Beyond Reasonable Doubt?, page 24
Arthur Thomas, guided by his counsel, began to fill in some of his background for the benefit of the eight men and four women who would determine his fate…
He told them that last time he had spoken to Jeannette had been about six months before her death when they met in the nearby town of Tuakau, when they had chatted for ten or fifteen minutes. The examination very rapidly and inevitably came to Cow No. 4. Thomas explained how two or three weeks before her calving he had called the local veterinary surgeon Henry Collett out to examine the animal; of the special diet the cow was put on; special equipment that was bought to lift the beast up with.
Temm: Do you know somebody named David Leyman?
Thomas: Yes, I know him well.
Temm: Did he ever help you with the cow?
Thomas: Yes, he did at times.
Temm: What did he help you with? Remember?
Thomas: No, not in particular.
That interchange illustrates some of the difficulties that the defence were labouring under. Even thrown a prompt line Thomas was not astute enough to give the answer Paul Temm was seeking which was that Leyman had stayed at the farm until 1 June 1970 and had helped him with the sick cow 4. Thomas was later to come under ferocious attack from the Crown because he had not, when the police first visited him, immediately given them a detailed, blow-by-blow account of his movements throughout 17 June from dawn to bedtime. Yet here he was on trial for a double murder and despite the promptings of Paul Temm, still not giving the full detailed picture. Nothing to do with guilt. Leyman would later go into the witness box and give the testimony himself. No, not guilt. Simplicity, unawareness, naivety. As Margaret Smith, his Pukekawa friend and neighbour observed in her private diary of Thomas in the box: ‘Arthur was just Arthur.’
Slowly, almost painfully Paul Temm extracted the information. The sick cow had calved in the late afternoon or early evening of 17 June. Vivien had helped him with the calving. They had had dinner around 8 p.m.; Thomas, his wife and Peter. None of them went out that night. It was established that Vivien looked after the herd records, that his wife assisted with running the business side of the farm.
Temm: Let’s go back a little in time, before this fatal night, go back to the time we heard Mrs Batkin speak of, you heard her evidence?
Thomas: Yes.
Temm: I ask you, did you go dancing in 1956/1957?
Thomas: I definitely did not go to one dance.
Temm: When did you first go dancing?
Thomas: In 1959.
Thomas then continued to explain how he had a friend just up the road, ‘a very shy quiet person; he and I were going together as cobbers and we decided to learn to dance in 1959.’ His dancing lesson card for April 1959 was duly entered as an exhibit.
Subsequently Thomas talked of his early working life, details of which are recorded earlier in this book. He talked of the variety of policemen who had called during the investigations at his farm, during the course of which he elevated Detective Senior Sergeant Hughes to an inspector. He recalled the session he had been subjected to with Detectives Seaman and Parkes. His account of it was even more gentle than that given by Parkes.
With regard to the axle, he had not seen it before Detective Johnston walked on to his farm with it. Shown the photograph that had appeared in the Herald of the trailer, he had told the police: ‘It would pay you to go and see my father, I vaguely remember him having a trailer like that.’ Of Eggleton and his evidence, Arthur Thomas swore that he had never owned a gold watch, did not know Eggleton, had never been to his shop and that he was not the man Eggleton was talking about.
The examination-in-chief concluded with:
Temm: What assistance have you given to the police during their inquiries?
Thomas: I have given them every assistance that I can give them.
Temm: Did you have anything to do with the things that happened in the Crewe house on 17th June?
Thomas: I certainly did not.
David Morris, like a patrolling barracuda, had been quietly waiting. Personally, having met both men I would not have put Thomas in against Morris, even if the former was armed with a machine-gun.
If a couple of experts in spectrographic analysis had been needed on the jury for Mr Todd’s evidence on the wire a few farmers among those twelve good men and true would have helped during the evidence of both Arthur and Vivien Thomas.
The opening cross-examination had about it a pastoral quality full of questions about the problems of cows, calving, artificial insemination, due calving dates, actual calving dates. In view of the fact that David Morris was primarily concerned with the calving records and he had just heard Thomas say that these were kept by his wife, one would have expected him to curb his understandable impatience until Vivien Thomas took the stand, but presumably a Crown solicitor has to begin somewhere. Having had it repeated to him that Vivien kept these records, Morris withdrew from that particular farming cul de sac and went down another avenue.
He wanted to know when Thomas, his wife and his cousin had first discussed what they were doing on the night of Wednesday, 17 June. Bruce Hutton had previously testified that Thomas had told him that they first discussed this aspect about a week later. David Morris was under the impression, mistakenly, that they had discussed what they had been doing about a week after the fact was known that the Crewes had vanished. Again, the naive Thomas dug a bear trap for himself.
Morris: The discovery was 22nd, would that discussion be around the 28th or 29th?
Thomas: About the 23rd I think we had our discussion, when we first saw it on TV.
Morris: I am asking you at this stage not when you first discussed the disappearance, but when you and your wife and cousin sat down to discuss what you had been doing on Wednesday 17th June?
Thomas: I think it was the 23rd.
Morris: The night after the disappearance was first on TV?
Thomas: Yes.
