When the ‘corpus juris’ meets a corpus delicti: The appearance

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 sling-shot. 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.