Beyond Reasonable Doubt?, page 40
‘By that time the second appeal had been and gone and Kevin Ryan had not made an issue at that appeal of this aspect.’
The material that Booth gathered was for the book referred to above. The Auckland Star, recognizing the significance of Pat Booth’s research, decided to run a series of articles on the case entitled ‘You be the Jury’. The articles, like the book that followed them, by no means tell the whole story. My main criticism of both would concern the people that Booth chose for interviews. Anti-Thomas people are noticeably absent when one lists the people Booth did speak to, but it was crusading journalism, not an attempt at objectivity. During the course of that year Booth joined forces with Dr Sprott. They make an oddly assorted couple and both recognize that fact. As Pat Booth remarked to Jim Sprott on one occasion:
‘We make an odd team, I’m a left-wing trendy and you’re a right-wing reactionary.’
The press articles and the public meetings such as the one at Auckland Town Hall on 27 August 1973 could not pass unnoticed. At that meeting packed with over 2000 people, with hundreds more battering at the doors to get in, the retrial committee plus some distinguished guests argued the case for Arthur Thomas. Among those guest speakers was the lawyer that Bruce Hutton described to me as ‘radical but clever’ Peter Williams.
In late October 1970, Arthur and Vivien Thomas had sat in a solicitor’s office in Pukekohe and discussed which barrister should be briefed to defend Arthur if he were arrested. Three names had featured largely in that discussion: Paul Temm, Peter Williams and Kevin Ryan. Williams had been ruled out on the grounds of price. Two of those men, Temm and Ryan, had battled in the courts on behalf of Thomas. Now in mid-1973, the Thomas family were pinning their hopes on Peter Williams. Perhaps the radical element in the man can be questioned, but there is no doubting his intelligence and gifts as a barrister.
Addressing the packed gathering he concentrated not on the specifics of the Thomas case but on the flaws in the system that the case highlighted.
Similar meetings were held throughout New Zealand. The Thomas case would not lie down and die. In Nelson, Christchurch, Hawke’s Bay, people in their thousands expressed concern. It was a concern that was to turn to anger and contempt in the light of subsequent events.
The results of the joint Booth/Sprott investigations were submitted to Minister of Justice, Martyn Finlay. In the light of those submissions Dr Finlay offered an independent assessment of the evidence that had been given on the cartridge cases at the second trial. It was an offer that was widely approved by the press and the public. It was an offer that in the event would never become a reality.
The offer from the Minister of Justice was made public in the first week of September 1973. The following week Dr Finlay stated that he was ‘desolated and deeply troubled’. What had caused that desolation and deep concern for the Minister was the revelation that the police, or to be more specific Bruce Hutton, had dumped the cartridge cases on the Whitford rubbish tip in Auckland.
After the second appeal had failed and at the suggestion of Crown Solicitor David Morris, the Charles and the Keith cartridge cases along with another 135 exhibits had been unceremoniously thrown away.
Bruce Hutton had spoken at length during the second trial of why he had cleaned, polished and brushed the Charles cartridge case. The reader will find his exact words earlier in this book. He had considered that the Charles case and a number of other exhibits had ‘historical value so far as the police were concerned, in this particular case. I felt they should be mounted and exhibited in the police museum in Wellington.’ They were, Hutton went on to say, to serve as an example to trainee detectives as to what could be achieved by tenacity and vigilance. Their disposal after the second trial when clearly their historical value had doubled, when the example they would give to those trainee detectives would have been multiplied many times, should serve as an example to those same trainee detectives of perhaps the most maladroit piece of bungling in the history of the New Zealand police force. Why dump cartridge cases no bigger than a thumbnail and keep an axle weighing 35 pounds? Why dump the Charles case and keep the rifle that it allegedly came from? If the police considered that the rifle was the property of Arthur Thomas and therefore could not be dumped, clearly they considered the Charles case was the property of Thomas. Their contention that it was his was the key piece of evidence in both trials. If Sprott and subsequently Booth were wrong, what better proof than to subject the cartridge cases to independent assessment? If the police were right then it would inevitably mean the demolition of the central argument which both men were expounding.
