Marked for Death

by Tony Kent

  The intervention of Judge John Levitt – of any judge – was not usually necessary when Matthew Cole cross-examined. But today it was justified.

  Matt’s off his game, Michael thought. Maybe he’s been more affected by what happened to Derek than I expected.

  ‘Alright then, I disagree. They didn’t get the right bloke until they got Darren O’Driscoll ’n Simon Kash. Just like I told Mr Epstein.’

  Cole had little choice but to ignore the answer. ‘And I’m also going to suggest to you, Mr Colliver, that in order to get away with murder, you named my client – Darren O’Driscoll – because you knew that the police wanted him and his brother much more than they wanted you. Isn’t that right?’

  ‘No it ain’t bloody right, cos if I thought the police wanted Darren O’Driscoll and Patrick O’Driscoll, why’d I only mention Darren? Eh? Why’d I give them Darren ’n Simon Kash, instead of Darren ’n Pat? Don’t make no sense what you’re saying, does it? None at all.’

  ‘Mr Colliver, I’m suggesting to you—’

  ‘Wot? Not gonna answer my question then? What’s the matter, mate? Got ya stumped, ’ave I?’

  ‘Mr Colliver, I’m not here to answer your questions.’ Cole resorted to the stock lawyers’ response. ‘But you are here to answer mine, so why don’t we try and stick to that?’

  ‘Suit yourself,’ Colliver replied. ‘But I know what I’d think if I was on the jury.’

  Michael watched as Colliver folded his arms and sat back into the witness-box chair.

  Colliver’s winning this, he thought.

  The answer and Cole’s non-response did exactly what Colliver had said. It undermined Darren O’Driscoll’s case in the eyes of the jury. Not least because Colliver’s point was a good one. Damaging to both O’Driscoll and to Simon Kash.

  Yet Cole had dealt with it poorly before just moving on.

  What the hell are you playing at, Matt?

  Another ten minutes passed before Cole’s cross-examination finally ended. It had not gotten worse. Or any better. Cole had made no progress at all; nothing to make the jury believe that Colliver had been involved in the murder of the Galloway brothers.

  Now it was Michael’s turn.

  He rose to his feet, looking directly at the witness box, at Colliver. A man buoyed in confidence by Cole’s failure. A man whose arrogance had grown with every success and who was making no effort to hide it.

  Michael turned away from the witness pointedly. Almost theatrically. A practised method designed to make the jury do the same.

  The turn was towards the dock. To Michael’s left. The jury’s right. Towards Simon Kash. What they all saw, Michael knew, was the face of a child. Of a boy completely lacking in arrogance. In cockiness.

  Of a boy in fear.

  Michael knew that the jury would compare the two men and that, when they did, Colliver would be found wanting. But the sight affected Michael, too. It reminded him of why he was here. Of why he was taking this risk. Not for Liam any more, but because Derek had believed in Kash. And so did Michael.

  He would not let either one down.

  As Michael turned back to the witness box he glanced down at Jenny Draper. Her eyes were cast down towards the old counsel’s bench at which they sat. She looked like she was steeling herself for the disaster she expected to follow.

  Michael did not care. Because now it was just him and Terry Colliver.

  ‘Mr Colliver, I have some questions to ask you on behalf of Simon Kash.’ Michael’s voice was strong. No hint of his emotional turmoil. ‘Are you happy if we start them now, or could you use a break?’

  ‘Do I look like I need a break?’

  ‘No, Mr Colliver. No you do not. So let’s get cracking, shall we?’

  ‘Fire away.’

  ‘I’ll do that.’

  Michael smiled at Colliver’s confidence. Today should not be fun. Michael knew that. But Colliver seemed primed to distract Michael from thoughts of Derek Reid and Karl Hirst. At least for a while.

  Michael continued.

  ‘I think it might be best if we start with a little recap. Make sure we’re all up to speed on your evidence.’

  ‘Whatever you want.’

  ‘That’s very generous of you.’

  Michael placed one hand on his wooden lectern and stood up to his full height. He made for an imposing figure from across the courtroom. The gesture was not lost on Colliver, who began to fidget in his seat.

