Mad Dog Moxley (13 page)

THE
APPEAL

…it was the announced that the
solicitor, Mr Niland, and the barrister,
Mr Hungerford, who had been
engaged to conduct the appeal
had withdran.
CANBERRA TIMES
, 1 JULY 1932

Moxley's solicitor, Niland, had spared no effort in accumulating medical evidence before the initial trial. A considerable amount of correspondence shows that he pursued the relevant authorities, sometimes having to go through several channels, to get hospital reports relating to Moxley having been shot. He failed to get a report on the injuries to Moxley's arm and shoulder, possibly due to a defect in the hospital's records. X-ray reports from the Royal Prince Alfred Hospital clearly showed the presence of lead particles in Moxley's head after the operation to remove the major part of the bullet. R J Millard, a medical superintendent at the Department of Public Heath, made an affidavit concerning an examination carried out at the Coast Hospital:

X-ray examination of the skull on 18.5.32 indicated in the right temporal region 3 metallic foreign bodies and some smaller fragments below them.

Why medical data and opinions other than that of Dr Holloway were not presented at the trial is not clear. Some reports, such as that Moxley was ‘Very abusive' during his hospitalisation and that he left without getting a medical clearance, were uncomplimentary, but on another occasion he returned to a hospital and thanked the staff for their care.

At first, medical information appeared to be at the heart of Moxley's appeal against his sentence. The appeal was lodged on 23 June, the grounds being fresh evidence and misdirection of the jury by the judge. A week later the court was advised that Moxley's barrister and solicitor had withdrawn from the case. The prospect was raised in the press that Moxley would defend himself but the law vacation was about to start and an adjournment seemed likely.

The official record is silent on the reasons for the withdrawal of the lawyers. Perhaps their request for a further legal-aid fee was refused or perhaps they saw the appeal as doomed to failure. In any event, Moxley spoke for himself at a hearing before the full Court of Criminal Appeal on 1 July. Sir Philip Street, the Chief Justice, presided along with two other justices. The grounds were as stated plus a claim that the verdict of the jury was against the weight of the evidence.

Moxley was brought from Long Bay Gaol and escorted into the court by a strong police guard. He was double-handcuffed. The court was packed and a newspaper reported that several women who had attended the trial were again present. The Chief Justice asked Moxley whether he wished to represent himself and Moxley said he did.

Facing three robed and formidable judges, Moxley at first made a surprisingly good fist of his claim that the prosecution had suppressed medical evidence. He stated that he had been examined by several judges before his trial and that he expected their evidence would have been presented ‘whether it was for or against me'. He said he also wished to produce medical evidence regarding his fits. At this point, however, he seems to have been confused by the legal niceties:

The Chief Justice: If we grant you three weeks' adjournment, do you think you can get any material evidence to support your claims?

Moxley: I am practically destitute and not able to afford medical evidence. The whole petition is this: I don't consider that I had a fair deal at the trial regarding the medical evidence.

The Chief Justice: Are you willing to have your appeal adjourned?

Moxley: I see no reason why it should be adjourned.

The Chief Justice: The adjournment is necessary for us to see the medical evidence.

Moxley: Will that give me the opportunity of cross-examining these doctors?

The Chief Justice: No.

Moxley then asked if he could get financial help to muster medical evidence. The Chief Justice asked McKean if the evidence of the doctors who examined Moxley before the trial was available. McKean answered, ‘Yes, but it is in a scrappy state.'

The Chief Justice said that if the appeal were to proceed on that day it would have to be dismissed; but if Moxley agreed to an adjournment, the medical evidence would be examined. Somehow this point was lost on Moxley, who said: ‘I appeal to you for justice and ask for it as the Crown refused me that right.' However, he made a point that may have weighed with the judges when he said that he had been told, when undergoing the pre-trial medical examinations, that they would be for his benefit at the trial.

