by Antonio Buti
Walsh has forewarned Burnside that he will challenge the Van Hooff report because it does not conform to admissibility criteria, so Burnside gets in first. ‘Your Honour, our learned friend objects to the report being received, and I don’t know whether you want me to swear in the witness, tender the report and just have the argument with her out of the witness box.’
Justice Gray has not yet seen the report so he suggests to Walsh that he will ask Burnside to hand up a copy and introduce the issue, ‘just by argument initially’.
Walsh does not want to concede even that. ‘It’s really fundamental on the face of the report, but we object.’
Justice Gray succinctly paraphrases Walsh’s objection. He is submitting that there are aspects of the report that are beyond Van Hooff’s expertise; she has also gathered material that seems to be of a public nature and therefore requires no specialist knowledge to interpret; she claims expertise in other matters in the report, but Walsh challenges her expertise.
‘Mr Burnside,’ the judge asks, ‘where does all this lead? If this evidence were to be accepted, where would it go in this case?’
‘It goes to the foreseeability of harm by the way in which the plaintiff was treated.’ Burnside goes on to explain that, as a researcher with well-developed research skills, Van Hooff has pinpointed the essential nature of prevailing psychiatric opinion at the time. Her research has shown that had the State applied its duty of care, it would have been aware that harm to Bruce was foreseeable, according to prevailing knowledge in the late 1950s and 1960s. He tells the court, ‘She really doesn’t express opinions about matters of maternal deprivation. She expresses opinions about what the literature shows was the then understood view of that subject.’
His Honour sums it up neatly. ‘Is the essence of her evidence “I have the background in psychology and research. I have some particular expertise in gathering together the historical information that might fuel the study. Here is the information I’ve gathered from these sources and relevant to my expertise. Looked at historically, this is what I say it discloses”?’
Burnside could not have hoped for a better summation. ‘Yes, so that if lawful officers want training or thought training appropriate, it’s obvious that training was available and literature was there.’
‘Mr Walsh, I shall be proceeding this way: Ms Van Hooff will give evidence and address her expertise. And if, having heard the broader explanation, there’s a challenge on the voir dire, then we’ll proceed from there. Before the witness is sworn, Mr Walsh, insofar as this is not expert evidence but is locating and identifying what is said to be the area as having relevance, then it might be a convenient way to receive in the evidence although not as an expert, or it can be separately tendered.’
‘We’re very concerned about it,’ Walsh complains.
‘If you have a concern then we’ll deal with it.’
That seems to brook no further argument on this issue. Walsh does not test His Honour’s tolerance.
This seems to be a good moment to release the tension of the voir dire verbal sparring, so the court recalls Dr Walker to resolve the matter of illegible documentation. After His Honour expresses his relief at now not having to contend with both faded documentation and a doctor’s handwriting, Van Hooff can be formally sworn in.
She performs according to script, with, of course, the unsurprising intrusions of objecting counsel. With admissibility boundaries now in place, the performance runs relatively smoothly. Finally, Burnside is able to conclude, ‘What I am proposing to do is tender, through Ms Van Hooff, the principal works she refers to, which includes the 1951 World Health Organization report by Doctor John Bowlby, titled Maternal Care and Mental Health. It deals with the harmful consequences of separating an infant or baby from their mother.’
Importantly, Van Hooff confirms that the principal figure of attachment does not need to be female. On the contrary, at the end of her time on the stand, in a question from Burnside in re-examination, she confirms from her research of Bowlby his view that, although the mother is the primary attachment figure, ‘it can also be the father or some other familiar person in the child’s life that can act as a protective factor in the child’s life’.
Burnside is content that the court has accepted the essential parts of Van Hooff’s report. Nevertheless, he makes one last point to His Honour by taking issue with defence expert Professor Goldney’s assertion that it is doubtful there would have been genuine information about the up-to-date literature. ‘I answer that by saying that for five years in the 1950s, Bowlby’s book was on the required reading list in the relevant faculty. Bowlby is the seminal work on the area of maternal detachment and deprivation.’
It is mid-afternoon when the court releases Miranda Van Hooff. If respective counsel have found the demands of the day up until now intellectually tiring, it has been no less so for Justice Gray. As he waits for the curtain to rise on the next act of today’s drama, he engages for a moment in a sort of pensive calculus. Crudely, expert witness time in this trial could represent payday—that is, whether or not there is to be one and, if so, how much he as judge should decide to pay. It might seem offensive, certainly vulgar, to think of a man’s physical and mental suffering in commercial terms, but that is the reality of this adversarial process. If the State has acted egregiously, and if the plaintiff’s experts can convince him that its agents caused that suffering, he has to measure its worth in money. Crass? Perhaps. But is there another way to mete out justice in a case like this? Not in this secular world, he concludes.
Burnside is on his feet. ‘Your Honour, we have another witness for today, but Mr Walsh would rather the witness be called on another day …’
For one short moment, Justice Gray feels his mood lighten.
‘… so I wondered if we could spend some time tendering documents?’
