H-Files: Judge faulted 'confession' in case of the Northland kauri gum digger killing

George Crewe was found dead at his isolated hut at Ruatangata West, near Whangarei, in May 1932. Photo / Northern Advocate, National Library

Heta Fred Gardner was tried twice for murder, but walked free partly because the police were found to have used overbearing tactics to obtain a confession.

Aged 15 at the time and said to be feeble minded, Gardner was accused of killing retired farmer and former kauri gum digger George Crewe, 74, near Whangarei.

The police didn't threaten Gardner in obtaining the confession, said the trial judge, Mr Justice Smith.

But in an explosive ruling, Smith said that by handcuffing Gardner, using four policemen to collect him, questioning him alone in the middle of the night, and not formally warning him - all before he had been charged - the police had, in legal terms, used a "violent procedure". That rendered the confession useless in court.

A bachelor, Crewe had lived alone at a small, isolated hut at Ruatangata West.

He was last seen alive, at the hut, by the wife of Duncan McDiarmid, who lived with her husband about 400m away, on Thursday, May 26, 1932.

The next day - on which it was later thought Crewe was attacked - Mrs McDiarmid dropped off some silverbeet for him. She called out from the gate but didn't see anybody so left the vegetables there. It was about midday, but Crewe was known to stay in bed until early afternoon.

Duncan McDiarmid had arranged to write a letter for Crewe and went to his hut on Sunday, May 29. Unusually, the door of the dimly lit hut was open and McDiarmid found Crewe dead in bed. He assumed he passed away in his sleep.

He called the police, and it was found Crewe was killed by an axe-blow to the head. The blood-stained axe was left leaning against the bed.

Gardner worked on farms and was being investigated for thefts when the police learned of Crewe's death.

He admitted taking a horse from his former employer's farm. A work colleague at Gardner's next farm said Gardner had told him he wanted to exchange a horse for a gun and cartridges at Crewe's place.

On the probable day of Crewe's death, the Friday, a boy aged 14 had met Gardner coming from Ruatangata West. Gardner was carrying a bag and the barrel of a gun was sticking out. Gardner wanted to sell the gun to the boy.

Gardner later guided police to the roadside where he had left the bag. It contained part of a shotgun and 13 cartridges similar to those at Crewe's hut. Gardner soon produced the rest of the gun.

In court, the gun was identified as Crewe's. However a pair of blood-stained trousers found in Crewe's shed - trousers were among the items taken from Gardner's former employer - seemed not to have been Crewe's. But a blood-stained jersey that was presented in court had been worn by Gardner.

At Gardner's first trial, he was described as having the mental age of a 10-year-old although he was not insane. He had told Dr H. M. Buchanan, medical superintendent of the Auckland Mental Hospital, that he had been stabbed in the head with a knife when he was about 5. A scar remained, but an x-ray showed no pathological brain changes.

Buchanan said the accused was feeble minded and another doctor said Gardner could be classified under the Mental Defectives Act.

Gardner's lawyer didn't call any evidence, but cast doubt on the crown case. What had happened to the roll of money Crewe had possessed weeks before his death? Gardner didn't have any money when he arrived at the Whangarei police station.

Crewe liked to invite passing livestock drovers in for a cup of tea and a chat and there were plenty of swaggers walking about the district. Did Crewe talk of his money and had someone not under suspicion gone to get it.

Justice Smith noted that no fingerprints were found on the axe and there was nothing to link Gardner directly with the striking of the axe blow.

The jury couldn't agree on a verdict and a new trial was ordered.

Smith had ruled that Gardner's last statement to the police before being formally charged with murder was inadmissible. Before Gardner's re-trial began, the Court of Appeal ruled that some of the evidence referred to it was admissible, and parts of a statement of Gardner's to the police were inadmissible.

At the re-trial, Smith told the jury it would be unsafe to hold Gardner responsible. They took just 20 minutes to acquit him.

After the verdict was announced, Smith released a judgment he had written after the first trial, on the admissibility of evidence. It focused on Gardner's May 30 statement.

"The statement amounts to a confession by the accused of the crime of murder with which he is charged."

Smith agreed with the defence that it was inadmissible because in law it was not a voluntary confession.

A Māori, Gardner had been taken to the home of a Māori leader, a form of quasi-custody, to await a sitting of the Children's Court over the alleged thefts.

He was asleep after 11pm when four policemen - an inspector, two constables and a detective sergeant - came and took him to the Whangarei station. He was handcuffed on one wrist and led for 800m down a track to a vehicle. From 12.30am to 4am he gave a statement.

Although the detective must have known an arrest and a murder charge were imminent, no warning was given to Gardner before he gave his statement, Smith said.

"No threat, in the ordinary sense of the word, appeared to have been made," the Herald wrote, citing the judgement.

"... but his honour's view was that the arrival of the four men in the boy's bedroom, handcuffing the boy and taking him to the police station, where he was surrounded by none but police officials, and the exertion there of pressure for details of a story, amounted to the obtaining of a confession by a procedure which must be regarded, for the purposes of the matter, as a violent procedure."