5 July 1999
The Hon. Jan Wade
55 St Andrews Place
EAST MELBOURNE VIC 3002
Dear Madam Attorney
Petition of Mercy on Behalf of Marjorie Heather Osland
Please find enclosed an application, including attachments, requesting the exercise of your
discretion in recommending the granting of a pardon for Marjorie Heather Osland.
In October 1996 Mrs Osland was convicted of the murder of her husband, Frank Osland. She
has served three and a half years of a fourteen and a half-year sentence of imprisonment.
Heather Osland's case is extraordinary in many respects and as a result has been subject to
extensive legal and community discussion. It has been the reference point for recent statements
by the Chief Justice of the Supreme Court of Victoria in which he has argued that laws relating to
provocation and self-defence require reform. The issues in the case are so vexed and complex
that the judges of the High Court could not agree on whether Mrs Osland's conviction constituted
a miscarriage of justice in the strictly legal sense.
This is a case in which two people were charged with the murder of a man and in which the
person who struck the blow which resulted in the death was acquitted of murder while the other
party was convicted. It is a case in which a grown man and a grown woman were both
threatened with death by the victim in the hours before the death and in which the grown man's
plea of self-defence was accepted but the woman's was rejected. It is a case which underscores
flaws in the law in its failure to recognise gender difference as it relates to self defence and
This petition for mercy is written out of a depth of pain for Mrs Osland's plight but it is framed in
a set of clear and rational arguments which speak directly to the exceptional circumstances which
make the case for executive intervention. The petition provides substantial additional evidence
not presented at trial. This appears throughout the document and appendices but is highlighted
in section 2. This evidence adds further weight to Mrs Osland's consistent plea that she acted in
self-defence. This petition will submit that a range of critical evidence did not inform the
outcome of the trial either because: police failed to document it; it was refused admission
because of its 'hearsay' nature; Mrs Osland's psychological state meant that it could not be
recalled at the time. New evidence that Mrs Osland was violently assaulted by her husband the
night before his death is also submitted.
This application for Heather's pardon will submit the following arguments:
1. There is strong evidence that with appropriate law reform which acknowledged gender
difference in provocation and self-defence, Mrs Osland would have been found to have
acted in self-defence when Frank Osland was killed.
2. Additional and new evidence strongly supports Mrs Osland's claim that she acted in self-
defence when her husband died.
3. Mrs Osland's sentence is very severe when weighed in the context of her life experience
and, if served in full, will significantly exceed the terms served by women in recent,
comparable cases which we have been able to identify. Mrs Osland lived in a prison of
domestic violence for 13 years before entering her current prison. Her cumulative
suffering has been and continues to be so profound that executive intervention is now
warranted in ending it.
4. Even if it is accepted that Mrs Osland committed an offence, she and her family were so
offended against by the wider community in its failure to protect her and her children
from sustained torture, terror and trauma, that it is appropriate that the community's
representatives should now temper Mrs Osland's justice with compassion.
5. None of the reasons for which we as a community imprison people - to punish, to reform,
to deter others from offending - apply in her case any longer.
6. Her continuing imprisonment is an ongoing affront to people of justice and is corrosive of
people's faith in the justice system because it shows the law failing.
These arguments will be outlined in turn in detail below. The arguments are related and
complementary but independent. We believe that each argument represents a sufficiently strong
ground for issuing a pardon to Mrs Osland. Together, we believe them to represent an
overwhelming moral case for executive intervention. We wish to reinforce that whilst some of
the arguments to be made relate to the law and its exercise in Victoria, the case we are making
speaks to a profound ethical judgement and insight which we believe to reside within
governments of moral maturity and rigour. Maturity in people and in governments is sometimes
defined as the intersection between courage and compassion. It is this kind of ethical judgement
which this application invokes in the Victorian Government and its Governor in this petition.
This document has been prepared on behalf of Mrs Osland by volunteer supporters. Should you
or your officers require more information on any of the matters contained in the submission or to
meet to discuss any of the detail of the petition, I would welcome any request. I may be contacted
Thank you for your consideration of this request.
Advocate to Marjorie Heather Osland
Petition of Mercy
on Behalf of
MARJORIE HEATHER OSLAND
PETITION OF MERCY ON BEHALF OF MARJORIE HEATHER OSLAND
In October 1996 Mrs Osland was convicted of the murder of her husband, Frank Osland. She has served
three and a half years of a fourteen and a half year sentence of imprisonment.
Heather Osland's case is extraordinary in many respects and as a result has been subject to extensive
legal and community discussion. It has been the reference point for recent statements by the Chief
Justice of the Supreme Court of Victoria in which he has argued that laws relating to provocation and
self-defence require reform. The issues in the case are so vexed and complex that the judges of the High
Court could not agree on whether Mrs Osland's conviction constituted a miscarriage of justice in the
strictly legal sense.
This petition for mercy sets out the exceptional circumstances which make the case for executive
intervention. The petition provides substantial additional evidence not presented at trial. This appears
throughout the document and appendices but is highlighted in section two. This evidence adds further
weight to Mrs Osland's consistent plea that she acted in self defence. This petition will submit that a
range of critical evidence did not inform the outcome of the trial either because: police failed to
document it; it was refused admission because of its 'hearsay' nature; Mrs Osland's psychological state
meant that it could not be recalled at the time. New evidence that Mrs Osland was subjected to a life
threatening assault by her husband the night before his death is also submitted.
Each of the six arguments contained in this submission represents a sufficiently strong ground for issuing
a pardon to Mrs Osland. Together, the arguments represent an overwhelming moral case for executive
intervention. Whilst some of the arguments to be made relate to the law and its exercise in Victoria, the
petition speaks to a profound ethical judgement and insight which we believe to reside within
governments of moral maturity and rigour. Maturity in people and in governments is sometimes defined
as the intersection between courage and compassion. It is this kind of ethical judgement which this
application invokes in the Victorian Government and its Governor in this petition.
This petition was prepared with Mrs Osland's consent by a group of community volunteers over many
months. The people who prepared this petition, when confronted with the tragedy of Mrs Osland's case
and the depth and volume of her suffering, felt unable to allow it to rest in its current state of irresolution.
Page 2 of 4
ARGUMENTS IN SUPPORT OF THE PARDON OF HEATHER OSLAND
1. There is strong evidence that with appropriate law reform which acknowledged
gender difference in provocation and self-defence, Mrs Osland would have been
found to have acted in self-defence when Frank Osland was killed
(refer page 1)
There are strong grounds, based in fact, for laws on provocation and self-defence in murder
trials to be changed to encompass the experiences of battered women. This case has been
made most recently by the Chief Justice of the Supreme Court of Victoria.
A powerful argument of logic exists to suggest that Mrs Osland acted in self-defence and
appropriate law reform would allow the law to reflect this logic.
The grounds on which Mrs Osland's son, David Albion, was acquitted of murder were that he
was taking action to defend his own and his mother' life. David Albion was rightly
acquitted on the grounds of self defence.
Heather Osland believed herself to be close to death on many occasions, had good reasons for
believing so, and was ultimately forced to take steps to save her own life. Despite this
reality the law, as it currently operates, was compelled to deal with the circumstances of her
case in a way which would find her guilty of murder.
The charge of premeditation in Heather Osland's case fails to take into account the reality
faced by battered women.
2. Additional and new evidence strongly supports Mrs Osland's claim that she acted in
self-defence when her husband died (refer 12).
Fresh evidence does exist of life threatening violence against Mrs Osland on the night prior to
Frank Osland's death. This fresh evidence of violence on the evening prior to the killing,
when examined in conjunction with the related evidence at the trial, reaffirms Mrs Osland's
consistent claims that she acted in self defence.
Further to this new evidence, is a catalogue of additional evidence that was not heard at the
trial. This additional evidence is highly relevant and probative and buttresses Mrs Osland's
own evidence of her husband's unremitting violence.
This fresh and additional evidence is now available to be considered by you. It strongly
supports the exercise of your executive discretion in favour of Mrs Osland.
Page 3 of 4
3. Mrs Osland's sentence is very severe when weighed in the context of her life
experience and, if served in full, will significantly exceed the terms served by women
in recent, comparable cases which we have been able to identify. Mrs Osland lived
in a prison of domestic violence for 13 years before entering her current prison.
Her cumulative suffering has been and continues to be so profound that executive
intervention is now warranted in ending it (refer page 16).
The violence endured by Mrs Osland and her children was severe and unabated. Crimes
compensation was awarded to Mrs Osland's children for witnessing the violence to which
their mother was subjected.
To place Mrs Osland's fourteen and a half year term in context the outcomes of comparable
recent cases identified through coronial reports are cited. The comparison underscores the
disproportionate severity of outcome in her case.
Mrs Osland continues to live with the physical and psychological legacy of Frank Osland's
Mrs Osland's continued imprisonment is impacting adversely on her children.
4. Even if it is accepted that Mrs Osland committed an offence, she and her family
were so offended against by the wider community in its failure to protect her and
her children from sustained torture, terror and trauma, that it is appropriate that
the community's representatives should now temper Mrs Osland's justice with
compassion (refer page 22)
Despite eight attempts to leave and escape Frank Osland's violence, the community failed to
protect her and preserve her freedom and that of her children.
Despite being aware of the violence, police failed to take steps to protect Heather and her
Despite presenting with clear symptoms of abuse, Heather's general practitioner failed to
investigate the extreme violence to which she was being subjected.