The lightness gains weight. ‘Yes.’ What else could he say? Perhaps a silent prayer that, today, all documents will be well ordered and legible.
The next morning a refreshed Justice Gray takes his seat at the bench. The curtain rises on act three, with Burnside and today’s first witness, Dr Jon Norman Jureidini, centre stage. Dr Jureidini is a child psychiatrist at the Women’s and Children’s Hospital in Adelaide. Richardson has engaged him to offer his opinion on the nature of attachment of child and mother, and how the severing of this attachment had affected Bruce in infancy, childhood and adolescence. Jureidini decided to confine his study to hospital, medical and Department records. He reasoned that to interview Bruce and ask him to recall his emotions and thoughts of his formative infancy and childhood years would not be helpful.
As an experienced courtroom advocate, Walsh well knows that Jureidini is correct. That is why, in courtroom testimony, lay witnesses are constrained to telling what they did or what they saw, not what they were thinking at the time. This is because subsequent contemplation of the event tends to induce rationalisations of one’s reasons for their actions. It results in testimony mediated to serve the perhaps unconscious emotional needs of the actor. This is different, however; Walsh is entitled to interrogate the expert witness aggressively to validate his claim to expertise. When it is his time to cross-examine, this he does—fiercely.
‘How do you know, until you speak to someone, whether they can be helpful or not?’
Jureidini responds, ‘It is a question of judging what I think is going to be most helpful in reaching my understanding and what is a reasonable investment in time.’
‘How can you judge whether it might be helpful or not if you don’t know what the person might be able to contribute?’
‘Well, my judgement was that there wasn’t anything that Mr Trevorrow was likely to tell me about that would have much bearing on the experiences of his childhood.’
‘Do you accept that that judgement might have been better made by actually speaking to the person concerned to see if he did have some recollection?’
‘No, I don’t think it would have
been helpful. If I thought it would have been helpful, I would have requested the opportunity to interview him.’
‘So you are not prepared now to concede that, in hindsight, maybe it might have been useful to speak to Mr Trevorrow, at least to find out if there was some, you know, coherent memory of his period with the family?’
‘No, I don’t think that would have been helpful.’
‘It wouldn’t have been helpful to you that he might have given credible evidence of good recollections with respect to his upbringing?’
‘Well, if he had, somebody giving good recollections of their upbringing is not something that I would place very much reliance on. Because people, in my experience, often have quite distorted views of their own upbringing, particularly when individuals are damaged; they often present a view of their childhood which is quite systematically distorted.’
‘But surely it would not hurt to have the information and then make an assessment of whether it is credible or not?’
‘It wouldn’t hurt but I judged that it wasn’t going to be helpful to me in forming an opinion.’
‘Is that a considered opinion, Doctor?’
‘Yes.’
Walsh is an expert advocate but Jureidini is an expert expert witness. He is nothing if not confident. Inevitably, then, when two experts clash, the oral serve and volley can descend into fatuous point scoring, as it does a little later.
Walsh is challenging the doctor on why he did not ask Bruce directly about the Pentridge incident: ‘The other possibility is that what he said to court is a lie, and that it did happen.’
‘From reading the transcript, which is the only source of information I had, I have no——’
Walsh sees an opening and pounces. ‘You just don’t know, do you?’
‘No. I would have thought it was impossible because I understand that he wasn’t there that day.’
‘But how do you know whether that’s right or not?’
‘There are documents to show me that.’
‘Yes, but how do you know that he was there or not? You don’t, do you?’
It is a silly question. Jureidini decides this has gone far enough. He doesn’t answer.
Walsh should have stopped there. He has pretty much won the point. But, emboldened by his apparent success, he tries to goad. ‘Do you?’
‘I believe I do because I’ve seen documents that seem reliable to demonstrate the fact. I don’t know that anybody landed on the moon but I believe that they did.’
‘You don’t know that, whether that’s right or not, though, do you?’
Walsh is probably still talking about Pentridge, but Jureidini chooses deliberately to misunderstand. ‘Whether people landed on the moon? No, it might have been people in a studio in Los Angeles.’
His Honour might have been sorely tempted to butt in with an admonitory ‘Boys! Boys!’ But mercifully, for all, Walsh yields the point he has already won. It is a tactical withdrawal; it is not surrender. Still, the continuing rancour is severely trying the judge’s patience. He understands the reasons, of course. It is the nature of the adversarial, winner-take-all contest. It works. But for a judge who wants only the essential message to consider when striving for a just decision, it sometimes seems inefficient. Every now and then, the temptation to cut to the chase is overwhelming. In that situation, as Oscar Wilde said, the only way to get rid of temptation is to yield to it. This advice he heeds eagerly when the peripheral hostilities get in the way of his understanding of the doctor’s point about Martha’s regular threats to send Bruce away if he continued to misbehave. Gray is listening with rising impatience to Walsh, who wants to downplay the damage of such comments to a child’s sense of security and safety. He wants to reduce the threat to an empty parenting ritual.
