative application was granted and on 22 April 1936 the Prime Minister advised the Governor-General to order a new trial, which he duly did. Three days later, O'Leary's instructing solicitor, Mr K.C. Aekins, made a further application to have the second trial held in Wellington page 55on the grounds that, because of Mareo's 'prominent position', the public prejudice against him, and the 'more than ordinary interest' 'excited' by his case, he 'would not receive an impartial trial in that city'.9 Mason replied by cable: 'I have had Enquiries Made and Given Careful Consideration and Nett Result in my Opinion does not Disclose Sufficient Ground to Warrant Change of Venue.'10 The second trial took place in Auckland and lasted from 1–17 Tune, a comparatively long time then for a criminal trial. Apart from its length, it differed from the first in four main ways: there was a new Crown Prosecutor, new evidence for the Defence, more contradictory evidence from the Crown's medical witnesses, and a new trial judge, the staunch Roman Catholic, Mr Justice Callan. Except for the first, all of these differences were or should have been substantially in Mareo's favour.