Mad Dog Moxley Read online

  ‘Are you going to help me, Mr MacKay?’

  MacKay rubs his hand over his bristled face. It's been a long day and he has more on his mind than Moxley. He's worried about the political situation. Worried that meetings supporting Premier Lang, the ‘Big Fella’, could get out of hand.

  ‘The only person who can help you now,’ he says, ‘is yourself.’

  HIS MAJESTY'S PLEASURE

  I recommend that legal aid be assigned

  for his defence and in view of the

  possible defence of insanity that a

  solicitor and counsel be assigned.

  CLERK OF THE PEACE TO

  UNDERSECRETARY, 17 MAY 1932

  W H Niland and GPL Hungerford sit at a table in the visitors’ room in the remand section of Long Bay Gaol. It is a cheerless space with grey walls and floor and one barred window. Both men wear three-piece suits and watch chains; their hats and briefcases are on the table. They are alone in the room.

  ‘You represented him at the inquest,’ Hunger-ford says. ‘What sort of a chap is he?’

  Niland scratches his closely shaven chin. ‘Difficult to say. Mercurial perhaps.’

  Hungerford frowns. He dislikes flowery language. ‘Speak plainly, man.’

  ‘Some of the time he's sullen and downright rude with it. Grunting and avoiding your eye. Other times he's quite open, frank, almost likeable.’

  LONG BAY GAOL, ENTRANCE TO THE METROPOLITAN TRAINING CENTRE

  ‘But not quite?’

  ‘No, there's something odd about him. It's partly his appearance. His eyes bulge and his ears jut out, giving him a comical look, but that's misleading. You wouldn't want to meet him in a lane on a dark night.’

  Hungerford sports a bushy moustache, which he strokes while he's being spoken to. ‘Intelligent?’

  ‘Not very. Shrewd's more like it.’

  ‘How did he behave at the inquest? What was his demeanour?’

  ‘Oh, he's an old hand, Mr Hungerford. He's been in court plenty of times before. Not for anything this serious but he knows how to conduct himself. He was respectful of the coroner and the prosecutor. He became upset when he was shouted out from the body of the court and the police had to protect him from the crowd outside. Feeling ran very high.’

  Hungerford nods. ‘It still does. I daresay the court'll be full and there'll be hysterical women. Some…accused persons like that, of course.’

  ‘Not him, but he'll cope. He seems to be able to sort of wrap himself in a protective coating and seal himself off.’

  This strikes Hungerford as fanciful and he consults his watch with a disapproving air. He opens his briefcase and takes out some papers, which he shuffles.

  ‘At least the prosecution won't be allowed to read out the list of his convictions. He's been in trouble ever since he left the army. Any chance of doing something useful with his war record?’

  ‘No,’ Niland says. ‘From the dates, he joined up too late to see action.’

  ‘Pity. The coroner gave us little room for manoeuvre. Insanity looks like the only possible line. Will he accept it, d'you think?’

  ‘He claims not to be able to remember anything beyond a certain point.’

  Loss of memory. That's no defence. That horse won't run. I fear we're in for a difficult time.’

  The door opens and Moxley comes in escorted by a gaol official. He is handcuffed but not hobbled. He carries a Bible. He puts the Bible on the desk and returns Niland's nod.

  ‘Sit down, Moxley. This is Mr Hungerford. He's going to represent you at the trial.’

  Moxley involuntarily makes as if to shake hands but the cuffs interrupt the movement.

  He sits and nods again.

  ‘Thank you, sir. I'm glad of it. I wouldn't have wanted to have to defend myself.’

  ‘Couldn't have that,’ Hungerford says. ‘Now you say you can't remember anything after, let me see…’ He consults a document. ‘After a struggle with Mr Wilkinson.’

  Moxley shakes his head. ‘Nothing.’

  ‘When does your train of memory resume?’

  ‘Eh?’

  ‘From what point in time do you start to remember things again?’

  Moxley has forgotten what he said in his initial statement about his memory returning when he was looking for petrol on his way back from Moorebank and the question confuses him.

  ‘I don't know.’

  ‘Come, come, that's not very helpful.’

  A vein throbs in Moxley's forehead and he clenches his fists.

  ‘I tell you I don't know.’

