Beyond Reasonable Doubt?, page 27
‘If the chair is put over that bloodstain it is pretty clear conclusion that a person sitting in the position of Harvey Crewe was just not within range of a bullet fired from the louvre windows.’
Referring to the reconstruction that Inspector Hutton had so dramatically carried out during the trial he made two telling points. The inspector had said that the chair used was identical to the bloodstained armchair, known as ‘Harvey’s chair’. Temm had clearly established during his cross-examination of Hutton that it was not. He rammed the point home:
‘I put it to you that it is abundantly clear they were not the same.’
The defence counsel also asked how during that particular reconstruction the chair had been over the unmarked bloodstain, when there was no carpet laid.
‘The police cannot point to the surveyor’s plan as the bloodstain is not marked on it.’
The defence counsel pointed out that the last known sighting of the axle was in 1965. He queried whether it had actually been attached to the body; that nobody knew that it had been tied to the body. ‘Would you expect the body to be floating with that axle tied to it? I put it to you it was never on the body at all. It’s a classical example of thinking up a theory and putting evidence to it. I submit the axle was there by pure chance and when found by the diver it was treated by the police as being connected to the body and everything started from there.
‘Can you say this axle was on that body as a weight? It’s almost certain that the body was held by the bedspread which was jammed up against the tree and held to it by wire.’
This was, of course, possible but it would seem to me that Paul Temm was walking at that point on ground as unstable as the Waikato river. It had been established during the trial that Thomas had on at least two occasions dumped rubbish on the Tuakau tip, which was immediately next to the river about two miles from where Harvey’s body was found. The premise was that the axle might have been dumped with other rubbish.
More effective, in my view, was his review of the accused’s relationship with the dead woman. He talked of the early attempts to court her, of the letters and presents.
‘Is there anything to be seen in that of a sinister quality? Is there anything in that which would provoke a cold-blooded murder ten years later? Thomas has said he had never got in touch with her again after Christmas 1962. There was no evidence that he ever called again or telephoned her again or wrote to her again. There was not a single witness to suggest anything to the contrary.
‘Mrs Thomas had said her marriage was a happy one and that it took place in 1964. Jeannette Demler had married two years later in 1966. Was he still supposed to be carrying some passion for this woman? It’s the point that this whole thing is founded on. There’s no proof at all for any reason why this man should do the monstrous thing he is accused of.’
Easily the most controversial aspect of Paul Temm’s final address to the jury concerned the possibility the Crewes’ death had been caused by murder/suicide. Many dismiss it as a desperate plea from a desperate defence counsel, I do not. What I would criticize Paul Temm for is not establishing firm evidence during the course of testimony that justified such a possible solution. Those who have subsequently criticized the QC for introducing this possibility into the trial would do well to remember that the first person to find that bloodstained farm was Len Demler. His first reaction, repeated a number of times in front of Owen Priest, was that Harvey had murdered his daughter. Now if the father of the dead woman, a man as close to the dead Crewes as anyone was, could come to that conclusion, if the police during the early days of their inquiry could come to that conclusion, it certainly merits close examination. On the basis of this possible solution, the police had told the farmers assisting them in the land search to ‘Look up in the trees as you walk. One of them might have hung themselves.’ Certainly talking to me over seven years after their deaths it is a solution that Dr Nelson of the DSIR did not rule out. He said: ‘We cannot rule out the possibility of murder/suicide.’
Certainly none of the evidence of pathologist Dr Cairns rules out the possibility.
Again from Dr Donald Nelson:
‘There is a 60 to 70 per cent chance that the murderer will be the spouse, the ex-spouse or the de facto spouse.’
With those kinds of odds who would dare rule out such a possibility? To return to Paul Temm’s final speech:
‘It is not open to us to prove who committed this crime. You may finally come to the conclusion on the facts before us it is perfectly reasonable, the police might through all these months be searching for a murderer who no longer exists. There is a distinct possibility that this was a case of murder and suicide.
‘It’s hard to know sometimes what goes on inside a marriage. Very little is known of this couple. Any disagreements would not be heard because of the loneliness of the house. We know their financial positions were very different. From her savings account she had a substantial amount, but Harvey Crewe had an account of only 34 dollars. This was a wealthy young woman. Isn’t it strange that there were no curtains in the living room, baby’s room or main bedroom?’
He drew their attention to other singular aspects of the Crewe home then continued:
‘You see in all this perhaps financial problems arising between a wealthy wife and a not so wealthy husband.
‘Perhaps there was some discussion and sharp words. The injury to Jeannette’s face might have come from her husband’s fist.’
He theorized that, after an initial argument Jeannette may have left the house, that Harvey had turned on the outside light to look for her and failing to find her returned to the lounge. Reminding the jury of the missing firearm that still remained missing, he wondered if there might not also have been some old ammunition on the farm.
‘Perhaps the last act of the drama had been for Mrs Crewe to put the rifle to her husband’s head and then shoot herself. Did someone with the interests of the family at heart, to conceal what had taken place, and in the hope it would remain unknown put the bodies into the Waikato? Perhaps so that Rochelle would not know what had happened? Can you say that’s impossible?
