Excuse 4
‘He battered me’
Heather Osland and her 23-year-old son, David, were a killing team. Their enemy/victim was Frank Osland—her husband, his stepfather.
On the morning of 30 July 1991, mother and son dug a grave-shaped hole in bushland near their country town of Bendigo. That afternoon, Marjorie Heather Osland, 43, had her hair done. That evening, she crushed six or seven of her sleeping tablets and added the knock-out mixture to the curry she had cooked her 41-year-old husband. After the drugged man staggered to his bedroom, kicked the door open and collapsed on his bed, his wife and stepson considered their next homicidal move. Mrs Osland suggested she strangle him with a rope, but her son rejected this as too difficult. David also knocked back his mother’s plan to hit her husband’s head with a baseball bat. The bat might break, he thought. An iron pole would be better. When Mrs Osland grabbed the pole from her son to strike the fatal blow, David grabbed it back. ‘No, Mum. You’re not strong enough,’ he told her. So while his mother watched, David smashed the metal pole at least once on to his stepfather’s head. There was so much blood he had to put his whole palm in the gash to staunch the blood flow. A gruesome version of the Dutch boy with his finger in the dyke story.
Finally, David was able to take his hand away when his mother put a bin bag over her dying husband’s head. Heather Osland then held her twitching, dying, head-bagged husband down. When they were sure he was dead, the two dragged Frank’s lifeless body to the car and drove it out to the hole they had dug. As the rain poured down, they kicked and shoved him into his rough grave and covered him with mud. Back home, while cleaning up her bloodied bed, Mrs Osland suddenly realised a vital thing they had forgotten: ‘Oh my God! What about his car’. So, in the dead of night, David Albion drove his stepfather’s Holden station wagon 150 kilometres, and dumped it at a Campbellfield truckstop on Melbourne’s northern outskirts. His mum gave him a lift back home. The killers returned about 5 am.
In the following days, months and years, mother and son pretended their husband/stepfather had simply upped and left. The morning after their long, bloody night, Mrs Osland told some of Frank’s workmates who came to pick him up that he had already left for work. A couple of days later, she reported him as a missing person. When police tracked down Frank’s car—it hadn’t been stolen or stripped as the killers had hoped—Mrs Osland and her daughter, Erica, picked it up. Mrs Osland sold it to help pay for her new car. Four months after killing her husband, Mrs Osland went to pick up his pay, including holiday pay. Another five months later she sold all his possessions, and shortly after that Mrs Osland forged her husband’s signature to get into his safe deposit box. (Not even at her trial did she reveal what was in that safe deposit box.) Finally, she divorced him.
To try to explain her husband’s sudden departure, Heather Osland told police he dealt in drugs and owed money. To keep up the façade that Frank was still alive, she told others he had been seen in the Bendigo area. She even claimed he had visited the house while she wasn’t there. Her evidence? She found the toilet seat up when there were no men in the house!
Mrs Osland’s accomplice son was not nearly as successful at keeping their killing a secret. Two weeks after striking the fatal blow, he blurted out a drunken confession to his one-year-younger brother, Paul, at a party. A family friend was later to tell a court, ‘Heather told me Paul and David were at a party and David was very drunk and Paul was high as a kite on drugs and David told Paul jokingly that Heather and David had wiped out Frank’. Paul told a court, ‘He [David] came out and said: “Paul I’ve done something silly. I’ve helped mum knock off me stepfather”.’ He also told this to his defacto, Kim.
A few months later—in December 1991—Mrs Osland tried to stuff the skeleton back into the closet. She called a family meeting at which she categorically denied Frank had been killed. David, once again, supported his mum by denying that they had wiped out his stepfather. Paul was ordered not to repeat the story. It appeared as though the meeting had worked and, at least for a time, the family’s skeleton (decomposing corpse) was back in the closet (secret grave).
But a year later, Paul and Kim had a falling out and Kim told the local police what Paul had told her about Frank’s ‘disappearance’. Still, Mrs Osland avoided revealing what she had done. She told police she believed Frank was working overseas and she was no longer concerned about him as a missing person.
Nearly two years later—in September 1994—with the rumours about Frank Osland’s disappearance refusing to die down, the police Missing Persons Unit started investigating again. After getting judicial permission, they bugged Mrs Osland’s phone and, just before Christmas that year, they taped Mrs Osland and Erica discussing having Paul ‘knocked’ if he dared dob in his mother. Mrs Osland apparently enthusiastically agreed with the idea.
Erica: I could then turn around and, well, [say] ‘You say anything incriminating against Mum and David, I know for a fact that you’re going to get knocked, Paul’.
Mrs Osland: And, ‘You’re going to get bashed and you are also going to get the shit bashed out of you now for even speaking against your mother’.
Erica: Yeah. I know ‘cause he is.
Mrs Osland: I know he is. If I had the contacts, I’d do it myself…
Erica: It’s lucky I know people.
Mrs Osland: I know, but I would have done it myself as well.
Mrs Osland neatly summed up what she and David had done.
Mrs Osland: We gave him sleeping tablets, bashed him on the head, put him in the car, took him out, kicked him in the hole and covered him up and drove off.
After their arrests, Mrs Osland and David quickly admitted what they had done. The day after her arrest, Mrs Osland even took police to her husband’s grave.
At her trial in September 1996, Heather Osland said that on the morning of the killing, she came up with the idea of digging her husband’s grave after fearing Frank would be angry with her for failing to buy some metal joints—‘knuckles’—for their bed.
Barrister: When you couldn’t get the knuckles for the bed, what effect did that have on you?
Mrs Osland: I knew I’d be in deep shit because I didn’t have the knuckles and then he’d accuse me that I hadn’t been out there, that I’d been lying. It was just a deep fear that built up in me.
Barrister: Did you say anything to David about that?
Mrs Osland: Yes, we did. We talked about it…I would’ve said ‘David. Oh my God’. We didn’t have to talk much because we just knew by actions that I’d be in trouble.
After failing to get the bed knuckles, mother and son drove into the bush to where David thought there might be some marijuana plants.
Mrs Osland: We went up through the bush and we turned off and sat in that opening thinking, ‘My God. What are we going to do?’
Barrister: Did you speak to David at all when you stopped in that clearing?
Mrs Osland: I just said. ‘What are we going to do?’ I just knew that he was going to kill me. The fear in me was just so bad.
…
We thought. ‘What are we going to do? We’ll just dig a hole like he was always going to dig a hole for us’.
Barrister: You said: ‘We said “we’d dig a hole”’. Who actually said that?
Mrs Osland: I’d say me.
Barrister: Did you say anything about what you’d do with the hole?
Mrs Osland: We’d just see what mood he was in when he came home that night…
Barrister: Did you say anything to David about what the purpose was for digging a hole?
Mrs Osland: If he [Frank] was violent and verbal like he was the night before, well, we’d just shove him in the hole.
Judge: You said that to David?
Mrs Osland: Yes, virtually.
Judge: I’m not sure what ‘virtually’ means…
Mrs Osland: There was virtually nothing said because there’s just that much fear was in us.
Barrister: What was in your mind?
Mrs Osland: I knew I’d be dead. I knew he’d kill me.
Barrister: What was in your mind as the purpose for the hole?
Mrs Osland: That we would just shove him in the hole if he come home the same as he did the night before.
Barrister: What did you do after that?
Mrs Osland: We went home and got the shovel and the crowbar.
Barrister: What did you do after that?
Mrs Osland: Then we just went back and dug a hole.
She had also told police about the grave.
