WHEN THE ‘CORPUS JURIS’ MEETS A CORPUS DELICTI: The appearance
and representation of Law's violence as purveyed in the Hulme-Parker trial
[1954] and narrated in Peter Jackson's Heavenly Creatures [1994].
Bruce Harding
[In] th’Antipodes of England.
The people there are contrary to us,
As thus: here, heaven be prais’d, the magistrates
Govern the people; there the people rule
The magistrates.
(Richard Brome, The Antipodes [London, 1640], Act 1, sc.3)
The tragic killing, in 1954, of a New Zealand woman by her daughter and that daughter’s
well-connected friend has been immortalized in the 1994 film Heavenly Creatures
(screenplay by Fran Walsh and Peter Jackson) which was itself inspired by a 1991 nonfiction study (Parker & Hulme: A Lesbian View). In fact that book had first led to
Michelanne Forster’s commissioned play Daughters of Heaven (1992), and the case,
which was linked at trial to the 1924 Leopold-Loeb murder[1] , had received even earlier
treatment in the form of a chapter in Tom Gurr and H.H. Cox’s Famous Australasian
Crimes (1957) and in their 1958 novel Obsession (which was clearly inspired by Meyer
Levin’s novel Compulsion [New York: Simon & Schuster, 1956] which dealt with Leopold
and Loeb).[2] These background details are important inasmuch as the core thematic of
Heavenly Creatures is a bold filmic re-statement of the defence argument in the HulmeParker trial that both girls suffered from shared exogenous paranoia and communicated
insanity when they ‘bricked’ poor Honora Parker to death in Christchurch’s Victoria Park
on Tuesday 22 June 1954.[3]
Although Peter Jackson elided the legal process and any representation of matters of
arrest, confession and trial from Heavenly Creatures, his Silver Lion Award-winning (1994
Venice Film Festival) movie constitutes a little-appreciated act of cinematic rebellion, a
recursion to and radical re-thinking of the judicial management of that deeply troubling
case. In short, the argument I shall pursue in this paper is that Jackson and Walsh’s
screenplay proffered a revisionist cinematic reconstruction of the whole Hulme-Parker
affaire (in both senses of that term) in order to challenge the judicial handling and guilty
verdict of the all-male jury in this matter. To underwrite this claim, some reasonably
detailed discussion of the state of criminal law and operational jurisprudence in New
Zealand at the time of Pauline Parker and Juliet Hulme’s Supreme Court trial in August
1954 is in order.
Criminal Law Desiderata
New Zealand's criminal law is totally reliant on codification (all offences being
statutory in this jurisdiction), a process which started with the Criminal Code Act
1893, which transmogrified into two successor statutes: the Crimes Act 1908 and the
revisory Crimes Act 1961. Consequently no convictions are permissible for old
common- law offences, although some common-law defences survive, such as that for
insanity (per M’Naghten's Case [1843] 10 Cl. & Fin. 200). The Criminal Code Act
1893 abolished the common-law distinction between felonies and misdemeanours in New
Zealand.
The doctrine of clear homicidal intention is founded in the leading English case of
Woolmington v DPP [1935] AC 462 (All ER Rep 1 [HL]), which firmly established the
presumption of defendants’ innocence in criminal trials and inscribed it into English
common law. The three requisite elements of an indictable crime are: (1) the actus reus
(=the offending/injurious physical event); (2) the mens rea (the mental element of guilt
resident in the psyche of the accused at the time of the commission of crime(s) ); and (3)
the absence of any relevant defence (e.g. infancy, self-defence, provocation, insanity or
compulsion) which would demonstrate the absence of a blameworthy, evil mind and,
therefore, negative any notions of criminal liability.
Quite obviously the principle of concurrence (the scintilla temporis) between the actus
reus and mens rea applied, prima facie, to the legal minors Juliet Marion Hulme and
Pauline Yvonne Parker when they mortally wounded Honora Parker on 22 June 1954, but
their liability was far from absolute. Indeed, it was problematic inasmuch as the insanity
defence was arguably applicable to them and, additionally, the requisite psychic
criminous intention or 'knowledge' (viz., the mens rea) only seems to have
been consciously present after they jointly performed the gruesome (and inarguably
criminal) actus reus against Mrs Parker/Rieper. This is vitally important given that ,
at law, the accused may even act with an apparent mens rea and yet have felt no moral
guilt in the lead-up to - and in the execution of -- ,say, homicide. I would suggest
that neither Hulme nor Parker had an inferable 'guilty' state of mind, even though
there was demonstrable evidence both of intent and 'foreseeability' in Pauline
Parker's pre-event diary entries. The legal fault principle operative in the New Zealand
jurisdiction is that mens rea "is a concept independent of knowledge of illegality or
immorality of motive" but that there is "no criminal liability if a 'guilty mind' exists only after
the actus reus."[4] For mens rea to be established at law the key requisites are intent,
knowledge, or recklessness of the physical ingredients of the actus reus, including wilful
blindness or indifference. The core issue in the Hulme-Parker case was the degree of
applicability of Havelock Ellis' definition of the insane criminal as a person who, "being
already in a condition of recognizable mental alienation, performs some flagrantly antisocial act."[5] The reason why this is so is connected with the fact that New Zealand has
no equivalent of s2 of the Homicide Act 1957 (U.K.) with its statutory doctrine of legally
'diminished responsibility' which has reduced the importance of the insanity defence
in the United Kingdom. While, ordinarily, Hulme and Parker would have known that
murder is an intentional act of law-breaking, there was strongly suggestive – if not
exactly probative—evidence at their trial that both young women were so mutually
enwrapped in a complex matrix /compound of fervid reality-denying fantasy and
psychic stress that Elllis' concept of mental alienation would have done better justice
to their conjoint frame of mind. This signals the end of a régime which arraigned
defendants and deemed them culpable on the strict grounds of causation with no element
of intent being factored into the judgement. Sir Edward Coke distinguished between
unlawful forms of killing via the concept of the unclergyable felony of culpable homicide
involving "malice forethought [premeditated killing] , either expressed by the party or
implied by law"(The Third Part of the Institutes, supra., 47), a concept based on a series
of decrees and statutes of 1389, 1496, 1512, 1531 and 1547 which gradually developed
the formula of "wilful Murder of malice prepensed."[6] Thus an historic distinction existed
between the felony of deliberate killing without justification and killing which has occurred
without the sine qua non of culpability, par malice prepense (premeditation). The "most
serious form of homicide known" to 12th century jurists such as Ranulph de Glanvill was
called the murdrum, a voluntary and secretive act of prepensed murder.[7] Clearly the
awful crime against Honora Parker seems to dovetail well with this historic definition both
as to the secluded location (a shrouded path in Victoria Park) and to the willed and preplanned nature of the girls' collective attack upon the hapless parent, but the unresolved
problem with this crime lies—even with due deference to the doctrine of res judicata—
in determining whether their conjoint actus reus conformed to the dicta of express malice
(here, a killing in the absence of provocation) or to the norms of subjective recklessness
(as the conscious taking of an unreasonable risk when "the accused had a conscious
appreciation of the relevant risk"[8]) or to shared insanity (folie à deux). Recklessness
seems applicable but in a limited context: clearly not in terms of an intention to cause
general bodily injury with a careless attitude about whether death might ensue but in the
sense of confused adolescent foresight, in which the emotionally immature defendants
inflicted serious bodily injury which they knew was likely to cause death.[9] I find the
general (=non-legal) connotations of the concept at least suggestive given their
symptomatology, sharing a clearly fantastic state of mind and location within an
aggressively hetero-normative culture (both of which would generate counter-therapeutic
sequelae). The defence psychiatrist, Dr R.W. Medlicott, asserted that Hulme and Parker
“showed gross exaltation” which continued after the murder and during the trial, adding
that “In spite of their intelligence and lack of scruples the girls’ murder was particularly
stupidly planned.” [10]
Francis B. Sayre reminds us, critically, that malice aforethought "is not, strictly speaking,
mens rea in the sense of the underlying mental element upon which criminality in general
is based" but that "if by mens rea we mean whatever mental requisite is necessary for any
particular crime, malice aforethought may constitute one form of mens rea", as one way of
determining "a precise intent at a given time."[11] Before discussing the thorny
parameters of the 'precise intent' of Hulme and Parker, it may be worth citing Professor
Kenny who attempted, famously and unsuccessfully, to proffer a nuanced reading of
degrees of mens rea, in terms of 'more guilty' and 'less guilty' states of mind.[12] Sayre's
response to this was to acknowledge that there are different kinds of requisite states of
guilty-mindedness affixing to particular crimes, arguing that mens rea covers "whatever
mental element is necessary to convict for any particular crime" and ,therefore, that "there
is no single precise requisite state of mind common to all crime."[13] Sayre concluded
that there was a pressing need to replace the old canon law/ius commune (common-law)
notion of mens rea with this "new conception of mentes reae." [14] Andrew Simester and
Warren Brookbanks point out that mens rea "is not normally concerned with the attitudes
of defendants; it is concerned with what they intended, knew, and did not know", which is
why neither worthy attitudes nor good motives provide defences under the criminal
law.[15] They add that Woolmington's Case established that the prosecution/Crown "has
the burden to bring evidence which prima facie proves all actus reus and mens rea
elements of the offence beyond reasonable doubt “, while the defendant “has an
evidentiary burden to raise any evidence which suggests the possible availability of a
defence..."[16]
The Hulme-Parker case proceeded on the statutory presumption of sanity (s23 Criminal
Code Act 1893 and s43 Crimes Act 1908) and upon the settled law that foresight of
wrong-doing involves greater culpability than negligence or recklessness. Glanville
Williams has expressed the legal penumbra surrounding the doctrine of culpable
intervention: that if the defendant is an adult and is "of sound mind and is not acting under
mistake, intimidation or similar pressure" the intervention/involvement is his/her own
responsibility and "is not regarded as having been caused by other people."[17]
The
status of Pauline Parker and Juliet Hulme as marginal young adults and the evidence
suggesting that their mental state on and immediately before 22 June 1954 was hardly
‘sound’ problematizes the trial’s outcome and brings to mind Leslie Moran’s allusions to
Foucault on law’s intimate relationship to “a bio-politics of social control” -- a schema in
which ‘biopower’ regulates and controls human subjects for state-centric goals. [18]
Moran explores how law enacts its own peculiar and licit violence and can operate as “an
arbitrary practice of domination rather than a practice controlled by language, rule and
reason”, especially in cases involving the conjunction of sexuality and inter-personal
violences.[19] Citing Deleuze and Derrida, Moran unpacks the logic of a ‘Gothic’ legal
praxis which “has come to resemble a practice of unruly violence”, both conceptually, as a
dominant social discourse (imposing “an idiosyncratic view of the world and its
enforcement by way of arbitrary decisions”) and through the “more familiar violence that is
punishment.”[20] Moran has written of legalized violence “as physical and conceptual
domination and a practice of pain through punishment” imaged as a régime of ‘good’,
legitimate and curative violence and as public vengeance [21] , adding that the judicial
“Production of the guilty as victims draws attention to the importance of public vengeance
and recognizes the practice of law as a sacrificial practice” [22] and, in this case, anything
but a therapeutic jurisprudence.
The ‘Paramodern’ Disruption and Enigmatic Women
Arkady Plotnitsky and Stephen Barker have written of an interrogative critique of the
‘fragment-heap’ of the paramodern textual discourse and have reminded us of the
processes of parodic-postmodernism and hyper-poetics, in which the meaning, style and
philosophic project of modernity are disrupted—a textual strategy which inevitably
includes the law, as a subject-centered modernism built upon notions of stable, immanent
meaning. Barker’s reminder that madness lies at “the very core of the paramodern
disruption”[23] is the place to provide an entrée into a discussion of the Hulme-Parker
case, in which the defence unsuccessfully tried to persuade the all-male jurors as to the
pertinence of the insanity defence. This précis of the paramodern project fits very well
with Alison Young’s investigations into the limitations of the social and legal Imaginaries in
her book Imagining Crime: Textual Outlaws and Criminal Conversations (1996),
particularly in regard to female involvement with crime. Such a critical interrogation is
especially relevant in terms of a Postmodern Criminology and in dealing with a startling
case of joint female homicide which, in effect, conforms to a horrific instance of
thanatography (a narrative of death). Both Juliet Hulme and Pauline Parker were clearly
‘textual outlaws’ in Young’s terms, and as she explores the largely unacknowledged
crisis rupturing “the crimino-legal complex” /tradition [24], Young exposes the phantasm of
a purely rational criminal law which “pretends a purity of disciplinary constitution
untouched by issues of policy or theory (or, at most, permits them a secondary place
outside the rationality of law)”.[25] This paper explores both the willed constructedness
and the later deconstruction of that tradition: (i) the construction by the ‘Fathers of the
Law’ such as the presiding trial judge and legal luminary Sir Francis Adams (author of a
most influential textbook on criminal law in New Zealand) and (ii) the unpacking of the
need for what Young has defined as an other (alter) justice by the 1991 book Parker &
Hulme: A Lesbian View (Glamuzina and Laurie) and the Walsh-Jackson screenplay of
Heavenly Creatures.
