In this edited extract from a new book by journalists Kirsty Johnston and James Hollings, former justice minister Jim McLay explains for the first time the pardoning of Arthur Allan Thomas.
In 1979, Arthur Allan Thomas had been in prison for nine years. He had settled into his routine at Pāremoremo of working in the garden. If he still had hopes of release, they must have been starting to fade. There was a note of this in a poignant letter he wrote to Minister of Justice Jim McLay, about this time: “I know little about justice and even less about politics but I do know that I am an innocent man and that although the pieces of evidence that convicted me have withered and fallen away over the years my convictions stand still as firm and undoubting as ever.”
McLay, a 34-year-old criminal lawyer from Auckland, had been leap-frogged into one of the top positions in Cabinet after the National Party had won re-election the year before under the magnetic but divisive leadership of Robert Muldoon. Muldoon ran his party and Cabinet like an All Blacks coach of the old school: he was disciplined, ruthless, and usually efficient.
McLay had Auckland pedigree – he was a half-brother of a previous attorney-general, Peter Wilkinson; his parents were friends of the recently appointed chief justice, Sir Ronald Davison. He’d joined the National Party at 18 and had worked his way up, winning the traditional Labour seat of Birkenhead for National in the 1975 landslide. On the liberal wing of the party, he was thought of as something of a reformer.
When McLay arrived in his ministerial office in the Beehive after the election, among the pile of congratulatory notes from friends and legal colleagues was the letter from Arthur Thomas and one from a well-known judge. After the customary recitation of praise, the latter ended with an unexpected rider: “I hope you will take note of the Arthur Allan Thomas case and his conviction.” McLay put the letters aside, but they stuck in his mind – he knew he would be hearing more about the Thomas case.
Author David Yallop’s open letter to the prime minister calling for an inquiry into the Thomas case had not been ignored. In late 1978, Muldoon had appointed a QC, Robert Adams-Smith, to inquire into Yallop’s key claim that he knew who the woman who had fed the [Crewes’] baby was. Some commentators believe Muldoon did this because he was “sympathetic” to Thomas, but Jim McLay believes it was just as much shrewd political management. Muldoon knew the case was continuing to attract public attention and concern. He chose the well-proven tactic of politicians and All Black first-fives when under pressure: kick for touch; in this case, announce an inquiry.
Muldoon chose Adams-Smith after being cross-examined fiercely by him in a defamation case. He wanted someone tough and robust. He certainly got it. Although a respected barrister, Adams-Smith soon showed he was not willing to stick to whatever brief justice officials might have had in mind for him.
In his report, he stated that he had interviewed the witness who had seen the woman on the Crewe farm, and had reviewed the evidence, and that he did not support David Yallop’s view of who the mystery woman was. So far, so good for the police. But he went further and asked to conduct a second report into the wider issues of the safety of Thomas’s conviction. “Safety” is a legal term, meaning, essentially, that a jury’s decision is correct – so an unsafe conviction is one where the jury has been discovered to have wrongly found someone guilty.
Asking for a second report presented a dilemma for the government. If it agreed, it could reopen issues and add fuel to the Thomas supporters’ case. If it denied the request, it could look as if the government was trying to cover up for the police. However, McLay says there was never any question a second report would be authorised.
Adams-Smith’s report, which landed on McLay’s desk in December 1979, was the beginning of the unravelling of the conviction of Arthur Thomas. It looked closely at key police evidence around the timing of the murders, interviewed witnesses, and found that the police assumption that the Crewes had been murdered late in the evening of June 17 [1970] was wrong.
The prosecution theory was that the Crewes had bought fish and chips on their way home from the stock sale in Bombay that day. This timing was important to the Crown’s case against Thomas, given that the only alibi he had for that time was his wife, Vivien. But Adams-Smith interviewed the owner of the fish-and-chip shop and found the man he had served had been wearing a blue suit (Harvey was at the stock sale in a farmer’s raincoat). He also argued that grease and traces of flour in the pots on the Crewe stove showed they had cooked flounder that evening.
Adams-Smith concluded that the murders could have been committed any time from around 5.30pm on June 17 to the early hours of June 18. Crucially, he concluded that he had real concerns about the safety of the Thomas conviction: “I feel that the Crown’s contention that it was late at night that Thomas came upon this couple by stealth is not warranted by the evidence as I believe it to be.
“This is so serious a flaw in the Crown’s case, a case based mainly on circumstantial evidence, that I have real doubt whether it can properly be contended that the case against Thomas was proved beyond reasonable doubt.”
What was McLay to do with this bombshell report? Much has been written about the decision to pardon Thomas, and most of that writing rehashes the view that it was Muldoon’s decision. Others have alleged that he was persuaded by a friend of the Thomas family who worked in his office. In fact, the truth is less conspiratorial, and much more interesting. Jim McLay has never spoken about what really happened. He does here, for the first time.