Mrs Osland: We didn’t really talk that much. We just went out, got in the car and went for a drive. Decided we’d dig a hole…We went there because David had been out there trying to find some marijuana plants once before. Went up and around and we found a spot and we sat in the car for probably half an hour or more…
Officer: Right. And it was David’s idea to pick that location?
Mrs Osland: No. We just wandered around and we picked it together.
Officer: And what happened when you got there?
Mrs Osland: We just started digging a hole because if we did do anything, at least we had a hole.
In another interview with police she said, ‘We sat there in the car and decided that we’d dig a hole. If he [Frank] was shitty when we went home, well we’d do something about it’.
Years later, Mrs Osland talked to her daughter about the digging of the grave.
Mrs Osland: I can’t remember. I know I got into the hole and the hole came up to about there…The hole came up to about there on me…And I said to bloody David, I’m not fucken’ digging any more…We should have spent another day there.
Erica: Should ah made it twice as deep.
Mrs Osland told police that the tension in their house in Moran Street, Long Gully, in the hours and day before she killed her husband was ‘just so bad…you’ve got no idea’. She said David told her, ‘We have got to get rid of him, Mum’. She had replied, ‘I know. Even if I left him he’d never leave me alone’. But, although she admitted killing her husband, she baulked at the word murder.
Officer: If we can get back to the day of the murder, what was actually discussed between David and yourself?
Mrs Osland: Not, not murder him. Just get rid of him. Just getting rid of the shit out of our life. All the time it was, it was just shit all the time. We couldn’t breathe. We didn’t talk when he was there. Couldn’t have anyone at the house. He wouldn’t allow anyone at the house.
Officer: So what plan of action did you have?
Mrs Osland: We just thought we’d go and dig a hole and just kill him. That was all. Just getting rid of him because I knew if I left him—because I wanted to leave—and I knew he wouldn’t let me go anyway…I don’t reckon there was a real plan planned. We’d thought about things and we’d talked about things and we’d talked about things in getting rid of him.
Officer: Had you any specific plan, how you were going to do it?
Mrs Osland: No, it just all come about that day virtually. I’d think about—it was virtually—either just virtually the day before or that day. That was all.
Officer: Who brought up the conversation with regard to killing him?
Mrs Osland: It would be me, I suppose.
She said that as the time neared for Frank to get home from his work at the local quarry, she and David waited for him at the window.
Mrs Osland: We waited at the front windows to see him get out of the car, like we normally did, to see what mood he was going to be in…
We did that for months…If he was laughing all jovially with his mates, then we knew we were in trouble when he got inside. If he was solemn when he got out of the car, he wouldn’t be so bad when he got inside.
Barrister: On that Tuesday night what was he like when he got out of the car?
Mrs Osland: He was laughing. He was as happy as anything.
Barrister: How did that make you feel?
Mrs Osland: We knew. We listened for him to walk down the driveway and we knew that we were in trouble.
Barrister: What happened when he came inside?
Mrs Osland: He verbally abused me over having me hair cut and I blocked all the rest of it out of my head. I just can’t get it out of my head…
I can see him standing over me. I can see it but I can’t hear his words.
David Albion told police that on the night he killed his stepfather, he had confronted him while he was standing over and abusing his mum. He said he had told his stepfather to ‘get the fuck off her’, and that Frank had rounded on him and yelled, ‘Get the fuck out of my house’. When David refused to leave without his mother, Frank had screamed, ‘I’ll kill you’, and felled his stepson with one punch. When David retreated to his bedroom for about an hour, his mother came in to beg him not to leave her ‘because she was worried that she was going to get killed’. He said that was when his mother suggested drugging Frank’s dinner saying, ‘We might as well calm him down’. Mrs Osland did not say any of this in her evidence.
Barrister: How long was he [Frank] verbally abusive after he got home?
Mrs Osland: I reckon a good hour and hour and a half.
Barrister: What were you doing during that time?
Mrs Osland: Just listening…I knew I was in trouble. I was full of fear.
Barrister: What were you fearful of?
Mrs Osland: My life, I was fearful that if David went that day I knew I was…
Barrister: Were you fearful that David would leave that day?
Mrs Osland: Yes. I thought that he’d [her husband] chuck him out the door like he did Erica.
Barrister: Why did you think he’d do that?
Mrs Osland: ‘Cause he’s done it so many times before.
Barrister: When he was verbally violent for an hour and a half did you decide to do anything?
Mrs Osland: I just thought I’d put the sleeping tablets in his dinner to quiet him down. I just wanted one night of peace.
She said she crushed six or seven of her anti-depressant tablets in the curry she had cooked her husband. Ironically, Frank got angry because he thought the meal had been made specifically for David and not for him. Little did he know how wrong he was.
Barrister: Did anything happen when you served the dinner that night?
Mrs Osland: Yes. He got very angry because he reckoned that I made it only for David. He didn’t want it and pushed it away.
Luckily for the two killers, Frank ate at least half his drugged curry before pushing it away, declaring it tasted like ‘shit’ and storming out to the back shed for about 10 minutes. Racked with fear Mrs Osland and David cleared away the dinner dishes.
Mrs Osland: I saw him come back from the shed and he stumbled up the stairs, virtually fell up the stairs.
Barrister: What was in your mind when you saw that happen?
Mrs Osland: I thought, ‘Oh my God, he’ll know that I’ve put the stuff in his meal to quieten him down’.
Barrister: Did you think about what would happen to you if he did realise you’d put the stuff in his meal?
Mrs Osland: Yes I did…That if he put the pillow over me head this time, I was virtually gone. He came in…sat at the table…He was sort of falling back like he was, like he was drugged…He was…sort of nodding on and off…
Barrister: What did you do?
Mrs Osland: We watched him…David and I.
Barrister: How long did he stay at the table?
Mrs Osland: I’d reckon 20 minutes.
Even heavily sedated, Frank Osland was, according to his wife, angry.
Mrs Osland: He got up and pushed the chair back and then stomped into the bedroom, kicking the door open and then went into the bedroom.
Barrister: Did he say anything when he did that?
Mrs Osland: No. He was just really angry. He was just really, really angry.
Barrister: What was it about the way he did that that made you believe that?
Mrs Osland: It was just the way he done it.
Barrister: What were you thinking?
Mrs Osland: I thought, ‘My God, he’ll know I put the stuff in his meal’…I was just paranoid what would happen if he woke up and knew what I had done.
Barrister: Did you say anything to David at that stage?
Mrs Osland: No. We just knew that fear had built up in us so badly.
Barrister: What did you do?
Mrs Osland:…I just couldn’t live like this any more…
Barrister: Did you speak?
Mrs Osland: No, not really. It was just eye contact between David and I and we just knew.
Judge: What did you know?
Mrs Osland: Well there was just no way out, there was no way out for David and there was no way out for me ‘cause I just knew he’d never let me go.
Barrister: What happened between the time you knew there was no way out for you and the time David got the pipe.
Mrs Osland: I was just standing in the big room. I didn’t move. I was just paralysed. I was just paralysed in fear, I think. Thinking of what would happen if he woke up.
Mrs Osland made her involvement in the killing of her husband very clear to police.
Officer: And what happened then?
Mrs Osland: We hit him.
Officer: When you say ‘we’, can you explain exactly what happened?
Mrs Osland: David hit him and I held him down ‘cause his nerves were starting to jump, so we just held him down.
Officer: How many times did David hit him?
Mrs Osland: I think twice.
Officer: Whereabouts?