  ‘Voice down, Moxley!’ the prison guard snaps from his position by the door.

  Moxley half turns and shoots the guard a baleful look. Turning back to the lawyers he says, ‘Sorry.’

  ‘It's all right,’ Niland says. ‘Remember we're here to help. How are they treating you?’

  ‘All right I suppose. Except they won't let people visit me apart from youse.’

  ‘Can't have that,’ Hungerford says. He uncaps a fountain pen and opens a notebook. ‘Who do you want to have visit you?’

  ‘Lin and Dougie, that's my little boy, and a couple of my mates.’

  ‘Names?’

  Moxley names Linda Fletcher and his son, then appears to lose the thread.

  ‘Aw, just Lin and Dougie. That'll do.’ He suddenly sits straighter. ‘What about the judge?’

  Hungerford is startled. ‘You want the judge to visit you? I hardly think…’

  ‘No, no, I mean what do you know about him? What's he like? The judge runs the whole bloody show. What's his name?’

  This throws Hungerford completely and he doesn't know how to respond. His impulse is to rebuke Moxley, but something about the earlier flare-up and his intense manner holds him back. He pauses and Niland steps in.

  ‘His name is Rogers, Halse Rogers.’

  ‘Halse, what kind of a name is that?’

  Niland looks at Hungerford. ‘ A family name, I imagine.’

  ‘All right, what sort of bloke is he? Tough?’

  ‘I have no idea. I've never appeared before him. Have you, Mr Hungerford?’

  Hungerford has recovered his composure. ‘No. I don't know a great deal about him. He has some connection with the university, I believe. But it's not…’

  ‘I worked for the university once,’ Moxley says.

  ‘Did you?’ Niland asks sceptically. ‘In what capacity?’

  Moxley bangs the side of his head with his cuffed hands. ‘It was a long time ago. I forget. I have these fits, see, and my memory's shot.’

  ‘Did you ever see a doctor about these fits?’ Hungerford asks.

  ‘Lin knows all about them. She'll tell you.’

  Hungerford persists. ‘A doctor?’

  ‘Maybe. Don't remember.’

  Niland raises the matter of Moxley being shot in the head. On more solid ground now, Moxley gives them details of his hospitalisation and treatment. He says he's sure that if he'd had the second operation to remove parts of the bullet from his head all this would never have happened. This draws Hungerford back to the statements Moxley has already made.

  ‘You realise, Moxley, that you've made some very damaging statements about your conduct on the night in question. And by saying what you've just said you practically admit…’

  ‘If I did it, I must've been mad. Mr MacKay said so.’

  Hungerford consults his notes. ‘Yes, MacKay, that's useful. Well, insanity's the only…’

  ‘I'm not mad now, like. Just then.’

  Niland says, ‘Temporary insanity. I'm not sure…’

  ‘Quite,’ Hungerford says. ‘Are you aware of the technicalities involved in a defence of insanity?’

  Moxley looks tired. ‘I'm buggered. Sorry, sir. If I had a smoke…’

  ‘Guard,’ Niland says, ‘is the prisoner permitted to smoke?’

  ‘Not in here, sir.’

  ‘Sorry,’ Niland says.

  Moxley shrugs; he fiddles with the Bible. Hu
ngerford is also tiring and becoming impatient.

  ‘As I was saying, for insanity to be established the accused person has to be unaware that his actions were wrong.’

  Moxley digests this. ‘If you forget the actions,’ he says slowly, ‘how can you tell whether they're right or wrong?’

  Hungerford and Niland exchange glances. They realise that they're at an impasse. With Moxley losing interest, they discuss who might be called as witnesses and both lawyers look dismayed at the short list. They offer some words of encouragement and leave.

  It is a cold, blustery day outside. The lawyers huddle close to the gateposts as they wait for a taxi.

  ‘Pretty grim,’ Niland says.

  Hungerford nods. ‘Unwinnable.’

  THE TRIAL

  (1)

  The Senior Crown Prosecutor (Mr McKean) said

  he understood there were certain medical

  difficulties in particular, which the defence had

  to meet. It was a grave charge and he did not

  want the trial to be prejudiced in any way. The

  evidence, he added, will occupy three days.

