Beyond Reasonable Doubt?, page 38
‘He began shouting and screaming: “You are interfering with a police exhibit. You have no right. This is a very important exhibit on which I am going to bring further evidence.”’
Inspector Hutton’s recall of the incident was not dissimilar:
‘I had the tightest security ever known around those exhibits, particularly the Charles and the Keith exhibits. I had a firm undertaking from the court registrar that those particular exhibits were not to be brought out of the court safe unless the exhibits officer was present. Now in spite of those instructions, as you well know, I came into that court about 8.30 a.m. and he had conned the young deputy registrar into taking it out of the safe so that they could examine it in the empty court, in the absence of the police. Now this is a police exhibit. That should have cost Sprott his practice. My God, I’d say I got upset. What would you do? I crashed in. I happened to be walking past and thought: “What’s that light doing on in there?” I told Bob Walton: “If anything has been done to that exhibit that’s when it was done.” He had no authority to examine that exhibit. After further application was made, yes. But at that time no authority. I think he made an error right there and then in his measurement.’
James Sprott had previously examined the Charles cartridge on a different morning and was satisfied that it fitted into category four, the sole category that did not carry pattern 8 murder bullets.
Dr Sprott had in fact asked Kevin Ryan for access to the exhibit. Kevin Ryan assures me that he had obtained official permission. I can well understand Bruce Hutton going berserk, it was indeed a very important exhibit. If, however, the defence had stood up in open court and asked the judge for permission to examine it they would have been obliged to state why they wanted to see it. Nothing unreasonable about that in the normal course of events but here was a background of obstruction that the entire defence had experienced for months, a background of a police communications nerve centre parked near the Supreme Court, of a jury that if not fitted was screened to a degree to warm the cockles of a CIA agent’s heart. If Ryan did not go through the proper channels it is to be deplored. If he chose to use the tactics that were being used against him it is to be understood. In the middle, though, was a man named Arthur Thomas.
On Friday, 13 April Dr Sprott gave evidence. It largely consisted of further discussion about corrosion, wire elements, soil and who was better qualified than whom; but it also contained this vital new element concerning the Charles cartridge. To all intents and purposes it was a bombshell, Kevin Ryan’s express roaring right through the middle of the prosecution’s case. Copies of a hastily drawn diagram from the witness were handed to members of the jury for their consideration. In his cross-examination, which was of some length, David Morris wisely kept his questions on this particular subject to a minimum. The only points of significance that he established were that Sprott in the short time available had only been able to acquire .22 bullets complete with cases from six different sources and that he had not checked his findings with I.C.I. Australia in the twenty-four hours since he had come to his conclusions.
The final witness for the defence who gave evidence that he had seen Mickey Eyre beating and kicking a dog until it foamed at the mouth came almost as an anti-climax.
In view of the evidence of Dr Sprott the Crown sought an adjournment. There was a conference in the judge’s chambers. Kevin Ryan recalls:
‘David Morris and I saw Mr Justice Perry in chambers. The judge remarked that Sprott’s evidence on the cartridge categories was obviously important and that he had noticed the foreman of the jury studying Sprott’s hand-drawn diagram very carefully. Morris asked if Dr Nelson could examine the cartridge cases. I had no objection to that. I pointed out to both of them that I had not been able to put Sprott’s evidence to Nelson because it had only been in the last couple of days that Sprott had been able to establish the categories. I told them both that I was sure that Dr Nelson would come to the same conclusions. At that stage the judge merely granted the Crown the right to examine the cases within the Supreme Court.’
The adjournment, in fact, stretched over four to five hours. Rebuttal evidence on behalf of the Crown was then heard. The first witness David Morris called was John Shea, a general manager employed by a subsidiary of I.C.I.; for many years he had been concerned with the company’s manufacture of .22 bullets. He conceded that there had over the years been variations in the I.C.I. pattern stamped on the cartridge cases but felt that Sprott’s categories three and four were in essence one and the same category with a difference in the height of the letter C considerably less than Sprott had detected; that they were in his view of the same basic nominal size. In cross-examination Ryan drew from him the admission that although the two categories were related they were not identical. His cross-examination of this witness was not easy, and the chief difficulty centred on a phone call that the prosecution had made to I.C.I. in Australia during the adjournment. In essence I.C.I. Australia had said that Sprott’s various categories did not exist. Faced with an adjournment of many days while the Crown flew the I.C.I. man over from Australia, Ryan took the dubious alternative of accepting the evidence although he had not of course been able to cross-examine the man in Australia.
Rory Shanahan was recalled to dispute Dr Sprott’s evidence on corrosion, but at this stage such evidence was surely academic when contrasted with what had now become the all-important issue of categories of cartridge cases. The final witness called by the Crown in rebuttal was Dr Donald Nelson. He told the Court that after the adjournment he had examined the Charles and Keith cartridge cases at the court. He had been unable to find any difference between the letter C stamped on the bottom of both cases. The cases had then been taken to the DSIR laboratory in Auckland and subjected to microscopic examination. Again he could find no difference at all.
Kevin Ryan’s express had apparently gone off the rails.
