Arthur Thomas, the presumption of innocence, and the dangers of name suppression

If anyone is entitled to the presumption of innocence today, it is Arthur Allan Thomas. In 1971, and again at a re-trial in 1973, Thomas, a Waikato dairy farmer, was wrongly convicted by New Zealand courts of the murders of Jeanette and Harvey Crewe. He spent nine years behind bars for a crime he did not commit. In 1979 the frame-up finally fell apart, thanks to the efforts of a public campaign waged on his behalf by the Thomas Retrial Committee. He was granted a royal pardon by special decision of the Prime Minister at the time, Robert Muldoon – his conviction was quashed, and later he was paid just under a million dollars in compensation for the injustice.

A Royal Commission of Inquiry found in 1980 that the police had planted a cartridge case from Thomas’s rifle that was a key part of the incriminating evidence used to convict Thomas, describing the fabricated evidence as “an unspeakable outrage“. The Commission concluded that Detective Inspector Bruce Hutton and fellow detective Len Johnston had planted the evidence, and stated unequivocally that neither Mr Thomas nor his rifle was involved in the murders. No criminal charges were ever brought against the two detectives, nor was anyone else ever charged with the murders of the Crewes.

Arthur Thomas
Photo: Chris Hillock, Stuff

Today, at the age of 81, Arthur Thomas finds himself once again before the courts, facing historical charges of rape and indecent assault involving two women. Thomas has pleaded not guilty and elected trial by jury. His name suppression order lapsed on 18 December 2019. The names of the complainants have been suppressed and no details of the allegations are publicly known.

Whenever women make an accusation of rape or sexual assault, it needs to be properly investigated and if there is sufficient evidence, charges laid. This case is no exception. Nothing in Arthur Thomas’s past life should give him immunity from facing such charges. Nonetheless, without knowing any of the details of the charges, there are sound reasons to be sceptical of this prosecution, and to be on high alert that a second frame-up of Arthur Thomas may be under way.

The police have never accepted the finding of the Royal Commission that Thomas was framed for the murder of the Crewes. On the contrary, over the years they have maintained a low-key but sustained effort to reassert the idea that Thomas was the real murderer, and to rehabilitate the detective responsible for the frame-up from the damning indictment of the Commission of Inquiry. They have been aided in this effort by the fact that no charges were ever laid against Hutton and Johnston. Both men are now dead.

Detective Inspector Bruce Hutton in 1970. Photo: Stuff

When Bruce Hutton died in 2013, uniformed police formed a guard of honour, and Deputy Police Commissioner Mike Bush gave a eulogy in which he described Hutton as having “integrity beyond reproach.” When Thomas protested this statement, pointing out that the Royal Commission had found that the detective had committed serious crimes, the Police Commissioner Peter Marshall, the country’s highest police officer, stood by the comments of his deputy. Bush himself was appointed Police Commissioner in 2017.

In 2010 Rochelle Crewe, daughter of the Crewes who was an infant at the time her parents were murdered (and who had figured in the case, because she was found alive and well several days after the murders, leading to speculation about who had fed and cared for her in the interval) called on police to re-open the unsolved case. This call was generally supported by Arthur Thomas’s family. The police refused to do that, citing the lack of any new evidence – although Thomas’s supporters point out that they could use DNA technology which was not available at the time – but instead opened an inquiry into the conduct of the original inquiry.

This internal police ‘review’ then became a tool to be used once again to point the finger at Thomas and some of his family members. The police conducting the review demanded ­­– in 2013, more than 40 years after the murders! – that Thomas and other family members provide an alibi for the night of the murders. One must wonder what that had to do with examining how the police conducted the original inquiry. (For a detailed account of this probe against Thomas’s family, this 2013 article in the New Zealand Herald provides a textbook example of a police fishing expedition. It makes chilling reading.)

These ongoing police probes have led family members and other supporters of Arthur Thomas to continue their campaign in his defence, presenting a petition in February 2019 for a formal apology from the police for the original frame-up. The fact that with the recent sexual assault charges against Thomas the names of his accusers are suppressed should give further pause for thought, and can only add to the suspicion that another frame-up may be afoot.

