Beyond Reasonable Doubt?, page 30
Of the report by Sir George, Dr Finlay said to me:
‘I read his decision with the most profound surprise. It really seemed a totally inadequate job. Just a superficial review. He had not really touched on the essential points at all.’
It was by no means all one-way traffic in early 1972. The retired Supreme Court Judge’s report had its supporters, apart from Sir Roy Jack. The New Zealand Herald considered Sir George McGregor had ‘one of the finest judicial minds in the country’. It editorialized that the handling of ‘the Arthur Allan Thomas case in toto is a gratifying exposure of British justice at its best’, or rather it considered the detached observer could be excused for thinking that.
In Pukekawa things were getting hotter. Owen Priest’s workshop was broken into by people searching for the missing Chennell rifle. Bruce Roddick’s home was broken into, presumably by a passing transvestite as the only item stolen was a home perm belonging to Mrs Roddick.
Vivien Thomas, at this stage acting out the role of dutiful wife, continued her weekly visits to prison. Other inmates recognizing her as she left on one occasion shouted out: ‘Good on you, Viv’ and: ‘Get your husband out of here, Viv, he doesn’t belong in this place.’
The strain on the woman was beginning to show. At least one doctor advised her that unless she underwent a period of complete rest she would be in Kingseat institution within six months. The treble life of national personality, loyal farmer’s wife and lover was taking their cumulative toll.
‘I remember around that time coming back from a prison visit, the cattle were wandering around the road. Next week when I went to see Arthur someone had told him and he gave me a rocket. During the first year after his conviction we had a good season. I only lost one cow. The farm went into profit. The cow that died was the first to calve, it died of milk fever. Arthur’s comment was: “Well, that’s a good way to start the season. If you’re going to carry on like that you won’t do very well.” We didn’t lose any more. We had 113 calves. You see, David, what everyone, including Arthur, forgot was that I am a human being. The pressure of the farm work. The prison visits. The press and television interviews. The feeling that I had become public property. You had no life of your own. You had to forget that you were a human being. I had to eat, sleep and breathe “The Arthur Thomas Case”. That was the expectation of the Thomas family, the lawyers, the retrial committee and the general public. The hypocrisy disturbed me and screwed me up. It still does. If I had been able to do what I wanted to do in the very beginning and everybody had left me alone I think I would have been all right. It had nothing to do with Arthur’s guilt or innocence. I know he’s innocent and he knows he is innocent. We are the only two who know. You are the only person that has ever been allowed to interview him. You’ve interviewed me. What do you think?’
I told Vivien Thomas that my answer to that question would be found in this book.
By May 1972, it was clear to Vivien Thomas that she needed total rest. News from England that her father was ill resolved the problem. She flew back to England. An example of the police enthusiasm about the entire case occurred at Auckland airport. When friends and well-wishers came to see Vivien off, there in the background watching were Bruce Hutton and police officer Abbott.
The police thought they had seen the last of Vivien Thomas just as they hoped they had heard the last of the Thomas case. They were to be doubly disappointed.
With the screw being tightened again by constant press attacks on the McGregor Report and promises at a public meeting by Dr Finlay that if a Labour government was elected later that year and a new trial had not been granted in the interim period he would take steps to facilitate a further application for a retrial to be put before the Court of Appeal, the game was afoot with a vengeance.
Further petitions were made to the Governor-General. With them went the same sworn affidavits that had been previously referred to Sir George McGregor, plus a few new ones. The only new element was that certain members of the retrial committee had carried out corrosion tests by burying cartridge cases for virtually the same period of time that had elapsed from the deaths of the Crewes to the discovery of the Charles case. The petitioners argued with the aid of colour photographs that the cases they had buried then dug up from soil ‘adjacent to the Crewe farm’ showed very distinct corrosion, unlike the Charles case. At this stage those particular affidavits were not supported by any from a forensic scientist. Clearly the main thrust of the petitioners’ arguments was exactly the same: that the affidavit of Graham Hewson indicated the Charles case had been deliberately planted; that Eggleton the jeweller was wrong; that Bruce Roddick’s affidavit clearly indicated the person he had seen on the Crewe farm was not Vivien Thomas.