  ‘Now we’ve all heard that you were originally arrested, questioned and charged with the murder of the Galloway brothers. Correct?’

  ‘I’ve already been asked that, so you know it’s true.’

  ‘Yes, Mr Colliver. We do. That’s why it’s called a “recap”. Now, shall we carry on?’

  ‘You trying to be funny, mate?’

  ‘Not at all, Mr Colliver. Murder is not a laughing matter.’ Michael glanced towards the jury as he spoke. To create a connection. Then back to Colliver. ‘When you were interviewed by the police – when you were questioned – you said nothing about Darren O’Driscoll’s involvement in the murder.’

  ‘No.’

  ‘You made no mention of him at all.’

  ‘You know I didn’t.’

  ‘And you certainly made no mention at all of my client, Simon Kash. Did you?’

  ‘I didn’t say nuffink about nuffink.’ Colliver’s arrogance was now joined by a slight belligerence. Michael’s questions were beginning to irritate him. ‘I went “no comment”, didn’t I?’

  ‘Indeed you did, Mr Colliver. When first asked about the murder – when under arrest for the murder – you essentially said nothing.’

  ‘Yeah.’

  ‘And yet from what you’ve told this jury today, you could have told the police a hell of a lot.’

  ‘What d’ya mean?’

  ‘What I mean is that you’ve told this jury today that you were at the scene of the crime very soon after the murder.’

  ‘That’s right.’

  ‘That Darren O’Driscoll had called you and had ordered you to collect both him and Simon Kash from the murder scene. To assist in their escape.’

  ‘That’s right n’all.’

  ‘Which you could have told the police when you were questioned.’

  ‘S’ppose, yeah.’

  ‘But you didn’t.’

  ‘No.’

  Michael took a moment to think. He had planned the cross-examination in his mind. An intricate dissection of the evidence. Designed to slowly expose Colliver’s lies. But Colliver was already irritated. The one-word answers told Michael that. So did their tone. Perhaps slow and steady was not the answer with this one.

  It’s like questioning a naughty schoolboy, Michael thought. So let’s play it that way.

  ‘It’s right, isn’t it, that eventually you did mention to the police what you have now told this jury?’

  ‘Yeah.’

  ‘That you told them the same story as you’ve told today. Naming Darren O’Driscoll. Naming Simon Kash.’

  ‘Yeah.’

  ‘And admitting that you’d driven those men away from the scene of the crime.’

  ‘Well that’s what I’d done, innit?’

  ‘Which led to you being charged with an offence of assisting an offender, to which you pleaded guilty.’

  ‘Because I’d done it.’

  ‘And for that you were sentenced to eighteen months’ imprisonment, suspended for two years.’

  ‘Look, mate, I’ve already said all this. Is this goin’ somewhere or what?’

  ‘Recap, Mr Colliver. Recap.’

  ‘Listen, mate—’

  There was anger in Colliver’s voice. Annoyance at Michael’s singsong, sarcastic tone. Michael ignored it.

  ‘Now, just so the jury understand, a suspended sentence is when you receive a sentence of imprisonment but don’t actually have to serve it, provided you stay out of trouble for a specified period. In your case that was two years. Is that your understandin
g?’

  ‘You’re the lawyer, ain’t ya’?’

  ‘Yes, but you’re the one giving evidence. And you haven’t disagreed with my explanation of a suspended sentence, Mr Colliver. So is that your understanding?’

  Colliver glowered silently back at him.

  ‘OK. Then we’ll take it that I’m right. So, let’s recap a bit of the recap, shall we? You were originally charged with an offence of murder. For which you were remanded in custody, yes?’

  ‘Yeah.’

  The belligerence was increasing. Michael’s revised, rapid approach had been a good call.

  ‘And if convicted of that murder, you knew you’d receive a sentence of life imprisonment.’

  ‘Yes.’

  ‘Which would not be suspended, would it?’

  ‘What?’

  ‘You’d have to actually serve that sentence, wouldn’t you? Or at least a minimum term of many years.’

  ‘What’s this got to do with anything?’

