Beyond Reasonable Doubt?, page 17
Temm: I can help you to the extent that she didn’t consult the police until long after 2 July.
Hughes: I am afraid I cannot help you; maybe Mr Hutton can and would.
In fact Mrs Batkin had already been interviewed by the police prior to 2 July, though her recollections of the Thomas ‘passion’ did not spring to her mind until the axle was apparently traced to the Thomas family at the end of October or the beginning of November.
As Hughes left the witness box, Paul Temm turned and spoke to Crown Prosecutor David Morris: ‘Has Hughes really got the word “passion” in his job sheet?’ The Crown Prosecutor’s reply was short and to the point: ‘He has now.’
Throughout the entire proceedings Paul Temm had wondered about the remark his client had made to him in late October. Thomas had recalled Bruce Hutton saying to him during that long interview on 25 October: ‘One other thing, Arthur. I have one other piece of evidence up my sleeve. I’m not going to tell anyone.’
Until Detective Sergeant Mike Charles gave evidence, no ‘other piece of evidence’ had been revealed to the defence that they were not previously aware of. Mike Charles rapidly changed that situation. What he had to offer in evidence were a number of exhibits, but none so devastating for Arthur Thomas as Exhibit 350, the cartridge case that he had found in a flowerbed in the Crewes’ gardens on 27 October. Under cross-examination from the defence Mike Charles made it clear that subsequent testimony from experts would suggest that the cartridge case had come from the Thomas rifle.
It was a bombshell for the defence. Mike Charles was closely cross-examined on this vital exhibit. It was established that Thomas’s rifle had been removed from the farm on 17 August, returned to him on 8 September and removed again on 20 October. Mike Charles testified how prior to the search he and Detective Parkes had carried out on 27 October, the enclosure of the Crewe farm had been subjected to a pattern search, ‘a thorough, close search’. He told how dry soil poured out of the case when he had found it below the surface, dry soil out of a case that if it had not been deliberately planted had lain under the earth for four months and ten days.
For over seven years now controversy has raged around that cartridge case. As will be shown later in this book many people consider that it was planted, that this piece of evidence was deliberately fabricated to ensure that Arthur Thomas was convicted. That view first surfaced when Mike Charles gave his evidence. The first person to mention such a possibility was the man who found the cartridge case.
Temm: Did it occur to you that a person knowing Thomas was under suspicion at that time, and seeking to heighten that suspicion against him, could achieve that purpose by putting a cartridge case from his rifle where the police could find it?
Charles: No, it hadn’t occurred to me, not when I found the shell.
Temm: Has it occurred to you since?
Charles: Yes.
An honest answer from a police officer whom I believe to be honest.
The evidence on the axle, linking it not with Arthur Thomas, but with his father, followed Mike Charles. It must have been very anti-climactic, though it served to buttress considerably the case that the Crown was successfully building.
Detective Johnston told of finding the stub axles on the Thomas farm tip, stubs that matched perfectly with the axle pulled out of the Waikato.
A variety of policemen also gave their versions of their conversations with Thomas. These included Johnston’s final attempt to obtain a confession on the day that Thomas was charged.
‘I said: “Did you ask Jeannette for a loan of some money?” He said: “Definitely not.” He said: “Had I asked her, she would have given me a loan.” ’ An innocuous enough exchange that David Morris would soon be using to deadly effect.
In the latter stage of this Lower Court hearing, one witness made a brief appearance. His name was Derek Booth, a former boyfriend of both Jeannette and Heather Demler. It was a name that Thomas had mentioned to the police as a likely candidate if he had been framed. Booth testified that on 17 June he had been working in Whangarei until between 5.30 and 6.00. This was presumably some attempt by the police to demonstrate that Booth could not possibly have had any connection with the deaths of the Crewes. The Court by now was brimming over with participants and spectators; the pile of exhibits grew ever higher: old number plates, metal rims, wheel assemblies, shed sheets showing Cow 4 calved on 17 June, unfired bullets – the list grew ever longer.