Mrs Osland: On his head. I just wished I had’ve done it, that’s all.
Officer: And how hard was the blow?
Mrs Osland: Well, I suppose it was hard…
Officer: Right, and after he had been struck twice, what happened?
Mrs Osland: We just held him down till his nerves stopped jumpin’ around.
Officer: And were there any injuries to his head?
Mrs Osland: Yeah. There was a hole…
Officer: Right. When David struck Frank, he intended to kill him?
Mrs Osland: I suppose we did, yes…It was just to get rid of the shit.
She told much the same story in another interview.
Officer: Can you tell me exactly what happened?
Mrs Osland: We just hit him with the bar.
Officer: What sort of bar was it, Heather?
Mrs Osland: Just a round bar. Just a piece of pole.
Officer: And where did you get that from?
Mrs Osland: Down the shed.
Officer: Who actually hit him?
Mrs Osland: Well, we, it’s together. I’m not saying David did. He, I wanted to do it but I wasn’t strong enough, David said…Poor David.
Officer: How many times did you hit him?
Mrs Osland: Just once. Might be twice.
Officer: So, in fact, David hit him with the pole.
Mrs Osland: We hit him together. It’s joint responsibility. I know it is. It’s not fair that David’s got to take that blame. [A statement that had some irony later.]
Officer: What happened after he was hit? Was he dead?
Mrs Osland: Yeah. He was dead.
Officer: How did you know?
Mrs Osland: Well, he wasn’t movin’.
David told the jury he was very clear about what he planned to do with the iron pole.
Mr Albion: Knock his [Frank’s] block off.
Barrister: You mean kill him?
Mr Albion: Yes, but the way I thought at the time. I was going to knock his block off.
His mother went into the bedroom to make sure Frank was asleep. After she confirmed this, David, gripping the iron pole, followed. ‘We were saying like “Gotta do it”, “You’ve got no choice now” type of thing’. At the last moment, however, David’s courage failed and, shaking, he left the bedroom. Back in the bathroom, his mother helped renew his determination. They told each other: ‘We had to do it basically…got to do it because he’ll kill us in the morning’. Once again they sailed into battle. David stood over his sleeping stepfather and lifted the pipe up but, again, he couldn’t go through with it. He put his weapon down. But then, ‘Just all the things that sort of happened in our life just came back and I just picked up the pipe and I hit him’. After striking the fatal blow, Mr Albion struggled to cope with what he had just done.
Mr Albion: I just stood there. I felt sick. I was just spinning right out.
At their trial in September 1996, Mrs Osland and her son, David Albion, did not deny killing Frank Osland. Heather Osland’s barrister, Felicity Hampel, QC, told the jury, ‘They did it…There is not going to be any denial of involvement in the killing’.
Their killer excuse was that they had been defending themselves against a violent, sadistic man who had made their lives hell for years. But this was far from the traditional self-defence legal defence.
They did not claim they killed Frank Osland while he was attacking them. Mrs Osland said she was a victim of ‘battered wife syndrome’. She had, she said, killed her husband not because he was attacking her, but because that was the only way she believed she could stop his regular assaults. It was the only way to stop him killing her. Her son argued he had killed because that was the only way he thought he could defend his mother and himself.
Mrs Osland said she met 20-year-old Frank Osland in 1970—21 years before she killed him. Seven years later, she left her womanising first husband and moved her four young children—aged 7, 9, 10 and 12—to live with her new love in the rough outback mining town of Karratha in Western Australia.
Mrs Osland: I thought he’d be someone special to look up to. A good father figure for the children and at the time I believed I loved him…[but] after a couple of weeks he showed his true colours.
Her knight in shining armour turned out to be an ogre—and not a good-hearted ‘Shrek’ sort of ogre, either.
Mrs Osland told police and her trial she had endured a nightmare life of violence and abuse as Frank terrorised his new family. To make sure she did not leave the house he took her car keys and removed the car’s distributor cap. She couldn’t have a shower until he had had one, and she couldn’t wear shorts or make-up. He also regularly forced her to have anal sex. To hide the bruises from the frequent beatings, she took to wearing thick make-up and dark glasses to her work as a secretary or film usher. The 100-kilogram (16-stone) Frank often erupted into jealous rages, accusing the petite (5 ft 3 in) Heather of ‘slutting around’. He would threaten to kill her and the children if she tried to leave him.
The children also copped it. Friends weren’t allowed over. At dinner Frank was always to be served first. At least once a week, he would clobber one of his stepchildren. Sometimes he would just jab them with a fork or pinch them, but once he broke his 10-year-old stepdaughter’s nose. Another time he dragged the screaming child along the ground by her ears. He would hurt or even kill their pets. Paul Albion told his mother’s trial that once his stepfather forced the children to watch as he ‘ripped the heads off’ their budgies. When his favourite dog refused to come when called, Frank shot it dead. He beat another dog so badly it had to be put down. Once, when Mrs Osland fled to the neighbours, Frank followed and killed the family’s cat in front of her. Another time he refused to let David feed his pet birds. They starved to death.
In 1981—soon after the Oslands moved to Bendigo—Heather Osland built up the courage to leave Frank but she was foiled by the bank. It refused to lend her the money for a home without a partner to help with the repayments. So she was forced back to Frank. There were a couple of other separations and reunifications. Then in 1984, bravely defying her husband’s opposition, Heather visited a friend in the United States. This nine-week trip proved to be the high point of their ill-fated relationship. Frank phoned Heather 18 times. He even sent her flowers on her birthday. When she returned, he met her at Melbourne airport and drove her back to their Bendigo home.
Mrs Osland: He said he missed me while I was away and then he promised me he’d change.
For the next two months they were reasonably happy. Heather was later to tell her murder trial she ‘cared about him and wished he would change’.
Heather’s decision to return to the man who had abused her and her children so often, might have been difficult for most people to understand (especially in hindsight) but what happened next was totally bemusing. She married him. Mrs Osland was later to tell the jury deciding whether or not she was a murderer, that she hoped marriage might ‘make things work between us’. But, even on the wedding day that seemed a pathetically forlorn hope. The newlyweds were still in the church when Frank looked his bride up and down, sneered and said she looked like shit. He didn’t like her hat.
After that unpromising start to married life, Frank was quickly back to his violent, abusive self, at least according to Mrs Osland. A few months later, she managed to get police to evict him from a unit she had bought, but Frank didn’t give up that easily. He followed her and her children in the street, even tracking her to her work. Once again he persuaded her to give him another chance. She told her trial that Frank would stand over her like a big gorilla.
Mrs Osland: [Frank would] point his finger about three inches from my nose and threaten me. He’d kill me. He’d kill my children. He’d chop me up…I’ve heard it 101 times how he was going to kill me and the kids.
He said he’d chop them up and send them back to me in the mail and if I’d loved them enough I’d be able to stick them back together again.
On one of the occasions when she and the children tried to leave, Frank pointed a rifle at his wife’s head and said if she walked out the door, she would be killing them all.
Frank did not only frighten his family. He was banned from a martial arts club after kicking one member full in his face.
Mrs Osland told her trial that in the weeks and days before she killed her husband there was a build up in his violence toward her and her children. She said that in the week before he was killed, Frank Osland threatened to kill David. Three days before he was killed, she said her husband kicked her out of bed—literally. She was ejected so forcefully, she hit the bedroom window.
The prosecution did not dispute that Frank was an unlikeable man or that he had violently abused his wife and her children.
Prosecutor Bill Morgan-Payler: It certainly seems not to have been a perfect marriage. Frank Osland seems not to have been the ideal spouse.
‘What’s new?’ said the Crown.
Mr Morgan-Payler said, however, that what police taped Mrs Osland saying shortly before her arrest, proved she had lied about Frank’s abuse escalating in the days before he was killed.
Mrs Osland (to Erica): He [Frank] never used to hit much once he got older. It was only when you were little and those days is Karratha days, right…you were all too young…to remember how he used to sleep in the trailer. You wouldn’t know all that shit.
On 21 December 1994, Mrs Osland appeared to tell one of her friends that her dead husband’s violence had stopped long before his death.
Mrs Osland: Yeah, because of his violence and everything towards me in me marriage, you know, going back earlier.
…If I was going to do anything, I would’ve done it years ago.
…
Ten or fifteen years ago, I could have throttled him, but not in the last couple of years. We just did not talk.
…
The last couple of years, we just didn’t talk, you know there was just nothing. Well there was the pleasantries. ‘Want a cup of coffee?’ ‘Yes’, ‘No’. You know that was it.
…
We [Mrs Osland and Frank] had no gripes these last couple of years.
…
Not that we were fighting or anything. There was just nothing there any more.
In the bugged telephone conversations Mrs Osland said that two or three times a week she would go on social outings by herself. When a television reporter asked Mrs Osland whether her dead husband was violent, she replied, ‘Oh, he was earlier but not in the latter years, no’.
Another bugged conversation with Erica seemed to undermine Mrs Osland’s claim that she and her son had only really come up with the idea of killing Frank on the day he died or maybe the day before.
Mrs Osland: The chook was crowin’ all the time. We spent all day. We sat and planned it for a week.
Erica: Did ya?
Mrs Osland: Yep. And then he [David] goes and tells fucken Paul.
Paul told the court that he had refused his mother’s request to kill Frank. A friend of the family—Robert Francis Dalziel of Elsternwick—told the court Mrs Osland had offered him $5000 to ‘knock off’ her husband.
Mr Dalziel: She said, ‘I will give you five grand if you do it for me.’…[I told her] ‘No fucking way, try 50 grand.’
…
I quite often asked why she didn’t leave him and I got told they were scared of Frank.
Mr Morgan-Payler said that Frank Osland might have been violent, argumentative and uncompromising but reminded the jury that he was not the one on trial. He said Mrs Osland and her son, David, had committed a ‘cold, calculated murder’.
The defence denied Mr Dalziel’s claim. It also said that none of what Mrs Osland was taped saying proved that she had not being living in fear of Frank in the days before she killed him. It claimed her threats to have Paul ‘knocked’ were not serious. They were just words ‘bubbling out’ of a scared and frustrated woman.
Psychologist Kenneth Byrne told the jury that Mrs Osland was a typical ‘battered wife’. He said she met all the criteria of a syndrome that was gaining increasing world-wide recognition. Typically, he said, battered wives or women:
• kept their predicament a secret because they felt ashamed of it;
• stayed in their abusive relationships because they believed if they left, their abusers would track them down and wreak revenge;
• had ‘cloudy or unfocussed’ thinking as a result of regularly reliving their frightening experiences;
• had a heightened arousal or awareness of danger.
Dr Byrne said battered women like Mrs Osland learnt hopelessness and hopefulness. They learnt to be submissive and put up with their lot, but they also clung to an unrealistic belief their men would change for the better. He said in severe cases battered women also—like Mrs Osland—believed they would one day be killed by their abusive partners.
Mrs Osland’s barrister, Felicity Hampel, told the court this ‘battered wife syndrome’ answered the question everyone was asking: Why did she keep going back to him?
Ms Hampel: She would go back because she didn’t know any other sort of life, because she was totally subjected and subjugated to him.
She had, the barrister said, been ‘goaded beyond endurance by a life of hell’ and thought she had no choice but to kill Frank to defend herself.
After the 22-day trial, a jury of six men and six women deliberated for four days before announcing a verdict, which surprised almost everyone, on 2 October 1996. To gasps of horror from her many supporters, Mrs Osland, 50, was declared guilty of murder. She grabbed her son’s hand and started to cry, wiping her eyes with the back of her hand. But that wasn’t the surprise. The surprise was that the jury could not agree on a verdict for her son. He had to face another trial. Somehow they had found the person who hadn’t swung the pole guilty of murder but were undecided about the guilt of the person who had.
About a month later, Justice John Hedigan in his sentencing remarks told Mrs Osland, ‘The jury accepted…that you killed [Frank] Osland because you wished to get him out of your life, to be free of him, not because you felt threatened by him at that time’. He said that in the conversations police had bugged, Mrs Osland had revealed herself to be ‘devious and manipulative’. He acknowledged, however, that Mrs Osland had endured many years of suffering thanks to her husband.
Justice Hedigan: He [Frank] endeavoured by violence and threats of cruelty to make you behave as he wished and required. Your children did not love him because he had no love for them.
…
I accept that his bullying and mental torture prevailed for a substantial part of your marriage, although I doubt that he succeeded in wholly subjugating you. I am also satisfied, largely based on you own statements on the [police telephone] intercepts that his physical violence declined, although not completely, over the last two to three years of your marriage to him.
The judge noted that Mrs Osland had killed her husband as she feared being left alone as a result of her children leaving home. He said she had suffered long before meeting Frank Osland, with her parents subjecting her to psychological and physical abuse throughout her childhood. In the 1980s, she made one serious attempt to commit suicide and had suffered depression and anxiety for most of her life. The judge also said he had taken into account that, while awaiting trial, Mrs Osland had helped set up domestic violence programs.
Justice Hedigan said he did not believe Mrs Osland had tried to pay Mr Dalziel $5000 to have Frank Osland killed but said she may have wanted to kill her husband for his money in addition to her fear and hatred of him. The judge said Mrs Osland had clearly planned the killing and drawn her son into her plot.
Justice Hedigan: Whilst Frank Osland was a cruel and violent man, largely incapable of love and warmth, and lacking in the ability to make true friendships, his life nevertheless had value and the taking of it was a fully premeditated act done by you to turn your life around and preserve your situation. The taking by you of a human life in that way must be marked by condign punishment.
The judge said a substantial mitigating factor in the crime was that Frank had inflicted ‘great oppression on you and your children’.
Justice Hedigan: You saw getting him out of your life as the absolute essential to regaining your peace and happiness.
It may be that a slow-burning but unabating hatred finally induced both desperation and deliberation in you, prompted by a lively fear that your son, David, was about to be driven out of the home leaving you to live with [Frank] Osland alone.
…
The unalterable fact remains, however, that the jury has found you guilty of murder and has not accepted that your life with [Frank] Osland and his manifest cruelties justified your taking of his life.
…
I order that you serve a sentence of 14 and a half years imprisonment and that you should serve a sentence of nine and a half years before being eligible for parole.
The next month, the legal irony was complete when another jury—this time after deliberating for two days—acquitted the man who admitted swinging the blow which killed Frank Osland. It had appeared to have believed that the prosecution had failed to prove beyond reasonable doubt that David Geoffrey Albion (then 27, of Tempest Place, Waikiki, Western Australia) had not been acting in self-defence when he killed his unconscious stepfather.
Nearly a year later, Victoria’s Court of Appeal rejected Mrs Osland’s appeal. It particularly rejected her claim that the judge had been wrong to tell the jury it could only find she had been provoked into killing her husband—and therefore only guilty of manslaughter—if it thought she had a sudden and temporary loss of self-control. The defence had argued that as a battered woman, Heather Osland had been provoked by a ‘slow-burn’ accumulation of years of abuse.
