The Trials of Eric Mareo
Chapter Nine — A 'Topper' in Mt Eden Gaol
A 'Topper' in Mt Eden Gaol
Not Surprisingly, the unofficial campaign against Mareo was spearheaded by Truth. A few months after the commutation of his death sentence, to one of life imprisonment with hard labour, the paper reported that Mareo had been 'Making Money While in Gaol' since music composed by him (including a foxtrot improbably entitled 'Prison Patrol') had - according to an unnamed 'London Newspaper' - been 'smuggled' out of prison. The other prisoners - who think him a 'topper' and who 'are very sore about… his snobbishness' - thought that he was making the money for his son.1 A few years later in 1940, the paper also published an article with the heading
Glamour Boy of Toughest Gaol:
Convicts Jealous of Eric Mareo
His Amazing Privileges
According to this article, these 'privileges' were: 'a "cushy" job in charge of the prison library, with a large room and a fire'; an extra pair of socks every week; permission to have his lights on later at night; 'frequent use of the prison piano'; and permission to wear a watch.2 Perhaps in a New Zealand prison during the 1940s these really were 'amazing'; certainly as far as Truth is concerned they indicate that the mere fact of his imprisonment has not significantly altered Mareo's 'glamour' status. Although Auckland society of the Depression years had been replaced by the routine of Mt Eden Gaol, a cigarrette holder and black tie by a wristwatch, nothing has otherwise changed in Mareo's relationship to 'ordinary' New Zealanders.
Needless to say, Truth's account of the 'cushy' life of the Mt Eden 'glamour boy' was somewhat at variance from reality. Mareo had been granted some of these 'amazing privileges' (prison records do not mention the extra pair of socks), but page 135they were in recognition of his 'excellent service' in directing the prison choir.3 The royalties were from music published before his imprisonment and were used to pay off previous publishers' advances. Crucially, however, the tabloid failed to mention aspects of Mareo's personal life, about some of which, given the diligence of its investigations, it must have known. Five months after the second trial, Mareo's father, Raimund Pechotsch, wrote to the Controller-General of Prisons, Dallard, asking him
to please get my son to write to his mother who, through this, is in a Hospital in Sydney and is almost demented with her terrible grief.
If she could see a letter from her son in his own handwriting perhaps her grief might be lessened. The state of my wife's mind is so terrible that, in spite of all we can tell her to the contrary, she has formed the impression that he has been hung.4
As well she might, in view of her age and the fact that her son had been twice in the Condemned Cell. Mareo did write to his parents, but, as his father informed Dallard less than a month later, '[u]nfortunately his reply came too late [since] his [mother] died on the 23rd of Dec and she was too ill to read it'.5
If Truth knew about the death of Mareo's mother (which is not unlikely), it was not mentioned in the first of its articles about Mt Eden's 'glamour boy', and in the second no reference was made of the fact that on 8 May 1939 his beloved daughter, Betty, died after an operation in England. According to Moreton, the prison chaplain, when he broke the news,
[t]he wretchedness of the fifteen minutes in which I spoke to the broken-hearted Mareo will never be forgotten. With tears running down his cheeks he told me about Betty, how she had asked him to pray; he told me of her sweetness, her courage through all the dreadful ordeal, he told me how both he and Graham… had adored Betty; how much she meant to them both. The last words I heard as he left the private room in which we had had the interview were: 'Poor, darling Betty. Poor Graham. God give me strength.'6
page 136Two years later Mareo's father died (of cirrhosis of the liver and soon after having remarried), and then Graham was killed in France, apparently a few weeks after receiving the Military Cross for his part in the Normandy invasion. A lieutenant at the time Graham was shot by an unknown person while off duty and wandering the streets of a French town. None of these tragedies was mentioned by Truth when it began its campaign a little more than two years later to prevent Mareo from being granted parole.
