Beyond Reasonable Doubt?, page 33
In the first trial Sir Trevor Henry had refused to allow a stock agent to testify about the demeanour of the accused on the morning after he was supposed to have murdered two people:
‘If we allow that sort of evidence to be given we will have suspects manufacturing evidence after they have perpetrated crimes.’
Surely those same suspects should be protected from hearsay evidence of alleged conversations that occurred eleven years before the crimes of which they stand accused? How could Thomas rebut the evidence of Mrs Willis? Clearly he could not. He had not been present during these alleged conversations.
In his opening speech David Morris had told the jury that the Crown’s case was that Thomas did the killings himself but later received assistance from some person or persons. The tactic of a trial within a trial was used again. Knowing that Bruce Roddick would this time be asked directly if the woman he had seen was Vivien Thomas the Crown had prevented him from being made available to the defence until shortly before the commencement of this second trial. Roddick, who had been such a vital witness for the Crown during the first trial, was then released from his subpoena. The object of the exercise as far as the Crown were concerned was to hold on to the fact that Roddick had seen a woman but to throw as much doubt as possible on his assertion that the woman was not Vivien Thomas.
Ron Chitty, the farmer who had employed Roddick and had been driving the tractor when Roddick had seen the mystery woman, was called by the Crown. Careful questioning of Mr Chitty was designed to demonstrate to the jury that Roddick might well have been busy at the moment he saw the woman, hence how could he be sure that it was not Mrs Thomas. The Crown had not, of course, asked Ron Chitty these questions during the first trial.
Len Demler’s marital status had altered between trials; he had remarried. His evidence changed a little too. He told the Court that Jeannette had gone to Wanganui to get well away from Arthur Thomas. He also told for the first time of how stock agent Joseph Moore had telephoned him on Wednesday, 17 June at about 7 p.m. and of how Moore had advised him that he had been trying to contact Harvey Crewe by phone but could get no answer. Demler went on to say that he took no notice of this and did nothing until the following Monday when he was phoned by transport manager Ron Wright who advised him that he had been trying to contact Harvey since the previous Thursday without success.
Why was Joseph Moore not called by the Crown at the Lower Court? Why did the Crown avoid asking questions of Moore at both trials that would have revealed he had phoned Len Demler on Wednesday, 17 June at about 7 p.m? Where was Harvey Crewe at 7 p.m? Where was Jeannette? Clearly neither was answering the telephone. Why did the Crown avoid asking questions of Demler during the first trial that would have revealed this information? What price Arthur Thomas murdering two people at 11 p.m. who are not answering their telephone at 7 p.m? Why did Len Demler do nothing for five days?
As at the Lower Court, Demler yet again got his days mixed up and put himself on the Crewe farm on the night they died:
Morris: On the Tuesday night you had dinner with your daughter and son-in-law, which day was this?
Demler: The day was Wednesday.
Morris: The Wednesday following the dinner …
Demler: Not the Wednesday following, it was the next Wednesday, not the one following.
Morris: The day you had a ring about the stock?
Demler: Yeah.
When Kevin Ryan began his cross-examination he initially asked about the additional information that Demler was now giving for the first time about the reason his daughter went to Wanganui:
Ryan: You have given information on oath on two prior occasions, have you not?
Demler: I have.
Ryan: And you knew it was in relation to a charge against this accused for murder, didn’t you?
Demler: Yes.
Ryan: Did you make any mention on either of those prior occasions that your daughter had gone to Wanganui to get away from Thomas?
Demler: No, I didn’t mention it at the time. I didn’t think it was … I didn’t have to.
Ryan: Did you tell it to a police officer?
Demler: No, I didn’t worry about telling anyone about that.
On the basis of the information given to me by the woman who taught with Jeannette at Maramarua, on the basis of the information given to me by the woman she lived with for three years in Wanganui, Len Demler’s version of why Jeannette went to teach in Wanganui is a total contradiction. Somebody has to be wrong.
