Beyond Reasonable Doubt?, page 34
When Detective Senior Sergeant Parkes was cross-examined by the defence an explanation of why Thomas had possibly remarked to Detective Johnston on 13 October of the brush and comb set: ‘I don’t know, it could still be wrapped up for all I know’ became apparent.
Ryan: On 12 August 1970 you took a card that you had located with this brush and comb set to the accused’s farm?
Parkes: Yes.
Ryan: And you showed him the card?
Parkes: Yes.
Ryan: And asked him was it his handwriting?
Parkes: Yes.
Ryan: Did he ask you where you had found it?
Parkes: I am not sure whether he asked me or I told him.
Ryan: I put it to you he asked you where you found it and you told him you found it in a brush and comb set still wrapped up?
Parkes: No, I certainly wouldn’t use the words ‘still wrapped up’ because I didn’t consider it was still wrapped up.
Ryan: Did you say it was wrapped up?
Parkes: I have a recollection of saying that.
It became clear as the cross-examination progressed that the police officer’s objection was to the word ‘still’. All right, let us take that word out. Two years after the first trial judge Mr Justice Henry had hammered Thomas into the ground with his constant comments during his final speech to the jury on the significance of that remark, Kevin Ryan in the space of a few moments’ cross-examination had established that the remark had about as much potency as a bag of cold chips.
Another man made his first appearance in the Thomas saga, a man whose evidence clearly demonstrates the lengths that the Crown, who David Morris had said were not very concerned with establishing a motive, went to in their attempts to establish one. To be fair to the Crown Prosecutor, he had made that remark about the Crown’s case in the first trial. Perhaps this was another change of tactics. The new witness, Charles Liddell, had been chief engineer for Barr Brothers at the time Arthur Thomas had been employed. He had a tale to tell of a visit to a fortune-teller that he had made in the company of two married ladies and Arthur Thomas. Liddell’s evidence may have given the jury and the packed public gallery with their packed lunches some light relief, but what it had to do with the guilt or innocence of Arthur Thomas is difficult to see.
The visit to the fortune-teller ‘would be early 1963, it may be even a little before that’. Before the visit Arthur had spoken very highly of Jeannette ‘as if he probably would have been in love with her. I could not give his exact words but they would be … I feel he had ideas of marrying her.’ Then later after regaling the Court with how he had paid five shillings to have his fortune told he said: ‘My impressions were he thought a lot of her. I would even say he was probably very much in love with her.’ The last question from the Crown was obviously designed to set the seal on this nebulous love affair. He was asked: ‘Did he ever mention any other girls?’ Clearly Liddell was expected to respond with something to the effect that Thomas’s entire conversation was about Jeannette Demler. His response was: ‘Oh, yes.’
Pathologist Dr Cairns came and went unquestioned by Kevin Ryan who clearly wanted no part of murder/suicide theories or of Dr Cairns’s initial theory of murder by axe or tomahawk.
An echo of the curious between-trials incident between Detective Johnston and the Roddick family was brought into the courtroom when the police officer testified. Johnston produced photographs taken on the Chitty farm giving a view of the Crewe farmhouse, taken from a distance of 357 feet. He told David Morris that it was difficult to distinguish the facial features of any person at that distance. The Crown were clearly hotting things up for Bruce Roddick. Just how hot they intended to make it can be gauged from this interchange between the Crown Prosecutor and the detective:
Morris: At the time these photographs were taken, to your knowledge had the police received certain information from a man called Roddick?
Johnston: Yes.
Morris: Who claimed to have been working on this farm property in the immediate foreground of photo three on that afternoon?
Johnston: And he later showed me the position from where he alleges he saw this woman. (The italics are mine.)
Morris: In relation to that photograph and the position from where the photograph was taken, how does that compare to the position he was in?
Johnston: Approximately the same position within two or three feet.
There was already considerable confusion as to exactly where Roddick had been standing, partly through his own conflicting evidence and partly through a series of conflicting and confusing questions he had been asked by Baragwanath at the first trial. The object of the above interchange was to increase that distance.
