Beyond Reasonable Doubt?, page 25
David Morris then finished his cross-examination with a further fourteen questions about Thomas’s watch and the man called Connelly who had sold it to him. Clearly, despite the vast intellectual gulf between the two men, despite the ingenuous answers, the Crown Prosecutor had not furthered his case against the accused. The one potential exception to that position was quickly covered by Paul Temm when he re-examined Thomas. After establishing yet again that the accused had never owned a gold watch he turned to the dinner conversations that had taken place on the Thomas farm after the disappearance of the Crewes was made public knowledge.
Temm: You were questioned about how you and your wife talked about your whereabouts on the night of 17th June?
Thomas: Yes.
Temm: What newspapers do you receive at your house?
Thomas: The New Zealand Herald and the Franklin Times.
Temm: At the time of the disappearance of the Crewes becoming public did you receive a Herald then?
Thomas: Yes.
Temm: Remember reading about this in the paper?
Thomas: Yes, I read most of it.
Temm: I show you a Herald for Tuesday 23rd June and ask have you seen a copy of this newspaper before?
Thomas: Yes, this is familiar.
Temm: Did you read this article?
Thomas: It is possible I did.
The article was then read aloud and entered as an exhibit. Within the Herald article was the crucial phrase, ‘The baby, 18-month-old Rochelle Crewe, is believed to have been alone in the house since Wednesday night.’ Further on there were several other references indicating that whatever had happened to the Crewes had happened on 17th June. Thus the puzzle of why the Thomas family were discussing their movements for the 17th on the evening of the 23rd was solved.
Paul Temm’s research had paid off which, in view of the fact that he had seen that morning at the Auckland Supreme Court a well-known television news reader talking to David Morris, was fortunate for Thomas.
Brian Webb’s examination-in-chief of Vivien Thomas once again brought back into the courtroom the reminder that this was a rustic murder case. The city girl who at the time of her arrival at Pukekawa knew nothing about farming other than how to milk a cow went into detailed information about dairy farming that clearly indicated she had learned a great deal in the intervening four years.
During the Lower Court hearings, the whole procedure had taken on for Vivien Thomas almost a dreamlike quality. It all seemed totally unreal. At times, she told me, ‘It did not even seem serious, but when they found there was a case to answer it became serious. During the Supreme Court hearing it was difficult to comprehend what was going on but towards the end it became increasingly obvious that there was something terribly wrong.’
The rising fear was well masked during Brian Webb’s questions. Page after page of questions dealing with dairyfarming were designed to establish that Cow 4 had calved late on the afternoon of 17th June. It was an aspect that obsessed the Crown. In view of the fact that the Crown’s case was that Thomas had committed the murders after television closedown at 11 p.m., I find such concern with what the man was doing at 5 p.m. inexplicable. Nevertheless with the aid of her dairy records Vivien Thomas was able to support her contention that Cow 4 had calved on 17th June and had been subsequently shot on 23rd June.
I equally find it odd that such stress was placed by the Crown on the fact that the Thomas family discussed where they were and what they were doing on the evening of 17 June 1970. I know exactly where I was and what I was doing when I heard the news of President Kennedy’s assassination. Over the years literally hundreds of people have been able to tell me exactly what they were doing when they heard of the death of JFK. For tiny Pukekawa, the news of the bloodstained farm and the disappearance of the Crewes was an equally shocking event. Curious how normal natural behaviour can be made to seem abnormal and unnatural when a clever lawyer is let loose.
What was more pertinent was Vivien Thomas’s assertion that on the night of 17th June Arthur Thomas did not leave the marital bed once they had retired to it at about 9.15 p.m., and that he had not left the house earlier that evening.
David Morris nominated his junior Baragwanath to cross-examine Vivien Thomas. He told me that this was a deliberate ploy to reduce the apparent importance of the witness.
