“I object to this, Your Worship.” Gina shot up. “Mr. Henshaw is badgering his own witness.”
“And you’re protecting her, Ms. Serkin? Can’t we get around this, Mr. Henshaw?”
“I’m trying, sir.”
“Well, keep trying.”
The prosecutor was annoyed. He bent down to whisper furiously to his instructing solicitor. Then he returned to Angelique.
“The investigating detectives in this case will be giving evidence that you said to them—”
“Your Worship, I must object.” Gina rose again. Clearly no one had expected Angelique to make the prosecutor’s life such a nightmare. Certainly not so soon.
“Was it a sexual relationship?” Henshaw asked.
“I must object to this.” Gina stood up again.
“On what grounds, Ms. Serkin?”
“Relevance,” Gina answered.
“What do you say, Mr. Henshaw? The relevance of either a positive or a negative answer to your last question is not immediately apparent to me.”
“Then I’m afraid, Your Worship, that I find myself in the unexpected position of being forced to make an application to have this witness declared hostile.”
“What do you say, Ms. Serkin?” the magistrate said.
“I oppose my friend’s application. In my submission it’s entirely unwarranted.”
“Entirely?” the magistrate asked.
“My learned friend cannot expect to have his own witness declared hostile merely because he’s having trouble with his questions.”
“You don’t think the witness’s answers may be construed as at least . . . problematic?”
“Only to his case, sir. At worst, the witness might be considered ‘unfavorable,’ but not ‘hostile,’ by the prosecution.”
The magistrate took the opportunity to adjourn early and give each side a chance to prepare a submission on “unfavorable” as opposed to “hostile” witnesses. The next day they were to argue before him which of these Angelique was. In the court cells, before I was driven back to prison, Gina explained the difference to me and what effect the ruling would have.
The first thing Gina said to me was, “Your friend is either incredibly brave or incredibly stupid.” She ignored the possibility that Angelique was both. On reflection, she was right to. If Angel and the police had an agreement wherein she would testify against me in return for immunity, she appeared to be breaking it. Perhaps she was gambling on the charges against me being dismissed at the committal stage, in which case both of us would be safe. It was a risk but a calculated one. And even if I were committed to stand trial, the police might give her the opportunity to make amends at the trial itself. Angel wasn’t stupid, something I was forced to remember when Gina explained what was going on.
“Henshaw wants to be able to treat her as a ‘hostile’ witness because she’s clearly being difficult on your behalf. She’s deliberately making it harder for them.”
“She’s not refusing to answer, not yet anyway,” I volunteered.
“She can’t refuse to answer,” Gina explained, “but she’s clearly not providing him with what he wants, what he’s no doubt been expecting given Threlfall’s and Staszic’s testimony as well as, of course, her own statements.”
“What do you mean?”
“She’s told the police, at least at one stage, that you were her boyfriend, that the two of you were romantically involved, a couple. This helps their case. It makes it that much less likely that you were romantically, albeit illicitly, involved with Anna. It makes it less likely that you’ll be believed when you say that you were Anna’s lover and that you had permission to pick Sam up from school that day. Now she appears to be going back on that. She says the two of you were friends. There is every sign she’s going to be unhelpful to them generally.”
“Okay, I see that, but what’s the difference between an ‘unfavorable’ witness and a ‘hostile’ witness?”
“Well, to put it very simply, an ‘unfavorable’ witness is a witness, called by a party to prove a certain fact or issue in favor of the party, who then either cannot prove it or proves its opposite. A ‘hostile’ witness, on the other hand, is a witness called by a party who is not incapable but is unwilling generally to assist the party at all.”
“So it’s just a question of degree?”
“Well, yes, but the ramifications of having a witness deemed ‘hostile’ are huge. If the magistrate accepts their submission and she’s deemed ‘hostile,’ Henshaw will be permitted to cross-examine her. He’ll be able to ask her leading questions, to challenge her means of knowing any fact with respect to which she gives evidence, to challenge her memory, her perception. And he’s angry with her, too. He’ll be hard on her.”
“So, if you can get her deemed just ‘unfavorable’ and not ‘hostile’ you can protect her.”
“Yes, but more important, Henshaw will be pretty much stuck with her answer that the two of you were only friends. Oh, he can try to recall Threlfall and Staszic but it will just look, as she said, like she’d been talking up her relationship with you to the police.”
“Can we win this?”
“I don’t know. I need to go back to chambers and read some cases. I’ve got a feeling the law is against us.”
I’d had that feeling for some time. I had it again when I was handcuffed and thrown back into the prison van. There were five of us in the van. It was dark and close. Sometime between being delivered to court in the morning and being taken back to prison, a prisoner had written something on one of the inside walls of the van in excrement. I complained to one of the protective services guards. He told me to be careful not to lean back.
