Beyond Reasonable Doubt?, page 51
You may think it inconceivable that such a distinctive and potentially valuable customer could ever have been confused with the accused.
A challenge to Eggleton’s evidence was made on the grounds that he had told Mrs Maguire and subsequently her husband in December 1970 at or after the taking of the Lower Court depositions in this case, that he had never seen Thomas before.
Mr Eggleton candidly admitted that he had so told Mr and Mrs Maguire and gave as his reason that he had been threatened by her that his business would be affected were he to become involved.
The making of this threat and threats to Eggleton’s children was confirmed by the police in their inquiries and again you may think it significant that although we have heard from Mr Maguire, his wife did not enter the witness box. The reason for such threats and for the non-appearance of Mrs Maguire before you to deny them, are matters which you may think confirm Eggleton’s account.
It will not have escaped your attention that the police found no wristlet watch belonging to Harvey – either on his body or in his house.
At different stages of the trial you may think, apart from his claim to have been at home on the night of the killings which I have already discussed with you, the accused has raised various, you may think, conflicting alternative defences.
The lead found in the heads of Harvey and Jeannette – it will be advanced on behalf of Thomas, I have no doubt, that the lead in the heads of the dead couple was fired either by Thomas’s rifle without his knowledge or consent or by a different rifle which left identical land markings upon its bullet.
Thomas has never really denied that his rifle was at all material times in his house. According to Peter Thomas, it was in his bedroom behind the door of that room in June although exactly where it was on the 17th he was unable to tell us. On 17 August when Detective Sergeant Charles uplifted the rifle for the first time, Mrs Thomas admitted that it had come from the kitchen and from the well-kept appearance of the rifle it is evident that it was not left lying about. Clearly it has always been in the house either in a bedroom, in the kitchen or possibly in the wash-house. In any event, it is perfectly plain that no intruder could have entered the Thomas property at night, uplifted the rifle, committed the murder and returned it without alerting either the members of the household or the dogs who were nearby. This suggestion, you may think, is plainly to be rejected.
The alternative suggestion advanced by the defence was that the possessor of an identical rifle has committed these murders, and the finger has been pointed at John Michael Eyre whose mother gave evidence before you.
She told you that he was one of her two sons and would have been 28 years in June 1970. He was then living with both his parents – of whom Mr Eyre has since died – and a younger brother then aged 16 years, at Pukekawa about 1½ miles from the Crewe farm. She told you that John Michael was hard of hearing and had suffered from a speech impediment from birth and that not surprisingly, due to these impediments, he did not go out at night unless accompanied. You will also recall, I am sure, that she told you that he was at home with the other members of the family that night and he only possessed the rifle subsequently examined by the police because it had happened to be lent to them by the next-door neighbour.
To boost this attack upon him an allegation was made that he had on one occasion appeared with a rifle unheralded upon the verandah of the house of a Mr and Mrs Hooker, then living at Pukekawa. One can understand that these people were alarmed at seeing Eyre unannounced on their front verandah in possession of a weapon of some kind, however innocent his intention may have been, on account of the difficulty of communicating with him. Despite attempts to show a propensity for cruelty in Eyre, you have heard no evidence of any behaviour directed by him against another person and certainly nothing has emerged from the widespread inquiry into the deaths of the Crewes to suggest any involvement on the part of this man.
In what you may regard as a misleading attempt to develop a case against Eyre, the evidence was led from Mr and Mrs Hooker without reference to the date on which the events they describe took place. The impression must have been with you that this occurrence must have been at a time sufficiently approximate to the deaths of the Crewes to have been relevant to the inquiry. In fact, it emerged on cross-examination, that this had occurred some fourteen years before when Eyre would have been in his early teens. The possibility that Eyre was involved in any way with the deaths of the Crewes can safely be disregarded by you.
Attempts were also made to establish that the police search had not ranged sufficiently widely and evidence was led from Payne and from William Thomas that their rifles and one owned by Montgomery had not been collected and examined by the police and scientists. The reason for the limits of the police investigation were plainly described to you by Detective Sergeant Charles and supply the answer to that criticism. None of these men fell within the categories of those who might reasonably have been expected to be possibly involved – either as near neighbours of the Crewes, persons who had had to do with them or having become involved in any other way in the inquiry.
At one stage, an attack was levelled at Mr Demler who was said to have had access to a firearm but this was shown to be equally unfounded when the weapon in question, originally owned by the Chennell Estate, was produced and found to be of substantially greater gauge and incapable of firing a .22 bullet.
Thomas, in cross-examination, as part of his claim to innocence, suggested, you may think somewhat ingenuously, that if he had done the homicide, the rifle would be well buried or in the river. You may think it plain that although he did, in fact, use the river as a means of disposing of the connection between himself and the killings, that he could not possibly have rid himself of the weapon which Peter Thomas and others knew to have been in his possession at the relevant time and it was registered in his name.