Morris: You tell us you and your wife were discussing what you were doing on the night of 17th June?
Thomas: When we saw headline news on TV it was natural for us just to go back to that week in normal conversation and say: ‘We’re all right, we were home,’ just a normal conversation.
Morris: Why did you pick out 17th June as the specific night?
Thomas: I think it was on TV, that it was about 17th June. I am not sure but it is a possibility.
Morris: If it wasn’t on TV that night why was it you decided on 17th June?
Thomas: The first I heard it was 17th June or thereabouts was on the news.
Morris: Do you think that was news on Monday night the 22nd?
Thomas: Yes, I think it was.
Morris: Was that radio news on Monday night?
Thomas: The 23rd, Tuesday night.
Morris: The radio news that night?
Thomas: Or TV.
It was yet another example of the simplicity of Arthur Thomas. This was a man who if one accepts the Crown case was clever enough to commit two acts of arson and burglary over a three-year period, without leaving a trace or being seen. Was clever enough to murder the Crewes, leaving not a fingerprint or any atom of forensic evidence in the farm. Remove the bodies and dump them in the Waikato river without being seen. Yet here he was within the first hour of cross-examination leaving himself in the most terribly vulnerable position. Why should he and the two other residents of the Thomas farm discuss what they were doing on the 17th, when news of the disappearance first hit the nation? Why the 17th? Why not the 18th or the 19th? The premise is at once simple and damning. If the Crown could prove that no mention of the likely date of disappearance had been made public by the evening of the 23rd, they were home and dry in the most potent manner. While David Morris continued to cross-examine he quickly scribbled a note for a member of his staff to check on what information had been given out on the radio and television media on the evening of 22 June. Paul Temm, listening to this interchange, was equally alert. As his hair grew greyer with every moment that Thomas was being cross-examined, he too started doing a little research.
As the cross-examination continued David Morris used a technique that is all too familiar in courtrooms where the concept of British justice is played out. A technique that I have personally seen applied to men who ended up dangling from a rope. I call it the ‘So he is lying too’ gambit. The object of the exercise is to get the accused to disagree with as many prosecution witnesses as possible. One then begins to tally it up.
Fortunately for Arthur Thomas the rope, or capital punishment as we are pleased to call it, has been abolished in this country, at least temporarily; though liberal-thinking people would do well to know that the gallows is still in Mount Eden prison, waiting.
David Morris initially applied the technique to the evidence of Detective Sergeant Hughes. Thomas had a different version of their conversation. That segment of cross-examination had a predictable conclusion:
Morris: So if he did not ask you that question, then he is lying, that is what you say?
Thomas: I suppose so.
The Crown Prosecutor then attempted to add to the number by cross-examining Thomas about the evidence of Parkes and by inference Seaman, though the latter has always remained an unseen witness through the entire Thomas saga. He refrained from uttering this well-worn and deadly legal cliché but forced Thomas to remark:
‘I am not saying the police are lying, all I am saying is it was 17th June.’
This was connected with the wretched animal that stalked the entire proceedings, Cow No. 4 and when it calved.
Of his dialogue with Detective Johnston about the equally wretched brush and comb set Morris shortly before the adjournment on the afternoon of 25th February, drew the following from the accused:
Morris: Did you say to him you didn’t know whether she ever used it and that it could still be wrapped up for all you know?
Thomas: Yes, I possibly could.
Morris: Did you say that it could still be wrapped up for all you knew?
Thomas: I could have said that.
Morris: Was that just a choice of words on your part or because you had seen it there on the night of 17th June, wrapped?
Thomas: Just a choice of words.
It was powerful, very powerful. The technique of asking the same question several times is another common and very effective legal ploy when a lawyer has elicited an answer he considers favourable to his point of view. Previously David Morris had reminded the jury through his questions and answers that the blanket wrapped around Harvey’s dead body came from the same spare bedroom where the brush and comb set were found by the police. The ‘So he is lying too’ gambit was played with vigour by Morris the following morning:
Morris: Do you recall Detective Keith giving evidence?
Thomas: Yes.
Morris: You heard him say he made a note of a conversation between yourself and Mrs Thomas?
Thomas: Yes.
Morris: He noted the conversation as you saying to your wife: ‘If they think I am guilty I am and that’s that’?
Thomas: Yes, I remember him saying that.
Morris: And he referred to his notebook when he said that?
Thomas: Yes.
Morris: Do you say no such conversation took place?
Thomas: Yes, I do say that.
Morris: So that detective is mistaken, is that what you say?
Thomas: He only heard part of the sentence if he heard that sentence.
Morris: So he got it wrong?
Thomas: That is if I said it.
Morris: Did you say anything like that?
Thomas: Nothing like that at all.
Morris: Then he has got it entirely wrong then?
Thomas: Yes.
Morris: Mr Eggleton the jeweller who gave evidence, you heard him identify you as the person with the watch?
Thomas: That is right.
Morris: You tell us he is entirely mistaken in his identification?
Thomas: He is definitely mistaken.
So the number of people that Arthur Thomas disagreed with slowly but surely mounted. Morris showed him his own watch, quite different from the one that Eggleton had testified about. Thomas told him it was two or three years old, that he seldom wore it when working on the farm and that he had bought it from a man named Jim Connelly.