What was rejected in February was accepted in August. The arguments were considered strong enough to justify referring the matter back to the Court of Appeal.
The former Prime Minister of Great Britain, Harold Wilson once remarked that ‘a week in politics is a very long time’. Clearly six months in New Zealand politics is an eternity. The Thomas case had become a political hot potato. The decision to refer the issue back to the Court of Appeal was less than three months before the general election of 1972.
If the National party, then in power, hoped to salvage the votes they had undoubtedly lost because of their previous attitude over the case, they were doomed to suffer disappointment. With the issue safely in the limbo land of awaiting a Court of Appeal hearing they were voted out of office in November 1972.
Dr Martyn Finlay duly became the Minister of Justice and Attorney-General in the new Labour government. He had no need to fulfil the pre-election promise he had made, his predecessors had done that for him.
The man who had master-minded that successful application to the Governor-General was Auckland lawyer Kevin Ryan, head of the retrial’s legal advisers. In late July while still awaiting the Governor-General’s decision, Ryan had arranged for a number of the exhibits from the trial to be sent to Great Britain for examination by Home Office forensic experts. These exhibits included the Thomas rifle, the fragments of bullets recovered from the two bodies, the Charles cartridge case and a DSIR bullet that had been test-fired from the Thomas rifle, two days after Jeannette’s body had been recovered from the Waikato river. There was one unfortunate omission from the parcel that was flown to Great Britain: the Remington rifle, commonly known as the Eyre rifle. It did not occur to Kevin Ryan, the DSIR or anyone else that to have given the Home Office experts both rifles might have meant an expert conclusion that one was more likely than the other to be the murder weapon.
The Home Office experts were unable to establish that the Thomas rifle was the murder weapon. Of the Charles case the British experts were in no doubt; they were satisfied that it had come from the Thomas rifle. The most significant detail in the report from the British Home Office was that they held 246 .22 firearms with the same rifling characteristics as the Thomas rifle and 15 with the same groove and land width features that they had found on the exhibit bullets. If those 15 guns had been in private hands in Great Britain at the time of the deaths of Harvey and Jeannette Crewe then clearly on the quality of evidence on that specific in the Thomas case the Crown prosecution could have proceeded against any of those fifteen people.
At the same time as the Home Office men in England were considering these items, the public of New Zealand had the opportunity to consider a retrial-committee-backed book on the case written by Terry Bell. It argued the case for a retrial with considerable power. Although presenting in some instances totally illogical arguments – for example: ‘One essential ingredient of every murder is motive’ which is nonsense – Terry Bell did a fair destruct job on the McGregor Report and an unfair destruct job on Paul Temm. For example, Bell took the QC to task for not calling Arthur’s father and brother to give evidence on the axle. Apart from the small matter of the Crown’s subpoenas which kept both men tied up until shortly before the trial, if Bell had spent five minutes with Paul Temm he would have very quickly learned why in the final event the QC did not call them. Their statements made to the police in October would have been powerful weapons in the hands of David Morris as he sought to establish a connection between Arthur Thomas and the axle.
At this time, too, elements of the gutter press in this country decided that the real reason Vivien Thomas had gone to England was to have an abortion. Having read many private letters that Vivien Thomas wrote during that period and listened to tape-recordings she sent to friends here and, perhaps more pertinently, probed this aspect in England, it is clear to me that there is not a vestige of truth in the story. Apart from earning a living as a temporary secretary while she was in England, her most exciting moments appear to be when she was babysitting for friends. The fact that according to the Crown Prosecutor of this country a murderer’s accomplice was looking after their young ones does not appear to have worried the parents.
