Beyond Reasonable Doubt?, page 26
I think that a very valid point. It would, however, be equally logical to rule as inadmissible alleged statements made by the accused before he is officially cautioned. Statements like those made by Thomas and his wife from early July 1970 through to early November 1970, to so many policemen, statements that were allowed to feature so heavily in this trial.
Several witnesses gave evidence about the quantity of .22 shells that proliferated all over the Thomas farm, the premise being that anyone could have walked on to the Thomas farm, picked up a used .22 cartridge case and then dropped it in the Crewe flowerbed.
David Leyman confirmed that he had been staying on the Thomas farm between 23 May and 1 June and had helped his host look after a sick cow that if he remembered correctly was in calf. Veterinary surgeon Henry Collett testified that he had been called to the Thomas farm in June to attend a sick cow that was in calf. Dentist Garth Brown recalled that both of the Thomases had attended his surgery between 12 and 12.30 on 17 June. Further questions from the defence would have elicited the information that he had invited them to have a coffee and look around his new house and they had declined because they wanted to get back to look after a sick cow that was about to calve. Those further questions were not asked. Neither was Garth Brown asked if the police had made inquiries either to him or his staff about the dental appointments of Arthur and Vivien. Throughout all this coming and going to the witness box the Crown adopted an astute silence. Until Merv Cathcart gave evidence, that is. He was the ‘quiet shy cobber’ who had taken dancing lessons with Arthur in 1959. His evidence directly contradicted that of Beverly Batkin’s about Arthur attending dances in 1956/57. Like many others Mr Cathcart had not attended the ratepayers’ meeting of 17 June. If asked, and nobody had until I did, he would have told the jury that he too phoned Arthur Thomas that evening and had spoken to the accused. One aspect of Mervyn Cathcart’s evidence might appear whimsical to a townie but would be significant to anyone living in the country. To get to the Crewe farm, Thomas would have to go past the Cathcart farm. At that time Mercer Ferry Road was a cul de sac ending at the Waikato river. The Thomas car had a very distinctive whine in the differential – as Mr Cathcart said to me: ‘You knew every time that car of his went by. I was in that night. I went to bed about 9.30 p.m. We slept right on the front of the house, about fifty feet from the road. You could hear the noise of his car over half a mile away. It was such a well-known noise. I never heard it that night.’
When David Morris rose to examine Cathcart he attempted to diminish the power of the noisy differential with comments about how windy it was that night. But more significantly, he established that this close friend of Arthur’s had not known of the existence of the dump on the farm. It would become a powerful piece of ammunition for Morris in his final speech.
The louvre shooting theory was brought back to prominence with the evidence of several defence witnesses. Temm had taken to heart the judge’s strictures that evidence deriving from photographs could only be given by experts. Hutton during the course of his evidence had taken a trip out to the Crewe farm to attempt to prove for the benefit of the Crown how Harvey had been killed. During the course of the defence evidence a photographer had been sent out to Pukekawa to disprove with his own photographs that same theory. With the photographer had gone a marksman and a man with over thirty years’ experience of firearms. They had taken a number of Court exhibits and had effected their own reconstruction. Their combined evidence demonstrated, effectively, the sheer lunacy of the police theory of louvre shooting, when the armchair is placed with the right-hand rear castor over the bloodstain the police neglected to mark.
It was a very strong finish to the case for the defence, only marred by the fact that the judge refused to allow a psychiatrist and a bank manager to testify. From the former, Paul Temm had intended to elicit the fact that Thomas did not have an obsessive nature; from the latter he had hoped finally to get access to the cheques that had been drawn and the deposits made by the Crewes shortly before their deaths. In both instances he was balked by Mr Justice Henry. The judge considered that the evidence from the two men was ‘inadmissible’.
Prior to the intervention of the judge, the defence had established from the bank manager that the police had indeed had access to the information that Paul Temm wanted. Why then had they suppressed that information? Why not make it available to the defence? There can be no doubt that Mr Justice Henry would have very quickly thrown such evidence out unless he considered it relevant. Such information would reveal, for example, if the Crewes had withdrawn from their accounts a large sum of cash shortly before their deaths, money that was not found in the farm by the police. Such information might open up a powerful motive for the deaths.
The crowds who had queued, pushed and shoved their ways to seats in the public gallery throughout the trial once again rushed for seats before David Morris began his final speech to the jury.
It was inevitable in a case that relied on circumstantial evidence that conjecture would run rife through his speech. ‘The Crown contends that Thomas shot Jeannette and Harvey Crewe on the night of Wednesday 17 June. That he shot Harvey Crewe by firing through the open louvre kitchen window while Harvey was sitting in his chair. That subsequently Thomas burst into the house, knocked Jeannette down and shot her. At some stage he wrapped their bodies in bedspreads and then weighted the bodies before depositing them in the Waikato river.’
