by Antonio Buti
Walsh invites the doctor to continue, ‘Yes, Doctor?’
‘Attachment is a term used broadly but in its technical sense it refers to the sense of safety—or the actual safety and subsequently the sense of safety—that an adult is able to impart to a child, and so attachment is about survival. It is not about friendliness or affiliation or being nice to people. You don’t promote attachment by dressing people up nicely or being kind to them, you promote attachment by making them feel safe.’
Burnside hears that explanation with an ever-so-subtle nod of gratification to his expert witness.
‘Attachment, really the quality of an attachment relationship, must be seen to refer to a particular paradigm. So you don’t talk about an individual’s quality of attachment, or you shouldn’t—we do sometimes stray through that but it should be used to refer to the quality of a relationship between two individuals, a caregiver and a child usually. And it has been suggested by some of the documents that there is a kind of academic dispute between Bowlby and Rutter, who subsequently wrote about it, as though Rutter is suggesting attachment is not important; that is in no way the case. So you asked me a question of whether it is relevant to Mr Trevorrow’s attachment that he was left with other individuals other than his mother. I have to answer yes but it is not necessarily a negative thing for his attachment. The more positive relationships an infant forms with adults, the better it is for their sense of wellbeing and security.’
A gentle sigh of satisfaction from Burnside. And the doctor ticks another box.
‘That is all explained in your reports, isn’t it?’ Walsh asks.
‘Some of it, yes. I am not sure that all of it is.’
‘So, therefore subject to the question of quality of the relationship, he might have felt safe with his foster mother, there might have been an attachment there?’
‘Yes, there might have been.’
‘Did you say that in your report?’
‘Well, I don’t, but hang on, you see there is another issue of confusion here. There might have been an attachment; if you put an infant with an adult, there will be almost always an attachment relationship of some sort that forms. The question is the quality of that relationship.’
‘Quite. And you don’t know what the quality of the relationship was in the first two years of foster placement, do you?’
‘No.’
‘Well, why didn’t you say so in your report, namely that, “Look, for all I know there might have been previously an attachment, an appropriate attachment of the foster mother at times that I have no evidence of it, but at a later time I have this evidence,” wouldn’t that have been appropriate?’
‘Well, you can draw that conclusion without me saying that. It is the case that any unspecified relationship might be positive or negative. I don’t have any data on which to comment. It is better that I don’t comment.’
‘But the expert provides, obviously, a balanced approach, weighs in all possibilities and then reaches a conclusion. Correct?’
‘As an expert I think my task is to try to answer the questions that are put to me. No question was put to me about that fact until now. You have asked the question now and I have answered it.’
In many instances these petulant point-scoring jousts are actually pointless. Justice Gray has had more than enough of it for him to conclude already whether the witness has validated his right to call himself an expert. Dr Jureidini’s reliance on what he calls lateral testimony rather than talking directly to the actors in the drama is wise; Gray knows that Walsh is perhaps over-egging the pudding. Yet among the pointlessness of some of the exchanges are significant tidbits of new data that he can feed into his decision-making calculus later. In short, they are doing much of the work that he or one of his Associates might otherwise have to do by painstaking research.
Walsh subtly changes tack. ‘Did you at any time read, in relation to the period that Mr Trevorrow was with the Davies family before he saw Doctor Moffatt, comment to the effect that someone had mentioned what a marvellous job Mrs Davies had done with Bruce with endless patience and understanding?’
‘I remember that, yes.’
‘Might that have been something that would tend to indicate that, at least at that time, there might have been a good relationship between the foster mother and Bruce?’
‘It’s possible.’
‘You didn’t refer to it, did you, in your notes?’
‘No.’
‘It’s something that you took into account.’
‘Yes, I wouldn’t set great store by that single observation. I think that, as I was trying to explain before, the attachment relationship is not—you don’t judge an attachment relationship on the fact that people can present themselves nicely. To make a judgement about an attachment relationship you have to look at to what extent can we be confident that this child was made to feel safe by this adult.’
‘Come now, surely it would have been appropriate, I suggest to you, to refer to a statement such as that as having at least some weight and needing to be recognised as part of the total picture in reaching any conclusion about the circumstances.’
‘My statement in relation to that would be I am not particularly reassured by the statement that—and the reason would be that that would not to me be a strong indication that this child was made to feel safe by this family.’
‘You’ve drawn a distinction between the quality of evidence and then only chosen the evidence that you believe has the quality that you desire.’
‘The quality, yes, not—I think though you seem to be inferring that I’m only looking for the evidence that suits my own and I would disagree with that.’
‘Did you also read a comment to the effect that Bruce was well liked by his school friends and Mother was spending a lot of time with the children?’
‘Yes.’
‘Mrs Davies?’
‘I found that a bit perplexing really because there’s little consistent evidence throughout the story of Bruce’s life that he’s ever formed any satisfactory relationships, so the fact that he was well liked at school was something noteworthy, I think, but either that’s an inaccurate piece of information or it doesn’t really fit with the story.’