It was a surprise to me, as I followed the case of the murder of Grace Millane a few months ago, to learn that name suppression in criminal trials is a routine practice only in New Zealand. (There was even a brief period in 1975 when all accused persons were automatically granted name suppression in New Zealand courts up to the point where they were found guilty.)

The Grace Millane case was remarkable for the heavy use of name suppression. Not only was the defendant’s name suppressed, but also those of many witnesses for both prosecution and defence. Contrary to usual practice, the murderer’s name remains suppressed even after his conviction. Moreover, the reasons for the suppression order were explicitly suppressed themselves, and the order was set to last “until the court decides,” despite the fact that it is spelled out in the name-suppression law that the court must explicitly state both the duration of any order and the reasons for it. Apart from those of lawyers and some expert witnesses, just about the only name reported outside the courtroom was that of the murdered woman herself. This amounted to a major extension of the usual practice of name suppression.

The result is a strong tendency towards trials in semi-secret, away from the glare of public scrutiny, based on anonymous testimony by secret witnesses (anonymous outside the courtroom, at least.) Yet it is precisely this kind of public scrutiny that has often been key to winning justice in the courts.

Twice, the legal protections against miscarriage of justice provided by court procedure failed Arthur Thomas. All the re-trials and appeals failed him. In the end, the only thing that brought a measure of justice in his case was the trial in the court of public opinion – the tireless campaign in the press led by reporter Pat Booth, the independent investigations by Jim Sprott and others who saw the flaws in the evidence and were unconvinced of Thomas’s guilt, the broadly-supported public meetings organised by the Thomas Retrial Committee, and finally the book by David Yallop exposing the frame-up – these were the only things that broke down the miscarriage of justice.

Pat Booth (left) talks to Ray and Allan Thomas, members of Arthur Thomas’s family. Booth’s investigations were key to exposing the frame-up of Arthur Thomas. Photo: Auckland Star

Secrecy and suppression orders stand in the way of such campaigns and make further miscarriages of justice more likely to happen and more difficult to overturn. The sweeping use of name suppression for both defendants and witnesses smoothes the way for political frame-ups. This constitutes a serious threat to the political rights of the working class.

Name suppression orders are usually justified on one of two main grounds: firstly for the protection of innocent parties connected to the case, especially children. For example, in a case of sexual abuse of a child, where identifying the defendant would quickly lead to identifying the child and their siblings, who should be protected. These grounds may sometimes have some validity.

More commonly, name suppression is justified on the grounds that revealing the name publicly may subject the defendant to extreme hardship, or that it might cause a miscarriage of justice. Criminal lawyer Marie Dyhrberg argues strongly for both of these justifications. “People who have reputations – who actually have something to lose –” are, in her view, “grossly penalised,” more so than the ordinary person, “for having achieved something in the community and for being successful.” … “Suppression at least tempers the danger that [the jury has] been participating in gossip, innuendo and pre-judgment if someone is named early in the piece,” Dyhrberg says. “I always use the expression ‘fair trial rights trump all’.”

Both of these grounds are almost invariably spurious, in my opinion, and imply a high degree of contempt for the people who make up juries.

Marie Dyhrberg QC

As Dyhrberg’s comments indicate, there is an obvious class bias with which the judgment of ‘extreme hardship’ is applied. ‘Prominent people’, celebrities, politicians and the like – people ‘who actually have something to lose,’ in Dyhrberg’s words – are deemed to have reputations and personal integrity that needs protecting, and well-paid professionals are deemed to have careers that need protecting, while the rest of us are assumed to have neither of these things.

Name suppression also does nothing to address the real problem in relation to reputations, which is the inordinate power of large capitalist businesses, especially the opinion-moulding businesses of the news media, including social media, to wreck reputations and trample the personal integrity and careers of individuals in the dirt. They are free to do this, either in pursuit of their markets or sometimes for sordid political aims, and the ruined individuals have no right of redress other than expensive legal actions for defamation. This problem can’t be resolved by name suppression or any other form of censorship, but only by placing these media corporations under public ownership and control.

