A Stolen Life

by Antonio Buti

  ‘In part, yes. In part, no.’

  ‘In what part yes?’

  ‘In relation to the influence that clearly was exerted on Bruce when he was with his natural mother. That can be undoubted and he was heading down the same path because of that influence as his brothers at that time. So we will not be making broad sweeping statements in relation to that. We will be focusing on the particular evidence at that point in time.’

  ‘I look forward to that.’ But His Honour’s tone refutes his declared enthusiasm.

  What Justice Gray wants now is to get to the defendant’s expert testimony, to get the facts he needs. What he had wanted was an opening statement from counsel that concisely, but adequately, told him what facts the defendant intended to present and how the defendant intended to proceed to present those facts. The opening, however, ought not to descend into argument. That is what the oral testimony is for. But, too often, Justice Gray feels, he has needed to remind counsel that this is an opening, not an argument. Too often, therefore, he has had to insert himself into proceedings to a greater extent than he would like.

  There are difficulties, of course, because of the passing of time since the events in issue happened. In consequence, there is also a greater reliance on documents than usual. So His Honour wants a cooperative effort from counsel on both sides to ensure he has the documents he needs, logically bundled and indexed for ready access. He does not think that counsel, collectively or separately, have given him that. As he feared when contemplating the day ahead, it will end with another tussle with his anathema—what he has mordantly referred to as unruly documents. Taking Walsh and his instructing solicitors to task for duplicate documents and unmanageable cross-referencing, Justice Gray sighs, ‘I want to get on with this case.’

  Judge and counsel do a little judicial housekeeping and then, the moment each is longing for: ‘Is there more to your opening or is that the conclusion?’

  ‘That’s pretty much the conclusion Your Honour.’

  Sufficient unto the day is the evil thereof, as the Bible says. Both Justice Gray and Stephen Walsh would say ‘Amen’ to that. Court adjourned for the day.

  Breathing a sigh of relief, or perhaps release, that the court day is done, Justice Gray heads for home.

  Tomorrow will in essence be the climax to Bruce’s story. All the testimony is in. All examinations in chief and crosses have been laid before the court. Julian Burnside and Stephen Walsh will each present their closing arguments. Each will strive to convince him, Justice Tom Gray, of the indisputable superiority of their case.

  He reflects for a moment on the honorific, ‘Justice’ Tom Gray. That is what he is referred to as but really he is judging; he is in reality ‘Judge’ Tom Gray. Justice is the moral outcome he must deliver. In court he is entrusted with the fearsome power to judge what is just. He has to judge the case that Bruce, the plaintiff, has presented against the State of South Australia. Bruce, broken in health and spirit, now waiting desperately for the determination of one man. So tonight, after dinner with his wife, he must go to his study, become ‘Judge’ Tom Gray. There he will prepare for tomorrow’s closings, secure in his belief that he well understands the evidence and testimony he has heard. And, above all, certain that he will judge what he hears logically and dispassionately.

  He understands that Stephen Walsh must rely on logic to close the argument for the State. There is no emotional edge upon which he can draw to give force to his argument. He will argue from the viewpoint of the danger of presentism; that is, of judging actions of the past from the standpoint of present-day understanding of what is morally just. With that ground established, Gray will draw the court’s attention to conflicts and contradictions that have emerged in some of the expert witness testimony. He reaches for the file of court transcripts of the State’s expert testimony to energise his memory.

  He recalls that the day of the defence’s evidence in chief did not start well. Walsh’s junior, Patrick O’Sullivan, began by taking former welfare officer Barbara Weisert through her testimony. The State had flown her in from interstate for the purpose.

  ‘What was your maiden name?’

  ‘Reiff.’

  To emphasise the correct spelling, O’Sullivan confirms: ‘That’s R-E-I-F-F.’

  ‘Yes.’

  ‘How old are you?’

  ‘Sixty-nine.’

  ‘Are you now retired?’

  ‘Yes.’

