by Antonio Buti
‘I was only nine years old.’
O’Connor objects, asking how a witness can answer a question like that.
Justice Gray intervenes. ‘I will allow the question and the answer has been given.’
Walsh reports, ‘I’m not sure there was an answer.’
‘The answer was “I was only nine years old”,’ His Honour tells him. If Walsh didn’t get Hilda’s point, Justice Gray certainly did.
Finally, Walsh calls it a day with this last question. ‘Insofar as you have been with Bruce from time to time since you first saw him after his return to Victor Harbor, you had spoken to Bruce about Ngarrindjeri culture?’
‘Yes, but we don’t go into that in a great way. We don’t go into our culture too much. The boys were taught fishing, hunting, things like that because our father was half-caste. How could he teach us Ngarrindjeri culture?’
Walsh has fallen short and Hilda has ended the battle with her own parting shot. And her credibility intact.
Before O’Connor introduces her next family witness, Walsh sets out to negotiate with Justice Gray a short ceasefire while he shores up the redoubt to which his defence team might need to retreat if the adversarial battle goes against them.
Unless Walsh can persuade the court that his client has not waived legal professional privilege—and he is appealing Gray’s 26 September 2005 decision in order to do so—his redoubt loses its most significant fortification. To shore this up, he turns to the Limitations of Actions Act to invoke unreasonable delay in asserting a claim. Section 35 of the Act stipulates that a plaintiff must start any action founded on tort within six years after the date of the cause of action. Section 36 requires that a plaintiff must commence any action for personal injuries within three years after the cause of action. Although section 45 specifies that the time does not begin to run against a plaintiff until they have reached the age of eighteen, time ran out for Bruce a long time ago.
In a series of interlocutory hearings, Richardson, on Bruce’s behalf, has sought an extension of time to bring an action. Bruce claims that the defendant’s behaviour caused the delay in him bringing the action. He now asks the court to use its discretion in the interests of justice to ameliorate the hardship which the inflexibility of the Act imposes. He is relying on section 48(3), which provides that a court must be satisfied either that the plaintiff discovered a new material fact within twelve months of instituting proceedings or that the conduct of the defendant caused the plaintiff’s failure to issue proceedings in time.
After listening and prodding counsel from both sides on various aspects of law, His Honour adjourns the court at five past four on Friday 18 November 2005. It will reconvene on Monday at half past eleven. But not in the courtroom in Adelaide.
Monday is a daytrip, first to One Mile Camp, then to Three Mile Camp. Here the lawyers, Justice Gray and his Associates, with Bruce, can look in a southwest direction towards the Dollard farm where Joe Trevorrow worked from time to time. Then it’s on to Lake Bonney Reserve, about two to three kilometres west of Camp Coorong. It is a useful visit for Justice Gray, helping him to appreciate, with the additional aid of photographs taken at the time when the family lived there, the attachment to home that underscores Hilda’s testimony and the sense of belonging of which, she has said, Bruce was deprived. The trip ends mid-afternoon with a visit to Camp Coorong, providing a context in which His Honour can place the evidence of George and Tom when they testify.
When George takes the witness stand he recalls fondly, as Hilda did, their family life at One Mile Camp, with Thora as a loving and competent mother and Joe as a caring father and a good worker, with firm rules on cleanliness, discipline and learning. He agrees that Joe occasionally drank alcohol but rarely to excess. And when he did, he was quiet and peaceful—never violent. Nor did he give his children alcohol, although George does remember one occasion, while living at home, when he had a glass of stout.
Burnside leads George through an account of his life after he left home, which was then at Three Mile Camp, where the family spent most of their time after Bruce had been taken away. George speaks frankly of his problems with drink, his contacts with law enforcement and his eventual realisation that, for his family’s sake, he needed to change his life.
‘Would you tell His Honour what that time was and what you did?’
‘After I got married and started a family of my own, I thought it was time to shape up, and that’s when I started to get a couple of good jobs and carried on from there.’
Justice Gray interposes: ‘What were those jobs?’
‘I think the one that changed me a lot was when I started work with the Education Department and there was a lot of responsibility there for young people.’
‘When did you start that work?’
‘That was in the eighties.’
‘How did you come by that job?’
‘I think I applied for a teacher’s aide job at the local school and I sort of made my way up from there, and after a short time in that job I became a person in charge of the eastern region, in charge of all the education workers through the eastern region, so it was busy times.’
Burnside resumes his questioning. ‘Since you turned your life around, or rather got more serious about things, have you had much contact with Bruce?’
‘No, still not a lot of time with Bruce. He comes over sometimes, but very rarely.’
‘How do you get on with him when he comes over?’
‘We talk but it’s not the same. You haven’t got so much to talk about. It’s been very difficult over the years even when he has been home. The biggest problem has been when he is at the family table and it might be Christmas and you start talking about what you did years ago. So you’re always watching your mouth when you’ve got him around because you realise sometimes when you open your mouth that he wasn’t there, and you might be talking about important times, so it’s hard to have a lot of discussion when he is around because you feel like you’re hurting him.’
Justice Gray again interrupts: ‘What would you call an important time?’