The same applies to the grounds of miscarriage of justice, the grounds that were invoked in the Grace Millane case. Were it not for economically-driven or politically-motivated media campaigns of misinformation, there would be no way that public knowledge of a case, including the identity of the defendant and witnesses, could produce a miscarriage of justice. On the contrary, open justice could only have a corrective influence. For example, in my opinion the very high public interest in the Grace Millane case was a significant factor in overcoming anti-woman bias and winning the conviction needed – despite the sweeping name suppressions.

Most importantly, name suppression undermines the presumption of innocence of accused persons. The presumption of innocence is not merely a legal formality or a court procedure. It is an important democratic right which needs to be upheld, a right which places the burden of proof on the prosecution and thus gives a measure of protection against arbitrary legal persecution by the state. A name suppression order which assumes that an accusation alone is sufficient to damage someone’s reputation is also assuming that ‘where there’s smoke, there’s fire,’ and therefore, that the accused person is not quite ‘innocent.’

(I know from personal experience that defence lawyers often warn accused persons that if they speak out publicly to deny charges against them prior to the court hearing the case, they risk being held in contempt of court under ‘sub judice’ rules. This ‘sub judice’ gagging order is another routine practice which undermines the presumption of innocence.) Suppressing the names of witnesses likewise undermines the accused person’s right to confront their accuser in the court of public opinion.

Pua Magasiva and Lizz Sadler at Television Awards 2017

Name suppression is often presented as a measure to protect accused persons and their families. The case of anti-woman violence by actor Pua Magasiva shows the degree to which it can have exactly the opposite result. In December 2019 the name suppression order on Pua Magasiva was lifted, after his widow Lizz Sadler wrote to the Court making this request. Magasiva died, apparently by suicide, in May 2019.

Sadler’s letter was quoted at length in the judge’s ruling. The letter (parts of which are quoted in this article) gives us a clear example of the way in which court-ordered name suppression reinforces and intensifies the pressures on women to keep silent about violent assaults by their partners.

Pua Magasiva, an actor in television and film well known in New Zealand, was granted name suppression, at his own request, when in April 2019 he was sentenced to 70 hours of community work and six months supervision for assaulting his wife the previous year. After initially accusing his wife of attacking him, Magasiva had eventually admitted the charge and expressed remorse. He was initially denied name suppression at his sentencing, but his lawyer indicated they would lodge an appeal against naming him, saying his wife and child would suffer extreme hardship. Interim suppression therefore continued.

Stuff reports that in her December letter “Sadler told the court that throughout the case, Magasiva had been “incredibly worried” about losing his acting career. Desperate to keep his name secret, he convinced his wife to support a ban on naming him, even making preparations to go to the High Court to seek permanent name suppression… “I pursued this to protect my husband’s career and particularly because he was still drinking and I was terrified his anger would return,” she wrote. Sadler had previously told the court her young daughter was “unaware of what took place” and would be very upset if she found out. But in her December letter, Sadler admits her daughter was in fact witness to Magasiva’s violence.”

Two weeks after the sentencing, there was another violent incident. “The night of my husband’s passing, his drinking and anger had returned – it ended with me in hospital and him taking his life.”

“Now it is very evident that if I had told the truth in the first place and not been silenced then, Pua may have gotten the help that he needed and I could have had a voice. The lies and pressure to maintain his image has placed me under immense stress and placed me at further risk of his violence,” Sadler wrote.

“I do not want anyone to be hurt and do not want to dishonour Pua’s memory, but I also do not want to be revictimised by being forced to hold the truth alone in silence. I’m still healing from this offending behaviour and his death, which occurred after a night of anger and further assault. This is my pain, this is my truth and I need to have the ability to speak freely in order to get through this. I cannot do this in silence. I ask please that the silence end.”

Not only in this case, but in many others as well, the silence and secrecy of name suppression needs to end. The working class has a class interest in fighting for open justice and vigorously defending the presumption of innocence.

One response to “Arthur Thomas, the presumption of innocence, and the dangers of name suppression

  1. The well publicised views of the prominent QC must be taken with a grain of salt. It is a criminal barrister’s duty to defend an accused and concealing his her identity is part of the strategy to winning a jury acquittal. Most (if not all) of the Bench have the same background

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