David Morris told the jury that he would pose three questions to them:
1. Were the Crewes killed on 17 June?
2. How and when on that night did they meet their deaths?
3. Who did the evidence indicate was the person who committed the two killings?
The first was quickly dealt with on the basis that the couple had last been seen alive at a stock sale on the afternoon of Wednesday, 17 June. Telephone calls went unanswered on the Thursday and newspapers were uncollected.
The Crown Prosecutor then immediately moved into speculation when he observed: ‘Evidence establishes they had eaten their evening meal. It must have taken place after that.’ The meal of course could have been lunch eaten before the stock sales. Did they really wait until 7 p.m. to read mail delivered at 9.30 a.m? The fact that the table was not cleared is entirely consistent with the clothes slung willynilly in the bedroom. From the fact that Rochelle was found in her cot, dressed in night clothes, Morris deduced she had been put there by the parents. He cited the evidence of Len Demler that the child was normally put to bed around 6 p.m. He told the jury that it was clearly established that they had been killed later in the evening ‘certainly after television had finished’. The lead on the television was disconnected but the television was still on. In fact apart from the disconnected lead in the hall the set was also switched off at the mains in the master bedroom.
The ingenious David Morris continued:
‘At the time Harvey was shot he was sitting in his chair and Jeannette was sitting on the sofa knitting. She had jumped up, dropped stitches and taken the other needle to defend herself and dropped it bent.
‘There was no doubt Harvey was shot in his chair from the evidence of Dr Cairns and the bloodstains and drag marks on the carpet,’ asserted the Crown Prosecutor. He continued:
‘A defence witness had said it was perfectly possible to carry out the sort of shot that killed Harvey. It was certainly not a difficult task for someone accustomed to shooting opossums and there was light present.’
In fact, the defence witness. Percy Brant had said:
‘I found that position for one my size was quite uncomfortable and I would not guarantee a steady sight in that position. The eave was close to my head, my knees were bent, and I found it quite difficult. I suppose a shot could be fired. There was a certain amount of restriction with both top and bottom louvres, there was a very limited angle at which to get an offhand shot.’
Building on the conjectural story, Morris dropped in a contradictory fact: ‘The weather that night was windy and unpleasant.’ How that equates with wide-open louvre windows, Mr Morris did not enlighten the jury.
Supported by the evidence of Dr Cairns he elaborated on the Crown theory of exactly how Harvey and Jeannette had been murdered. In view of the initial theory of Dr Cairns of tomahawks, axes and pieces of wood, Morris was seeking justification from a proven fallible witness. When he turned to the third question he had posed to the jury he observed:
‘The Crown case is that whoever fired the shots and did the killing also tied the axle to Harvey Crewe’s body, and the shell case found by the police was ejected as the killer reloaded, having fired the first shot, before bursting into the house.’
With regard to the axle, his task would have been infinitely easier if the axle had been recovered attached to the body. The Crown case would in those circumstances have been immeasurably stronger. Their case would have been stronger still if from the vast collection of rubbish recovered from the Waikato a weight had been produced linking the Thomas farm with the disposal of Jeannette Crewe.
With regard to the axle the Crown’s case was that it must have been attached to the body of Harvey Crewe and fell away as the police pulled the body into the cradle.
Tracing the previous history of the axle, the Crown came to a full stop at engineer Rasmussen’s yard. In view of the fact that the other redundant components had been found by the police on the Thomas farm dump Morris considered the axle had gone back to the farm as well. ‘I suggest it, too, was left on the farm until the night of Harvey’s death, when it was used to weigh him down in the Waikato river.’
The trailer conversion had taken place a year before Arthur Thomas took over his father’s farm. Prior to its discovery on the riverbed on 16 September 1970, no evidence had been brought of the axle’s history over the previous five years.
Of the Charles cartridge case David Morris said:
‘There can be no doubt whatsoever, after hearing the evidence that the cartridge case was ejected from the accused’s rifle.’
Certainly powerful evidence from DSIR scientists had been adduced in support of the statement but a few moments later the Crown Prosecutor made a statement that was in direct contradiction to those same scientists’ opinions:
‘This case was from the bullet which killed Harvey Crewe. This rifle on the desk in front of me fired it.’ .
Why Paul Temm did not leap screaming to his feet at this point I do not know. Why the judge did not stop Morris and insist that he withdraw that remark and instruct the jury to ignore it I do not know. Not only was there no evidence to support that statement, there was very significant evidence to contradict it.
Temm: So it comes to this does it, that the two rifles left were the accused’s Browning rifle and another I suggest a Remington rifle?
Nelson: That is correct.
Temm: And these bullets might or might not have been, might have been fired from that Browning of the accused?
Nelson: Yes, sir.
Temm: 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, that the one came from the other?
Nelson: No, sir. I could add …
Temm: From your examination of the cartridge case and the bullet that killed Harvey can you say the bullet came from that cartridge case?
Nelson: No, sir.
