High Court rules against Thomas pardon interpretation

Press, 30 August 1980, Page 1

High Court rules against Thomas pardon interpretation

PA Auckland Three High Court judges have ruled that the Royal Commission of Inquiry into the Thomas case wrongly interpreted the effect and meaning of the Arthur Allan Thomas pardon.

The Court found that the commis'ion . was wrong in law when, on the basis that M r Thomas was deemed to be innocent of the Crewe murders because of his pardon, it refused to hear evidence which tended to show his involvement. In the’" reserv' decision, the full Court, consisting of Mr Justice Moller, Mr Justice Holland and Mr- Justice Thorp, suggested the commission should- hear all evidence relevant to the terms of reference. The Police Association, one of the applicants for the High Court review, wants the commission to hear all the evidence again, in the context of the Court’s decision.

Mr Kevin ’'van, one of the lawyers representing Mr Thomas at the commission’s hearing, said he was reliev 1 the commission was still able to continue its duties. Asked to comment on the association’s attitude that the full Court’s decision was . a vindication of the applicants’ case, Mr Ryan said: “The British claimed that Dunkirk was a victory.”

It is believed to be the first time in Britain, Australia, or New Zealand that a High Court had reviewed the actions of a Royal commission. The four parties who brought the proceedings were the association, the Police Officers’ Guild, former Detective-Inspector Bruce Hutton, and Detective Senior-Sergeant Murray Jeffries.

Their Honours first considered whether the High Court had jurisdiction to interfere with the commission and its workings. They referred to a Court of Appeal decision which, they said, established that

a commission of inquiry was subject to the court’s supervisory powers. “It makes no difference whether the particular commission was created under the Royal prerogative or by the Executive under a statutory provision.” “The Crown,” their Honours said, “cannot dispense with the laws of the land or the execution of those laws. The Crown clearly cannot appoint a commission, or anybody else, to act contrary to the law. If the Crown is subject to the law, as it is, then a delegate body of the Crown must likewise be subject to it.”

“The commission has duties towards certain persons and that being so, we are satisfied that the court has a duty to ensure that those persons are adequately protected.”

They said the High Court had a three-fold jurisdiction in the present proceedings.

—To ensure the commission acts fairly to persons likely to be aggrieved. — To prohibit the commission from acting in excess of its jurisdiction (such as by committing errors of law which prevent it from carrying out its appointed task or by rejecting evidence it should take into account). —To exercise the powers given to the High Court under the Judicature Amendment Act.

After dealing with the preliminary matters, their Honours considered the true meaning and effect of the Thomas pardon.

In his submissions to the High Court, Mr D.’ L. Tompkins, Q.C., for the applicants, said his clients’ principal complaint was that the commission had misconstrued the effect of the pardon and as a result had misconceived the scope of its inquiries.

Section 407 of the Crimes Act provides that “where any person convicted of any offence is granted a free pardon . . . that person shall be deemed never to have committed that offence.” “In the terms of the pardon Thomas is to be considered to have been wrongly convicted, and he cannot be charged again with the murder of either Harvey or Jeanette Crewe,” their Honours said.

But they said the terms of the pardon did not give rise to any inference as to the factual innocence of Thomas as might be inferred from a recital in the pardon that some third person hud been found guilty of the crimes and Thomas’s convictions had accordingly been proved

not to have any basis in fact.

Their Honours pointed out occasions on which the commission had asserted that Thomas was factually innocent. One was during a television interview in which the commission’s chairman, Mr Justice Taylor, described the effect of the pardon. He said: “. . . And to me that means in law and in fact that he (Mr Thomas) did not do it: he is innocent.” Their Honours said the fact of the pardon was irrelevant to the ambit of the commission’s inquiries. The view in legal circles is that the decision will affect the range of evidence the commission may hear and that evidence so far excluded will now be admitted.

The finding that the commission misinterpreted the effect of the pardon may have a bearing on the commission’s findings.

A counsel for the commission, Mr H. C. Keyte, said members of the Royal commission would not know what the full Court’s decision was until tomorrow after they had arrived in Auckland to resume the commission’s hearing on Monday. The Prime Minister (Mr Muldoon) said last evening the attitude of the Government was that “the law must take its course.” “It is not up to us to influence it in any way.” Mr Muldoon said. “The police have taken certain steps which they are perfectly entitled to do.

“No doubt the commission will take due note of the comments made by the judges. The law simply has to take its course.”

Their Honours said the commission’s error in respect of the pardon was of major significance “but it is a pity they (the applicants) did not apply to the commission to state a case to this Court for the purpose of determining that very question, a proceeding which would have involved only a fraction of the time and expense that' the present case has occasioned.” They refused, to make. a declaration that the police be not restricted in any way from pursuing such inquiries as they think fit into the deaths of Harvey and Jeanette Crewe, whether or not such inquiries might tend to implicate Mr Thomas. “It is of course perfectly clear that the commission has no more power than this Court to instruct the police as to the manner in which they should carry out their statutory duty to investigate unsolved crimes,” their Honours said.

They also declined to make an order preventing the commission from continuing its inquiries on the ground that it was biased. Mr Tompkins, they said, had made it clear that the applicants’ case was limited to bias in the sense of predetermination of issues and in no way involved any per-

sonal criticism of, or any allegation of, bad faith on the part of any member of the commission. "We do not find that bias :by predetermination has j been established,” they said. They noted that the essenI tial purpose of a commission I was to obtain information [and accordingly its function ' and mode of operation was j essentially inquisitorial and j informal. i It was also entitled to ob- ! tain its information where i and in the manner it thought ! most appropriate to its I function. “Although a number of rulings as to the admissibility of evidence were made 'against the police, there are ■ many instances where the ■ commission, on reconsideration, has reversed such rulings and permitted evidence

Ito be led; and there are many; [other occasions on. which it' [allowed evidence to be ad-[ : duced which, if their criti-[ I cised interpretation of the j pardon had been rigidly apI plied, it would have been exi eluded,” their Honours said. I “The observer would cer- | tainly have noticed the rigor-! [ous manner in which police! i witnesses were cross-; ■ examined by the chairman,”! [they said. “But no doubt thei [observer would also have re-! :gard to the nature of the in-[ [quiry and to . the fact that' ■those witnesses were gener- ! [ally much more experienced! : in'giving evidence than the (average citizen.” ■

The Court then went on to consider the application that three of the commission’s decisions be quashed, set aside or declared contrary to law, or that they be referred back to the commission for consideration. Their Honours held that none of the three pronouncements could properly be classified as a “report” as the term was used in the. terms of reference. ' “We are content to let the. matter stand on the basis that! the assurances latterly given by the commission will be implemented by its giving to the police, before any final! determination is made, fair! advice of any allegation against any present or past member of the force and also giving to any such person a proper opportunity to rebut it.”

I They said the commission [should give further con[sideration to the advisability of receiving further evidence concerning the cartridge case, exhibit 35Q, and whether or not police officers had acted properly. They granted a'declaration —That the Thomas pardon in no way limits the ambit of the commission’s inquiries under its terms of reference. —That it would be wrong to exclude otherwise relevant ' evidence upon the grounds that it might tend to, implicate Mr Thomas in the; deaths of the Crewes or that; it is circumstantial or in-l direct.