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.

The New Crown Prosecutor

The new senior counsel for the Crown was (later Sir) Vincent Meredith. Meredith called only three new witnesses, two of whom took the stand.for very brief periods and had nothing to add to the evidence of other witnesses, and a third witness, a former theatrical from Adelaide who had worked with Thelma, and who testified that in the five or six weeks he had known her he had never seen her taking veronal or 'dopey and depressed'.¹⁰ As for the substance of his case, it was much the same as his predecessor's, except for an extremely ingenious explanation of Mareo's apparently guilty behaviour about Morgan's drugs and lack of guilt about the veronal. In his summing-up, Meredith's predecessor had not dealt with this issue at all. By contrast, Meredith argued that Mareo had repeatedly lied about Morgan's drugs so that it would appear that he had a bad conscience about an abortifacient. In other words, Mareo feigned deceit about Morgan's drugs in order to provide a smoke-screen for his real guilt about the veronal. But why would Mareo have devised such a risky plan? After all, the penalty for procuring page 56and administering abortifacients at the time was life imprisonment. And why would someone so fiendishly clever as to lay such a false trail jeopardise its efficacy with a story about his wife's lesbianism? Why would a man who wanted people to believe that he had guiltily purchased an abortifacient for his wife at the same time allege that she had no interest in sexual intercourse with men?

Nevertheless, it seems Meredith was able to camouflage such bizarre logic with his courtroom presence and rhetoric. A politically conservative man who regularly appealed the 'very pro-Maori' rulings of Judge Acheson (the author of the novel Mareo was adapting for screen), Meredith was at the time the manager of the All Blacks and a 'star' performer on the amateur stage as well as in court. But for his sporting commitments overseas, Meredith would have conducted the first trial as well. Of this distinguished performer it has been said that

[W]ith an abundance of forensic talent, with a glorious control of voice and yet with a common touch which enabled him to communicate his point of view in the simple language of which he was the master, he was indeed a formidable figure. The lesson which he could teach above all others was that of simplicity. His guiding principle was that if a law could not be explained and comprehended as sensible and right by an ordinary layman, it could not and should not be enforced. It was his facility and understanding of the mind of the witness and of the point of view of the jury which enabled him to be more effective than many who may have been his legalistic masters.¹¹

In addition to his undoubted advocacy skills, it seems that Meredith brought with him to the second trial a determination to secure a conviction that probably exceeded a prosecutor's usual drive to win. The extent of the competition he felt with his predecessor, Alexander Johnstone KC, ought not be underestimated. It would not have looked well for the Auckland Crown Solicitor (who had successfully prosecuted two recent and prominent poisoning cases) to achieve an inferior result to Johnstone, who had effectively been only a last-minute ring in. page 57Thus Meredith's questioning of the Defence's witnesses was at times aggressive, and he also emphasised to a far greater degree than his predecessor the vile nature of Mareo's accusations against his wife. For example, while in the first trial Johnstone alleged that Mareo had 'blackened' his wife's name with the lesbian accusation, Meredith added the melodramatic embellishment that this was only done when 'Mrs Mareo's tongue is now stilled'. Whether as a result Meredith indeed indulged in 'overkill' was a question that was to trouble the Attorney- General in his review of the case in subsequent years. Certainly he was an interesting contrast to O'Leary with all his shyness towards women. Meredith was the right man to make a lesbian charge rebound on the accuser, O'Leary the wrong man to make it stick.

New Evidence For The Defence

Whitington testified that he had read about the Mareo trial in an Adelaide newspaper and had decided to contact O'Leary because he had seen Thelma taking veronal on 'at least a dozen occasions' and had also observed that she was frequently 'very depressed'.¹² At the start of his testimony he told the court that he had seen Mareo 'for the first time just now'.¹³ However, while Whitington took pains to describe Thelma as a 'particularly straight virtuous girl', he may not have appeared to the jury as a particularly virtuous man. After all, the young accountant had frequently visited the single actress in her various hotel and bedsitting rooms, some of which were far from his home town of Adelaide. He had first seen Thelma perform in Adelaide towards the end of 1928, then early the next year at Port Pirie, a town 140 miles north of Adelaide, and at Kapunda or the Burra, even more remote towns, then in Adelaide again in 1930 and 1931, and finally in Melbourne while he was on holiday towards the end of 1931. Either some of these meetings must have been remarkable coincidences, or Whitington was taking great pains in pursuing the actress over such long distances.page 58When asked by Meredith why he chose to spend so much time with someone he had described as 'not a cheerful companion', Whitington replied:

I was interested in her case and I rather admired her in lots of ways. I was married at the time. Mrs Whitington was not interested in her case. I was separated from my wife at the time, prior to knowing Miss Trott, and all the time I did know her.¹⁴

Perhaps the jury believed that Whitington was a spurned suitor acting out of spite. Nevertheless, to make such a journey both in aid of a man he had never met and in order to blacken the name of a dead woman who had rejected his romantic advances seems highly unlikely.

Similarly, while the testimony of the Defence's other Australian witnesses was also unambiguous, they may have struck the jury as not particularly reliable. Like Whitington, Mrs Irene Riano had read about the trial in the newspaper and decided to contact the relevant authorities because she had frequently seen Thelma taking veronal and threatening suicide. The last of these occasions was when the manager of the Ernest C. Rolls Revue Company, for which Thelma worked, had told her she would not be touring New Zealand. According to Mrs Riano, 'Miss Trott so convinced them that she would do away with herself unless they took her that they decided to take her over to New Zealand.'¹⁵ Yet, while Mrs Riano was not herself a practising 'theatrical' and therefore untainted by the nonconformity of that profession, she did accompany her daughter and granddaughter, who were both actresses, on tour. Mrs Riano was a widow and neither her daughter nor granddaughter was accompanied by husbands. Her granddaughter, Miss Jane Riano Neil, also testified at the trial, confirming her grandmother's statements about Thelma's drinking habits and depressive behaviour, but adding that on the voyage to Auckland she had seen on 'a ledge alongside Thelma's bunk… a bottle… [with] the word Barbitone [another name for veronal] on it.'¹⁶ Jane usually used her mother's maiden name, Riano, and was an page 59American citizen, having been born in that country. Although Mteredith did not question the Rianos about their unusually constituted family, he did imply that their testimony was not entirely impartial. Jane Riano confessed that Thelma 'picked me up a little sharp' and had 'told me once to mind my own business' when 'she was under the influence of liquor', but she did maintain that she 'liked Miss Trott'. Meredith mysteriously inquired whether her 'mother asked Miss Trott to find out where a certain man in the show was spending his time and Miss Trott said she would not do that sort of thing for any man', but Jane Riano denied this and claimed that her 'mother was very fond of Thelma'.¹⁷ However, despite such cross-examination, there was very little Meredith could do about the fact that Irene Riano had written an entirely unsolicited letter to O'Leary informing him of Thelma's 'excessive use of drugs'. Perhaps the Rianos did strike the men of the jury as an unconventional family, but, again, a long trip across the Tasman in order to tell lies about the drug addiction of a dead woman and thereby defend a man whom they had known for only a few weeks should also have seemed most improbable.

O'Leary also called a number of other witnesses to support his theory that Thelma died from a self-administered dose of veronal taken on the Saturday morning, the most important of whom was a former examiner in Toxicology and Medical Jurisprudence at the University of New Zealand, Dr E.W. Giesen. The three main aspects of Dr Giesen's testimony were that: (1) the Crown's medical experts interpreted both the available medical literature and Thelma's symptoms incorrectly; (2) because she had had nothing to eat or drink since the Friday night, veronal would have remained undigested in her stomach during the Saturday until it was acted on that evening by the water, sal volatile and milk; and (3) when on the Saturday morning Graham found Thelma disoriented and apparently looking for something in a half-open drawer, she was suffering from what was called 'automatism', a condition in which a patient already under the influence of a drug unconsciously seeks and then takes further unnecessary doses. As for the theory of 'automatism', page 60O'Leary also called in support of Dr Giesen the wife of an orchardist, who remembered searching for some veronal and taking it while strongly under the influence of a previous dose, and a schoolmaster, who testified that on one occasion he had passed out in his bathroom, woken, and 'concluded… [that he] was looking for Veronal'.¹⁸

In fact, we now know that, like all barbiturates, veronal can indeed present a real danger of 'automatism' (from which, according to one theory, Marilyn Monroe was suffering when she died). Furthermore, a person can build up a tolerance for barbiturates such as veronal, at which point the higher dose required to produce the same effect is not much less than a fatal dose. However, even at the time the so-called 'hypnotic' effects of veronal were well documented.¹⁹

The Crown's Medical Witnesses

It is of course very difficult to determine the kind of impression the Crown's medical witnesses made in the courtroom. Nevertheless, the transcript of the second trial does indicate that the substance of their testimony was often extremely unconvincing. For example, at one stage under cross-examination, Dr Gilmour admitted that 'there is no evidence that she was in a coma throughout Saturday, at any stage of the day at all', then almost immediately contradicted himself by reiterating the general proposition that a persona cannot 'relapse' 'from coma back into coma' [our emphasis] without another dose of veronal. When alerted by O'Leary to this contradiction, he maintained that his proposition was that a person will recover from merely an 'overdose', even though this weakened the principle or theory by making it extend to rather minor cases of poisoning.²⁰ At one point Dr Gunson agreed with O'Leary that his 'opinions' were 'sweeping', and then went on to make the astounding admission that these opinions were 'impossible to check'.²¹ And Dr Ludbrook told the court that if the 'theory' about the impossibility of relapsing into a coma page 61

A.… is wrong, it is no use to prove a murder.

Q. If it is shown that there are exceptions to it, I suggest to you it is no use to prove a murder.

A. Not necessarily, because I do not think you can get two cases in which all the circumstance are exactly the same.

Q. Then what is the good of the theory?

A. It is not a theory, it is an opinion based on evidence placed before us.²²

Of course such imprecision is only to be expected during oral testimony given under considerable pressure. However, on at least one occasion Dr Gilmour was simply wrong. For example, he told the court 'that in taking the quantities recovered from the organs, one takes into consonance the fact that veronal is more or less equally distributed throughout the body'.²³ According to the relevant medical authority, Witthaus's Manual of Toxicology, however, 'the distribution in the different organs and tissues is uneven under all circumstances, and the quantity in one part is no indication of that in any other'.²⁴ Not only had the Defence's medical witness gone to some trouble to explain Dr Gilmour's basic error, but the judge had even read the relevant passage out in court.

Mr Justice Callan's Summing Up

Although it was not in Justice Callan's power to direct the jury to acquit Mareo, it is clear that he believed that most of the links in the Crown's long chain of reasoning were extremely weak. He pointed out that the supposed proposition of Sir William Willcox's about veronal - on which the Prosecution's case almost entirely depended - was not 'universally accepted'.²⁵ However, even if it had been accepted as medical fact - and the judge pointed out that the Crown required nothing less than that - then it did 'not fit this case as described by the Crown witnesses', since the proposition applied only to patients initially in a coma. Although Dr Giesen was wrong to maintain that there 'were no gastric juices in a fasting stomach', since no one page 62had thought to ask any of the doctors whether the rate of absorption might be considerably slower, Dr Giesen's theory was very far from disproved.²⁶ He questioned whether Dr Gilmour - who maintained that he had changed his mind after hearing Stark's final cross-examination at the first trial - 'could… be relied upon' when he 'shrank from saying the fatal quantity could have been in one portion of the cup and yet… [was] satisfied that it could have been in this other not much larger quantity of milk?'²⁷ As for the non-medical aspects of the case, Justice Callan said that Whitington's 'actions [in volunteering to testify]… speak honesty'.²⁸ He pointed out that a man who kills himself as well as his wife would not also 'enjoy the society of Eleanor Brownlee'.²⁹ And he thought that if Mareo had been lying about Morgan's drugs then this 'would bespeak a very considerable degree of foresight',³⁰ but that if Mareo's guilt about Morgan's drugs had been real rather than feigned then this might explain 'a tremendous number of facts which look very black against him particularly his obvious reluctance and failure to send for a doctor'.³¹ Finally, he raised very cautiously the possibility of a manslaughter verdict, asking the jury to consider carefully whether 'there [was] anything to suggest that his mind was not working sufficiently well for him to know what he was doing'.³²

Verdict and Judgement

The jury retired for only two-and-a-half hours, during which time they took dinner. At the first trial the jury had deliberated for three times as long even though the trial was half the length. Like the first jury, this second jury returned the verdict of guilty of murder, except that this time there was no recommendation for mercy.

The scene in court when the verdict was announced was dramatic. The Auckland Star reported that Mareo 'stepped back a pace as though stunned. Then he turned to the girl, murmuring, "Betty… Betty…"'³³The registrar then asked if the prisoner page 63had 'anything to say why the sentence of death should not be passed', and Mareo replied

[I]t is very hard to say anything under the circumstances, because it is the second time I have been through this terrible ordeal. I can only say that it seems to me, from a logical, clear-minded man's reasoning, from the way the whole of this case has been conducted by all the counsel, and after your Honor's, may I say, marvelous summing-up, I have been sentenced on the lying word of Freda Stark. I ought not to say that, but what can I say? Nothing more.³⁴

After the judgement of death had been pronounced, the Star observed that

[B]ending low over the table, his head in his hands, sobbing audibly sat Mr Humphrey O'Leary, a tired, disillusioned man. Behind him sat Betty Mareo, trying hard to choke back the tears. A woman consoled her.³⁵

One commentator was to say some thirty years later (and sixteen years after his death) that O'Leary's 'greatest disappointment was, I think, his failure in 1936 to secure the acquittal of Mareo on his second trial for the murder of his wife by veronal poisoning'.³⁶ As for the prisoner, the Star also reported that

[A] warder touched Mareo on the shoulder, an indication that he was to go back to prison - back to he knew not what. With tragic appeal his lips twice formed the word 'Betty' as he looked across at the girl who had know him as her father. She tried to smile through a flood of tears. Mareo turned, and as though in a daze, moved towards the dock staircase which leads to the cells. He had walked down three, when he turned and tried to go back.

A warder quietly urged him down. 'I want to see Betty,' he said. Then he disappeared.³⁷