To that originary ‘boa-deconstructor’, Mary Wollstonecraft (1759-1798), ‘madness’ might
have been “only the absence of reason”[26] (a comforting eighteenth-century formulation)
when, in fact, there was reason aplenty in the furious ragings of Pauline Parker and Juliet
Hulme: but it was reason of the kind stereotypically formulated by Freud for criminous
women (viz., a libidinal blockage which has generated hysteria). The sense of Woman at
the mercy of a half-understood compulsion/ “phrenzy” arguably dates back to Seneca’s
Medea and to what might be called the Macbeth syndrome, in which the three goddesses
of destiny at the centre of Macbeth’s delusional snatching for the Crown –and Lady
Macbeth herself—exercise variant forms of Womanpower which some critics have blithely
identified with a spirit of rampant evil. Alison Young insists that Woman has always been
constructed and constituted as an enigmatic “surrogate for the originary outlaw of the
community”, whose cognitive and behavioural deviance provides that “identifiable subject
which presents a threat to the [law-abiding] community” and who must be sacrificially
punished as “deserving violence in some way, as having brought the community’s
[retributive] violence upon it through some fault or flaw of its own.”[27] This
conceptualization well befits Parker and Hulme as cultural outlaws and moral deviants of
the first order as does viewing them as exemplars of Marilyn French’s notion of the
‘outlaw’ feminine principle which conjures up deeply flawed beings “associated with
darkness, chaos, flesh, the sinister, magic and above all, sexuality.”[28]
In attending to the legislative framing of punishment regimes Young insists that “As an
event, crime is…always textual, as are the outlaws symbolically excluded from the
community.”[29] By this Young means that crimes are narratively coded, creating “a sign,
speaking of that which is most reverenced (as essential for the founding of the community
and its criminal contract) and most reviled (signifying the flesh, the impulses, blood,
disease)” as the unpresentable.[30] Certainly this is how Hulme and Parker were
‘textualized’ and narratively framed during their 1954 criminal trial: in terms of Kristeva’s
subjects becoming abject (immoral, sinister, scheming and shady). Young insists that
Woman has become the central enigma of a masculinist criminology, and when she writes
of the invisibility of Woman in this power-discourse, of “femininity as obscurity” which must
be decoded and of women being “represented as analytic opacity”[31], this provides a
chilling frisson in regard to Hulme-Parker and it returns us to the Macbeth syndrome and
the suggestively connotative notion of females ‘killing swine’[32] ( read here as an act of
iconoclasm against a valorized but sexist male politico-legal discourse).
This feminizing of evil trope, when linked to the terrors of a paramodern textualism, remind
us of the force of Jeremy Bentham’s point, in Martin Kayman’s words, that “in the law at
least, the indeterminacy of language serves only the interests of those in a position to
interpret it”[33]—and, I would insist, those in a position to enforce that interpretation, who
historically have been men. But let us not lose sight of the configuration—or tropology—of
the criminal femme and of her criminality which returns us to Alison Young’s contention
that criminal women are monsters in the Westocentric social imaginary—that femininity “is
constructed as a paradox, or perhaps an aporia”, a collapse of meaning , which explains
why criminology “seeks to keep at bay the fluidity of Woman.”[34] Young insists that the
Freudian vision of woman as an hysteric was premised on a Lombrosian stereotype of
female nature as labile and unstable so that “Woman, the eternal dark continent of
Western culture, is the blind spot of criminological theory”.[35] The privileging of
rationality as a ‘male’ attribute has underpinned all claims to a Scientia Iuris (legal
science), such that women “have traditionally been defined as suspended between matter
(the body, nature, animality) and reason”, leading to the “constantly re-enacted
incompatibility of Woman and Reason” which has linked to a prevailing ideology of
biologism (making masculine biology normative in the crimino-legal complex and its
doctrines of mens rea and criminal responsibility/liability).[36] It is my claim that Pauline
Parker and Juliet Hulme suffered from these debilitating and limiting definitions of ‘agency’
during their arraignment and trial in August 1954 even though, ironically, they were hamfistedly miscast as fully rational, calculating killers. Young has alighted on the potency of
a string of bio-psychological theories for girl delinquents, all of which are premised on the
notion of women as exceptions to masculine law. The base assumption which the ParkerHulme deviant outbreak challenged is that authentic femininity entails conformity to social
and legal rules—a conformism grounded in the putative biological and heteronormative
telos of the female. If this is accepted, it becomes easier to understand why defences of
provocation in, say, rape and murder are configured in terms of core doctrines of ‘male’
behaviour—assumptions that “often operate to mitigate guilt or exculpate a male
offender”, permitting outbreaks of male anger provoked by the behaviour of women, which
Young has quite properly defined as “the representation of masculine (hetero)sexual
desire in criminal law.”[37] The upshot of such heavily masculinized (gender-inflected)
conceptions is classical criminologists’ “conception of Woman [as] a ‘(mis)conception’”
and an image of criminology “as a discursive community founded upon the textual
exchange of women among men”[38], which is as embracing a description of the trial of
Parker and Hulme as one is likely to find. The congruent—if unvoiced—assumption is that
female deviancy exhibits a far greater pathology than male infractions, leading to
“disquieting discriminations in the treatment of male and female offenders.”[39] As Young
so eloquently reminds us, the ‘sexed’/gendered body is always “split by the regime of
sexual difference” so that the feminine body “is always that which interrupts, which breaks
through the smooth surface of the neutral mask of the masculine.”[40] This is the place to
heed the reminder of Peter Goodrich and David Gray Carlson that the advent of
postmodernity has signalled the “collapse of the concept and practice of any singular or
sovereign jurisprudence” and that “Behind the mask of reason, the unconscious plays the
role of law and emotion determines both judicial judgment and the subject’s deeds.”[41]
There is simply no better case to demonstrate the residuary truth of these claims than that
explored in Heavenly Creatures. The use of psychoanalysis to reconstruct the positive
imaginary—or fantasmatic structure—of Western law lies well beyond my competence,
but one can readily concede the pertinency of gaps, slips and condensations in the legal
record as constituting potent expressions of a textual unconscious, “of an unwritten history
of legal affections and repressions as they motivate both judgment and law”[42] which
often-times generates a theatre of legalized cruelty. Peter Goodrich has noted that “the
literary critic engaged with law must read the literature of law through the evidence of its
absence, through its repetitions and through the failures which indicate the return of that
which is repressed in law”[43], and this well defines my project in this paper, especially as
Goodrich writes of the tradition of legality representing “a peculiar fiction of institutional
truth.”[44]
This is the point to be reminded that Julie Glamuzina and Alison Laurie have maintained
that the Parker-Hulme case did much cognitive damage in New Zealand: their relationship
“was seen as perverse because of negative social attitudes towards lesbians, and in turn
the case helped to construct a new myth of lesbianism in New Zealand, connecting
lesbians with murder and insanity.” [45]
Provocation, “Phrenzy” and the Insanity Defence: Australasian Case Law
( after M’Naghten’s Case [1843])
Since the Hulme-Parker trial, New Zealand case law has refined provocation defences in
the context of manslaughter, notably in the case of R v McGregor [1962] NZLR 1069(CA),
in which the appellate judges observed that “special difficulties” arise when “purely
mental peculiarities”(such as a compulsive, disordered personality) are relied on in order
to exculpate a defendant. Inarguably Hulme and Parker felt extremely provoked and
threatened by Mrs Parker’s several actions and zeal in working to separate them.
Excessive emotionalism or paranoid disorder may constitute a valid ‘characteristic’ in
justifying violent responses to provocation but ,in fact, these are rarely accepted in cases
dealing with manslaughter under provocation.[46] Gerald Orchard has noted that if the
relevant characteristic cited “is no more than evidence of a short temper or unusual
pugnacity” this will not serve an exculpatory purpose in the New Zealand judicial
environment.[47] There remains the excuse of obvious youthful immaturity linked to the
criterion of the power of self-control (the standard ,predictably, being that of an ‘ordinary
person’ of the defendant’s age), but these considerations were not normative in New
Zealand’s legal culture in the 1950s, which tended to operate within the simple dyads of a
‘Gothic’ jurisprudence. In addition, J.H. Baker has noted that, historically, the common law
proffered a necessary régime of “afflictive punishment” but that its legacy was a criminal
law which “fluctuated from almost ineffectual leniency to brutal severity.”[48] Few would
now doubt that the justice meted out to Hulme and Parker tended towards the brutal,
although in 1954 many Kiwis would have felt that the girls were treated leniently in
escaping execution, given the consensus view – as characterized in the media – that their
relationship was “a sexual perversion which attacked and undermined both the prescribed
moral codes and expected gender roles” of the time, involving two “adolescents out of
control.”[49] Legally, Hulme and Parker were probably guilty, at worst, of culpable
ignorance and temporary delusional insanity in a case which starkly demonstrated the
empirical unsoundness of trying to distinguish meaningfully between malice (=coldblooded killing) and chance medley (=hot-blooded homicide), as the killing of Honora
Parker elided this seemingly neat and logical distinction, as there was a compound, a
fateful coming together, of elements of situational provocation, clear – but fervid –
foresight and an emotionally-charged melée on 22 June 1954.
The M’Naghten case-law ‘Rules’, as set out judicially in 1843 by the then Lord Chief
Justice (Tindal), were incorporated into the Draft Code of the English Criminal Bill
Commission (1879) and s22 of that document was transferred “in almost identical terms”
into New Zealand’s Criminal Code Act, creating New Zealand’s insanity defence, which
“has been relatively unaffected by subsequent revisions of our criminal legislation.”[50]
That fact is itself problematic inasmuch as the Rules “do not address the issues of lack of
control, irresistable drives, or impulses”, so that without clear evidence that the accused
was suffering from a strikingly obvious mental disease at the time the killing occurred,
these kinds of claims will fail as defences.[51] This was the precise legal lacuna which
ensnared Hulme and Parker given the statutory presumption of sanity in the operative
legislation under which they were tried and sentenced (s43(1) Crimes Act 1908) and
because of the absurd situation in which ‘common-sense’ Victorian rules on complex
psychiatric matters still held full legal sway in New Zealand fifteen years after the death of
Sigmund Freud. [52] This ‘hangover’ of obtuse legal positivism was recalled by Dr C.E.
Beeby (the Director of Education, NZ, 1940-60) when he was a young clinical
psychologist (during the 1920s) and was called upon to examine two adolescents
charged with arson. Beeby tested their intellectual and educational abilities and Professor
James Shelley “dealt with their emotional problems”. Beeby recalled that “As might have
been foreseen in those days, our evidence made no impression on judge or jury…”[53a]
The insanity defence was always restrictive, as evidenced in the case R v Hadfield (1800)
27 St Tr 128, in which James Hadfield , a silver spoon-maker from Middlesex, was put on
trial for high treason for firing a pistol at King George III (attempted regicide) at the
Theatre Royal, Drury Lane and was acquitted by a jury who judged that he had suffered
from a delusion which prompted his act. After evidence of his mental agitation and
discharge from the army on the ground of insanity were read into evidence, the jury found
Hadfield “Not Guilty; he being under the influence of Insanity at the time the act was
committed” (supra. at 1356).This was a landmark case in English jurisprudence, providing
for the first time a special ‘not guilty’ verdict and creating, ipso facto, a new category of
offenders: ‘criminal lunatics’. The ratio scripta (written reasoning) of this case was
provided by Sir John Mitford, the Attorney General , who gave a full explication of the
settled law of the realm, which was premised on notions of will, intentionality and the
degree of discretion possessed by accused persons at the time of offences. As Sir John
(later Lord Redesdale) expressed the matter:
if a man is completely deranged, so that he knows not what he does, if a man is so lost to all
sense, in consequence of the infirmity of disease, that he is incapable of distinguishing between
good and evil – that he is incapable of forming a judgment upon the consequences of the act which
he is about to do, that then the mercy of our law says, he cannot be guilty of a crime (1286).
This formulation was a compound of Chief Justice Coke and Hale’s doctrinal reasonings
and of two precedent cases, which excluded persons experiencing “occasional insanity
with lucid intervals” and requiring for acquittal “a total and absolute insanity and
deprivation of the mind”(1290) of the kind engendering ‘madman’ behaviour, when a
defendant is “labouring under the extreme of the disorder when in a phrenzy [sic], or
[when] a person who is suffering the severity , for instance, of a violent fever, may do an
act of which he is perfectly unconscious, and for which, therefore, he cannot be deemed to
be responsible”(1286). There is clear polysemy residing in this case-law which could have
been given a better exegesis in 1843, but we shall see that it had to wait until a brilliant
Australian jurist, Sir Owen Dixon, finally understood its vital import and its nuanced issues
of duree in 1933. Brookbanks and Simester remind us that the M’Naghten Rules stressed
the causal connection between a delusional state and the crime “and the status of the
offence if the content of the delusions is true”:
M’Naghten demonstrates, and subsequent cases have also shown, that a person may know
precisely what she is doing and even be aware that she is committing a criminal act, yet be excused
because her firmly-held delusions have compelled her to act as she did. [53]
This interpretation of M’Naghten seems, based on empirical analysis of New Zealand
case-law, extremely sanguine, for while this formulation almost perfectly describes the
mindset of Pauline Parker and Juliet Hulme, the New Zealand legal system failed to apply
it regarding insane delusions in any of the reported cases subsequent to M’Naghten [54]
,which was itself a culpable omission. This seems likely to be a result of colonial nervosity
in the face of ‘epic’ English precedent law, leading to illiberal and loosely constructionist
readings of the operative statutes in line with narrowly reductive views of brain disease( a
crudely positivist biologism). Simester and Brookbanks have noted that this area remains
contested because jurists are reluctant to hand over “the judicial task of determining the
legal status of mental illness or disease exclusively to medical experts” and because their
duty is “not to declare the clinical parameters of a particular disease process but rather to
state whether a mental disease fits within the legal criteria for insanity laid down by
Parliament.”[55] In addition, the Rules are exclusively cognitive in focus “and ,arguably,
fail to give adequate consideration to disorders of the will or the emotions.” [56] Simester
and Brookbanks have acknowledged the unresolved problem of accommodating offenders
who are not insane in the narrow cognitive sense “yet who suffer from mental
abnormalities which impair their ability to conform to the law’s requirements.”[57] Even in
the headnote to M’Naghten’s Case it was noted that the Rules “have been adversely
criticized both by legal and medical text writers…and [they] frequently receive a liberal
interpretation in England.”[58] Their Lordships, reviewing the principles of legal insanity
for the House of Lords, urged the view that acquittals from “partial delusions” were
impossible if the defendant “knew at the time of committing [a] crime that he was acting
contrary to…the law of the land.”[59] This narrow line was followed in the New Zealand
Supreme (now High) Court case of R v Monkhouse [1923] GLR 13, in which an acquittal
was granted because, in Chapman J’s words, Monkhouse’s delusions “were not isolated”
but were “indicative of a diseased brain and [were] really only symptoms of insanity
resulting in irresponsibility”(supra., 14). Other relevant case-law affixed to the reprinted
Crimes Act 1908—under which Hulme and Parker were tried— included R v Holden
[1920] NZLR 458, which tried to fine-tune the interpretation of s43 via legal legerdemain in
a case involving a mother’s manslaughter of her illegitimate child, and R v Deighton [1900]
18 NZLR 891, which proffered a rather blunt-edged line of reasoning also by the Chief
Justice, Sir Robert Stout (this time unpacking the identical precursor clauses from s23 of
the Criminal Code Act 1893). In Holden the Court of Appeal rejected the notion that
“something like a condition of frenzy” rendered the mother “momentarily irresponsible” as
the jury did not doubt that she knew her act was wrong (supra., 460 & 461), which seems
on all fours with Hulme and Parker and certainly negatived any precedencial value of
Hadfield as a key English case which may have been helpful from the standpoint of the
duration, the temporality, of episodic insanity in further elucidating the rather mechanistic
‘nuances’ of the Crimes Act 1908.
