by Antonio Buti
‘I remember when Mum brought Bruce home to Victor Harbor for a short while; I think it was a holiday period. We knew who Bruce was and he was our brother but it was—it took some getting used to. You know what I mean. Because he was quiet, very quiet.’
‘Do you remember him coming back to live?’
‘He was different. He wasn’t there with us all the time so therefore he’d missed out on—how could I say—our way of life, because he was raised up differently and we had to be aware sometimes when we talked and we’d talk in our language or we’d talk about somebody or we’d talk about something that Bruce wasn’t familiar with what we were talking about, or even sometimes our actions of what we do with our body language, our Ngarrindjeri ways, Bruce wasn’t aware of that type of thing.’
O’Connor is pleased with Tom’s observation. It reinforces George’s point that Bruce cannot find his way out of the cultural no man’s land where bureaucratic misfeasance has dumped him. She builds on that. ‘Do you remember how old you were when you had your first child?
‘Sixteen, seventeen years old.’
‘How many children do you have?’
‘Seven. I’ve also got grandchildren now.’
‘Apart from your seven children, you have raised other children as well, haven’t you?’
‘Ellen and I have raised probably twenty or more children in our time as welfare parents for what we call Intensive Neighbourhood Care parents or INC.’
O’Connor tells the court that INC parents are parents assigned through the Children’s Court to look after children whose parents can no longer care for them. She thinks this is an important point because Tom is an example of how a man who had been in trouble when he was young can still become a cultural role model if he has family support.
‘Do you remember when Bruce came back to Meningie to live with Hilda and Robert, when he was about sixteen or seventeen?’
‘Yes. I think what Bruce was trying to do was he come back home trying to—how can I say it—trying to settle down again, trying to fit in, but still had problems. I remember while he was there he was drinking a lot. I was trying to help him, Ellen my wife was trying to help him, trying to tell him, you know, stop drinking. I remember he got into a lot of arguments and a lot of fights with other family members at Meningie. For the periods of time he was there, he was drinking, fighting a lot and that, and then he just went again. He would come and go. He couldn’t stay permanently for some reason or other.’
‘You told us earlier that you started drinking yourself after you got out of Glendore at about fifteen. Were you still drinking at the time Bruce came to Meningie when he was about seventeen?’
‘Yes.’
‘Did you have a drinking problem then? Were you drinking too much?’
‘I don’t know. I always went to work.’
‘Did your wife discuss with you your drinking and that it was a problem in your marriage?’
‘Yes. Ellen didn’t like me drinking because I had too many mates, too many friends. She always tried to stop me from drinking.’
‘Was she successful?’
‘Yes. I haven’t had one drop of alcohol now in twenty-eight years. I went totally off it and it didn’t worry me no more, twenty-eight years.’
‘Was Bruce drinking more than you were?’
‘Yes. And he was worried because he was violent, people were frightened of him. Even family were frightened of him. I was still able to communicate with him because he had respect for me and for Ellen, too. When he was down in the dumps, he knew he could come and talk to me and Ellen, he could have a feed and a cup of tea, whatever.’
Now O’Connor wants to drive home the point about family, ‘When he was down in the dumps, how would he behave?’
‘He’d sit there and tears would run down his cheeks out of his eyes, he was hurting and didn’t want to show it. He was like too ashamed, too proud to cry but he couldn’t help it. It’s what happened to him, what was done to him. I knew it, George knew it, everybody knew of what had happened to him and it wasn’t fair and we knew that the way he was carrying on is because he couldn’t fit in again, even though we tried helping him fit in, he couldn’t. It’s what you miss out on when you are a child right through, that’s what Bruce missed out on. It’s hard to put into words sometimes; it’s what we feel as blackfellas, as Ngarrindjeri, inside, what we sense about each other. It’s hard to put into whitefella’s words.’
‘Have you ever seen Bruce happy?’