‘You didn’t think it was appropriate to refer to that as being at least some possible evidence that maybe he was in a balanced life and environment at that time?’
‘I can see how it might have been useful to include it, yes.’
‘Do you recall reference in the notes to Mrs Davies’ foster home being an “excellent foster home” at all?’
‘I don’t recall.’
‘If there had been such a note, might that be something that you think ought to be considered and thrown into the pot, as it were?’
‘Depending on who said it and what the context was, yes.’
With Dr Jureidini’s concession that it might have been useful, His Honour wants to know whether this is also something to which he should attach some importance when he comes to consider his decision.
‘Mr Walsh, do you propose to put that record to Doctor Jureidini?’
‘I will come to them but they’re all before Your Honour.’
‘They’re before me but the doctor is being asked to recall this particular brief and he has made a comment that might be relevant to its assessment. If you want to make something of that, might you not need to put it to him?’
‘I’ll come to it.’ Walsh is not happy for the interruption to his flow.
Nevertheless, His Honour will make his point. ‘As I understand the cross-examination, you’re suggesting to Doctor Jureidini there are a series of factors that are relevant to his assessment and opinion that he has overlooked or chosen not to put weight on and so on, some he rarely recalls in answer to your questions.’
‘That one he didn’t recall.’ Walsh sounds grumpy.
His Honour is firm. ‘When you put it, I think you ought to place weight on that to put your position clearly.’
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br /> ‘I understand that.’
A permitted ploy that counsel use when they don’t get their preferred core principle answer to a question is to reformat it or to put the core principle question in another context. The aim is to manoeuvre the witness into an answer that contradicts the earlier response. It might seem to suggest deviousness but it is a reasonable tactic, especially if it uncovers unfair coaching by the witness’s counsel. It can, however, make for a long day in court. Nevertheless, Justice Gray is tolerant of what a layperson might consider to be labouring the point. And he does need to be clear on the defence’s position.
Dr Jureidini, however, is not as tolerant. He shows now his irritation at Walsh hammering away at his insistence on the damaging effect of Martha Davies’ constant threats to send Bruce away.
‘At the beginning of page five of your report of 6 September 2005—page thirty-six—you say in para five on the topic of evidence, “I have raised concerns above about the degree of corporal punishment and in particular about the threats of removal from the family.” Can I suggest to you this question, corporal punishment, seems to have played an important part in your impression of circumstances of Bruce Trevorrow; is that fair?’
‘No, I don’t think it is. I am now saying for the fifth time I think the threats of being sent away from the house are far more important than that.’
Clearly, Dr Jureidini is not to be manoeuvred tangentially or otherwise from his key point. At last, Walsh calls it a day and relinquishes his quarry into the more benign care of Burnside for re-examination. In this instance, this takes more the form of an athlete’s cool-down drill than an interrogation. Burnside is especially pleased that the doctor has resisted strongly Walsh’s attempts to steer him away from talking about attachment. In one way or another, attachment theory will underlie much of the testimony of all his experts. He believes that Justice Gray has formed the same view, which is why he had wanted to hear about the theory unmediated by cross-examination ploys to change direction. He also likes that Dr Jureidini would not concede that an apparently loving home environment, as Walsh claimed the Davies home provided, was enough to stimulate positive attachment. It is highly relevant to his case that the first attachment theorist, British psychologist John Bowlby, talked about attachment as a ‘lasting psychological connectedness between human beings’, not as a lasting psychological connectedness that is positive. His thesis is that the early bonds children form, whether positive or negative, significantly affect them through development and even in maturity throughout life. What Dr Jureidini has been equally keen to emphasise in his expert testimony is the importance of whether the child experiences these bonds firstly as secure. Bruce’s testimony and that of his family bring to light the fact that his attachments during the course of his development were aberrant.
When Walsh leaves the courtroom at the end of the day, his self-review will be simply a question: did I convince Justice Gray? To this, of course, he has no immediate answer. Burnside, on the other hand, will review the cross-examination performance in counterpoint. Did I prepare my witness adequately so that his expert testimony survived the Walsh attack? On balance, Burnside will think the answer is yes.
A new day in court, a new performance, and Burnside introduces Professor Richard Burns, a neurologist at Flinders Medical Centre. Burns examined Bruce in 1977, when he was twenty years old, in connection with a court appearance, and produced a report for Richardson in 2005 after considering medical reports from Dr Rischbieth and Dr Tidemann, who Walsh will later call for the State. They will argue that Bruce had epilepsy and that he presented with clinical indications of cerebral palsy.
Burns refutes these findings and His Honour incisively goes to the kernel of his repudiation. ‘Professor Burns,’ he asks, ‘is the essence of your opinion that, at most, he might have minimal brain damage and of a non-progressive nature although it is possible, because of his subsequent alcohol abuse, hypertension, diabetes and head trauma, that some type of brain damage might have subsequently occurred?’
‘Yes, Your Honour. I also base it on the fact that—certainly from my point of view—I didn’t find any specific neurologic signs of brain damage. That does not exclude it but there was no evidence that he had any motor or sensory or visual or other signs.’