Detective Johnston then produced the certificate of registration covering the missing Chennell gun, a double-barrelled, breach-loading .360 rifle. This was the gun that Len Demler had said he had given to the police ‘a few days ago’, that is, March 1973. According to Johnston he had received the gun a few weeks after the first trial had finished in 1970. It was all very odd. It got odder during Ryan’s cross-examination. He established that Johnston had gone to the Thomas farm with the axle on 13 October and had shown it to Thomas; that the accused had given the name and address of his father and stated that the photo of the trailer looked similar to one that his father owned. On 15 October Johnston had returned and together with Thomas searched for the other axle components without success. On 20 October Johnston and Parkes had returned and found the matching axle stubs on the farm tip. Thomas had had seven days to remove the stubs, seven days during which he knew the police were looking for them. Would a man who had so cleverly murdered two people that he had left not a trace of his presence behind leave incriminating axle stubs on his property? Would the same man when the police returned on 21 October looking for more components come down to the tip and help them and suggest various ways in which they could carry out the search productively? Murderers certainly do make mistakes but I have yet to meet one who behaved with the same degree of blind innocence and naivety as Thomas did.
The name of Eyre which had been bouncing about during this second trial took on physical shape in the presence of Mrs Eyre in the witness box. But why not Mickey Eyre? I am aware that he has a speech and hearing impediment. I am equally aware that he can communicate and communicate very precisely. As it was the Court and the jury had to make do with his mother.
Mrs Eyre, a widow at the time of the second trial, told the Court that the Eyre rifle that the DSIR had been unable to exclude as a possible murder weapon was in fact owned by a family friend Mr Jack Brewster but at the time of the Crewe murders had been in the Eyre household, loaned to her other son Colin. The Mr Brewster in question subsequently married Mrs Eyre in late 1973. During her examination-in-chief Mrs Eyre told the jury that because of his disabilities Mickey did not go out at night-time unless accompanied. In view of the information Kevin Ryan had acquired it was an assertion that he took issue with when he rose to cross-examine:
Ryan: Do you swear that John Michael (Mickey’s full name) does not go out at night by himself?
Mrs Eyre: I do.
Ryan: Has he ever been out at night with a rifle?
Mrs Eyre: No.
Ryan: Has he assaulted someone in the last two or three weeks?
Mrs Eyre: No.
Ryan: Was he blamed for an assault in the last two or three weeks?
Mrs Eyre: I have no idea.
Ryan: Did your son use to go on to the Crewe property?
Mrs Eyre: At haymaking time, when he was working for them.
Ryan: Did he get ordered off the Crewe property by Harvey Crewe on one or two occasions?
Mrs Eyre: No.
Ryan: Is there a drum on the Crewe property with your face painted on it?
Mrs Eyre: I have no idea, I have not seen it.
Ryan: Ever hear about a drum with your face painted on it?
Mrs Eyre: No, I have not.
Ryan: Is John Michael a good shot?
Mrs Eyre: I should say so. He is a duckshooter.
Ryan: The farmer next door to the Crewes, is he a vintage car enthusiast? On the Brewster property?
Mrs Eyre: No, not in Pukekawa.
Ryan: The other road goes right down to the Waikato river?
Mrs Eyre: The road past my property? One way it goes straight to Tuakau Highway 22, the other way it goes out to Glen Murray still Highway 22.
Ryan: You are on a corner?
Mrs Eyre: Yes.
Ryan: Does the other road go right down to the Waikato river?
Mrs Eyre: It would go to Rangiriri or to Orton.
Ryan: Orton is next to the Waikato river?
Mrs Eyre: Yes, towards Rangiriri.
Ryan: There are good places for boats or launching pads?
Mrs Eyre: Not that I am aware of.
Ryan: What was the weather on the evening of 17 June 1970?
Mrs Eyre: As far as I can remember it did rain towards morning.
Ryan: Did John Michael destroy sheep by breaking their backs with his hands?