Court of Appeal: In our view the notion of the sudden and temporary loss of self-control is so entrenched in the common law doctrine of provocation…that it must be a matter for Parliament to change.
If the requirement for sudden and temporary loss of self-control were to be removed, it seems to follow that the mercy extended in cases of provocation would then be extended to some cases of premeditated killing.
…
Society now recognises that there are women who are radically affected because they have been subjected to prolonged physical and psychological abuse by their partner. If they kill their tormentor as the end result of an accumulation of fear, despair and anger, it might well be seen as an injustice if they cannot receive the law’s mercy in the same way as the person who reacts in a sudden and temporary loss of self-control to provocative conduct…But…a balance must be struck between the extension of mercy and the maintenance of an ordered society.
If there is perceived injustice and that injustice is to be remedied, it will have to be by Parliament.
The judges ruled that the biggest problem—the ‘insup-erable hurdle’—for Mrs Osland in getting a jury to believe she had been provoked into losing control and killing her husband was that she drugged him first. The insuperable hurdle in persuading the jury that she had acted in self-defence was the grave she had helped to dig hours earlier.
In February 1998, rare, raucous jubilation interrupted the normally sedate proceedings of Australia’s most important court, the High Court. When Justice Mary Gaudron—the only woman to be appointed to the court (at the time of printing)—announced Mrs Osland’s case would get a full hearing, dozens of her supporters broke out in very uncourtlike applause and cheering.
To get a full High Court hearing is not easy. The court normally only agrees to fully hear cases it believes have important wider legal ramifications. You don’t get a High Court hearing just because you think you were hard done by in your original trial and in your appeal. You have to first show the court that your case involves an important legal issue that needs to be clarified by the highest court in the land. The vast majority of special leave applications are rejected. Outside the court more than 150 friends, family and supporters of Mrs Osland hugged each other and chanted, ‘Free Heather’. The 51-year-old grandmother and mother of four had become an unlikely feminist standard bearer.
A newspaper cartoon depicted women gleefully queuing outside a gunshop.
So in December 1998, the High Court tackled the controversial Osland case. It was the first time it had dealt with the ‘battered wife’s syndrome’ defence. Would it accept it as a new legal defence to murder? Would it accept that for some badly abused, psychologically damaged women the only way to defend themselves was to kill their abusive husbands? Would it accept that you can be defending yourself even if your victim is asleep when you kill him and you dug his grave a few hours earlier? Would it accept that people can be provoked by years of torment into a premeditated killing rather than just into a spur-of-the-moment ‘lashing out’ killing.
The short answer was, ‘No’. A big ‘No’ from all five judges.
Justice Michael Kirby discussed the battered wife’s syndrome the most widely. He warned it was ‘important to be wary of the effects that battered wife’s syndrome can have on the perception of women as fully independent and responsible individuals’. The judge noted that some believed battered wife’s syndrome was losing credibility in the US courts and was ‘likely to soon “to pass from the American legal scene’’’. Justice Kirby said some people believed that the term ‘syndrome’ medicalised what could be seen as ‘a perfectly reasonable response to extreme circumstances’ into a psychiatric disorder, or ‘irrational and emotional’ conduct.
Justice Kirby: It [battered wife’s syndrome] is not a universally accepted and empirically established scientific phenomenon. Least of all does the mere raising of it…cast a protective cloak over an accused charged with homicide who alleges subjection to a long-term battering…No civilised society removes its protection to human life simply because of…long-term physical or psychological abuse. If it were so, it would expose to unsanctioned homicide a large number of persons who…would not be able to give their version of the facts. The law expects a greater measure of self-control in unwanted situations where human life is at stake. It reserves cases of provocation and self-defence to truly exceptional circumstances…There is no legal carte blanche [blank cheque]…for people in abusive relationships to engage in premeditated homicide. Nor, in my view, should there be.
The judge did, however, say it was possible for people who had endured years of abuse to justify killing as self-defence—even though they were not under attack—but only if they felt ‘a genuinely apprehended threat of imminent danger sufficient to warrant…a pre-emptive strike’.
Justice Kirby: Clearly, it is still necessary to discriminate between a self-defensive response to grave danger which can only be understood in the light of a history of abusive conduct and a response that simply involves a deliberate desire to exact revenge for past and potential—but unthreatened—future conduct. The former will attract considerations of self-defence. The latter will not.
…
The significance of the perception of danger is not its imminence. It is that it renders the defensive force used really necessary and justifies the defender’s belief that he or she had no alternative but to take the attacker’s life.
But Justice Kirby said this was not the case with Mrs Osland. He found her jury had been entitled to decide that her killing of her husband had been ‘premeditated and effected with calm deliberation and detached reflection rather than reasonably necessary to remove further violence threatening her with death or really serious injury’.
Justice Kirby said it also was ‘scarcely surprising’ the jury had not found she had been provoked into killing.
Justice Kirby: Although, as described by…[Mrs Osland and David], the past conduct of the deceased towards them was deplorable, there was clear evidence (most especially in the intercepted telephone conversations) that such conduct had abated in the years immediately preceding the killing. There was no suggestion in…[Mrs Osland’s] evidence of any particular conduct…[by Frank Osland] in the day or days preceding his death which could be described as ‘the last straw’.
Even if the jury were satisfied that…[Mrs Osland] could be classified as a ‘battered woman’ and a true victim of ‘battered wife’s syndrome’…there would have been abundant justification for a conclusion that her conduct, in furtherance of her plan to kill her husband was coolly premeditated…There was little or no evidence…she had lost that level of self-control to justify a finding that she had been provoked into killing.
Justice Ian Callinan’s rejection of battered women’s syndrome as a legal defence was unequivocal.
Justice Callinan: The submission…that this Court should adopt a new and separate defence of battered woman syndrome, goes too far for this country.
The court’s decision triggered angry accusations from some feminists that it had been a big mistake to use Mrs Osland’s case to try to get a battered women’s syndrome legal defence accepted. Her loss, they said, had ruined it for all domestic violence victims.
In The Age newspaper, Tania Ewing commentated:
Osland was not a typical case of domestic abuse. The average victim is a woman who snaps after years of abuse, killing her abuser either in the heat of an attack or because she is in immediate danger of either being hurt again or killed. Such women, classic examples of self-defence, are generally persuaded to plead guilty to manslaughter rather than go to trial.
The women usually go free, but the law doesn’t alter. Osland’s case was meant to change all that.
But reading the High Court decision, it becomes clear how Osland was simply not enough of a victim to earn the judges’ sympathy.
…
In the end they [Mrs Osland’s defence team] tried to win two battles—Heather’s and that of all victims of domestic violence who turn on their abuser. Instead, both battles were lost.
A few days later, in the rival Herald Sun newspaper, Jill Singer wrote:
Heather Osland’s fan club is doing all women a disservice by continuing to champion a woman who killed her husband in cold blood, ruined one son’s life by encouraging him to kill for her and considered having another son bashed and killed if he spoke against her. It’s time they found a more deserving cause.
On 29 December 1998, this letter from Heather Osland appeared in The Age newspaper.
My heart just aches from not being able to speak out to correct all the wrong reports on my case. I have asked myself over and over: ‘How could a jury convict me after listening to my four children give evidence of what was inflicted on us by a cruel and sadistic man who is not here today to account for his actions? A man who tortured their minds—and the mother they loved’. People say, ‘If only I could turn back time’. Can my life be turned around? Would I choose death the first time Frank held my head under water because the bath had been filled past his required depth? The pleading to stop him cutting my face, or should I have bled to death letting him slice my face to pieces with razor blades? Not once, but many times? He said I was too pretty and was flirting. I was afraid to look sideways at a man for fear of the consequences.