5. None of the reasons for which we as a community imprison people - to punish, to
reform, to deter others from offending - apply in her case any longer (refer p25)
Incarceration for the purpose of Mrs Osland's punishment.
Incarceration for the purpose of Mrs Osland's reform.
Incarceration of Mrs Osland for the purpose of deterrence to others.
Mrs Osland as a productive citizen rather than a prisoner.
Page 4 of 4
6. Her continuing imprisonment is an ongoing affront to people of justice and is
corrosive of people's faith in the justice system because it shows the law failing.
Every public statement and policy decision which the Kennett Government has ever made on the
subject suggests its abhorrence of violence and the particular abhorrence it reserves for sexual
violence. It follows that the Government must agree that our laws must bear out intolerance for
sustained family violence, particularly sexual violence, and must demonstrate flexibility and
compassion for those who survive it. The outcome of Mrs Osland's case as it stands dishonours
the virtues of justice and compassion which should reside within us as a Victorian community.
We call on you to confirm the authority you have demonstrated in. other areas of family law by
enacting the reforms proposed by Justice Phillips and granting Mrs Osland's freedom on
This document argues that Heather Osland's continuing imprisonment is compounding the
system failure which made her its victim in so many ways in the first instance. We beseech you
to look again at Heather's collective experience and recognise that seen all together it represents
an accretion of extraordinary circumstances which have conspired to enact an injustice which
must now be righted. We appeal to the Government to once again display leadership; to
demonstrate decisive compassion; to right this wrong; and to give a woman back her life.
1. There is strong evidence that with appropriate law reform which
acknowledged gender difference in provocation and self-defence, Mrs Osland would
have been found to have acted in self-defence when Frank Osland was killed.
The Chief Justice of the Supreme Court of Victoria, Justice John Harber Phillips AC,
argued in a lecture on 21 April 1999 (1), that the long-established laws on provocation
and self-defence in murder trials should be changed by the Victorian State Government to
encompass the experiences of battered women. He stated that the laws had been
developed from a male perspective and did not adequately take account of the experiences
of a person trapped in a violent relationship and accused of a violent crime against their
spouse or partner. Justice Phillips statements were made in a lecture which addressed
Heather Osland's case. He confirmed in a radio interview on 22 April 1999 that his
comments were informed by the transcript of the judgement of Mrs Osland's appeal to the
High Court (PM, Radio National). The appeal was rejected on points of law.
The Chief Justice maintains that extensive Australian and international legal research
demonstrates that battered spouses sometimes suffer from a 'slow burn' of fear. This
research also demonstrates that this simmering fear may eventually erupt so that abused
spouses kill their partner some time after their last beating or when the partner sleeps.
This fact underpins a powerful argument to reform the law and extend our understanding
of the application of provocation and self-defence accordingly. This research has direct
application to Mrs Osland's case.
Thinking outside of the law temporarily, a powerful argument of logic can be made that
Heather Osland did act in self-defence. As the law currently operates it poses two
significant hurdles to this argument of logic. Justice Phillip's proposed amendments
would dispose of those two hurdles. His proposed amendments will be returned to.
First, there is a need to outline the circumstances of the case and why from an objective
point of view the evidence suggests Heather Osland and David Albion acted in self-
defence when Frank Osland was killed.
In none of the trials or appeals surrounding this case has it ever been denied that Heather
Osland was subjected by Frank Osland to over a decade of unspeakable psychological,
physical and sexual abuse. David Albion, Heather's son, shared in this experience and
was also seriously abused by Frank Osland.
The grounds on which David Albion was acquitted of murder were that he was taking action to defend
his own and his mother's life. David considered the danger to his mother's life to be graver than that to
his own. Central to David Albion's decision not to comply with Mr Osland's orders to leave the house
(in which he lived with his mother) on threat of death, was his belief that left alone with Mr Osland his
mother would be killed. Mr Albion's judgement in this matter was informed by his witness of the
escalating tension in the house and the continued violence to which his mother was being subjected.
David feared for his own life but knew he could leave. He considered his mother's life to be in greater
danger on at least three grounds. She was:
trapped in the relationship;
less physically capable of defending herself,
the primary object of Mr Osland's aggression.
Heather Osland shared her son's perception that her life was in serious danger and could be lost (2). She
knew that she was fortunate to not already be dead and she lived with the threat of death not only on the
day that Frank Osland died but as an abiding, oppressive shadow on her life. By the time Mr Osland
died, Mrs Osland was scarcely living so much as surviving. High Court Justice Callinan described her
situation as being characterised by violent "repression". Her quality of life was appalling. But this
application is not arguing that Mrs Osland was justified in participating in a course of action which
resulted in her husband's death simply because he had debased the quality of her life. (Section 3 will
argue that the extended diminution of her quality of life is a separate ground for mercy to be shown). It
is arguing, in part, that in participating in this course of action she was acting out of desperation to save
her own life and that the law, with appropriate reform, would reflect that reality.
Mrs Osland's fear that she would die at her husband's hands was not an imagined state, it was based on
sound empirical evidence, lived experience. Whilst she had no way of knowing it at the time, the
research literature provides strong grounds for her fear. Almost 60% of female victims of homicide are
killed by an intimate partner (Carcach & James, 1998). There is ample evidence to show that women in
Heather Osland's situation experience 'death by instalment' (Bartal, 1996; Walker, 1984; Browne, 1987;
and Dobash, 1992 ). Heather Osland believed herself to be close to death on many occasions. There
were at least three clear reasons for this.
The first was that Frank had beaten Heather so badly on occasions that she thought she may die. He had
nearly drowned her a number of times. He had held a loaded gun to her head. His violence was
arbitrary, precipitate, extreme and uncontrolled. He had almost been over the precipice of extreme
violence into murder a number of times (see attachment 1.2 - statutory declaration of Lindsay
McDennott). Testimony has been given that police considered Frank Osland too dangerous for them to
attempt to deal with (see attachment 1.1 - statutory declaration of Warren Conroy,). (3)
The second reason for Mrs Osland's fear of dying at her husband's hands was that he told her he
was capable of murdering her and would murder her if her behaviour warranted it. He wielded a
supreme autocratic power within the relationship which led both Heather and himself to believe
that he controlled whether she lived or died. His threats of murder were accompanied by
uncontrolled violence. This, coupled with the fact that he had a habit of making extreme and
detailed violent threats, and then carrying them out, gave a terrifying point to his equally detailed
threats to murder. Other threats: such as the slaughter of the family pets in the presence of her
children; such as his increasingly violent rape of her; such as his axing down of the door of her
flat, to forcibly resume his custody of her during one of her attempts to escape; had already
demonstrated his ruthlessness (see attachments 1.4, 1.5, 1.6, 1.7, 1.8 & 1.9 - various statutory
declarations). Other acts of violence occurred without warning, such as his sexual and physical
assaults on her children, including breaking the nose of her daughter, a child at the time.
Thirdly, Mrs Osland could not leave and while she stayed she was not protected by the law
enforcement agents of the community charged with protection of those subjected to criminal
assault (see attachments 1.4, 1.5, 1.7,1.8, 1.9 - various statutory declaration; attachment 11 -
letter from Domestic Violence and Incest Resource Centre). The grounds for the police to
charge Mr Osland with criminal assault were so many and so clear that the fact that they chose
not to do so sent a clear signal to Heather and David that they were on their own. Heather
Osland is quoted as saying "Frank believed he owned the air 1 breathed and told me he could
stop that whenever he liked." (see attachment 14 Heather's story, Release Heather Booklet, page
13). The potency of this threat - its credibility for Heather - lies in the fact that confirmed,
repeated and extreme violence, testified to by neighbours and acknowledged by police, had never
prompted a legal intervention in the past. Paul Albion, another of Heather's sons, broke down
on the witness stand while giving evidence that the family stopped calling the police because they
failed to intervene and the violence intensified after they left. Mrs Osland and Warren Conroy
gave evidence that Frank Osland ordered the police off the property and that they left (see
attachment 1.1 - statutory declaration of Warren Conroy (page 4). At the trial, Justice Hedigan
"Thatcher checked the police records about attendances on domestic scenes. On 7 April
1985 there was a 'domestic' at 6 Reception Avenue. There were no other police
attendances recorded either at 43 Moran Street, 6 Reception Avenue or Rowan Avenue.
He conceded and indeed it is apparent if you accept the evidence of other witnesses, there
were a number of other police attendances which weren't recorded, either through
incompetence, laziness, or exclusion on grounds that seemed good to the person who
should have recorded it at the time - some of them weren't recorded."
The grim irony of this is that when Frank rather than Heather Osland's life was taken, albeit by a
blow struck by Heather's son, Heather Osland felt the full force of the law immediately the death
was detected. As a last resort she took measures to defend her life and was party to a single act
of physical violence. Frank to literally a countless number. He was never charged with an act
of violence (4) let alone convicted. She was charged, convicted and sentenced to a term of
imprisonment which suggested that this was like any other murder case.
Evidence accepted at the case of Chhay, referred to by Justice Phillips and decided by the
Criminal Court of Appeal of New South Wales in 1994 is relevant here. In that case Chief
Justice Gleeson cited a passage from an article 'Battered Women and Provocation' by D.
Nicholson and R.Sanghvi  Crim LR 728 at 730:
"According to research and many cases themselves, battered women tend not to react with
instant violence to taunts or violence as men do . For one thing, they learn that this is
likely to lead to a bigger beating. Instead, they typically respond by suffering a 'slow-
bum' of fear, despair and anger which eventually erupts into the killing of their batterer,
usually when he is asleep, drunk or otherwise indisposed."