What Dr Nelson might have said, if not interrupted by the next question was: ‘I could add that I would not normally expect to be able to link a particular bullet to a particular case.’ And quite clearly with regard to the Charles case he had not. When people talk of Thomas having had two fair trials they should consider situations like this. In a closing speech for counsel to assert as a fact something that has not been established as such is a serious breach of his duty to the Court.
The quality of much of the remainder of the Crown Prosecutor’s speech was in keeping with the extracts already quoted. The motive for Thomas in Morris’s view ‘was probably jealousy stemming from a childhood passion’.
I have contended throughout my study of this trial that there were two trials taking place simultaneously. Officially Arthur Thomas. Unofficially Vivien Thomas. The cross-examination of Vivien Thomas by Baragwanath clearly proves that contention.
In his final speech David Morris told the jury that Thomas’s story had, of course, been supported by his wife.
‘This is not a trial of Mrs Thomas. The Crown does not suggest she knew anything about the murder. She may have visited the Crewe farm on the Friday to feed the child, to minimize the tragedy, this would explain the apparent inconsistency of the careful and meticulous planning by the murderer and the seemingly foolhardy behaviour in feeding the baby and attempting to clean up.
‘Mr Roddick has described seeing a woman with light hair and wearing slacks at the farm.
‘You may well think she is a determined, resourceful and loyal wife.’
In those words a Crown Prosecutor calmly stated: ‘Vivien Thomas is an accessory after the fact of murder.’ The cynicism of first blandly stating she was not involved in the murder and then accusing her of being an accessory after the murder is a revealing insight into the mind of David Morris. Nearly eight years later that ‘determined, resourceful and loyal wife’ has yet to have any charge brought against her.
The Crown Prosecutor reminded the jury of how Vivien Thomas had faltered under cross-examination. She had not corroborated her husband ‘on the vital evidence of the watch’.
Indeed she had been asked no questions at all on ‘the vital evidence of the watch’. Mr Justice Henry had listened as Arthur Thomas had talked of buying his own watch from a man called Connelly ‘a few years ago’. Thomas had been hazy about where the sale had taken place; it ‘was either at his flat or on the farm’. And hazy about how much he had paid for it. He had said that Vivien would be able to answer those questions. The judge had waited for the ace to be sprung. At the end of Mrs Thomas’s evidence he was still waiting.
Referring to Thomas’s alleged remark that the brush and comb set might ‘still be wrapped up for all I know’ Morris asked the jury:
‘Was it purely coincidental that he described the set exactly as it was although he had not seen it for eight years?’ He concluded his address to the jury with the following words:
‘In the Crown’s submission, the whole of the evidence taken together leads inevitably to the conclusion that on the night of 17th June 1970, the eve of the Crewes’ wedding anniversary, the accused, Arthur Allan Thomas, shot them to death.’
Rising to his feet, Paul Temm began with a long detailed explanation of circumstantial evidence and direct evidence. He pointed out to the listening jury that the Crown’s case depended totally on the former and told them how in his view they should consider such evidence. He continued:
‘In our submission, this man is innocent and comes here because the inquiries that were made were less than adequate.’
Eggleton the jeweller he called ‘a patently honest man, but I submit his identification of the accused was a case of mistaken identity’. He read to the jury a letter written on 24 February 1961. It was from Jeannette Demler, thanking Arthur Thomas for the present of a writing compendium and pen. It was a chatty, friendly letter. Paul Temm asked the jury to compare the words written by the dead woman with the evidence given by Mrs Batkin, in considering the relationship at that time between the accused and Jeannette Demler. He could have equally read out to them another letter from Jeannette that Arthur had kept, written ten months later, in December 1961. A Christmas card from Britain that read:
‘To Arthur, Christmas cheer and best wishes for the New Year from Jeannette.’ Inside was written:
‘Dear Arthur, What a surprise to find a present of beads and stockings at the OVC. Thank you very much. The beads were lovely and you were a good guess with the size of the stockings. You certainly seem to be seeing lots of different parts of the North Island with working at Barr Brothers. Life is still just as hectic as ever over here. I am stopping work to go for a skiing holiday in Austria early next year. Yours sincerely Jeannette.’
Hardly a note from a young woman who had been pestered by Thomas, whose life had been made a misery by this man. As for the brush and comb set that he gave her at Christmas 1962 – does anyone seriously think that this woman would still have it, albeit wrapped up, eight years later, if she had the slightest reason for disliking Arthur Thomas? This woman who ‘was pestered at dances’, ‘lived in fear of her life because of fires and a burglary’?
Temm hammered away at the unmarked bloodstain in the Crewe lounge. He called it ‘the key to the whole case’. He elaborated:
‘Consider the fact that you were told nothing whatever about it till Mr Hutton was cross-examined – a significant feature if ever there was one. If the defence had not noticed it, you would probably have been told nothing about it.
‘I invite you, in weighing up the circumstances of this case to weigh up the conclusions with great care, in case you take a piece of one and a piece of another and put them together when they do not make a whole.’
He returned to that unmarked bloodstain:
