by Hazel Baron
With a strength within her that she didn’t know was there, she answered: ‘Yes.’ She couldn’t bring herself to look at the jury sitting to her right but she figured that not one of them would have been able to answer that trick question any differently. She would not let this theatrical lawyer goad her and she refused to be rattled. It was the jury whose trust she had to win, no one else’s. She kept her voice steady as she answered all the rest of his questions during cross-examination, which differed little from what Vizzard had already asked in the Magistrates Court.
Jim was as calm as ever and Allan had also got over some of his nervousness and timidity. Hazel watched from the public benches as they gave their evidence and she felt proud of her little brothers. None of them wanted to hang around waiting to hear what their mother and stepfather had to say for themselves. Hazel and Bill flew back to Broken Hill as soon as they could on the next flight out of Sydney, while Allan and Jim went back to Adelaide and then Kangaroo Island. They felt like they had been holding their breath for the past three days and couldn’t wait to get back to the bush and breathe in the hot outback air, unpolluted by city bullshit.
Dulcie and Harry had three choices. The first was to say nothing, but their lawyers advised them that such a course of action never went down well with a jury. No matter how much they were told that the accused did not have to prove their innocence, jurors always thought that a defendant who said nothing had something to hide. The second was to go into the witness box, give evidence on oath and face the onslaught of cross-examination by the prosecutor. Both Vizzard and Gregory knew that their clients were not the most eloquent and educated of people. Dulcie might have been able to pull it off with her cunning, but not Harry. The defence team was aware of how quickly he had folded when spoken to by police and that was without the pressure of withering questioning. They could not have one defendant go into the witness box and not the other, so it was never an option that was seriously considered by the defence team. The third was to deliver an unsworn statement that turned the dock into what was known as ‘coward’s castle’, because they could state their case without being questioned on it. The police called it a licence to lie.
Bizarrely, as the law stood at the time, jurors could not be told that defendants had those three choices available to them. In the case of the third option, even if the jury came back with a question during their deliberations seeking to clarify why all the other witnesses had been cross-examined and not the defendants, the judge was not allowed to explain it to them. Nor could the defendant be charged with perjury. Essentially, an unsworn statement gave them a free kick. No wonder it was called ‘coward’s castle’. It was an anomaly in the justice system that has since been removed by law, but it was the course chosen by both Dulcie and Harry. They had been advised by their lawyers to be brief and not to ramble. Both had rehearsed their statements before they stood up in the dock.
Harry went first. He faced the jury, as his barrister had advised him to do, and looked along them, from man to man. He pulled himself up straight and tried to project a confident air. He spoke slowly if not eloquently.
‘I know I done wrong when I put Baron’s body in the river, but he was dead before I went into his tent that night.
‘When I went in he was not breathing. I had a good look; there was a sort of Tilley light above the bed. It was cold and you could see your breath coming out and there was none coming out of him. The first thing I saw was there was no rising and falling in the blankets, no breathing. I had a good look and there was no breath coming out of his nose or mouth.’
As he spoke, Dulcie had her handkerchief out and was dabbing her eyes behind her thick-lensed glasses with their dark frames that made her face look severe and older than her ‘fifty-one’ years, which of course she was — five years older. Those five years she had got rid of way back when she married Ted Baron had never been rediscovered, not by the police nor by the justice system, and Dulcie certainly wasn’t going to put them right. When Hazel saw her mother’s age reported in the newspapers as ‘fifty-one’ she just laughed. Dulcie had several dates of birth. One of her favourites had been 1912 because she liked to tell people she had been ‘born in the same year the Titanic sank’. It made a good story.
‘Mr Kelly and Mr Palmer both asked me in Melbourne was there any breathing or whether he had done anything to show he was alive or cry out. I answered “no” to this question. He didn’t, he was dead. I panicked and put him in the river,’ he said.
‘I love Dulcie and I love her now. He was dead when I put him in the river and I didn’t do anything to cause that.’