The earlier case of Deighton (1900) dealt rather clumsily with the issues of irresistible
impulse and what constituted ‘knowledge’ of the nature, quality or wrongfulness of an act
of killing. In this case it was reported that the preponderance of evidence (including
medical) “tended to show that the accused was not suffering from any mental disease”,
and Stout CJ’s summing-up constitutes a tour de force of common-sense positivist
‘psychology’. Stout recalled the statutory burden of proof for insanity, using the 1893
codified constructions of “natural imbecility” and/or a “diseased mind” and resulting in a
two-fold test which asked if the accused was (1) rendered “incapable of understanding
the nature or the quality of the act” and (2) was “incapable of knowing that the act he was
doing was wrong”(supra., 892). This antiquated M’Naghten test and quasi-medical
terminology of mentation was also the legal standard facing Juliet Hulme and Pauline
Parker 80 years after it had been promulgated. In fairness to Sir Robert Stout, these
creaky legal exemplars illustrate the severe limitations of the stare decisis doctrine as a
means of dealing in an even-handed and nuanced manner with particularized caseinstants. Consequently, defendants may be ‘squeezed’ both hermeneutically and
existentially between the vise-grip of ,on the one hand , narrowly-framed positivist
legislative canons and, on the other, unlike (albeit superficially ‘like’) decided cases which
freeze prior and outmoded – if conscientious – attempts to bring conceptual clarity to
issues of phenomenal complexity which should ideally be resolved in a climate of judicial
freedom which strives to be both: (a) contemporaneous in its awareness of shifting
medico-legal paradigms, and (b) appropriately focused on the salience of the particular
circumstances which require judicial adjudication. This was essentially the problem which
the Justices were adverting to, with polite firmness and humility, when framing what
became the M’Naghten Rules for the House of Lords (cf. in particular Justice Maule’s
qualms, wishing “my learned brethren would have joined me in praying your Lordships to
excuse us from answering these questions” given his fear that “as these questions relate
to matters of criminal law of great importance and frequent occurrence, the answers to
them by the Judges may embarrass the administration of justice, when they are cited in
criminal trials”[60]).
Thus in Deighton Stout CJ ignored Dr Mackin’s medical testimony that Deighton must
have been temporarily insane on the ground of “no evidence whatever that the man had
any mental disease”(supra., 893), which is clear evidence of the fettering of a
fundamentally non-empirical legal system in regard to these contested issues and also of
a point made by Peter Goodrich: that managing the rules of precedent “is an art and not a
science”, an art which in practice “conforms fairly closely to the interests, both political and
economic, of the class to which the legal profession and institution belong.”[61]
Goodrich’s concern with “the effects of the broad development of bodies of law” is directly
related to his anxieties regarding the “formidable and unresolved” difficulties attending the
“traditional, somewhat mechanistic, view of precedent.”[62]
Stout CJ disregarded other testimony, followed informal hearsay evidence and led the
jurors towards a verdict – incontestably a very crude praxis – before focusing upon the
point that even if Deighton “suffered from an impulse which he could not control”, the core
legal issue (M’Naghten again) was : “was he in such a mental state that he did not know
he was killing [his infant child] and doing wrong?”(895) By focusing on this narrow issue,
Stout CJ skilfully evaded the exculpatory import of s23(3) of the Criminal Code Act and
anticipated a major – if short-lived – line of case-law, most notably the authoritative
English case of R v Windle [1952] 2 QB 826, which rejected an excuse of mercy killing
and communicated insanity on the legal ground that Windle knew that his act of poisoning
was ‘wrong’ in sense of prohibited by law. Windle followed M’Naghten, and Lord Goddard
CJ – in the UK Court of Criminal Appeal – upheld the withdrawal of the insanity case from
the jury and delivered a robust judgment reminding jurors that “in the McNaghten [sic]
rules, ‘wrong’ means contrary to law and not ‘wrong’ on the question whether a particular
act might or might not be justified”(supra.,834). This legalistic line of reasoning was
soundly rejected by the High Court of Australia in R v Porter (1933) 55 CLR 182, and the
Porter judgment was later endorsed by the same court in Stapleton v R (1952) 86 CLR
358 (HCA), ultimately becoming settled doctrine in New Zealand legal practice. In Porter
Sir Owen Dixon summed up operative Anglo-normative criminal law with his accustomed
lucidity: “The crime of murder is committed when, without any lawful justification, without
any excuse, without any provocation, a person of sufficient soundness of mind to be
criminally responsible for his acts intentionally kills another” (Porter at 183). Dixon J
instructed jurors that defence counsel must establish, “upon a balance of probability, that
[the accused] was…not of such a mental condition at that time as to be criminally
responsible” and ,vitally, that counsel have “not got to remove all doubt from your minds.”
Upon the basis of this authoritative judicial reasoning Parker and Hulme should not have
been denied the insanity defence by the jury (‘Not guilty on the ground of insanity at the
time of the commission of the offence charged’ in Dixon J’s elegant formulation [185]).
Dixon J added that “There is a legal standard of disorder of mind which is sufficient to
afford a ground of irresponsibility for crime”(186) and I argue that this standard applied to
Hulme and Parker. [My emphasis.]
The genius of Stapleton v The Queen (1952) 86 CLR 358 (HCA) was that the learned
justices (Dixon CJ, Webb J and Kitto J) undertook a comprehensive review of English
case law anterior to R v McNaghten and, upon the basis of unimpeachable scholarship,
used the stare decisis doctrine to set aside the authority of R v Windle, thereby forging a
pathway which led, eventually, to s23 (2) (b) of New Zealand’s 1961 Crimes Act, in which
the objectivist ‘contrary to law’ thrust of Windle was supplanted by Dixon CJ’s
conceptualization in Porter (1933): viz., the subjective test as to whether an accused could
recognize that wrongfulness meant awareness of moral wrong, “according to the ordinary
standards adopted by reasonable men [sic]”, not whether the accused knew it was wrong
in terms of being “contrary to law” (358 & 375). Sir Owen Dixon’s critical obiter dictum in
Porter was a jury instruction that they were to concern themselves with the “condition of
the mind” at the critical time “when the act complained of was done”, adding a rider of
great pertinence to the Hulme-Parker case:
You are not concerned, except for the purpose of finding out how he stood at that moment, what his
subsequent condition was or what his previous condition was. He may have been sane before and
he may have been sane after, but if his mind were disordered at the time to the required extent, then
he should be acquitted on the ground of insanity at the time he committed the offence (187).
That noted, Owen J (as he then was) insisted that a disturbed or disordered state must
transcend “mere excitability of a normal man [sic], passion, even stupidity, obtuseness,
lack of self-control, and impulsiveness”, being linked to “a state of disease or disorder or
mental disturbance arising from some infirmity, temporary or of long standing”(188).
Further, the said mental ‘infirmity’ must have frustrated the reasoning process for a crucial
temporal period so that the accused may have known that s/he was killing, “knew how he
was killing and knew that he was quite incapable of appreciating the wrongness of the
act”(189). Dixon J referred, in this finely nuanced dictum, to an ordinarily responsible
person holding “queer or unsound ideas” constituting “such a mental disorder or diseased
intelligence at that moment [=of committing the actus reus] that he was disabled from
knowing that it was a wrong act to commit in the sense that ordinary responsible men
understand right and wrong and that he was disabled from considering with some degree
of composure and reason what he was doing and its wrongness”(190). This is nothing
less than the application of the meta-ethics of lapsarianism (non-judgementalism) to an
Anglo-Australian jurisprudence and, given that it was upheld in Stapleton and followed in
New Zealand until 1961( R v Macmillan [1966]NZLR 616 (CA) at 621 & 622 ), it should
have been applied in Hulme-Parker, especially given Turner J’s statement that in the view
of the Court of Appeal, “We are not aware of any authoritative decision which supervened
in this country between the years 1952 and 1961”(supra.,619), after which the new
Crimes Act 1961 regularized the position via express statutory codification—viz.,
accepting Dixon ‘s ruling into the textual fabric of s23(2) (b) of that 1961 enactment.
The Supreme Court Trial (August 1954)
According to the Glamuzina and Laurie account of the Hulme-Parker trial (23-28 August
1954), the defence case was seriously weakened by the girls’ confessions of murder to
detectives (without lawyers present!) and the prescriptive jury instruction of the presiding
Supreme Court Judge, Sir Francis Adams: “You really have no option but to hold the
accused guilty of murder on the ground that the defence of insanity of the required nature
and degree has not been proved.”[63] In Glamuzina and Laurie’s account, Adams J
“pointed out to the Jury that both medical witnesses for the defence had agreed the girls
knew that what they did had been wrong in the eyes of the law.”[64] This was an
erroneous application of the M’Naghten common-law Rules in that it took no cognizance
of Dixon J’s nuanced ruling in R v Porter (1933), especially given that one of the prime
symptoms of their mental alienation was a sense of their exemption from the dictates of
law and community norms. One also recalls Clarence Darrow’s comment à propos
Leopold and Loeb: that despite this “archaic legal test”, the fact that defence counsel
discovered “extensive derangements of their emotional life…[which] entered into and
caused the commission of the crime” led them to expect, in a court of justice, some
mitigation of the offence. However, one jury source claimed that the jurors had believed
Hulme and Parker to be insane but felt that a guilty verdict would spare them from lengthy
incarceration in a mental hospital (being under eighteen, they came under the protection
of s5 of the Capital Punishment Act 1950 and would be subject to detention at the Crown’s
‘pleasure’). Aside from the crudity of Adams J’s ruling, it is true that a full insanity verdict
would indeed have quashed their conviction and placed them in indefinite custody under
Part IV of the Mental Health Act 1911. In addition to the appalling judicial derogation of
Porter (1933) and Stapleton v The Queen (1952) – the point of which Turner J
emphasized so clearly in Macmillan (previously cited) – there was another critical
criminological nuance which seems to have escaped Adams J’s attention in framing his
jury instruction: that when confronted with ‘method in the madness’ of criminal defendants,
jurists may be too quick to think in terms of parallels with Shakespeare’s Prince
Hamlet.[65] Turner J observed that evidence of “method and logical approach to an
alleged crime might not be inconsistent with the [insanity] diagnosis, but might in fact
support it” (R v Macmillan [1966] NZLR 616(CA) at 625). This assessment is entirely
consonant with Sir Owen Dixon’s rulings but seems to have been suppressed by Adams J
in ruling on the statutory options available in the 1908 Crimes Act. A robust defence might
have been able to displace the Crown’s presumption of sanity (s43 (1) ) , using Juliet’s
and Pauline’s confession as evidence of shock and mens rea after the event, and while
there was clearly no bio-physical evidence of “natural imbecility or disease of the mind”
(s43 (2) ) , defence psychiatrists ought to have been schooled by defence counsel to
exploit s43(3) and (4) as a ground for a defence of temporary delusional insanityautomatism (exogenous rather than endogenous), as per Porter. Let us re-examine the
relevant subsections under which the Supreme Court trial was held:
(3) A person labouring under specific delusions, but in other respects sane, shall not be acquitted on
the ground of insanity under the provisions hereinafter contained unless the delusions caused him
to believe in the existence of some state of things which, if it existed, would justify or excuse his act
or omission.
(4) Insanity before or after the time when he committed or omitted the act, and insane delusions,
though only partial, may be evidence that the offender was, at the time when he committed or
omitted the act, in such a condition of mind as to render him irresponsible for such act or omission.
[66]
These legal parameters—if linked to Porter and Stapleton—surely ought to have provided
a proverbial ‘barn-door’ through which a full insanity claim could have been
avoided, thereby circumventing Crown Prosecutor Alan Brown’s appallingly
unsubtle characterization that “this plainly was a callously planned and
premeditated murder, committed by two highly intelligent and perfectly sane but
precocious and dirty-minded girls.”[67] (Emphasis mine.) Defence counsel Terence
Gresson rebutted , stating that “The Crown’s description is unfortunate and
medically incorrect. They are mentally sick girls more to be pitied than blamed.”[68]
Thus the rather invidious ‘mad or bad?’ label became attached to the trial process
(with the defence and prosecution tethering each case , respectively, to the
relevant adjective). Of course the social context of the trial would have made a
defence of temporary insanity very difficult to sustain (especially with Mrs Hulme as
a Crown witness whom the police tried to keep away from defence counsel), but it
would have been the most juristically nuanced option. It is apparent that Adams J
was operating under the equivalent of the “Queensberry Rules” (Lord Queensbury’s
attack on Oscar Wilde in 1895), with all the legally-sanctioned homophobic violence
of the Oscar Wilde trials still ringing in his earlobes 59 years on from that watershed
event in British criminal jurisprudence.