Morris: Is he a jeweller or something?
Thomas: Yes, I bought it from him.
Morris: Do you possess another watch?
Thomas: Yes, I have a broken-down watch at home.
Morris: Do you ever wear that about the farm?
Thomas: No, I never wore it about the farm.
Morris: Have you worn that in the last three years?
Thomas: No, I have never worn it on the farm.
Morris: Do you normally wear a black singlet when you go to town?
Thomas: Not when I go to town.
Morris: When you are dressed to go out do you wear a black singlet?
Thomas: No, never.
Morris: With an open-necked shirt when you go to Tuakau would you wear a black singlet?
Thomas: No, never.
The Crown Prosecutor showed him the newspaper photograph that Eggleton identified Thomas by. It shows Arthur and Vivien at the pyjama dance they had attended in October 1970; clearly visible under his pyjamas is a black singlet. Presumably the Crown felt there was a link between wearing a black singlet at a pyjama dance and going into Tuakau for a day’s shopping. In fact Thomas frequently could be seen in Tuakau dressed in a white shirt, open at the neck and with a black singlet underneath. My research clearly established this fact and when I questioned Thomas about this aspect he readily admitted it. Why then the denial? It had cost him dearly in Pukekawa. That one denial of something that many of his neighbours knew to be a fact convinced them of his guilt.
David Morris moved on to the evidence of Mrs Batkin, finishing that aspect with the by-now inevitable:
Morris: As far as you are concerned she is wrong?
Thomas: Yes.
A discussion followed about the fact that Thomas had only learned to dance at the age of twenty-one. Morris found it odd that Thomas had not taken dancing lessons earlier in his life. The accused’s schoolboy crush for Jeannette was touched upon. Of how subsequently he had seen her twice at Maramarua. Of how he had written to her when she was in England and the final attempt to court her during December 1962. Nothing of any significance was elicited. There was no evidence to show that Thomas had persisted in his attempts to court her after 1962. He had previously volunteered the information that he had on one occasion chatted to Jeannette outside a store in Tuakau; this had been late 1969 and the conversation had been for about ten or fifteen minutes. The police and the prosecution were ignorant of this meeting until advised by Arthur Thomas, during the course of the trial; hardly the action of a guilty man.
Detailed analysis of the entire cross-examination clearly demonstrates the weakness of the case against Thomas. Of motive, there was none. Try as they might, the Crown simply could not produce anything approaching motive. Of course it is not an essential ingredient in a homicide, but as Inspector Hutton would say: ‘If you haven’t got a motive, then boy you are in trouble.’
What the Crown did have was circumstantial evidence of varying degrees of quality. Morris attempted to build something out of the fact that Thomas kept his rifle in a variety of places around the farm whereas Peter Thomas had testified that the rifle was usually in his bedroom. A guilty man would surely have leapt at the evidence of his cousin and readily agreed that yes, it was always in Peter’s bedroom. By moving it around the farm Thomas was in fact giving an accurate picture not only of his own carelessness with firearms but also how the bulk of Pukekawa residents treated them, if the thirty farms I have visited in the area are anything to go by. I find an odd kind of innocence in the answers that Thomas gave in the witness box. For a man standing in grievous peril, his responses are not those of a guilty man. Rather a simple man who felt sure that ‘she’ll be right’.
Morris: One bullet that was found on your farm had a No. 8 on it?
Thomas: Yes.
Morris: Ever use that kind of bullet?
Thomas: I wouldn’t have a clue.
Morris: That one was apparently on its own.
Thomas: Yes, on its own.
Morris: When you saw the trailer photo in the newspaper you knew it was connected with the inquiry into Jeannette?
Thomas: That is right.
Morris: You told us you were anxious to give every assistance to the police?
Thomas: Yes, that’s right.
Morris: You followed the case with some interest?
Thomas: Yes, I did.
Morris: When you saw that trailer was it something like the one your dad had?
Thomas: That is right, but you couldn’t see much of the trailer.
Morris: Did you go to the police about that and help them?
Thomas: No, I wasn’t sure enough.
Morris: Did you think about going?
Thomas: I thought about it when I saw the photo in the paper and I said to Vivien my old man would be sure to see it and he knew more than me.
A copy of that photo in this book indicates just how little of the trailer can be seen.
A considerable discussion followed about who had first suggested that Thomas had been ‘framed’. Was it the police or Thomas? Does it matter?
Other fragments of his conversations with the police were re-introduced to buttress the Crown’s case:
Morris: You will remember Mr Hutton saying that you told him ‘I know I am sitting on rocks, I have got to stick to what I have already told you otherwise I am a goner.’ Did you say that to him?
Thomas: Yes.
Morris: What did you mean by the words ‘I am a goner’?
Thomas: The fact I can remember my times, I can remember my cousin and my rifle being at home, and that is all I have to go on.
Morris: Why use the words ‘I am a goner’?
Thomas: If I can’t remember anything and all this has come off the farm, this is what I am referring to.
When Thomas had used the words ‘and all this’ he had pointed towards the pile of exhibits.