  Barbara Weisert then said she had no recollection of Bruce. All she could do was outline the duties of a welfare officer during her time with the Department of Aboriginal Affairs from 1965 to 1966, but not in relation to the specifics of Bruce’s case. Those present in court that day would be questioning the worth of flying her in. A waste of time and money. Her testimony had no probative value.

  The defence team hoped things would improve with evidence from other welfare officers. But over the following days of the trial, they did not improve much. Yes, they had given the court insight into the workings of the Department of Aboriginal Affairs during the relevant times, but this was unlikely to add much value to the judge’s understanding of the Department’s relationship with Bruce.

  Thumbing through the court transcript, His Honour recalls that two welfare officers, Brian Bennett and Joan Malone, had said that they understood the Department of Aboriginal Affairs had no power to remove an Aboriginal child from its natural parents. What’s more, if the Department wanted to place an Aboriginal child into foster care, they had to obtain parental consent. As Bennett recalled, if the needs of the child required it, the Child Welfare Department had to be involved. This would have been welcome testimony for Bruce’s legal team, which was arguing that the Department of Aboriginal Affairs had no such consent.

  Gray flicks through the pages of the transcript until he comes to Walsh’s examination in chief of Professor Robert Donald Goldney. He reads again his own intervention, when he had questioned the professor on the two reports in which he had made assumptions based on documents others had provided about Bruce being malnourished and about Joe’s alleged excessive drinking.

  Justice Gray had asked, ‘So you have assumed, in expressing your opinion, the accuracy of each of those matters?’

  ‘Of course, yes.’

  ‘In that respect you were referring to various written records that you have had regard to.’

  ‘That’s right, yes.’

  As he reads this, Gray recalls that Professor Goldney had admitted his assumptions were not established as matters of fact.

  He also wants to refresh his memory of the testimony of Professor Christopher Tennant, which, along with that of Goldney, will be important in reaching his judgment. Tennant, a professor of psychiatry, had no experience practising as a child psychiatrist or clinical experience with Aboriginal people who had been separated from their parents in childhood. Just as Goldney had done, he also had made assumptions from reviewing expert reports of others. Gray skims through Tennant’s evidence in chief to find Julian Burnside’s cross-examination. He recalls that this is where he had come to the nub of the problem with significant portions of Tennant’s testimony.

  Burnside had asked, ‘Where you go on in your report to say that “the mother had left the family under the care of her alcoholic husband”, you agree that is merely your misapprehension?’

  ‘I think that it was my misapprehension, that it was the other father who had an alcohol problem, yes.’

  ‘Ten years later.’

  ‘Yes, yes.’

  Burnside brought Tennant to his statement that Bruce was ‘sufficiently neglected as to be admitted to hospital’. Burnside asked if what Tennant was referring to as the detailed social examination was the hospital notes made from what Mr and Mrs Evans had said.

  ‘Yes.’

  ‘You would agree that that is a hopelessly inadequate social——’

  ‘That is inadequate, that is inadequate.’

  ‘Can you explain to Your Honour why you describe th
at hopelessly inadequate social history as a “detailed social examination”?’

  ‘Well, that was the impression I was getting from reading other psychiatrists’ reports and I think, as you have pointed out, some of the facts got quite clearly confused.’

  This line of questioning was not going well for Tennant and not going well for the State, and the further it went, the clearer it became that much of what he had reported was the product of misapprehension of the facts.

  ‘So it’s fair to say, isn’t it, that your reports reach the conclusions they did based on those two important misapprehensions.’

  ‘Yes.’

  ‘When you allow for those important misapprehensions of fact, your conclusion must change.’

  ‘Yes, it certainly would change the severity of that issue, indeed, yes.’

  ‘In particular, your conclusions would have to change because you’re at pains, in various places, to say that you have to assess the quality of caring in the natural family and balance that against the quality of caring in the foster family and work into that——’

  ‘Absolutely.’