Mr Brown pre-warned the jury that they were to ignore the dire legal plight of the accused;
that feelings of outrage for the late Mrs Parker or pity for the girls “have nothing to do with
this trial at all” for the simple reason that “Sentiment and emotionalism have no part in
British justice.” Brown set out the Crown case: “The evidence will be that the two girls
came to the conclusion, after much thought, that the mother of one of them, Parker, was
an obstacle in their path, that she thwarted their desires, and that she should be done
away with. They planned to murder her, and put their plan into effect by battering her over
the head with a brick encased in a stocking…in a manner as to make her death appear to
be an accident.”[69] Brown added that “Their main object in life was to be together,
sharing each other’s thoughts, secrets and plans; and if any person dared to part them
then that person should be forcibly removed.”[70] From February 1954 the personal
diaries of Pauline Parker referred, with increasing frequency, to the death of her mother,
and in March Pauline began visiting shipping companies in anticipation of their projected
American voyage. In April both girls began a short-lived campaign of shop-lifting to garner
travel funds. Here is a sample of the more notorious passages from Pauline’s diary:
As usual I woke at 5 and managed to write a considerable amount. I felt depressed at the thought of
the day. There seemed to be no possibility of mother relenting and allowing me to go out to Ilam.
This afternoon mother told me I could not go out to Ilam again until I was eight stone and more
cheerful. As I am now seven stone there is little hope…she is most unreasonable. Why could not
mother die? Dozens of people are dying every day. So why not mother, and father, too? [13 February
1954]
Anger against mother boiled up inside me, as it is she who is one of the main obstacles in my path.
Suddenly a means of ridding myself of the obstacle occurred to me. If she were to die… [28 April]
I did not tell Deborah [Juliet] of my plans for removing Mother. The last fate I wish to meet is one in a
Borstal. I am trying to think up some way….I do not want to go to too much trouble but I want it to
appear either a natural or an accidental death. [29 April]
We practically finished our books today and our main idea for the day was to moider [transcribed
Brooklyn pronunciation of ‘murder’] Mother. This notion is not a new one, but this time it is a definite
plan which we intend to carry out. We have worked it out carefully and are both thrilled with the idea.
Naturally we feel a trifle nervous but the anticipation is great. We are both stark, staring mad. [19
June]
…we discussed our plans for moidering Mother and made them a little clearer. Peculiarly enough I
have no qualms of conscience (or is it peculiar, we are so mad?). Next day I rose late and helped
Mother vigorously this morning. Deborah rang and we decided to use a rock in a stocking rather
than a sand-bag. We discussed the moider fully. I feel very keyed up, as though I were planning a
Surprise party. Mother has fallen in with everything beautifully and the happy event is to take place
tomorrow afternoon. So next time I write in this diary Mother will be dead. How odd—yet how
pleasing. [21 June]
The Day of the Happy Event:
I am writing a little of this up the morning before the death. I felt very excited and ‘the night-beforeChristmasish’ last night. I did not have pleasant dreams, though. I am about to rise. [22 June 1954]
In her post-homicide statement to the police, Pauline appeared the model of lucidity,
which doubtless contributed to the case of full legal sanity upheld against her at trial. This
interview was also notable for Pauline’s clear desire to shield Juliet from any blame,
declaring that Juliet had gone well ahead along the track (“I wish to state that Juliet did
not know of my intentions and she did not see me strike my mother”). Parker refused to
disclose why she killed her mother and both girls conceded that they were both in a state
resembling frenzy:
As soon as I started to strike my mother I regretted it, but could not stop then (Parker).
After the first blow was struck I knew it would be necessary to kill her. I was terrified and hysterical
(Hulme). [71]
In a case which received tabloid treatment (‘Gym Tunic Murderesses’; ‘Teen Passion
Flares’; ‘Juliet and Pauline Are Both Crackers’) it is important to revisit the state of mind of
the girls (aged 15 and 16), at least as one of them has tried honestly to reconstruct it. The
historical crime novelist Anne Perry [72] (the former Juliet Hulme) has recalled that her
friend Pauline was effectively bulimic and suicidal at the time of the Hulme family’s
impending departure from New Zealand (early July 1954). Perry recalls of Pauline:
She was literally wasting away. I was afraid that she was seriously ill to the point where she might
not survive. I believed at the time that her survival depended on her coming with us….I don’t want in
any way to implicate or blame her….But she wished me to join her in this act and I believed that if I
did not she would take her own life. I sincerely believed that her life was in the balance. Crazy as this
sounds, I thought it was one life or the other. I just couldn’t face the thought of being responsible for
her dying. And I made a very foolish choice. [73]
Perry adds that at this time she was being treated for a chest ailment (after full
hospitalization for T.B. at the Cashmere Sanitorium) and was receiving respiratory drugs
which have since been withdrawn due to the side-effect of tending to warp patients’
judgement.
Peter Jackson applied the clichéd term ‘fatal attraction’ to the girls and that is certainly
how film reviewers have treated their friendship. However, film critic Nicholas Reid
detected prurience in the film; arguing that “Jackson seems to be challenging us to be as
shocked by the lesbian element as New Zealand was 40 years ago.” Reid’s concern
was that Creatures consists of “dementia served up as entertainment” and, worse, that
Jackson and Walsh “completely identify with the girls’ viewpoint”. [74]
Jackson has
confirmed the lapsarian intentionality of Creatures – that it is a “murder story about love, a
murder story with no villains”, the story of an exhilarating friendship between two very
imaginative teenage girls. He claimed, upon the film’s release, that it was time for Hulme
and Parker to be viewed as human beings and not as ogres who blackened the reputation
of their school and city.[75]
*
*
*
*
*
*
Psychopathy and Sexual Divergence: Rampageous “Lesbian
Outlaws” ?
The junior defence counsel for the case, the late Brian McClelland, QC stated in 1991 that
he always felt that Juliet was schizophrenic; that she was a young woman of astounding
conceit which was the key reason “why we couldn’t possibly call her to give evidence.”
[76] McClelland noted that the Crown case was reliant on an inference that the girls had a
lesbian relationship (this despite Dr Stallworthy’s rejection of any suggestion that physical
lesbian expression was a causative factor in the assault) and noted that Juliet Hulme
“knew right from wrong…, but she didn’t think the rules applied to her because she was so
brilliant.”[77] He added that the girls’ mental state “was our major difficulty” and recalled
that the Crown gave the defence alienist, Dr Reginald Medlicott, “a very rough passage.
With the wind behind him from Adams, [Crown Prosecutor Brown] made a mess of
Medlicott.”
Adams J was a staunchly religious man who had no sympathy for the
accused and was “an unsympathetic Judge, to put it mildly. He had been Crown
Prosecutor in Dunedin for many years. He had written Adams on Criminal Law (1964) and
was a clever man but absolutely as hard as nails.”[78]
McClelland recounted the
bombshell which Adams J dropped at the conclusion of defence evidence: he declared (à
la Windle) that he was going to direct the jury that there was no evidence of insanity at all
– that , as a matter of law, the defence had not been made out. We hadn’t got any other
defence.” McClelland and Peter Mahon (junior counsel for the Crown) appeared before
His Honour in chambers to protest the removal of the issue from the jury. Mahon (later a
distinguished Justice of the High Court ) told Adams J that the Crown wanted the insanity
plea decided by the jury. As McClelland remembered it,
Adams said that he did not mind what the Crown wanted. He was telling [Mahon] that as a matter of law he was
going to direct the jury accordingly. I said that evidence had been given which, if accepted by the jury, would mean
that Juliet was legally insane.
[79]
The two counsel had but one night to reflect on best options. After working late in
the Canterbury College Law Library Mahon and McClelland uncovered an English
case in which a Judge ruled out the insanity defence on the basis that no medical
evidence had been called (which was not the case with Parker and Hulme).
Finding it hard to distinguish this negative precedent ruling, a most reluctant Mr
Justice Adams allowed the insanity question to be resolved by the jury. Perhaps it
was his not so subtle counterplay to convene the court to decide the outcome of R
v Hulme and Parker on the day of a major Ranfurly Shield rugby fixture (Canterbury
v Waikato), which drew 40,000 spectators and placed the twelve male jurors in the
position of reaching their verdict inside 3 hours so that they could attend this
‘greater game’ at Lancaster Park. (His Honour’s summing up took eighty minutes
and the jury retired for two and a quarter hours on 28 August 1954 after a six-day
trial.)
It is unclear whether McClelland and Mahon consulted Rex v Rivett (1950) 34 Cr.
App.R.87, but it is likely to have featured in Adams J’s rationale , as it was then
deemed to be “a strong authority” for the proposition that “it is for the jury alone “ to
determine criminal responsibility “if there is evidence that there is disease of the
mind” and that “It is only when there is no disease of the mind in any way
connected with the crime charged that the case can properly be withdrawn from the
jury” (Lord Goddard CJ, R v Windle [1952] 2 QB 826 at 829). Adams J must have
felt forced to concede that the defence counsel had made out some kind of case for
a disease of the mind for the jurors to consider; if so, this is evidence of His
Honour’s deep respect for stare decisis doctrine. Lord Goddard had added that
“There is no case in the reports in which the trial judge in a case of murder has
refused to allow the plea of insanity to be left to the jury” (supra.,829) and
McClelland and Mahon clearly must have played on Adams J’s reverence for “the
male, legal, ideal” of impartiality (in Helena Kennedy’s words [80]). Lord Goddard
also made an extra-judicial comment that would undoubtedly have applied equally
to the Hulme-Parker trial: that in Windle (a case dealing in communicated insanity
in which no delusion existed) the jury might have legitimately “disregarded the
appellant’s confessions”(830); many years later, Pauline Parker (now Hilary Nathan
of Rochester, Kent) told her sister Wendy that the killing of their mother was
something ‘that grew and grew out of all proportion’, and Wendy noted that it took
Hilary “about five years to realise what she had done.”[81] Quite clearly there are
cases such as this which strongly support the notion that the M’Naghten Rules
ought , at least at times, to be qualified by expert medical evidence. Clearly the
defence in Hulme-Parker felt confined by the adolescents’ confessions and so Dr
Reginald Warren Medlicott promoted the thesis that Juliet and Pauline were a
couple of ’steady-state’ paranoiacs subject to folie à deux – a verdict also agreed to
by a medical friend of the Hulmes, Dr Francis O. Bennett (who was a member of,
and counsellor for, the Christchurch Marriage Guidance Council and who had
interviewed both girls). This diagnosis shackled the defence case to dyadic thinking
(fully sane or insane), thus to a full medical and legal insanity plea, whereas other
options seem at the very least equally applicable given the girls’ shared delusions
of grandiosity. Argument might have prospered in terms of a conjoint masked
personality disorder and a narcissistic rage slaughter which resulted from what
modern Australian jurists (following Dixon CJ) recognize as a defence of cumulative
provocation (i.e., the loss of self-control need not be sudden or abrupt but could
constitute a progressive, ramifying degeneration, as happened with Hulme and
Parker as shown in the Parker diary). A ‘fugue’ state of non-insane automatism
would probably have provided a more finessed account of their actions (a fugue
being an interval in which a person is not in control and lacks full volitional agency).
Today there exists in British law the psychiatric defence of mental impairment
which falls short of medical insanity and which may relate well to the recent
defence (in several American states) of Extreme Emotional Disturbance, such that
an accused may suffer from an over-riding—albeit not long-lasting – state of
‘psychological freezing’.[82]
The concept of folie à deux has been summarized by the psychiatrist John Saxby
as
a mechanism for protection. The coming-together is what counts. Each life plays into the other, each is
complementary. The coming together provides the compact, the whole. It may provide a beautiful poem
– or a murder. [83]
The pertinence of this definition is clear if we consider Tom Gurr and H.H. Cox’s
summation of the violent actus reus undertaken against Honora Parker:
Juliet was sixty yards in front, and still out of sight down the track, when Honora Parker caught sight
of a pink pebble, and Pauline remarked how pretty it was. Honora bent down to pick it up. Behind her,
Pauline pulled the sling-shot from her pocket, braced her legs, and swung. The brick crashed on her
mother’s head, and she collapsed.
And that was the moment when Pauline wished it hadn’t happened. But some force possessed her,
drove her on, some inner voice , which commanded: It is too late to stop! She struck again, and again,
and now Juliet, panting from a sprint along the track, was kneeling beside her, and swinging the slingshot. Blood was spurting from twenty-four wounds in Honora Parker’s face and head. Sobbing
hysterically, the girls looked at each other and at their victim. The blood was only trickling now. They
had beaten Honora Mary Parker to death.
The plan had to be completed.
Blood was dripping from their hands when they ran the four hundred yards [c. 125 metres] back to
the kiosk. “It’s Mummy!” gasped Pauline to the proprietess, Mrs. Agnes Ritchie. “She’s terrible! I think
she’s dead. We tried to carry her. She was too heavy.”
“Yes, it’s her mother!” Juliet burst out. Her voice was breaking with hysteria. “She’s covered with
blood!” Pauline
pointed down the path, in the direction in which the body lay, and as she made the gesture Mrs. Ritchie
saw that blood was spattered upon her face. “Don’t make us go down there again!” Pauline breathed.
And then: “We were coming back along the track. Mummy tripped on a plank and hit her head when
she landed. She kept falling, and her head kept banging and bumping as she fell.”
“I’ll always remember her head banging”, cried Juliet dramatically.
