Unconvicted

by Olly Jarvis

  ‘The first question we try to answer is where the fire started. I’m in no doubt that in this case the fire began in the kitchen.’

  ‘Without going into too much detail, how were you able to come to that conclusion?’

  ‘There were clues. Flame marks on the walls, which tend to fan out from the source of the fire, and intensity of burn damage both indicated the kitchen.’

  ‘And can you tell how the fire started? Could it have been an accident, for example?’

  ‘No,’ the witness replied firmly. ‘We found conclusive evidence that an accelerant had been used – petrol.’

  ‘Where did you find that?’

  ‘Under the charred floorboards in the kitchen. It had dripped through into the foundations.’

  ‘So you’re sure there was petrol in the kitchen before the fire was started?’

  ‘Undoubtedly.’

  ‘Any other pointers to arson?’

  ‘We found some pieces of melted plastic in the kitchen. I can’t say for sure, but these were probably the remnants of a jerry can. All the evidence pointed to a rapid and intense fire – very common in arson where accelerants are used.’

  The witness stopped for a moment, clearly considering whether to go further. ‘And the body,’ he said in a lower voice. ‘We found a woman, deceased. Her remains were an indicator that the fire had been very sudden.’

  ‘Can you say at what stage she came into contact with the fire?’

  ‘When it was started. Samples taken from what was left of her clothing were analyzed in the lab and showed the presence of petrol.’

  Jack watched the jurors grimace.

  ‘So when the fire started the victim was soaked in petrol?’ Katterman asked, as if the point had never occurred to him before.

  ‘Most likely.’

  ‘Did you analyze petrol from anywhere else?’

  ‘Yes, traces were recovered from the boot of the defendant’s vehicle.’

  ‘How long had it been there?’

  ‘Hours, days at most.’

  ‘Could you tell where it had come from?’

  ‘No, but most likely spillage or transference from the outside of a container.’

  ‘Like a jerry can?’

  ‘Possibly.’

  ‘Thank you,’ said Katterman, sitting down.

  Jack got to his feet, aware of the jury in his peripheral vision, still shaken from the witness’s revelations. He had a duty to cross-examine, however futile it was. ‘Mr Close, you concluded that arson was the cause of the fire?’

  ‘Yes.’

  ‘But of course you can’t say who started it?’

  ‘That’s right.’

  Jack’s stomach tightened as he formulated the next question. ‘Are you able to rule out the deceased adult as the person who started the fire?’

  Gasps from around the courtroom.

  ‘Quiet please,’ said the judge. Then to the jury: ‘Mr Kowalski has a duty to test the evidence. You understand that, don’t you?’

  Unconvinced, some of the jurors nodded.

  ‘Mr Close?’ Jack asked again.

  Eventually, the witness replied: ‘No. I can’t rule it out.’

  ‘There was no forensic evidence recovered from the defendant or his clothes, was there? Evidence that he’d come into contact with accelerants?’

  ‘Not that I’m aware of, but you wouldn’t necessarily expect to find any if he’d left the scene before the fire really got going. And there were traces of petrol in the boot, of course,’ offered the expert.

  ‘But you can’t say that those traces had anything to with the fire?’

  ‘I can’t say one way or the other.’

  ‘Thank you, Mr Close.’ Jack sat down, relieved to have finished his hollow questioning.

  ‘What you can say,’ Katterman suggested in re-examination, ‘is that, had Mr Smart taken an accelerant to the scene, what you found in the boot fits with that theory.’

  ‘Yes.’

  ‘However, it’s not part of your remit to work out who started the fire, is it?’

  ‘No, I just look at how it started.’

  ‘The question of who started the fire isn’t a matter for you, is it?’

  ‘No, it’s not.’

  ‘I think what you’re saying, Mr Katterman,’ offered the judge, ‘is that it’s a question for the jury?’

  ‘Quite so, Your Honour, and for what it’s worth, my learned friend is well aware that when officers arrested the defendant, it was clear that he’d had ample opportunity to shower and change.’

  Jack saw little point objecting to Katterman’s comment. The jury had already heard it, and the evidence spoke for itself.

  Katterman was on a roll. ‘I call Father Michael Bailey.’

  Wearing a charcoal suit and his dog collar, the final witness entered the courtroom. He walked down into the well of court and up into the box, so that the jury had already noticed his youth and sporting physique by the time he held the Bible in his right hand and repeated the oath.

  All Jack saw was nerves: buried, but definitely there. Why?