Apparently still failing to grasp the point about the Crown making the medical evidence available and the necessity for an adjournment, Moxley repeated that he was destitute and could not afford to get the evidence himself. This tried the patience of the judges, but Moxley was eventually persuaded to agree to a postponement of three weeks.

This episode illustrates the difficulty a lay person faced in representing himself. Sir Philip Street was twice Moxley's age and Lieutenant Governor of the state. He was an austere figure whose expertise was more in commercial than criminal law. The other judges were similarly elderly and distinguished. Although very familiar with courts and some of the legal language, Moxley may have been slightly awed at defending himself in front of such a weighty panel. He appeared to have won a point in obliging the Crown to produce existing medical evidence but his wish to secure fresh and independent medical opinion was frustrated.

The court convened on 21 July. Again a large crowd assembled in the street and the court was packed. The only fresh evidence was an affidavit from a Mrs Bradley, Moxley's sister, testifying to his erratic behaviour. The X-ray report showing particles of lead in Moxley's head was available with the certificate testifying to the presence of syphilis in his system. These were deemed inadmissible.

A week before the appeal was heard Moxley was examined by Dr Gordon W Bray, who had examined him in 1914 and 1918. In 1914, aged 14, Moxley had been suffering from gonorrhoea. Four years later the doctor found him to be suffering from ‘primary syphilis'.

Presumably Dr Bray's examination in Long Bay Gaol on 15 July was done at Moxley's request. Dr Bray wrote that:

Intimate facts of his habits in life, practically and philosophically, were inquired into. He is egotistic, easily disturbed, emotional, extremely suspicious and distrustful.

The doctor found no signs of mental aberration in Moxley's family background and that he was normal in regard to alertness and concentration. He noted that opposition made Moxley irritable, and that he claimed anger caused him to lose all control. Dr Bray, however, considered that the condition of automatism, loss of emotional control, and other abnormal states were not present.

The doctor suggested that a pathological examination of Moxley's cerebral spinal fluid should be made to investigate whether the presence of syphilis was likely to affect his behaviour. He concluded that in the past he had found Moxley to be a normal individual ‘and now on my last interview I see no reason to alter my opinions previously formed'.

It is easy to see why Dr Bray's report was not brought forward by Moxley at the appeal.

The Chief Justice after reading the affidavit said, ‘What have you to say now?'

Moxley's complaint about the lack of medical evidence at the trial was vague. He said that the delay in producing the affidavit from his sister was due to her having been in ‘a mental institution' and to have collapsed during the trial. These remarks, obviously designed to convey an impression of mental instability in the family, carried no weight with the judges. Street said that, while there may have been small discrepancies in the evidence to which the jury's attention should have been directed, he believed there was ample evidence to support the jury's verdict. Referring to Rogers as ‘the learned judge', he said he had very rightly told the jury that the test was whether Moxley knew that his actions were wrong. Returning to the technical matter at hand, Street said:

The jury found you guilty. I do not think that your sister's evidence would have in the slightest degree influenced the result. In the circumstances, the appeal is dismissed.

‘You'll get your cut for telling lies!' Moxley shouted to a police officer as he was led from the court. It is not clear from the report which policeman he directed this to and the meaning of the shout remains obscure.

Was Moxley well defended? Did he get a fair trial? A transcript of court proceedings is a bare bones document and, without knowledge of body language and the subtleties of interplay between the participants, it is difficulty to gauge the quality of Hungerford's performance. Certainly at times he intervened sharply to deflect an attack or defend a point, but on other occasions his cross-examinations appear halfhearted. Moxley's admissions amounted to a severe burden for the defence's attempt to award him credibility and it is impossible to ignore the impression that the barrister knew he was fighting a losing battle.

The McNaughton rule was a severe test and although there were cases when an accused person was deemed unable to distinguish right from wrong and acquitted, they were few. To be convincing, a person had to exhibit signs of extreme and prolonged madness. Temporary insanity was viewed with the greatest suspicion.