While Mrs. Ritchie called her husband, the girls went to a sink to wash the blood off themselves, and
Mrs. Ritchie heard them laughing hysterically as they did so. [84]
Medlicott ruminated carefully on why the girls were so self-contained, imaginative,
selfish and unable to accept criticism, and he asserted that Juliet and Pauline were
two people with similar mental weaknesses who suffered from delusions resistant
to correction by exteriorized facts or reasoning. Consequently Dr Medlicott urged
the view that Parker and Hulme should be viewed as certifiable victims of a folie à
deux paranoia of the exalted type. Central to Medlicott’s full insanity diagnosis was
what he perceived to be “the extraordinary similarity” of their murder with the
Leopold-Loeb case [85] which concerned two mentally gifted Chicago law students
and ‘thrill killers’ who, thirty years before, had also betrayed no remorse and who
smiled in the courtroom during their trial. This linkage with the Leopold-Loeb case
carried a risk which perhaps Dr Medlicott failed to recognize: that the boy-killers
had also confessed to their heinous crime but that the folie à deux defence of
Clarence Darrow and the alienists made no legal headway with the presiding Judge
(Caverly J) who rejected it outright. (Perhaps Medlicott hoped that as Hulme-Parker
was a jury trial he could better impress several jurors with this argument; the
resistant stance of Adams J in wanting to withdraw this defence could not have
been reasonably foreseen.) Helena Kennedy’s observation that “there is a high
level of judicial scepticism about psychiatry” and that psychiatrists will come into
courtrooms “like lambs to the slaughter if their reports are full of references to
‘cycles of deprivation’ or ‘cognitive dissonance’”[86] is a vital point to consider in
assessing the rough ride meted out to Medlicott in 1954. In addition, Kennedy has
suggested that Anglo-normative jurisprudence is reluctant to admit “that there is a
potential for crime in Everywoman” so that “the investigation and trial of serious
crime is not designed with them in mind”, as in the failure to design tighter rules
about extracting uncorroborated confessions from vulnerable persons (as
inarguably happened to Hulme and Parker) ; and yet, contradictorily, justice
processes tend to stress emotional problems ( viz., that females “are mad rather
than bad”[87]). This leads to a situation in which, “while women whose behaviour is
‘inappropriate’ are subjected to a misplaced psychiatric labelling, which must be
challenged, there is also no doubt that the criminal justice system is misused as a
dumping ground for women who should be patients rather than prisoners.” [88] It
was Hulme and Parker’s singular misfortune to have fallen somewhere in the
interstices between these powerful practices: from a sincere but probable
psychiatric misdiagnosis and, consequent upon its failure as an exculpatory device
to convince an all-male jury, to have been sentenced to a coercive rather than
corrective/therapeutic regime as monsterized ‘lesbian outlaws’, in Jenni Millbanks’
evocative phrase.[89]
As far back as the Leopold-Loeb arraignment of 1924 much debate raged around
the question of degrees of mental responsibility/irresponsibility short of legal sanity
and, in their case, a dissociation between intellectual and emotional processes
common to both youths led alienists to declare that both suffered from Dementia
Praecox.[90] The ‘Joint Medical Report’(of defence psychiatrists White, Healy,
Glueck and Hamill) stressed that Leopold and Loeb’s pathological “criminal
activities were the outgrowth of a unique coming-together of two peculiarly
maladjusted adolescents, each of whom brought into the relationship a longstanding background of abnormal mental life” which resulted in an abnormal mixing
of fantasy with real life.[91] How unsurprising ,then, that their defence attorney
Clarence Darrow described the murder of Robert Franks as “the scheme of
disease”, the “scheme of infancy”, “the scheme of fools” and “the scheme of
irresponsibility from the time it was conceived until the last act in the tragedy.”[92]
It would be difficult not to see the direct applicability of this statement to the HulmeParker event, especially Darrow’s assessment that “Their coming together was the
means of their undoing” and that this was “the act of two” – that “It was the act of
their planning, their conniving, their believing in each other; their thinking
themselves supermen.”[93] Central to the Leopold-Loeb defence was the thesis
that neither individual could or would have committed such an atrocious actus reus
alone but that it was uniquely generated and powered by their “weird, almost
impossible...strange and fatal relationship.”[94]
The critical question which Heavenly Creatures lobs back at the trial is whether
Hulme and Parker were portrayed – miscast actually – as ‘she-devils’, deadly
examples “of all that is rotten in the female sex”[95]. If so, as I think they were, the
New Zealand legal system failed them, Gothicizing them as vicious (if not
depraved) sane killers who had bathed together, gone to bed together and made
no effort to see HM Queen Elizabeth II on the first ever visit of a reigning monarch
to the Antipodes. Indeed a Crown medical witness, Dr K.R. Stallworthy, stated to
the court that he had no doubt that there had been a homosexual relationship
between Juliet and Pauline (which, against his intentions, was viewed by the wider
culture as criminogenic, despite a vehement denial of such a union from both
women in after years), thereby paving the way for Crown Prosecutor Brown to
make his ‘celebrated’ declaration in his summing-up: “These girls are not incurably
insane. They are incurably bad.”[96] Technically Alan Brown was probably wrong in
his second assertion: Hulme and Parker have certainly reformed and lead normal
moral lives now, and the defence doubtless erred in proffering a full insanity claim.
Medlicott (who spear-headed that diagnosis) was much closer to the mark when, in
1961, he noted how the ‘abnormality’ of Juliet and Pauline “was proportional to the
time spent in one another’s company” and that they clearly “acted as resonators
one on the other”. It was Medlicott’s error to concoct an ‘explanation’ of their
deviance which coupled their obvious emotional immaturity and the problematic
claim of homosexual inclinations (whether as a sincere diagnosis or as a tactic
preying on the almost certain abhorrence of a jury of husbands, fathers and uncles
towards, in this case, female sexual divergence), arguing that this unhappy cocktail
“led to increasing arrogance, self-inflation or omnipotence [and] contempt for
others…”[97] For, apart from Medlicott’s linkage between sexual inversion and
criminality, he was accurate in observing that the girls “showed great exaltation
which continued after the murders” and during their trial.[98] Doubtless this
behaviour complicated any temporary insanity defence (if such was seriously
entertained). Dr Medlicott insisted that in this case there was “no real question of
inducer and inducee”; that their psychoses were identical and “It was a folie
simultanee – a disturbance occurring in predisposed associated individuals” but
which fell short of schizophrenia. [99] Checking years later with Bernard Glueck
about Leopold and Loeb, Medlicott saw the parallel with 1954 when Glueck said he
had no doubt that , intellectually, the young men understood the distinction
between right and wrong but Glueck’s colleague in 1924, Dr William Alanson
White, “felt that there was no adequate feeling attitude towards the wrongfulness of
the act.” [100] Similarly, the defence in Hulme-Parker “contended that they were
sufficiently disturbed by reason of mental disease to be unable to pass a rational
judgment on the moral nature of their act.”[101] Medlicott later asserted that the
prosecution feared a wide construal of the M’Naghten Rules and therefore spent
“relatively little time” in cross-examination on such tricky points (which makes one
assume that they were aware of Porter and Stapleton and did not want to risk
opening up a temporary insanity ‘ escape route’ for the teen murderesses) ;
instead the prosecutors tried to represent the girls as quite normal criminals driven
by an adequate motive. (The miracle is that they succeeded in marketing such an
obviously improbable hypothesis, surely a testament to the fervour of Cold War
‘moral panics’ and of New Zealanders’ seemingly innate conservatism, in the 1950s
at least.) In his summing-up Adams J acknowledged that jurors might think that
the girls appeared to be suffering “from some degree of mental disorder” and added
the quite unexceptionable caution: “The question of course remains whether this
abnormality of mind does or does not amount to disease of the mind” [102].
According to Medlicott, the judge later delivered a stupefying non-sequitur when he
stated that “The law does not relieve persons of criminal responsibility merely
because they are insane”.[103] It is clear that the matters raised in this paper were
inadequately ventilated in Adams J’s courtroom if he was allowed to make this
extraordinary statement unchallenged (alone it should have been the basis for
appeal to the NZ Court of Criminal Appeal, given the case law from the 1930s and
1950s to hand in 1954 and also given the exculpatory parameters of s43(2) of the
Crimes Act 1908 under which Adams J was to sentence Hulme and Parker).
Medlicott always insisted that Juliet and Pauline were self-judging individuals
suffering from progressive and deepening ‘adolescent paranoia’, who acted out of
ego-inflation, arrested emotional development (embodied in lesbian affect) and
morbid illusions of omnipotence which amounted to a form of full-blown
systematized delusional insanity. He might, for all that, have medicalized them in a
more reductive manner than this over-driven Freudian analysis – as biologicallydetermined hysterics, whose internal organs drove them on to commit their
appalling act of deviance. Margaret Anne Doody has drawn attention to a
gynaecological text in the Hippocratic corpus, ‘About Virgins’, which (in her words)
“shows that girls who have not yet conceived are thought of as dangerous
creatures” – subject to delirium, epilepsy and suicidal impulses.[104] Doody argues
that young undeflowered females were seen by the Greeks as “hysterical (from
hyster, womb), since the unfilled womb tends to run around inside the body”, and
she
quotes Xenophon (in his Oikonomikos) to the effect that they are
undomesticated (admés) savages who must be tamed by marriage. [105] Helena
Kennedy, as a practising barrister and QC, has drawn attention to a central
underlying problematic in British jurisprudence/jurisprurience: namely "Gothic
descriptions of the devilish power of women.”[106] Kennedy cites one Hargrave J.
Adams (from his book Women and Crime) asserting that, generally, “women have
less willpower than men and therefore less self-control upon emergency.”[107] Yet
the hypocritical double-standard at the heart of this discourse is revealed in the
gender-blind quality of the law regarding provocation defences. Confuting Adams’
stereotype, Kennedy argues that “Women are much less likely to respond to
provocation immediately” yet “the legal standards are built upon [male] ideas of
instant ignition and a hotheaded rush to action. The spark has to be immediate, an
assault which requires self-protection or a blow, a curse, an insult that goes to the
core of a man’s being.”[108] Kennedy notes that judges try to conceive of parallel
insults against women which may function analogously and I would suggest that
an instance of this would be the Slander of Women Act 1891 (UK) which was
upheld in the defamation action of Kerr v Kennedy [1942] 1 K.B. 409, which is
authority for the legal principle that an allegation that a woman is a ‘lesbian’ is an
imputation of unchastity under the aforenamed Act (or, in another reading, this case
allowed that a false allegation of lesbianism is a valid ground for the tort of
actionable slander).
In 1991 A.E.J. Fitchett insisted, correctly, that Dr Medlicott’s case was rejected but
not refuted by the prosecution and argued that the jury, in making a determination
of criminal guilt, did not necessarily believe the accused to be sane:
The jury did decide that, if they were insane, their state of mind at the time of the murder did
not fit the quite narrow requirements of the M’Naghten Rules.[109]
This cuts to the heart of the matter, given the fact that in this trial the Rules and the
Crimes Act 1908 were clearly not given the liberal construal which was possible
after Porter and Stapleton and, in particular, given the expansive spirit of s 5(j) of
the Acts Interpretation Act 1924. This seems an example of the hegemony of
Gothicized law in action, and if not of direct prosecutorial misconduct then of a
worriesome compound of judicial hubris/ignorance/fallibility/misfeasance. In either
event, it constituted a clear failure to transcend the moral excitability of the times
and to have striven to appraise this dreadful outbreak of juvenile violence in a calm
and rational spirit based on a full respect for stare decisis doctrine, even if the price
of adhesion to that praxis can lock judges out of the wide ambit of discretion which
they would prefer to deploy. That said, in fairness to Adams J, the defence line of
Medlicott did nothing useful to rebut the sexual paranoia about putative same-sex
unions which was rampant at this time in the common-law world (and certainly in
New Zealand). As I have already implied, a critical weakness in Medlicott’s
diagnosis (from our post-modern perspective) was his bald assertion that
“homosexuality and paranoia are very frequently related” (which was certainly the
perception among the body politic but probably not a helpful clinical diagnosis of
Hulme and Parker, serving only to alienate them further from the already quite
remote prospect of public sympathy ) – a thesis which Glamuzina and Laurie claim
was “explicitly dismissed” by the prosecution medical witnesses. [110] However
Medlicott’s analysis of their “exalted paranoia”[111] and his judgement that in June
1954 both girls “were grossly insane” [112] seems broadly sound. Yet we cannot
escape the full force of Leslie Moran’s conception of “the almost complete
homosexualisation/pathologisation of justice” in such cases, based on the legal
“code of homosexuality as pathology”[113] to which Medlicott certainly adhered and
which – doubtless innocently and unwiittingly – fed another tendency identified by
Moran: “the ethical impoverishment of law’s violence”[114] as a retributive code.
An instance of this oppressive discourse from the period was to be found in the
U.S. Navy’s revised indoctrination lectures for women which declared (1953) that
“deterioration and destruction of character and integrity are the end results of
homosexuality. Even such gross crimes as robbery, suicide, and murder grow out
of homosexuality.”[115] And in May 1954 a future New Zealand Prime Minister,
David Lange, was to experience, as an eleven-year-old boy, the trauma of a false
allegation of indecent assault during a gynaecological examination being visited on
his doctor father (Roy Lange). Dr Lange was held in custody for two days and tried
by jury and acquitted, but the case testifies to the high-strung tenor of the times (in
David Lange’s words, “It took place in a day and age when things were very much
different from what they are now” [115a]).