Baragwanath was clearly preoccupied with the fact that Arthur, Vivien and Peter Thomas had had those dinnertime discussions. His first twenty-three questions were concerned with this aspect. At one point when he had quite obviously irritated the judge, Mr Justice Henry remarked: ‘We all agree it was a topic and people talk about it.’ Undeterred, Baragwanath pressed on. A sample of what had annoyed Mr Justice Henry follows:
Baragwanath: I am concerned about the first discussion of your husband’s movements on that Wednesday night, when was the topic of your husband’s movements on Wednesday night, 17th June, first discussed between you?
Vivien Thomas had already answered this same question three times and told counsel that it was a ‘week perhaps, after the news was broadcast. I can’t say any closer than that. I am sorry I just don’t remember.’ She again virtually repeated that reply. The Crown Junior continued:
Baragwanath: My next question, on the occasion when his movements were discussed between you, what brought it up?
Vivien: General discussion from the paper and the news.
Baragwanath: Can you enlarge on this a little, what was the relevance of his movements on that night?
Vivien: No relevance.
Baragwanath: I put it to you that the ordinary person who has no reason to suspect they are under suspicion would have no reason to discuss his movements on that night, do you agree?
Vivien: Yes, I would agree with that.
Baragwanath: Yet you say this subject was discussed between yourself and your husband?
Vivien: And Peter Thomas.
Baragwanath: Can you help me and take your mind back to what brought up this unusual topic?
Vivien: It wasn’t unusual, it was all in the paper and on TV.
It was at this point that Mr Justice Henry intervened with the observation recorded above. Eventually the prosecution turned to a discussion about shed sheets and calving dates. Here the error, slip, or mistake that Vivien Thomas had made during that long interrogation on 25th October at Otahuhu police station was exploited to the full by Baragwanath. At the time of that interrogation she had told Detective Johnston that the sick Cow 4 had been shot two days after it had calved. When she had returned home and checked her records she discovered this to be incorrect and subsequently advised the police that it had been six days after the birth that the cow was shot. For approximately forty-five minutes Baragwanath asked question after question on this aspect. It is evident, even from a reading of the trial transcripts that Vivien Thomas, self-composed when questioned by her own counsel, gave way under Baragwanath’s questions, becoming a hesitant, bewildered woman. Despite the hesitancy, the brittle element which is an aspect of Vivien Thomas still shows through. It is an aspect that cannot have helped her husband’s position during the trial. Juries are very often emotional, irrational and illogical. They will take a dislike to a particular witness and bring in a verdict based on that dislike. The judge in this trial clearly recognized that factor when he talked to me of his fear that the jury might take a dislike to Bruce Hutton. He did not express the same fear about Vivien Thomas but he felt that ‘she fell apart on cross-examination’. A view that I would agree with. Many who knew the Thomases as a married couple have stated to me that Vivien was the strong one of the marriage. It is a view held by people as diverse as Bruce Hutton and Kevin Ryan. Yet under the pressure of cross-examination the farmer from Pukekawa was strong while the typist from Farnham was weak. Indicative of guilt? Many would say and have said to me definitely ‘yes’. If that be so was Arthur Thomas’s strength under cross-examination indicative of innocence? Why the clever typist became foolish and the simple farmer became clever has, I believe, little to do with guilt or innocence. David Morris may well diminish the role his colleague played but Baragwanath, the man who took every prize except the one for knitting, is nobody’s fool. The questions he asked were cleverly convoluted. Vivien Thomas remembers him as a man who ‘belonged to the fifteenth century when they were burning witches’. He certainly made things hot for Mrs Thomas on the morning of Friday, 26th February 1971.
Baragwanath: How long was it after the birth of the calf that Cow No. 4 died?
Vivien: She didn’t die, my husband shot her.
Baragwanath: When was she shot?
Vivien: 23rd June.
Baragwanath: How long in dates or terms of period between date of birth and the date the cow was shot?
Vivien: She calved on the 17th. Six days.
Baragwanath: How do you remember that?
Vivien: You count from 17 to 23.
Baragwanath: That of course presupposes that you have the two dates firmly fixed in some way or another?
Vivien: Yes, I have it recorded in the shed sheet when she calved and in the other book as to when she was shot.
Baragwanath: It’s those entries I put to you that give you the basis of your recollection at this point of time? Is it on the basis of looking now at the documents you have in front of you that you establish the two dates, 17th to 23rd from which you do your subtraction to get the six?
Vivien: Yes.
Baragwanath: Was your memory do you think clearer on this particular topic at a time nearer to the date when the cow was killed?
Vivien: Possibly yes.
Baragwanath: That is the normal state of affairs, isn’t it, the nearer it would be the better the memory of it?
Vivien: Usually, yes.
Baragwanath: On 25th October, Detective Johnston asked you to make a statement?
Vivien: Well, I made one so I suppose he must have asked me.
Baragwanath: You made only one statement, did you, to Johnston, it is a written statement I refer to?
Vivien: Yes, I think there was only one, yes.
Baragwanath: As at 25th October you were well aware I suggest that the movements of your husband on the night of 17th June had long been the subject of inquiry?
Vivien: What do you mean by long?
Baragwanath: As at the date of Johnston’s interview of you, you were aware that the police had, prior to that date, been inquiring into your husband’s movements on the night of Wednesday 17th June?
Vivien: Yes.
Baragwanath: I put it to you that it would be important if possible for an alibi to be established in respect of his movements that evening, would that be right?
Vivien: That would be right.
Baragwanath: If possible there should be made known some truthful explanation as to your husband’s movements which would show that he could not have committed the crime?
Vivien: That is correct.
Baragwanath: And you would be aware before the interview started that it would be your husband’s movements that would probably be asked about on that night?
Vivien: Not really, he said he wanted to know everything.
Baragwanath: Did you on that occasion tell Detective Johnston that the cow was destroyed two days and not six days after calving?
Vivien: Well, unless I read my statement to see, I can’t exactly remember.
So, of course the statement was duly shown to her, it established that she had indeed said that to Johnston. The rather too confident way in which she had earlier demonstrated to the Rhodes scholar how to add seventeen and six was thrown back at her.
Baragwanath: Again I suggest it is a matter of simple arithmetic, if your book exhibit 348 is right in saying that the cow was killed on 23rd June, if your statement to the detective is correct, the calf was not born until two days before 23rd June, namely Sunday 21st, is that not a matter of arithmetic too?
Vivien: Would you repeat that too? Could I say when I made the statement to Detective Johnston that is what I genuinely believed, that the cow had been shot two days later, until I looked this book up and I saw it was the 23rd.
On reflection I believe Baragwanath should have been given the knitting prize as well. By accepting the erroneous date of the killing as a sacrosanct fact, the prosecution had moved the calving date from the 17th to the 21st and if believed by the jury had demolished the bulk of the Thomas alibi for the hours between 4 p.m. and 7.30 p.m. on the day the Crewes died. Again it must be pointed out that the Crown contended that the murders took place after 11 p.m. so in terms of demolishing an alibi it was a wasted exercise. What the cross-examination did was equally important. It threw into doubt Vivien Thomas’s credibility. One error, one mistake. Well then, perhaps there are other errors? Other mistakes? After further questioning about the calving habits of cows, Baragwanath turned the questioning to cover the trial that was going on within the trial of Arthur Thomas. The unofficial trial of Vivien.
Baragwanath: When you are on and about the farm do you regularly wear slacks?
Vivien: Yes, I do.
Baragwanath: Do you also drive a 1965 Hillman car painted light green?
Vivien: Yes.
Baragwanath: How would you describe the colour of your hair?
Vivien: Dark brown.
Baragwanath: What is it like in the sunlight?
Vivien: The same colour, dark brown.
Baragwanath: Whereabouts were you on the morning of Friday, 19th June, at 9.30 a.m?
Vivien: Probably doing my housework.
Baragwanath: Can you not remember?
Vivien: The 19th, that would be normal at that time of day. If my husband had gone to feed out hay I would be with him, if not I would be in the house.
Baragwanath: Whereabouts was he at that time of day?
Vivien: How can I remember that now?
Baragwanath: Have you not been asked before as to where you were at that time on that date?
Vivien: I think we were asked for our movements of all the days of that week. That date is not particular from any other date asked about.
Baragwanath: This was the day on which a woman wearing slacks with light brown hair was seen on the farm of the Crewes, I have told you that now, do you say this is the first time you were informed of this?
Vivien: No, it is not the first time.
Baragwanath: When was the first time?
Vivien: I am not sure whether I heard it in general conversation, whether I read it or I was told by a police officer.
Baragwanath: I ask you a similar question in respect of the following day, Saturday 20th June. In the morning you had been to a cat show in Auckland?
Vivien: Yes.
Baragwanath: What time did you return home?
Vivien: About the middle of the morning.
Baragwanath: What sort of vehicle were you driving?
Vivien: Hillman Minx.
Baragwanath: Light green in colour?
Vivien: Yes.
Baragwanath: What were the movements of your husband at 1.40 that afternoon?
Vivien: I don’t know.
Baragwanath: This is the date on which a car of light colour, like the one Jeannette Crewe used to own, was seen at the Crewe farm; understand the reason for my question?
Vivien: Yes.
Baragwanath: Tell us about your movements at the time this car was seen at 1.40.
Vivien: Well, we would have been at home.
Baragwanath: Your husband was not at the football that afternoon?
Vivien: No, he was not at the football that afternoon.
And so it continued. The fact that the Thomases, knowing they had to milk and could not attend both football match and subsequent dinner and dance, had elected for the latter so that they could milk during the afternoon assumed a significance at least in the eyes of the Crown. Of course it did no such thing. What the Crown was intent on establishing was the guilt of both Arthur and Vivien. The fact that only one was officially on trial was an irrelevance. This is what lawyers call ‘tactics’.
In re-examination Paul Temm, attempting to put the error that Vivien Thomas had made at Otahuhu on 25 October into perspective, established that Vivien had not had access to her calving records or notebooks on the day of the interrogation. He was in the process of establishing with regard to the crucial date of 17 June that her statement to Johnston and all subsequent statements including her present testimony were entirely consistent with each other when the judge took exception to the question. Subsequently he obtained from Vivien Thomas a categoric statement that she had not been on the Crewe farm on Friday 19 June.
Vivien was replaced in the witness box by an aunt of Arthur’s, Rosemary Thomas. On the night of 17 June, Mrs Rosemary Thomas testified, she had phoned Arthur and Vivien asking them to accompany her to the ratepayers’ meeting. They had declined because they had yet to have their dinner and they were running late because of trouble with a sick cow. As a pertinent comment on the quality of the police investigation Brian Webb also obtained from Mrs Rosemary Thomas the information that her husband owned a rifle that was identical to Arthur’s and that the police had not requested it for testing. So yet another person who had been within three miles of the Crewe farm, with access to a rifle identical in terms of rifling marks had not been investigated.
There followed into the witness box a number of farmers and neighbours of the accused whose evidence reads almost like a plea of mitigation after a verdict of guilty. They all told the jury that Arthur was well liked, highly regarded, a good farmer and all the rest of it. I fail to see the relevance of such testimony before verdict. I have met some thirty men and women who have murdered. The majority of them were very charming people. It is not my intention to disparage these good honest people who stood up and in essence declared their belief in the innocence of Arthur Thomas. I admire that, but as evidence it is not relevant. The pity is that stuck among these men was one whose evidence was not allowed. Evidence I would have thought relevant. Stock agent Roger Burrell had called on Arthur Thomas the morning of 18 June; which, if one accepts the Crown’s case, was the morning after Thomas had shot the Crewes. Burrell was in the process of telling the jury that Thomas on that morning had been perfectly normal when Mr Justice Henry intervened to rule that such evidence was inadmissible. Curious that evidence of Thomas pestering at dances some fourteen years before the deaths was allowed, and evidence of his behaviour less than twelve hours after the deaths was not allowed. Sir Trevor Henry justified that ruling to me with the remark: ‘If we allow that sort of evidence to be given we will have suspects manufacturing evidence after they have perpetrated crimes.’