Gina was right to assume the worst. She had marshaled as many cases as she could in our favor. She cited one in which the judge held a “hostile” witness to be one who bears a “hostile animus” to the party calling him. Angelique, Gina argued, had not demonstrated a “hostile animus” to the police or to the prosecutor. But Henshaw countered this with other more recent cases with less narrow interpretations. The thrust of his argument was that the motive of the witness in question was irrelevant. Rather, what mattered was that the party calling the witness was unable to elicit the truth from the witness without recourse to leading questions and cross-examination generally because of an unwillingness on the part of the witness to tell the whole truth. The magistrate preferred Henshaw’s interpretation. When Gina then argued that Angel had not demonstrated a general unwillingness to tell the whole truth but only a natural and understandable reluctance to admit to prostitution, the magistrate was against her on this as well. And so it was that Mr. Henshaw, the prosecutor, began to cross-examine Angel.
15. “Detectives Threlfall and Staszic interviewed you over a number of days concerning the matters that form the subject of these charges, didn’t they?”
“Yes.”
“In the very first of these you told them that Simon Heywood was your boyfriend, didn’t you?”
“I don’t know. I might have.”
“Yesterday you told the court that the two of you, that is, you and Simon Heywood, were merely friends.”
“Yes.”
“Were you lying then to the police or were you lying yesterday to the court?”
“Neither.”
“Your Worship,” Gina interjected, “the witness ought to be given the opportunity to explain the apparent . . . inconsistency in her answers.”
“I’m sure Mr. Henshaw has every intention of giving her that opportunity.”
“Yes, Your Worship,” Henshaw offered patiently before inviting Angelique to explain herself.
“I thought about this overnight, sir,” she said, facing the magistrate, “because I know I caused some kind of trouble yesterday. I didn’t mean to, and now it seems Mr. Henshaw is angry with me and—”
“Don’t worry about him. I’m giving you the opportunity to explain your answer now.”
“When I told the detectives that first tim
e that Simon was my boyfriend, it was sort of true, at least it was to me, in the way that I felt about him. I loved him. I was in love with him. I wanted to believe that he felt the same way about me. I really did. Even now, after all this time, I’d still like to think that he loved me, but I don’t think he was actually ever in love with me. I’d be fooling myself to think he was ever in love with me. He had photographs around his house of another woman! I mean, for God’s sake—”
“Who was that other woman?”
“Anna Geraghty.”
“I see.”
“He’d had a serious relationship with her years ago and . . . I don’t know . . . I couldn’t replace her, much as I wanted to. They’d re-met—I don’t know the details—but she was everything to him, and he didn’t hide it from me. He even told me that he wasn’t in love with me. More than once. He would talk about how . . . troubled he was because of her marriage and—”
“Did he say that Mrs. Geraghty was similarly troubled?” Henshaw asked.
“You mean Anna?” Angelique asked him.
“Objection, sir,” Gina said, rising again. “Mr. Henshaw’s question invites an answer that’s clearly inadmissible.”
“Why is it inadmissible, Ms. Serkin?” the magistrate asked.
“He is asking the witness to say what the defendant, Mr. Heywood, said Anna Geraghty said. If it is asked to establish the truth of Mrs. Geraghty’s feelings concerning her marriage, it is clearly hearsay and therefore inadmissible. If it is asked just to establish whether Mr. Heywood ever mentioned the topic of Mrs. Geraghty’s guilt over her affair with Mr. Heywood, it is irrelevant and therefore equally inadmissible.”
“What do you say, Mr. Henshaw?”
“I’m content to withdraw the question, sir,” the prosecutor said before continuing. “You also told the police, didn’t you, that Simon Heywood loved children?”
“Yes.”
“You told them, didn’t you, that he had no plans to have children?”
“Yes, not any immediate plans.”
“Well, you’re not able to tell us about any plans he had to have children with you, are you?”
“No.”
“You were just friends, weren’t you?”
“Yes.”
“And you don’t know of any plans he had to have children with Mrs. Geraghty, do you?”
“No.”
“You also told police that you and Mr. Heywood were already ‘a little family,’ didn’t you?”
“I might have said that . . . It’s what I felt . . .”
“You also told the police that sometimes Mr. Heywood drinks too much, didn’t you?”
“I might have.”
“You told them that he suffers from insomnia, didn’t you?”
“Yes.”
“And you knew that firsthand from spending the night at his home with him.”
“He . . . often complained of lack of sleep.”
“Are you saying then that you didn’t ever spend the night with him?”
“No.”
“In fact you often spent the night with him, didn’t you?”
“I don’t know. What’s ‘often’?”
“Several nights a week,” Henshaw offered.
“I’m a prostitute, Mr. Henshaw.”
“Does that mean you’ve lost count?”
“Objection, Your Worship. My friend is gratuitously insulting the witness, a witness he called.”
“Yes, Mr. Henshaw, I’m sure this is difficult enough for the witness,” the magistrate said before turning his attention back to Angelique. “But perhaps you could clarify what you meant by your last answer.”
“Yes, sir. He asked me if I often spent the night with Simon. Well, as he seems to want everyone to know, I’m a prostitute. I work nights, mostly, anyway.”
“I see,” the magistrate answered, appearing to write something down.
