System let down innocent man

Arthur Allan Thomas. Photo / Christine Cornege

A new book calls for Arthur Allan Thomas to be cleared, once and for all, of the Crewe murders. In this edited extract, author Keith Hunter explains how the wrongful conviction of an innocent man undermined confidence in police.

The royal commission finding that our police force framed Arthur Allan Thomas for murder marked a coming of age for New Zealand.

It introduced a deep disillusionment, a cynicism that infects us today. It colours our view of justice in New Zealand and our trust in those who deliver it.

Before the scandal of the murders of Harvey and Jeannette Crewe, New Zealanders took great pride in their honest and ever-vigilant system of justice and order. Unlike most others', our police force and our justice system were uncorrupted and incorruptible.

They never falsified. They always acted properly and in the true pursuit of justice. In our minds they were clothed in a white robe of honour and truth. We trusted them as a child trusts a parent.

The Crewes murder case destroyed this. Nowadays a lawyer can suggest to a jury that the policeman they've just heard was a perjurer who had planted evidence against his client. Before R v Thomas no lawyer would ever do this, or perhaps had ever done it, although many would make this talk over a beer after losing in court.

But in the Crewes case, the police were caught out. A Royal Commission of Inquiry found they had planted evidence against an innocent man. The nation changed.

Nowadays we suspect the judicial system in the Peter Ellis case, the Scott Watson case, the Mark Lundy case, the John Barlow case, the Rex Haig case, the David Wayne Tamihere case and so on.

It has become endemic as a legacy of the Crewe case and will likely stay that way until the nation has a justice system that puts justice above its collegial pride and self-esteem and finds a way to recognise that it makes mistakes. The book on the Crewe case will not be closed until the system acts on it again.

No further attempt been made to identify the real killer.

The intended by-product is that Thomas is not exonerated. He is not proclaimed innocent of the two murders.

The Crimes Act s407 states that the meaning of the pardon is that Thomas is "deemed never to have committed" the crimes.

The Commissioners discovered that Thomas' "innocence" was actually no more than a device which extracted him from prison and guaranteed he could not be prosecuted again for the same crimes. Said the judges: "The terms of the pardon did not indicate any contention of factual innocence".

While the Royal Commission said "we believe we are entitled to proclaim him innocent", the High Court leaves Thomas to this day not innocent at all, just a pardoned putative murderer.

Arthur Thomas has the right to see the case reopened if he is not always to be a pardoned murderer. Depriving him of that right is just another injustice to a man accepted as innocent in fact by everyone except employees of the New Zealand justice system.

My review has disclosed that there is only one possible killer: Jeannette Crewe's father, Len Demler.

Former detective-turned-MP Ross Meurant was one of four policemen who, in August 1970, searched the Crewes' property after Jeannette Crewe's body had been found with a bullet in the head. Meurant had searched the garden by the back gate in which the infamous cartridge case was later found.

Now Meurant writes in North & South magazine's October 2011 issue:

I was allocated the mundane task of searching a strip of garden near the house, but which turned out to be critical. I failed to find a cartridge case, even though I'd been meticulous ... I would confirm I had been thorough and methodical, on my hands and knees at times, and that I used a sieve on occasions when searching the strips of ground that included the specific spot where [Detective Sgt] Mike Charles subsequently found a cartridge case.

Meurant's stance would be the first deliberate indication by a police witness that the garden had been sieve-searched. It seriously undermines the police defence against the "planting" accusation.

It is significant new evidence.

So are the observations relating to the case for murder that could have been put against Len Demler.

The requirement laid down by Commissioner of Police Robert Walton in 1981 for the re-opening of the case was "new evidence". That requirement is now completely satisfied. There is no longer justification to not reopen New Zealand's most celebrated unsolved murder case. The new evidence demands it.

The Royal Commission shone a revealing light on the gulf between inquisitorial and adversarial procedures.

The Commission's inquisitorial process allowed those asking the questions and making the analyses to do so from a solid knowledge base unimpeded by decisions as to what should and should not be known to the jury, or to the other side.

The evidence did not "belong" to either side. Their only purpose was genuinely to discover what had happened. Nor was their pride and self-esteem on the line. There was nothing between them and the truth except their ability to find it.

The report of the Royal Commission painted an indelible stain on the country's justice system, but that outcome is vastly overshadowed by the system's response. There lies the greater scandal. I cannot imagine another country outside the banana republics and the now disintegrating Middle Eastern dictatorships that would not act on considerations of a properly constituted "Royal" Commission of Inquiry as serious as those reported by Justice Taylor and his colleagues after eight months of intensive examination.

New Zealand, presently the "least corrupt country" on the planet, chose otherwise.

Why on Earth a New Zealand statute allows for the institution of Royal Commissions of Inquiry is beyond my understanding when their findings can be overruled by those whose status is threatened by them and who can determine and discard them as no more than valueless opinions. It seems to me we should either have commissions of inquiry that are real inquiries with real outcomes or concede they are just expensive charades and dispense with them altogether.

The underlying truth is about territory and about shame. The Royal Commission was only a Royal Commission, not a court of law.

Over the past 30 years the same response has been conspicuous in a multitude of high-profile miscarriages of justice in New Zealand. It is self-defeating. Rather than confirm the system's competence and integrity, it feeds the doubts of a once-trusting public. It ensures that books like this one will continue to be written here, sustained by a justice system capable of keeping the wrongly convicted wrongly imprisoned.

Extracted from The Case of the Missing Bloodstain by Keith Hunter (Hunter Productions, RRP $37.99)