by Antonio Buti
‘But it could be an insight as to what might be said to be the difficulties facing an Indigenous mother whose child is no longer there. And she writes, as a mother, it might be interpreted as a cry to see her child, and to be met with the response yes, she wants to see her child.’
‘We don’t know what passed.’
‘Listening to you, if one was in a circumstance where, for whatever reason at the time, those writing to the mother were not anxious to meet her requests, then it is an easy way to be obstructed without actually saying no.’
‘That’s one interpretation open. The unfairness to the defendant is it’s unable to defend itself of that interpretation, other than to look at other documents to suggest there is a broader picture than that. Unfortunately we don’t know what that broader picture was but we do know from her own letter that there has been some contact.’
‘This question of unfairness is going to be a difficult matter to assess and evaluate and reach a ruling on; I don’t shy away from that. You have to put in the scales the disadvantaged state of people in the Trevorrows’ situation.’
At this point, Walsh might do himself a service by accepting the judge’s caution and moving on. Instead, he starts digging another hole.
‘Of course, but it would seem, whether it be this family or another family, from the evidence that has been tendered by my learned friend, that there has been an ability to contact when parents want to see children; access had been granted.’
‘I was speaking a bit more deeply than that. You are talking about people who, as against the European society at the time, are at a great disadvantage in several respects. It hardly needs to be stated.’ His advice of a few moments ago to be cautious has become a talking-to.
Walsh concedes more ground: ‘We don’t challenge that.’
‘I’m sure the State doesn’t. When it comes down to evaluating prejudice and issues about weighing prejudices——’
‘But what we don’t have is the people who made decisions and there may very well be a perfectly acceptable and plausible explanation. We don’t know the answer to it. What we do know up until that letter and whatever enquiry had occurred before that time, Mrs Trevorrow, Thora Karpany as she subsequently was known, was not caring for the other children.’
And with that fateful push on the shovel, he cedes His Honour another niggle-point: Stephen Walsh’s penchant for supposition and inference.
Justice Gray wants specificity. ‘I don’t think that really addresses the issue that I’m raising—that’s an important issue. If we get to the point where we debate an extension of time, if you are unsuccessful on that and we then decide the case, it would be a question of doing the best one can to make findings on the portions of the evidence available, and the usual rules provide guidelines where that process is to take place. One of the relevant matters will be the disadvantages that are in your client’s position and hence, the caution before drawing inferences.’
Walsh offers another inference. ‘I’m not suggesting that at the moment. What I’m saying is that there is an inference that Thora Karpany could and would write if she wished to, because there is no doubt that at some subsequent point of time she did make contact and said I would now like to see my child after many further years.’
‘Do I evaluate her ability to react in a situation as being the equivalent of an educated European or do I treat her in a different way?’
Walsh notionally treats it as the rhetorical question it was meant to be but takes another shovelful anyway.
‘If we look at the period between that letter and when she did make contact again and was granted access, she freely said that she didn’t want custody of Bruce because she was living in unsatisfactory circumstances.’ He has missed the point of Justice Gray’s earlier advice so His Honour reminds him.
‘You say “freely said” and you might be right, but that’s an inference. All I have got is a narrative, third-hand account.’
‘This is true. We have more.’
‘Who took that statement?’
‘It was a welfare officer but there is something more to back it up and that is the circumstances of Thora Karpany, where she was living and the reports of Mrs Karpany and the difficulties she was having and the accommodation they were living in.’
‘The implication in your submission to me was that the “before” was a rather open-ended before.’
‘We will attempt to piece together the information that will assist Your Honour in reaching a conclusion that we think will support what we put to you.’
‘The point of my comments is to say that I am acutely aware of the difficulties that your client is placed in with this extension of time, and I’m really urging you to be as detailed and helpful as you can in preparing that material.’
To an anxious advocate, this sounds very much like an advance warning that an extension of time is a fait accompli. Burnside is enjoying this as he switches his gaze back to the bar table. So are Richardson and O’Connor. Walsh? Not so much.
Redirecting his focus to Thora in an attempt to activate the defence of guardianship to protect the child has not worked. To continue that line of attack might have the unintended consequence of consolidating in Justice Gray’s mind the idea that separation from a child’s mother can cause severe depression in the child. It is a claim floated by one of the child psychiatrist expert witnesses that Burnside has called. This last series of verbal jousts with Gray has alerted Walsh to the danger. Time to cut his losses on this front and fortify his legal redoubt against a counterattack based on compensable damages.
He has resigned himself to the fact that the case against his client will proceed: the court will not deny extension of time. He is worried about the guardianship gambit with which he opened. The family testimony has raised a nagging doubt that he can persuade the court even to the narrow application of the provisions of the Act. He reviews in his mind his performance as advocate to date in this trial. He doesn’t think he missed any openings when he cross-examined; he probed what he perceived as weaknesses aggressively, exercised his right to object to testimony sensibly when he believed it inadmissible, and challenged any counsel attempts to lead witnesses. His internal micro-review over, his mind snaps back to the job ahead. He is yet to build his client’s own case through his witness testimony, of course, but still there is much hard work to do, especially on the issue of causation and compensable damages.