Thermonuclear” option
McLay asked for a meeting of an inner committee of the most senior Cabinet ministers: Muldoon, Deputy Prime Minister Duncan McIntyre, Minister of Housing Derek Quigley (the only other lawyer in Cabinet), and himself. He told them that any decision on the report had to be his, as Minister of Justice, and his alone. They accepted this.
McLay then convened a meeting of key officials from the Department of Justice. These included Deputy Secretary of Justice Jim Cameron and the powerful and long-serving solicitor-general, Richard Savage, who had written to Muldoon only days before, saying that to pardon or release Thomas “would make a mockery of our justice system”, a letter which McLay had not seen. The officials advised the minister that he had three options.
First, he could simply do nothing. If he concluded the report did not provide new or cogent evidence that threw the safety of the conviction into doubt, then he did not have to take action. Second, he could refer it to the Court of Appeal, which had the option of ordering a third trial. Third, there was what might be described as the “thermonuclear” option: he could recommend to the Governor-General that he exercise his prerogative of mercy and issue a free pardon. This would mean that Thomas would be deemed to have not committed the murders and could not be tried again.
It was soon obvious to McLay which option his senior officials favoured. One of them told him, “You realise, of course, minister, that there can’t be another trial?”
“Why do you say that?”
“Because much of the evidence has been destroyed. And particularly the highly controversial cartridge case,” the official replied.
Exactly what was running through this official’s mind when he told McLay that we will never know, but given the tone of the department’s dismissal of Thomas’s previous pleas for a rehearing, it is a fair bet that at least some senior officials wanted the case buried forever. Effectively, McLay was being boxed into a corner; his officials had already looked closely at the case and had decided no action was needed, there was no real possibility of another trial, thus no point in referring it to the Court of Appeal, and the third option was obviously regarded as so farfetched as to barely warrant mention.
McLay advised his officials and the Cabinet committee that he would return to Auckland over the weekend to write a recommendation on what action to take. He gave no indication as to which way he was leaning and officials clearly thought they had no cause for concern.
Initially, McLay recalls, “I was still inclined to recommend that it go back to the Court of Appeal. And I started to write, but it was a bit like a compass. Each time I tried to steer it towards a reference to the Court of Appeal, the compass needle would swing back to magnetic north. I spent quite a lot of time writing, and rewriting, until I realised this wasn’t making sense, so I cancelled an engagement and returned to Wellington. I felt I needed to be there, with access to officials, to get it right.”
On the afternoon of Sunday, December 16, McLay typed out his recommendation: a free pardon for Arthur Allan Thomas. The first and only free pardon of a convicted murderer ever given in New Zealand, and one of only four ever given for any offence.
Untenable to do nothing
The next morning, McLay had a standing meeting with officials and briefed them on the options, without telling them what he was planning. “I worked through the reasons, and I could see that some of them were coming to the same realisation, but not all of them. Remember, the solicitor-general is the person responsible for upholding convictions … likewise there were officials in the Justice Department who took the view, fairly understandably, that this man has been twice convicted by a jury, and each time the jury has reached a decision in a very short period of time, [so] we shouldn’t be interfering with that. I was perturbed particularly by the fact that it wouldn’t be possible to mount another trial.”
Of course, one option he could have taken, and one some of his senior officials clearly favoured, was to do nothing. But McLay felt this wasn’t tenable either. “There had been a number of inquiries, two Court of Appeals, a referral to the Court of Appeal for advice, and every time the government had received these reports, no matter where they came from, they always accepted and acted on them. And if we did nothing on this one, what was different about this report? Particularly one that said the case may not have been proven beyond reasonable doubt? Why accept all those previous reports and act on them when they were against Thomas, and now here was one which went the other way and we might be ignoring it? So I didn’t think it was viable to leave it sitting on the desk and say there was nothing of consequence here. I had to dismiss that option. What I was doing was gradually working towards a conclusion, and my writing was taking me to that conclusion.
“But understand, I hadn’t come to the Thomas case with any great feeling that injustice had been done, or for that matter that he had been rightly convicted. Other than the standard lawyer’s mantra of two juries, all the evidence has been tested, who am I to interfere? The starting point probably had to be, the man’s been convicted twice, don’t interfere, and I had to have some reason to interfere … but as I started writing a memorandum justifying one course of action I found that it steered me towards another course of action.
“I suppose there was always this lingering question: Why has the government received all these reports … every time the government acted on the report and accepted the recommendation. Suddenly here was one that said otherwise, said something different. And to reject it didn’t make a lot of sense. That could have justified sending it off to the Court of Appeal again. And Thomas’s supporters – and this didn’t influence me, really – could have justifiably said, why throw him back on the system that has denied him justice until now? There had to be some basis for the action that I recommended, and the basis was a report has been received, it says these things.
“There was no guarantee the court would recommend another trial; they might have said no further action required. So there was no certainty a new trial would be ordered. And if there was a recommendation for one, there couldn’t be a new trial.”