An additional weakness of the Medlicott approach was a crude reference to the
youngest Parker child being Mongoloid (whom Medlicott labelled a “Mongolian [sic]
imbecile”! ), and to a ‘blue-baby’ which did not live long, as a background which
“raises a query as to the stock from which [Pauline] came.”[116] And even before
this rampantly insensitive special pleading was delivered, Terence Gresson had
begun the defence case alleging that the girls’ “homosexuality was a symptom of
their disease of the mind.” [117] Gresson (representing Juliet Hulme) made this
statement before he called Medlicott (whom he had commissioned to analyze
Juliet) to give evidence, and this strained argument was further emphasized by Dr
Bennett when he baldly parroted Medlicott’s line, stating that Juliet and Pauline
were “homosexual paranoiacs of the exalted type” (emphasis mine.), turning them
into what Robin Wood has labelled as ‘Murderous Gays’.[118] It was little wonder,
then, that Dr M. Bevan-Brown (a prominent Christchurch psychiatrist) later
recorded his dismay at the manner in which the accused were objectified by their
defence counsel – that they “who were the central figures seemed to be treated as
robots or dummies” in the process.[119] Glamuzina and Laurie have referred to
“the sickness model of homosexuality”(which they emphasize was rejected by the
prosecution medical witnesses [120]) and contend that this approach of
‘monsterization’/’eccentricification’ ( an expression of brutal Freudian moralism)
“dismisses any real possibility of placing the case within a context of family and
circumstance”[121], such as in Bevan-Brown’s verdict that “inadequate nurture”
was the primary cause of the tragedy (‘Adolescent Murder’[1955] in his book Mental
Health and Personality [Christchurch: Dunford, 1961]). In this perspective this
‘family murder’ was sourced in the dynamics of two interlocked families living under
the strain of conflicted relationships and each with their respective secrets.
Glamuzina and Laurie insist that “the killing was a consequence of long-standing
domestic conflicts and complex circumstances within both families and that these
originated largely in the prescriptions of the times.” [122] These commentators
suggest that the Hulme-Parker case “created a public association of lesbianism
and murder” in New Zealand and express shock that Medlicottian “associations of
lesbianism with murder and insanity seemed to have been accepted
unquestioningly” by the Hulmes and Parkers themselves.[123] Glamuzina and
Laurie point out that the family murder paradigm is, contra Medlicott, the one critical
feature which distinguishes Hulme-Parker from Leopold-Loeb:
In fact, there were significant differences between the two cases. First, Leopold and Loeb
came from similar social, economic and cultural backgrounds and had known each other
since they were young children. They were both Jewish, and their victim was chosen at
random from a group of Jewish children. There was no immediate or overt threat to the
continuation of their relationship at the time they decided to kill someone. Juliet and Pauline
were from different social and economic backgrounds and their victim was a close family
member, killed for specific reasons. [124]
The Gothic Castle of Law and “Legal Lust” : A Rush to
Judgment?
Many modern scholars, anxious to decenter law, are exploring judicial anxiety over
homosexuality in the context of law deploying an unthinkable ‘homogenital’ body in a
dominant discourse which has institutionalized heterosexuality as the norm (heteronormativity). How truly, for instance, Peter J. Hutchings writes of Blackstone’s “Gothic
castle of law” – that the criminal law is haunted and inflected by the spiritual (JudeoChristian theology) such that this spectral element of religious legality has become the real
subject of secular Western law via the codification of a historically contingent morality in
canon law. [125] This concept has been described as “the predominantly scriptural
tradition of modern law”, one which has striven to deny its own “unwritten history of legal
affections and repressions as they motivate both judgment and law” – viz., the
“fantasmatic structure of the normative enterprise of legality”, in the pithy phrasing of Peter
Goodrich and David Gray Carlson.[126] In this paradigm the human body stands before
the law as guilty (i.e. as the subject and object of legal lust). In Mieke Bal’s phrase, the
body is “the site of lust and the trap of legal lust.”[127]] The Hulme-Parker case is
doubtless an exemplum of Pierre Legendre’s notion (as Anton Schutz has it) of “legal
history, conceived as a history of reference to the unconscious”[128] , and of his scholarly
‘excavations’ of “a legal theatre of legal cruelty” which exposes “the unexpected, but
incomparably intense, psychoanalytic weight or undercurrent from which legal matters
cannot be detached or abstracted.”[129 ] From the privileged standpoint of almost fifty
years on from the trial it becomes possible to make several observations about the
conduct of that event. As the homicide was not technically a ‘sex-crime’, the Crown
Prosecutor’s use (read ‘abuse’) of the girls’ presumed lesbianism as a prejudicial weapon
against Hulme and Parker (= as a potent emblem of moral evil) was, from an ideal concept
of due legal process, a most unfortunate tactic and one which usefully played upon the
then very recent Hutt Valley Elbe Milk Bar Gang sex scandal, in which about 59
adolescents (‘milkbar cowboys’) in the stultifying new town of Lower Hutt had been caught
engaging in sexual misconduct, at various times, in darkened movie theatres and on the
banks of the Hutt River. This shocking outbreak of adolescent hormones led to the New
Zealand Parliament establishing, on 20 July 1954, a Special Committee on Moral
Delinquency in Children and Adolescents (The Mazengarb Committee, so named because
it was chaired by Dr O.C. Mazengarb, QC of Wellington), a matter of days after the
committal proceedings for Hulme and Parker. ( It was , incidentally, an election year.)
The Committee commenced its evidencial hearings on 3 August and suspended them for
the period covering the Hulme-Parker trial (the Committee took the overnight ferry to
attend two days of the trial in Christchurch), reconvening on 30 August (the Monday on
which Adams J should have put the jury out ) ,by which time the fate of indefinite
imprisonment for Juliet and Pauline was published nationally and internationally.[130]
Michael Stace (whose father ,Nigel, served on the Committee) undertook a doctoral study
of this matter and pointed out that “The Report was concerned with adolescent sexual
morality”[131] and concluded his thesis noting that “the criminal legal form is presently
more intertwined with social management and the pragmatic accomplishment of social
order than with the reaffirmation of fundamental values” and that such management is
often effected “through the morality attaching to sexuality.”[132]
The Hulme-Parker trial occurred in this regrettable atmosphere of intense moral fervour
and Glyn Strange argues that it was this case which pushed Crown Prosecutor Alan
Brown (1897-1961) on to severe mental illness which “completely changed his personality
and ruined his career.”[133] A cheerful, positive man, Alan Brown recalls the fictional
Indian barrister Sir Darius Xerxes Cama , described by Salman Rushdie as “a staunch
Cantabrigian rationalist and an eminent barrister-at-law” who had dedicated his life “to
what he called, in an intentionally oxymoronic flash of wit, ‘the miracle of reason’.” [134]
Alas, the miracle of reason proved elusive and difficult to master in this case, and HulmeParker came up in Alan Brown’s first year as Crown Prosecutor, so that this man of
Apollonian reason was faced with the blatantly Dionysian girls. Glyn Strange has noted
that Brown “found it difficult to distance himself “ from this spectacular and stressful trial –
as the father of two daughters “he could scarcely believe what he was hearing”:
He was so shocked that tears were rolling down his face during cross-examination….Convinced that the two
girls were evil, he strove to have them locked away for as long as possible.[ 135]
Strange adds that Brown palpably suffered from the accumulated stress of past overwork
and that “an inherent instability may have contributed, but there is little doubt that it was
this case that precipitated his illness”, for after the trial, “Brown’s mental health
collapsed.”[136]
As tragic as all this undoubtedly was, it also underlines just how provisional and fallible the
administration of justice can become. Had Adams J not so clearly backed up the Crown
Prosecutor the defence might have been emboldened to have presented a more nuanced
insanity defence (given that the obligation upon the accused in this is only to a standard
of ‘on the balance of probabilities’) and with the Australian case-law previously cited. Offsetting the advantage to the accused of this low threshold standard, however, in cases
raising specialized defences such as insanity the Crown are granted the privilege of
speaking last to the jury (e.g. in being able to call specialist medical evidence in final
rebuttal) which places the defence at a distinct disadvantage not typical in many standard
murder trials. In addition the defence were doubtless unlucky to have struck F.B. Adams,
a patriarchal puritan, rather chauvinist and a man very much stuck in his time, almost
certainly reacting with renewed repugnance to the defence’s insistence on the girls’ sexual
‘deviance’. In addition, the folie simultanee concept was almost certainly viewed with deep
suspicion – being a relatively new concept of insanity in this neo-colonialist jurisdiction, it
would have seemed like new-fangled psycho-babble, especially when the defendants
appeared outwardly ‘normal’ in the courtroom. Finally, Adams J’s decision to hold the
conclusion of the trial on Saturday August 28 would have even been rather unusual in
1954, calling into question his case-management and prompting the image of pushing
jurors to ‘rush to judgment’ on the same day as a major provincial rugby fixture in their
city. (The jurors sat for 2 hours 13 minutes and a number of them plus some counsel were
seen at Lancaster Park to watch this game.) Such an apparently pressured verdict would
certainly lead today’s Court of Appeal to over-turn the verdict and order a re-trial. [137]
*
*
*
*
Conclusion: “Tragic if not Ridiculous”
Nigel Andrews insightfully described Heavenly Creatures as “about panic in New
Zealand’s answer to Metroland” generating the death-blow which was really “aimed at
grown-up totems and taboos.”[138] In the words of Gurr and Cox, “the crime of the
Murdering Girls struck Christchurch with cataclysmic force”.[139] Gurr and Cox’s rhetoric
is revealing of then-current attitudes, being produced three years after the trial. Their
chapter on the case is redolent with sneaking prejudice with regard to factors presumed
relevant to the girls’ quasi-madness: it is noted that the Rieper-Parker menage produced a
blue baby with a heart defect and “a mongoloid, a flat-faced, drooling imbecile, who had
been placed in an institution”, and Juliet is described as having been “bomb-shocked in
the blitz at the age of two.”[140] Other film critics have explored how Heavenly Creatures
partakes to some extent in purveying the girls’ dizzying madness: Chris Watson has
drawn attention to the ‘hysterisation’ of Juliet and Pauline’s behaviour in the film, noting
Jackson’s recurrent use of “a swirling camera technique to suggest the transports of
hysteria” which they undergo, and counterpointed “by incorporating romantic opera
music.”[141] Watson shares Nicholas Reid’s belief that Heavenly Creatures pruriently
constructs the girls as lesbians, arguing that the film concentrates “on the characters’
sexual behaviour as catalyst for, and cause of the murder”[142], possibly including Hilda
Hulme’s liaison with Bill Perry as a criminogenic factor.
Jackson has been criticized for his use of mock-Gothic/serio-comic fantasy episodes (e.g.
Diello executing Dr Bennett and the Anglican Vicar when visiting the Cashmere
Sanitorium, and the scene in which Pauline’s parents die very mock-dramatically at their
dining table) and for the richly-fantastic clay-mation Borovnian scenes which punctuate the
film at several critical junctures. This criticism seems to me seriously misguided if we can
view Heavenly Creatures as a broadly naturalistic exercise in exploring the Gothic
imagination, so that the latter narrative pericopes stress Juliet and Pauline’s Fourth World
envisionings, and the other sequences serve also as filmic alienation devices deployed to
emphasize to cinemagoers just how intense and febrile their fantasies were. Such viewer
alienation-awareness commenced towards the end of the Easter 1953 Port Levy episode
after Juliet learned that her parents were about to abandon her again for four months.
Juliet runs off hysterically up a nearby hill and when Pauline locates her crying friend there
is lightning followed by bursts of bright sunshine and then a Monty Pythonesque cloudparting (cf. Monty Python and the Quest for the Holy Grail [1975]) which is succeeded by
the wholesale transformation of the quotidian Banks Peninsula landscape into a
humanized Northern Hemisphere world of English lawns, garden statuary, formal flower
beds, a grazing unicorn and several fantastically large Monarch butterflies arching and
swooping around them. This visually impossible moment – which unfolds as the girls cling
together in their dowdy print-smocks and 50s cardies – is Peter Jackson’s very potent
means of informing and instructing viewers that Pauline and Juliet are henceforth in the
grip of a folie à deux/simultanee mindset. After this clever sequence, Jackson piles on an
impressive array of images which amount to an adroit handling of their shared imaginal
world (e.g. the dissolve between Juliet and Pauline standing on the Ilam balcony and their
digital transformation into plasticine figures holding Borovnian goblets, or in the visual
linkage made between the ring and the fantasy execution of John the boarder on the
Borovnian drawbridge and that of the pink stone and the real and very untidy execution of
Honora in Victoria Park on the Cashmere Hills). Another vivid instance of the slippage (or
loose boundaries) between a heightened and darkly romantic imagination and reality
emerges when Bill Perry arrives at Ilam, via the clever juxtaposition (through quick
dissolves) of Juliet’s fantasy of a terminally ill man on an ambulance stretcher with the
boring ordinariness of the hearty man’s real arrival in a stylish car. Expressly Gothic
tropes are employed, one might wickedly suggest in an ironic counterpoint to the gothic
nature of the impending arrest and trial process (e.g. the night of storm and thunder when
Dr Hulme visits Mrs Rieper and the flash of lightning which plays across Henry Hulme’s
face as he nervously adverts to Pauline’s “unwholesome attachment” to his daughter).
Jackson proffers a deeply sensitive portrayal of the girls’ joint trauma, their excitability and
despair, as in the scenes when they run at high pitch from a screening of The Third Man
and are later shown bathing, tearfully discussing how Pauline can join Juliet in South
Africa, or when Jackson cross-cuts between Pauline’s monochrome dream of ecstatically
running onto an ocean liner with Juliet to join the Hulmes and Juliet’s powerful singing of
Puccini’s ‘Sono Andati’(La Bohème) on the balcony at Ilam in images tinted with a rich red
hue (powerfully suggestive both of their attachment and of the blood about to be spilled to
secure it). Both of these linked events occur on the night of 21 June 1954 , their last night
of innocence and freedom before they succumbed, with infinitely tragic results, to acting
on their joint compulsion psychosis the next day. As Colin Wilson has pointed out, a study
of most crimes
gives the impression that the ‘values’ that led the murderer to make his act of choice were based upon absurd
miscalculation. The murderer is usually absurdly confused about the pressures of life in society, about the
meaning of his own life and in general. He is probably more confused than most of us; but it should be
recognized that he only suffers from a more acute form of the bewilderment that we all feel in the face of
existence.[143]
It should be obvious from the foregoing that Heavenly Creatures is a bold and brave
cinematic incursion into the realms of existential psychology (with its finessed probing into
the pathos of life for Juliet Hulme and Pauline Parker from 1952-54) and a robust
interrogation of the meta-narratives of Western parenthood and filiation as well as a
superb cinematic evocation of Wilson’s profound point that the M’Naghten Rules take
insufficient cognisance of human mental complexity – that if we broaden our perceptions
to admit our “total ignorance” of human nature, the line blurs so that this ignorance “does
not constitute insanity; but insanity is only an extreme and distorted form of this
ignorance.”[144] Jackson depicts Hulme and Parker as daughters of wrath whose orgè ,
or loss of self-command, led to the painful and joint lesson that parenthood casts an
irredeemable spell upon its offspring. But, beyond his film’s extraordinarily empathic
presentation of Pauline Parker and Juliet Hulme’s shared existential dilemma in 1954, it
was Jackson’s genius to have elided the legal process from his moving portrait, thereby
maintaining our focus upon the girls’ (and Mrs Parker’s) tragic plight, which serves
,radically, to query the conduct, field assumptions and outcome of the legal process which
they underwent. But, perhaps most usefully, Heavenly Creatures highlights, and implicitly
indicts, the unsettling counter-violence of that legal system and what Peter Goodrich has
termed “the indicative silence of the legal text as to its role as discourse, as intervention
into the order of discourse and the hierarchy of social meanings”[145] which it upholds. In
Dr Medlicott’s all-too-adequate words, “Comments [about the trial] from throughout New
Zealand and overseas almost unanimously found the normalising of two very abnormal
girls tragic if not ridiculous.” [146]
ENDNOTES:
1. Cf. Maurice Urstein, Leopold and Loeb: A Psychiatric-Psychological Study (Chicago: Chicago
Medical Book Co., 1924) and Maureen McKernan, The Amazing Crime and Trial of Leopold
and Loeb (New York: New American Library/Signet Books, 1957).
2. Tom Gurr & H.H. Cox, Famous Australasian Crimes (London: Frederick Muller Ltd., 1957):
Ch.14 (‘Death in a Cathedral City’),pp.148-166; and Gurr & Cox, Obsession (London:
Frederick Muller Ltd., 1958).
3. Earlier attempts to explore this shocking cause celèbre included Bruce Mason’s unpublished
play, The Verdict , and Frank Sargeson’s The Cradle and the Egg, only the latter of which has
been published.
4. Robertson J. (ed.), Adams on Criminal Law (2nd Student Ed. Wellington, NZ: Brooker’s Ltd.
,1998), p.34.
5. Havelock Ellis, The Criminal (London: Scott; 3rd revised ed. 1901), p.2
6. Cf. J.M. Kaye, ‘The Early History of Murder and Manslaughter, Part I’, The Law Quarterly
Review, Vol.83, No.331 (July 1967), 365-395 at 366. This concept may be traced to the Corpus
Juris Germanica, which used the term Morth, connoting stealthy, secret acts of killing.
7. Francis Bowes Sayre, ‘Mens Rea’, Harvard Law Review, Vol.XLV, No.6 (April 1932), 9741026 at 995.
8. Adams on Criminal Law, op.cit., p.44.
9. Cf. Gerald Orchard, ‘Recklessness in New Zealand’ [1987] NZLJ, 378.
10. R.W. Medlicott, ‘The Parker-Hulme, Leopold-Loeb Cases and the Concept of Omnipotence’,
New Zealand Law Journal, Vol.37:22 (5 December 1961), 345-348 at 345. Dr Medlicott added
“I was satisfied that in the period leading to the crime and immediately following it they were
disturbed in mood, activity and thought patterns to a degree consistent only with the diagnosis
of psychosis. Their psychoses were identical and the term folie-a-deux applicable”. Medlicott
wrote of the duo in terms of “persistent, organised delusions, the preservation of clear and
orderly thinking, and absence of hallucinations” (ibid., 346). Cf. Thomas S. Satz, Psychiatric
Justice (New York: Macmillan, 1965) and Jay Kat, Joseph Goldstein & Alan M. Dershowitz,
Psychoanalysis, Psychiatry and the Law (New York: The Free Press, 1967).
11.Sayre, ‘Mens Rea’, 998-99 & 1000.
12.C.S. Kenny, Outlines of Criminal Law ( Cambridge & London: CUP; 12th ed. 1926), pp.4243.
13. Sayre, 1026.
14. Ibid.
15. A.P. Simester & Warren J Brookbanks, Principles of Criminal Law (Wellington,
NZ:Brooker’s Ltd., 1998), pp.98-99. Brookbanks is also the author of Psychiatry and the
Law: Clinical and Legal Issues (Wellington: Brooker’s 1996).
16. Ibid., p.119.
17. Glanville Williams; cited ibid., p.55.
18. L.J. Moran, ‘Review Article: Justice and its Vicissitudes’, The Modern Law Review, Vol.54,
No.1 (January 1991), 146-161 at 159.
19. Leslie J. Moran, ‘Violence and the Law: The Case of Sado-Masochism’, Social & Legal
Studies, Vol.4:2 (June 1995), 225-251 at 234.
20. Ibid.
21. Ibid., 234 & 235.
22. Ibid., 241.
23. Cf. Plotnitsky, ‘ But It Is Above All Not True”: Derrida, Relativity and the “Science
Wars”’(1997) at http://jefferson.village.virginia.edu/pmc/text-only/issue.197/plotnitsky.197
(27pp.) and Barker, ‘Nietzsche/Derrida, Blanchot/Beckett: Fragmentary Progressions of the
Unnamable’ (1995) at http://jefferson.village.virginia.edu/pmc/textonly/issue.995/barker.995 (22 pp.).
24. Alison Young, Imagining Crime: Textual Outlaws and Criminal Conversations (London,
Thousand Oaks & New Delhi: Sage Publications, 1996), p.1.
25. Ibid., p.3.
26. Mary Wollstonecraft, A Vindication of the Rights of Men (1790; rpt. Koln: Konemann
Verlagsgesellschaft mbH, 1998), p.37.
27. Young, Imagining Crime, op. cit., p.9.
28. Marilyn French, Shakespeare’s Division of Experience (New York: Summit Books, 1981;
rpt. London: Jonathan Cape, 1982). French, discussing Iago, notes the alliance between the
female as a sexual person and being “a dissembler, a deceiver, because of sexuality” (p.212)
and adds that the Iagian vision is of sexuality “seen as bestial, vicious and chaotic” (p.215).
References to lesbianism in New Zealand were rare: before the Hulme-Parker case the wellpublicized precursor involved adult Sapphism—the murder trials of Eric Mareo (whose
wife Thelma enjoyed a liaison before her death in April 1935 with the beauteous dancer
Freda Stark who allegedly had not heard of the adjective ‘lesbian’ until Mareo used it in his
first trial). See Charles Ferrall and Rebecca Ellis, The Trials of Eric Mareo (Wellington:
Victoria University Press, 2002 ).
29. Young, p.16.
30. Ibid., pp.18-19.
31. Ibid., p.27.
32. Denotatively this related to witches causing the death of livestock: A Detection of
Damnable Driftes [1579]; cited by Kenneth Muir, in Muir (ed.), The Arden Macbeth
(London: Methuen, 1951; rpt. 1959), p.11.
33. Martin A. Kayman, ‘Lawful Writing: Common Law, Statute and the Properties of
Literature’, New Literary History, Vol.27:4 (Autumn 1996), 761-783 at 762. Kayman cited
Bentham (1748-1832) from his A Fragment on Government (1790) and insisted on the
naivete of the Anglo-American legal model of language, so well expressed by legal
positivists such as John Austin, H.L.A. Hart and Hans Kelsen. See Dennis Patterson, Law
and Truth (New York & Oxford: Oxford UP, 1996), Chapter 8 (Postmodern Jurisprudence),
pp.151-179.
34. Young, Imagining Crime, op. cit., p.28.
35. Ibid., p.34.
36. Ibid., pp.34 & 35.
37. Ibid., p.36.
38. Ibid., p.37.
39. Ibid., p.41. Kathy Lette (partner of Geoffrey Robertson, QC) has advised that Pre-Menstrual
Tension may be a legitimate ground of defence in Britain’s criminological praxis—surely a
classic instance of biological premises running amok amidst the textual fabric of criminal
law.
40. Young., p.49.
41. Peter Goodrich and David Gray Carlson (editors), ‘Introduction’, Law and the Postmodern
Mind: Essays on Psychoanalysis and Jurisprudence (Ann Arbor: The University of
Michigan Press, 1998), pp.2 & 3.
42. Ibid., p.5.
43. Peter Goodrich, Law in the Courts of Love: Literature and Other Minor Jurisprudences
(London: Routledge, 1996), p.113. [Chapter 5: Of law and forgetting—Literature, ethics
and legal judgment.]
44. Ibid., p. 114.
45. Julie Glamuzina and Alison J. Laurie, Parker & Hulme: A Lesbian View (Auckland: New
Women’s Press, 1991), p. 184. Clearly this mythic conjunction received a prior kick-start
with the Mareo trial (see note 28) and the lesbian affair between Thelma Mareo (nee Trot)
and Freda Stark.
46. Cf. Gerald Orchard, Ch.14 (‘Culpable Homicide’) in Principles of Criminal Law, op.
cit.,pp.469-471.
47. Ibid. ,p.470. Professor Orchard cites the New Zealand case of R v Fryer [1981] 1 NZLR
748, where an ‘emotional immaturity’/volatility defence was rejected ,and the Privy Council
appeal case of Luc Thiet Thuan v R [1997] AC 131, [1996] 2 All ER 1033 (PC), in which
Their Lordships ruled that brain damage causing “episodic dyscontrol” did not qualify in
supporting a finding of manslaughter by provocation.
48. J.H. Baker, An Introduction to English Legal History (London: Butterworths, 1971),pp.274
& 273.
49. Julie Glamuzina & Alison J. Laurie, Parker & Hulme: A Lesbian View (Auckland: New
Women’s Press, 1991), p.183.
50. Simester & Brookbanks, Principles of Criminal Law, op. cit., p.267.
51. Ibid.
52. Sigmund Freud died in London in August 1939, immediately before unprecedented id
forces exploded in the Second World War.
53. Principles of Criminal Law, pp.266 & 267.
54. C.E. Beeby, The Biography of an Idea: Beeby on Education (Wellington: NZ Council for
Educational Research, 1992), p.65.[Educational Research Series No.69]
54. Ibid., p.289. Simester and Brookbanks agree that a succession of eighteenth and nineteenthcentury cases “appeared to harden the notion that only those who were completely bereft of
reason were entitled to the defence of insanity”, citing R v Ferrers (1760) 19 St Tr 885; R v
Hadfield (1800) 27 St Tr 1281; R v Bellingham Coll Lun 636; R v Oxford (1840) 4 St Tr
(NS) 498.
55. Ibid., p.268.
56. Ibid., pp.268 & 288.
57. Ibid., p.288.
58. Daniel M’Naghten’s Case (26 May, 19 June 1843), 8 ER 718 [1843-60] at 718.
59. Ibid., 719 & 722.
60. Ibid., 720. Cf. Robert Goff, ‘The Mental Element in the Crime of Murder’, The Law
Quarterly Review, Vol. 104 (January 1988), 30-59.
61. Peter Goodrich, Reading the Law: A Critical Introduction to Legal Method and Techniques
(Oxford: Basil Blackwell, 1986), p.76.
62. Ibid., pp.76 & 73.
63. Adams J; cited by Glamuzina and Laurie, Parker & Hulme, op. cit., p.97.
64. Glamuzina & Laurie, ibid., pp.96-97.
65. Turner J was echoing the character of Polonius in The Tragedy of Hamlet, Prince of Denmark
:“Though this be madness, yet there’s method in’t” (2.2.206-7). I have in mind Hamlet’s boast to
Guildenstern: “I am but mad north-north-west; when the wind is southerly, I know a hawk from a
handsaw”( Hamlet ,2.2.382-83).
66. The Crimes Act 1908, The Public Acts of New Zealand, Vol.II [1908-31] (Wellington:
Government Printer 1932), p.195.
67. A.W. Brown (Senior Crown Counsel), The Press, 24 August 1954 (cited in Parker &
Hulme: A Lesbian View, p.84). A recent edition of Adams on Criminal Law acknowledges
the validity of Dixon J’s Porter ruling—(ed.) Hon. J.B. Robertson, Adams on Criminal Law
2nd Student Edition (Wellington: Brooker’s, 1998), p.73. Despite some demurrers, this
reasoning (as per R v Macmillan [1966]) has been upheld in the 1990s by New Zealand
courts (ibid., pp.74-75). In addition, Simester and Brookbanks assert that Dixon J’s jury
instructions in Porter “has come to be regarded as a classic direction” in New Zealand
(Principles of Criminal Law, op.cit.,p.285).
68. Gresson; cited by Neil Clarkson in ‘Jury rejected insanity submissions’, The Press, 17 June
1989, p.23.
69. Brown; cited in ‘Discovery of Body Described’ and ‘Court Told About Families’, The
Christchurch Star-Sun, 23 August 1954, p.1.
70. Brown; cited by Neil Clarkson, ‘Separation threat trigger for a brick attack’, The Press, 17
June 1989, p.23.
71. All references to Pauline’s diaries and her and Juliet’s statements were sourced in Neil
Clarkson, ibid. and R.W. Medlicott, ‘The Parker-Hulme, Leopold-Loeb Cases and the
Concept of Omnipotence’, New Zealand Law Journal Vol.37, op. cit. Diary transcripts may
be viewed online at a FAQ database site created in 1995 by Dr John D. Porter:
http://www.geocities.com/hollywood/studio/2194/faq2/Section_7/7.4.3.html. or at
http://members.tripod.com/hc_faq/7.4.3.htm .