Then Dulcie stood, twisting her handkerchief in both hands down by her stomach as she spoke. Like Harry, her version of events was truncated. She said she had met Harry in Wangaratta and they had ‘become friendly’.
‘My husband came to Wangaratta but I did not live with him as husband and wife. He was taken to hospital and I used to visit him every afternoon. After he came out I told him I was going to leave Wangaratta and he would have to get board,’ she said.
‘I took him to a boarding house and got his board and he came back to ask my son and daughter if they wanted to stay with him. They said they would go with Mum and then my friend Bodsworth said he would come with me.
‘We came to Mildura and I wrote to Baron that the children were all right and we were happy and not to worry about us. Next thing I got a wire to say he was coming over.
‘I met him at the bus stop and took him home but after a short time he went to hospital again with arthritis. He came home about 31 August — I would not like to say just the date now, it was so many years ago. I told him it was too cold in the tent. He was quite normal and well only for the arthritis in his hands.
‘That afternoon we walked around and we had tea and he went to bed. I went up to the little shop on the corner, got what I wanted for the next morning, came back and went to bed.
‘I never saw Bodsworth then but I went out later in the night to the toilet. As I was going past I said “Are you home, Harry?” and he said “Yes”. When I came back Bodsworth met me and told me he had pushed my husband in the river.
‘I said to him “Whatever will we do? We will just have to tell”. Bodsworth said “No. Forget all about it.”
‘I said “We will have to tell” and he put his arm around me and said “No”. At no time was it discussed to push Baron in the river.
‘Bodsworth has been a good husband and stepfather. I had an interview with Inspector Kelly and he told me that Bosworth had admitted all he had done.’
By the end of the second day, Thursday, Hazel and Bill were home, all the witnesses had been heard and the lawyers had begun their addresses to the jury in which they summed up their clients’ cases. Dulcie’s defence was simple — she didn’t know anything about what Harry had done until it was all over. Harry’s statement, however, created a quandary for Justice Isaacs and he made a decision that would come back to haunt the judge.
Gregory’s argument was that his client could not be found guilty of murder because even if the jury was satisfied that Ted Baron had been alive when he was pushed into the river and had drowned, they had to have regard to what Harry had told them — that he had formed the opinion that Baron was already dead when he carried him from the tent. His defence was that he had made a mistake, a bona fide mistake, by believing Baron was dead so ‘then it is not murder because it was not done with malice’.
The prosecution put that down as silly and a ‘fantastic’ suggestion. Justice Isaacs expressed his puzzlement as to what it actually meant and, more importantly, how he should instruct the jurors regarding what it meant when they retired to consider their verdict.
In the absence of the jury, he asked both the defence and the prosecution if such an argument meant they wanted him to instruct the jury that they could find Harry not guilty of murder but guilty to the lesser crime of manslaughter. He said that he believed that being mistaken that someone was dead before
burying them — in the ground or in the water — was not a defence to murder but it might be enough to reduce the crime to manslaughter. Both the defence and the prosecution said they wanted the jury left with only the two choices — guilty of murder or not guilty of murder.
Sometimes even the best judges can trip up over their own words. When it came to instructing the jury, Justice Isaacs told them very carefully that in his opinion, there was no evidence on which they could return a verdict of manslaughter: ‘You are at liberty to disregard it; you are at liberty to disagree with it. That is all I propose to say in respect of that matter; it is a matter for you.’
He also told the jury that Harry bore the onus of proof to show that he truly believed Ted Baron was already dead, although he only had to prove it to the civil test of ‘on the balance of probabilities’ while the prosecution still had to prove his guilt to the criminal level of ‘beyond reasonable doubt’.
Late in the morning of Friday, 11 June, the jury finally retired to the jury room to consider its verdict. Dulcie and Harry were led back down the narrow wooden stairs from the dock and handcuffed before being taken to separate cells where they could talk to each other but not touch each other. Just one and three-quarter hours later, the jury had made up its mind.