The items had been allegedly dumped on the Whitford tip on 27 July. Normal police procedure was to contact the site foreman and advise him they wanted to dump items. The site foreman has no record of the police appearing at the tip on 27 July.
On being advised what had happened Dr Finlay ordered an immediate search of the tip. He was advised by the police that the area that the exhibits had been dumped in could not be narrowed down to less than three acres and the possibility of finding the exhibits was hopeless.
On 20 September, a week after the revelation of the dumping had been made public, a front page Auckland Star article revealed exactly what the Booth/Sprott submissions to Dr Finlay had contained. The essential conclusion they had reached after a joint trip to Melbourne and access to I.C.I. records was backed with photographic evidence and supported by information obtained from I.C.I. It was startling. The Charles case, they contended, did not and could never have contained a pattern 8 bullet. Quite simply, if their opinion was correct, the fatal bullets had no connection with what had been the Crown’s most vital piece of evidence in the case against Arthur Thomas.
The information that the I.C.I. company had given to the Crown during that dramatic adjournment on the last day evidence had been heard, had been given in good faith, but it had now been established that it was incorrect information. Company records had indeed shown no official change in the design of the lettering on the base of the cartridge cases, but further company investigation prompted by Booth and Sprott had revealed that at certain dates engravers had indeed changed the I.C.I. stamp on the base. Further investigation showed that the use of pattern 8 bullets had ceased before the first shipment of cartridge cases from Australia bearing the design on the Charles case.
The dumping of some of the trial exhibits was not an illegal act. Disposal of court exhibits once an appeal has been turned down is normal practice in this country. But at the time of the dumping in late July it was known in police circles that a series of articles on the Thomas case were imminent. Clearly in a case as unique and important as this one had become, authority for the dumping should have come from much higher up the line than from a man who was deeply involved in the case. David Morris told me that he had told Hutton to get rid of the exhibits. That decision merely added massive fuel to the fire of controversy that far from dying down after that second appeal had raged unabated.
While many newspapers called for the instant release of Thomas and declared that he should be pardoned, Prime Minister Norman Kirk made public his own unhappiness about the exhibit dumping. The isssue had reached white heat within the country as can be clearly seen from the hundreds of letters written to newspapers. Not all by any means were pro-Thomas; a significant percentage resented bitterly the attack that had been made on the police and on the legal system. They considered that Thomas should be left to rot, and a number lamented the passing of capital punishment.
The Establishment in the shape of Dr Nelson of the DSIR and Inspector Hutton were not idle. They too flew to Australia to do their own research.
In November 1973, Minister of Justice Dr Finlay announced that he had recommended that the Court of Appeal should review new evidence that was available in the Thomas case. The announcement came after months of delay. Delay not from the Minister but the police and the DSIR as they researched and prepared their rebuttal to the arguments of Pat Booth and Jim Sprott.
The bitterness between the two camps grew. The gulf between the two positions widened to unbridgeable dimensions as counter-accusations followed accusations. In the middle was the Minister of Justice doing his level best to be fair, urging both parties to adopt a reasonable attitude but reasonable attitudes have been in very short supply in the Thomas case. Egos were wildly tripping, they still are. Reputations and the protection of them became paramount. Over two years passed before Dr Finlay’s recommendation that the Court of Appeal should review the new evidence became a reality. This was not just the familiar story of the law moving slowly. Peter Williams, Kevin Ryan, Pat Booth and Jim Sprott were engaged in a battle with a machine, a machine that demonstrably procrastinated and blocked every effort. The police had been given the Booth/Sprott submission in September 1973. When Assistant Commissioner Walton forwarded the police response to the Minister of Justice, a recommendation that the response should not be given to the men fighting on behalf of Thomas went with the police report. To his great credit Martyn Finlay ignored that recommendation and made the information available. Over a five-year period tenuous police and DSIR theory hardened into fact. The possibilities that the DSIR could be in error, that the police could be in error, that the Crown solicitor could be in error: none of these possibilities appears to have been seriously considered by the individuals concerned. To err is human but in this case to admit error was unthinkable. While lawyers manoeuvred and experts flew back and forth across the Tasman seeking information that gradually became more and more complex, Arthur Thomas waited in Paremoremo prison and his wife waited in her Auckland flat. There was about their marriage a strange pendulum quality. Arthur never veered for one moment from his love for Vivien. The indecision, the doubts were the exclusive property of his wife. In late 1974 she began an affair that was to last eighteen months.