  CANBERRA TIMES, 4 JULY 1932

  To modern eyes, the trial of William Cyril Moxley presents a couple of bizarre features. Allotting a specific time for the duration of a trial (the newspaper headline declared that the trial would ‘last’ three days) is foreign to modern practice, which allows for proceedings to run their course according to circumstances. That Moxley was tried as Cyril William, which was not the right order for the first names and not the correct name on his birth certificate, seems to have caused no concern.

  The Central Criminal Court in Darlinghurst was a forbidding Victorian structure, built as part of the original Sydney gaol complex. The building held cells where prisoners had served long sentences under harsh conditions and a place where numerous executions had been carried out. In contrast to modern, well-lit, air-conditioned courts, the wood-panelled interior was described by one contemporary as ‘dismal’ – as if designed to depress and diminish those who stood in its dock.

  CENTRAL CRIMINAL COURT,

  DARLINGHURST, WHERE MOXLEY

  WAS TRIED

  The legal personnel, however, were similar to those in a present-day line-up. The judge was Percival Halse Rogers (later Sir Percival), who had been called to the New South Wales bar in 1911 at age 26 after a distinguished performance at Sydney University, where he had been awarded a Rhodes Scholarship, and a less impressive period at Oxford University. He built up a successful common-law practice and was appointed King's Counsel in 1926. He was made a judge of the Supreme Court in 1928, specialising in commercial cases. He was a sports man, a member of Royal Sydney Golf Club with an interest in horse racing and the affairs of Sydney University, where he became chancellor in 1936. Rogers seems to have held conventional opinions on social and ethical matters. He had lectured part-time at the university on legal interpretation but had no particular experience or interest in criminal law.

  In a speech to a judge's dinner in later years, J P Slattery described Rogers as a ‘rather rotund figure. He was always alert and courteous on the bench and generally relaxed’. Rogers was not known for severity and therefore was not the worst judge Moxley could have confronted.

  The Crown prosecutor, Leslie ‘Les’ John McKean, KC, was two years younger than Rogers. He took a Bachelor of Arts at Sydney University in 1907 and a Bachelor of Law in 1911. Called to the bar in 1912, he spent some years in private practice before being appointed Crown prosecutor for the Darlinghurst Quarter Sessions in 1922.

  McKean appeared for the Crown in many high-profile cases, including the famous ‘shark arm’ case in 1935. A shark brought to a Coogee aquarium regurgitated an arm later identified as belonging to one James Smith. Patrick Brady, a friend of Smith's, was charged with his murder and McKean prosecuted the circumstantial case with vigour but was unsuccessful. Vigour and searching cross-examination were his stocks in trade and he sometimes trod a fine line in his questioning of witnesses. Today, some of his approaches would be considered improper.

  McKean was assisted by William Francis Sheahan, who had been admitted to the bar in 1930. A barrister, Sheahan appears to have played little active part in the conduct of the trial. He later became a Labor member of the Parliament of New South Wales and held several ministries.

  William H Niland, who appeared for Moxley at the coronial inquest, also appeared at his trial. He had been admitted as a solicitor in 1920. Initially, Niland advised the legal authorities that he would not appear for Moxley at the trial, but this appears to have been an accepted strategy prior to being assigned the case by the chief secretary of the Attorney-General's Department – the procedure followed when the accused person was destitute, as Moxley claimed to be. He was assigned and, in view of the gravity of the charge and the work involved, Niland was granted a fee increase. His total fee was £12 and 10 shillings, considerably below what would normally apply with a client paying his own costs.

  Similarly, barrister G P L Hungerford was assigned the case and a legal-aid fee of 20 guineas was approved by the under-secretary. Hungerford, one of 13 children, had struggled to get his education; he trained as a teacher and taught for some time before obtaining his legal qualification. He was admitted to the bar in 1923 and worked for a time on the Newcastle Circuit, appearing in that city's courts and others in the district. Little is known about Hungerford's style of advocacy. Providing perhaps just a hint, his daughter said that Hungerford's wife refused to attend his court appearances after going once. She complained about his treatment of a female witness, saying, ‘You were terrible to that man's wife.’ Hungerford was a cricket enthusiast and appears to have been somewhat eccentric. He was a vehement member of the All for Australia League, a right-wing group loosely affiliated with the New Guard. According to his daughter, he spruiked for the party in public places.

  The 12 jurors were all men.

  The trial began at 10 pm on Monday 13 April. Crowds surrounded the court building and the police struggled to maintain control. When the doors opened there was a rush for seats and the court was packed with spectators, including ‘a number of fashionably dressed women’ anxious to see the ‘fiendish monster’ described by the press. They were disappointed. Moxley, sombre in a dark jacket and grey shirt, was animated as he challenged 11 jurors (the solicitor Niland, playing his only significant part at this stage, helped in this process). Otherwise, Moxley sat quietly throughout the proceedings with his arms folded. To the charge of having ‘feloniously and maliciously murdered Dorothy Ruth Denzel and Frank Barnby Wilkinson’, Moxley pleaded not guilty.

  The judge opened by instructing the jury to put newspaper articles about the case out of their minds to the best of their ability and to pay attention only to the evidence.

  Press coverage of the trial tended to summarise proceedings. A transcript reveals that there were testy exchanges between the counsel of the two sides over what matters Moxley had admitted to and what he had not. Also contentious was McKean's mention of the possibility of a defence of insanity.

  It is easy to see why McKean was anxious to have the question of insanity on the table. He was armed with a statement from Dr Chisholm Ross,* a psychiatrist, who had seen Moxley in Long Bay Gaol. Dr Ross stated that he had carefully examined Moxley's ‘mental and moral condition’. He concluded that, ‘Although he seemed truthful during my interview, I cannot believe that he is unconscious of the act ascribed to him and as a defence this must fail.’ McKean also had an opinion from Dr E S Holloway, who would testify at the trial, to the effect that Moxley was calm and compliant in prison, with a good appetite and sleeping well. He concluded: ‘He is a man of average intelligence and there has not been any evidence of insanity nor of epilepsy in any form during the period of detention here. I am of the opinion that Moxley is capable of knowing right from wrong and is fit to plead.’

  Rogers stipulated that the defence was not obliged to provide details. Mc
Kean oudined the case (‘the most serious crime in the criminal calendar’) for the Crown and Moxley's statement, asserting his loss of memory, was read out.

  Twelve photographs were admitted into evidence and shown to the jury. These showed the graves of the two victims when first discovered and with the bodies still in situ, the general location and other places to come under consideration such as the Moorebank cottage where Moxley had allegedly taken the couple, the places he obtained or attempted to obtain petrol, Dorothy Denzel's beret, locations in Strathfield, the Alvis car and the garage where Moxley hid it.

  SIR PERCIVAL HALSE ROGERS,

  THE JUDGE WHO PRESIDED AT

  MOXLEY'S TRIAL

  The judge directed that he and the jury should be taken to see these places and the prosecution proposed that Detective Inspector Walsh act as their guide. Moxley objected, presumably recalling Walsh's hostile attitude at the time of his arrest when the detective had asked him directly whether he remembered shooting Dorothy Denzel and Frank Wilkinson. His objection was accepted, and Sergeant J J Smith was eventually deemed acceptable as a guide. At 1 pm the hearing was adjourned and the afternoon was to be devoted to the inspection of the locations.

  Apart from a few disputes and squabbles over matters of procedure and personnel, and McKean's emotive descriptions of the injuries suffered by the victims, including a reference to Dorothy Denzel's rape, the day was relatively uneventful. But the defence and the prosecution had been busy before the trial, and reporters expected combative scenes to come when the trial resumed.

  In May, Niland had written to the Metropolitan Superintendent of Police requesting his help in securing medical records relating to Moxley's treatment for a gunshot wound to the ear two years previously. After a great deal of correspondence back and forth between the solicitor, the police and health authorities, a report on the treatment was made available.

  Moxley had been admitted to the Parramatta District Hospital, where he was operated on under an anaesthetic for the removal of the fragments of a lead bullet. Moxley had subsequently presented at the Royal Prince Alfred Hospital for further treatment. Neither hospital could provide X-ray pictures as these ‘are not kept indefinitely’. This did not satisfy Niland and Moxley's head was X-rayed on the morning before the second day of the trial. The significance of this and other medical evidence being gathered at the time will be discussed later.