David Albion killed Frank Osland by striking him a blow with a piece of pipe. David was
acquitted of murder on grounds of self-defence. His mother became aware while David was on
the witness stand that Mr Osland had sexually assaulted her son while he was still a child. She
was traumatised by this discovery. His self-defence must have seemed reasonable to a jury who
would find it unpardonable that a man could sexually assault his wife's male child. But Heather
Osland's sexual abuse at the hands of her husband was sustained, brutal, and unremitting. It was
unimpeded by doctors who repeatedly treated her for its related physical trauma and prescribed
anti-depressants for its equally self-evident psychological trauma but never made an intervention
to treat the violence which was its unmistakable source.
Heather Osland, we are asked to accept, was not acting in self-defence: neither when she
repeatedly left and was forcibly returned (8 times), when she repeatedly asked police authorities
to protect her children, when she repeatedly presented with evidence to professionals that she
was being brutally physically violated, or when she drugged her husband and witnessed her son
strike a blow which killed him. For having the temerity to argue that she was acting in self-
defence Mrs Osland was sentenced to fourteen and a half years in prison. If served, this will be
by three times the longest custodial sentence served for a like case in Australia's recent history
that we have been able to identify (see section 3 for comparable cases). If the only option
available to a sentencing judge in these circumstances is to treat this woman as a cold blooded
murderer, it is time for the law to be changed. (5)
Justice Phillips sets out clearly why, in the face of the logic that Heather Osland acted in self-
defence, he believes the law, as it currently operates, was compelled to deal with the
circumstances of her case in a way which would find her guilty of murder.
He notes that at the trial of Mrs Osland in which the defence raised the defences of self defence
"There was undisputed evidence that Mrs Osland and her son dug a hole (and the jury could
find it was a grave) some hours before her husband met his death during the evening of 31
“There was undisputed evidence that the deceased met his death while asleep in his bed - that
sleep being induced by drugs covertly administered to him by Mrs Osland."
"The digging of the grave was described by the Court of Appeal as an insuperable hurdle to
self defence. No doubt the drugging also presented a hurdle..."
"There was undisputed evidence of grave physical and psychological abuse of her and her
children by her husband for a number of years ... There was evidence that on 28 July the
husband had yelled at her and pushed her ordering her to get some metal joints for a bed.
She did not suggest any particular incident occurred thereafter immediately before the killing
which triggered it off. She said in her evidence, however, that she lived in constant fear that
he would kill her and her son who had also suffered constant abuse...."
"The Court of Appeal said that the drugging of the deceased presented an insuperable hurdle
in the way of a defence of provocation."
This essentially was the basis on which Mrs Osland was convicted. Why in the face of this
evidence David Albion was acquitted at a separate trial is the key focus of the High Court's
appeal judgement and will not be addressed here except to say this. It is sometimes forgotten in
the context of this case that evidence was given at the trial that Frank Osland assaulted, and
threatened to murder her on the day on which he was himself killed. David Albion clearly
remembered the incident (see section 2). But, as in many other respects, Mrs Osland's sustained
experience of violence worked against her in this. The memory for Mrs Osland had blurred to
an image of cowering beneath her husband while he towered threateningly over her. She
suffered memory loss as to the detail of some instances of Frank Osland's abuse whilst she could
remember other instances clearly. Her failure of detailed memory in this instance in
juxtaposition with David Albion's lucid recollection of the assault upon himself (resulting from
his intervention) may partly explain her conviction and his acquittal. The blocking out of
memories of violence is a well documented symptom of protracted and extreme abuse (Herman,
1992). There is ample evidence that Mrs Osland's abuse was protracted and extreme (6) (this
was confirmed in clinical evidence submitted at trial by Dr Ken Byrne).
Justice Phillips also notes that:
"In Mrs Osland's trial, a forensic psychologist, Dr Kenneth Byrne, was called for the
defence and gave a deal of evidence without objection. Justices Gaudron and Gummow,
observing that it must now be accepted that the battered wife syndrome is a proper matter
for expert evidence, noted:
'Some matters which, according to Dr Byrne's evidence, are characteristic of
battered women, but not necessarily present in all cases:
1.They are ashamed, fear telling others of their predicament and keep it secret.
2.They tend to relive their experiences and, if frightened or intimidated, their
thinking may be cloudy and unfocussed.
3.They have an increased arousal and become acutely aware of any signal
of danger from their partner.
4.They may stay in an abusive relationship because they believe that, if
they leave, the other person will find them or take revenge on other members of
5.In severe cases, they may live with the belief that one day they will be killed by
the other person.' "
Dr Byrne, a pre-eminent clinician specialising in this field, diagnosed Mrs Osland as being at the
most extreme end of battered woman syndrome. There is solid evidence that all of the
characteristics cited by Dr Byrne were evinced by Mrs Osland (see attachment 2, report of Dr
Byrne). Dr Byrne's report also refers to 8 indicators, which Amnesty International has identified
as signifiers of psychological torture. Dr Byrne diagnosed Mrs Osland as suffering from all of
these 8 signifiers (see attachment 3 - report of Dr Byrne (page 16).
Justice Phillips goes on to say:
"The same judges acknowledged that the ordinary person was unlikely to be aware of
some of these matters including the heightened arousal and awareness of danger and that
such matters, if appropriately raised in evidence, may be relevant to considerations of
both self-defence and provocation."
In fact the direction given to the jury at Mrs Osland's trial on these matters was consistent with
the current law and made little allowance for her brutalisation. The direction to the jury
assumed they had a sufficiently high level of knowledge about the effects of being battered to
require very little direction on this matter.
In commenting on this case, Melbourne University criminal law lecturer, Bronwyn Bartal, has
argued that "the importance of evidence of the abuse and abusive relationships is to explain why
behaviour which is not immediately understandable as reasonable becomes so" (Brown, 1999).
In making this point Bartal refers to the insuperable hurdle to self-defence' within the existing
law cited by Justice Phillips, the digging of a hole. It appears that it was on this hole that Mrs
Osland's (but not Mr Albion's) plea of self-defence stumbled.
Consider the case of a prisoner of war who kills her oppressor in order to escape the ongoing rape
and torture to which she is subject. Like Mrs Osland, her principle objective would not be to
have the guard who tortures and rapes her die, but for herself to survive and escape the torture
and rape. If this meant her guard being struck a blow by another man which would liberate her
she may agree to this. She may even agree to dig a hole with her hands in the hours before the
blow was struck with a vague intention of subsequently concealing her act. But she would be no
more murdering in cold blood than Heather Osland was. The charge of premeditation in
Heather Osland's case is as contextless as it would be in the case of a Balkan prisoner of war or
any other hostage reduced to near complete powerlessness and attempting to survive. Apart
from reference to a hostage situation, it is difficult for many men to conceive of how a level of
planning may be involved in order to survive. The law reflects this masculine incomprehension.
For women trapped in brutalising relationships no such leap of understanding is required.
"If it strains credulity to imagine what an 'ordinary man' would do in the position of the
battered spouse, it is probably because men do not typically find themselves in that
situation. Some women do, however. The definition of what is reasonable must be
adapted to circumstances which are, by and large, foreign to the world inhabited by the
hypothetical 'reasonable man"'. (Justice Bertha Wilson in the Canadian Court Case of
Lavallee in 1996)
A fundamental technique of torture is to keep the victim in a constant state of agitation as to
when the next act of violence will occur. Heather Osland knew what that agitation felt like.
Years after Frank Osland was dead, seemingly innocent domestic events ingrained in her
consciousness through their association with his violence continued to unnerve her - the boiling
of a kettle is an example. If the temperature of his hot drinks was imperfect, Mr Osland
sometimes threw the near boiling, water on Heather. Of course, the optimum temperature
changed with his moods and serving a drink at the right temperature was not a matter which
could be perfected to obviate being scalded (Chris Momot's evidence at the Sentencing Hearing
in October 1996).
The arbitrariness of Frank Osland's violence heightened tension. Its threat was held in reserve
so that the subtext of violence informed every interchange, buttressing his power. Just as the
threat of lynching in the American south was employed to keep all blacks in awe and fear, Frank
Osland's threats of violence interspersed with shocking and unpredictable outbreaks of terror
maintained his authority and fanned Mrs Osland's agitation. An understanding of the effects of
torture blunts the logic of reliance on an immediate act of provocation to justify self-defence in
Mrs Osland's case. Yet this is the logic that her case has hung upon within our legal system.
The fact that one act of provocation, in a very long line, may well have occurred on the night of
Mr Osland's death is, in many respects, beside the point.
Many authoritative texts on rape make clear that for the victim, sexual violence is frequently
experienced as life threatening. Heather Osland lived in a world pervaded by sexual violence.
The way in which the current law addressed her case entirely failed to acknowledge this in
determining her guilt or otherwise. Heather Osland was not living in a situation that most
people would consider normal. The severity of her sentence, in an objective sense, demonstrates
a similar failure to account for this. Again, "If the law gives courts no option but to treat her as a
cold-blooded criminal, it is time to change the law" (see attachment 5 - Age editorial 'Osland :
Justice Lags Behind'). This is precisely what Justice Phillips proposes.