‘There was no thought of marriage or living with this man. I was very fond of him but I had enough sense to know he was not the man for me on a permanent basis. Yes, you’re right there was this on/off quality about my marriage at that time. It was in part caused by my own confusion. It was also in part caused by the lawyers. They told me to keep Arthur happy, not to upset him, that there were fresh developments about to happen in the case. There were always fresh developments happening. They did indeed happen but none of them got Arthur out. In the meantime I had a life to lead. I was living in a limbo world. We both were.’
Mrs Thomas alone with her thoughts in Pukekawa and then Auckland. Mr Thomas alone with his in Mount Eden and then Paremoremo.
Vivien was still continuing her regular visits to Paremoremo and still vigorously campaigning on behalf of her husband but the lifeblood of their relationship was being inexorably drained from her. The frustration of waiting for this court hearing that never seemed to come allied to the deception were biting very deeply into the woman. She wanted to tell her husband the truth but again and again those around her prevailed upon her to play out the role of a faithful wife. She was still public property and was as effectively living in a cell as Arthur Thomas.
As a result of yet another petition to the governor-general two questions were referred to the Court of Appeal in December 1975, for the court’s opinion. Those questions were:
1. Has it been established by the petitioner that neither of the bullets of which fragments were found in the bodies of David Harvey Crewe and Jeannette Lenore Crewe could have been assembled with the cartridge case identified as exhibit number 350 in the course of the manufacture of a .22 rimfire round of ammunition?
2. If it is so established is such a finding inconsistent with the verdict of guilty, on both counts of murder, returned by the jury on the sixteenth day of April 1973 at the trial of Arthur Allan Thomas?
Five judges considered the evidence pertaining to the first question. Three of them, Chief Justice Sir Richard Wild, Mr Justice McCarthy and Mr Justice Richmond were the same men who had ordered a new trial and had subsequently rejected the second appeal. In view of this two other judges were added to the court: Mr Justice Macarthur and Mr Justice McMullin. This brought the total of judges who had direct involvement with the Thomas case to eleven.
During the nine-day hearing the court heard evidence from a variety of experts. The whole process of cartridge case manufacture was explored in great depth. While the defence sought to demonstrate that the combination of Charles cartridge case with pattern 8 bullets had never existed, the Crown sought to establish that they had. Clearly the two points of view and the evidence called by either side were not reconcilable.
One of the weapons in the Crown’s armoury was a bullet called 1964/2. Dr Donald Nelson had found this in his DSIR collection. He contended that he had obtained it from the Colonial Ammunition Company at some time between 24 January 1964 and 6 February 1964. It was also his contention that the cartridge case of this bullet was identical to the Charles case and although the bullet did not have a figure 8 on its base it was the Crown’s view that the presence in New Zealand of such a case at such a time proved that cases identical to the Charles case could have been loaded with pattern 8 bullets. It was an attractive theory but the weight of evidence against such a view effectively demolished it. It was established that the cartridge case of 1964/2 was of a type using a wet priming method not used by the company before October 1965, at which date pattern 8 bullets had not been used for two years. What had been hailed by the Minister of Justice as a ‘miraculous discovery’ when Nelson had produced it in 1973, was dismissed by the five judges with: ‘We have not been able to derive any assistance from Exhibit 1964/2.’
For the first and only time the curious events that had occurred on the final day of evidence in the second trial were subjected to judicial scrutiny. Had Dr Sprott made a mistake in his measurements of the imprints on the bases of the Charles and the Keith cartridges? Or had an error been made by Dr Nelson?