  ‘Mr Bailey,’ Katterman began, ‘you are the local Catholic priest in Over Alderley, and you live in the rectory which is next door to what was the Smart family home?’

  ‘That’s right.’

  ‘Did you know them well?’

  ‘Yes, they both came to church regularly and I also saw them socially.’ Bailey was having trouble keeping his emotions in check. ‘Tim and I would go mountain biking sometimes.’

  ‘Did they seem happy? As a couple, I mean?’

  ‘Yes, at first, but then Tim became unwell.’

  ‘Unwell?’

  ‘Yes, he started retreating into himself.’ The witness struggled to find the words. ‘It’s difficult to explain… he just became more and more distant.’

  ‘Did you continue to go biking?’

  ‘No, the only time I ever saw him was at church. He’d just sit in a pew and pray for hours.’

  ‘Did you try and speak to him?’

  ‘Yes, all the time. It was like he couldn’t hear me. He was ill.’

  ‘And did you become aware of the marriage ending?’

  ‘Yes. Tim moved out.’

  ‘By agreement?’

  The witness glanced off, obviously uncomfortable about saying anything that could be construed as a motive for the defendant to commit the crime. ‘She ended it.’

  ‘You know that?’

  ‘She told me, and so did Tim, in his more lucid moments.’

  ‘Did he find it difficult to accept?’

  ‘I suppose so, but no more than anyone would when a relationship ends.’

  Realizing that Father Michael was not going to gratuitously destroy the defendant’s character, Katterman moved on to the night of the alleged murder.

  ‘Tell me about that early evening in January?’

  The witness lowered his head in a mark of solemn remembrance. ‘It was about four o’clock, just getting dark. I was about to go for a run.’ He surveyed the courtroom, noticing Joyce Simpson. ‘I saw Timothy’s car pull up on the lane. He got out.’

  ‘So he didn’t go up the drive and park?’

  ‘No.’

  ‘Was that unusual? Wouldn’t it be logical to park outside the house?’

  ‘I suppose so,’ replied the witness.

  ‘Unless he wanted the element of surprise?’

  Jack leapt up. ‘That’s comment, Your Honour.’

  ‘I’ll move on,’ said Katterman before the judge had time to rebuke him. ‘What was he wearing?’

  ‘A Barbour jacket and a flat cap.’

  ‘You recognized the clothes?’

  ‘Yes.’

  ‘Did you see where he went?’

  ‘Up towards the house, then I went for my run.’

  ‘How long were you gone for?’

  ‘Twenty-eight minutes – takes me that to do my route.’

  ‘What did you see on your return?’


  ‘The house was ablaze.’ His voice shook. ‘There was a fire engine present, and another one arriving.’

  ‘I think a fireman asked you whether you knew if anyone was in the property?’

  ‘Yes.’ He tried to compose himself. ‘I said I thought one person could be inside.’

  ‘Not four?’

  ‘No, because I knew the children stayed at their grandmother’s on that night and I could see that Tim’s car had gone. I told them he’d been there, I hoped she’d gone in the car with him but—’ His voice broke up again. ‘Deep down—’

  ‘You knew somebody was still in the house?’

  ‘Yes.’

  ‘Thank you, Father, please wait there.’

  Jack looked around at Lara for support before getting up.

  ‘Don’t do anything stupid, ’ she whispered.

  Jack’s mouth was dry. He sipped some water. ‘Timothy Smart was a good friend of yours?’

  ‘Yes, he was.’ A pause. ‘Still is, but he’s not well, not himself.’

  ‘But you knew about the rape allegation?’

  ‘Mr Kowalski!’ bellowed the judge. ‘Before you say another word, would the jury please go with the usher – there’s a matter of law.’

  Confused, the jurors followed the usher out.

  ‘You knew the rape was not being proceeded with,’ Finlay fumed. ‘You’ve just prejudiced the defendant’s case by raising it in front of the jury. I’ll have to discharge them and order a retrial.’

  ‘I did that deliberately, Your Honour. I want them to know about it.’

  ‘What?’ The judge gaped at Jack.

  ‘I want the jury to know the full history of the allegations.’

  ‘Are you mad? How could that possibly assist the defendant?’

  Katterman shook his head.

  ‘The lesser of two evils, Your Honour. He’s certainly not going to be acquitted on the current presentation of the evidence, or do you disagree?’

  ‘Don’t be so impertinent.’ Finlay’s face turned from red to purple. ‘I can see I made a huge mistake allowing you to defend this man.’

