Beyond Reasonable Doubt?, page 22
Keith also offered into evidence as an exhibit the solitary round of .22 ammunition he had found in the Thomas garage, which when dissected had the number 8 on the base of the bullet.
When DSIR scientist Rory Shanahan gave evidence the defence launched a major attack on the Charles cartridge case. Paul Temm was primarily concerned about two aspects: the overall external condition and the marks on the base of the cartridge case. He held the view that a cartridge case exposed to the elements for as long as this one allegedly had been would show a far greater degree of corrosion. It was also the defence counsel’s belief that the firing marks on the base differed markedly from the marks left on cartridge cases that had been indisputably fired from the Thomas gun. Both lines of attack would have been immeasurably stronger if the defence had called experts in these areas. Certainly experts existed who could have testified about the marks on the base of the case, but with regard to corrosion Paul Temm was to be the first of many people to discover that the study of corrosion on metals is a veritable minefield. Before the trial commenced Temm arranged for Professor Tichener, head of the engineering faculty at Auckland University, to examine the Charles case. The following is an extract from his report:
‘The case appeared rather less corroded, both inside and outside, than I would have expected in view of the length of exposure it had presumably suffered in the soil; but not to the extent that I felt it possible to say with any conviction that it could not have been exposed for this length of time. In this connection it must be realized that corrosive attack is notoriously variable, and that nominally identical articles exposed for the same period to similar environments frequently show markedly different degrees of attack.’
Certainly the Charles case was subjected to markedly different descriptions from a variety of witnesses. It became a ballistic Jacob’s coat of many colours.
Rory Shanahan: ‘Somewhat duller than the other cartridge cases.’
Dr Donald Nelson: ‘It was darker than other freshly fired ones.’
Inspector Hutton: ‘Heavy ink type of stain running from the bullet end of the cartridge case at its widest end and tapering down towards the rim.’
Detective Charles: ‘I would say darkish brown … Yes, in a way chocolate brown would be a better description.’
Without the comforting knowledge that he would be calling his own experts to justify certain defence contentions, Paul Temm attempted by comparison photographs to establish fundamental differences between the marks on the bottom of the Charles case and one fired from the Thomas rifle. But whereas Shanahan had used photographs merely to demonstrate to the jury conclusions reached from microscopic examination, Temm relied solely on photographs to justify defence conclusions. It was a line of attack that was extremely vulnerable. As defence counsel took him through photograph after photograph, Rory Shanahan readily agreed that there were indeed marked and significant differences but as he had previously observed: ‘A photo can never ever fully reproduce what one can see through a comparison microscope. You cannot pick up shade, depths and highlights. They merely attempt to illustrate previous findings.’
Later Shanahan explained that such differences that existed in his photographs and the enlargements of them made by the defence could be caused by lighting. He also referred to minute marks that could only be observed through a microscope. Clearly the answer would have been to set up either in the DSIR laboratory or the courtroom itself a comparison microscope for the jury to look through. Such a demonstration was first performed in an English court in 1928; evidently the idea had yet to reach New Zealand.
Shanahan was followed into the witness box by another DSIR scientist, Harry Todd. His testimony was largely concerned with comparison of the wires found around both bodies and around a bedspread that was recovered close to Harvey Crewe’s body. He had been given thirty segments of wire to compare with what were rather gruesomely called ‘the body wires’.
During the course of my research I discussed with a considerable number of scientists the need for a scientific ombudsman, someone who could give the jury an independent assessment of forensic evidence. A number of the men and women I spoke to welcomed the idea, others objected or felt counsel representing an accused person would object. I believe there is a desperate need for such a person to be incorporated into our legal system, not only when there is a direct conflict of scientific evidence, but also to explain in lay terms exactly what the hell a particular witness is talking about. The Thomas jury was made up of twelve ordinary people: housewives, shopkeepers, etc. Does any reader honestly believe that they made sense of the following extract from Mr Todd? Remember, unlike the reader, the jury only heard it, and only heard it once:
Baragwanath: Were you asked by Mr Shanahan to make comparison between on the one hand certain wires which were labelled as having come from the bodies, and on the other hand certain wires said to have come from neighbouring farms?
Todd: That is correct.
Baragwanath: Did you initially separate the samples in the bag visually to copper and non-copper?
Todd: I used two techniques, the visual and the magnet.
Baragwanath: Which picked out the ferrous samples?
Todd: That is right.
Baragwanath: So we have a term to use for ferrous samples, a common term used to describe these?
Todd: It could be called galvanized iron.
Baragwanath: Did the sample received include the following: sample X 6626 (1)?
Todd: Yes. Snip from Ex 288 (1) or wire no. 1.
Baragwanath: Did you also receive sample X 6626 (2)?
Todd: Yes. Snip from Ex 288 (2) or wire 2.
Already it will be noted that every sample has three different identifying sets of numbers. This was just for openers. After going through a whole series of samples that Todd had received, each bearing a triple designation, it was established that the three samples of galvanized wire taken from Harvey’s body differed from each other and also differed from the samples collected from a number of Pukekawa farms. It was also established that the copper wires removed from both bodies were apparently identical.