‘Yes. It’s hard to exactly pinpoint what things make him happy. You could all be sitting around, having a feed and a cuppa and you know the kids might do something silly and we all see the comical side of it and you all laugh. Telling stories, jokes. But this is all when we are sober and sitting around.’
All sitting around, having a feed and a cuppa. That sounds like family, O’Connor thinks. Point made.
As he has done with Hilda and George, Walsh challenges Tom’s credibility as a witness. O’Connor is content that the spontaneity of Tom’s answers attests to the reliability of his recall and to his genuine concern for Bruce. His sadness that his young brother did not have the benefit of either family or Ngarrindjeri culture to help him deal with life’s challenges is unambiguous. No barrister can coach a witness to feign that feeling.
The testimony of Rita and Alice, Bruce’s half-sisters, does not take up much court time. Each substantiates the recollection of Bruce’s biological siblings that Thora and Joe were competent and caring parents. Rita and Alice each had encountered their own obstacles as they matured after leaving home but each, with support of a strong family network, survived these challenges. With no substantial discrepancies to explore, Walsh’s cross-examinations are routine and brief.
Bruce’s legal team is done with the family for now. It’s time to assess what they have achieved to date. When the team members meet for their customary end-of-day debrief, Burnside reviews how the game stands.
Had he been privy to Thomas Gray’s inner thoughts on that first day, Burnside might have said that the top order had done its bit and it was now up to the middle order to consolidate. Bruce, with his dour but convincing opening, had laid the groundwork. The damaged soul bared with no artifice was there for all to see. Numbers two, three and four—Hilda, George and Tom—had combined to show that, even facing the same searing deliveries from the sometimes hostile world that had brought Bruce down, family could shield, guide and steer any single member through the travail. They had all faced life’s bouncers and had survived. The middle order, comprising expert witnesses, will be the big test. There is no lower order for the plaintiff’s team so the expert witnesses will round out the innings. When Walsh opens the State’s innings, it will be up to the bowlers.
But Burnside will eschew that kind of sporting metaphor. Yes, he will see the trial in three parts, having a beginning, a middle and an end. In Churchillian terms, ‘This is not the end, it is not even the beginning of the end, but it is perhaps the end of the beginning.’ Burnside will remind the team that the State will work relentlessly to dent the credibility of Bruce’s expert witnesses. The team must prepare them for aggressive cross-examination. They must identify and buttress weak points in their experts’ arguments before they take the stand. O’Connor and he must be alert and be prepared to object to any defence questioning that borders on hectoring or harassment or that strays off point. Yet the battle will not end even if they win these encounters. It will end, he will say, only when they have slain the dragon garbed in legal privilege that stands between Bruce and extension of time.
Chapter 16
EXPERTS GO IN TO BAT FOR BRUCE
Burnside sits at the bar table, absentmindedly drumming a light arrhythmic beat with his fingers as he waits for Associate Kathryn Yarlett to call the court to attention. He is ready for the day, witnesses prepared and present, reminder notes of key questions arranged neatly on the table in front of him, and adrenaline pumping, as it should. The finger tapping is a
sign of this; it is not so much nerves as nervous anticipation. It is a good sign. He is not anxious, because he has chosen his witnesses well.
Today, they will all be what the courts call expert witnesses. They are people whose level of specialised knowledge or skill in a given field qualifies them to express their opinion relevant to matters in issue. That seems straightforward, though pitfalls await the unwary, and a courtroom advocate must prepare their witnesses to avoid these pitfalls. Not least of these hazards is an aggressive cross-examiner with one aim: to discredit the expert testimony.
Burnside himself is in the class of an expert in his field of courtroom advocacy, which is why he seems so relaxed. He also knows that if Justice Gray thinks the prejudicial effect of the expert evidence outweighs its probative value, he has discretion to declare it inadmissible. And that’s what keeps his adrenaline pumping.