Many Australians have been moved by the case of 'Breaker' Morant executed as a result of a
criminal trial which applied civilian codes of 'reasonable' behaviour to a war situation. A similar
distortion pertains if we apply a strict code of what is 'reasonable' to women surviving in
situations of extreme domestic violence. The solution, we all agree, is not for them to kill but
for there to be effective application of legal intervention from police and courts. Efforts to
strengthen such interventions have improved in Victoria and at the national level in the time
since Frank Osland's death (effectively acknowledging their previous inadequacy). They were
so inadequate in the period before Frank Osland's death as to present Heather Osland and David
Albion with the unavoidable impression that they were on their own in a dangerous zone and that
they must be brutalised and perhaps killed or defend themselves. This decision to kill was made
haltingly and in a haze of fear and emotional disorder. Any suggestion of calm deliberation in
its execution simply defies the circumstances of the death.
Heather Osland did not wish Frank Osland dead. She exhausted all efforts to please and placate
him, taking weeks to hand make a chess set for him. She also spent weeks handknitting him
jumpers only to have them cut to pieces by him and to be ordered to start again. She attempted
on numerous occasions to peaceably move and rebuild her own and her children's lives but was
stalked and tracked by him.
Mrs Osland's wish to live free of violence, fear, denigration and repression was denied her.
Later in her marriage, she was reduced to simply attempting to save her life. That Mr Osland
died in the pursuit of this reasonable objective is a tragedy for Mr Osland, Mrs Osland and for
our community. That sole reparation for that tragedy is required of one of its two principle
victims strains any sane conception of compassionate justice.
Despite all that has been written here on grounds for self-defence, these were not the matters on
which success of the appeal made on behalf of Heather Osland to the High Court turned. All
High Court judges considering the case, whilst coming to different conclusions based on
different interpretations of the law, based their decisions on the same principle matter. They
were troubled to varying degrees by the matter of inconsistent verdicts; the fact that David
Albion was acquitted in a separate trial to that at which Heather Osland was convicted. The fact
that this fine point of law in the High Court Appeal was not that on which the media focused its
attention, but rather the violence to which Mrs Osland was subjected, tells us something about
the disquiet in the community as to the failure of the law in this instance to relate to the values of
lay people. 'How can it be' they ask 'that Heather Osland's children were paid crimes
compensation for witnessing the violence to which their mother was subjected and yet the law
did not defend her and did not allow her to defend herself'.?' It appears that this disjunction of
justice has motivated the entry into this debate by Chief Justice Phillips.
The most common form of homicide in which women are victims is the extension of domestic
violence into murder (see Easteal, 1993 and Carcach & Jaines, 1998). Central to Justice
Phillip's arguments for law reform is that the threat of murder for women in extreme domestic
violence situations is a mortal danger which is abiding, not transitory. It is no less immediate
than that which provokes men to kill in self-defence (as in a bar room brawl) but it is a corrosive
fear which, whilst sometimes latent and sometimes more inflamed, is a fear which preoccupies
and resides with them. A so called 'triggering' event is not required to precipitate the reaction.
Justice Phillips proposes three changes in response to this problem:
"What I propose, and it is a proposal for Victoria, is some change of focus in the existing
common law touching self-defence and provocation together with some statutory
amendment of the law as to the latter.
1. In such cases where there is satisfactory evidence that the accused was involved
with the deceased in a battering or abusive relationship of dependency, in my
opinion, the focus of the Judge's directions ought to change. The last attack or
threat should be dealt with as simply a component of the sum total of conduct
directed against the accused by the deceased so that the accused is regarded as
defending herself against the cumulation, the sum total, of the deceased's violence
and abuse. Such directions are consistent with our present state of knowledge of
the effects of a battering or abusive relationship of dependency.
2. As with self-defence, so should the directions of the Judge change focus when
provocation is an issue. In my opinion, juries should be directed that a last
provocative incident is simply to be regarded as a component of the woman's
experience and that it is the sum total of the deceased's provocative conduct to
which the focus of the juror's attention should be turned. Such directions would
complement the legislative change I shall later propose.
3. In 1980, the New South Wales Parliamentary Taskforce on Domestic Violence
submitted a report and as a result amendments were made to the New South
Wales Crimes Act by the Crimes (Homicide) Amendment ACT 1982. Those
amendments provided that the conduct of the deceased which induced the loss of
self-control in the person accused need not have occurred immediately before the
act or omission causing death, nor need the act or omission causing death be done
or omitted suddenly. In other words, these amendments removed the need for an
immediate response and for the conduct causing death to be proportionate to the
provocation. If the killing occurred while the accused person lacked self control
provocation was available as a defence although the response was delayed. The
requirement of immediacy of response was abandoned. These amendments allow
the provocation to be assessed as having regard to previous provocative conduct.
But, most importantly in the cause of battered women, the improvement effected
lies in the simple requirement of causal link between the provocative conduct, the
loss of self control and the fatal act. In my opinion, consideration should be
given to similar provisions being enacted by the Victorian Parliament."
Justice Phillips' proposal has one supreme merit. The merit of what is proposed is that it would
allow the law to reflect what we now know to be true about the circumstances of battered
women. For the law to be just, it must reflect known truths. Reforms such as those proposed
would remove the disquiet felt by the community about what they know to be a disproportionate
severity in the laws dealing with the cases of women attempting to defend their lives. Other
such cases and the problems with which they have presented the legal system are addressed in
We believe that, had the jury been directed at Mrs Osland's trial in the way proposed by Justice
Phillips or, had she been tried under the law in the reformed form he proposes, she would not
now be incarcerated for fourteen and a half years.
Expert evidence was accepted at the trial and acknowledged by High Court Justices Gaudron and
Gummow that Mrs Osland is very likely to have experienced "heightened arousal or awareness of
danger" which informed her actions in her relationship with her husband. The evidence that
such heightened arousal and awareness of danger was present at the time of Mr Osland's death is
Two judges of the High Court believe that Heather Osland's conviction for murder should have
been quashed. Justices Gaudron and Gummow believe that when it was found that David
Albion had 'legally killed' Frank Osland in self-defence that it should have been inevitable that
Heather Osland was found to be party to that 'legal killing' not to murder. Their judgement was
that Heather Osland should not have been found guilty of murder because she did not kill, and he
who did, did so legally.
Notwithstanding this, the Victorian law under which Mrs Osland was tried should have been
broad enough in its understanding of gender differences in what constitutes selfdefence and
provocation to recognise that this woman, in so far as she did kill, killed legally in self-defence.
It should now be given that breadth.
Heather Osland's freedom should not be made to wait upon the enlightenment which comes with
law reform. Appropriate law enforcement practice, including the mandating of the issuing of
intervention orders by police were introduced in 1998. This together with recent changes to
arrest and bail procedures (1999), are significant amendments which could have, in different
ways, averted this continuing tragedy, had previous Governments the prescience to introduce
Law reform and other initiatives to protect women in situations of family violence continue to
evolve. It was not until 1985 with the passing of the Crimes (Amendment) Act that legal
protection was given to protect women from rape in marriage. Thus, between 1977 and 1985,
Frank Osland sexually assaulted Heather Osland legally. Your Government outlawed stalking
through the 1994 amendments to the Crimes Act, but in the time that Mr Osland persistently
stalked Mrs Osland and her children, he did so with impunity. Your Government has been a
leader in legislative changes relating to women who are victims of violence. The release in 1993
of the National Strategy on Violence Against Women and the commencement of the 'National
Partnerships Against Family Violence' program have also made a difference to many women.
But all of these changes were introduced too late to make a difference to Heather Osland.
Justice Phillips frames his proposals in the context of Heather's case but makes clear that the
reforms proposed relate to "what needs to be done for the other cases that I envisage will occur."
Understandably Justice Phillips does not wish to be seen to criticise the earlier Judgements made
under earlier laws which he believes now require reform. But again, Heather Osland is to be left
out of the equation. The reforms, if introduced by the Government, would come too late for her.
It would be unconscionable, knowing what we do, to allow this to happen to her again.
Heather Osland's life is irrevocably damaged (see attachment 6 - report of Joan Eddy,
counsellor). Frank Osland's death and Heather Osland's unassuaged suffering are a result of the
violence perpetrated against Mr Osland and her children by Frank Osland. The outcomes have
been mutually disastrous. The way to deal with the violence in that relationship and Mrs
Osland's final response to it is not to perpetuate Mrs Osland's suffering. In not making her wait
once again for community understanding (as evinced through legislative reform) to catch up to
battered women's reality, it stands within your power to intervene and salvage what remains of
her terribly compromised life. Don't make her wait still longer for understanding to reach her.
Intervene where no law enforcement officer had the courage to do so. Intervene because it is a
morally courageous and proper action to take. Intervene because despite all of the evidence
which life has served up to Mrs Osland to contradict the fact, her life is precious and she only has
this one life.
2. Additional and new evidence strongly supports Mrs Osland's claim that she
acted in self defence when her husband died.
This section of the document identifies fresh evidence and additional evidence pertinent
to the case. Three factors contributed to the disappearance of evidence of violence in
this case: the memory loss of Heather Osland as a result of the trauma which she suffered;
the failure of police to document the violence of which they saw evidence; and the
decision of the presiding judge to refuse to admit supporting testimony. It is now
possible to consider some of this evidence.
Fresh evidence does exist of life threatening violence against Mrs Osland on the night
prior to Frank Osland's death. This fresh evidence of violence on the evening prior to the
killing, when examined in conjunction with the related evidence at the trial, reaffirms Mrs
Osland's consistent claim that she acted in self defence.
