“What’s this?” she said, by which time my mouth was dry.
“I don’t remember anymore. I found it on the ground. You may as well open it.” It was a simple bracelet of linked silver, a series of interlocking Möbius strips.
“Simon, it’s beautiful!”
“I hope you like it. It’s very simple.”
“Oh, I do,” she said, putting it around her wrist.
“Really? I designed it myself.”
“You didn’t?”
“Of course I didn’t,” I said, but by now she had found and was unfolding the poem I had at the bottom of the box.
“What’s this?” she said. It was Shakespeare’s “Let me not to the marriage of true minds,” and she read it to herself except the last four lines, which she read out loud.
Love alters not with his brief hours and weeks,
But bears it out even to the edge of doom.
If this be error and upon me proved,
I never writ, nor no man ever loved.
I knew the prosecution was going to call Detectives Staszic and Threlfall in opposing my bail application. I was ready for that. But when they mentioned the name Frederick Zwier, I had no idea who they were talking about. Even as he was sworn in, I thought that the face might be familiar but I really couldn’t place him. He gave his full name and a prison address. He was the dealer who had shared a cell with me at the Melbourne Assessment Prison.
He told the magistrate that on a certain day he shared a cell with the “applicant,” as he knew to call me, and that he found me eager to engage him in various conversations in which I did most of the talking. He said that I had confessed to stealing the child and that, expecting to be granted bail, I was planning to abscond as soon as I could.
Gina Serkin had me wearing a suit and tie. I sat in the dock clutching at my collar, inserting the finger of one hand between it and my neck. Gina turned around to face me briefly and saw me shake my head to damn this man to hell. The police had bugged our cell. He had been placed there deliberately to get me talking. They had it all on tape. The prosecution had not planned to play it unless Mr. Zwier’s evidence was contested. He was the man who found the criminal-justice system just another branch of government bureaucracy, ubiquitous in his line of work but a mere annoyance.
We got permission for Gina to “seek instructions” from me.
“He’s lying!” I whispered to her in fury.
“Was he in the cell with you?”
“Yes, but—”
“Did you talk to him?”
“Yes, but—”
“Simon, is there anything you didn’t tell me but now wish you had?”
“Gina, he’s fucking lying. I didn’t say any of that. I didn’t confess to anything. Can you make them play the tape?”
“Are you sure I should?”
“Gina, for Christ’s sake, you have to believe me!”
“I want to be clear on this, your instructions are for me to get them to play the tape to the magistrate?”
“Yes, of course.”
“What’s on it? What did you say to him?”
“I don’t know, nothing important. We just talked. I told him that I’d never been in trouble before, that I felt sick about it. I didn’t confess to anything. I haven’t done anything to confess to.”
“Simon, I appreciate your instructions, but we’ve no reason to believe Anna Geraghty is going to change her story. It’ll be your word against hers, and now there’s this tape.”
“There’s nothing on the tape. I didn’t say anything, nothing incriminating.”
Gina had them play the tape. Then she sought a short adjournment before putting Zwier through his paces. Alex was right. She was good in court.
“Mr. Zwier, would you tell the court where you live.”
“Do I have to?”
“You don’t want to?”
“Not really.”
“Why not?”
“Well . . . it’s not relevant.”
“Its relevance may not be obvious to you immediately, Mr. Zwier, but I’ll ask you to bear with me and answer the question.”
“I . . . I’d rather not.”
“And that’s because you don’t feel comfortable with people knowing where you live, isn’t it?”
“Well, I don’t know who all these people are,” he said, gesturing toward the public gallery.
“Mr. Zwier, you think you have good reason to be cautious about people knowing where you live, don’t you?”
“I don’t know.”
“More reason to be cautious than the average person?”
“I don’t know. What’s average?” he smirked.
“Ms. Serkin,” the magistrate interrupted, “do you know where you’re going with this?”
“Yes, Your Worship.”
“Do you think you could take us there a little faster?”
“Yes, Your Worship. Mr. Zwier, you know Anne-Marie Bellamy, don’t you?”
“Not very well.”
“But you know who she is, don’t you?”
“Hardly.”
“But you know her well enough to have slept with her, don’t you?”
“Yes, as I said, I don’t know her very well.”
“No, not very well. Not well enough for her to consent to sleeping with you.”
“No, that’s not true. She consented.”
“Did she consent before or after you put something in her drink at the Amazon Nightclub?”
“I didn’t put anything in her drink.”
“But the police think you did, don’t they?”
“I don’t know what they think,” he said dismissively.
“Mr. Zwier, twenty-four hours before you had the taped conversation with Mr. Heywood in the cells at the Melbourne Assessment Prison you were charged with administering a drug for the purposes of sexual penetration pursuant to Section 53 of the Crimes Act.”
“Yes.”
“And you were also charged pursuant to Section 19 with administering a substance capable of interfering substantially with the bodily functions of another, weren’t you?”
“She said she was eighteen.”
“Did she volunteer that, or did you ask her before you drugged her?”