‘It could have been the time when there was a major birthday or a death, or something like that, and you know he wasn’t in attendance for something important.’
His Honour has what he wants; he nods to Burnside. The significant point is the importance of family and Burnside now wants to emphasise how belonging to family has helped George succeed in life. He asks, ‘How does he seem to you; have you tried to form a closer relationship with him?’
‘Yes, I think we have tried.’
‘Has that worked, to your assessment?’
‘From my assessment, no.’
‘Why?’
‘I don’t know.’
‘Does Bruce strike you as a very resilient person?’
‘No.’
In cross-examination, Walsh tries, as he did with Hilda, to suggest to George that his recollections of his childhood might be unreliable. It is a gruelling cross-examination but, other than faulty recollections of specific dates and times, George’s testimony holds up well.
Burnside, in re-examination, has a few final questions: ‘When you were living at Three Mile, were you aware of welfare officers coming from time to time?’
‘Yes, we were aware of them.’
‘What would you do when the welfare officers came?’
‘We did run out into the back, onto Mount Sandy in the back island until the time when they had gone.’
‘Why did you do that?’
‘Because it was just through fear, I guess.’
Burnside is finished, but George has the last word. ‘Thanks for your patience. I did have a lot of ups and downs in my early life but I wouldn’t have pulled through it if it wasn’t for my family. Thank you.’
A thank you to the court for its patience? Or a thank you to his family for their love and support? Justice Gray can consider that later.
Although Burnside had scheduled Tom to follow George, heal
th and travel considerations have obliged him to postpone his appearance until Wednesday. Instead, Justice Gray will have an earlier-than-planned opportunity to hear what Richardson has to say about privilege, statutes of limitations and pleas for extensions of time. O’Connor, not Burnside, will lead the examination in chief.
The skirmishing with Walsh begins early over the dates and natures of two separate bundles of documents, the contents of which, the State will argue, show that Bruce had an earlier opportunity to begin an action than he claims.
O’Connor asks Richardson, ‘Was there a difference in the nature of the documents that you received in that second bundle in terms of the significance for a claim?’
Before she can answer, Walsh objects: ‘The documents will speak for themselves in terms of the significance.’
O’Connor does not wait for the ruling from the bench, which she knows will uphold Walsh’s objection. ‘I will withdraw the question. Did you give Mr Trevorrow advice when you received the second bundle of documents——?’
Walsh abruptly intrudes: ‘The witness already said she didn’t.’
O’Connor fires back: ‘I haven’t finished the question,’ and picks up from where Walsh had interrupted, ‘——about his taking action against the state government in relation to his removal?’
Richardson answers, ‘Yes, I did.’
Walsh doggedly pursues the issue: ‘What’s the relevance of that topic?’
His Honour decides it is time for him to separate the two skirmishers. ‘Why do you say that is relevant?’ he asks O’Connor.
O’Connor lays it out clearly. ‘Your Honour might recall the cross-examination that came at the end of the evidence of Mr Trevorrow, where it was put to him by the Crown that at least the inference is that he knew or had knowledge of the potential for a claim against the state government earlier than the time at which the issue would become relevant to him in terms of the information that Ms Richardson says she gave him on that date.’
Justice Gray has what he wants: a clear indication of where the battlelines are drawn. But Walsh will not retreat. Patiently, Justice Gray hears him out and then rules. ‘I will allow the question.’
The court stenographer rereads the question and Richardson responds. ‘Yes, I provided him with some advice that was to the effect that there was no information contained——’
‘Just a moment!’ Justice Gray has leapt into the fray again. ‘I think, if you object,’ he says to Walsh, ‘but I don’t think this is responsive to the question.’
Walsh does not need a second invitation, ‘Yes, I do object.’
His Honour to Richardson: ‘If you just respond directly to the question.’
O’Connor tries to grab the initiative again, ‘The question I would then ask——’
Justice Gray is too quick for her. ‘Have the question reread please.’ The stenographer obliges and Richardson answers, ‘Yes.’
O’Connor sees her chance to grab the initiative that Justice Gray has just a moment ago denied her. ‘What was that advice?’
Walsh, querulously, ‘Again, I object.’ But Justice Gray allows the question.
Richardson quickly says, ‘The advice was that there was no information on his file to indicate that he had been removed as a result of court proceedings under the provisions of the Maintenance Act and for that reason it appeared there was a serious question about the lawfulness of the manner in which he was treated when he was removed. And further, that because of the additional two hundred and seventy pages I was able to read to him and he was able to hear——’
This time Walsh is well beyond querulous, he is downright irritable. ‘That’s not responsive to the question. The question is what advice was given, this is now dealing with a different topic,’ he complains.
His Honour agrees and takes up the cudgels on his behalf. Directing his gaze at Richardson, he says, ‘I agree with that. If you could for the moment just confine your answers to the question and just——’
Richardson barges in: ‘The advice was that we now had a great deal more information about his removal and his treatment after his removal, much more than we had before.’
O’Connor prompts: ‘Was there any advice you gave him about taking an action?’
‘Again, I object,’ Walsh beseeches, but to no avail this time.