Under modern medical examination it might have been possible to argue that the presence of lead in Moxley's skull may have had an effect on his behaviour. An expert in toxicology consulted on the matter says that without more information it is difficult to be certain; however, he points out that if the lead had leached into bodily fluids, the subject could be expected to show some neurological symptoms ‘such as depression, poor concentration, loss of short-term memory, numbness and tingling, sleep problems, anaemia and general problems (headaches, fatigue).' A skilled lawyer could have made capital out of these symptoms.

Similarly, it could have been argued that syphilis can have the same effect. These points may have led to a defence on the grounds of diminished responsibility and have led, if not to an acquittal, to a less severe sentence. But this defence was not available in 1932.

The hessian mask provided grounds for a damaging accusation of premeditation, and Moxley's actions after the events of 5 April cast serious doubt on the insanity defence. As Dr Alfred Campbell put it in an affidavit called for when the Executive Council was deliberating on whether to carry out the sentence on Moxley:

I was present at the trial of Moxley, and taking into account the evidence of his movements on the night of the murder, I think that they were inconsistent with automatism arising out of disease – they were too deliberate and prolonged.

THE CARPENTER
OF MALABAR

Solyd (n): a system manual
training originating in Sweden, based
upon the use of hand tools in
woodcarving and joining

Under guard, Moxley is in the prison workshop. A number of prisoners are working at the benches at different projects – building tables, carving ornaments, painting items they have made. Moxley is constructing a large drawing-room cabinet. It stands almost 6 feet high, has two doors and an ornamental headpiece. Moxley is carving two intricate decorations to be glued to the doors. He uses a plane and a knife to shape the wood. Henry Lester, an under-sheriff whose job it is to keep an eye on Moxley, watches him until Moxley becomes aware of being watched. He puts down his tools and turns.

‘Any word on when they'll hear my appeal?'

Lester shakes his head. ‘That's a nice piece of work. Where'd you learn to do that?'

Moxley picks up his tools and turns back to the job. ‘At school. They called it sloyd. Dunno what it means but I liked it better than most of the other stuff.'

‘Should've stuck at it. Good trade, carpentry.'

‘No, you had to do an apprenticeship and we were always on the move when I was a nipper. Dodgin' landlords mostly.'

‘What're you going to do with it? I mean…'

‘I know what you mean. No need to pussyfoot. If they stretch me I think I'll give it to Mr MacKay. He's been good to me. Got to get it finished first. Fair bit of work to do and I dunno how much time I've got left.'

Lester nods and walks to where a prison guard is checking on the tools left behind at a bench.

‘He's still waiting for word on the appeal?' the guard asks.

‘That's right.'

‘He hasn't got a hope.'

‘They haven't hung anyone for eight years.

Hasn't happened in my time here and I hope it doesn‘t.'

‘That was Labor mostly. This mob's different. Tougher all round. After what he did, I reckon even Jack Lang'd hang him.'

‘There's a lot of people against it.'

The guard completes his count and locks the tool chest. ‘Do-gooders.'

‘He's wondering if he's got time to finish the job. If his appeal's upheld, he'd at least get another trial.'

‘Not a chance. I reckon he'd better hurry up.' The guard looks at the clock on the wall. ‘Has to go back in his cell now anyway.'

‘Wonder what he does hour after hour?'

‘They reckon he reads the Bible and sleeps.'

Lester grins. ‘That'd be right – the bloody Bible always put me to sleep.'

In his cell, Moxley reads the Bible for an hour before preparing for sleep. He flicks through it at random, reading short passages. His lips move as he reads and he traces the words with a heavily nicotine-stained index finger. He closes the book, rolls a cigarette, lights it and sits on his bunk. He drops the ash into the palm of his left hand and when he finishes he lets the ash and the butt fall into the lavatory bowl. He urinates and goes down on his knees beside the bunk. He tries to pray but he can't find the words. He begins to tremble and a throbbing pain sets up in his head. He hits the side of his head with the heels of his hand but the pain persists.