An expert advocate takes nothing for granted in the courtroom. Burnside, for instance, is pretty sure the defence will challenge the first two of his experts—one on the grounds of invalidly drawing an inference, which he now expresses as opinion, and the other on lacking relevant expertise. For a layperson, what constitutes an opinion might seem self-evident. Burnside, though, knows through professional knowledge and experience that the distinction between fact and opinion is not so clear-cut in a law court. He has alerted his witnesses to be ready to rebut any defence challenge to their expertise and their authority to express an opinion. Alert them is all he can do. He must not rehearse, practise or coach them in what to say. He has also prepared himself to intercede if the defence’s challenges go beyond acceptable cross-examination.
‘All stand,’ commands Associate Yarlett.
Her peremptory call jolts Burnside from his pensive musings. A new day, a new cast, a new performance. If he has done his job, there will be no surprise revelations in his examination in chief. It will be a live recital to the court of the narrative of the case, of which he is the author, reliant on the honest input of actors—his witnesses—who have, however, written their own lines. His task is to direct their presentation, keep it on point, to prevent them ad-libbing from those lines into irrelevancies that distort the cogency and truthfulness of the plot. Yes, it is a performance, but a deeply serious one.
Act one, scene one, and Burnside is centre stage. ‘Your Honour, for the plaintiff, we call Doctor Allan Walker.’
Burnside’s introduction of his first expert to the court goes according to script. Dr Walker has practised as a paediatrician since 1956 and now works at the Royal Darwin Hospital. Although he has extensive experience with Aboriginal children, he never examined Bruce as a baby. He has based his report of Bruce’s condition in 1958 on records from the Queen Victoria Hospital, where Bruce was born, and from the Adelaide Children’s Hospital, where he was admitted on Christmas Day 1957. Burnside tenders the document to the court and Walsh confirms to Justice Gray that he does not object.
As Burnside continues, things start to get a little messy. ‘After you delivered that report, did you receive a letter from Ms Richardson of 30 October 2005 providing you with copies of newspaper articles which you had referred to?’ He is talking about Adelaide newspaper articles from September to November 1958, reporting that ‘from time to time’ there were ‘epidemics of gastroenteritis in the community at large’.
‘I did.’
Burnside knows what’s coming. Walsh foreshadows, ‘I will object to the tender of this document.’
Burnside ignores Walsh’s signal and directs his attention to the bench. ‘I tender that letter with the attached copies of the newspaper articles referred to.’
His Honour has the document. And now the messiness magnifies. Justice Gray bypasses Burnside and asks Dr Walker directly, ‘Your handwritten note reads, “All of these articles represent sound advice relevant then and still relevant today.” What’s the next line?’
Burnside throws his head back as this bolt from the blue strikes him. Notes? What notes? There shouldn’t be handwritten notes on the articles!
Dr Walker starts to respond to His Honour. ‘That’s the letter of 6 November which I recall was from a lady in Canberra who——’
Justice Gray cuts him off, ‘Just a moment, just read your writing to me please.’
The doctor complies. ‘It reads, “The letter of 06/11/1958 is a lay opinion. She does not mention hand washing which is probably the most important factor.”’
‘Are they your handwritten notes against the reference to the newspaper articles?’
‘They are.’
‘In regard to the final newspaper article you’ve written there something “opinion”.’
Now even Dr Walker has lost his place in this evolving ad-lib narrative. ‘Beg your pardon?’
Patiently, Justice Gray explains. ‘Against the final newspaper article you’ve written something, something “opinion”. What’s the word that precedes “opinion”?’
‘An opinion.’
The explanation was that simple.
Had he been prone to thinking in the vernacular, Burnside might have muttered, ‘Bloody hell!’ Instead, he reacts with a more seemly, ‘Oh no!’ He realises what has happened: Dr Walker has handed up his copy of the articles on which he had made notes, instead of unannotated copies. That, Burnside muses, is why you can never take anything for granted in court. Oh well, he tells himself phlegmatically, just deal with it.
But he can’t just yet. His Honour has just become aware of Stephen Walsh on his feet trying to catch his attention. ‘Yes Mr Walsh.’