Dulcie and Harry stood in the dock as the jurors filed back into the room.
In the wooden benches reserved for the police, Kelly, Palmer and Ritchie were pretty confident that the jury would find both of them guilty. They felt that the testimony of the witnesses, particularly that given by Hazel and Allan, had been powerful — but you could never be sure. The history of wins and losses was etched into the varnished wood of the benches where past and present detectives had scratched their names and the names of their trials. That was the good — and bad — of the jury system. You take twelve people who had probably never been in a courtroom before and while the police try to make the case as straightforward as possible, the lawyers try to baffle them with convoluted arguments.
Justice Isaacs asked the foreman of the jury to stand before he delivered the unanimous verdicts: guilty to each charge of murder. The tears Dulcie had shed over the previous two days had dried up and the newspapers reported that neither she nor Harry showed any emotion as they learnt their fate.
The judge discharged the jury but most of the jurors stayed behind in the public seats at the back of the court to see what was going to happen. Despite the ‘sexual revolution’ taking place everywhere else, in the Australia of the early sixties a woman’s place was still considered to be in the kitchen and not the dock of a courtroom. It was a bit of a novelty for a woman to be convicted of murder.
No accused murderers made it to trial in New South Wales in those days without meeting the eccentric Dr Oscar Schmalzbach. Schmalzbach was a Polish Jew who had escaped the Nazis through Romania to make Australia his home. As one of the first forensic psychiatrists in New South Wales to be used regularly by the police and the prosecution, he was a bit of a legend, if both chaotic and imperious in his private life and sometimes in the evidence he gave in court. He enjoyed driving out to the jails to interview fresh subjects and sat down no fewer than three times with Dulcie and twice with Harry separately. The main reason was to ascertain that they were both fit to plead and Schmalzbach reported that neither suffered from any mental illness.
The report he prepared for Harry was straightforward, containing an accurate family background as related by Harry, and concluded: ‘He is fit to plead and to follow his trial intelligently.’
The report on Dulcie was more of a work of art — her art, not the good doctor’s — as she mixed fact and fiction about her past. She claimed that after her first marriage, she took the couple’s two daughters and left the two boys with their father. A lie. She described her second husband, Ted Baron, as cruel. Another lie.
Then she tried to engender sympathy by talking about how she suffered for her work ethic: ‘She said that she did suffer from dizzy spells and feelings of fainting and the doctors . . . have told her that she worked too hard. She has been suffering from terrible headaches for which on some occasions she has been taking twelve Bex powders per day, apart from taking other similar tablets for years.’
His report on Dulcie indicated that she had impressed the psychiatrist as a ‘simple person of little education’, when in truth she would have been one of the most complex killers he had ever met. His job, however, had not been to provide an in-depth examination.
Dr Schmalzbach’s reports made it onto the record before Justice Isaacs sentenced Dulcie and Harry that same day. He told them to stand. Harry gripped Dulcie’s left hand in both of his.
‘There is only one penalty which the law imposes for this finding,’ he told them.
‘You are each sentenced to imprisonment for life.’
It had been worth the jurors staying. Dulcie Bodsworth became the first woman to be sentenced for life in New South Wales in seven years.
The first thing Ray Kelly did — even before repairing to the pub for a few celebratory drinks — was to send a cryptic telegram to Hazel in Broken Hill: ‘Saw mother today. It seems like a lifetime.’ Hazel knew what he meant in their secret code, which stopped the telegram people from gossiping.
At first she felt relief. Relief that Dulcie could not kill anyone else and relief because she could now feel safe with her mother locked away for a number of years. But that night after she had tucked in the kids and got into bed, her feelings turned to sadness. She imagined her mother with a cell door slammed shut behind her and the light turned off, and she hoped she would be treated well. Despite it all, Hazel could not turn off her feelings towards her mother. And despite feeling that her mother deserved the death penalty, she knew she could never have lived with herself had that actually happened. She usually slept like a log but that night she lay awake as she tried to process her emotions which were in turmoil.