During the course of that same cross-examination the missing shotgun from the Chennell estate suddenly appeared. The gun that had worried Bruce Hutton so much. The gun that had remained lost for nearly three years had been found by Len Demler a few days before he gave evidence. ‘It was lying in a shed in the corner. I thought I gave it away to someone and it was chucked outside the manure shed and it was right down in the corner. I found it when I was shifting the other day and I gave it to Mr Hutton.’
Still missing was Harvey’s gun. The gun that Mrs Batkin had previously seen in the lounge. It is still missing. Still unaccounted for was the .22 rifle that Len Demler had once owned. It is still unaccounted for.
Yet again Len Demler displayed his apparently phlegmatic attitude to the death of those nearest and dearest to him:
Ryan: While your wife was in hospital did you visit her at all?
Demler: Yes, we went down quite a lot.
Ryan: How many times would you visit her in the home in Epsom?
Demler: I always went, sometimes I took Jeannette, it was nearly twice a week anyway; towards the finish there it might have been only once if I was busy.
Ryan: On the day your wife died were you playing bowls?
Demler: No, I was back home. I knew she was dying, you couldn’t do anything for her.
There were clearly a number of points that worried Kevin Ryan.
Ryan: You are aware that there were bloodstains in your car?
Demler: Yes.
Ryan: You are aware they are the same blood type as Jeanette’s?
Demler: Yeh, Jeannette put them there; she hurt her finger one day when we were going to see her mother.
Ryan: It must have been in January when they were put there?
Demler: Yes, in January.
Ryan: No-one washed them off?
Demler: There wasn’t much to wipe off; I never touched them.
Ryan: Did anybody else sit in the passenger seat after Jeannette?
Demler: That’s hard to say.
Towards the end of his cross-examination Kevin Ryan confronted Demler with the essence of what was troubling him:
Ryan: Did you take the bodies of Jeannette and Harvey Crewe to the Waikato river after 17 June 1970?
Demler: I didn’t do anything of the sort.
Ryan: Why didn’t you help the police when they were searching for your daughter and Harvey?
Demler: I did search for them two or three times.
Ryan: Did you ever mention to anybody, ‘They won’t find them on the land, they will be in the river?’
Demler: No, I never mentioned that to anybody.
Ryan: On your birthday on 6 July you had a party at the Paerata Hotel, before the bodies were found?
Demler: That’s right, we just did that to release the tensions; if you had lost your son-in-law and daughter you would be worried too, wouldn’t you?
Ryan: Wouldn’t you look for them?
Demler: I was worried about it but there were plenty of others doing all the looking and search.
Demler’s reference to having searched for the missing couple two or three times, like his reference as to why his daughter went to teach at Wanganui, is in conflict with all the other evidence. In the case of the searches, the alternative evidence that he took no part in them comes from the police.
The defence battled on and battle it was. They were not only fighting to get the truth from a variety of witnesses whose testimony varied from previous sworn testimony; they were not only fighting in the courtroom David Morris and Baragwanath, and out of the courtroom Inspector Bruce Hutton and his caravan; there was also the battle with the judge Mr Justice Perry. Again and again he overruled Ryan’s objections.
When Ryan attempted to cross-examine police witnesses about what they had said during the referral hearing at Wellington that had resulted in the order quashing the verdict and granting a new trial, the judge upbraided him in front of the jury. Ryan was severely criticized for asking perfectly proper questions. In chambers the judge telephoned Chief Justice Sir Richard Wild and advised him that ‘Mr Ryan was experiencing some difficulty and needed help. Would it be in order for him to ask such questions?’ Chief Justice Wild declared that it would be perfectly in order. The press ban placed on the referral hearing clearly lapsed when the second jury had been sworn in. In truth it was Mr Justice Perry who was ‘experiencing some difficulty’, not Ryan. The defence counsel’s ‘difficulty’ was Mr Justice Perry. Though he had been admonished in front of the jury, no public retraction was forthcoming from the judge, no acknowledgement for the jury that such a line of questioning was perfectly proper.