In the same year as Graham's death, 1944, the Auckland criminal and divorce lawyer Richard Singer published a book entitled 24 Notable Trials. The book was based on an earlier series of radio broadcasts by him and included a chapter on the Mareo trials; 'the first time', he claimed, 'that the case [had] been presented to the public in detail'. Although Singer does give a reasonably accurate account of the known facts, albeit with some rather slanted editorial comments, he barely deals with what he acknowledges was the 'most important' medical evidence 'around which much contest raged', preferring to resort to a panegryric about the New Zealand juryman who would always, he claims, 'do his duty conscientiously, fearlessly, and justly'. Strangely, for a criminal defence lawyer (at least by today's standards), Singer then makes the usual criticism of Mareo for not taking the stand and of his counsel for daring to rely on the fact that the onus was on the Prosecution to prove its case. Moreover, he goes on to make the astonishing suggestion that
the jury may well have said to themselves that they were quite able to dismiss from their minds all points of mere prejudice which might be brought up against the accused from a perhaps not too palatable past career, but that there was one other thing that they were also capable of, and that was that they were able to judge an innocent man when they saw him, and particularly when they heard him, if only by the very manner in which he declared his innocence.7
page 137In other words, the mere way in which Mareo uttered the phrase 'not guilty, your Honour' might have been enough to justify his conviction.
There can be little doubt that the publication of Singer's book and the prior broadcasting of its contents would have been influential both in terms of the general public and of those more closely concerned with Mareo's case. And while it is less likely that Truth had much influence over the officials responsible for Mareo's fate, it did reflect the waves of public opinion to which the ears of some politicians were keenly attuned. Accordingly, the members of the Parliamentary Statues Revision Committee that met on three separate occasions over a period of approximately two years to consider the pleas of Mareo's various petitioners may well have been less than open-minded about the evidence placed before them. Certainly, the chair of the first Committee, F. W. Schramm, had already made up his mind, since, as we have seen, he was on public record, as having 'not… a thing to say in favour of this poisoner' and being in 'no doubt of his guilt'. Nonetheless it should be noted that when the Committee reported its verdict to Parliament on 4 December 1942, F.W. Doidge, a former journalist and member of the opposition National Party, did speak in Mareo's favour. (Once described by his former employer, the newspaper magnate Lord Beaverbrook as 'The Man who got the Million' [readers], Doidge also wrote an eight-page letter to Mason the following year that was subsequently published in at least one newspaper. In this letter Doidge pointed out that the 'atmosphere' of the trials resembled the 'hysteria' he had witnessed at two recent murder trials in London involving husbands accused of poisoning their wives.8) However, the members of the Committee who spoke after Doidge fiercely contested his claims, and at least one, the Member for Remuera, William Endean, seriously clouded the issues with what would now be called 'misinformation'. According to him, Betty was the only witness to give evidence that Thelma was 'addicted to drink', Thelma 'must have been given almost the whole contents' of the cup of milk, Mareo had initially denied possessing veronal, 100 grains of veronal were page 138found in Thelma's stomach, and Sir William Willcox was a 'paid advocate' for Mareo.9 According to Endean and two of his fellow Committee members, these facts showed that, since it was impossible for Thelma to have acquired any veronal on the Saturday morning, the lethal dose must have been administered in the milk on the Saturday night. As Endean said, 'it would have been a miracle' if an ill woman 'who was only 5 ft. 2 in. in height' could have reached the 'dress-basket' [sic] in the wash- house where the empty veronal bottle was found.10 Apparently, Endean was unaware that Detective Meiklejohn had testified that '[i]f a person had something to stand on, any normal person could get a bottle out of that suitcase',11 that even the Crown's medical witnesses had thought it possible that Thelma had taken veronal on the Saturday morning, and that Graham had mentioned finding his stepmother apparently searching for something in her dressing table that morning. As for the Willcox Report, the speakers dismissed its conclusions on the grounds that Sir William had not been present at the trials, and Endean even claimed that '[t]he whole of his statement is full of bias, and his evidence of the woman being an addict to drugs and drink indicated that'.12
The other main grounds for the petition, the inconsistencies in Stark's statements and evidence, did not seem to trouble any of the speakers, only Endean bothering to deal with some of the less important ones, and then only so that he could assert that 'those facts did not go to the root of her evidence and did not affect her credibility'. As Endean then proceeded to tell the House,
[t]he fact remains that for two trials under severe, grueling cross- examination, that woman stood out, and the jury believed her. There is one thing that emerges out of this strange, weird, and peculiar household, and that is that Miss Freda Stark behaved like a woman. [Time extended.] She was most solicitous for this unfortunate woman. I am not going into the details of the woman's death, because they were very harrowing. I did not consider the sentimental side, but purely the legal aspect.13
page 139Somewhat later, when another member enquired about Mareo's motive, Endean returned to the issue of 'this strange, weird, and peculiar household':
I do not want to go into that. There are sordid features, but we are not concerned with that aspect of the matter… It would not be reasonable for us to rake up the terrible details of that household and the unhappiness of the family.