One such unfired bullet, already referred to, was to gain in its own way as much notoriety as the Charles case. This bullet, Exhibit 343, was entered into evidence by the man who found it, Detective Stanley Keith. He also deposed that fragment of conversation that he had heard while searching the Thomas’s garage. According to Keith he saw, through the cracks in the wall, the two Thomases in conversation and heard Arthur saying:
‘If they think I am guilty, I am and that’s that.’
That piece of evidence produced a fascinating interchange between the police officer and defence counsel:
Temm: Were the words that you heard used by Mr Thomas to his wife these: ‘If they think I am guilty, I am and that’s that’?
Keith: Yes.
Temm: Did I understand you to say that you couldn’t hear the whole conversation?
Keith: That is correct.
Temm: Listen now to this sentence, Mr Keith. Listen carefully. ‘From their point of view, if they think I’m guilty I am and that’s that.’ Is what what you heard?
Keith: Yes, sir.
It was simple and very, very effective. Paul Temm sat down satisfied. David Baragwanath rose quickly to his feet.
Baragwanath: In cross-examination, four words were added to the words you gave in evidence-in-chief: ‘From their point of view’ and then followed the words you gave?
Detective Keith had been thrown a lifeline by the Crown which he grabbed with alacrity.
Keith: Yes, that was an ambiguous question.
Just as quickly Temm rose to his feet objecting to this line of questioning. He pointed out to the magistrate that he had warned the police officer to listen carefully to his question. Yet again Magistrate D. MacLean found himself unable to accept a defence argument. It had been a constant feature of the hearing in his court. He overruled the defence objection and Baragwanath was allowed to continue.
Baragwanath: I have drawn your attention to this point, witness, what is your comment on it?
Keith: I heard the accused say: ‘If they think I am guilty, I am and that’s that.’ I did not hear any other words.
What that interchange illustrates is the danger of quoting a fragment of a conversation and attempting to give that fragment significance. Clearly the reported remark has no context. Keith did not know what followed it or what had preceded it. Evidence of this quality would be better left in a police officer’s notebook.
Evidence from DSIR scientist Rory Shanahan followed. In terms of advancing the prosecution case against Thomas some of it was negative, some positive. For example, fragments of rust near the front door that probably came from the Crewe wheelbarrow, the premise being that the bodies had been moved from the house to the wheelbarrow. But there was no forensic evidence from the DSIR examination of the wheelbarrow or the rusty articles that pointed to Thomas. The ashes in the lounge fireplace were probably the residue of a burnt cushion and the hearth carpet, but who placed these objects on the fire and when? Shanahan talked of the various wire samples that he had received at various dates from the police. Study of his evidence confirms that none was removed from the Thomas farm until late September. If, in Thomas, the police had arrested the right man this surely is very lax police work – a man who Detective Inspector Hutton contends was ‘always my No. 2’. Why, when wire was removed from Demler’s farm within a day of Jeannette’s body being found, was none taken from Thomas’s? There can only be one logical answer. At that time Thomas was not on the police list of suspects.
With regard to the Charles cartridge case, Rory Shanahan was in no doubt: it had come from the Thomas rifle. His evidence about the condition of the case, however, contained the following comments:
‘Had it been exposed to the elements for an extended period of time, I would have expected more corrosion to be present. However, on the other hand, one of the cartridge cases handed to me by Detective Inspector Hutton showed an amount of corrosion present. So I cannot really say how long this cartridge case had been exposed to the elements. When I say I would have expected more corrosion had it been exposed for an extended period of time, I am talking in terms of months, but I must add it is difficult to give an exact answer.’
Of course the other cartridge case that Mr Shanahan refers to above had had quite a different history. It had not been in the Crewe garden under some inches of earth, exposed to the elements for four months and ten days. To compare the Charles case with it is therefore completely irrelevant.