Graham Hewson, who in the eyes of four police officers had been invisible during the Wellington hearing, remained in much the same condition during this second trial. Detective Sergeant Murray Jeffries, the man in charge of the sieve-search that Hewson insisted he had helped with, was pressed hard about the invisible man by Ryan.
Jeffries had no knowledge of a police bullet being excitedly found by Hewson, no knowledge of Hewson borrowing a mower from the Chitty farm for the police to mow the paddock, no knowledge of going with Hewson to a Pukekohe hotel to meet Mrs Crewe senior on the evening of 18 August. The last piece of ‘no knowledge’ had an interesting sequel when Mrs Crewe senior gave evidence:
Ryan: Are you outside the court in a green Valiant car?
Mrs Crewe: Yes.
Ryan: Did Mr Jeffries, a police officer, sit in the car and talk to you?
Mrs Crewe: Yes, Mr Jeffries told me he was going home to paint his house.
Ryan: He got inside the car?
Mrs Crewe: He got in the front of the car.
Ryan: You were both talking and speaking for some time?
Mrs Crewe: Yes, and we were talking about him going home and about his wife and children.
Ryan: Was any mention made of him seeing you at the Pukekohe Hotel in August?
Mrs Crewe: Yes.
As the cross-examination progressed Kevin Ryan established that Mrs Crewe had been driven up to Pukekawa by Hewson after Jeannette’s body had been found in mid-August, that Hewson had indeed stayed at the hotel, that he had brought the police officers back, that he had gone off and assisted in the search in the Crewe gardens. Mr Justice Perry at the end of the cross-examination asked a question about the curious episode of a police officer who had just given evidence risking contempt by talking to a Crown witness who was about to go into the witness box.
Perry J: You tell me the conversation in the car was Mr Jeffries saying he was going home to paint his house?
Mrs Crewe: That’s right sir. He did just mention something about coming to the hotel.
Cross-examination of Detective Constable Higgins, another of the police equivalent of the three wise monkeys – ‘See no Hewson. Talk no Hewson’ and ‘No work with Hewson’ – established that a complete bullet had been dropped onto the ground during the August search. He was certain that Hewson was not present during this demonstration. The question that remains begging is: ‘How did Hewson, the sheepfarmer and dog-breeder from the Wairarapa, know about this complete bullet?’ Such demonstrations are standard practice for the police in a search of this kind. The only conclusion is that not only was he there, assisting in the sieving and searching, but he did in fact find the demonstration bullet. If the police case against Thomas was so strong, so overpowering, why the need to discredit Hewson? Why the special screening of the jury list? Why the police caravan? Why the need for Detective Jeffries to discuss with Mrs Crewe a particular meeting which involved Hewson?
Ryan had been fighting from the commencement of the trial to obtain a photograph of the bloodstains in Demler’s car. On the perhaps not inappropriate date of 1 April he finally obtained a photo of the stains on the passenger seat. Stevens, one of the police photographers, was recalled and submitted a copy of the photograph as an official exhibit.
During my very long interview with DSIR scientists, Dr Donald Nelson and Rory Shanahan, the subject of those bloodstains was raised. Both men insisted that they were minute marks. Indeed Dr Nelson demonstrated with a drop of his own blood just how small the marks in the car had been. In the minds of both men the bloodstains were no bigger than a few dots the size of a pin-head. The photograph in this book may help the reader to judge their evaluation. I pointed out to both men that the police photograph showed considerably more. Dr Nelson observed: ‘That photograph is misleading.’ He would presumably say the same of the verbal evidence given by the police photographer: ‘The bloodstain is approximately two and a half inches in length.’