The alleged dumping by the police of both cartridges to a certain degree moved the discussion on those two questions to an academic level. Although photographs of the base of the Charles case exist no-one ever saw fit to photograph the Keith case, not even after it became such a contentious issue in the final stages of the second trial. That omission is an indictment of forensic science as is the shambles that passed for ‘expert’ testimony in the closing stages of the second trial. Dr Sprott’s vital evidence and the manner in which it was presented is a further indictment, not only of forensic science but of the defence. Perry Mason tactics might be fine for the television; they have no place in a courtroom when a man is on trial and a life sentence is hanging over him. While the Crown and the defence and their respective experts played an ego game of one-upmanship the farmer from Pukekawa sat forgotten in the dock, the vortex in the whirlpool that swirled around him.
The events in the final days during which evidence was called in the second trial hold the key to much of the puzzle of this case. Two facts shine out like a beacon in the controversy over the Keith and the Charles cartridge cases: the cartridge case that Dr Sprott examined on the assumption that it was the Keith case was not the Keith case. The cartridge case that Dr Nelson subsequently examined on the assumption that it was the Keith case was not the Keith case.
At the Lower Court hearings, the first trial, the first referral, the second trial – at these four separate hearings Detective Stanley Keith’s sworn testimony establishes beyond any doubt whatsoever that after he had discovered the complete bullet in the Thomas garage it was taken to the Otahuhu police station. It was dissected and the cartridge case was fired in a single shot .22 firearm to remove any traces of powder. Dr Nelson’s sworn testimony at the Lower Court on this aspect was that he had received from Keith an unfired bullet and a fired cartridge case. The case that Sprott examined in the courtroom was unfired. The case that Nelson examined during the adjournment was unfired. Where had this unfired case come from? Did these two men examine the same unfired case?
Dr Nelson, while testifying in the Court of Appeal in January 1975, was closely questioned on this aspect by Peter Williams. He said that he could not remember exactly how he had described the cartridge case at the Lower Court hearing and suggested that a typing error might have been made by the court staff. If that be so one would have expected Nelson to pick it up when checking it through before signing his deposition. In fact the very line of his testimony that talks of receiving ‘a fired shell case’ bears his signature:
Nelson: At this stage I can only speculate as to what I said in court at depositions.
Yallop: Would you accept that you might be in error with regard to whether you received from Keith a fired or an unfired case? It is after all a basic fact that at that stage of the investigation the case was not of central importance.
Nelson: It’s not recorded in my notes and when it was raised with me by the Crown prosecutor at the first trial I said: ‘Oh, I don’t know about a fired case. I haven’t recorded that in my notes.’ That’s the best I can say about it.
Yallop: So basically when you received that case from Keith it could have been unfired or fired?
Nelson: Yes, that is so.
During my interviews with Dr Nelson and Rory Shanahan we discussed at some length the events that occurred on the last day evidence was heard during the second trial. Particularly the events after Dr Sprott had testified that the Charles and the Keith cartridge cases were different and the category that the Charles case came into did not contain pattern 8 bullets. Dr Donald Nelson:
‘Well, first of all I wondered whether the sample of cartridge cases which had been examined was adequate for the conclusions which he drew. During the lunch adjournment I came down here to the DSIR and began to check through my stock of cartridges, particularly the old ones. I had just commenced work on these when I received a phone call from David Baragwanath who said: “Would you bring some equipment up to the court and measure these headstamps on the court exhibits?” I explained to him that any measurement done away from the lab would of necessity be crude but on the other hand to tell the difference between 1.2 and 1.5 mm should be the sort of thing that you can do with a hand lens, a pair of dividers, a steel rule and one or two other minor pieces of equipment. So I went up to the court armed with these items. David Baragwanath obtained permission from Mr Justice Perry and the exhibits were brought to the Crown robing room at the Supreme Court. Rory was assisting me. The court registrar, Ian Miller, brought the exhibits in. There were a number of other people in the room, Detective Keith, Bruce Hutton, Baragwanath. There were others who came and went. Then I measured them. As you are aware Dr Sprott’s evidence had been that the letter C on the Keith case was approximately 1.2mm and the letter C on the Charles case was 1.5mm, both of those measurements referring to the respective heights. To my great surprise I could detect no difference between the heights of the letter C of these two exhibits. Very interestingly, although I was very surprised David Baragwanath was not. He had had the impression that a big bluff was being run on the Court and he was calling that bluff.
