Beyond Reasonable Doubt?, page 41
Yallop: But surely, demonstrably, if Jim Sprott is going to come out with this theory, the man is no fool, fundamentally he would know that there was going to be rebuttal evidence. That you would be given opportunity to examine those exhibits?
Nelson: No. No. No. Rebuttal is very rare.
Yallop: Oh, come on now. Not in a situation like this. This is a capital offence we are talking about.
Nelson/Shanahan: No. No. Rebuttal is very rare. Very rare indeed. They had to go to judge’s chambers to get this rebuttal.
Yallop: I cannot believe Sprott and for that matter Ryan did not consider that possibility. This was evidence that had not been put to you in cross-examination. It is obvious and it would have been obvious at the time to the defence, that the Crown would be given the opportunity to rebut.
Nelson: In that case, you have the other side of the argument. That Jim Sprott may have made a straight-out mistake.
Shanahan: So which will you choose?
Nelson: And this is the problem you have in writing a book about this case. It’s a problem we have not got. We can give you the two alternatives but you have to choose.
Yallop: I can think of at least two other alternatives. One is that the exhibits were switched or exchanged either deliberately or accidentally. The other is that you deliberately examined a different cartridge case. Are you certain that you were examining the same exhibits that Sprott had previously examined?
Nelson: Well, they were handed to us by the court registrar, Ian Miller. You would have to go on his evidence not ours. At that stage we had no reason to doubt it. We just accepted the exhibits. They were in labelled containers, with the correct exhibit numbers on. We did not specifically examine the cartridge cases, the containers were the correct ones.
Although the two scientists took the position during this discussion that a switch either deliberate or accidental was not tenable, it clearly was. They accepted two containers in good faith. Dr Nelson merely checked that the exhibit numbers were correct. He did not check against his previous examinations of the Keith and the Charles exhibits to ensure that what he compared in the robing room were the two original exhibits. Add to this the fact that Miller at the time had only been No. 1 Court Registrar for about two or three months and had no previous experience in that capacity, and under cross-examination from Peter Williams during this referral admitted the possibility that from time to time during the course of trials exhibit labels became untied and separated from the actual exhibit. He was also clearly confused about when Dr Sprott had examined the Keith and the Charles exhibits. He was also clearly confused as to how he had initially obtained the various exhibits. He did not know whether he obtained them from witnesses or if he had obtained them prior to the commencement of the trial. He revealed that the exhibits still retained their numbers from the first trial and it was assumed that between the two trials, a period of two years, all the labels had remained intact on nearly 200 exhibits. He was unable to say for certain who had been present during the examination in the Crown robing room. It is a veritable hornet’s nest of possibilities.
When one realizes that the exhibits were then uplifted after permission had been obtained from Mr Justice Perry and removed to the DSIR and that no member of the defence was present at any stage of these examinations, it becomes apparent that there are many explanations as to why a fired case became an unfired case.
This is not idle nitpicking. It directly affected the verdict. Foreman of the jury Bob Rock rationalized not only for himself but for the rest of the jury the difference between the base letters with his theory that the fact one of them was fired would spread the base letters and thereby cause a variation in the measurements. The issue of whether or not the Keith cartridge case was fired or unfired is therefore crucial.
In October 1973 when the police were compiling their response to the Booth/Sprott submissions Detective Keith again confirmed to the assistant commissioner that the case had been fired. Inspector Hutton in his report took a different position. He declared that he was present when the bullet was dissected and that the cartridge case was not subsequently fired. If that be so why then did he as the police officer in charge of the investigation allow Detective Keith to appear to commit perjury on four separate occasions? I do not believe for one moment that Detective Keith did commit perjury on those occasions. I believe the testimony he gave on the firing of that cartridge case to be completely accurate. The Keith cartridge, this ‘vital link’ between the murder bullets and the accused because it established that on his farm was one round of a particular kind of .22 ammunition, lost all its credibility in the last week of the second trial. In the light of events that occurred in that week and Dr Nelson’s admission to me this particular strand of rope that linked Thomas with the deaths of the Crewes is irretrievably cut. It was certainly dispatched to oblivion by those five appeal judges as they considered its relevance to the issue before them:
‘In all the circumstances we do not think that on this referral we should place any reliance on Exhibit 343 (the Keith cartridge) and we have accordingly disregarded it when considering the probability of Exhibit 350 having derived from a hob earlier in date than the hobs “new” and “in current use”.’
Significantly, although Inspector Hutton and Detective Keith were present in the Court of Appeal during Dr Nelson’s evidence-in-chief and his cross-examination the Crown did not call either policeman to buttress the faltering memory of the man from the DSIR.