As previously recorded, one Crown tactic during the first trial was the assertion that the child had been fed, and fed by Vivien Thomas. Two years later with Vivien Thomas still uncharged it was apparent to the police and the Crown a change of tactics was called for. Dr Fox was called and again testified that in his opinion Rochelle had been fed during that five-day period. He was followed into the witness box by the late Dr Donald Caughey, a consultant child physician with considerable experience. His evidence had been suppressed by the Crown at the first trial. Now to bolster their ‘well, perhaps the child was not fed’ tactic it was used. Dr Fox had initially examined Rochelle on 23 June 1970, within 24 hours of her discovery in the cot. His second examination had been three days later. Dr Caughey did not see Rochelle until 1 July 1970; nine days after she had been found in the cot and eight days after Dr Fox’s initial examination. Dr Caughey’s opinion, which flies in the face of not only Dr Fox and Professor Elliot, but the many people who saw the child in the hours after her discovery, was: ‘Her clinical state was, I believe, consistent with her not having been fed.’ It transpired that he had not conferred with Dr Fox and he was basing his conclusion on the unproven theory that she would have had an evening meal with her parents on 17 June.
Eggleton the jeweller was yet another Crown witness who had different evidence to offer since his last appearance. He told this second jury of his initial reaction of disgust when the watch had been handed to him. He also advised that he had first talked to the police about it in December, ‘just after the depositions’. This was totally contrary to the evidence he gave during the first trial. The reason he had lied to Mrs McGuire was because ‘she is a very vicious woman’.
Detective Senior Sergeant John Hughes was another to be added to the ever-growing list of Crown witnesses with altered testimony. His additions, unlike the jeweller’s, were deadly for Arthur Thomas.
It is my contention that Hughes by particular phrasing during the first trial gave the impression that Thomas had worked on the Crewe farm after Jeannette and Harvey took it over. Other observers disagree. There can be no disagreement about the testimony he gave to the second trial jury. Hughes told them of his conversation with Thomas that had taken place on 2 July 1970:
‘He went on to tell me that, while employed by an agricultural contractor some three or four years before, he had actually worked on the Crewe farm; he said he would have morning and afternoon teas in the house and he met Harvey Crewe there; he described Harvey as being “a decent type of bloke”. He said he had not been back to the Crewe farm since that time, meaning three or four years before; he said the last time he had seen either Jeannette or Harvey was some eight or nine months before.’
If one accepts this evidence Arthur Thomas, anxious to be charged and found guilty of a double murder and to be sentenced to life imprisonment, told Hughes that while top-dressing for Barr Brothers, he had met the dead couple on their farm and had morning and afternoon tea with them.
Arthur Thomas terminated his employment with Barr Brothers on 20 May 1965. Harvey and Jeannette did not move on to the farm until June 1966. As previously recorded in this book, Barr Brothers never top-dressed the farm during the entire period that the Crewes were in residence. The one abortive attempt to do so occurred during early March 1967, nearly two years after Thomas had ceased working for them.
This deadly addition from Hughes passed unnoticed by Kevin Ryan. But not by David Morris.
The name of Eyre began to feature significantly in the case as the Crown evidence continued. Paul Temm during the first trial had capitalized on the fact that a rifle removed from the Eyre property by the police had not been excluded by the DSIR as a potential murder weapon, but he had studiously avoided direct questions about the Eyre family in general and Mickey Eyre in particular. Kevin Ryan considered this a significant omission from the first trial defence, one that he would not have made. He most certainly made up for that omission during the second trial. Questioning Detective Mike Charles about the sixty-four-rifle collection, he elicited the information that the officer had been told by Mrs Eyre when the rifle her son used was uplifted that they did not have any ammunition at that time. It was Ryan’s first shot across the bows in the direction of Mickey Eyre. More were to follow which makes Ryan’s omission of a request that the Eyre rifle be sent to the British Home Office forensic experts all the more inconsistent. He was clearly running Mickey Eyre as another possible fox to the jury.
The ephemeral Graham Hewson gained a slightly longer life span in terms of the August police searches when the then manager of the Crewe farm John Handcock gave evidence. Handcock remembered him being there at the time in question and thought he recalled Hewson with something in his hand: ‘It could have been a fork or something like that; he might have been loosening the soil. He appeared to be working with the police party or close by.’
In view of the obvious attack that the defence had mounted on Len Demler, they allowed one piece of information from Mr Handcock to pass unexploited. It transpired that on the day that Charles found the now much maligned cartridge case, both Handcock and Demler had been on the Crewe farm.