The defence were unable to challenge the Crown evidence that Thomas’s rifle had fired the cartridge case, Exhibit 35, and there can be no doubt that this was, in fact, the truth. In order therefore, to deny his guilt in the face of such powerful and damning evidence, vehement attempts were made by the defence to establish that the shell case found in the enclosure garden by the back gate had been planted to provide false evidence against Thomas. The seriousness of this grave allegation cannot be overstated and I shall shortly make reference to this topic. Three separate attacks were mounted –
First, that contrary to all other evidence the area had been sieved so that any cartridge case must have been dishonestly planted after the date of the August search;
Secondly, it was claimed through Dr Sprott that the evidence of the appearance of the shell case when found was inconsistent with its having been in or under the ground for the four months from the date of the killing until Charles’s discovery.
Finally, and you may think spectacularly, it was claimed that the particular shell case could never have been associated with either of the No. 8 bullets found in the heads of the deceased.
Now, as to Hewson’s evidence, the following matters will not have escaped your attention. Despite his claim to being virtually a member of the police party, it is plain that he had no idea of the theory underlying this particular search, namely that the murderer might have disposed of his shell cases out of windows in the house or as he removed the bodies by wheelbarrow after taking them out the front door. On this theory, the logical places for the most detailed searching were immediately around the house itself and in the garden on one side of the front path and the other gardens on each side of the front gate of the enclosure. It would have been illogical to reverse the pattern as Hewson claimed was the case by ignoring the kitchen garden which he thought had not been sieve-searched even though it immediately adjoined the house. His recollection was proved to be poor, one would expect a man who had taken a full part in the heavy work of sieve-searching in the month of August to have remembered the existence of the two gardens which he omitted and which were, indeed, amongst the first to have been searched and not to have known that the kitchen garden also had been sieved. He was plainly in error in asserting that a garden adjoined the front path on each side and admitted that after the mistakes he had made, he had to be careful and that he did not have a good memory.
He appeared to give the impression that contrary to the scheme underlying the search, the kitchen garden had merely been visually searched after the pulling out of certain growth, whereas, for no obvious reason, having elected not to sieve this area, the police had taken the trouble to search the entire length of the perimeter fence where the murderer would have no reason on that theory to have gone.
Hewson acknowledged that, as at August 1970, he was under considerable personal stress and that it was not until almost exactly a year later that he first tried to recollect where the sieving had occurred.
It may be that not comprehending the pattern underlying the search, Hewson has become confused. This submission is supported by all the other evidence available to the Court.
First, is the plan underlying that search which I have already discussed.
Secondly, there is the evidence of the four police officers engaged in it. Namely, Detective Sergeant Jeffries, the officer in charge of the search, Detective Sergeant Gee, Detective Meurant and Constable Higgins. They had the responsibility for conducting this search, and bore the burden of the heavy physical work entailed whereas Hewson on his own admission was not there throughout the whole period.
It was suggested in cross-examination of Mr Chitty that the police were wrong when they claimed to have uplifted the mower used the following day and that Hewson’s account of the whole matter was accordingly to be preferred. Mrs Chitty, however, volunteered before you that it was, in fact, Detective Meurant who had borrowed her mower and that it was on some other occasion that Hewson had called at her house.
In addition to these four police officers, evidence was given by Mr Handcock, the manager of the property, who unlike Hewson, had an active responsibility for the property at the time of this sieve search.
He, a farmer and latterly a nurseryman by occupation, gave clear evidence that the sieve-search had not extended over the area claimed by Hewson and he confirmed the police account that the kitchen garden had been sieved. You will recall the description he gave in each case.
Further, you heard the evidence of Detective Sergeant Charles as to the condition of the bed as at the date of his search in October and of the work entailed in performing the sieve search which he and Detective Sergeant Parkes attempted to carry out.
Charles’s evidence was confirmed by Handcock and neither was cross-examined on this topic nor, indeed, were any of the four police officers involved in the search given the opportunity of commenting on the account which Hewson subsequently gave.
Most fortunately and by pure chance, it happens that photographs taken for another reason show the condition of the gardens and illustrate the accuracy of the account given by the police officers and Hewson.
One shows the condition of the enclosure garden at the time of the original search in June and you can see in the background the remains of plants which were left in the ground at that stage.
Another photograph taken at the time of Charles’s discovery, shows that same plant having propagated – something which could not have happened had the bed been sieved as claimed by Hewson.
In truth, the reason for the final search by Charles was the admission of Jeffries that his party had not sieved this particular spot and this coupled with the suggestion of Johnston of the explanation for the open louvre windows and the back light being on led to the reconstruction about which Dr Nelson has spoken. There can be no reason for Jeffries to have said that the garden had not been sieved if, in fact, it had and it is submitted that Hewson is simply wrong in the evidence he has given.
In anticipation of the attack by Dr Sprott, evidence was called from Mr Shanahan, Mr Braithwaite and Mr Matson to establish that the appearance of Exhibit 350 as described in the evidence was entirely consistent with its having been in or under the soil for the appropriate period.