  Justice Gray, sitting in his study the evening before he hears counsels’ closings, has read enough. With a sigh, he closes the file. Tom Gray, the man, stretches with a yawn. Switches off the light. Closes the study door behind him. Smiles as he heads to bed, thinking, sleep the sleep of the just?

  Chapter 18

  CLOSING

  Counsel in an adversarial trial each tries to build a narrative of the case, to tell a story, that will convince a judge or persuade a jury. Rarely can they do this in the logically evolving way that a writer or storyteller can. There are too many roadblocks in the narrative path. Some of these are bureaucratic sentry posts whose role is to stop the narrative’s protagonists violating rules of evidence or trial procedure rules. They are not arbitrary rules; they are in place to safeguard probative integrity and to ensure procedural orderliness.

  Other obstructions are tactical. Opposing counsel will throw them into the path of a developing narrative to interfere with its coherence and to impede its progress to a denouement that is at odds with that which favours their client. Sometimes these roadblocks and strewn obstructions will become a distracting narrative in their own right, with the judge as critic of last resort. These are the arguments that, in this trial, the judge has heard in the voir dire.

  This is why we have closing addresses. They are reconstituted narratives, in abridged form, to regenerate the internal continuity with which roadblocks and obstructions have interfered. They are as important for the judge or the jury as they are for counsel. They refresh the salient point of the competing narratives in the minds of the decision-maker, whether judge or jury, who must now deliver judgment.

  It is not a matter of one counsel telling a story that is truthful and the other telling a story that is a lie. Rather, the decision-maker has to test two truths in conflict. Each counsel will see the truth in the facts from their standpoint, a contextual truth. The difficulty for the decision-maker—significantly more so for a judge alone than for a juror supported by eleven peers—is that an appeals court will want to reveal the invariant truth, a truth that does not depend on context.

  Ten o’clock on Monday morning of 20 March 2006 and the time has finally arrived for Walsh and Burnside to present their closing addresses in this long trial. Justice Gray has asked for, and counsel have given him, estimates of how long they will need for their closings; neither has planned to take as long as ultimately they will. By the time it ends, the trial will have sat for thirty-eight days. Of those days, Walsh’s closing will consume five and Burnside’s three. To be fair, much of the increased time is a result of His Honour’s intercessions. To be equally fair to the judge, these intercessions are planned and tactical, not impulsive nor arbitrary.

  Justice Gray is taking advantage of one of the benefits of being a judge alone, the sole final arbiter, in a trial. In a trial before jury, counsel will rely on their rhetorical skills to persuade jurors to accept their narrative. Only when each counsel has finished will the judge direct the jury on points of law and on the need to be sure in their own minds that facts have been proven beyond reasonable doubt. Then they must apply the law as given to the facts as found to decide guilt or innocence, culpability or blamelessness. A juror might go into the jury room with a tentative viewpoint on those alternatives, which they will either affirm or change in discussion with their jury peers. A judge alone might come to the end of a trial with a tentative viewpoint on those same alternatives. But, as the High Court has declared, the judge ought to give respective counsel the opportunity to test the integral strength of that viewpoint when doubt exists, before the judge retires to their chambers to consider their verdict. His Honour’s opportunity to put his doubts to rest lies in these closing addresses, where he can insert himself into the rhetorical process to ask searching questions. Though it may disturb the oratorical eloquence of counsel, if the judge has a potentially adverse tentative viewpoint, it is better to confront it and try to resolve it before the judge is cloistered in sacrosanct chambers.