The cell door has a barred grill about 1 foot square set at eye-level. The bars are set widely enough apart for him to get his fist through. He knocks on the outside of the door.

‘Guard!'

He knocks and calls out again and a guard comes to the door.

‘What?'

‘I've got a terrible pain in my head. I need a couple of powders.'

‘You've had a few already tonight.'

‘I need some more. Be a pal.'

‘All right, but you'll have nightmares with that much stuff inside you.'

Moxley wants to shout abuse, to tell the guard he's got no idea what he's going through, but he doesn't. The guard doesn't have to help him if he chooses not to. He returns and passes two paper-wrapped analgesic powders through the bars.

DETAIL OF GRILL TO CONDEMNED CELL, EXECUTION AREA, LONG BAY GAOL, 1905

Two
, Moxley thinks.
I could do with a few more.Suppose they think I might kill myself Funny thing, that, I've never thought of it.

Moxley gets into bed and waits for the analgesic to take effect. He thinks about his appeal. The two lawyers have retired and he'll have to defend himself. He's nervous about it. He thinks about the trip he was taken on to the Coast Hospital for an X-ray and wonders if it was the last time he'll ever see the sea. He thinks he should have made straight for the docks, got a job on a ship and sailed far away from all this trouble.

Sleep won't come. He thinks about the interviews he had with the head doctors. One of the prisoners advised him to act as mad as he could, shout and carry on a treat. But he couldn't do it. Didn't seem right and probably wouldn't have fooled them anyway. They'd know all about that sort of thing, wouldn't they? He'd asked the lawyers why they didn't get all the doctors to give evidence but all they'd said was that it wouldn't help. And now they'd given up on him, probably because they wouldn't get paid.
Everyone's given up on me.

He sleeps and dreams that he's in the bush. A dead tree falls and he examines it after trimming off the branches. It has a good straight grain and he knows he can split it and make it easier to saw and chop into length. He drives his axe into the wood about halfway along the length of the trunk and achieves a satisfying gash. He taps a wedge into the spot with the back of the axe and takes up the sledgehammer. He brings it down hard on the wedge and the wood splits with a loud crack. He feels a stinging pain in his right ear and sees Ernie Devine standing close by with a pistol in his hand. He grabs his shotgun and fires twice but Devine's image floats away. He feels blood gushing from his head and his scream wakes him up.

He lies, sweating and trembling, with his head throbbing as badly as it ever has. A dark despair envelops him. He knows he'll lose the appeal. He knows that they're just going through the motions. He'll never see the sea again…

In the workshop he stirs the glue pot carefully and then applies the glue to the back of the carved ornament. He coats it carefully, places it firmly on the surface with his left hand and wipes around it with a rag, making sure none of the glue leaks onto the highly polished surface. When he's satisfied he takes his hand away and surveys the result. The ornament is precisely where he wants it to be.

Lester approaches. ‘Finished?'

‘No. Got to finish the thingummy for the other door and stick it on.'

‘Well, you've got time. The appeal's scheduled for the day after tomorrow.'

Moxley nods. ‘That'll do.'

‘Are you ready?'

‘Yeah. I'll be glad when it's all over.'

‘What d'you mean?'

‘Not knowing's the worst part of it. I can't stand much more of it. It'd be better to know, even if it's the bloody rope.'

‘You mean that?'

‘Bloody oath I do. Come Thursday I'll know and that'll be better.'

Henry Lester went home two days later and sat gloomily at the table while his wife served up the evening meal.

‘What's the matter?'

‘Moxley.'

‘I'll be glad when that's all over. You've been impossible to live with since it started. What now?'

‘He says not knowing is the worst part.'

‘Well, the appeal was today so he must know.'

Lester shook his head. ‘No. The poor bugger got an adjournment.'