It will have been noted that the first of the two questions the Court of Appeal had been asked to answer put the onus of proof on Arthur Thomas. The very first words of this book make it abundantly clear that the onus or burden of proof in a criminal case is never upon the accused. It is always on the prosecution. This is the fundamental concept of criminal law in this country. What happened in this referral was the five judges reasoned that the framing of that first question transferred the burden of proof to Arthur Thomas. They then applied to this question which dealt with a criminal matter the civil onus of proof of the balance of probabilities rather than the criminal burden of reasonable doubt. Part of their decision reads:
‘On the probabilities we are therefore prepared to accept the submission made on behalf of Thomas that cartridge cases derived from these hobs could not have been manufactured and shipped to New Zealand in time to be assembled with pattern 8 bullets.’
The court in its judgment rejected virtually the entire case put forward by the Crown. Yet despite the fact that they acknowledged that no example of a cartridge case identical to the Charles case with a pattern 8 bullet had been discovered, despite the fact that none of the machinery necessary for such a combination had been discovered, they felt they could not exclude the reasonable possibility that such machinery had once existed. Their decision concluded with:
… We are unable to exclude the reasonable possibility that Exhibit 350 was produced in Australia at some time before October 1963 and therefore could have been loaded in New Zealand with a pattern 8 bullet.
In those circumstances our opinion is that Question 1 must be answered ‘No’.
Conclusion:
The Court’s answers to the questions are as follows:
Question 1. No.
Question 2. In view of the answer to Question 1 no answer to Question 2 is required. For that reason, and also because a determination on the applicant’s petition is a matter for the Governor General-in-Council, the Court refrains from any discussion of the considerable body of evidence against Thomas, other than that relating to Exhibit 350, which was before the jury for their consideration in reaching their verdict.
Arthur Thomas had failed to prove a negative. The Crown had been given the benefit of the doubt, a benefit that is never given in a criminal trial. The man who had drafted the wording of those questions was Minister of Justice Dr Martyn Finlay. Talking to me about that court decision he said:
‘I thought the evidence presented to the Court on behalf of Arthur Thomas was not only persuasive but virtually overwhelming. Yet the whole of the bench dismissed it. Much to my surprise. I would also add that the way they applied the burden of proof was not in accordance with my understanding of the law. I felt that they had put the burden of proof on Thomas rather than the Crown. I was astounded by the decision. But confronted by that unanimous decision from five judges I had to accept their conclusions.
‘The decision to refer the matter to court rather than take it to the engineering faculty at Auckland University was mine. I thought at first that it was purely a scientific question and therefore the view of a scientist would be the best source of information. I still think that but then I decided that the determination of whether the evidence of the scientist was persuasive and acceptable ought not to be made by me but by an independent group, thinking of the Court of Appeal, and it was for that reason that I said this is still a scientific question but it should be determined, like any other question of fact, through the due legal process, a court of law.’
I asked Dr Finlay whether in all honesty he could say that those five judges were independent and reminded him that three of them had been deeply involved prior to this hearing with the Thomas case.
‘Well, I had to assume they were. One assumes that a judge can put aside any previous commitment to an issue and have a fresh mind.’
By the middle of 1976 Dr Sprott had examined over 25,000 rounds of .22 ammunition. He was attempting to find the combination of bullet and cartridge case that the Court of Appeal had considered a ‘reasonable possibility’. He did not find one such specimen. He has still to find one such specimen.
In that same period of time Vivien Thomas stated publicly what she had privately wanted to state for a long time. Her marriage to Arthur Thomas was over and she announced that she was seeking a divorce on the grounds of four years’ separation. It was a decision that Arthur Thomas locked in Paremoremo appeared to accept with stoical calm: ‘I might have lost a wife but I have gained a great friend.’ In fact he not only still deeply loves the woman who had fought so long and hard on his behalf, he still believes he and Vivien have a future together.
While Vivien’s decision was greeted with sympathetic understanding, the continuing advertisements for .22 bullets upset a number of people including Sir Alfred North. He had been president of the Court of Appeal which had rejected Paul Temm’s arguments to have the first trial verdict set aside. The ‘fresh minds’ that Dr Finlay hopes the five judges brought to the final referral were hopefully more detached than Sir Alfred’s was in April 1975. He objected to the continued efforts that had been made on behalf of Thomas. He objected to Kevin Ryan stating that the British system of criminal trial upon which this country’s system is based was weighted against the defendant. He said there was no justification for anyone to say that the dice were loaded against Thomas. The new trial had been granted on what he called ‘flimsy evidence’. He considered that the Minister of Justice Dr Finlay had been induced ‘absolutely wrongly’ in his opinion to seek yet another ruling by the Court of Appeal. He objected to advertisements inviting people to contribute to a campaign fund for Thomas. Dr Sprott’s suggestion that the technical evidence should once again be re-examined was, Sir Alfred declared, ‘impudent’.