Mr Holland. - I was not aware of that aspect of the case.
Mr Endean. - I do not think that the Committee members allowed those considerations to enter into their minds, when they were coming to a decision.
Mr Bodkin. - The evidence proved that Mrs Mareo was a good woman.
Mr Endean. - Yes.14
Not surprisingly, the second Committee that met the next year spent considerably less time than the first considering the pleas of its petitioners. After the hearing was over, Mareo's lawyer, A.G.T. Sexton, made the following revealing comments about its proceedings to one of its dissenting members, Cyril Harker:
Our hearing finished up in the usual unsatisfactory way that hearings have before Select Committees in that we only had half the members present in the afternoon that were present in the morning. Whether or not it would have made any difference of course is more than doubtful.
I must say that although I expected strong opposition I was dumbfounded at the state of mind of most of the members. Their minds seemed to me to be quite closed and it was impossible to get them to see any important difference between the statements which Freda Stark made to the police and her evidence at the trials.… Richards of course has got it 'in the back of his head' that Mareo gave his wife veronal at some time, never mind the evidence… 15
When the Committee again reported to Parliament, Mason spoke at length against its recommendation, but the National page 140MP, Walter J. Broadfoot, objected to the amount of time the House had already wasted on the petitions and concluded by stating that '[a] great deal too much sympathy is being expressed for Mareo, and much too little is being expressed for the murdered woman. I think the women of the country feel that justice has been done'.16 The only other speaker was the Prime Minister, Peter Fraser, and he also complained
that I think the bringing of this case before the House session after session has become altogether too attenuated. We cannot get a better jury, or a fairer body of men, than the Statutes Revision Committee.… We should see justice done not only to the living, but, also, we should not forget the tortures of the lady who died, and the torture of the other lady, who had to undergo such a terrible experience and grueling time in the witness-box…17
Like courtrooms, parliamentary debating chambers are also excellent venues for melodrama.
In fairness to the politicians, however, there had been considerable work done to discredit the petitioners and their evidence even before it reached the Statutes Revision Committee. Some of the medical experts, for example, were subject to personal and professional investigations that seemed to amount to ad hominem attacks. We have seen how Dallard let his view be known that Dr Smith was 'somewhat of a crank', but in none of his memoranda about him does he mention that he was in many respects a remarkable man whose medical credentials, at least, were unimpeachable. In the same memorandum, Dallard also tells Mason that the Prisons Board (which also considered the Willcox Report several months before the first Statutes Revision Committee) had
[c]ome to the conclusion that Sir William Willcox's report was, to say the least, presumptuous and could only have been made by a man who was failing mentally. By a strange coincidence of events, almost following the Board meeting I received a copy of an English journal 'The Medico-Legal and Criminological page 141review' which had an obituary article written by Dr. Roche-Lynch, an eminent Pathologist in England [who would, of course, conclude the following year that Mareo was innocent], and he, whilst paying tribute to the great work that Sir William Willcox had done, quite frankly states that Sir William Willcox had failed considerably mentally in the evening of his days the report on Mareo, as you will recall, was written within a week or two of his death and was not actually signed by him.18
Mason underlined the second use of the word 'mentally' and wrote in the margins '[n]o, a misinterpretation', as indeed it was: the obituary simply stated that '[d]uring the last eighteen months of his life he did not enjoy the best of health, and latterly it was clear that he was failing', a statement which clearly refers to his physical health.19 In fact, Sir William's report is entirely lucid. Presumably, then, Dallard told the Board about the obituary or at least his deliberately misleading interpretation of it before the Board considered Sir William's report. Indeed, Dallard's bizarre phrase 'almost following' seems like an unwilling confession that the obituary may not have been received after the Board meeting.