One of the letters referred to above contains a particularly poignant passage. It is Vivien’s response to the news that she was ‘pregnant’, courtesy of a fevered reporter’s imagination:
‘I’ll be blessed if I’m going to a doctor for a non-pregnancy certificate etc. I’ve been examined internally several times when it was necessary and I don’t see why I should do this unless the committee wants one.’ Then later in the same letter:
‘Back to this pregnancy jazz, if the committee wants a doctor to examine me and make a statement, better let me know and I’ll get one.’
That was written less than two weeks after she had arrived in England. To me the poignancy is how clearly those remarks illustrate the public property Vivien Thomas had become. Her internal physical examinations determined by gutter press and retrial committees. For the record, the brief love affair that Vivien Thomas had was over before she flew away from this three-ring circus.
To the surprise of the police and the cynics who had asserted that she would never come back, Vivien Thomas returned to New Zealand in October after a five-month stay with her parents. There was no returning to the Pukekawa farm, by then being run by other members of the Thomas family, but what of her marriage? Although in retrospect when we talked in late 1977, Vivien asserted that it was over when she had left the farm in May 1972, she clearly did not feel that when she returned in the October of that year. She had come back to fight – for her husband’s freedom and for that marriage. Moving into an Auckland flat the weekly visits to Paremoremo began again as they waited for the referral to be heard by the Court of Appeal. In August 1972, Sir Roy Jack had said that ‘no time will be lost in referring ‘The Thomas Case’ to the Court of Appeal’. It was February 1973 before it was heard. On the fifth day of that month Kevin Ryan got to his feet and called his first and most important witness, Graham Hewson. This man who remarked to me: ‘If Arthur Thomas did it I wouldn’t want him in prison. I would want him hanged,’ was not prepared to see Thomas convicted on what in one crucial area was incorrect evidence. The flowerbed that Detectives Charles and Parkes had sieve-searched on 27 October 1971, solely because that particular bed had not been previously sieve-searched was, on the sworn testimony of Graham Hewson, sieve-searched in August, two or three days after Jeannette’s body had been found.
Graham Hewson said to me: ‘I was not prepared to stand by and allow what I knew to be fabricated evidence put against the man.’
His deposition explained why he had not come forward earlier:
‘That I did not come forward during the trial because I had given a great deal of information to the police and believed that if I was required to give evidence, the police would contact me. I considered also that if any evidence that I had to give was helpful to the defence this information would have been given by the police to counsel for the defence. I did not know until after the hearing of the appeal that the defence knew nothing of my participation in the search and had not heard of my existence.’
The affidavit went on to explain that ironically it had not been until the Evan Swain booklet had been published that Hewson had seen a photograph of the actual flowerbed that the Charles case had come from. Ironic that the booklet which is little more than a paean for the police should unwittingly result in some of those police officers having to come back into a courtroom and explain the inexplicable.
Opposing Kevin Ryan in that Wellington Appeal Court were the two men who had successfully argued the Crown’s case through a lower Court hearing, a trial and an appeal: Morris and Baragwanath.
David Morris got to work on Hewson. He showed him a plan of the area immediately around the Crewe house and asked Hewson to familiarize himself with it. Then pointing to a chalked enlargement of the plan on a blackboard Morris requested: ‘Please mark on the plan in blue all the beds within the enclosure.’ Hewson duly did. He was then asked to mark the beds that he had sieve-searched; again he obliged. Morris then demonstrated that he had omitted one bed and had not marked as sieve-searched another bed that was. Neither bed was the relevant one where the Charles case had been found but the object of the exercise for the Crown was to demonstrate fallibility, not relevance.
Hewson pointed out that it was now nearly three years since the events in question. Morris chose to ignore that observation. Hewson could have also pointed out that he had first given this information to the defence nearly two years before this cross-examination. Doubtless the Crown Prosecutor would have ignored that too. Morris asked him for the name of the police officer he had helped. Hewson groped for a moment then remarked that it could have been ‘Higgins, or something like that’.