My daughter, Erica, cried in my arms when visiting me this month. She will never be able to forget Frank and violence while I’m locked away…She had to…fly from Perth to be with me when the High Court judges handed down their ‘wise’ decision to keep me behind bars.
This is a measure of her love for me, a convicted criminal. I should have died so they could live. Sharon, at 18 years, being smashed against the side brick wall after being dragged up the road. Her sin was wanting to be with her new boyfriend on Christmas Day. Sharon cannot cope with her unhappy past.
Do you know the heartache of having a son on heroin and watching his pain? Paul’s addiction was a way of hiding what was happening behind closed doors, of not having the freedom to love his mother, to enter the house. My children have not lived together since 1982 as family. Does anyone know that? Does anyone care?
David deserves to be free. He acted in self-defence to save my life and his own, but he is not free while I’m in prison.
The law has to change for the many women who will find themselves in the same position as me. Self-defence is not immediate, self-defence is your state of mind when you want to survive. It is the fear of not surviving another day.
Get my four children to tell stories of Frank and watch their behaviour, Each one trembles at the mention of his name as they recall horrible memories of his cruelty.
I ask, in wisdom now: should my original counsel have persuaded me to plead manslaughter? Should I have had a strong, aggressive, male barrister to fight my defence in the Bendigo Supreme Court? Would my life be different now? I might be lucky and be home free. But I never felt I was guilty of murder. Frank was the guilty one—he ‘murdered’ us every day we were with him. Frank raped my mind and my body and now he is raping my soul. ‘Not guilty to murder’—self-defence was my choice. I will pay my debt to society for being so naïve. I will go without seeing my grandchildren born and grow. I will stay locked away because from the dock I looked up at a face that I thought I could trust and respect. The judge.
Premeditation? We had no plan. If you knew the days leading up to Frank’s death, you might have the tiniest bit of understanding; waiting for his arrival home from work, listening as always for his footsteps. Was he laughing, was he creeping down the driveway? Then his death threats, and the belting of my son. My faith in the justice system has gone, respect for the police force that failed me has gone, my belief that there was a reason I survived those years has gone. But I will not let anyone take away my belief that there is a God, who knows all the answers. Have I been sacrificed by feminists, as Tania Ewing argued on this page on 14 December?
It’s the justice system that let me down. I will carry the cross for other women now this fight has started.
I will trust my so-called ‘feminist friends’.
If it wasn’t for them I would never have survived the disappointment brought on by the legal system. I was told by my solicitor that I could go higher. The High Court? Reading a book in my cell called ‘Women and the Law’ by Dr Jocelynne Scutt impressed me. Would this woman be my answer? I needed someone who would believe in me.
Would my evidence be different now? Yes, I’m wiser. I’m not as traumatised by memories, I know my rights. I would let all the truth come out, the anal rape, the violence, the fear to move from one room to another, being under his total control. I’d ask why he was so powerful. I needed my conviction overturned by the High Court to have a retrial to be able to do this.
If the Government gave $1 for the 180 000 women who were kicked, punched, shot at and scalded by their partners (according the Bureau of Statistics for 1996), it would help my barrister, Jocelynne Scutt, and the support team lodge papers at the United Nations to address the plight of women like me. Violence to women and children will not stop until authorities protect and educate. Police should not leave when a mother is protecting herself and her children.
I’ve gone from one type of prison to another. Frank’s words—‘you’re good for nothing’—ring true. Do I owe society a debt because I survived? Have you seen the terror in my eyes, have you experienced the violence I have, day after day, have you seen the tears I silently cry? If you have, then you have my permission to judge. ‘He who is without sin cast the first stone’.
The love of my little dog Bonnie saved my life. I would have committed suicide—my life was too hard. Frank took great pleasure in harming and killing our pets. I can still recall the trauma from watching Frank repetitively belt our German Shepherd.
After the last belting we had to have the dog put down.
I cannot forget and I won’t begin to forget until I am free. I take solace in the belief that what has happened to me has happened for a reason. The law has to change for the many women who will find themselves in the same position.
But one day when this nightmare ends, I will decide if my life has been worthwhile—then close my eyes to sleep peacefully.
Rejection by the High Court is almost always the end of the road for any convicted person in Australia, but not for Mrs Osland and her supporters. They petitioned and campaigned and even held prayer vigils over the next couple of years to try to get her pardoned by the Governor of Victoria. Finally, the Victorian government appointed three Queen’s Counsels to investigate whether to recommend a pardon. In September 2001, nearly three years after the High Court decision and almost 10 years after her son smashed that pole down on his stepfather’s head—their answer was, ‘No’.
The head of Mrs Osland’s support group, Christine Momot, told reporters Mrs Osland was devastated at this final knock back.
Ms Momot: It’s like the government is saying, ‘We don’t believe your story. We don’t believe your situation was very bad’. It’s a vote of no confidence in Heather.
I feel very strongly that the state has failed to protect Heather Osland and her children.
Jennifer Besim killed her husband of 17 years by shattering a heavy crystal vase—one of their wedding presents—against his head. From just three to four metres, Mrs Besim hurled the 30-centimetre-tall vase at 42-year-old David Besim. Weighing more than a kilogram, the ornate projectile scored a deadly bull’s-eye on the right side of Mr Besim’s head.
Watching this final act of the Besim marriage tragedy, was their 11-year-old son. Moments before, the boy had been playing chasey with his mum, younger brother and a couple of friends. The day before he had celebrated his 11th birthday. But about 5.30 pm on 24 September 2002, the fun stopped. That was when he saw his furious mother take flowers out of the wedding-gift vase and hold it out toward his mad-as-hell dad. The boy closed his eyes. He heard a crash. When he dared look, his world had turned upside down. His mother had fatally injured his father.
At her murder trial, Jennifer Besim vividly recalled killing her husband.
Mrs Besim: I picked up the vase and threw it at him…
Barrister: What did David do after he was hit by the vase?
Mrs Besim: He stood there for a few seconds and then he said to me, ‘Now you’ve really done it. You’ve really done it. That hurts’. And then he dropped to his knees. He said to me, ‘It hurts’. He got to his feet. He said, ‘It hurts’. I said, ‘Then I will take you to the hospital or call somebody’ and he said ‘No’ and then he said, ‘Really, really hurts’. I said, ‘I will call an ambulance’ and I went into the bathroom and I got him a wet towel and put it on his face.
…
I went down to our bedroom down the other end of the house. I rang the ambulance and David had been walking around and he was yelling at me and he was yelling at…[their son] and he [David] came round the side of the bed and he pushed me out of the way and grabbed the phone out of my hand and told them he didn’t want them and slapped the phone down.
…
He was just yelling. He kept on yelling.
…
He was just saying he didn’t want my help. He didn’t want any help. He couldn’t handle life any more.
Nearly a year and a half after watching his mother kill his father, the Besims’ eldest son told a court about it.
Besim Junior: My mum, she walked away. Then my dad said something. She picked up the vase and threw it at him.
Prosecutor: Did the vase hit anyone?
Besim Junior: Yes. My dad.
Prosecutor: Whereabouts?
Besim Junior: In the head.
Prosecutor: Yes?
Besim Junior: Face-on.
Prosecutor: Did you actually see the vase hit your father?