Walsh is off and running, so for now all Burnside can do is resign himself to what he has to say. And that is plenty!
‘Putting aside the matter of form,’ Walsh begins, ‘it is not appropriate to be putting in extracts from newspapers. If this witness has an opinion that’s relevant for the purposes of this case, the witness will be entitled to say in his opinion as to what was sound advice, if it was relevant at that time and if it’s relevant, to say so what is sound advice today. Not utilising by way of back-door method, producing some information, which is untested and unexplained by way of newspaper advertisements, and then giving this opinion. It’s not appropriate to do it that way. If it’s relevant to know what was sound advice at that time with respect to this matter, then if the witness is qualified to do so, he could give an opinion about that, but not utilising this methodology.’
His Honour tries to stem the tide or, as Burnside is thinking, the tirade. ‘I understand that this handwritten note was being said to represent his opinion in regard to these statements in these articles,’ Gray says.
Walsh’s tide is not for stemming. ‘But you can’t determine what his opinion is until you then go and look at the annexures. What we say is that’s not an appropriate way to be providing an opinion by producing hearsay information from some other source and then saying within that there’s some assertions as to appropriate opinion.’
Burnside says to himself, ‘Yes you can, if you’re an expert.’ He hopes that’s right, because the witness who will take centre stage after Dr Walker will do just that. Drawing from Shakespeare’s Merchant of Venice, he merely says to himself, ‘You speak an infinite deal of nothing’, and decides not to buy into it. He’ll just exit stage left and enjoy Walsh’s cameo performance from the wings.
Finally, His Honour decides to close the curtain on this scene. ‘Mr Walsh, I accept that the presentation of the opinion is a little unusual but I think it does relay the opinion of the doctor.’
Walsh makes an attempt to stay the inevitable but His Honour wants to keep the show moving. ‘I propose to receive the letter and the newspaper articles as being material received by Doctor Walker which he’s had regard to in expressing his opinions.’
Burnside returns briefly to centre stage, directing a few questions to his witness, really just to put to His Honour the salient points of this testimony. Dr Walker says that, in his opinion, the hospital notes did not suggest that Bruce had cerebral palsy, wh
ich the State has claimed, nor did he think Thora suffering pre-eclampsia had damaged Bruce’s health. And while Bruce showed signs of being malnourished on admission to hospital, it was important to have regard to his birth weight and the fact that he was suffering from a diarrhoeal illness, possibly gastroenteritis, which may have caused significant and acute weight loss shortly before his admission to hospital. That should do, Burnside thinks, and moves to stand down his witness. But as if to demonstrate the potency of the advocacy truism about taking nothing for granted in a courtroom, Justice Gray stops him.
‘Mr Burnside, I feel a little uneasy about Doctor Walker having reviewed some material that could have some relevance that is illegible.’ It is a fair point. It is all very well for the doctor to be able to read his own writing but when, much later, His Honour has to review it for its evidentiary value, he, too, must be able to decipher the notes, which, in any event, are scribbled on already barely legible microfiche copies.
Everyone agrees, so His Honour tells Dr Walker he is not releasing him as witness but will stand him down until the document issue is resolved. Badly managed documentation—Justice Gray’s anathema—has struck again. It is only ten past eleven in the morning, but that one hour and ten minutes of witness testimony has carried sufficient drama to suggest that this will be a long day in court.
After a short adjournment, Burnside rises to his feet to introduce act two of today’s performance, calling to the witness stand Miranda Van Hooff. She is a research officer at the Centre of Military and Veterans’ Health in the Department of Psychiatry at the University of Adelaide. She works with Professor Alexander McFarlane, another of the plaintiff’s expert witnesses, who will take the stand later. Van Hooff has specialised knowledge of maternal attachment and deprivation, a field in which she is undertaking doctoral studies. Bruce’s legal team has asked her to research the extent of such specialised knowledge among relevant practitioners fifty years ago.