‘You might think from the evidence emerging in this Court, there is something more to be seen than you have been told.’
Referring particularly to the drawn cheques and deposits in the Crewe accounts, details of which he had sought for in vain throughout the period between arrest and trial, Paul Temm, remarked:
‘Was it not a great pity that the police had not made a thorough search of the financial records of the Crewes? It could be that the root of the double murder, if it be double murder, lay somewhere in that area.’
Many of the details recorded earlier in this book would have strengthened the theory of murder/suicide. But Paul Temm had only had two months from the Lower Court hearing to dig for information. The interests of justice, it would seem, are often best served by a rush to judgment.
The defence counsel did not know of the recorded instances that demonstrated Harvey had a violent temper; did not know that he did indeed feel disturbed about the imbalance of wealth in the marriage; that Jeannette had expressed regret about this aspect. Paul Temm did not know of the gun that Mrs Batkin had seen in the Crewe house, one that was considered valuable, surely not the gun the police found in the washhouse? Neither did he know what her father’s first reaction was. Why was that his immediate reaction?
Clearly for such a theory to be tenable required the involvement of a third party. Clearly a third party was involved. The sighting on Friday and Saturday confirm that third party as a fact.
Of the wire that had been recovered with the bodies Temm reminded the jury that Mr Todd had not been able to say that two pieces of wire came from the same coil, only that they had the same chemical content. He asked:
‘How many pieces of gauge 16 wire would there be in a farming community? One ton of metal produces thirty-eight miles of wire. It is a fair inference to draw that large supplies of wire would be delivered to the same store from the same source and would have the same chemical characteristics. How many other farms would have been found to have a similar piece of wire if the police testing had been done thoroughly and methodically?’
It was a very valid point. Including the Thomas farm, wire samples were taken from only eight farms in the Pukekawa area. A strange counterpoint to the sixty-four rifles.
He reminded the jury that it had not been established that the Thomas rifle had fired the fatal bullets:
‘That’s not the position. Nobody has been able to, or dared to, say that the bullets in the bodies came from this rifle and no other. They could have come from a Remington rifle that was also tested or another untested rifle.’
The one person, of course, who had dared to say that it was the Thomas rifle and none other that had fired those bullets had been David Morris in his final speech.
Temm queries the time of deaths, reminding the jury that Hutton had said more than once that the shootings had happened after television had finished for the evening. Referring to the photographs showing the positions of the chairs and couch he argued against this theory, contending that there was nothing to suggest that the television set had even been switched on that evening. In the defence counsel’s view:
‘It could have been any time that night they came to their deaths. I suggest it was some time soon after tea and therefore before the ratepayers’ meeting.’
Again and again he rightly, in my view, attacked the quality of the police investigation:
‘Police investigations were not adequate. They did not have a category for all the rifles of people who were abroad that night in the area to be tested. It is not right for the police to say that because someone was at the ratepayers’ meeting they were not guilty.’
He was working on the assumption that the Crewes died before the meeting. The Crown worked on the assumption that they died after the meeting. No evidence has ever been revealed that gives any clear indication of the time they died. I have discovered such evidence. It was known to the police and, like so much else, suppressed.
Turning to the Charles case, the ‘most crucial piece of Crown evidence’, Paul Temm trod a delicate line. In his own mind he was quite convinced that it had been planted, that it was a fabricated piece of evidence. To say so would have been to run a grave risk. It is well known that when allegations of that kind are made in a courtroom, no matter how justified, the risk of alienating the jury is very great. Jurors, who will accept that there is corruption in all professions, in all walks of life, very frequently give to the police officers they listen to an infallibility which is unreal. It only requires the slightest suggestion and the Crown will protest about ‘wicked unfounded allegations’.
Moving into this dangerous area, Temm first reminded the jury of the photographic enlargements that indicated significant differences in firing-pin marks. An expert in the witness box indicating from his own microscopic examination of those cartridge cases the different features would have strengthened this argument. He was on stronger ground when he asked:
‘How did it get where it was found? Three thorough searches of the area. Would you expect it to be buried under the surface? If it fell from the rifle of a marksman and was ejected and flung out as suggested, it would be there to be seen by the police.’ He cited the evidence of DSIR scientist Rory Shanahan that he would have expected more corrosion on a case that had been outside for four months.
‘Police evidence against the accused on 26 October involved the axle, the wire, the possibility of a rifle, and some vague connections between Jeannette and the accused. The finding of the cartridge case had been a critical piece of evidence for the police. The case had been found on 27 October, the search for the murder rifle was stopped at 3 o’clock on 28 October and Mr Shanahan looked at three cases on the 28th, and fired 14 more bullets on the 29th. His testing was not completed till the 29th and yet the search for the rifle was stopped on the 28th.’
This was as near as Paul Temm was prepared to go in front of that jury to indicate that the case was, in his view, planted.
Of the accused, his counsel observed: ‘He is a man of almost guileless simplicity. A less honest man would have hedged with the police. Instead he has been completely truthful in his dealings with the police.’