72. Cf. Mary Hadley, ‘Social Injustices in Anne Perry’s Victorian England’, clues: a journal of
detection, Vol.20:2 (Fall/Winter 1999), 1-12.
73. Anne Perry; cited by Sarah Gristwood, ‘Haunted by my Horrible Past’, The Australian
Women’s Weekly (March 1995), p.8.
74. Nicholas Reid, ‘VIEWING: Heavenly Jackson’, North & South (October 1994), p.152.
75. Jackson cited by Glenn Inwood, ‘Film-maker aims to dispel myths’, Christchurch Star, 12
October 1994, p.2. The novelist Fay Weldon has given a disputed view of Christchurch
Girls’ High School in the 1940s in her memoir Auto Da Fay (London: Flamingo, 2002 ),
describing it as “a deeply serious and miserable place…haunted by the murder that was yet
to come”.
76. . McClelland; cited by Neil Clarkson, ‘Murder Without Remorse’, The Press Weekend, 5
October 1991, p.1.
77. McClelland; cited by Jeremy Flint, ‘Mystery writer’s past resurfaces’, Christchurch Star, 10
August 1994, p.13.
78. McClelland; cited by Clarkson, op.cit.
79. Ibid.
80. Helena Kennedy, Eve Was Framed: Women and British Justice (1992; rpt. London: Vintage
Books, 1993), p.51.
81. Reported by Chris Cooke, ‘Whatever happened to Pauline Parker?’, New Zealand Women’s
Weekly, 13 January 1997, p.5.
82. Cf. Helena Kennedy’s discussion of women and the criminal law in Eve Was Framed,
op.cit., Ch.8: Man-Slaughter (pp.190-221).
83. Saxby; interview with James McNeish, February 1981; cited in The Mask of Sanity: The
Bain Murders (Auckland: David Ling Publishing, 1997), p.202.
84. Gurr and Cox, Famous Australasian Crimes (1957), op.cit., pp.155-156.
85. Medlicott, ‘The Parker-Hulme, Leopold-Loeb Cases and the Concept of Omnipotence’,
NZLJ 37:22 (1961), 345-48 at 345. Medlicott’s earlier paper, ‘Paranoia of the Exalted Type
in a Setting of Folie a Deux: A Study of Two Adolescent Homicides’ for the British Journal
of Medical Psychology 28:4 [1955], 205-223 can be found, slightly abbreviated with minor
annotations, at http://members.tripod.com/hc_faq7.8.1.htm (Dr John Porter’s
comprehensive FAQ website).
86. Kennedy, Eve Was Framed, pp.9 & 15.
87. Ibid.,pp.23 & 238.
88. Ibid., p.101.
89. Jenni Millbank, ‘It’s About This: Lesbians, Prison, Desire’, Keynote Address [Plenary
Two], “Mediating Law” Conference (University of Melbourne Law School), 30 November
2002. Dr Millbank was in fact quoting Ruthann Robson, Lesbian Outlaw: Survival Under
the Rule of Law (Ithaca, NY: Firebrand Books, 1992) . Other useful texts are Susan Calvin’s
Lesbian Origins (San Francisco: Ism Press, 1985) and Celia Kitzinger’s The Social
Construction of Lesbianism (London: Sage, 1987). See Millbank, ‘From Butch to Butcher’s
Knife: Film, Crime and Lesbian Sexuality’, The Sydney Law Review, Vol.18:4 (December
1996), 451-473. (I am indebted to Dr Millbank for providing me with a copy of this
excellent paper which contends usefully with representations of the Parker-Hulme case.)
90. Cf. McKernan,The Amazing Crime and Trial of Leopold and Loeb, op.cit., pp.60 & 103.
91. Cited in ibid., pp.107 & 121.
92. Clarence Darrow; cited ibid.,p. 185.
93. Darrow, ibid., pp.215 & 214.
94. Darrow , ibid., pp. 215 & 216. Darrow cited Nathan Leopold Jr’s letter to Loeb of 10
October 1923, in which Leopold explained his ‘system of Nietzschian [sic] philosophy’ – “In
formulating a superman he is, on account of certain superior qualities inherent in him, exempted
from the ordinary laws which govern ordinary men. He is not liable for anything he may do,
whereas others would be, except for the one crime that it is possible for him to commit – to
make a mistake”(cited ibid at p.219). Darrow produced this letter as clear evidence of an
immature and ‘diseased brain’, although the trial judge rejected the insanity defence.
95. Helena Kennedy, Eve Was Framed, op. cit., p.240.
96. Gurr & Cox, Famous Australasian Crimes, p.164.
97. Medlicott, NZLJ 37:22 (1961), 345.
98. Ibid.
99. Ibid., 346. In 2002 several New Zealand policemen spoke out on this point: retired detective
Eric McLachlan noted that the duo “were just skylarking” when he visited them at the Ilam
Homestead after the crime and another detective, Bob Bamber, added that when taken to the
central Christchurch police station for questioning they sat in his office and “ were just
casual. I was a little bit surprised. A lot of people who have committed murder worry about
what’s happened or show remorse” (cited by Yvonne Martin, ‘Hulme sorry about murder’,
The Press [Christchurch], 30 November 2002 , p.1).
100.
Ibid.
101.
Ibid.
102.
Adams J, cited by Julie Glamuzina and Alison Laurie, Listener & TV Times, 21
October 1991, p.14. (“Letters”)
103.
Adams J, cited by Medlicott, op. cit., 347. It seems extremely likely that Adams J
was deeply reluctant to follow the policy of comity in the common law by acknowledging
the reasonings in the sister jurisdiction of Australia, given that New Zealanders were even
more dedicated than their trans-Tasman cousins in the 1950s (this case occurring after the
exciting 1954 Royal Tour) in trumpeting their status as ‘Better Britons of the South’, “to the
point where 12,000 miles of distance were transcended and they became in many respects a
virtual Scotland” and full “shareholders in…Old British culture”(James Belich, Paradise
Reforged: A History of the New Zealanders from the 1880s to the Year 2000 [Honolulu:
University of Hawai’i Press, 2001], pp.11 & 345). Adams J was also likely to have
reverenced (or at least been in judicial sympathy with) the trials of Oscar Wilde (detailed in:
Frank Harris, Oscar Wilde [1918; rpt. London: Robinson Publishing, 1997], H.Montgomery
Hyde, The Trials of Oscar Wilde [London: William Hodge, 1948] and The Oscar Wilde
File, compiled by Jonathan Goodman [London: Allison & Busby/W.H. Allen, 1988]).
104.
Margaret Anne Doody, The True Story of the Novel (1996; rpt. London: Fontana
Press, 1998), p.76.
105.
Ibid.
106.
Helena Kennedy, Eve Was Framed, p.18.
107.
Hargrave Adams; cited ibid.
108.
Kennedy, ibid., p.200.
109.
A.E.J. Fitchett, ‘Parker-Hulme Murder’, “Letters”, Listener & TV Times, 25
November 1991, p.11.
110.
Glamuzina and Laurie, ‘Parker-Hulme Murder’, “Letters”, Listener & TV Times, 21
October 1991, p.14.
111.
Medlicott, NZLJ (1961), op.cit., 346.
112.
Medlicott, cited by Neil Clarkson, ‘Jury rejected insanity submissions’, The Press,
17 June 1989, p.23.
113.
Moran, ‘Justice and its Vicissitudes’, The Modern Law Review, Vol.54:1 (1991),
160 & 159.
114.
Leslie J. Moran, ‘Violence and the Law: The Case of Sado-Masochism’, Social &
Legal Studies, Vo.4 (1995), 246.
115.
Chaplain’s presentation to WAVE recruits; cited by Andrew Koppelman, ‘Why Gay
Legal History Matters’[:review article], Harvard Law Review, Vol.113, No.8 (June 2000),
2038. Koppelman asserts that “The repression of gays in the 1950s was more far-reaching
in its impact than were the anti-Communist witch-hunts of the same period”(at 2039), which
may be over-stating the case more than somewhat.
115a. D.R. Lange; quoted by Vernon Wright, David Lange Prime Minister: A Profile
(Wellington: Unwin Paperbacks/Port Nicholson Press, 1984), p.25.
116.
Medlicott, Department of Justice Transcripts, Notes of Evidence, p.43; cited in
Parker and Hulme: A Lesbian View, p.38.
117.
Gresson; reported in The Press, 25 August 1954.
118.
Glamuzina and Laurie, Parker and Hulme: A Lesbian View, p.93. Robin Wood
describes this stereotype in the context of Hitchcock’s film Rope (1948), loosely based
around the Leopold-Loeb case : Wood, Hitchcock’s Films Revisited (New York: Columbia
University Press, 1989), Ch.16 ‘The Murderous Gays: Hitchcock’s Homophobia’(pp.336357).
119.
Bevan-Brown; cited in ibid., p.98.
120.
Glamuzina and Laurie, p.123.
121.
Ibid., p.126.
122.
Ibid., p.149.
123.
Ibid., p.181.
124.
Ibid., p.129.
125.
Peter J. Hutchings, The Criminal Spectre in Law, Literature and Aesthetics:
Incriminating Subjects (London & New York: Routledge, 2000), Chapter 1.
126.
Peter Goodrich and David Gray Carlson, ‘Introduction’ to (eds.) Goodrich &
Carlson, Law and the Postmodern Mind: Essays on Psychoanalysis and Jurisprudence (Ann
Arbor, Michigan: University of Michigan Press, 1998), pp.4 & 5.
127.
Mieke Bal, ‘Legal Lust’; Keynote Address to the 10th Annual International
Conference of the Law and Literature Association of Australia (University of Technology
Sydney, Australia) on 7 July 2000. [Professor Bal is Professor of Theory of Literature and a
founding Director of the Amsterdam School for Cultural Analysis, Theory and
Interpretation (ASCA) at the University of Amsterdam.]
128.
Anton Schútz, ‘Sons of the Writ, Sons of Wrath: Pierre Legendre’s Critique of
Rational Law-Giving’; in Law and the Postmodern Mind,op.cit., p.194.
129.
Schútz, ibid., pp.198 & 202.
130.
Michael Vincent Stace, Legal Form and Moral Phenomena: A Study of Two Events
(Doctor of Jurisprudence, 1980), Graduate Programme in Law, Osgoode Hall Law School,
York University, Toronto, Ontario, p.178.
131.
Ibid., p.320.
132.
Ibid., p.v. A useful account of the context of the Kiwi sexual paranoia of the 1950s
is provided in Redmer Yska, All Shook Up: The Flash Bodgie and the Rise of the New
Zealand Teenager in the Fifties (Auckland: Penguin Books, 1993), Chapter One: ‘A New
Cold World’(pp.15-36) and Chapter Two: ‘Catching Fire’(pp.37-57).
133.
Glyn Strange, Brief Encounters: Some Uncommon Lawyers (Christchurch:
Clerestory Press, 1997), p.31.
134.
Salman Rushdie, The Ground Beneath Her Feet (1999; rpt. London: Vintage, 2000),
p.26.
135.
Strange, Brief Encounters, p.35.
136.
Ibid.
137.
For this portion of the paper I am deeply indebted to the current Crown Prosecutor
for Canterbury-Westland, Mr Brent M. Stanaway, for a thoughtful consultation on this case
(7 August 1997). I must insist, however, that the views expressed here are mine alone. I
have also benefited from a discussion with someone who had extensive dealings (in a
banking context) with Francis Boyd Adams. This person viewed Mr Justice Adams as a
patrician and an olympian Anglophile much removed from the hurly-burly of ordinary life,
believing that Adams’ remoteness and sense of his high calling to the judicial task would
have freed him from using the Ranfurly Shield rugby game as a ploy to exert pressure on
the jury. It was, more likely, evidence of Adams’ patrician disdain for mob enthusiasms and
of his zeal to prosecute efficient justice that he called the jury in before such a high-profile
event: viz., that in his view, the trial was of infinitely greater moment and that he would
have expected jurors and counsel to have shared this lofty dedication. Adams J’s apparent
ignorance of important Australian case-law in preference for R v Windle [1952] would seem
to testify to his ardent Anglophilia.
138.
Nigel Andrews, ‘Cinema: Magic kingdom runs amok’, Financial Times [London], 9
February 1995, p.21 (Arts section).
139.
Gurr and Cox, ‘Death in a Cathedral City’, Famous Australasian Crimes (London:
Frederick Muller, 1957), p.149.
140.
Ibid., pp.151 & 152.
141.
Chris Watson, ‘The Reconstruction of Society’s Mores of the 1950s as Exemplified
in Peter Jackson’s Film Heavenly Creatures (NZ,1994) in Terms of Michel Foucault’s
Theories Contained Within His ‘History of Sexuality’(Paris,1976)…Or, if Michel Foucault
had seen Peter Jackson’s Heavenly Creatures’; in (eds.) Jeff Doyle, Bill van der Heide and
Susan Cowan, Our Selection On: Writings on Cinemas’ Histories (Canberra: School of
English, Australian Defence Force Academy, 1995), pp.217-231 at p.225.
142.
Ibid., p.229.
143.
Colin Wilson, Origins of the Sexual Impulse (1963; rpt. London: Panther/Granada
Publishing, 1978), p.267 (Appendix: The Criminal Mentality).
144.
Ibid., p.268.
145.
Goodrich, Reading the Law: A Critical Introduction to Legal Method and
Techniques (Oxford: Basil Blackwell, 1986), p.221.
146.
R.W. Medlicott, ‘The Parker-Hulme, Leopold-Loeb Cases and the Concept of
Omnipotence’, New Zealand Law Journal, Vol.37 (1961), op. cit., 347.( The change of
perspective, post Porter and Stapleton, in New Zealand’s criminological praxis, which
could have exculpated Hulme and Parker, has been summed up by Simester and
Brookbanks as moving to a subjective moral standard test [ Principles of Criminal Law,
p.286.])
*
*
*