When Todd talked about the second batch of wires he had received on 22 October, the Crown dealt initially with the copper samples:
Baragwanath: Did all these differ appreciably from the copper samples you had from Harvey’s body and one from Jeannette’s body?
Todd: Yes, they differed appreciably.
Baragwanath: How many pieces of galvanized iron wire did you receive in this second batch?
Todd: There were again 11 samples.
Baragwanath: How did the gauge of these 11 samples compare with the gauge of steel of the galvanized iron wires 1, 2 and 4?
Todd: They were nominally the same.
Baragwanath: Did you conduct tests to see how wires 1, 2, and 4 labelled as being 1 and 2 from Harvey and 4 from bedspread, compared with these other 11 galvanized iron samples?
Todd: I did.
Baragwanath: Deal with these wires in turn; firstly wire 1, lab No. 6626 (1)?
Todd: Comparing sample 1 and the 2nd batch, there is excellent agreement in composition between sample 1 and 4 of the batch. 320a, 323, 325 and 334.
Baragwanath: Were you able by the tests conducted to differentiate between wire 1 and the four galvanized iron samples to which you just referred?
Todd: No, I wasn’t. Within my experience they were indistinguishable.
Baragwanath: Did you also test a sample 328d against wire 1?
Todd: That is correct. That is also in good agreement.
Baragwanath: Referring to wire 2, how did this compare with other wires?
Todd: There was some good agreement between wire 2 and sample 324a.
Baragwanath: You refer to wires 1 and 2; did you also check to see whether wire 4, bedspread wire, compared with the 11 other wires?
Todd: Yes, I thought at first there was a possible agreement but the subsequent work convinced me that there wasn’t a full similarity between sample 4 and any of these wires.
Baragwanath: You referred to wire 1 as being indistinguishable within the limits of your tests, are you able to say categorically whether on the basis of your tests two pieces of wire are necessarily from the very same coil?
Todd: No, I could hardly say that. I could say that they were different, but the samples if of a similar composition they could be from the same coil, but they needn’t be of course.
What the lay jury made of that I do not know. But in his last answer Mr Todd had totally demolished any probative value his evidence might have for the Crown. He honestly admitted that he was not in a position to say if one particular piece of wire had come from the same coil as another particular piece; all he could do was talk of similarities to a lesser or greater degree.
With regard to comprehension of this scientist’s evidence, it is not without significance that the newspapers of this country either carried no reports of it at all, or passed rapidly over it.
Equally I have yet to read, in any of the books, articles or statements of the Thomas case, covering a period of nearly eight years, an accurate assessment of Mr Todd’s evidence. Many writers have mistakenly asserted that the scientist was only able to find one sample taken by the police from the Thomas farm that was in agreement with the body wires.
In fact in the scientist’s opinion four of the samples taken from the Thomas farm were in ‘excellent agreement’ and two were in ‘good agreement’ with the body wires. If Thomas is indeed the double murderer this poses an extraordinary situation. He used copper wire from a source as yet untraced and a mixture of galvanized wire some of which was similar to the body wires. It conjures up a picture of Thomas walking around his farm picking up odd bits of wire and then, ignoring his own copper wire rolls in his shed, acquiring from an unknown source, copper wire. Of course every odd piece that he used would increase the risk of detection. If one were aware that wire could be traced why not use just one roll of wire and throw the remainder in the Waikato. Why would a farmer use sixteen gauge wire, more suitable for wrapping small cartons when there was an abundance of eight gauge wire on his farm. The sixteen gauge wire would be extremely unlikely to support an axle weighing over 351b.
Although previous witnesses had identified the bewildering array of wire sample numbers, the Crown made no attempt while questioning Mr Todd to identify the source of the various wires.
Into this veritable foggy maze came another man from the DSIR, Dr Donald Nelson.
He enlarged on his Lower Court evidence concerning his examination of the skin tissue that had been removed from Jeannette Crewe’s head. The absence of soot or powder burns might, he told the Court, be accounted for because the skin tissue had originally been covered by hair and had also been in water for a long time. He was therefore unable to form an opinion as to the range that Jeannette had been shot from.
If he had subjected the skin tissue to a neutron emission test it is possible that he might have found traces of barium carbonate or nitrate, antimony and lead styphnate, which would have proved the range to be very short. Such tests have been performed in the United States and England on skin tissue subjected to water for longer periods than two months with significant success. The question of range of shot is crucial when considering the possibility of murder/suicide in this case. And as Dr Donald Nelson said to me when referring specifically to the deaths of Harvey and Jeannette:
‘We cannot rule out the possibility of murder/suicide.’
Asked why he had been unable to exclude two of the sixty-four rifles tested Dr Nelson replied:
‘On two of these rifles the width of the land markings was identical with the bullet 234, and in addition in the land markings of these rifles there was very little characteristic detail which would leave a further exclusion.’