Walsh’s cross-examination is cursory. He does not want to pre-empt the testimony of his own experts on the matter, especially as Burns seems to have impressed the judge as a competent and credible expert witness.
Expert witness for the plaintiff Professor Alexander McFarlane arrives next. When Burnside has finished his examination in chief, the State’s QC will counter with aggressive challenges to this expert’s expertise. Although Burnside’s adrenaline is pumping, he is primed—not pressured—because he has been able to prepare for the imminent challenge. This owes much to O’Connor being on the team because, as well as bringing her advocacy skills to the task, being local she is aware of the professional animosity that exists between McFarlane and the State’s own expert witness, Professor Robert Goldney. The history of their professional differences goes back a long way. They had, in fact, been embroiled in personal litigation and each had reported the other to the Medical Board of South Australia. She could foresee problems if these two specialists were to clash in this trial, as they inevitably would. Each could neutralise the effectiveness of the other in convincing Justice Gray of the worth of their respective opinions. So, at short notice—literally only days before the trial began—O’Connor had also contacted Dr Keith Le Page, arranging for him to prepare a specialist written report for the trial. He will support that report with oral testimony. Not satisfied with that alone, O’Connor has engaged other specialists to supplement Le Page’s testimony. Appropriately, these specialists and Le Page will close the plaintiff’s expert witness session. But first things first.
Burnside introduces McFarlane, who is Professor of Psychiatry at the University of Adelaide, where he works at the Centre for Military and Veterans’ Health. He has a twenty-year history of working on and researching the effects of traumatic stress. Burnside begins by talking the professor through his written reports, the first based on his interview with Bruce in 2002 and the second which he prepared shortly before the trial. Professor McFarlane is forthright: his interviews with Bruce were unsatisfactory. Bruce had difficulty recalling facts from his past and, bluntly, ‘misled’ him about the Pentridge affair. He found—as had Jureidini—that he could learn more from existing documents, including hospital and department records.
In short, Professor McFarlane focuses on why Bruce felt isolated and rejected. What he finds in Bruce is an almost textbook example of aberrant attachment behaviour. By the time he reached adolescence, ‘he was seeking out alternative attachment figures in a fairly non-discriminatory way’. He felt that all previous attachment figures had rejected him and he gave vent to this perceived rejection in aggressive outbursts. ‘In summary it would appear that by the beginning of Bruce’s adolescence he had a deep sense of rejection by both his foster family and biological family. This was associated with increasingly disrupted attachment behaviours and aggression towards authority figures. His vulnerability is further exemplified by his underlying neurological abnormalities.’ Burnside merely thinks a heartfelt ‘Yes’. McFarlane has delivered to him what he had hoped. Now he has to surrender his expert to counsel for the State.
Walsh is well aware that McFarlane’s evidence is providing strong support for Bruce’s case. Thus he needs to thoroughly cross-examine him. In fact, the cross-examination is to be so lengthy that even at the end of the day it is not complete. In the event, he will bring Professor McFarlane back to answer further questions more than a week after he first appears on the witness stand.
Wisely, because the professor’s analysis of Bruce’s mental state seems to have struck a responsive chord with His Honour, Walsh does not challenge it directly. Instead, he seeks to deflect its impact by suggesting other reasons for Bruce’s state of mind. He d
irects McFarlane’s attention to a report from Hillcrest Hospital, which notes that Bruce’s bad dreams ended when he stopped reading Phantom comics.
‘Might it be that he was reading Phantom comic books and started having some nightmares and they stopped when he stopped reading the books?’ he asks.
‘I think that’s simplistic,’ the professor objects. ‘I suspect, Your Honour, and I suspect, Mr Walsh, and I suspect, Mr Burnside, that we all read Phantom comics when we were all young men and I don’t imagine any of us having nightmares from reading Phantom comics. I would suggest, in the context of this history, to impose that as a substantive cause on this process is improbable.’
Walsh continues in his customary dogged way and it is not long before he seizes a chance to test this expert against the State’s.
‘You then on page five of the second report, say that, “As stated above, Professor Goldney does not assess the other psychiatric disorders in detail. Namely, dysthymia, alcohol abuse and post-traumatic stress disorder.”’
‘Yes.’
‘Dysthymia, what’s that?’
‘Dysthymia is a form of chronic pervasive depression that lasts for more than two years and is a persistent low-grade form of depression that doesn’t satisfy the diagnostic criteria for major depressive disorder.’
‘Professor Goldney at page thirteen of his second report deals with the question of the assessment. Do you have that report in front of you?’
‘Yes, I do. What page is it on?’
‘Professor Goldney refers to “major depressive disorder” at the foot of page thirteen.’
‘Yes.’
‘So he does refer to a depressive disorder?’
‘But not specifically dysthymia.’
‘Did you refer to it?’
‘I did talk about the persistence and the history of depression throughout his life.’
‘Did you use the word “dysthymia”?’
‘I didn’t specifically use the word “dysthymia” but I described the pattern of symptomatology.’