Shanahan was followed into the witness box by another member of the DSIR, Harry Todd, who was the Crown’s wire expert. I will attempt to unravel his evidence later in this book. It is sufficient to say now that he considered there was similarity between some of the wires taken from the Thomas farm and some of the samples recovered from the bodies.
Mr Alexander Aitken, an engineering manager employed by a subsidiary of I.C.I., explained to the Court the significance of the figure 8 that had been found at the base of the murder bullets and also on one solitary, bullet among the dozens removed from the Thomas farm. They were three examples of the 158 million such bullets made by the company between 1949 and 1963. These bullets with a figure 8 on the base and three distinctive cannelures are known as pattern 8. Such bullets abound not only in Pukekawa but over the entire country. Before one can accept that Thomas killed Harvey and Jeannette, one must accept that he took two such bullets, disdaining the box he was currently using, to commit the murders, leaving the third in his garage to be found by Detective Keith. It should be noted that Thomas had some ballistic knowledge from his attendances at young farmers’ meetings. He was aware that bullets have identifying marks.
Next to depose evidence was Dr Donald Nelson of the DSIR. As the scientist in charge of the forensic side of the investigation his testimony was of necessity long and detailed. He told of examining skin tissue from Jeannette Crewe in an attempt to form an opinion as to the distance from which she had been shot but ‘I found no firing residue such as unburned powder and hence I am unable to estimate the distance. I would expect to see such unburnt powder when the weapon had been fired from short range.’ What Dr Nelson didn’t add was that the immersion of that body in the Waikato for a number of months might well have destroyed such powder burns. He told the Court how he had received from Detective Keith the pattern 8 bullet and cartridge case that had been found in the Thomas garage, the bullet bearing what was obviously considered a significant No. 8. The shell case he described as ‘fired’. He described how he had test-fired sixty-four rifles and, comparing the fired bullets with the fragments recovered by Dr Cairns from Jeannette, ‘I was able to exclude all but two rifles’. His evidence confirmed that of his colleague Shanahan concerning the Charles case. In his view it had come from the Thomas rifle. He told the Court of the reconstruction that had been carried out at the Crewe farm when Detective Johnston’s theory of firing through the open louvre windows had been successfully put to the test. He considered that the condition of the Charles case was ‘consistent with exposure to the weather’.
His cross-examination by the defence drew out the fact that the bullet that killed Jeannette may have been fired by a rifle other than the two he had been unable to exclude – the Thomas and the Eyre rifles. His evidence concluded with the fact that he could not link the Charles case with either of the murder bullets.
The case for the Crown concluded with the evidence of the man who had carried for exactly five months the responsibility for the police investigation, Bruce Hutton. Much of his deposition has already been the subject of comment in this book. What remains will be examined later.
Paul Temm rose at the end of the Crown’s evidence and argued that there was no case to answer. He asked the magistrate to dismiss the charges against his client. Not for the first time during the Lower Court hearing, the magistrate disagreed with him. Arthur Thomas was committed for trial in the Auckland Supreme Court. The suitcase of clothes that his wife had brought every day to Otahuhu would have to wait a little longer before being put to use.
Equally the Christmas party that Mrs Ivy Thomas had planned for her son would have to wait a while for its guest of honour.
On Monday 15 February 1971, Mr Justice Henry entered the No. 1 Court of the Supreme Court at Auckland and the task of empanelling a jury in the case of The Queen v Arthur Allan Thomas commenced. Mr Justice Henry, like Arthur Thomas, had not been obliged to queue for admission. While members of the public pushed and shoved each other to gain admission a jury of eight men and four women was sworn in. Prior to the empanelling, the judge took an unusual step which ensured that quite a few potential jury members would suddenly discover pressing personal business. He stated that the jury would be kept together throughout the entire trial, they would not be allowed to return at the end of each day’s hearing to their respective homes but would be held incommunicado in the Station Hotel, Auckland. The defence objected to this directive, feeling that it would place the jury under undue strain and pressure. The Crown prosecution, who heartily approved of the move, had taken the precaution of booking rooms at the hotel for the jury weeks before the judge gave his ruling. At the time of Thomas’s trial it was very rare to keep a jury isolated. To do so, of course, ensured that they could not be got at, tampered with, have their opinions influenced by outside interests. It also meant – and there is detailed research in a number of countries to prove this – that they could possibly build up feelings of resentment towards the accused, identify with the prosecution and the police, members of the police force being constantly at their side, and that they would be vulnerable to inside influences.