Mrs Eyre: My son John Michael is an extremely kind person, he is an excellent shearer and he is very kind to animals.
Ryan: Has he ever broken the back of animals with his hands?
Mrs Eyre: No.
Ryan: How big is he?
Mrs Eyre: Approximately 5′ 9″.
Ryan: His weight?
Mrs Eyre: Approximately 11½ stone.
Orton is in fact the exact place where I believe the bodies of Harvey and Jeannette were put into the Waikato river.
Apart from the fact that Ryan was in possession of evidence that indicated Mickey Eyre wandered abroad at night, with a rifle, the defence counsel had also discovered that the young man did in fact have a violent temper, had allegedly attacked not only a variety of animals but also a member of the Pukekawa community, shortly before the commencement of the trial, had been ordered off the Crewe farm by Harvey at least twice, on one occasion for cutting the wrong paddock, and indulged in the bizarre pastime of using a drum with his mother’s face painted on it for target practice.
DSIR scientist Rory Shanahan was another of the many experts who gave evidence. Sir Trevor Henry when justifying to me his decision not to allow the defence to call a psychiatrist in the first trial had said: ‘What we have to avoid is trial by experts,’ a sentiment that I fully endorse. The second trial fairly bulged with experts. Experts on child care, death, corrosion, wire, bullets, small arms manufacturing. Some of their evidence was highly relevant, some of their evidence had no relevance at all. For example, Shanahan occupied a great deal of his time in the witness box with evidence about the variety of corrosion tests he had carried out between trials. He had buried cartridge cases at twenty-one different locations in the Auckland area. All the jury were concerned with were any corrosion tests carried out in the flowerbed where Charles had found a cartridge case. Soil conditions, like corrosion itself, vary enormously. Corrosion on a case buried in Remuera has nothing to do with Pukekawa, some thirty miles away.
Answering the Crown’s questions Shanahan said that thirty-seven of the cases returned to him had been buried for the same period of time that had elapsed between the night the Crewes died and Charles finding a cartridge case. He was primarily interested in what corrosion had occurred but in passing he observed that thirteen had no soil inside them, sixteen had dry soil and eight had wet soil. I have already commented on my own tests with dry soil in a cartridge case.
One fact stands out clearly from Rory Shanahan’s cross-examination: he had not taken factors relating to the condition of the soil into account when conducting these tests and, as he himself honestly admitted: ‘I am not an expert in this field.’ He had earlier remarked, ‘I am not a soil scientist.’
Alexander Aitken, an engineering manager with a subsidiary of I.C.I., testified about .22 bullets manufactured by his company that bore the figure 8 on the base of the bullet. It will be recalled that the bullets that killed the Crewes had a figure 8 on their base and that Detective Keith had found a round in a box of nuts and bolts at the Thomas farm which when broken open revealed a figure 8. The Crown’s premise on this aspect is totally clear. Arthur Thomas used .22 bullets with the figure 8 on the base of the bullet. Two such bullets killed the Crewes; therefore two and two must make four. In this particular instance they made 158 million, that being the total of bullets with a figure 8 on their base that were made by the company between 1949 and 1963 and sold in New Zealand.
What was not revealed at any judicial hearing of the Thomas case was that the police had broken open a number of the bullets taken from the box of ammunition he was currently using. None of them had the figure 8 on them. If Thomas murdered Harvey and Jeannette Crewe here then is yet another extraordinary act. He disdains the box of ammunition in his kitchen that he was currently using. No bullets bearing figure 8 were found in the carcass of the sick Cow 4 or the carcass of an old blind dog also shot during this same period.
DSIR wire expert Harry Todd appeared, to baffle yet another jury.