“Objection! Sir, Mr. Zwier is not on trial here,” the prosecutor protested.
“No, he isn’t, Your Worship, but his credibility is,” Gina answered.
“Try not to get into an argument with the witness, Ms. Serkin,” the magistrate said.
“She said she was eighteen, but she’s seventeen. What’s a year? It shouldn’t be a crime,” Zwier said.
“Is that your defense, Mr. Zwier?” Gina asked.
“I don’t have to answer that.”
“You were also charged pursuant to Section 71 of the Drugs, Poisons, and Controlled Substances Act with trafficking in a drug of dependence, weren’t you?”
“I don’t know.”
“Too many charges to remember, aren’t there, Mr. Zwier?”
“They’re not important.”
“All those charges, not important? Not important to you, Mr. Zwier?”
“They’ve dropped them.”
“Are you telling the court the police have dropped the charges against you?”
“Most of them. Yes.”
“That must make you feel very kindly disposed to the police, does it?”
“They should’ve dropped all of them.”
“But they haven’t, have they?”
“What?”
“The police haven’t dropped all the charges against you, have they?”
“No.”
“You’re still facing the charge of sexual penetration of a sixteen- or seventeen-year-old child, aren’t you?”
“Yes.”
“Well, perhaps they’re not quite finished with you, Mr. Zwier.”
“They’d better be.”
“I wonder if you can help me get the timing of all this straight, Mr. Zwier. You met Anne
-Marie Bellamy on the Friday night at the Amazon Nightclub, right?”
“Yep.”
“You slept with her that night, right?”
“Yep.”
“You were charged with everything I just mentioned late the next morning, weren’t you?”
“Yes.”
“About thirty-six hours later you find yourself sharing a cell with the applicant in the Melbourne Assessment Prison?”
“Yes, that’s right.”
“While there you have various conversations with him which the police have on tape.”
“Yes.”
“Sometime after that many of the charges against you are dropped.”
“Yes.”
“Some of the more serious ones, too.”
“As I said, they should have all been dropped.”
“They dropped trafficking in a drug of dependence, didn’t they?”
“Yes, they did.”
“That’s a good one to have dropped, isn’t it?”
“Yes, it is.”
“Because a second conviction for that is likely to lead to some serious time inside, isn’t it?”
“Yes.”
“And you’ve been convicted of that before, haven’t you?”
“Long time ago, Your Worship.”
“Mr. Zwier,” Gina continued, “was that the time you were charged with ‘perverting the course of public justice,’ or was that another time?”
“Don’t you remember the section for that one, you stuck-up—”
“Mr. Zwier,” the magistrate interrupted, “please limit your answers to the question put to you.”
“Yes, sorry.”
“Mr. Zwier, you made a deal with the police to try to elicit information from my client, Mr. Simon Heywood, and then to testify against him in return for certain of the charges against you being dropped, didn’t you?”
“No.”
“Are you telling the court that’s not what happened?”
“No, that’s not what happened.”
“Mr. Zwier, will you have a look at the transcript of the taped conversation between you and Simon Heywood.”
“Yes.”
“I’d like you to read it carefully.”
He pretended to read it, but the temptation to demonstrate his contempt and his anger was too strong and he made a show of letting the pages drop from his hands as he sped through it.
“Have you read it carefully, all the way through?” she asked him.
“Yes,” he said and then added, “I was there.”
“Is the transcript accurate?”
“Yes.”
“Can you read aloud to the court those sections of the transcript which you say record the applicant, Simon Heywood, admitting to you that he unlawfully took the child, Samuel Geraghty, and that, if he was granted bail, he intended to abscond?”
“Your Worship, I must object to this,” the prosecutor jumped up to announce.
“Yes, Ms. Serkin,” the magistrate said, “I would have thought that the witness’s opinion or rather his interpretation of the conversation is not as important as mine. Wouldn’t you agree?”
“Yes, sir, but I was—”
“I have the tape and the transcript, and there seems to be no dispute as to its accuracy. Do you have any further questions for this witness?”
“No, sir.”
“You weren’t planning any re-examination of this witness, were you?” the magistrate asked the prosecutor, which I took as a good sign. Gina knew better and thus I was introduced to those legal procedures that are never codified and, apparently, are never taught. I took the magistrate to be hinting heavily that he did not want to hear any more from Zwier, most probably because Gina had destroyed his credibility by indicating there was a motive for him to lie. I started to congratulate her, but she quickly brought me back down to earth with her expression and then explanation.
“I have to say, I don’t think it’s looking good for us, Simon.”
“What are you talking about? You completely destroyed him. So much so that the magistrate didn’t want to hear from him anymore, didn’t want him re-examined.”
“That’s part of what I mean. The purpose of re-examination is to allow the counsel who called the witness to fix up any problems that have arisen in cross-examination. When the court hints that re-examination isn’t going to be welcomed it’s like saying, ‘Don’t worry about cleaning up the mess your witness just made. I’m going to find for you anyway. So don’t re-examine, I want to get out of here.’ ”
“But, Gina, the guy was so obviously disreputable and there are no confessions on the tape. You heard it.”