It is tempting, looking back, to attribute to McLay a sense of historical mission, or even a dramatic moment of personal revelation, such as that romanticised by great historic cases of injustice, like the Dreyfus case. He was certainly aware of those cases. But he says he didn’t think that at the time; he was simply trying to make the right decision on the issue before him.
A more seasoned politician might have taken a more institutional view. McLay feels vindicated by the Royal Commission of Inquiry that would be held the following year, and the subsequent 2014 police review of the investigation. “I took what I believed to be the appropriate course of action. Everything that happened thereafter [the various inquiries] justified it in my mind,” he says.
Is he proud of his contribution to Thomas’s pardon? “Not really. I was taking the only course of action that I could see could be justified. Pride is not the right word for it. You do what you have to do.”
Urgent and important
Back in his office in the Beehive, McLay arranged a meeting with the Cabinet committee and told them what he had in mind. He then arranged with Deputy Secretary of Justice Jim Cameron to draw up the pardon documents. Next, it was Cabinet’s turn. McLay arrived part way through the Monday-morning meeting. Muldoon interrupted proceedings, saying there was an urgent and important matter to deal with.
It should have been a moment of high drama: the Minister of Justice reading his decision on an issue that had divided the country. No one except the three members of the Cabinet committee and McLay knew what he had decided, but just as McLay began to read, one person had a coughing fit so severe no one could hear him speak and only after it subsided could McLay tell Cabinet. There was no vote. It was not Cabinet’s decision to accept it or not; all it could do was note it.
McLay then excused himself to head across town to Government House to lay his recommendation before the Governor-General, as is the process under New Zealand law for a pardon. It was still possible that the Governor-General might refuse to accept his minister’s recommendation. When McLay was ushered in to the formal sitting room and handed his recommendation to Sir Keith Holyoake, he started to wonder if this was going to be one of those moments.
Holyoake was still a huge political presence. As New Zealand’s most successful prime minister – he had won four straight elections in the 1960s for National– he was an urbane patrician and a wily politician. Holyoake took the recommendation from McLay and began to read. Minutes went by. McLay must have looked at his watch – he had hoped he would be back at the Beehive in time to brief Muldoon for the post-Cabinet press conference at 1pm. But still Holyoake read on. Finally, after what seemed to McLay an aeon, but which he later realised was only about 15 minutes, Holyoake looked up and started to ask questions.
McLay felt concern rising. What was Holyoake doing? Was he going to refuse to sign the pardon? After all, he had been the member for Pahiatua, Harvey Crewe’s home town, and had known him personally. But it turned out Holyoake was not of a mind to turn it down. The questions were mostly about political management. Was he aware of the fallout this would cause? McLay assured him he was.
Good. The public would have forgotten all about it after Christmas, Holyoake assured him. Finally, he said, “Good luck, Jamie, you’re going to need it.”
McLay dashed back to the Beehive and briefed Muldoon, who then took the unusual step of inviting him to the post-Cabinet press conference in the Beehive, where Muldoon announced the pardon. So, today, the public knows only that Muldoon announced the fateful decision, in a soundbite played repeatedly ever since: “Cabinet has endorsed the recommendation of the Minister of Justice to pardon Arthur Allan Thomas for the conviction of the murder of Harvey and Jeannette Crewe.” What the public didn’t know was that Muldoon had got it slightly wrong: Cabinet had not endorsed the decision, rather it had only noted it.
It was one of those moments that defined the end of a decade. And the backlash wasn’t long in coming. Members of the Cabinet, visibly angry, told McLay he had made the wrong decision, and that it threatened to bring down the New Zealand justice system. Judges called it “blatant political interference”.
Back in his office that afternoon, the phone on his desk rang. “What the hell do you think you’re doing?” or something to that effect, he remembers the caller asking. McLay will say only that the caller was a senior judge. However, two very senior judges had already made public statements. Sir Richard Wild had retired as Chief Justice two years earlier and had said publicly that the Thomas affair was a threat to the legal system. Earlier, in 1972, then president of the Court of Appeal, Sir Alfred North, had accused Thomas supporters of impropriety. [Thomas’s lawyer] Peter Williams considers both judges “breached the long-held custom that judges should keep their mouths shut on political matters and concentrate on their judgments”.
In phoning to express his displeasure, it was in fact the senior judge who was out of line. New Zealand follows the Westminster model of separation of the judicial (court) and executive (Parliament) branches of government. Neither is allowed to interfere with the other’s decision-making. The judge appeared to be doing just that. Perhaps he thought he could browbeat the young minister, or rely on his personal connection, seeing he’d known McLay for a long time.
McLay listened but gave no indication he would be changing his mind. He knew the law, and he knew he was on solid ground.
The Crewe Murders: Inside New Zealand’s Most Famous Cold Case, by Kirsty Johnston & James Hollings (Massey University Press, $45) is out now.