The characteristic detail; that is, the secondary markings or striations which are produced by each individual weapon and no other, are what pinpoint a specific weapon. Clearly none existed on the bullet fragments retrieved from the two dead people. This does not need the legal doctrine of reasonable doubt applied to it, merely common sense. In terms of determining which rifle was used to kill Harvey and Jeannette Crewe, the Crown and the DSIR are no nearer a specific positive conclusion today than they were seven years ago.
Dr Nelson told how he had taken part in the reconstruction of the louvre theory shooting, but he stressed to the Court that he had nothing to do with the placement of Harvey’s chair. That responsibility had been left to Inspector Hutton. Dr Nelson’s conclusions about the theory were: ‘It was quite possible, in fact relatively easy, to shoot accurately at a target in the armchair using the room lighting in the sitting-room from the position where I was.’
Under cross-examination it turned out that the reconstruction he had just recalled so vividly had been less fresh in his mind two months earlier. In the Lower Court version he had his left foot on the brick wall and the right foot on the windowsill. At the Supreme Court the feet positions were reversed. The sharp eyes of a member of the defence team had spotted the switch. After some reflection Dr Nelson elected to stand by his current version. His memory also did not recall whether the lounge floor was carpeted during the reconstruction, an absolutely vital factor. He was equally ignorant about potential movement in the louvre windows themselves. Now these are crucial aspects if the police theory was to be demonstrated as tenable. The louvre windows, for example, do not open beyond a horizontal position. This would be the maximum rifle access a marksman could obtain, yet the DSIR man made no test on the windows, did not check if the carpet was in its correct position, did not check if there was a carpet laid at all. He waited until everything was to Inspector Hutton’s satisfaction then climbed up and aimed a rifle through an already horizontally opened louvre window and fired.
Later in his cross-examination, Paul Temm turned to the bullet fragments recovered from the two bodies:
Temm: And these bullets might or might not have been fired from that Browning belonging to the accused?
Nelson: Yes, sir.
Temm: And might have been fired by that Remington?
Nelson: Yes, sir.
Temm: And might have been fired by another weapon altogether that you have not tested?
Nelson: Yes, sir.
Temm: Turning to the cartridge case found by Mr Charles, are you able to say that the bullet that killed Jeannette Crewe came from that cartridge case?
Nelson: No, sir.
Temm: From your examination of the two objects you can’t say that the one came from the other?
Nelson: No, sir. I might add …
Temm: From your examination of the cartridge case and the bullet that killed Harvey Crewe can you say the bullet came from that cartridge case?
Nelson: No, sir.
The final point that Temm established from Nelson was that the DSIR had only compared the Charles cartridge case with cases fired from the Thomas rifle. It had apparently not been considered necessary to call back in the initial sixty-four rifles collected, let alone bring in new ones.
Late on the afternoon of 24 February, the main prosecution witness, Inspector Bruce Hutton, commenced giving evidence. Efficiently, step by step, he told the story of the police investigation that he had controlled. It was not the story outlined earlier in this book of wild accusations being levelled at a variety of Pukekawa residents. The Apaches who had run wild through the farms were replaced by careful, calm, cavalry officers. Step by inexorable step the hunt was led towards Arthur Thomas. The axle, the wires, the brush and comb set, the louvre reconstruction, the reasons why that particular flowerbed had not been searched before, the finding of the Charles case, it was an impeccable performance. The following morning when he continued his evidence Hutton even threw in a surprise. He had, it seemed, gone back to the Crewe farm after the Court had risen the day before, this time with a photographer. While he posed in an armchair, the photographer shot him through the louvre windows, with his camera.
All the statements made by Thomas prior to the accused being cautioned and charged were introduced. Details of conversations about sick Cow 4, whether he was jealous of Harvey, how the drought had hit him, the alibi, the ejection tests that had been carried out with the Thomas rifle to determine how far a case could possibly go. Tests carried out after the Charles case was found. The final flourish which initially was meaningless to jurors, was when Inspector Hutton produced two new exhibits. The first was Thomas’s watch. The second was a copy of the Franklin News (a local newspaper) in which was a photograph of Arthur and Vivien.
I have spoken to a number of police officers who served in the force with Bruce Hutton. One comment in particular I recall from a man, now a detective sergeant, who trained under Hutton:
‘He was remarkable the way he organized his mind when giving evidence. I remember one occasion a number of us, including Hutton, were giving evidence. While the rest of us fretted and rehearsed our lines outside the Court, Bruce Hutton just sat there very calmly waiting. We went in and made rather a hash of it. Hutton came in last. It was an incredible performance. He knew, God knows how he knew, but he knew every mistake the rest of us had made. As he went through his own testimony, he patched a hole here, covered a shaky piece there that the rest of us had created. It was a masterful performance. The accused was found guilty of course.’
Paul Temm rose to cross-examine. He got the inspector on the run immediately:
Temm: Did I understand you to tell the accused in the last interview on Armistice Day last year that you asked him for an explanation of the fact that the axle had been traced to his farm?
Hutton: I did, sir.
Temm: I understand from the evidence thus far that the last time the axle was seen before it was found on Harvey Crewe’s body was by Mr Rasmussen in Meremere in 1965?