  ‘Quite a lot actually, Mr Colliver.’

  Michael always enjoyed a well-placed question from a witness. It was not an opportunity he would miss.

  ‘For one thing, life in a prison is an awful lot worse than a sentence that says “stay out of trouble for a little while and you won’t serve another day”, isn’t it?’

  ‘What?’

  ‘Let me put it more simply.’ Michael adopted a more patronising tone, designed to annoy Colliver further. ‘Which would you prefer, Mr Colliver? Life in prison or a suspended sentence where you don’t get punished provided you keep your nose clean?’

  ‘That’s a stupid bloody question.’

  ‘Yes, I suppose it is.’ Michael turned to the jury. His smile wider. ‘Because I think we all know the answer. But let’s move on.’

  Michael turned back to Colliver.

  ‘So according to your evidence, at the time of your arrest – when you were facing a charge that could give you life imprisonment – you already knew all of the details of the people who had actually committed the offence. Information that could turn that life sentence into a short suspended sentence instead. And yet you chose to say absolutely nothing?’

  ‘I’m not a grass, mate.’

  Michael smiled. He could not have hoped for a better, more impatient answer. It told him that Colliver was no longer thinking. He was now just reacting. The screws were in place.

  It was time to turn them.

  ‘Mr Colliver, you are the main witness for the prosecution in a murder trial against people who you claim were your friends. If what you say is true – and let’s just be clear, I’m saying that it is not true – then surely you’re the very definition of a grass.’

  Peter Epstein QC was on his feet in an instant.

  ‘My Lord, it is utterly inappropriate for one of Her Majesty’s counsel to be calling a witness in a case of this seriousness a “grass”.’

  ‘I agree, Mr Epstein.’ Judge Levitt turned towards Michael. ‘I believe an apology is in order, Mr Devlin?’

  ‘Of course, My Lord.’ Michael’s eyes had not left Colliver’s. ‘I apologise for suggesting that your actions make you a grass, Mr Colliver. What you are and what you are not is, of course, for the jury to decide.’

  ‘Mr Devlin! Mr Colliver is not on trial here.’

  This time Judge Levitt’s intervention was almost a shout. Michael ignored it and continued.

  ‘Mr Colliver, despite telling this jury that you already knew full well who had murdered the Galloway brothers – that you had in fact driven their killers from the scene of the crime – you did not mention any of this when arrested and interviewed for that very crime.’

  ‘No. No I didn’t.’

  ‘And you say that’s because you are not a grass.’

  ‘That’s right.’

  ‘But that can’t be right, though, can it, Mr Colliver?’

  Michael leaned forward onto his wooden lectern. Both arms crossed and supporting his weight. Michael’s tone was now almost conversational. He saw the confusion it caused in Colliver’s eyes.

  ‘I dunno what you’re talking about, mate.’

  ‘Let me explain, Mr Colliver. You were under arrest for murder. So you were in terrible, terrible trouble. Facing a possible life sentence. Still you would not talk. But then, many months later, you did tell the police what you knew. Didn’t you?’

  ‘Yes.’

  ‘But nothing had changed, had it? When you decided to speak to the police – when you decided to name Darren O’Driscoll and Simon Kash – you were still in exactly the same position. Facing the same allegation of murder. The same life sentence.’

  ‘And?’

  ‘And? And, Mr Colliver? Surely you can follow this? You say you didn’t give your account because you’re not a grass. But then later, when nothing had changed, you gave it anyway. So your initial silence cannot be excused by the fact that, as you say, you’re not a grass. Can it? Because you ultimately told. And all that had changed was that your trial was closer.’

  ‘What d’you want me to say?’ Colliver seemed genuinely confused.

  ‘I want you to answer my original question. You could have told the police everything at the time of your interview. Assuming, of course, that what you’ve told this jury is true. And yet you answered “no comment”. Why, Mr Colliver? And don’t say it’s because you’re not a grass, because we’ve established that can’t be the case.’

  Colliver hesitated. The easy ride he’d been given by Cole was long gone. For the first time he thought carefully before he gave his answer.

  ‘I . . . I suppose when I was interviewed I didn’t fink I’d be charged, did I?’