‘I allow the question.’
‘I advised him that it appeared there was now sufficient grounds to challenge the state government about the manner in which he had been taken by issue of proceedings.’
It seems clear that the battle is taking its toll as Richardson stumbles through her answer, trying to avoid triggering another objection. And so the skirmishing continues, entertaining, but changing little. Richardson has made her point, albeit while sometimes trying His Honour’s patience as the session nears its end.
O’Connor: In September 1994, had you formed a view about whether the plaintiff had a viable claim against the South Australian Government in relation to his removal?
Richardson: No, I had not formed that view.
O’Connor: By October 1994?
Richardson: No, I don’t—I didn’t form a view.
His Honour: Just answer the question please.
Richardson: No.
Well, Justice Gray, too, has had a trying day.
Justice Gray will hear from Tom much the same story as Hilda and George have told him. Tom, though, is more loquacious and so adds colour to his reminiscences, especially when he talks about the important role of his extended family in passing on the values of Ngarrindjeri culture.
‘We call them “the good ol’ days”, that’s what we refer to them as, because they were.’ Tom includes Hilda and George in his recollection.
‘What was good about them?’ O’Connor is again leading the evidence in chief and Tom seems relaxed with her.
‘The good thing about them I think is that, you know, we were all together as a family. Uncles, aunties, cousins. We were always together. We were always supporting each other. We could visit each other’s camp. We were always welcome. The elders, the old fellows, were always looking after us. It’s not like we were only little immediate families, everybody was responsible for everybody’s children. So we could get told off by other uncles and aunties around the area if they seen us doing anything wrong. And if somebody got something, everybody would share it. There wasn’t this greediness about “this is mine”. Whatever people got, if somebody got a heap of fish, they’d share it out. If someone went out swan egging and got swan eggs, everybody got fed. If somebody went to town and one of the old fellows come home—and back then it was pounds, shillings and pence—if somebody come home with two shillings worth of lollies, all the kids got a feed of lollies, not just one child or family. So it was, as I said, it was a good life and it—as I said, all I have got is good memories. I take my children there today and I still talk to them on how we lived there and I tell them where everybody lived.’
O’Connor wants to impress upon the court that the rudimentary shack in which the family lived did not reflect the quality of the family within it. Tom is her perfect witness.
‘Were you ever hungry when you were a child living with Dad, with your father, did you ever not have enough food——’
Tom talks over her: ‘No. No, we were never in need of food. Dad always had food or was able to get food and Dad always had money planted at the old Three Mile and whenever we needed money, he always had it.’ He hurries on because he does not want O’Connor to stop his flow with a complementary question. He doesn’t need it; he knows what he wants to tell the judge.
‘I remember one time when we went to Murray Bridge and we had to get a taxi from Murray Bridge to Three Mile Camp and Dad said to the taxi driver, he said, “Look sir, I’ve got no money on me, but I can guarantee you that when we arrive at the Three Mile Camp at Meningie, I will pay you cash,” and the taxi driver took his word for it.’ One long sentence, delivered in one long breath. But he hasn’t f
inished.
‘When we got home to the Three Mile Camp, Dad walked out the back of the old house. I wasn’t allowed to watch, I had to stay away, and when he came back and he had a roll of pound notes and he paid the taxi driver the money he wanted. So I am saying Dad always had money at the old camp, but we were never in need.’
Finally, he has paused. O’Connor can have her turn now. Justice Gray surely would appreciate in Tom’s spontaneity the genuine affection he held for his dad.
‘Did you learn, when you were a child living at Three Mile Camp, about how to make Aboriginal items out of wood?’
‘Yes, that’s where I learned to make boomerangs, proper returning boomerangs. And Ray Lindsay, he married my sister Rita, he taught me and George how to make boomerangs, what to look for in the tree and how to use fire to bend them, to make them return, come back. Taught us how to make spears, taught us how to make blondies, clubs. Taught us how to hunt rabbits with them. So Ray Lindsay was good at that and, yes, he taught us how to do that, how to survive.’
‘When you were living at Three Mile Camp with your father, did you always speak English?’
‘Most of the time it was English but we would still talk in our language, especially when we were identifying our food plants, our animals, talking about our stories, that’s when our language would be taught to us. So a combination of English and Ngarrindjeri, what we call youngen [yanun, the Ngarrindjeri word for speaking or talking].’
The courtroom clock shows four and Justice Gray calls an adjournment until Monday 28 November. Tom, however, will not take the stand again until the Tuesday because Burnside has interposed an expert witness who is available only on Monday. O’Connor does not mind the longer break. Today has been a good session for them and she is confident Tom will deliver again when he next takes the stand.
When they return, O’Connor questions Tom about some of his own shortcomings as a young man and his brushes with the law, including breaking and entering and larceny. Tom also explains that with marriage and a strong, loyal wife’s encouragement, he gave up drinking at age twenty-three and settled down to be a good father and a successful citizen. Underpinning all this was the significance of family when learning to cope with life’s vicissitudes. Now O’Connor wants to talk about Bruce. She asks Tom about the first time Bruce visited them.