  Justice Gray has four key areas on which he has a tentative viewpoint he needs to test for judicial conviction. First is whether the Aborigines Protection Board acted beyond its powers in removing Bruce from his biological family. He intends to play strong devil’s advocate to challenge Walsh on this point, as a means of ensuring that, when making his decision, he has explored all facets of the arguments for and against. This is a discussion of the law. Second, he will challenge the State’s viewpoint that Bruce’s parents singly or jointly had failed in their care of Bruce, leading the Board to supposedly act in his interests by removing him from their influence. This is a discussion of the facts. Third, in the event that he decides against the Board, and for Bruce’s parents, he will similarly advocate as devil and challenge the plaintiff’s claim that the State had a fiduciary duty to protect Bruce’s welfare. That, too, is a conversation about the relevant law. Fourth, he will challenge the other significant area in which doubt might reside, namely, the amount of weight to be given to the expert witnesses’ testimony. He will not contest the experts on their specialist knowledge but, just as a judge or jury must apply the law to the facts, he will make clear to both counsel that, as judge, he must apply the psychiatry in which their experts have knowledge to the facts upon which he has significantly more knowledge than they do.

  He will make clear that, in saying this, he is not denigrating the experts, but rather contesting the respective counsel’s assertions and interpretations of their chosen experts’ testimonies, which have been guided by their respective standpoints. Justice Gray, on the other hand, is better able to remove himself from such contextual constraints when he considers the facts. He wants both counsel and their instructors to know that this is his view on the matter of expert testimony. It is what one would expect from Gray given his experience and his insight.

  Walsh, who goes first in closing as is standard practice for defence counsel, briefly foreshadows the ‘three broad heads or periods’ of the plaintiff’s case and the order in which he will deal with them. First is the removal of Bruce from his biological parents. Second is the placement of Bruce with the Davies family, and third is the return of Bruce from the Davies family to his mother.

  Walsh contends that the State of South Australia ‘is not liable to compensate the plaintiff for any of the asserted breaches of duty or any of the causes of action that are raised against it’. Justice Gray listens without interrupting as Walsh reminds him—for the record, not because he needs reminding—that the principal causes of action are in tort, which is basically a civil wrong, and that tort law exists to provide relief to a person who has suffered harm because of the action of another or of others. He names the principal causes of action in this case as breach of duty of care, misfeasance in public office, which is a charge against the Aborigines Protection Board, and wrongful imprisonment. These causes of action have all
been argued at length in trial and His Honour will gain no further insight by interrogating Walsh on them again.

  Walsh does pique Justice Gray’s interest beyond the ordinary when he says, ‘The primary point that we make with respect to the first period is that the State didn’t owe any fiduciary duty.’ He argues that the Aborigines Protection Board could be the only body against which such an action might be claimed; however, it would ‘only owe duties against the background of the legislations, the discretions that were given to it under section seven, matched against the fact that it was the true legal guardian of the plaintiff’. Nevertheless, he says, ‘None of the claims, in our submission, raise breaches of a fiduciary nature in the sense that they are not a claim based in tort, for example, and cannot be a breach of fiduciary duty.’

  Now His Honour is keen to have Walsh express the State’s position unambiguously. ‘So what is your position on regard to the Aborigines Protection Board? Did it owe a fiduciary duty or not?’

  ‘The Aborigines Protection Board may have owed a fiduciary duty with respect to certain issues, namely, not to act against the interests of the child and in conflict with the interests of the child, to make a gain for itself or the like.’

  His Honour is not content with an ambivalent reply. This is the very reason he has descended into the arena to ask questions. ‘What do you mean “may have owed” on your case?’

  ‘We say they are not owed a fiduciary duty because of the background of the legislation.’

  ‘If you did, it was of limited content and not breached in this case?’

  ‘Yes.’

  His Honour wants more clarification of this viewpoint. ‘But in any event, the State is not responsible for the actions of the Protection Board?’

  Walsh clarifies. ‘When one looks at the categories of fiduciary duty that have arisen … it might be, for example, that Mrs Davies might be thought to be in a position similar to the teacher who has got custody of a child for specific purposes. The duty that arises of a fiduciary nature is not coexistent with the duty that arises with respect to the general common law causes of action. It’s quite separate, and further, we say that the Aborigines Protection Board would not be responsible for any breach by Mrs Davies but in any event, insofar as Mrs Davies has custody of the child, the same as a parent, there is no cause of action except in the very specific circumstances where physical injury, for example, might be involved.