“In all the time you’ve known the defendant he hasn’t had a job, has he?”
“He’s a teacher.”
“But he hasn’t worked as a teacher in the time you’ve known him, has he?”
“No.”
“In fact you used to support him with the money you earned through your work, didn’t you?”
“No, not . . . support him. I tried, where I could . . . to help him.”
“You gave him money, didn’t you?”
“Yes, sometimes . . . a bit.”
“He used that money, the money you gave him, for food, didn’t he?”
“Sometimes.”
“He used it for food, for clothing, rent, didn’t he?”
“That sort of thing . . . dog food.”
“He didn’t give you money, did he?”
“He tried to.”
“He tried to give you money, did he?”
“Well, he was unemployed. He wasn’t really in a position to—”
“Why did he try to give you money?”
“He didn’t often.”
“But when he did, why was that?”
“I don’t know . . . a friendly gesture.”
“A ‘friendly gesture’?”
“Something like that.”
“Are you really telling the court that a chronically unemployed man tried to give you money as a friendly gesture?”
“Yes. What’s wrong with that?”
“He didn’t give you money in exchange for sexual services, did he?”
“No. You can’t have it both ways. One minute you want me to say he was my boyfriend and the next minute you want me to say he was my client. What do you want me to say?”
“Please,” the magistrate started, “let Mr. Henshaw ask the questions.”
“I only want you to tell the truth,” the prosecutor intoned piously. “On the day in question, you arrived at the defendant’s home to find him there with Samuel Geraghty, is that right?”
“Yes.”
“Was this visit prearranged?”
“No.”
“What was your purpose in going there?”
“My purpose? I went to visit my friend.”
“And you found him alone with Mr. and Mrs. Geraghty’s son, is that right?”
“Yes.”
“And you were surprised by this, weren’t you?”
“Yes. Well, I didn’t know who the little boy was. I’d never met him before.”
“There wasn’t any reason you should have met him before, was there?”
“No.”
“You told the police you’d never met his mother, Anna Geraghty, didn’t you?”
“Well, I hadn’t. I still . . . I’ve never met her.”
“But you’ve met Mr. Joseph Geraghty, haven’t you?”
Angel exhaled a breath of exasperation. “You’re determined to humiliate as many people as you can.”
“I’m determined to have you answer my questions. You’ve met Mr. Joseph Geraghty, haven’t you?”
“Yes,” she sighed. “Yes, I’ve met him. What have you got against him? You’re not prosecuting him, are you?”
“Please tell the court how you came to know Joseph Geraghty.”
“Do I have to . . . answer this?”
“The sooner you answer the sooner it will be over,” the prosecutor said.
“You know, Detective Staszic once said something like that to me,” Angelique said.
“You knew Mr. Geraghty through your work as a prostitute, didn’t you?”
“Yes.”
“He was a regular client of yours, wasn’t he?”
“Yes.”
“You saw him at least once a week, didn’t you?”
“For a while there I did, yes.”
“And this while lasted for almost two years, didn’t it?”
“Yes, something like that.”
“And you got to know him pretty well, didn’t you?”
“Look, he paid me for sex. Are you happy? Have you got what you want? I don’t see what this has got to do with anything.”
“After two years you knew what he did for a living, didn’t you?”
“I only knew what he told me. He could’ve been lying for all I knew. A lot of them lie, especially the lawyers.”
“But he didn’t lie when he told you he was a stockbroker, did he?”
“I don’t know. Is he a stockbroker?”
“Yes, he is.”
“Then he didn’t lie about that.”
“He told you the name of the firm he worked for, didn’t he?”
“He might have. It wouldn’t have meant anything to me.”
“He told you the kind of car he drove, didn’t he?”
“Again, he might have. Cars aren’t very important to me.”
“But you knew enough about him to have a sense of his socioeconomic standing, didn’t you?”
“You mean I knew what he made?”
“Among other things, yes.”
“No, I didn’t really. Look, they often come in to boast, among other things.”
“But he gave you the impression he was well-to-do, well-off, didn’t he?”
“I suppose so. I didn’t really think about it.”
“You told the police, at least initially, that there was no relationship between Simon Heywood and Anna Geraghty, didn’t you?”
“Yes. I was very upset. I was confused. I was scared to be . . . dealing with the police. I meant that there was no future to Simon’s relationship with her. I was always telling him that. I told him she’d never leave her husband and, now look, she won’t even admit to the relationship to keep him out of prison. That’s not love.”
“You called the police and told them that Simon had the Geraghtys’ son, Sam, didn’t you?”
“Yes. Yes, I did.”
“And you did that because you were concerned for the boy’s welfare, weren’t you?”
“No. No, not at all.”
“Then why did you call the police?”
“As I said, I was very upset to see Sam there with him. It brought it all home to me, the reality of it.”
“Of what?”
“Of . . . of his relationship with Anna. I realized it had to be . . . more than a little serious if she had him pick up her son from school.”
“You told the police that you called them because you thought the boy’s parents might be worried about him, didn’t you?”
Seven Types of Ambiguity Page 51