On the 3rd of October, 1996, the day following Mrs Osland's conviction, she recalled an
incident of violence which had occurred on the night before Frank Osland died. Mrs
Osland was in the police cells at Bendigo police station when she experienced extreme
chest pains. She was admitted to Bendigo hospital with a suspected heart attack. While
at the hospital, Mrs Osland recalled a similar feeling of life-threatening pain and terror
and instinctively related the memory to the night of July 30 when her husband dragged
her violently out of bed by her ankles and nearly suffocated her by forcing her face into
the carpet. The feeling of suffocation associated with the chest pain triggered the
memory. Immediately on her return to the cells Mrs Osland requested that Constable
Steven Harvey contact her solicitor, Susan Wakeling, to inform her of what she had
remembered. Susan Wakeling and Constable Harvey both recall the episode distinctly
(see attachment 7 - statutory declaration of Susan Wakeling and statutory declaration of
Constable Steven Harvey to be forwarded).
This fresh evidence was not heard at the trial of Marjorie Heather Osland because she
suffered memory loss as a result of the trauma caused by the violence she experienced.
Memory loss in victim's of domestic violence and rape has been well researched (see for
example Herman, 1992 and Walker, 1989). Mrs Osland's blurring of memory is
documented in Dr Byrne's report (see attachment 3). Joan Eddy's report indicates that
Mrs Osland is still undergoing a process of recalling and reliving incidents of violence
and abuse. Because of Mrs Osland's traumatised state she was unable to clearly recall
the detail of the violence perpetrated against her on the night prior to Frank Osland's
death at the time of her trial. Mrs Osland testified at the trial that she had blocked out
memories, for example at the trial she stated:
I‟ve just blocked all that out, 1 really can't remember, 1 just - I can't remember
that." (source: trial transcript page 1052 line 14 -15).
"He was just so verbally - I just, I can see him standing over me, but I can't hear the
words, I've just blocked all the words out of my head." (source: trial transcript page 1061,
David Albion on the other hand was able to give evidence at the trial of violence against his
mother and himself on both the night of the killing and the night before. David gave evidence
that Frank threatened to kill both himself and Heather Osland on the night prior to Frank Osland's
death (source: trial transcript page 1468 lines 7-8).
In relation to the night before the killing, in David's evidence he stated:
“... mum came in and he grabbed hold of her, told her to f--- off, because it wasn't any of
her business and then he started back on me and he wanted me out of the house before he
got home tomorrow or he was going to kill me..." (source: trial transcript page 1463, lines
David stated that later that evening:
"When I went back to my bedroom ... he [Frank] went into mum's room and started really
yelling at her, he went totally berserk." (source: trial transcript page 1464 line 10 - 12).
In addition, David stated that the next morning:
"...she [Heather] had bruises ... big bruises like real fresh ones on her arms." (source: trial
transcript page 1464 line 23-26)
In relation to the night Frank Osland was killed, David stated:
"I was working on the ute and he came through down the driveway, through the gate and
he seen me working on the ute and he just veered straight inside, and the next minute I
heard mum just let out a big scream and she was - a big argument was starting, and I went
up, I just dropped everything and practically raced up to the house, and when 1 opened up
the big door ... he had her up against the wall." (source: trial transcript page 1468/9).
Mrs Osland gave evidence that Frank Osland abused her during this period and that she
associated this abuse with fear for her life but she could not recall the detail of this violence.
This memory loss rendered her defenceless at times during the trial when to have been able to
remember would have steeled her case.
Additional Evidence not heard at the trial of Marjorie Heather Osland
Further to this new evidence, is a catalogue of additional evidence not heard at the trial primarily
because of the operation of the hearsay rule (see attachment 7 - statutory declaration of Heather's
trial solicitor, Susan Wakeling, paragraph 6). This additional evidence is highly relevant and
probative and buttresses Heather's evidence about her husband's unremitting violence. A degree
of evidence of this type has been obtained in the form of statutory declarations (see attachment
1). The statutory declarations corroborate evidence of Mrs Osland including attempts to leave
her husband, his obsessive pursuit of her and the resultant terror which inhibited her subsequent
efforts to leave. They also confirm Mrs Osland's imploring of police intervention to protect her
- to no avail.
It has been acknowledged that hearsay evidence may be important in situations of domestic
violence because it frequently occurs in a private context without witnesses. For example the
Model Domestic Violence Laws report (April 1999) refers to section 13(a) of the Victorian
Crimes (Family Violence) Act which provides, in certain circumstances, that the 'court may
inform itself on a matter in such manner as it thinks fit, despite any rules of evidence to the
contrary'. The report states (page 135) that:
"This provision is necessary in situations where the court is inquiring into the home life
of people which is often closed to the rest of the world. In these situations it may be vital
to present hearsay evidence."
While there was evidence at the trial of violence against Heather during the 13 year relationship
with Frank Osland, as well as evidence of violence in the week prior to the killing, the
inadmissibility of hearsay evidence has been identified as a problem in her case (see attachment 7
- statutory declaration of Susan Wakeling). The restrictions seriously diminished the extent of
allowable evidence which corroborated Mrs Osland's complaint of abuse and fear prior to her
A further diminution of critical corroborative evidence was a consequence of the failure of police
to document their involvement in the case. Evidence was raised at the trial which showed that
police were regularly called and regularly attended the various addresses of Heather Osland and
her family (the statutory declaration attachments provide further evidence of police involvement,
see attachment 1). However, evidence which would have corroborated this evidence was
unavailable at the trial as a result of the police failure to document their attendances and the
reasons for their failure to act. Despite evidence of threats and actual property damage, theft and
criminal assault, police never charged Frank Osland in relation to these matters or took out an
intervention order or even informed Mrs Osland that she could apply to a court for an
intervention order independently. When Mrs Osland's Counsel called for police documentation
regarding attendances at her home, only one record was produced.
It is the duty of police to document their activities. The police failure to document their
involvement in this case resulted in powerful and impressive evidence which would have
corroborated the history of ongoing violence, including violence in the week prior to Frank
Osland's death, simply not existing in a documented and indisputable form. Had police operated
in a way consistent with reasonably conscientious and professional practice the following
evidence would have been called at the trial:
family violence incident reports (or at the very least notes/log book entries);
charges brought by the police for offences of violence, property offences and breaches of
police acting as applicant in intervention order/s.
The inadequacy of police response in family violence situations has now been widely recognised
by government, community organisations and even the police themselves. Various groups are
working 'm partnership to bring about reform in this area. For example, the Domestic Violence
Model Law 1999 recommends at Part 2, Division 1 (at p.239):
"Obligations of police officers to investigate certain beliefs or suspicions:
s.8 (1) This section applies if a police officer believes or suspects an act of
domestic violence has been committed, is being committed or is likely to be
committed, the police officer must investigate whether the act of domestic
violence has been committed, is being committed or is likely to be committed.
(2) If the police officer investigates and does not make a protection application, or
an application for a telephone interim protection order, the police officer must
make a written record of the officer's reasons for not making an application."
The fresh evidence of the life-threatening violence to which Mr Osland subjected Heather on the
day prior to his death, coupled with the considerable, additional evidence not heard at the trial,
owing to the hearsay rule and to police failure to conscientiously document it, served Mrs Osland
very badly in terms of the outcome of her case.
It is of the nature of family violence that a range of factors in our community conspire to render it
invisible. The judicial process in this case, perhaps inadvertently, perpetuated and mirrored this
invisibility. Three factors contributed to the disappearance of evidence of violence in this case:
the memory loss of Heather Osland (occasioned by violence in the first instance); the failure of
police to intervene or to document their intervention; and the decision of the presiding judge to
refuse to admit supporting testimony. This evidence is now available to be considered in this
application. It strongly supports the exercise of executive discretion in favour of Majorie
3. Mrs Osland's sentence is very severe when weighed in the context of her life
experience and, if served in full, will significantly exceed the terms served by women
in recent comparable cases which we have been able to identify. Mrs Osland lived
in a prison of domestic violence for 13 years before entering her current prison.
Her cumulative suffering has been and continues to be so profound that executive
intervention is now warranted in ending it.
The violence to which Heather and her children were subjected is not adequately captured
in the words 'domestic violence'. It is a coinage debased by overuse in word and action
which can inadvertently clothe a world of brutality in euphemism. What Mrs Osland
experienced was violent criminal assault which was so extreme that, had it been isolated,
it would have been permanently traumatising. It was sustained over 13 years (see
attachment 1 - various statutory declarations).
Mrs Osland was subjected to a regime of violence and abuse which most of us cannot,
and do not wish to conceive. Her life was at times akin to that of a prisoner of war in
continuous detention. The brutality of the regime was compounded by Mrs Osland's
disempowerment from the capacity to protect her children or even to freely display her
love for them. Random acts of dreadful violence gave a sharp edge to the petty tyrannies
and indignities which marked the round of Mrs Osland's life (see for example attachments
1.5, 1.4, 1.8, 1.7, 1.9 - various statutory declarations).
For Heather, abuse was not an entirely new experience, although the severity of her
husband's abuse was on a different scale to that which she experienced as a child.
Heather's father exerted his authority through the exercise of severe corporal punishment.
At two and a half years of age she suffered a fractured collarbone. At the age of four she
suffered severe bums to most of her body when, unsupervised, she tipped hot water on
herself from a stove. As a child, she was taught to be silent and to do as she was told.
As a woman, Frank Osland demanded of her the same self-abnegation and unquestioning
obedience to his rule.
