Beyond Reasonable Doubt?, page 32
Over ninety names appear on that list. Ryan had to decide in a matter of hours which six jurors he would object to. Unlike the Crown who, by standing down, can object to an unlimited number, defence is only allowed a maximum of six challenges.
As in the first trial, the second trial judge, Mr Justice Perry, (now Sir Clifford Perry) decided that the jury would be kept in isolation throughout the trial. As Paul Temm had objected before him so now did Kevin Ryan. He too was overruled. As in the first trial so now in the second, accommodation for the jury had been booked at the Station Hotel, weeks before this judicial decision.
Before the jury were sworn in, the judge advised the group of over ninety of his decision and invited any of them who felt they might be severely inconvenienced to make application to be excused. Among those who made application to be excused was Bob Rock. The jury list showed his occupation as ‘advertising manager’. He was in fact a taxi-driver. Anxious to build up his business, he applied to the judge to be excused. His application was denied. Twenty-two of the ninety-three people on the jury list made such applications. Nine of them were excused. Seven others listed as potential jurors were not present when their names were called. This clearly put them in contempt of court. No action was taken against these seven. The Crown asked that a further seven who were present should stand down. The defence used up its maximum of six objections and a jury of twelve were sworn in. It is said that a jury selects its foreman. In this particular case only two men expressed the desire to be foreman. One of those two was elected; it was the reluctant juror, Bob Rock. Prior to two policemen being sworn in to ‘take care of the jury during the period of the trial’ Kevin Ryan raised strenuous objections to the incarceration of the jury. He told the judge that he had not applied for this measure and that as far as he knew the Crown had not either. Mr Justice Perry told him that he had made the ruling ‘in the interests of a fair trial’.
On the following day, 27 March 1973, David Morris made his long opening address on behalf of the Crown. On at least three occasions he referred specifically by name to Detective Sergeant Hughes and told the jury what evidence they would hear from that particular officer. Bob Rock, the reluctant juror, now foreman, recalled that day for me:
‘When I heard David Morris making references to Johnny Hughes and the evidence he would give I thought “Right, that’s it, now I’ll get off this jury.” I was in the Navy with Hughes, had known him for years. I advised the judge through the Court Registrar of my association with Hughes. The reply was: “It doesn’t matter, he’s not related to you.” ’
Kevin Ryan knew nothing of this. He had no knowledge of the association of the two men and remained ignorant of that fact until the trial was finished, when he was informed by the Court Registrar.
During the first week of the trial Kevin Ryan noticed a familiar face among the onlookers. He was then a chief inspector. His name was Graham Perry.
‘I also discovered after the trial that he had been in the Navy with Detective Sergeant Hughes and with the foreman of the jury, Rock.’
I have discussed these aspects with a number of people who have been deeply involved with the Thomas saga. It will be clear from my earlier remarks that I do not regard the first trial judge Sir Trevor Henry as a weak man but a man who if he leaned in any direction would favour the prosecution. Perhaps his view of what I have just recorded might carry more weight with this country’s government than, say, the view of Kevin Ryan.
Sir Trevor said to me: ‘That jury should have been dismissed once it was established that the foreman had been in the Navy with Hughes. I would have dismissed them and ordered a retrial.’
I would suggest to the government that Sir Trevor Henry would be an excellent choice as chairman of a public inquiry into the background of the entire second jury. The odds of Bob Rock being on that jury list by accident are about on par with the odds against Prime Minister Muldoon telling the nation to vote Labour at the next General Election.
The fact that the foreman’s profession was incorrectly shown on the jury list might also be food for thought for the team who publicly inquire into that second jury. Rock told me he had been a taxi-driver for only three weeks before that second trial and before that had indeed worked as an advertising manager.
Kevin Ryan: ‘I rang Truth, the Star, the Herald and a number of other sources connected with advertising. I could not find one person who knew him.’
Kevin Ryan also subsequently discovered that the foreman of that second jury is related to the McGuires, the married couple who gave evidence on behalf of Arthur Thomas and against Eggleton the jeweller. It might be thought that as they had been defence witnesses at that referral this might in some odd way balance the fact that Bob Rock had known a key prosecution witness for many years. That might be thought until one discovers that the McGuires and Bob Rock were not on speaking terms at the time of the second trial.
The more I researched, the more apparent it became that the second trial of Arthur Thomas was a travesty of justice. All that work by the press, the retrial committee, the Ted Smiths of this country, the defence lawyers was in vain, a total and complete waste of time. Thomas has yet to have a fair trial, if by ‘fair trial’ we mean a hearing when all the evidence is heard by an impartial jury. Leaving aside the possibility that either jury was biased or set up, one clear fact emerges: neither jury heard all the evidence available.
Before the second trial Kevin Ryan had considered handing over the task of defending Thomas to another barrister. He felt that he might have become too emotionally involved in the case during the long fight to get the second trial; that he might be lacking in total objectivity. He discussed with barristers Peter Williams and Michael Bungay the possibility of one of them either leading for the defence or alternatively assisting him.
‘I gave it a great deal of thought and finally concluded: “Well, you’ve got this far, Ryan. You’ve got to see it through. If a barrister is lucky he gets at least one really big one during the course of his career. I’d had big ones before and since but this was the one. I wanted to win that case because apart from believing that Thomas was innocent I realized just how important it was. There were very big issues at stake. With that trial there was an opportunity, given the right verdict, to go on and effect a number of changes in our legal system that needed to be made. They still need to be made.” ’
Consequently Kevin Ryan, assisted by his brother Gerald, defended the farmer from Pukekawa in a trial in which the odds were heavily weighted against the defence before the first witness had been called. With a jury that had been chosen from a list that had been subjected to three weeks’ intensive screening by the police. With a jury that had as its foreman a man who clearly recognized that he should not have been on it, a jury that was kept locked away in the Station Hotel, a favourite haunt of Auckland police officers.
All of that was just for openers. There were many other factors that ensured the verdict would be a foregone conclusion. One such factor was a police caravan parked near the Supreme Court. It was thought at the time that the purpose of the caravan was simply to provide a restroom for police officers waiting to give evidence. It was nothing of the sort. I had already uncovered that caravan’s real purpose before interviewing Bruce Hutton.
‘There was criticism, why there was criticism I don’t know but there was, of my set-up at the Supreme Court. I knew I was dealing with a case of great magnitude. I knew that certain tactics would be used. I operated something that has never been done before or since. I operated a very big nerve-centre there; instant checking of any developing trend during the trial. Defence counsel’s questions to various witnesses clearly indicate possible lines of defence. Everything that was said, every name that was mentioned was checked, checked, checked. A team of officers was out in the field immediately to go into any detail or new aspect or any attempt to change our evidence. To change our evidence into something which wasn’t as we saw it. It’s never been done since. I’ve been criticized for doing my job really. Kevin Ryan will tell you that the set-up was very effective in breaking down some of the loosely presented evidence for the defence. I personally believe the police should approach all trials with that standard of efficiency. Because, as I say, unfortunately we are now living in a day when a number of counsel are bending the rules, in their attempts to obtain a “Not Guilty” verdict.’
I suggested to Bruce Hutton that possibly Crown prosecutors might also be bending the rules the other way to obtain a ‘Guilty’ verdict. He said, ‘That could happen, certainly. Must do.’
What the former inspector was describing was a monitoring centre. Day by day, hour by hour as the case progressed, the evidence was being studied and analysed. With the many police officers that Hutton had at his disposal he effectively destroyed piece after piece of Kevin Ryan’s defence by acquiring further evidence that was promptly fed into the courtroom for the Crown to use.
Inspector Hutton and the men serving under him were clearly angered at the allegations that had been made by so many between 1971 and 1973. The allegation that the Charles case had been deliberately planted had resulted in a secret internal police inquiry, conducted by Deputy-Commissioner Robert Walton who held the view ‘that if planting had taken place it was far better that the police established the fact and reveal it than have it exposed by other persons or judicial processes’.
Walton came to the conclusion, after interviewing Inspector Hutton, Detectives Charles and Parkes and a number of other officers, that he could find no flaw in the circumstances surrounding the Charles cartridge case.
There were most serious allegations. Bruce Hutton told me that before being interviewed himself he had made his own inquiries into the possibility of planting and that he advised the deputy-commissioner of his own findings, that the allegations were unjustified. Talking of the deputy-commissioner’s inquiry he said:
‘I’m quite sure if the public knew how a police inquiry of this nature is conducted they would feel very comforted indeed. I’ve done a number myself. I have been responsible for putting a number of men out of a job. I can say that when such an inquiry is conducted in this country it is done with total efficiency. The attitude of the men in the police force, right down through the ranks is: “If there is a bloody rogue there then let’s get rid of him.” They’ll turn on their own mates as soon as they are convinced that this particular police officer has broken the rules. They’ll turn and hunt him like a bloody dog.’
It is clear that Inspector Hutton and the men who had served under him during the investigation into the deaths of the Crewes were anxious at the start of the second trial for public vindication. The presence of that police caravan by the Supreme Court and its purpose are examples of just how deeply that anxiety went. It was indeed the reaping of the whirlwind.
‘The Thomas-Crown Affair’, as one newspaper billed the second trial, attracted huge crowds to the Auckland Supreme Court. Queues of many hundreds of people were a daily feature. Circuses have always been popular and this one was no exception. Within the No. 1 court itself there was throughout the trial a strange atmosphere. This culmination of two years’ pressure produced in that room much more than understandable excitement. Anger, bitterness, resentment, venom, all of these emotions were in constant attendance.
In view of the fact that I consider it was a mistrial before it had even begun it would be futile to analyse the evidence in any great depth. To do so would be to merely compound the pointless exercise that passed for a fair trial. Some aspects, however, are worth noting: the changes of evidence; the legal tactics of the Crown and defence. Within the first week the jury of twelve was reduced to eleven through the illness of one of its members. The eleven that remained must have had moments when they too wished they had been excused.
Changed evidence, perjury, genuine error, call it what you will, occurred with regularity throughout the trial. It began on the first day evidence was heard. It began with the second witness called by the Crown, Police Constable Stevens. Cross-examination from Kevin Ryan established that Stevens had taken photographs of the bloodstains on the passenger seat of Len Demler’s car and also photographs of what appeared to be bloodstains on the nearside door. Ryan asked him about other photographs:
Ryan: Take any photographs of the interior of Mr Demler’s house?
Stevens: No, sir.
Ryan: Sure of that?
Stevens: Yes, sir.
From the first trial cross-examination of the same witness:
Temm: Did you take any photos of any part of Mr Demler’s house?
Stevens: Yes.
Difficult to justify that change of evidence on the grounds of genuine mistake.
Diane Ambler had told the first trial jury that she had been to school with Jeannette Crewe. The second trial jury heard her say that she had not. When the defence questioned her on this aspect she said that she had been mistaken at the first trial.
A more significant change in her evidence, however, escaped unchallenged. At the Lower Court she had testified about a visit to the Crewe farm in August 1966. With regard to the Crewe lounge she had said that even with the fire burning the temperature inside the room was very cold and they had been obliged to keep their coats on throughout most of the afternoon. At the first trial the burning fire had become a space heater; now at the second it became a heater that was not operating. This evidence has a direct bearing on the likelihood of the Crewes sitting on a cold wet stormy winter’s night with open louvre windows.
Beverly Batkin’s evidence now contained the additional information that Arthur Thomas wearing a black singlet in the streets of Tuakau was a usual sight, that in fact it would be unusual if she had seen him not wearing a black singlet. Her cross-examination by Ryan produced explosions both from the witness and the counsel. This sole witness of Thomas pestering Jeannette Crewe at dances which by her own testimony were attended by between 100 and 250, said to me:
‘I was a nervous wreck after Kevin Ryan had finished with me.’
Ryan: You only learned his name was Arthur following the homicides?
Batkin: Well, my memory was refreshed after the homicides.
Ryan: Who refreshed it?
Batkin: I would say the newspapers, mostly.
Ryan: How much more of your evidence is obtained from the newspapers?
Batkin: My evidence is fact.
Ryan: If evidence is given, called in this Court, that this Arthur Thomas did not learn to dance until 1959 and did not go to dances in those two halls you described until that year would you say that your evidence is wrong?
Batkin: I would say that I am very glad to hear he learned to dance, because prior when he was making a large pest of himself he was a very poor dancer.
Ryan: Who was he dancing with when you saw him at these dances?
Batkin: Jeannette.
Ryan: You actually saw him dancing with Jeannette?
Batkin: Yes.
Ryan: If evidence is given he didn’t go to any dances at Pukekawa until 1959 do you say that evidence is mistaken?
Batkin: I would say that I am not prepared to commit periury.
The acrimony between the two grew as the cross-examination progressed until:
Ryan: What clothing did Thomas wear at these dances?
Batkin: It was not so much the clothing he wore but the way he wore it. He would wear grey trousers, white shirt, tie and black dirty shoes. The tie was usually rather untidily knotted.
Ryan: Many people at the hall looking like that?
Batkin: No, not many, very few in fact. It was not fashionable to be untidy and dirty in the late 1950s.
Ryan: You actually hate Arthur Thomas, don’t you?
Batkin: No I don’t.
Ryan: Don’t you?
Batkin: No I don’t.
Ryan: Sure?
Batkin: I feel rather sorry for him.
Ryan: How sorry for yourself?
Batkin: I don’t feel sorry for myself.
Ryan: You have told lies in Court.
Batkin: That is very unkind to say to anyone. I have told not one lie in this Court. I could not live with my conscience if I told a lie.
Ryan: If you had a conscience.
Kevin Ryan was rightly rebuked by Mr Justice Perry for the last remark and told to confine himself to asking questions. He promptly sat down.
It may be recalled that David Morris had told the Court of Appeal after the first trial that the Crown ‘were not greatly concerned with establishing motive’. Demonstrably they had been very concerned to establish motive, they had strained visibly to do so with the evidence of people like Mrs Batkin. Again in this second trial they strained, this time even harder. In his opening address Morris had spoken at length about Thomas ‘the persistent suitor who had deep feelings for Mrs Crewe, but these were not returned’. He had told the jury of Mrs Batkin’s view that it was ‘more passion than a schoolboy crush and his attentions distressed Jeannette’. Just how hard the Crown were straining to establish a motive can be evinced from the testimony of the woman who followed Mrs Batkin into the box, Beverley Willis. Mrs Willis, unlike Diane Ambler, was an old schoolfriend of the late Jeannette Crewe. She had made a statement to the police within a week of the Crewes’ disappearance. The police had quietly sat on her statement. Now as a measure of the Crown’s desperation to establish motive it had, after three years, been dusted over and was put up for the jury’s consideration.
In the first trial Paul Temm had objected to the introduction of evidence about the fires and the burglary; consequently that aspect had been played down by the Crown. With no objection coming from Kevin Ryan, the Crown were free to run riot with evidence that should not have been allowed. Mrs Willis was only one of a number of witnesses who testified about these earlier incidents. Nothing she or anyone else said linked them with Thomas but her testimony also contained references to conversation with her late friend, in which Jeannette had talked of Thomas pestering her at dances. It was hearsay evidence and as such inadmissible, yet it was admitted.