Now he runs through a micro-preview of what he is about to put before Justice Gray. The State will offer evidence that neither it nor its agents—specifically the Aborigines Protection Board and the Children’s Welfare and Public Relief Board—committed any relevant breach of duty likely to cause psychiatric illness or injury to the plaintiff. It will provide expert witness testimony that separating Bruce from his mother at the age of thirteen months, and for almost ten years after, did not cause any long-term effects. It will offer similar expert witness testimony that the plaintiff had brain damage at birth sufficient to cause behavioural problems. Those problems would have been manifest even if he had stayed with his natural family. It will say that counsel for the plaintiff has not produced any evidence to support a claim that Martha Davies’ threats to send Bruce away from the family had any long-term effects. Finally, the State will argue that the plaintiff contributed significantly to his own problems through his addiction to alcohol and drugs.
Justice Gray’s disposition today is in take-no-prisoners mode. Walsh fears that if what has gone before is a reliable predictor of what is to follow, he is in for a torrid time. But, for better or for worse, he has to make a seamless transfer from pursuing the issue of Thora’s treatment of Bruce as a trigger for guardianship action to the issue of causation. He responds to His Honour’s urging him to be ‘detailed and helpful’.
‘We propose to do just that and, in fact, one of the things we would like to do … is just walk Your Honour through some of the documents that come from the Child Guidance Clinic and the Departmen
t.’
Apparently, His Honour has something else on his mind. ‘While we are talking about this early correspondence, you made a comment to me about this response to a letter from Bruce’s mother. This had been written on 19 August 1958, so Bruce had been with the Davies family for the best part of six months: “Bruce is making good progress, but the doctor does not consider him fit to go home.”’
‘My learned friend says that’s a lie.’
‘We do have hospital records, don’t we, of Bruce’s attendance at hospital at this time?’
‘We don’t know that we have all the hospital records. All we know is that we have what has been provided. The hospital records at that time only relate to the period that he was in hospital immediately before he was sent to the Davies family.’
‘I thought we had hospital records that spanned the period from 1958 through dates to the 1960s, reference to circumcision and reference to other treatment?’
‘There are hospital records, I acknowledge Your Honour, but we don’t know that we have all the records that might be obtainable with regard to every hospital he’s been in. We just don’t know.’
Justice Gray’s equable demeanour is being tested. ‘But this is an option that a doctor would have been asked to consider whether Bruce was fit to go home or be fostered out?’
‘It may be at that time it was considered because of the problems that he had in the past. You will hear some evidence of Carol Malinda about how he appeared when he was first fostered. He had obviously been through a hard time and it may well have been that at that point in time it was thought it would be a retrograde step to send him back to an environment which had caused that.’ Walsh is avoiding a direct answer by speculating once again.
The judge cannot be distracted; he still wants facts, not speculation. ‘Is there any other document that would suggest Bruce wasn’t fit to go home in August 1958 or thereabouts?’
‘There is no contemporaneous document about it.’
‘No other document at all?’ His Honour remains unconvinced.
‘No.’ And to forestall another probable challenge from the judge, Walsh moves on quickly to the point he had been heading to before Justice Gray forced him to change direction. ‘I’ll come back to this period … from the time he went to live with his mother at age ten until his placement at Windana Remand Centre. The evidence, we say, suggests that what happened was that it initially worked well … but unfortunately, he was introduced to the activities of his older brothers. That was conceded by witnesses and that included, unfortunately, criminal offending and we know that in about mid-1969 he was charged with an offence and he was then, of course, sent to Windana.’
He had used the word ‘unfortunately’ twice in juxtaposition, not to express any solicitous sadness that big brothers had led young Bruce astray—although it would not hurt to cast doubt on their probity as witnesses—but as a means of introducing the legal concept of a novus actus interveniens. Sometimes referred to as ‘snapping the causal chain’, it is a rule of policy which holds that a defendant is not liable for damage that an overwhelming supervening event has caused. He wants to impress upon Justice Gray that an occurrence over which his defendant had no control has significantly damaged Bruce.
‘We also know that when Thora Karpany was confronted with policemen and Bruce, she beat him so savagely, it would seem, that the policeman took him away. He feared for his safety. Once again, we don’t know why that was so but it was, we just don’t know what was happening in that period of time before he committed an offence. But what we do know, and it is highly relevant to causation issues as much as any other matter, for example, liability and what should be happening with respect to Bruce.’ A bit garbled, but no matter. It is effective enough, Walsh believes, to lead into his clinching claim: ‘But it’s highly relevant that had he been with that family and not fostered in the Davies family, he may well have ended up exactly where he was.’