It is important for us as a community to understand both the immediacy and impact of
violence while it is occurring and its habit of staying with and changing those subjected to
it. Sexual violence is frequently experienced as life threatening, so deeply disquieting
and traumatising is it. People survive it but it leaves them damaged. Heather Osland
lived with sexual violence as a weapon of terror to be turned on her whenever she stepped
outside the bounds of a narrow, repressive authority. It was a critical part of an armoury
of terror. Frank Osland was clear that she existed to serve him, that she had no other
purpose and no personal volition.
The violence to which he subjected Mrs Osland, as a result, should not be evaded with oblique
references - she had no choice but to face it. How must it feel to be held under water until you
think you really may drown simply because you have prepared a bath to a temperature which is
one degree off perfect? To not know whether you will be released from being submerged this
time and, if you are, whether or not you will survive next time? How must it feel to tremble as a
kettle boils wondering whether or not this time you will wear the scalding water? How must it
feel to have a loaded gun held to one‟s head by a man one knows to be so profoundly violent that
the boundaries of that violence seem to extend and extend? How must it feel to see the heads
ripped off pet budgerigars in front your children? How must it feel to see one's children terrified
and to crave in one's deepest being to be able to protect them and yet to be beaten and impeded in
the attempt to do so? How must it feel to not be permitted to leave one's own house except to
work or to shop, unless it is to be hospitalised as a result of urinary tract infections. To be
dismissed from employment because you are being stalked and threatened in public places. To
have one's personal agency so diminished that another human being determines when you may
sleep, which room you may occupy, when if ever you may touch or comfort your children, when
and what you may eat, what you may wear, how you may wash yourself, who applies bandaids to
your nipples when he leaves the house and checks that no-one has removed them when he
returns, who refuses you contact with all of those who would support and love you, who
withholds food from your ageing mother and prevents you reaching her when she is gravely ill,
who rapes you on the day of her funeral, who beats you on your birthday, who compels you to
witness the beating of your children and the slaughter of your pets, who tells you, you may be
next? Who spares you no details about what he will do to you and when? Who carries out so
much of what he threatens that the boundaries between you and death seem to be blurring?
Heather has felt the full rigour of 'justice' for more than three years now and has eleven to go.
Before that she felt the full force of injustice and cruelty for thirteen years in a family prison.
Having heard evidence of Heather Osland's medical record of depression, nervous breakdown,
chronic cystitis, tears to her vagina, anal area and perineum, and vaginal haemorrhaging, and the
accepted evidence that she was regularly held down and punched in the back before vaginal and
anal intercourse would take place, Justice Hedigan directs the jury at her trial in this way:
"When I summarise Mrs Osland's evidence, there will necessarily be a reference to her
evidence that there was, throughout the marriage, normal sexual intercourse and forced
anal intercourse. Whether this occurred and its frequency and whether it was against her
will is entirely a matter for you. I am not going to say much about this. The sexual
appetites and practices of married people appear to be capable of very few boundaries.
You are absolutely free so long as you base your views on the evidence to reach your own
conclusions about it. It is only of relevance if it is connected, even distantly, with the
killing and Heather Osland's fears and reasons."
In doing so, Justice Hedigan either defines "normal sexual intercourse" to encompass aggravated
rape or appears to doubt that the ongoing aggravated rape occurred. He is equivocal in his
direction as to whether sexual violence may have related in any way to her participating in her
husband's death but his emphasis suggests it to have been unlikely. If Justice Hedigan's unusual
conceptions of "normal sexual intercourse" and "The sexual appetites and practices of married
people" informed his sentencing of Heather Osland, it may to some extent explain (what appears
to a lay person to be) the severity of the sentence.
To place Heather's fourteen and a half year term in context it is worth citing the outcomes of
comparable recent cases identified through coronial reports.
Roberts (NSW 1975)
In 1975, Violet Roberts and her 17 year old son, Bruce, were convicted of killing Violet's
husband Eric, who had subjected the family to years of ongoing violent and drunken assaults.
As in Heather's case, intervention by the police was reluctant, inadequate and led to violent
reprisals. Like Heather, Violet left her husband on numerous occasions but in her case returned
to him out of economic necessity. Like Heather, she believed she would die at her husband's
hands and, like Heather, was accused of killing her husband for a financial motive when the sum
involved was likely to be paltry. Violet and Bruce were both convicted of murder and sentenced
to life and 14 years respectively. The Shadow Attorney General, Paul Whelan, appealed to the
NSW Chief Justice to urgently hear an appeal for Violet and Bruce's release which was
ultimately successful. Each served five years before being released.
R (SA 1981)
R was a victim of 25 years of domestic violence. She killed her husband with an axe while he
slept after discovering that he had been sexually abusing her daughter over many years. At the
trial the judge refused to allow either provocation or self defence. After public pressure was
brought to bear, the court of appeal found that the decision on the allowability of provocation
should have been left to the jury. R was subsequently acquitted.
O'Shannesy (Victoria 1985)
Barbara and Ken had been married for over 20 years and had six children. Ken's violence, like
Frank's was directed towards his wife and her children and, like Osland's, was extreme and
ongoing. Barbara feared that if Ken were charged for his various assaults against her he may
respond by killing her. Like Heather, she left him on numerous occasions but on each occasion
he tracked her down and moved in against her will. It is alleged that the killing was discussed
over a period of time, prior to his being shot. Barbara's two sons, aged 14 and 20 each
discharged a firearm into their father's head while he slept. Together with Barbara and her sons,
a friend assisted in disposing of the body and all attempted to conceal the death saying that Mr
O'Shannesy had gone away. Barbara and her sons pleaded not guilty to murder and were found
guilty of manslaughter. Barbara was sentenced to two years imprisonment with a minimum of
one and the sons to eighteen and nine months respectively. Just as in Heather's case, the son
inflicted the fatal wound and the death was concealed. The disparity in the sentencing outcomes
Bradley (Unreported Judgement of Coldrey J, Supreme Court, Victoria, December, 1994)
James and Cheryl had been married for 25 years and had three children. During most of that
time, like Heather Osland, Cheryl was violently assaulted, tortured and kept prisoner by her
husband. Like Frank Osland, James sexually abused his wife's children. Like Heather, Cheryl
was subject to violent reprisals at the hands of her husband for seeking (and in her case gaining)
police intervention to protect her children from her husband. Like Heather Osland, Cheryl left
her husband on a number of occasions, was tracked down by him and forced to return. Like
Heather, Cheryl believed that she had tried every avenue to escape her husband's abuse and had
failed or been failed by the legal system (intervention orders failed to impede his harassment).
Like Frank Osland, James Bradley was killed while asleep, in this instance by a firearm
discharged by his wife. Like Heather Osland, Cheryl Bradley buried the body (in this case in her
backyard) and failed in her attempts to conceal the death. Like Heather Osland, Cheryl had been
threatened with death by her husband, believed her husband would eventually kill her and killed
to save her own life. Unlike Heather Osland she pleaded guilty to manslaughter and was given a
two year suspended sentence.
Secretary (NT 1994)
Helen Secretary shot her husband in the back because she feared for her life and the safety of her
children. Her husband had violently abused her over a sustained period of time and, as in the
case of Heather Osland, testimony was presented at her trial that she was a battered wife. Like
Heather Osland she was beaten, throttled and raped by her husband. At her trial in 1995 she
pleaded guilty to manslaughter but was retried in 1998 found not guilty and released.
Telling features in common with Heather Osland apply in the cases of each of these women:
they were subjected to severe abuse over a long period;
police intervention was often inadequate and often met with heightened levels of violence;
the violence instilled a high level of fear in the women and, as a consequence;
the partner was killed while asleep or incapacitated;
the fact of the death may have been concealed or involved a level of planning;
the legal system did not provide a framework within which an appropriate response could be
easily arrived at.
Here the parallels end. Heather Osland has already served a longer term than all but one of the
women involved in these other cases and is sentenced to a term three times longer than that
served by she who served the longest term. She continues to maintain that she acted to defend
her life. She was only one agent of many who contributed to her husband's death yet she has
been asked to assume full responsibility for its expiation.
Heather Osland's spirit has been sustained during her 42 months in prison by a now somewhat
depleted confidence that what feels so unjust to her must be seen by some in authority with a
moral clear sightedness which confirms her perception. That hope has been for Heather
bewilderingly disappointed so far. Because of that profound disappointment, the hope that has
sustained her has also agitated her, has made her relive her powerlessness and her vulnerability to
what feels like capricious judgement. The experience of incarceration, of again being subject to
forces which diminish her agency and cause her dependence on an understanding which is
withheld, presents parallels in her two experiences: of domestic violence; of imprisonment. (7)
Heather Osland continues to live with the physical legacy of Frank Osland's abuse (see
attachment 6 - report of Joan Eddy, counsellor). She experiences days plagued by the pain of
previously inflicted injury. The injuries she sustained included broken ribs, a broken nose, a
damaged shin which continues to display the dent of a steel capped boot from a kicking;
permanent gynaecological injury and lasting damage to her hearing as a result of being beaten
about the head. She has an abiding fear of razors, baths and car headlights. She is again living
in a violent environment in which she is subject to repeated, invasive body searches and to the
familiar, hovering threat of violence. Mr Osland's legacy is compounded every day that she
remains imprisoned. Her health has seriously deteriorated since her incarceration.
Frank Osland's violence was a life sentence in the sense that:
it disabled and blighted the prime years of Heather's life;
its legacy remains in seriously impaired physical and emotional health, residual injury-related
pain, permanently damaged relationships with her children, anguish over his death (8) and
public shame and humiliation (school children were allowed to sit in court while Heather,
with self-censure, recounted and was cross-examined over her sexual abuse at her husband's
For Heather Osland, life has been experienced in a universe seemingly empty of compassion.