Mr Shanahan conducted a survey of a type which Dr Sprott, in giving evidence in the Court of Appeal, accepted as appropriate, although before you, he endeavoured to reject as misguided. I invite you to accept his earlier evidence on this topic as the more reliable. The survey carried out over an appropriate period in many places provided us with a broad spectrum of samples and in the opinion of Mr Braithwaite, an expert of the greatest possible experience in the field of metal corrosion, abundantly supported and confirmed Mr Shanahan’s opinion that Exhibit 350 could well have been in or under the ground for the requisite period.
Mr Metson, the soil expert, gave confirmatory evidence and was not contradicted by any defence witness having appropriate experience in matters of soil chemistry.
It was the plain effect of the evidence on this topic that the behaviour of brass shell cases buried in or under soil for a period of four months is quite unpredictable and that a wide variety of results is to be expected.
An attempt was made to show that Exhibit 350 was insufficiently corroded around its radius to be consistent with the history asserted by the Crown but Mr Shanahan’s evidence of its 30 per cent corrosion and of the other shell cases which were relatively uncorroded in this area refuted this claim. It is, you may think, highly significant that Professor Titchener who inspected the case on behalf of the defence prior to the first trial, apparently found nothing strange about its appearance in the light of its history nor did the British Home Office whose report you have. On Dr Sprott’s own evidence, the description of the shell case given by Detective Sergeant Charles who found the shell, is what he would have expected in a shell case buried for the time in question and if his evidence is acceptable to you, that is the end of the matter.
You will also recall the evidence of Detective Sergeant Parkes and of Detective Inspector Hutton who inspected this shell and which are consistent with even Dr Sprott’s requirements. It is true that there are variations among these descriptions but it must be remembered that their main interest was in the firing pin impression and that the allegation of plant was raised at a very late stage. It may be observed that if they had wished to give false evidence, a carefully dovetailed account would presumably have appeared.
It is of particular significance that Detective Inspector Hutton was the officer responsible for the retention of this exhibit through which an attack is now levelled against him and the party of police officers whom he headed throughout this inquiry.
I make this latter observation particularly because any allegation of planting must necessarily affect these men. I need not repeat the gravity of this allegation which is so easily made. For such a serious and sinister allegation to be open for acceptance, a police officer or officers – particularly those who have given evidence – must have been involved. But the sequence of events within the police party – commencing with the return of Thomas’s rifle on 8 September 1970 to Johnston’s reconstruction of the reason for the open louvre window and the light being on at the stage when he joined the search in September resulting in the reconstruction and the decision to have the bed sieved – follows logically and reasonably. Nothing in this affords any support to this vehement attempt by the defence to break this powerful and damning piece of evidence which even by itself would justify your convicting Thomas.
If it is said to be planted, one must consider when and by whom. Plainly it must have been by a police officer as a planting by an outsider would be purposeless unless he knew that a fresh police search was to be mounted. In fact, however, as Charles says, the police took extreme care to keep knowledge of this fact within their ranks.
Now prior to the return of Thomas’s rifle on 8 September 1970, there could have been no reason to retain a fired case for subsequent planting; of the three shells fired, all were retained by Dr Nelson and they were of course not brass but copper. Thomas’s rifle was uplifted for the second time on 20 October 1970 by Johnston and Parkes together, who thereupon gave it to Detective Sergeant Keith who from then until the day after Exhibit 350 was found by Charles, had exclusive possession of the Exhibit rifle and kept it in a locked cabinet inside a locked room to which he had the only keys.
Yet it was never put to Keith that he had been involved in the planting. It is plain that the suggestion leading to the new search came from Johnston but no allegation of plant was directed at him. No other officer could have had access to the rifle and so the other members of the squad including Parkes who is the only one to whom the allegation was put, could have been responsible unless at least Johnston and Keith are party to a conspiracy of the most terrible kind.
The fact that the shell case escaped the initial search when the theory was that a blunt instrument had been used and also the visual search in August when other gardens were sieved, is accounted for by the evidence of Vesey who, called for the defence, acknowledged that search failed to reveal the existence of one of the six shell cases known to have been placed in an area covered by the diameter of the stub axle.
The final ground on which planting was alleged by the defence was that the Number 8 bullets found in the heads of the deceased were inconsistent with the type of bullets to be expected from a shell case of the kind of Exhibit 350. This was the purpose of Dr Sprott’s diagram and evidence. No part of this evidence was put to any Crown witness including Mr Aitken of the C.A.C., who had given evidence that the composition of shell cases had not altered over recent years and that the No. 8 was stamped into bullets made over the period from 1949 until 1963. Nor was any hint of this defence made to the Crown’s ballistic experts Dr Nelson and Mr Shanahan. That is why leave was given to call the rebuttal evidence of Mr Shea and Dr Nelson.
Mr Vesey, who, we were told, was the organizer of the Thomas retrial committee, made no reference in his evidence to supplying Dr Sprott with some samples of cartridges so that the validity of his sampling might have been explored on cross-examination. The defence evidence-in-chief was left on the basis that apparently proper inquiry and sampling had led to the conclusion both that the Keith shell found in Thomas’s shed and bearing the No. 8 on its lead was quite dissimilar to the Charles shell and of crucial importance, the Charles shell could never have contained a No. 8 bullet.