Of the attack that had been made on Vivien Thomas, Paul Temm said to the jury:
‘There is a wholesome quality about Mrs Thomas that almost radiates from her. Theirs is a happy marriage and they sleep in the same bed. In all probability the man who did this thing must have taken several hours. Mrs Thomas has said that she is a light to moderate sleeper. Wouldn’t she have known if her husband was out? Do you think that woman, if she had known her husband had been out, do you think that woman, if she had known her husband had done that, would go back and lie alongside that man? If she had compassion for the baby and had gone back to feed it as the Crown stated, do you think she would have gone back to this man if he had killed these two?
‘This man is innocent, and if he is convicted he will be done wrong, in my submission, which can never, never be put right.’
All that remained on that afternoon of 2 March 1971, was Mr Justice Henry’s summing up to the jury.
For sixteen days the jury had listened to 96 witnesses; they had seen 163 exhibits. Nightly they had returned to the Station Hotel. There had been the police-supervised bus trips to Maraetai, to the hot pools of Parakai, boat trips to the One Ton Cup races and to Motuihe Island, excursions to the Mercury Theatre, trips to the movies, and always the entire twelve, always with at least two police officers. Totally cut off from their families, they had to varying degrees closely followed the ebb and flow of the trial. Soon they would have to sing for their many suppers by returning a just verdict. First there were to be the final words from Mr Justice Henry.
The judge’s final speech will be found verbatim at the end of this book. When I interviewed Sir Trevor Henry I asked him for his personal evaluation of a number of the central participants in the trial. Of Crown Prosecutor David Morris, he said:
‘Morris is a good counsel. A fine keen mind. His trouble was that he was too gentle. He lacked the killer instinct.’
Those who are familiar with the performances of David Morris in the courtroom may gasp at that evaluation. I have watched this man in action and he is ruthless. I find the former judge’s evaluation illuminating, not of David Morris, but of Sir Trevor Henry. In his final speech he gave not only Morris but the entire court a definitive example of ‘killer instinct’. As a closing speech from the prosecution, I feel it could not be bettered; as a speech designed to ensure that only one possible verdict could be reached by the listening jury it was superb. The trouble is that it was coming not from David Morris, but from the trial judge. In terms of a summing-up favourable to the Crown’s point of view, I have only ever once seen an example to top it: Lord Chief Justice Goddard’s speech in the trial of Craig and Bentley. That too ended in a verdict that is now widely regarded as a miscarriage of justice. During the course of my discussion with Sir Trevor he observed: ‘I expressed no opinion at any stage on any part of the evidence. A judge of course is entitled to express an opinion but it would be wrong to do so and then qualify it with: “Of course it is a matter for you”.’
If the reader cares to he may count up the seventy times that Sir Trevor used the expression: ‘Of course it is a matter for you’ or a similar qualifying term.
In fairness to the judge, it should be recorded that he dismissed what the Crown had put forward as a motive for the murders, as he remarked to me:
‘I do not believe that any real motive for the murders was established by the Crown. I referred to the interest that Thomas had shown in Jeannette Crewe some years before his marriage as “early background”. That’s all it was, no more. Certainly not a motive.’
He also dismissed the evidence of Eggleton, the jeweller. He had waited for the defence ace on that aspect and it had not come; nevertheless he considered that evidence as ‘dubious and suspect’ and made no reference at all in his closing address.
Clearly Mr Justice Henry believed that Rochelle had been fed. In view of the fact that all the evidence on that aspect that had been presented pointed to that conclusion, he could have reached no other. The judge’s summing-up (in Appendix 5) contains the clearest indication that the person responsible was Vivien Thomas. The trial within a trial had succeeded beyond the wildest expectations of the Crown. Yet talking to me Sir Trevor said:
‘I do not believe that Vivien Thomas fed the baby. If Thomas killed them and that baby was fed, then Thomas fed the baby. But that assumes he did it. I think whoever killed them acted alone.’
During his final speech the judge made powerful use of the alleged remark by Thomas about the brush and comb set being still wrapped up for all he knew. Sometimes Mr Justice Henry referred to it as ‘an unwrapped gift’, sometimes it was ‘still wrapped up’ which must have added to the jury’s confusion, but the judge’s point came over with crystal clarity:
‘Now when Harvey’s body was recovered there was a blanket near it, and according to Mrs Crewe senior, the bedspread, call it what you may, was usually in the spare bedroom, and I draw your attention back again to what I have already mentioned, that that was in a place in a room where the unwrapped gift was found. Is it possible that the accused has in some unguarded moment given himself away? By itself, of course, this would carry little weight, but you ought to bear it in mind.’
It was powerful, very powerful. I pointed out to Sir Trevor that subsequent to those remarks it had been established that Arthur Thomas had been told by Detective Parkes on 12 August that the brush and comb set were still wrapped up. And that he allegedly reiterated this remark to Detective Johnston on 13 October. The former judge was aware of this development.
‘Yes, the alleged remark was significant at the first trial but in view of the evidence of Detective Parkes at the second trial the remark becomes irrelevant.’