But the substance of Sir William's and Dr Roche Lynch's reports were also attacked. At varying times their reports were sent to the doctors who had given evidence for the Crown and the Government Analyst involved in the case as well as to a New Zealand pathologist called Dr Philip Lynch (not to be confused with Dr Roche Lynch), who found that the verdict of the jury 'was a justifiable one'.20 Clearly, the reports of these overseas experts were enormously embarrassing to them. For, not only had the former confirmed the Defence's alternative account of Thelma's poisoning, but they had also cast serious doubts on their professional competence. And in this particular instance, the doctors may have been especially sensitive to criticism because they were well aware both that their evidence had always been regarded by the Crown as crucial and that their lack of experience was regarded as being the major potential weakness in the Prosecution's case.
The Crown Prosecutor's concerns in this respect first became page 142evident when, prior to his departure overseas with the All Blacks in late July 1935 and following a meeting with Drs Gilmour and Gunson, he advised the police that he considered the medical evidence was insufficiently strong to justify charging Mareo and that it should be tested first in the less stringent forum of the inquest (which had been adjourned in April and not resumed). It appears, however, that the police were unwilling to pursue Meredith's recommended course because they believed that Betty and Graham 'would not be so reticent' if Mareo were arrested and that 'were the inquest taken first, Mareo would have influence over the two children and they may not disclose all they know'.21 Accordingly in August they met with the doctors and a Professor Sydney A. Smith, the Dean of the Faculty of Medicine of the University of Edinburgh, who was visiting New Zealand at the time. Although Professor Smith was unwilling to give evidence himself (not wanting to be 'hung up on the case') he felt able to confirm the views of the local doctors. As a consequence of this advice Meredith's partner, Vincent Hubble, recommended to the police that Mareo be charged with murder.22
Perhaps the vehemence with which the doctors would later defend themselves is not surprising. Nevertheless, the rhetoric of the New Zealand Dr Lynch's final report verged on the violent. At one point, the overseas expert, Dr Roche Lynch, 'insults the intelligence of his readers'; and, at another, one of his sentences 'is an absurdity'; but in general he defensively concludes that
I cannot help remarking that I think the observations made by Dr. Roche Lynch in this paragraph [cited above] are both ungracious and discourteous to doctors about whom he can know very little. This attempt to belittle the professional standing of the medical men concerned warrants a close examination and scrutiny of his own statements.23
In fact, as we have seen, Dr Roche Lynch had merely written with some degree of understated accuracy that the local doctors had given 'their honest views throughout but… were labouring under a considerable disadvantage' given their lack of experience with the drug. Since the local doctors had more or less admitted page 143this in court (which was presumably why they relied so heavily on one of Sir William's written reports), it is hard to know how Dr Roche Lynch could have been any less 'ungracious and discourteous'.
However, there can be little doubt that even Dr Roche Lynch's grace and courtesy deserted him when he was shown copies of the reports written by the New Zealand doctors in response to his own. In a further declaration prepared for the purposes of Mareo's appeal in 1945, Dr Roche Lynch begins by thoroughly demolishing the doctors' 'extremely loose' and 'wholly inaccurate' summary of the evidence at the trials and then does the same to their scientific analysis. He concludes
[i]f the evidence of Sir William Willcox and the evidence contained in my previous Declaration and in this present Declaration had been made available at Mareo's trials, it is fantastic to suppose that any jury could properly have concluded that the prosecution had discharged its onus of excluding all reasonable doubt as to Mareo's guilt. In my opinion Mareo was entirely innocent… The matter in regard to the Mareo case upon which no doubt can conceivably exist is that the conviction of Mareo in the light of the evidence now available to the New Zealand authorities could never have been properly resolved upon by the juries.… I am quite convinced that there was no veronal in the milk, and that there is no scientific reason whatever to suppose the contrary.24
In addition to the impediments presented by the obduracy of the New Zealand medical 'experts', Mareo's petitioners also faced other legal obstructions. About a month before the first meeting of the Statutes Revision Committee, Mason asked Meredith to give his views to the Committee on certain matters such as the alleged discrepancies in Stark's evidence. Soon afterwards, Dallard wrote to Meredith warning him that it 'would be unfortunate… for the Committee to gather any idea that keenness to secure a conviction prompted the withholding of any matter that should have been placed before the jury' and that 'both your prestige and that of Mr Johnston… may be the page 144subject of comment'.25 Mason then complained to Dallard that his 'letter too strongly turns the issue into one of an accusation of impropriety of the trial',26 and after the Statutes Revision Committee had met he wrote to Dallard that 'I am rather relieved to note that Mr Meredith does not consider that his conduct was on trial'.27
The reality was, however, that both Meredith and Johnstone had reputations to protect and, in light of the nature of some of the evidence that was kept back by the Prosecution, Mason's question was potentially difficult for them. They certainly did not respond to Mason's request, and it was partly for that reason that Mason later queried Meredith's fee for his services to the Committee of £98 (which the latter then reduced to £75).28 In August the following year, Mason complained in Parliament that he had still not received a reply from Meredith about the discrepancies,29 and a year after that he observed to the Solicitor- General that
Meredith, who should be detached, is really the one in whom I have long been compelled to recognise there is little detachment in this case - he has been quite incapable of considering for a moment any point contrary to the story he has presented.30
Significantly, the Mareo case is not even mentioned in Meredith's 1966 autobiography A Long Brief. This is remarkable given the prominence of the trials and the fact that Meredith discusses at some length several other cases involving veronal poisoning while saying, quite erroneously given his successful prosecution of Mareo, that no one had ever been convicted of committing murder with veronal.
As we have seen, the person mediating in many cases between Mason and all these various parties was Dallard, who, as well as being the Controller-General of Prisons, was also Mason's Under-Secretary at the Department of Justice. Shortly after his contretemps with his Minister about his warning to Meredith, Dallard wrote to Dr Philip Lynch, venturing the opinion that 'it may be that the Jury concluded from the whole surrounding page 145circumstances of the case that Mareo had been pushing veronal into his wife with every meal since the Friday morning, or since she started taking a glass of milk before going to bed'.31 In a subsequent memo to Dallard, Mason objected to his 'inventing and cluttering up the case with new and unfounded suggestions', and demanded that he 'cease this process of invention'.32 Dallard replied, indignantly, that while he was 'in the unhappy position of not being ad idem with you', 'any Permanent Head who shapes his opinions to conform with what he believes will please the Minister, besides being dishonest, is no real help in the long run'. Of course Mason was demanding no such thing. Even more extraordinary, however, was Dallard's claim that he was entitled to his opinion because '[t]he truth in this case is known only to Mareo, and no other human being can ever reduce the problem of Mrs Mareo's death to the realm of ascertainable fact', a claim which if true could only have justified a not guilty verdict.33
As the Controller-General of Prisons, Dallard also sat on the Prisons Board. When Mareo made his first address to the Board in November 1944, he claimed that its Chairman had previously told him not to make any further submissions because 'outsiders' were making efforts on his behalf.34 According to Rev Moreton in Harcourt's biography, Mareo
[t]old me that the authorities had forbidden him to mention the case-or his hopes in connection with his release-in any letters to relatives or friends. They had informed Mareo that nothing whatsoever would he done for him. When Mareo had mentioned the names of Sir William Willcox and Mr E.G. Hemmerde the authorities brushed them aside as so much nonsense. [Original emphasis.]35
Although Mareo's claim that he had been forbidden to make any case to the Board was 'immediately challenged',36 it seems unlikely that he was lying. For what other reason would he have delayed making submission?
Mareo also petitioned the Board a few months later in April 1945, three days after he had heard the news of Graham's death. There were two aspects to his plea, one concerning the page 146'punishment-value' of his sentence (in which he writes movingly about the impossibility of exaggerating 'the actual horror of going back into the Condemned Cell to await what appeared to be an inevitable hanging'37) and the other concerning his desire to return to England to help Graham's widow with the education of his two grandsons. Unfortunately, however, Graham's distraught widow had just written to Mareo saying that she had discovered soon after his death that Graham had been having a 'lengthy affair' with another woman and that as a consequence she wanted to cut all ties with Mareo.38 The Superintendent of the prison sent the letter to Dallard with the curt comment that the aspect of Mareo's plea relating to his desire to return to England so as to earn money for the education of his grandsons 'does not now seem necessary'.39 Accordingly, Dallard wrote to the Superintendent of Mt Eden (as he was to do on many subsequent occasions) asking him to inform Mareo that his petition had been denied.
There was one further bizarre aspect to Dallard's involvement in Mareo's case. Following the publication of I Appeal, he made inquiries about the identity of its author, and then wrote what amounted to a long review of the book, which he signed 'Rhadamanthus5 (who in classical mythology was the son of Zeus and one of the judges of the Underworld). The review was sent to various officials and to Schramm, the chair of the Statutes Revision Committee, with the following explanation:
[A]lthough I consider the book a poisonous publication calculated to shake public confidence in the administration of justice… I do not propose to issue the attached review for general publication for the reason that Mareo has served nearly ten years' imprisonment, and it might not be fair to him at this state to publish anything that might prejudice his rehabilitation when released.… You understand the review is not an official statement but simply expresses the view of what may be regarded as the ordinary man in the street who in the ordinary way comprises the jury. I hold strongly to the view that a jury of honest men of ordinary intelligence is just as competent to arrive at a conclusion on facts as are learned Judges or experts.40
Just a few weeks earlier, the Solicitor-General had written to Mason expressing the conviction that there should be an 'elaborate reinvestigation' of all matters surrounding the case, particularly Mason's suggestion that the police had not made available the files containing Stark's initial statements.41 Perhaps Dallard had been driven into the thankless job of book reviewer because he feared that there would be the Royal Commission recommended by Mason. As it turned out, however, a Royal Commission was deemed unnecessary with the passage in December of the Criminal Appeal Act of 1945, which con-ferred greater powers on the Court of Appeal in criminal proceedings (for which Harcourt would modestly claim credit), and Mareo's counsel successfully applied for leave to appeal. This was perhaps bad luck for Mareo because, according to legal authority (as cited by Dallard), if an appeal court comes to 'the conclusion that there was sufficient evidence upon which the jury could have arrived at their decision, they are bound to uphold the conviction, even if they entertain a doubt, for it is the jury alone who are judges of fact'.42 By contrast, a Royal Commission is bound only by its terms of reference and within them is free to form its own (admittedly non-binding) conclusions on the matter under inquiry.