‘Have you, in your experience in life, heard parents make comments to children, “Look, you behave yourself or, you know, that man over there might take you,” and things like that?’ Walsh asks Jureidini.
‘I have heard that term.’
‘Yes, have you ever heard those things said to children?’
‘I’ve heard of them being said. I haven’t heard those things being said.’
‘You’ve heard of it historically as being said to children? In earlier times, if you go back to your own childhood, you might have actually seen that said on occasions.’
‘I don’t recall hearing anybody say that in my childhood, no.’
‘You say that if a parent said to a child, “Look, behave yourself Johnny, otherwise you might be sent off to live elsewhere, you be careful”, you say that is emotional abuse?’
His Honour has had enough; this is going in circles. Ever so politely, he yields to his temptations and interrupts.
‘Mr Walsh, I might ask a fuller question about that if I’m not interrupting your cross-examination.’ Perhaps by fuller, he means useful?
‘Of course not.’ By which Walsh means, of course you are interrupting, but it’s your court.
‘Why do you characterise that as emotional abuse, could you explain to me why?’ Justice Gray asks Jureidini.
‘Sorry, it feels kind of self-evident to me.’
‘It may but can you spell out your reasons for that opinion?’
‘The kind of primary need of children is to feel safe and secure in their environment. The threat of being sent away to some other awful place is almost the single most threatening thing that you can offer a child. Their emotional survival is contingent upon being cared for by the people who make them feel safe and secure. If you threaten the child with a loss of that, you’re threatening them with the loss of their emotional umbilical cord.’
And this, Justice Gray says to himself, is the advantage of the judge asking a question. An advocate does not want to ask a question they do not already know the answer to for fear of getting a nasty surprise in the witness’s response. That’s why they have proofed their witness; that’s why this is a performance, not a blind search for facts. The judge merely wants those facts. There is no face to be saved and no fear of a surprise answer.
Burnside mentally ticks another box on his list of points he wants to see in the transcript. So, too, but for a different reason, it must be said, does Jureidini.
Walsh should have left it there. But he is determined to undermine the doctor’s claim to expertise; he can sense that the doctor is scoring some points with the judge.
‘You’ve talked about high levels of physical violence,’ Walsh continues. ‘Is being hit lightly on the buttocks with a flyswat a high level?’
‘No.’
‘Heavily?’
‘Possibly.’
‘“High level of physical punishment.” In this case, what did you assume, what level?’
‘I don’t understand the question.’
‘You used the expression “High levels of physical punishment.” Could you explain to the court——’
‘I don’t think I can add to what I have already said,’ Jureidini cuts in. ‘Doctor Moffatt thought enough of this physical punishment to remark on it … that’s what I regarded as “high levels” of physical punishment.’
‘You say, “The relative contributions of removal and return are not clear. However, there is significant evidence of factors operating during the foster placement that will have had a negative effect on Mr Trevorrow. These would include threats of being sent away, high levels of physical punishment, deprivation.” One might be excused for thinking that Mr Trevorrow had a terrible life from what you have said in that report.’
‘I can’t control what people respond to what I have said. It’s a factual statement of what was available to me. As I have said to you on a number of occasions, it was the threats of being sent away that worried me the most.’
‘You didn’t say that.’
‘I have said it at least three times today.’
And Jureidini double-ticks that mental box. Yet there is an unticked, and extremely important, box that is nagging at him. Then, as
if divinely intended, a still smarting Walsh presents the box for ticking.
‘In that period before Bruce was sent——,’ he catches himself, ‘went to the Davies after he had been in hospital, was it relevant in terms of the question of attachment to the natural mother to know that he had been left with other persons and Mother had left?’
Dr Jureidini mentally punches the air. ‘Well, we know that—I mean, can I say something about attachment because there seemed to be some quite confused statements made about attachment in various documents. So——’
Walsh realises he should not have used that particular word. For the defence, confusion on this point is good. ‘Can you try and answer the question first and then you can continue to explain.’ Unless, he thinks, I can direct you tangentially away from explaining it. ‘Was it relevant or not?’
‘It is relevant. Yes.’
‘Was there some evidence that Mother left him in the hands of persons other than the father for example?’
‘There is a suggestion of that, I wouldn’t go so far as to say there was clear evidence, I think it was referred to as a secondhand—I may be wrong but I think it was only someone reporting that they had heard it had happened rather than being directly aware of it.’
‘What was the truth of the matter so far as you were concerned, who he was left with?’
‘I don’t know.’
‘One piece of evidence might be as credible as the next. You don’t know, do you?’
‘No.’
‘Did you refer to the fact that——’
‘Excuse me, I thought I was going to have an opportunity to talk about attachment because it is relevant to the question you just asked me.’
Walsh has no choice but to defer to the bench. ‘I am in Your Honour’s hands,’ he pleads.
His Honour assures Walsh that it would indeed assist him if Dr Jureidini were to explain ‘what it is that is concerning him, which would allow for his answer’.