‘It will be a sorry day for New Zealand if this sort of thing ever happens again.
‘Incalculable harm has been done to our criminal judicial system by these events. The system would break down if it could be subjected to these continued allegations of unfairness.’
In late 1976 Pat Booth and Jim Sprott made allegations of far greater gravity than ‘unfairness’. In yet another attempt to reverse the verdict a very large file was presented to the government. Another general election had taken place since the last referral, consequently the file went to Mr Muldoon’s National Government.
The file contained not only detailed information on aspects of the Thomas trial that disturbed the two men. This time the ramifications were far wider and made allegations of corruption against a number of police officers. The corruption, Sprott and Booth asserted, had happened in a variety of cases totally unconnected with the Thomas trials. The one common denominator was that all of the police officers named had been involved in the police investigation of the Crewe murders. The central allegation concerned planting by police officers in these other criminal cases; the premise being that one, some, or all of these named men had been involved in planting the Charles case. The allegations also covered telephone tapping and conspiracy. The file was considered by Solicitor General R. C. Savage and the Secretary for Justice G. S. Orr. Their recommendation contained in a report to Cabinet that has yet to be made public was that no further action should be taken on the material they had considered. The Cabinet accepted that recommendation.
The charges of police malpractice were subsequently investigated by two police officers. In late 1977 the two officers concluded there had been no police malpractice.
Also in 1977, the Arthur Thomas retrial committee announced a reward of $50,000 ‘for information relating to the Crewe murders and/or knowledge of any malpractice during the investigations and trials which would lead to the acquittal of Arthur Thomas’. The reward offer, which was open until 30 November 1977, closed with no takers.
In January 1978, Arthur Thomas’s legal advisers announced they were going to take the case to the Privy Council in Great Britain. It is something that should have been done in 1971. It is something that again should have been done immediately after the last referral decision had been announced in February 1975. Perhaps if the case ever gets to Privy Council the law lords of Great Britain may be able to assist the defence in finding a solution to the question: How do you prove a negative?*
Dr Sprott has said to me many times that his prime concern is not Arthur Thomas but the quality of forensic science in New Zealand. I understand his point of view but it is not mine. My prime concern is for the flesh and blood of certain people. For Rochelle Crewe, orphaned tragically and horribly one winter’s night in Pukekawa. I am acutely aware that this book may cause her distress. I hope one day when she has grown to womanhood she will understand why it has been written. Voltaire said: ‘To the dead we owe nothing but the truth.’ It is because of my acceptance of that philosophy that I undertook this task. And also because I believe that the living Rochelle deserves the truth.
For the Thomas family, particularly the parents of Arthur Thomas, who for nearly eight years have attempted to cope with the uncopeable. Two people who should have been enjoying the autumn of their lives.
For Vivien Thomas, attempting now to build a new life with a new man. Here is a fragment from my last interview with Vivien Thomas:
Yallop: What would you say to people who said: ‘Look, here is a man who has had two trials, two appeals, two referrals and a retired judge who conducted an inquiry. It has been considered at the highest level in the land including Cabinet meetings. Sir Alfred North put it that “no person, with regard to a criminal case, has ever been shown greater consideration in the history of this country”.’ Now if people made all those points to you and then said: ‘Surely he must be guilty, why don’t you accept the fact?’ what would you say?
Vivien: My answer to those people would be: ‘If it was your husband and you knew he had not done it, what would you do? Would you shut up? Would you fight and try and get him out of prison? There is no doubt in my mind at all. He is innocent. It would have been so easy to have left the whole thing alone. After all, look what it’s done to the lives of all the people involved. It would have been easier if he had been guilty. I would have accepted that. His innocence and the knowledge of that innocence has meant so much suffering for so many. Physically. Mentally. Financially.’
And Arthur Thomas? He concerns me greatly. For many reasons but most of all because we are all potential Arthur Thomases. When I came to this country to research and write this book I had a totally objective view on the question of his guilt or innocence. Pat Booth wished to collaborate with me. I declined for only one reason. He was clearly subjective in his views and opinions on the case. He was already convinced that Thomas was innocent when we first spoke. I did not share that conviction. Indeed I was very aware that my research might bang the prison door more tightly on Arthur Thomas. I took nothing Booth, Sprott or anyone else said to me for granted. Everything was checked and double-checked. I now have a view and an opinion formulated not by others but by facts that I discovered for myself, about the strange and horrific nightmare that Arthur Thomas has been living for nearly eight years.