The DSIR were by now bidding fair to take over the entire proceedings. Rory Shanahan had indicated that while he knew nothing about soil, a later witness knew all about it; the later witness also from the DSIR followed Mr Todd into the witness box. His name was Allan Metson, and he had some thirty to forty years’ experience as a soil chemist. Vast as his experience undoubtedly was, impressive as his qualifications assuredly were, his evidence was, in my view, totally, useless to that jury. He knew of no published work on short-term corrosion. He and the Crown talked of tests done in the United States over a period of six years, but the soil in America was not similar or comparable to the soil in the Crewe garden at Pukekawa. He had never examined a cartridge case that had been in the ground for four months. He could not pass an opinion as to what degree of corrosion one would find on such a cartridge case. He was not asked by either counsel for an opinion about the likelihood of dry soil pouring out of a cartridge case that had been found at least three inches beneath the surface in wet soil, which to my mind is the one area that Mr Metson might have helped the jury with.
Metson was followed by another man from the same government department, Wilfred Braithwaite. His speciality was corrosion and his advice had been sought by the United Nations. In essence, he said he agreed with the conclusions of Rory Shanahan. He was ‘sunk without trace’ by Kevin Ryan in a few brief questions that established he had never conducted such corrosion tests himself. He had no knowledge of what type of soil the Charles case had been found in. He had never examined the Charles cartridge case. Next in to bat was Dr Donald Nelson.
For the second time in front of a jury Dr Nelson recounted how ‘relatively easy’ it had been to shoot a person sitting in Harvey’s armchair. Asked if he agreed with the Home Office report on the recovered bullet fragments Dr Nelson observed: ‘One might almost say, sir, that report agrees with me.’ Referring to the role of a DSIR member giving evidence Dr Nelson observed to me:
‘It is important for us when giving evidence to pitch it at the right level so that we do not give it more probative value on behalf of the prosecution.’
I found it a valid, responsible point of view. How it equates with Dr Nelson’s evidence when cross-examined by Kevin Ryan is a moot point. Ryan attempted to establish from this highly qualified man a number of simple facts. Reading the trial transcript gives a clear indication of just what kind of uphill battle he had with Dr Nelson. For example: it had already been established that at least 158 million rounds of bullets bearing the pattern 8 had been manufactured and sold in New Zealand between 1949 and 1963. This is the beginning of Ryan’s cross-examination of Dr Nelson:
Ryan: On the base of the two bullets examined by you taken from the heads of the two deceased you found stamped figure 8?
Nelson: Yes, sir.
Ryan: Would you agree that this type of bullet would be in common supply throughout the North Island at least during the period in question (June 1970), easily available to persons?
Nelson: Well, you are asking me a question now you should be asking someone else, but what I understand is you could not purchase it at this time.
Ryan: If evidence is called that at least eight people have this type of bullet now wouldn’t that be so?
Nelson: No, you could easily round up people with old ammunition of this number, in fact I could have answered your advertisement myself; I have some number 8 myself. I have number 8 and no doubt any cartridge collector in the country will have too, plus other people who hold old ammunition.
Ryan: How long have you had your number 8 cartridges in your possession?
Nelson: Probably from the 1950s, I couldn’t give you the exact date.
Ryan: You are aware of the quantity of number 8 ammunition produced?
Nelson: Yes, I have heard other people give evidence, the figure is large.
Ryan: Is this type of ammunition drawn in the Colonial Ammunition factory at Mount Eden?
Nelson: You are asking me a hearsay question.
Ryan: Know where it is stored?
Nelson: Not of my own knowledge, sir, but once again I could hazard a guess of hearsay.
It is not common to see an expert witness, to whom the hearsay rule does not apply, hiding behind such a rule. Seven years after they had ceased to make pattern 8 bullets, there were literally thousands of them in the country. There still are. Dr Nelson was aware of this. Why not say so?
To me, a certain pomposity came through during his cross-examination:
Ryan: You know Dr Sprott, do you not?
Nelson: I know he is in court.
Ryan: Do you know the man personally?
Nelson: I know to whom you are referring.
Ryan: Do you agree that he is an eminent scientist?
Nelson: That is a loaded question. My speciality differs from his. I am giving evidence now as a forensic expert. I don’t think he has done very much work in this area on which I am at the moment giving evidence.