Besim Junior: No. I was crying with my eyes closed but I knew it hit him, and he fell on to the ground.
Prosecutor: What was it that you saw before you closed your eyes?
Besim Junior: Dad face-on. Mum with a vase in her hands.
Prosecutor: What did you see when you opened your eyes again?
Besim Junior: My dad bleeding from the nose and mouth…My mum picked him up, took him to the shower to get himself cleaned up and rang an ambulance…My mum was helping him…After a couple of minutes I went down to see what was happening. My dad was in the shower cleaning himself up. He had a face washer over his nose and mouth so he couldn’t bleed all over the place.
Prosecutor: And after your dad got out of the shower?
Besim Junior: He got back on the phone and told the ambulance that he didn’t need them…He hang up the phone. He couldn’t say anything. My mum helped him back down to the blue couch where I was sitting before…He went unconscious and he never woke up again. Mum called the ambulance back up. They came then. That’s about it.
After slamming down the phone on the ambulance dispatcher, David Besim raged for 17 minutes before collapsing unconscious. His wife called the emergency service again and gave a matter-of-fact description of what had happened.
Mrs Besim: My husband come home and smacked me in the face so I smacked him back with a vase and he’s just acting really weird.
Mrs Besim told police she had been playing with the kids when her husband returned from his city souvenir store to their Kilgerron Court home in the outer Melbourne suburb of Narre Warren. He was, she said, in ‘one of his moods’. A little drunk after downing three or four cans of ‘UDL’ cocktails, he was angry. Angry at the kids for leaving ‘Lego’ pieces around the lounge room—just generally angry. He called his wife a ‘gutter slut’ and followed her into the garage and around the house berating her. After she told their sons and the neighbours’ children to go play next door, David’s anger exploded.
Mrs Besim: He punched me in the face.
Police:…Did it knock you over?
Mrs Besim: No, it just made me angry…He carried on about things I had done that day or I hadn’t done. And I said, ‘It’s a shame the kids can’t play here when you are around, when you come home, they all have to leave’. And he hit me and I hit him back.
The Besims’ eldest son remembered playing chasey with his mother, brother and friends and then seeing his father coming out of the garage clearly angry about something. He remembered hearing his parents yelling—even when he was at the bottom of the garden feeding the family dogs.
Prosecutor: What happened next?
Besim Junior: Next was my dad hit her in the chin here [indicating under his chin].
Prosecutor: Would you describe how he did that?
Besim Junior: There was a block or attack in the Kung Fu exercise.
The boy showed the court how his father had karate-punched his mother with the fleshy part of his hand.
Prosecutor: Then what happened?
Besim Junior: My mum got angry and slapped him back…She told me to ring the police.
He said his mother threw him the cordless phone but that he had fumbled the catch and the phone hit the floor spilling its batteries. ‘I am not a very good catch’ the boy told the court but, being a boy, he quickly added, ‘The throw wasn’t good’. Neither the near-farce of the spilt catch nor David’s grovelling apology could stop things barrelling toward their fatal conclusion.
Prosecutor: What did he say?
Besim Junior: ‘Oh please don’t ring the police. I am sorry to hit you that hard.’
Prosecutor: Did your mother say anything?
Besim Junior: She was still very angry because she said, ‘Okay, fine. Go and get your stuff, we are leaving. Just go and hop in the car’. Dad said, ‘No you are not going to leave’.
Prosecutor: What happened then?
Besim Junior: My mum, she walked away. Then my dad said something. She picked up the vase and threw it at him…
Mrs Besim filled in some of what her son had missed out about the run-up to her killing her husband.
Mrs Besim: He called me a gutter slut…He always called me that when he was angry…He would come right up to your face and he would just yell in your face and just stand over you with his fists clenched, screaming.
Barrister: What did he yell this night?
Mrs Besim: That I would do what he told me to do and he said I was a gutter slut and I would be nothing without him and he was just saying he would make the decisions, not me…
When he was yelling out, I turned away from him and he yelled out to me that I was just a gutter slut and I turned around because I was going to say ‘I don’t want you to call me that any more’ and he punched me in the face.
I fell over backward and then I got up and he came towards me and I slapped his face…He said he was really sorry that he didn’t mean to hit me that hard.
I said, I wasn’t going to take it any more…I grabbed the phone off the bench and I threw it to…[their son] because David was too close to me so I thought…[her son] would have a better chance and I threw it to him and told him to call the police.
After the phone broke open, Mrs Besim told the court she decided she and her children had to get out of the house.
Mrs Besim: I was frightened. I didn’t know what he was going to do.
…
[David said] ‘Stay where you are. You’re not going anywhere. I’m going to burn the house down with you and the kids in it.’
Barrister: What did you do then?
Mrs Besim: I picked up the vase and threw it at him.
Barrister: Why?
Mrs Besim: Because he was too close to…[their son] and I didn’t know how we were going to get out and I just wanted him to stop coming towards me and I just threw it at him to stop him coming at me.
Barrister: When you threw that vase what did you fear he would do?
Mrs Besim: I don’t know what he would do…When he loses it, he’s capable of anything. I don’t know what he would have done. He could have done anything. My child was there…
Prosecutor Boris Kayser attacked Mrs Besim’s claim that her husband had threatened to burn down the house with them all in it. He told the jury that if her husband had really said such a horrific thing, she would have told the police about it soon afterwards. Instead, she had just told them she had ‘smacked’ him with the vase because she was angry after he punched her. She told police that after many beatings by her husband she had learnt what to do.
Mrs Besim: A couple of years ago, I realised if I fought back, it didn’t last as long. So I just fight back.
She said she had never reported any of the beatings to the police.
Mrs Besim: It’s embarrassing. It’s humiliating. He’s always sorry in the morning. Nobody wants to admit something like that in their marriage. Do they?
Mrs Besim told the police David had never caused her serious injuries, just ‘black eyes, bruises…just bruises, really’.
Police: Have you thought about seriously hurting him in the past?
Mrs Besim: Yes. If someone hurts you, you want to hurt them back. Of course you do.
Police: What sort of thoughts have you had?
Mrs Besim: Just do back to him what he does to me. If you’re not physically as strong as the other person then you can’t just hit back, can you?
Police: Hitting someone with a vase of that size to the head is bound to cause quite serious injury. What do you say to that?
Mrs Besim: If I could change it I would but I did it. What do you want me to say…I didn’t think about it.
I threw the vase to stop him carrying on…[stop him] yelling and abusing me…
Police: If you hadn’t thrown the vase what do you think may have happened?
Mrs Besim: [I would be] hit again and he’d make us all stay there and [he would] just keep screaming perhaps still screaming…with the boys and me listening to him.
Mr Kayser told the jury, ‘Not once did she say, “I thought I was in danger of being seriously attacked” or “I thought my life was in danger” or “I did it in self-defence” or words to that effect’. The prosecutor told the jurors that even if they accepted all Mrs Besim’s claims against her husband, she still had not acted in self-defence by throwing the vase at him. Mr Kayser said Mrs Besim had told police that the very worst she had expected to have happened—if she had not hurled the vase—was for David to bruise her and to keep on screaming.
In his cross-examination of Mrs Besim, Mr Kayser asked her why she had not run away after throwing the vase at her husband.
Mr Kayser: If what you say is true and he had made this horrific threat [to incinerate them all] why would you not grab your child and run as fast as you could?
Mrs Besim: When I threw the vase, I surprised myself as much as I surprised him. Things had changed by then. I had done something that was just absolutely shocking. I couldn’t believe I did that. Why would I run and not help him?