Despite this she has not chosen death and she has not chosen despair. Her faith in God is intact
and her desire to live is resilient despite bouts of suicidality. She now wants to be allowed to
live a life in which she may give expression to her love for her children and her grandchildren.
Please allow her to do that before her children and grandchildren become strangers to her. (For
information about the impact of Heather Osland's continued imprisonment of her children See
attachment 6: Report of Joan Eddy, counsellor (page 6); attachment 8 - "No Way Out" article and
attachment 13 David Albion's letter petitioning for his mother's release).
Power does reside within the government and the Governor to find the moral clearsightedness, to
most of Heather Osland's adult life has been spent in pain and anguish;
her sentence backs on to another already served of domestic imprisonment more terrible than
the one which now restrains her;
her suffering can and should be ended.
4. Even if it is accepted that Mrs Osland committed an offence, she and her
family were so offended against by the wider community in its failure to protect her
and her children from sustained torture, terror and trauma, that it is appropriate
that the community s representatives should now temper Mrs Osland's justice with
It is a universally accepted axiom that the true test of a civilised society is how it treats its
most vulnerable members. If Heather Osland and her children were a test case for this
axiom, the State would have failed the test between 1977 and 1991.
As a community we failed to protect Heather Osland and to support her attempts to
protect her children from the man who was daily torturing her. The times during which
Heather left Frank (eight altogether) were amongst those in which she was in mortal
danger. This assertion is not made simply on the basis that when he found her he used
violence to take her back into his custody; that he broke a door down with an axe to reach
her; that he threatened to chop her children into pieces; that he held a gun to her head; that
he stalked her; drove her car off the road; slaughtered her cat; or threatened her murder in
graphic detail if she ever left again. Rather, this assertion is made on the basis that so
many instances of family violence cross the line into domestic murder when the
perpetrators of the violence believe that they have lost control of their victims. Almost
half (46%) of domestic murders occur under these circumstances .( 9)
Heather knew that she may die in attempting to leave. Her terror must have been of such
an order that only a person of extraordinary courage, a person willing to risk her life,
would have ventured to leave. Heather engaged in this life endangering enterprise not
once but eight times. Each time the community failed to protect her and preserve her
freedom. Each time she was returned to a condition of brutal submission, we as a
community failed to charge Frank Osland with criminal assault. Frank Osland broke the
law consistently and the law just as consistently ignored or forgave him. Some say
Heather Osland stepped outside of the rules of the law on one occasion. We, as a
community, still haven't forgiven her. It is time we found it in our hearts to do so.
The law enforcement officers who repeatedly attended violent incidents at the Osland
house, who asked neighbours not to ring them any more when violent outbreaks occurred,
who warned neighbours not to interfere because Frank Osland was 'a dangerous man', and
who stated that they were not paid enough to deal with men as violent and dangerous as
Frank Osland (see attachment 1.1 - statutory declaration of Warren Conroy), effectively
extended the boundaries of his violence, complied with it, sanctioned it, and confirmed
for Mr Osland that he did indeed control the air his wife breathed and that he could cut it
off with impunity at any moment.
Frank Osland used threats that he would murder the children to keep Heather in his custody. At
various times Mrs Osland attempted to arrive at a plan to achieve safety for her children,
including finding a safe house to place them in while she remained with Mr Osland and sought
an opportunity to escape. Ironically, it was this kind of desperate planning which led Heather
Osland to be represented as calculating and manipulative at her criminal trial. Clearly she was
so abandoned by those who should have been protecting her that she was compelled to develop a
level of resourcefulness and a capacity to plan in order to protect her children's lives and to
Heather describes the dynamics within the family in the 1980s in this way:
"When in Karratha, Frank used to turn the airconditioning down to way below to toughen
the kids - we would freeze - I would gradually sneak it up then all hell broke loose -
David and Paul would take turns in sleeping on the top bunk ... I stuffed paper on one
side to stop the air blowing straight onto the child sleeping on the top bunk. If it was
David he got sick straight away with an asthma attack. All this mental anguish - after a
while David became so sick and we fought and fought - Frank would push me around but
1 never gave in - Over this Frank would have to have broken every bone in my body and I
would have to die before he won. 1 had David in and out of hospital all the time. The
specialist said David suffered from nervous asthma."
It was not just in leaving or in fighting that Heather Osland was brave, it was in contacting police
authorities to come and protect her children and herself from her husband. The outcome of such
requests was not protection but intensified violence and diminished access to the outside world.
On no occasion, of the many, when police were called to Heather's home was her courage
rewarded. On no occasion did police take out an intervention order. Police tired of being
called to the Osland home and when they did come usually made no reports of having attended.
Only one police report exists despite the testimony of neighbours and the children that the police
frequently attended the Osland home (see section 1). Neighbours also testified in court that
police discouraged them from contacting them during Frank's regular outbursts of violence (See
attachment 1. 1 - statutory declaration of Warren Conroy and also attachments 1.4, 1.9, & 1.5).
Other neighbours testified that they were aware of the violence but failed to intervene because
they considered it to be interference in private family business (for example, Mina Fulford's
evidence at the trial). As a community we failed her again and again - we sentenced her and her
children to remain in Frank's prison. As a community we are still failing her.
From 1982 to 1991 Heather was a patient of a general practice in Bendigo and usually saw the
same doctor. She presented with chronic urinary tract infections, suffered from depression, had
a 'nervous breakdown', presented with injuries to her anal tissue and vaginal haemorrhaging. In
doctors' files presented at her trial one entry was made of there having been 'marital problems'.
However, no medical professional investigated how the anal injuries occurred or pursued a
diagnosis or analysis which would confirm that sexual assault and domestic violence was
occurring. The fact is they did not want to see what could not be missed. They did not want to
be involved despite the severity of Heather's injuries and the poverty of her physical and
emotional health. Since this time the Australian Medical Association has introduced a code of
procedures for general practitioners treating patients presenting with symptoms of domestic
violence (See attachment 10). Another fine initiative introduced too late to avert or redress the
continuing tragedy of Heather Osland's circumstances.
It is difficult to dispute that the collective non-intervention of professionals contributed to Frank
Osland's death and compounded the abuse and ill-health of Heather and her children. Heather
continues to absorb all of the blows but it is time as a community that we stopped looking the
Heather Osland could be forgiven for echoing the words of the Jewish detainee in Schindler's
List whose observation on the concentration camp - "There are no rules here." - could equally
apply to Frank Osland's world and to those who reinforced it by doing nothing. It is another
grim irony of Heather's life with Frank that the closest anyone ever came to an intervention was a
veterinary surgeon who threatened to press charges of cruelty against Frank for breaking his dog's
leg. In her compassion, Heather had the animal put down. She repeatedly stood between her
children and Frank's violence, taking their punishment as well as her own. In a strange way that
process continues today.
Heather Osland is the lonely figure in the field of justice as it relates to Frank Osland‟s death.
The person who struck the blow has been, rightly, exonerated. The authorities who allowed the
violence to escalate beyond their control have never stood trial. It is time that Heather Osland
was relieved of the full burden of responsibility for that death and at last shown some
compassion. It is not a productive course for us as a community to pay her children money to
compensate them for the violence witnessed against their mother and then to lock their mother
away from them. If there is to be healing for the Osland family and reconciliation for our
community in this case it must begin with Mrs Osland's pardon and release. (See attachment 13 -
letter of David Albion petitioning for his mother's release).
5. None of the reasons for which we as a community imprison people to punish,
to reform, to deter others from offending, apply in Mrs Osland's case any longer.
Incarceration for the Purpose of Mrs Osland's Punishment
Heather Osland's life has been an endless round of punishment.
Heather was regularly subjected to severe corporal punishment by her father. She appeared at school
when very young covered in bruises. Her first husband Allan Albion was abusive. Frank Osland
punished her unmercifully for all offences against his rule: real and imagined; trivial and serious. He
punished her for refusing anal sex with rape. He punished her for leaving the house with stalking. He
punished her for disobedience with choking, for disagreement with being locked out of her home, with
death threats levelled against her children for attempting to leave, with threats to slice her face with
razors for being too attractive to other men. Heather continues to suffer the physical and emotional
legacy of Frank's punishments. He continues to cast a long shadow over her life.
In her life, Heather has been badly burned, had her ribs, collarbone and nose broken, been anally,
vaginally and orally raped, seen her children beaten and abused, been denied access to her frail mother
during her mother's serious illness, been told when to eat, sleep, stand, talk, touch her children, been
deprived of friends and loved ones, been locked out of her house, suffered from depression and attempted
suicide, been disappointed in attempts to have the judgement of her case reconsidered, been disappointed
in not having her prison classification reduced. She has now served three and a half years in the harsh
environment of women's prisons.
The case for her further punishment is heartless, mindless and groundless.
Incarceration for the Purpose of Mrs Osland's Reform
Mrs Osland has only once been charged with any offence. That offence was committed whilst she was
in a state of extraordinary fear and emotional disorder and evidencing a "heightened arousal and
awareness of danger which may be experienced by battered women". None of the women whose cases
are cited in section 3 of this submission who were released from custody committed a further serious
offence. Heather Osland is not a saint but she is a model prisoner as she was a model citizen before her
imprisonment in all but this one act. She does not require reform and will never 'reoffend'.