She could draw no comfort by looking back at the past. Their childhoods had been difficult and unsettled, and force of will would not bring back her father — or Sam Overton or Tommy Tregenza. She could find no empathy for Dulcie and nor could she feel sorry for her. Normal people didn’t do what she had done and Dulcie had never cared about anyone but herself. Hazel thought: Why should I care about her? Despite it all, though, she did care, but she never regretted going to the police and giving evidence. She knew she had done the right thing.
Allan wasn’t as tough as Hazel and he took to drinking. He had kept so much of his past bottled up for so long and he felt like a bastard for putting his mother away, while at the same time he had, like Hazel, wanted her to hang for what she had put them all through. They were all too aware that, even though they were adults, Dulcie could still both rule and ruin their lives.
CHAPTER TEN
MARGARET AND ALLAN BARON
THEN DULCIE AND HARRY APPEALED.
It meant the trial for the murder of Tommy Tregenza, scheduled for later in 1965, had to be put on hold. Police had been unable to find any relatives of the old man to let them know. He had died homeless and alone just as he had lived much of his life homeless and alone. He had not married and had no known children. His mother Bridget had died in 1895 when Tommy was just seven; his father Robert didn’t marry again and died in 1918. Among the other Tregenzas who had lived at Naracoorte and helped bring up Tommy, there was no one who really remembered their cousin and uncle.
In Adelaide, Sam Overton’s widow Margaret, their son David and her family the McClures, who owned Netallie Station, were on tenterhooks waiting for their trial to be held so they could begin to put Sam’s death behind them. David, who was twenty-three and the spitting image of his dad, had relied on his uncles while growing up without a father. David had recently met the girl he would marry two years down the track. The Overton murder trial had been scheduled for early 1966, after the Tregenza trial. Now, it too was put on hold pending the outcome of the appeal.
The two charges of arson which had been laid a
gainst Dulcie had gone on the back burner. They had been brought really so police could arrest her and keep her in custody while they questioned her about the murders. At Burragan Station, old Madge Fitzgerald and her daughter Lin had rebuilt the barn and homestead that Dulcie had burnt down. Building in the bush was a mammoth task with most materials having to come from as far away as Broken Hill at least and often further. Mother and daughter had lived in the two-bedroom cottage for over a year before the new house was habitable. Police kept them up to date with what was happening with Dulcie but made it clear that they would press ahead with the arson charges only if Dulcie was cleared of all the murders.
Thus the lives of all those families, as well as the lives of Hazel, Allan and their little brother Jim, were up in the air while the Bodsworths argued they had been wrongly convicted.
All judges have to be assessed by their peers as well as by the public, and Justice Simon Isaacs had realised after the trial for the murder of Ted Baron that he had made a mistake in his instructions to the jury. The Court of Criminal Appeal said as much in its judgment that quashed the Bodsworths’ convictions and ordered the couple face a new trial. There were a number of grounds of appeal but the main reason for the appeal court’s decision was because Justice Isaacs had got it wrong when he reversed the onus of proof from the prosecution onto Harry’s defence to show that he believed Ted Baron was already dead when he pushed him out into the deep water. The onus of proof is never on the defendant; it had been on the Crown to prove that Baron had been alive, not on Harry to prove that he thought he was dead.
The jury may well have come to the same guilty decision had Justice Isaacs not made that mistake, but such are the workings of the law. The jury is not consulted. Hazel thought this was silly but she didn’t try to understand it all.
On 16 December 1965, she got another of Ray Kelly’s cryptic telegrams: ‘Saw mother today and she won.’ It meant she had won the appeal. Hazel was gutted. It was not a good Christmas present. She wondered if it had been worth coming forward in the first place. She was no longer scared of her mother physically but mentally she felt much safer with her behind bars.