Mr Kayser: Because this was the man, according to you, who had just uttered the most blood-curdling murderous threat to you and the children.
Mrs Besim: He said those things, yes, but I still was not going to leave him like that…He was still my husband. He needed help so I helped him.
Mrs Besim, 37 when she killed her husband, told her trial she met him in 1988. She had been 19, he 24. At first things were good.
Mrs Besim: He was a lot of fun, very outgoing, ambitious. He was fun to be around.
Things started to sour about a year later.
Mrs Besim: He was very, very jealous all the time. He didn’t like me talking to any other males or wearing certain things. He would get very angry with me all the time if I said certain things or did certain things.
She said the first time David Besim hit her to the floor was when she told him she had asked his father why he never praised his son.
Mrs Besim: He tried very hard for his father to say good things about him. I asked his father why he never did that and he said it was better to be critical [because] he [David] would try harder and succeed more…when I told David what I had asked his father…he got very angry…that was the first time he hit me to the floor. He got on top of me and held me down and he put his hands around my throat and he was hitting me…he got off me and then he started apologising, said it wouldn’t happen again and he was very sorry.
Eight months later, they moved in together but David Besim did not keep his promise.
Mrs Besim: He did kick me in the ear once and I couldn’t hear for days.
Mrs Besim said she never got medical treatment for the injuries David inflicted on her and she never reported him to the police.
Mrs Besim: I thought we could deal with it because he was always so sorry afterwards and I really thought we could deal with it and I was embarrassed.
Barrister: Why did you marry him if you were the subject of this continuous abuse?
Mrs Besim: Because I really thought I could help him and that he would change and I did love him. He was a lot of fun a lot of the time. He was good to be around and I thought we could deal with the problem and he begged me all the time to help him.
He didn’t handle stress at all. It always made him more violent.
The trial heard that in a diary she wrote in 1991 and 1992, Mrs Besim wrote about her nightmare marriage. She wrote that once when she was driving about 90 kilometres per hour in the inner lane of a freeway David had got so angry because she looked like she would miss a turn off, he grabbed the steering wheel.
Mrs Besim: He forced the car over to the gutter and it hit the gutter and flipped onto its roof.
Then there was the time she told him she was pregnant and he was furious because they had missed out on private health cover by ten days.
Mrs Besim: He was angry because it would cost him and he punched me in the stomach.
One St Valentine’s Day, David Besim put a knife to his wife’s throat and punched her pregnant stomach.
Barrister: Why didn’t you leave him?
Mrs Besim: Because I didn’t know where to go or what to do and I was not strong enough and I did love him.
Her husband’s sins were not restricted to violence.
Mrs Besim: We were having a spa…and I noticed a red light in the [central heating] duct…there was a red light flashing…and I told David…and he laughed at me at first and said there was nothing there…
The next day I said to him I wanted him to get up in the roof and have a look because I know that I saw a red light in there and he told me he had a camera in there.
First he told me I should be flattered because he liked to watch me and then I said I wasn’t flattered, I was hurt and he got angry and then he said it was because he wanted to make sure I wasn’t having an affair with anyone. Then he accused me of having an affair and he hit me in the face and just kept hitting me.
Mrs Besim said her husband’s violence and depression worsened in the last few months of his life after his 19-year-old son from his first marriage died.
Mrs Besim: He had never seen this son since he was a baby and he felt a lot of guilt and his depression hit an all-time low.
The week before David Besim died, Mrs Besim said he ‘cracked it’ after his children gave him presents for his birthday. Weighed down with guilt and depression over his dead son, he accused his second family of not celebrating his birthday enough.
Mrs Besim: He told the kids they could have their birthday presents back and they weren’t his sons anyway and he was ashamed to have them.
Then for the first time that week, he threatened to burn down the house with the whole family in it.
To bolster Mrs Besim’s claims of abuse by her husband, the defence produced his first wife. Fiona Margaret Bill told a familiar story of a jealous man prone to violent outbursts. She said once he had got so angry he threw her through a glass window. A few times he tried to choke her. It didn’t take much to trigger the violence.
Ms Bill: If I hadn’t cooked the dinner properly or it had been in the oven too long, David would usually throw it across the kitchen and call me a hopeless slut.
Even having friends over didn’t guarantee peace.
Ms Bill: We had some friends over and we were just discussing life in general and I happened to say that my dream would be to get married and have two children and just live happily ever after and he said that was stupid and unrealistic, my fucked-up imagination and I was a fool.
That’s when he grabbed me and pushed me up against the wall, holding me around the neck and then he just held me up and there were our friends there so it was a bit embarrassing as well.
David Besim also did not let the pregnancy of his then wife stop his violence.
Ms Bill: He punched me in the stomach when I was seven months pregnant…I ran out to the car and drove down to the doctor and he said the foetus was bruised from the hit.
Ms Bill’s eyes filled with tears and her voice shook a little as she told of David pushing her down some stairs when she was pregnant. Pausing to compose herself she told the court, ‘I had a miscarriage just after that’.
Their turbulent three-year marriage ended in 1983, but not before they had two sons. Ms Bill said both boys felt the sting of their father’s wrath. When one was barely six weeks old, she said, David had hit him ‘quite hard’ on his backside when he wouldn’t stop crying. When his other son was just one year old, David slapped him so hard he had to have an operation on his ear.
The prosecutor told the court there was no dispute that David Besim was a violent man who bashed his wives, but he said that did not mean Mrs Besim was justified in killing him. It did not mean that she was not guilty of committing manslaughter.
Mr Kayser: Sadly, David Besim was a wife beater but the fact that David Besim was a bad man, that he was a wife beater, does not mean he deserved to die.
…
It’s known in the law as the Texas defence—‘he deserved killing’—but it is not part of our law. It’s not known to the law. It’s known to the gossips.
…
The reason that we come to this court is because Jenny Besim was angry.
…
She tried to help him [after the vase hit]. Why? Because she knew that she had gone too far.
…
As Mrs Besim told the police and the triple 0 operator, ‘My husband hit me and I hit him back’.
Tit for tat.
Defence barrister Terry Forrest, QC, hit back strongly.
Mr Forrest: Tit for tat?! Are we at that stage in our society that a man can brutalise his wife for years, that he can punch her in the mouth, that he can threaten to incinerate the children and she is not entitled to defend herself? She acts out of anger? Tit for tat? Are we at that stage?
…
‘You should have stood there and taken your medicine?’ Is that what our law is telling Jenny Besim? Has our law come to that?
…
After 15 years of marriage, after scores of beatings, after secretly filming her in the bathroom…while she was naked, after keeping a baseball bat next to his bed to threaten her, after tormenting her for years, she has the temerity to act in self-defence and for that she ends up in this court facing one of the most serious counts known to the criminal law.
Every human life has value. Every person has rights, every person has dignity. David Besim denied his wife, Jenny, her equality, her dignity, her self-esteem, her sense of worth. He denied her the justice that we are seeking from you.
On 19 February 2004—19 months after Mrs Besim killed her husband—her jury went out to consider its verdict. Just two hours later, it returned. When the forewoman announced, ‘Not Guilty’, a wan-looking Mrs Besim put her hands to her mouth and seemed unsteady on her feet. Then she wept. With her family, friends and supporters loudly applauding, Justice Robert Redlich told her, ‘Mrs Besim, you are free to go’.
On the steps of the court, Mrs Besim told reporters she felt ‘very, very relieved’. She said, ‘I just want to get back to my beautiful boys, just get on with my life.’