The following morning before final speeches Dr Jim Sprott, microscope in hand, appeared early at the Supreme Court and pleaded with Kevin Ryan to be allowed to re-examine the Keith and Charles cartridge case. To Ryan’s great credit, because he felt sicker in his heart at this apparent let-down than ever before in his life, he attempted to get Sprott an opportunity to look at the cases. He spoke to Baragwanath, who refused: ‘We have had a gutsful of Sprott. He doesn’t get to see anything.’
This attempt by Dr Sprott and the refusal by the Crown took place on Saturday morning, 14 April. If ever an overwhelming argument has been established for a forensic ombudsman to assist a jury it had been established in this trial. A trial that had experts by the dozen on apparently every subject under the sun except one, common sense. Sprott’s evidence on the categories of cartridge cases was vital. The rebuttal evidence from Shea, Nelson, and I.C.I. Australia on this subject was vital. Someone was clearly wrong, very wrong. Was it the defence or the prosecution evidence that was in error? How were the jury to determine the issue? They were to determine it on a rough drawing from Sprott plus his verbal evidence. They were to determine it on the verbal evidence of Shea. They were to determine it on a rough drawing from Nelson, plus his equally rough drawing on a blackboard in the courtroom, plus his verbal evidence. They were to determine it on the gist of a phone call made to I.C.I. Australia. A man was on trial in this courtroom charged with a double murder facing a life sentence if found guilty and the quality of evidence presented by both sides resembled the trial in Alice in Wonderland.
At no stage while presenting evidence did Sprott, Shea or Nelson pick up the Charles and the Keith cartridges and show the jury what they were talking about by demonstrating with the actual exhibits. Shea in fact had never examined them. At no stage was it decided that a comparison microscope set up in the courtroom, or for that matter in the nearby laboratories of Sprott or Nelson for the jury to examine the exhibits, would serve the interests of justice. At no stage did anyone even take microscopic photographs of the bases of the two cartridge cases. It is said that justice is blind. It certainly was during the Thomas trial. We cannot, must not, allow the fate of an accused person to be determined in such an amateur haphazard manner. Two people had died. A third stood accused of murdering them. All three deserved something better than this.
All that remained then in this circus that passed for a judicial hearing was the final speeches from counsel and the judge’s summing-up.
The final speech for the Crown from David Morris will be found verbatim in the appendices.
As a short story it is brilliant. It grips. It is atmospheric. On initial reading or hearing, powerfully convincing. In terms of obtaining a conviction it is in my view only bettered by the judge’s summing-up in the first trial and Lord Goddard’s speech in the trial of Craig and Bentley. In terms of fact, the reader can at his leisure compare it with the evidence contained within this book. I will merely cite here one or two examples for the reader to consider how faithfully the facts were put to jury in the second trial:
‘Jeannette hears the shot and hurries to her feet as the murderer enters the lounge through the kitchen and attacks her. We fortunately do not know how long elapsed between the time Jeannette realized her husband was dying and her own death or just what happened in between.
‘We do know that at some stage she received a violent blow consistent with being from the butt of a rifle to her face; and that when she was finally shot, she was lying on the floor. We also know that a long hearth mat and cushion were at some stage burned by the murderer, and also that the room was heavily bloodstained. Whether the burning of these items was like the use of two saucepans with a view to concealing the blood, or whether it was done to conceal other marks traceable to the killer or his treatment of Jeannette we do not know.
‘The murderer was impelled by some overwhelming motive, and that motive may have been more than merely to destroy Harvey, perhaps out of jealousy, and to silence the only other witness. The evidence is equally consistent with a desire to get to Jeannette, even if this entailed first killing her husband and later Jeannette herself. Whether the murderer was impelled by a combination of these motives only he can say, but there is nothing to suggest any alternative.’
Sir Trevor Henry comments:
‘With regard to Morris’s final speech in the second trial and his reference to a sexual attack, I do not think that should have been said by Morris. There was absolutely no evidence of a sexual attack. I would not agree to a Crown prosecutor saying such things.’
And Kevin Ryan:
‘With regard to the remark he made about a sexual assault by the murderer on Jeannette I was so staggered and amazed by it I simply did not know what to do. It was improper, it was prejudicial, it was without any foundation whatsoever. If I had commented on it I felt I would merely be drawing more attention to an outrageously improper statement. I thought of going to the judge but in view of his performance throughout the trial that would obviously have been a complete waste of time. It was a shameful thing for Morris to do. If he had questioned Thomas on this aspect, given him a chance to deny it, if he had led that aspect correctly about a mad sexual attack it might, if he had been allowed to lead on such a subject, have been referred to in his final speech. To do it the way he did was disgusting.’
David Morris says:
‘Yes, it was without foundation.’
Bob Rock:
‘The jury considered David Morris’s final speech to be entirely factual. As foreman of that jury I believed the reference to a sexual assault to be fact. Why was the carpet burned if not to get rid of seminal fluid?’
During his cross-examination of Arthur Thomas, David Morris had asked:
Morris: Do you know anybody with more reason than you to be jealous of Harvey?
Thomas: I do not, sir.