Mareo's lawyers based their appeal on three grounds. Firstly, they claimed that fresh medical evidence not available at the trials refuted the medical evidence of the Crown. However, since the Willcox and Roche Lynch reports were matters of opinion rather than fact, the Court rejected this claim. Secondly, counsel argued that Stark's testimony at the second trial contradicted both her testimony at the first trial and her earlier statements to police. This was also dismissed, the Court holding that Stark's evidence was not 'diametrically opposed to, or seriously in conflict with, her previous statements'. As a consequence, the fact that Stark's statements to the police had not been made available to the Defence did not 'call for careful and serious consideration'.43
But it was the four judges' conclusion about the third ground of the appeal — that the conviction at the second trial was page 148unreasonable and could not be supported with regard to the evidence - which seems most unconvincing. The Court stated that this ground rested upon two 'fallacies' 'which seem to have continued ever since in the minds of the prisoner's supporters'. The first of these concerned the imputed claim by the Defence counsel that '[t]his is murder or nothing', which the judges quite rightly dismissed because the possibility of a manslaughter verdict had in fact been put to the second jury.44 However, the second of these 'fallacies' was
[t]hat the charge against the prisoner stood or fell solely on the question whether it was proved that there was veronal in the milk which the prisoner gave his wife early on the Sunday morning. It is true that the theory of the Crown was that the ultimate and lethal dose of veronal had been administered through that medium; and, if the guilt of the prisoner depended upon the correctness of that theory being proved, the question whether a verdict of guilty was satisfactory or not would require consideration. But in truth the prisoner's guilt did not by any means depend solely upon whether the death of the deceased was caused by a dose of veronal administered in the milk on the occasion spoken of. The suggestion that the final dose of veronal was administered on that occasion was no more than a theory advanced by the Crown.45
There had certainly been some confusing discussion of this issue in the Court of Appeal, since Meredith informed the judges that the Crown's case had been that 'veronal was given on the Friday night, Saturday morning, and in the afternoon, and a mass of other circumstances'. In fact, in his closing address to the jury at the second trial Meredith had said
[T]he whole point is this: How did Mrs Mareo get that dose? If you find that she got it in that cup of milk, then that must mean that Mareo gave it to her. If you have any doubt about it, any reasonable doubt about it, then it is your duty to give Mareo the benefit of the doubt. But if your consideration forces you to the conclusion that the veronal was in the milk, I would ask you to give a verdict in accordance with your finding.46
page 149Clearly, Meredith was telling the jury to acquit if they thought the fatal dose might have been administered in anything other than the milk. Thus his portrayal of the Crown's case to the Court of Appeal was nothing short of misleading. The appellate judges were also no doubt confused by the statement by Mareo's counsel (neither of whom had participated in the trials) that '[t]he Crown says he gave her a lethal dose… on the Friday night' [our emphasis], which the Crown certainly did not say at either of the trials since they simply claimed that he had administered a non-lethal dose on that occasion.47
Nevertheless, it is hard to understand how the judges could have believed that the Crown's contention that the lethal dose was in the milk was '[n]o more than a theory'. The Crown's case (or even 'theory') was that Thelma would not have died from any of the doses of veronal taken before the Saturday night. That was the whole point of their contention and the vast bulk of the 'expert' medical evidence that a person who had come out of a veronal-induced coma could not then relapse. The Crown's proposition that the fatal dose was in the milk was not 'a theory' or even 'the theory' but their entire case. Indeed, the judges virtually concede this with their claim that '[t]he theory of the medical witnesses for the Crown… was treated at the trial and has been treated in this Court as having an undue importance'.48 But even if it had been given 'undue importance', on what other grounds could the jury have 'reasonably' concluded that Mareo murdered Thelma? There was no other 'theory' or possibility put to them. It was not even open to the Crown to claim that Thelma had died of a dose administered on the Saturday morning, since its own medical 'experts' seem to have conceded that Thelma may have taken a dose then of her volition. In doubting the validity of the Crown's theory of the case, the Court of Appeal was logically also doubting the safety of the jury's verdict. Yet the verdict was nonetheless upheld.