  Michael saw a smile appear in Colliver’s eyes. It betrayed an otherwise perfect poker face. Michael read its meaning. Colliver had hit a home run with his answer.

  Or at least he thought he had.

  ‘I’m sorry.’ Michael was careful to hide his own amusement. ‘Could you explain what that means?’

  ‘I’m sayin’ there was a difference between my “no comment” interview and when I gave my statement to the police. The difference was I was charged when I gave up O’Driscoll ’n Kash. Before that I was just arrested. For somethin’ I’d not done. So I didn’t need to put ’em in it then, did I? When I was interviewed. I didn’t need t’grass then. But once I was charged? Once I was gonna be tried for murder? Different story, mate.’

  Colliver’s arrogance had returned. He was confident he had delivered a winning argument. Michael could not have asked for more.

  ‘That is interesting, Mr Colliver. So the big difference – the thing that made you talk, that made you tell the police everything you knew – was the fact that you had been charged with murder and now faced a trial.’

  ‘That’s right. Yeah.’

  Colliver sounded less certain. Michael’s continued confidence had deflated his own.

  ‘Mr Colliver, do you know what a Plea and Trial Preparation Hearing is?’

  ‘What?’

  ‘You heard me, Mr Colliver. A PTPH. You know what it is, don’t you?’

  ‘Why don’t you remind me?’

  ‘Happily, Mr Colliver. A PTPH is a hearing at which you are asked whether you plead guilty or not guilty, after which your trial date is fixed and a host of other dates are set down, by which point certain parts of the case preparation must be complete. Ring any bells?’

  No response. Michael was sure that Colliver had no idea where this was going.

  ‘OK. Well, unless you correct me – or Mr Epstein does – we’ll assume I’m right and that you had a PTPH in this court in January of this year, where you pleaded not guilty to murder and at which a trial date was set for June. Right?’

  Michael glanced towards the jury when Colliver did not answer. Just for a moment. Long enough to be sure that they had the point.

  ‘Again, I’m not being corrected. So in January of this year everything had changed, like you said. You had been charged. You had a trial date. And yet st
ill you had not mentioned Darren O’Driscoll or Simon Kash. Why is that?’

  ‘Because I weren’t bloody interviewed again, was I? Where was I supposed to say it?’

  This time Michael did not try to hide his smile.

  ‘Have you ever heard of a Defence Statement, Mr Colliver?’

  ‘No.’ Colliver’s petulant answer suggested a man who had reached his limit.

  ‘Well that is interesting, because I happen to have a Defence Statement that has your name and your signature on it. Would you like to take a look?’

  Colliver shot him another angry, silent glare.

  ‘No? Well I’m afraid we’re going to do that anyway.’

  Michael turned to the court usher.

  ‘Madam Usher, I wonder if this document can be shown to the witness. There’s also a copy for His Lordship, one for the court record and six copies for the jury to share. I have additional copies for my learned friends but I can pass those to them myself.’

  He handed the documents to the usher before turning back to Colliver.

  ‘Please take a look at the document you’re about to be handed, Mr Colliver, and confirm for me that you recognise it.’

  The court usher handed Colliver the paperwork, who took a minute or two to read through it. The jury, judge and barristers all did the same. Finally, Colliver nodded his head.

  ‘I’m sorry, Mr Colliver, but we need to hear your answer. For the tape, you understand.’

  ‘Yes.’ Colliver’s voice was strained. His annoyance barely below the surface. ‘I recognise it.’

  ‘Then please confirm for me that this is a Defence Statement, prepared on your instructions to your lawyers and signed by you on the 1st of February of this year.’

  ‘Yes. That’s what it is.’

  ‘And please confirm that you were advised by your lawyers that this document should accurately reflect your defence to the charge of murder.’

  ‘Yes.’

  ‘The defence you would advance at trial.’

  ‘Yes.’

  ‘And that anything you did not mention in the document that later formed a part of your defence – or any inconsistencies between the document and your ultimate defence – could be used by a jury to help prove your guilt.’

  ‘Somethin’ like that, yeah.’