I could quote many members of the legal profession who were scathing in their criticism of Morris for asking that question. Perhaps just one of them will suffice: Paul Temm, QC, a highly respected member of the Auckland bar and the man who defended Thomas at the first trial. During my very long interview with Temm, one particular aspect animated him and angered him more than any other. It was that question asked by Morris.
‘The question about jealousy that Morris asked was an objectionable question. It should have been objected to. It was most improper. He should not have been allowed to ask such a question. It is inadmissible.’
I would ask the reader to consider the question and answer for a moment, then consider this comment from the final speech of David Morris:
‘On his own admission his was not a normal attitude of a married man seeing an old girl friend interested in someone else; in cross-examination he agreed that “no one in Pukekawa had more reason than me to be jealous of Harvey Crewe”. That you may think was a very significant piece of evidence. No doubt Harvey Crewe appeared prosperous and had a well-liked wife, and no doubt Thomas was having his troubles financially along with other farmers in the area who had been hit by the drought. But to think of Harvey Crewe in terms of such jealousy, particularly in his very cautious answers in cross-examination is the plainest evidence that Thomas viewed Harvey differently from the apparently prosperous farmers in the neighbourhood.’
As the reader will see from a reading of the full speech that was not the end of it. Any further extracts, like any further comment would be superfluous.
David Morris spoke for two and a half hours. It was then Kevin Ryan’s final opportunity to speak on behalf of Arthur Thomas.
I have already recorded Paul Temm’s view of the defence at the second trial that he considered they took it easy, that it was going to be ‘a bus ride’. Curiously it is a view that Ryan holds of the defence performance at the first trial: ‘I think Temm took it easy. I think he thought it was one he was going to win.’
Perhaps both men are right in their view of the other’s performance. Both men certainly made serious mistakes which they freely acknowledged to me but I believe that both men gave of their best. Certainly it drained the very lifeblood from both counsel and at the end of the day both were exhausted. Kevin Ryan observed:
‘Towards the end I was very tired. I make no excuses but it did affect my performance. I should never have given that final address that Saturday. It was a mistake.’
But give it he did. He spoke for about an hour. While copies of the Auckland Star were on the streets with the headlines;
CROWN: JEALOUSY IS A MOTIVE FOR
‘WELL EXECUTED KILLINGS’
and a summary of a large extract of the Crown’s final speech that the jury would be able to read before considering their verdict; Kevin Ryan had yet to begin his final speech. When he did he told the jury that the defence was one of alibi. ‘It was a positive assertion. Thomas could only call his wife and cousin to support that alibi. How many people in Pukekawa area could do better than that for that night?’
He pointed out that the Crown had set great store by the fact that Peter Thomas knew nothing of cow 4 calving on that day. That the Crown believed the cousin on that aspect.
‘If that be so the Crown should also believe the same witness when he swears that Arthur Thomas could not have left the house that night. If you believe Peter Thomas that is the end of the whole trial.
‘I am aware that you have been kept together for three weeks and have been confronted with evidence which must have taxed the credibility and credulity of some of you. If there is any reasonable doubt then Thomas must be given the benefit of it. “Reasonable doubt” are not glib words from a defence counsel. If you laugh away those words, injustice will creep in. Never forget those principles.’
He attacked the introduction by the Crown of evidence relating to the fires and the burglary. ‘They ask you to infer he did these things. There is no evidence at all that he did but because it suits the Crown it is put before you.’
He talked of the allegedly petrified, frightened Jeannette that the Crown had painted and contrasted that with the facts that no blinds were pulled, no barking dogs kept near the house, and the back door was unlocked. He talked of the Crown case having ‘too many coincidences. If Thomas is guilty he would know that he had left a cartridge case behind. Yet he made no attempt to dispose of his rifle or alter it either before or after the bodies were found. When the police came looking for trailer parts he had days in which to dispose of the other parts, yet did not.’
Of the expert testimony that had so heavily featured he observed:
‘It is important that you realize that scientific evidence can be the worst kind of evidence. Scientists said that thalidomide was a good drug, but you have seen the results.’
He contrasted the considerable length of time the murderer had spent in wrapping bodies, moving them in the wheelbarrow, if one accepted the Crown’s contention about that, washing the wheelbarrow out, burning mat and cushion and cleaning up, with the ‘panic of light left on after this desperate search for a lost cartridge’. He reminded the jury that the DSIR expert had spent two months examining the wires and the defence had only been given samples the Thursday before the trial commenced. He also drew their attention to the contrasting expert testimony on the cartridge case, and the wires.
‘On every single ingredient that the Crown has placed before you there are large areas of doubt. And Thomas is entitled to the benefit of that doubt.’
He was critical of the corrosion tests carried out by Rory Shanahan: ‘What good, for example, are such tests if cartridges are placed in different soils and different environments to that on the Crewe farm?’
He reminded them of the evidence of Graham Hewson who ‘had no reason to lie for Thomas’. Of Eggleton he said: ‘Since he accused a lady who can’t defend herself, I say Mr Eggleton is a liar and a coward and you can’t believe what he says. His evidence should be ignored.’