Intent on a destruct job Morris asked question after question pertaining to the time lapse between the sieve-search and Hewson coming forward. The Crown Prosecutor clearly felt that newspaper articles would have advised Hewson of exactly where the cartridge case had been found much earlier. It might have helped the Crown’s argument if he had produced an article written before the verdict that did this. He did not. The reason was simple; there was none that would have buttressed his argument. Hewson explained that at the time of the trial he was back living in Woodville and reliant on local coverage of the trial.
The police had not been idle since Hewson had first come forward. They had dug into his personal life. They had questioned his wife, his friends, anyone that could give them something ‘useful’. Morris then mounted what I consider an unwarranted personal attack on Hewson. The three appeal judges had, before this hearing began, placed a total press ban on the reporting of these proceedings. As they rightly pointed out when announcing the ban any information published might prejudice ‘any new trial that may or may not follow from the Court’s determination’. This then was a closed court, a secret court. Few then, will have had an opportunity to read any of the testimony. There was only one reason for Graham Hewson’s presence in that courtroom and that was to establish if the police had in fact sieve-searched a particular flowerbed on a particular day.
Morris: Did you have a lot of personal worries of your own about this time?
Hewson: Oh, yes.
Morris: These worries extended about this time and when you had been helping at the Crewe farm?
Hewson: Yes.
Morris: Did they include your financial position?
Hewson: Yes.
Morris: Your matrimonial position?
Hewson: No.
Morris: What caused you to worry about your financial position over this period?
Hewson: Everyone has financial troubles.
Morris: Had you not been issued with warrants for debts? Distress warrants?
Hewson: Yes.
Morris: Wasn’t one issued against you for $2,000?
Hewson: No.
Morris: What was the largest one?
Hewson: Might have combined to that sum but not one particular one.
Morris: This concerned you?
Hewson: Yes.
Morris: Did you not have to borrow money from Mrs Crewe?
Hewson: No.
Morris: Did she not in fact pay $500 for you, Mrs Crewe senior that is, to a man called Pat Nelson?
Hewson: A lady called Pat Nelson.
Morris: Did she or did she not?
Hewson: Yes, I knew nothing about this for three months.
Morris: Have you repaid?
Hewson: No.
Morris: Did she ask you for it?
Hewson: No.
Morris: Also obtain money from Mrs Knox?
Hewson: No.
Morris: A friend of Mrs Crewe’s?
Hewson: No. Mrs Crewe paid up Pat Nelson without me knowing for months.
David Morris then asked a series of questions about the various dogs that Hewson and Harvey Crewe had exchanged or Hewson had sold to his friend. The clear drift was that after the Crewes had died, Hewson had removed dogs from the farm that belonged to Harvey. Morris then returned to more personal aspects of Graham Hewson’s life.
Morris: Between the time of this search between 1970 and 1972 have you had domestic trouble?
Hewson: Yes.
Morris: Has that also upset you?
Hewson: Yes.
Morris: I am putting to you over the period of this search and up to now, in fairness to you, you have had money worries and domestic troubles on your mind?
Hewson: That’s right.
The ‘in fairness to you’ may be regarded as somewhat cynical. Some would say the last thing the Crown Prosecutor was doing was being ‘fair’.
The domestic troubles that Morris kept alluding to were based on the information that police officers had discovered. Graham Hewson and his wife were separated at the time of this referral, not at the time of the police sieve-search in August 1970; they separated some six months later. The reader may well ask what any of this had to do with the central issue of whether or not a particular flowerbed was sieve-searched on a particular day. It has nothing to do with that central issue. The premise was clear. This man had personal problems, financial and matrimonial. Consider his state of mind. How could a man under that pressure remember sieving a flowerbed? If that kind of legal yardstick was applied daily in our courts we would all be declared unfit and untrustworthy witnesses.