The work Mrs Osland undertakes in the prison requires the highest levels of trust and
responsibility. She has a role in welcoming new prisoners who have been incarcerated for the
first time (see attachments 12.1 and 12.2 - report of Helen Remington). She is one of only a few
women chosen as a designated carer of infants of other women in the prison. She participates in
a Bible study group and her integrity, fortitude and strength make her a mentor for fellow
prisoners. She is the catalyst and mainstay of the family violence group within the prison and
acts as a support person for new members. She would like to return to work in the community
in the field of aged care or with children who have witnessed violence upon her release. She
enrolled in a family violence course (Diploma in Community Development) whilst on bail and
worked as a volunteer in a community centre during that time. She was gainfully employed for
virtually all of her years before imprisonment, except for the period shortly before Mr Osland's
death, when she was suffering nervous exhaustion, facing concerted violence and attempting to
nurse ailing mother.
Mrs Osland is in the lowest risk type for recidivism of any long term prisoner in Victoria (see
attachments 12.1 to 12.11 - reference letters).
Incarceration of Mrs Osland for the Purpose of Deterrence to Others
Mrs Osland's participation in her husband's death was a last resort as it is for all. women who kill
in self-defence. No serious argument can be mounted that her release would signal to other
women that killing is ever acceptable. Law reform to protect women and to assist them escape
situations in which they are entrapped in cycles of violence is not only the most equitable
deterrent of violent self-defence it is the most effective measure. In this respect, the 1998 and
1999 reforms of this Victorian Government are to be commanded, as are other systemic
initiatives. Police now have protocols in place for dealing with victims of family violence and
sexual assault. Excellent programs have been instituted for victims of crime, such as the
Victims Assistance and Referral Service. The National Partnerships Against Domestic Violence
Program has provided resources including those which enable:
General Practitioners to be trained to identify and respond to family violence.
Programs to address the needs of child witnesses.
Behaviour change programs for perpetrators of family violence.
All are admirable reforms, but all have been enacted too late to save Frank Osland's life or to
liberate Heather Osland from her continuing nightmare.
As outlined in section 3 of this petition, the women in recent Australian history who killed or
participated in the killing. of violent partners in circumstances closest to those of Mrs Osland's
case are now free. None of these cases led to an outbreak of reprisals against violent husbands
and Heather Osland was unaware of any of the cases before Mr Osland's death. To suggest that
women in such circumstances consider their legal options before participating in such offences is
to miss the point that they are so absorbed with their own survival that the legal consequences of
their actions are a very secondary consideration.
Notwithstanding whether or not this argument is accepted, no objective person could argue that,
on the basis of Heather's experience of the criminal justice system and her incarceration to date,
her case represents evidence of the granting of an excess of mercy through which others may be
induced to believe that they may kill violent partners with impunity. Even if she were now to be
released on compassionate grounds, Mrs Osland could be pointed to as an example of a person
subject to just the opposite degree of uncompromising firmness and inflexibility in carrying out
the letter of the law.
Heather Osland's case demonstrates that women may not kill violent partners without being
subject to intense legal scrutiny and paying a terrible price. If released now Mrs Osland will
have served a longer term than all but one of the comparable cases which we have been able to
Mrs Osland as a Productive Citizen rather than a Prisoner
Heather Osland is not and never was a threat to a civilised and properly regulated society which
protects the vulnerable from the violent. She is as foreign to the culture of the Metropolitan
Women's Correctional Centre as any woman could be. This is not to say that she does not
respect her fellow prisoners but simply that, in common parlance, she is a model prisoner (see
attachments 12.1-12.11 - reference letters). She holds positions which reflect the esteem in
which she is held by the prison authorities and by her fellow prisoners.
Counterpointing the arguments for her incarceration is the fact that Mrs Osland could return to
being a productive worker, a generative citizen, a loving mother and grandmother if she were
allowed to be. It is a grim irony of her situation that Frank Osland forbade expressions of love
or even affection between family members. Such displays are now forestalled by a new form of
imprisonment; of disappointed consummation. The impediments are different but the feeling of
profound disempowerment and the bewildering and numbing pain is achingly familiar. As in so
many other respects, Heather's experience of domestic violence and imprisonment share many
Mrs Osland's continuing imprisonment is corrosive of people's faith in the
justice system because it shows the law failing.
Every public statement and policy decision which the Kennett Government has ever made on the
subject suggests its abhorrence of violence and the particular abhorrence it reserves for sexual
violence. It follows that the Government must agree that our laws must bear out an intolerance
for sustained family violence, particularly sexual violence, and must demonstrate flexibility and
compassion for those who survive it. The outcome of Mrs Osland's case as it stands dishonours
the virtues of justice and compassion which should reside within us as a Victorian community.
We call on you to confirm the authority you have demonstrated in other areas of family law by
enacting the reforms proposed by Justice Phillips and granting Mrs Osland's freedom on
This document has argued that Heather Osland's continuing imprisonment is compounding the
system failure which has made her its victim in so many ways in the first instance. We beseech
you to look again at Heather's collective experience and recognise that seen all together it
represents an accretion of extraordinary circumstances which have conspired to enact an injustice
which must now be righted. We appeal to the Government to once again display leadership; to
demonstrate decisive compassion; to right this wrong; and to give a woman back her life.
1. The Inaugural Lesbia Harford Oration
2. This perception was also shared by others. For example see Lindsay McDerinott's
statutory declaration, attachment 1.2).
3. Warren Conroy's evidence at the committal hearing and his statutory declaration provide
evidence to this effect. This is corroborated by Paul Albion's evidence at trial
4. Mr Osland was once charged with being in possession of an unlicensed firearm.
5. In this we concur with „The Age‟ editorial (14 december 1998) „Osland: Justice Lags
Behind‟ “ If the law gives no option but to treat her as a cold blooded criminal, it is time to
change the law.” See Attachment 5.
6. Dr Ken Byrrne, an expert in battered woman syndrome testified at Heather's trial that he
had diagnosed her as fitting into the extreme end of the syndrome. The syndrome's features are
listed in attachment 2.
7. In November 1998, an entry informing prison officers was recorded on Mrs Osland's file
that she was experiencing suicidal ideation.
8. Heather has often expressed the hope that Frank would be happier in his next life but
fears meeting him there.
9. Wallace, Alison Homicide: The Social Reality, Bureau of Crime Statistics and Research,
Report No.5 (1986)
Bartal, B., (1996) Justice for Women who Kill or Seriously Injure their Abusers - Some Options,
Conference Proceedings, Cropwood Conference, Cambridge University.
Brown, M., Ramifications of the Osland Verdict, Law Institute Journal, May, 1999
Browne, A., (1987) When Battered Women Kill
Carcach, C & James, M (1998) Homicide between Intimate Partners in Australia,
Australian Institute of Criminology
Dobash, R., & Dobash, R.E., (1992) Women, Violence and Social Chan-Re
Herman, J., (1 992) Trauma and Recovery
Keys Young (1998) Against the Odds: How Women Survive Domestic Violence The Office of the Status
of Women, Department of Prime Minister and Cabinet
Office of the Status of Women (1995) Community Attitudes to Violence Against Women
Wallace, A., (1 986) Homicide: The Social Reality
Walker, L., (1989) Terrifying Love
LIST OF ATTACHMENTS ( as requested by Heather, these are not included
in the document posted on the web site)
1. Statutory Declarations:
1.1 Warren Conroy
1.2 Lindsay McDermott (approved for submission, signed copy to be forwarded)
1.3 Maxine Crouch (approved for submission, signed copy to be forwarded)
1.4 Myrtle Waterson
1.5 Joan Raeburn
1.6 Shiela Hinchcliffe
1.7 Jack Connelly (approved for submission, signed copy to be forwarded)
1.8 Judith Mansfield (approved for submission, signed copy to be forwarded)
1.9 Colleen Rowe
1.10 Judith Asher
1.11 Yvonne Locket
1.12 Ian Randal
1.13 Isobel Dawn Cartner (approved for submission, signed copy to be forwarded)
1.14 Margaret Inglis (approved for submission, signed copy to be forwarded)
1.15 Arthur Cowling
1.16 Gail Robertson
1.17 Leonor Clarkson (approved for submission, signed copy to be forwarded)
1.18 Patricia Campbell (approved for submission, signed copy to be forwarded)
2. Report of Dr Kenneth Byrne, Clinical & Forensic Psychologist. Catalogue of
Psychological Abuse - Heather Osland.
3. Dr Kenneth Byrne, letter to Susan Wakeling, solicitor, Re: Heather Osland.
4. Memorial Oration Seeks Provocation Review. Law Institute Journal article by Melinda
Brown, June 1999.
5. Justice Lags Behind, Editorial, The Age, December 14, 1998.
6. Report of Joan Eddy, Counsellor.
7. Statutory declaration Susan Wakeling
8. No Way Out, That's Life article June 2, 1999
9. Heather: My Story, The Age, December 29, 1998
10. Australian Medical Association Position Statement, Domestic Violence, 1998
11. Domestic Violence and Incest Resource Centre, letter in support of Heather Osland
12. Reference letters
12.1 Peer Support letter
12.2 Peer Support certificate
12.3 Brimbank Community Centre
12.6 Somebody's Daughter Theatre
12.7 Prison Chaplain
12.8 Kangan Tafe
12.9 Prison Network
12.10 Good Shepherd
12.11 Education, Prison
13. Letter David Albion to Attorney-General
14. Release Heather Booklet (copy enclosed for Attorney-General)