“Simon, I know, you’re right. But that magistrate is backstage right now writing up the reasons for his decision. He’s thinking a lot of different things all at once. He’s pissed off with the police for not getting someone better, someone ‘cleaner,’ to ‘verbal’ you. As a magistrate he’s completely oblivious to the attempt by the media to blame you for every missing child since Mowgli, but as a person he’s reading it, hearing it, watching it. Even if he’s not buying it, he doesn’t want to be the one to let the ‘child abductor,’ as they’re portraying you, go free. He doesn’t need the letters to the paper, the talk-show psychos. He doesn’t need the cutting remarks from his colleagues or his wife.”
“But he seemed to like you,” I said, bewildered.
“Oh, he does. He’ll probably make a point of coming over to me at the Criminal Bar dinner in a few weeks to tell me what a good job I did. But he’s not going to let you out.”
She was right. His written decision did not refer to any part of the taped conversation in which I was alleged to have confessed to taking Sam unlawfully, but it did make mention several times of the throwaway line I used to evince shame, namely “I just want to disappear.” Thus, out of my own mouth I became an unacceptable flight risk and this, plus the community’s “justifiable concern at recent crimes against children and young persons,” led to my application for bail being refused.
6. The law permits more than one attempt at bail. After I was beaten up in the mainstream section of Port Phillip Prison we tried again, this time in the Supreme Court. The prosecution countered that society’s concern that I not abscond, not intimidate witnesses, and not reoffend, as well as my concern for my own safety following the assault, could be met simply by placing me in the maximum-security section of the prison. The court preferred this to what it described as “the inherent risk” in granting me bail. And so it was that I came to be moved from the initial police cell at St. Kilda to the Melbourne Assessment Prison on Spencer Street to the mainstream section of Port Phillip in Laverton and then to the maximum security section there.
Gina said it was an outrage, that I shouldn’t have been in custody at all, that there was a madness in the air that had infected the court’s decision-making. She said we were living through a time when society deemed all child-related offenses so heinous that the mere accusation of them was sufficient to reverse the traditional presumption of innocence. Whatever madness was in the air Gina breathed, it was nothing compared to the fear, excrement, and disinfectant that was in the air we breathe here.
We tried a third time for bail once I’d been moved to the maximum-security unit. The move constituted what Gina called the “new facts and circumstances” we were required to try again in the Supreme Court. She ran the argument that I was an unconvicted man completely without prior convictions pleading “not guilty,” a man who had been brutally beaten while in the care of the state and who was now being punished by being placed inside a maximum-security facility with the worst criminals the jurisdiction had to offer and with an even greater deprivation of freedom. The prosecution argued that this new application should fail on the same grounds as those it had successfully argued in the two previous applications, namely, that the move to maximum security, while clearly regrettable, was for my protection, and that consequently my interests as well as those of society would be
best satisfied by the court denying this third application. The argument completely ignored the reality of life in maximum security and, in court, away from the claustrophobia, the cavity searches, the arbitrary abuse, humiliation, the ever-present terror, the systematic degradation, and the random cruelty and violence, it sounded like a reasonable argument. It was a successful argument. The law permitted more than one application for bail. It was society that didn’t permit their approval.
Alex suggested a fourth attempt when one of my fellow inmates within maximum security gave me a month to have $30,000 deposited into a bank account of his choice or else be beaten to a pulp. Surely, Alex reasoned, this extortion attempt constituted a “new fact and circumstance”? Gina said it did, at law, but there was a risk in trying to use it because it would require me to give evidence of the threat and to identify the prisoner who had made it. If I was denied bail after “squealing” I was effectively dead. She would try a fourth time for me if I wanted her to. What did she think I should do? She wouldn’t say. It was my decision. What did she think my chances were of getting bail this time? She said I would have to expect denial of the threat not only by the extortioner himself but by everyone else, other prisoners, prison officers, and those further up in the prison hierarchy. It would be my word against everybody else’s. So I should expect to lose? Probably.
“If that’s what she thought all along, Alex, why didn’t she just come out and say it?”
“I don’t know, Simon. I suppose she, like me, visits you in here, sees your distress, and maybe she couldn’t bring herself to advise you not to take any opportunity to try to get out.”
“But if she didn’t think it would be successful and that to fail would literally kill me . . .”
“Simon, what are you suggesting? Believe me, I know this is hell, but you can’t start doubting her. You don’t doubt her ability, do you?”
“No.”
“Well, you shouldn’t doubt her integrity. She still hasn’t been paid for the third bail application.”
“Is that what this is about, money?”
“Simon, listen to yourself. If she advised you to try a fourth time despite the danger you’d be in if, as is likely, you lost, you’d accuse her of being motivated by money. And if she doesn’t advise you to try, you think she’s holding back because she still hasn’t been paid for the previous application. Either way, she’s mercenary.”
Seven Types of Ambiguity Page 45