His Honour, though, seems to have picked up the non sequitur. Yes, if it had been proven that this event had caused damage, it would certainly be relevant. But, as counsel for the defence has described the incident, it was again speculation, not fact. He asks Walsh the pertinent question, ‘Who is going to carry the onus on that issue?’
The question has taken Walsh by surprise; he gives a boilerplate answer. ‘In our submission, the plaintiff must prove that he suffered loss.’
‘I understand that.’ Clearly, the judge wants more. He is testing Walsh again.
‘The plaintiff has the onus, in answer to Your Honour’s question,’ that last bit a phatic insert while he tries to fathom what the judge wants. Then, the penny drops. ‘There is no shifting evidentiary onus.’
‘So you’ve had a look at the High Court cases about shifting onus on these types of issues?’
A loaded question, Walsh realises, because clearly Justice Gray has had a look. If he answers yes, Gray will ask Walsh to tell him what the High Court held. If he answers no, His Honour will tell him what the High Court held. Walsh does neither. When in doubt, go prolix.
‘Our case is that there is no shifting evidentiary onus and what you have to demonstrate, we would have thought, for there to be a shifting evidentiary onus, would be a state of affairs that would suggest, no, that wouldn’t have occurred and then there might be a shifting evidentiary onus to us to suggest that yes, that prima facie onus is wrong. Here, what we know is that all the evidence suggests that had he remained, for example, with his mother, he would have gone through the tragedy of being in the Karpany household and that was a very difficult household. The contemporaneous evidence shows that not only were they living in squalor but Mr Karpany was very violent.’
Justice Gray has been ‘prolixed’ by experts before. He tests Walsh again. ‘You might have to refresh my memory about the cases.’
‘We were familiar with those cases.’
‘You say they have no relevance? Do you say they have no relevance?’
Walsh senses this is another loaded question. ‘We say there is no shifting evidentiary burden.’
Justice Gray lets Walsh rest on the handle of his shovel for a moment. ‘So those cases have no relevance? Thank you.’
Thankful for the chance to divert the focus, Walsh raises the issue of Bruce having spent much of his young years in institutions. He reminds the judge that a course of action against the defendant about the length of time Bruce spent in various institutions had been dropped. ‘So Your Honour won’t be troubled by all that.’ However, he asserts, ‘It is not an issue that can easily be brushed aside if there was a real risk that Bruce Trevorrow had ended up in an institution, no matter where he had been brought up, including if he had been brought up by Mother and Father or Mrs Vizard, he may very well have ended up in an institution.’
His Honour, on the other hand, may very well have been thinking, here he goes again. ‘You don’t place any statistics before me about the probabilities of an Indigenous child from this time being at a much greater likelihood of spending time in a remand centre and in gaol and affected by alcohol and being unemployed than any other in the community.’
End-of-sentence pause. Walsh seizes a chance to head off this challenge. ‘Not in general. I don’t put it as a general proposition. I’m saying on the facts of this case——’
But Justice Gray has also been headed off by experts. He simply cruises through. ‘You’re just speculating. There might have been lots of statistics put together, for example, in the royal commissions?’
Walsh is scrabbling again. ‘If you put a submission that you should draw an inference from the general, Your Honour may say “what about this child”, and we propose to deal with the case on the basis of this child and what the evidence shows——’
‘The question then, this child is an Indigenous child being brought up in South Australia in the 1960s, it might be suggested he would have been at a greater disadvantage of spending a much greater time in institutions, gaol and being affected by alcoh
ol than anyone else.’ He finishes with a question that he leaves Walsh in no doubt he wants an answer to. ‘Is that information not to be before me?’
‘I’m not expressing myself well. I am saying that in relation to this family, there is an abundance of evidence as to the problems of George, Tom, offending, institutionalisation, the mother, the father, the stepfather and so forth. I’m saying that the evidence that is before you is what we will be relying on.’
‘You are seeking to draw inferences from that family generally and the way the other siblings in the family have got through their lives? Is that right?’
‘I will answer as I see I should, if I may.’
His Honour is not amused. ‘I’d like the question answered.’
‘I will answer it in a qualified way because what Your Honour seeks to do, of course, and I understand it, it’s a perfectly fair point, is that we should then seek to transport that proposition right through to the present time and compare the siblings, and that’s a very real issue between the psychiatrists and we understand that issue and I understand why Your Honour puts it to me——’
As His Honour had glumly foreseen at the start of this day, counsel is sorely testing his patience. ‘So what are you going to do about it?’
‘In answer to Your Honour’s question, we will be looking at the evidence and we will be looking at the particular period, what has occurred and then matched the expert evidence in particular cases——’
‘So what is the answer to my question?’