The trial Judge Mr Justice Henry was, in the words of Paul Temm, ‘A strong judge in the classical sense of that term.’ Previously he had been a brilliant defence counsel; as a judge he became a definitive example of poacher turned gamekeeper.
Amongst members of the Auckland Bar Association he had a reputation for being ‘a prosecutor’s judge’.
Thus the trial of Arthur Thomas began, with a jury in quarantine, a judge with a reputation for harshness and a Crown prosecution that suppressed evidence that would have been favourable to the accused. Leading that prosecution was David Morris, assisting him David Baragwanath. The former a brilliant lawyer with, in my view, a convicting mentality, the latter a clever young man of whom it has been said: ‘He won every prize at university except the one for knitting.’
For Arthur Thomas there was Paul Temm who a few days before the trial began had been appointed Queen’s Counsel, one of the youngest men in New Zealand legal history to attain such honour; assisting him, Brian Webb, who should certainly have taken some sort of prize for the sheer hard work he had put in on behalf of Thomas in the weeks and months that preceded the trial. But would these two men, who in that period leading up to the trial ‘obtained nothing but obstruction from the police’, be able to match the total power of the system arraigned against Thomas?
Any who believe that a trial is an arena where truth is sought, where all join together to find justice, would find such a belief a fallacy, a delusion, after the most elementary examination of how the judicial system works in New Zealand. It is a game. Tactics is the name of this particular game. Evidence is put in and taken out depending on how the game is going. When people mouth on about juries being the best judges, that the twelve good men and true hear all the evidence, see all the witnesses, evaluate all the circumstances, it should be remembered that juries are very rarely given this best of all worlds.
For example, the police were fully aware that there was in Pukekawa a witness whose evidence had a crucial bearing on the time that the Crewes met their deaths. But the time would have been too early for the police. Too early for the Crown. They needed a late killing. One that had taken place after Thomas had gone to bed. The evidence of this witness was duly suppressed.
The police were equally aware that there was in Pukekawa another witness who could testify about signs of activity on the Crewe farm on Friday 19 June. Two days after the deaths. At 7.30 on that Friday evening this witness had seen sparks and spurts of flame coming out of the Crewe farmhouse chimney. Without doubt what that witness saw was the murderer cleaning up. Burning a cushion and the hearth carpet on the lounge fire. The sparks must have been unburned kapok. At that time, Arthur Thomas and his wife were in another town, attending a 21st birthday party. The evidence of that witness was also suppressed. It had been given to the police within the first week of their inquiry in June 1970.
The letters the police had found on the Thomas farm from other women, letters that would have put the one they made so much use of, that he had kept from Jeannette, into perspective; these were suppressed.
These are just three examples of what might well be regarded as deliberate suppression of evidence by the police and the Crown prosecution. I could give many more. The defence counsel, totally ignorant of these suppressions, listened as David Morris opened the case for the Crown.
The case that the Crown prosecution outlined to the jury was based entirely on circumstantial evidence. Such evidence immediately presents for a prosecution a very major advantage and an equally large disadvantage. Confronted with only circumstantial evidence counsel can run rife with theories and speculation. Thus having told the jury about the burglary and the fires of the previous years, Morris suggested that Harvey Crewe would not have allowed any unusual movement or noise around the house to go unchallenged. He continued:
‘In other words, what I am saying is that the killer of these two people must have used stealth and surprise in committing this double homicide.’