  Jack wasn’t going to back down. ‘With respect, Your Honour, I think I’m best placed to decide how best to conduct the defence.’ He could tell Finlay was on the verge of pulling the plug and starting again with a different barrister – but it would be a big call on his first murder trial.

  ‘What about your instructing solicitors – do they support your approach?’

  All eyes were on Lara.

  Before Jack had a chance to say she wasn’t party to his decision, she stood up and announced; ‘Dobkin Solicitors fully support defence counsel.’

  Even more incensed by Lara’s faith in the young advocate, Finlay needed time to cool off. ‘Very well, but don’t think this is the end of the matter. I’ll rise whilst the jury are brought back.’

  ‘Did you really have to do that?’ Lara demanded once she and Jack were in the privacy of a conference room.

  ‘I’m sorry, I just hate bullies.’

  ‘But why do you always have to gamble everything?’

  ‘There’s no point tailoring the evidence, I need a free hand with Bailey – he’s our only chance.’

  ‘Do you even know where you’re going with him?’

  Jack wasn’t going to lie. ‘No. But thanks for backing me.’

  Lara softened. ‘I trust your instincts. I always have.’

  The usher banged on the door.

  Jack took a deep breath and headed back to the courtroom.

  ‘Jack?’ Lara said.

  Jack stopped. ‘What is it?’

  ‘Good luck.’

  Chapter 85

  His Honour Judge Finlay, still bristling, came into court.

  Jack looked over at the gallery and press box, both now expecting more than he could deliver. Michael Bailey was brought back in. If Jack didn’t do something to uncover them now, any secrets would be buried with the defendant. Who knows, thought Jack – maybe that was where he deserved to be? But if there was something more here, he was going to damn well find it. No regrets.

  ‘Mr Bailey, when we left off I asked you if you knew that Natasha had made an allegation of rape against the defendant?’

  ‘Yes, I knew,’ the witness replied.

  ‘And you knew he’d been arrested, charged and remanded into custody – to prison?’

  ‘Yes.’

  ‘Were you aware that Mrs Smart had told police that she’d been knocked—’

  ‘That’s hearsay, Mr Kowalski,’ the judge shouted, incredulous that the young advocate was again adducing damning inadmissible evidence.

  ‘I don’t see any objection from the prosecution, Your Honour. Hearsay can go in if there’s no objection from either party.’

  ‘Mr Katterman?’

  ‘I wouldn’t want to fetter the defence, Your Honour,’ he replied, delighted that the foolish barrister was heading straight for an inglorious conviction and possibly a Bar Standards Board complaint.

  The judge had no choice. ‘Continue.’

  ‘She was knocked unconscious, and so there was an issue over her identification of the attacker?’

  ‘I believe so.’

  ‘And you knew someone had been to the address on several occasions, writing on walls and damaging things in the garden.’

  ‘Yes.’

  ‘Who told you?’

  ‘Natasha.’

  ‘So she was a friend?’

  ‘Friend, neighbour and parishioner.’

  And you thought Timothy was ill?’

  ‘Yes.’

  ‘But he was your friend, and as a man of the cloth, I suppose you’d say it wasn’t for you to judge him?’

  ‘Yes, that’s how I saw it, still do.’

  ‘So when you saw him that day, getting out of his car, why didn’t you say hello?’

  Such a simple question, yet it stopped the witness in his tracks.

  The press was suddenly paying full attention. Jim Smith held pen to pad, wondering if Kowalski was onto something. Or was he about to humiliate himself?

  ‘Erm, I don’t know, really,’ Bailey replied, on the verge of laughing to make light of the question.

  ‘Surely you were surprised he was out on bail?’

  ‘Well, yes.’

  ‘So why not go over and say something, ask him how he was, how he got out of prison?’

  ‘I don’t know, I suppose I thought it best to leave well alone.’

  ‘But he was going up to the house, wasn’t he? Weren’t you worried he might rape Natasha again?’

  Finlay grunted at the crassness of the question, but Jack had hit a nerve.

  ‘I should have challenged him.’ The priest ran a hand across his brow. ‘I accept it’s my fault.’

  ‘Father Bailey, no one in their right mind would hold you responsible for this tragedy,’ said Finlay, glaring at Jack.

  ‘So where were you when you saw the defendant?’ Jack asked

  ‘What do you mean?’ Bailey stuttered.

  ‘Whereabouts were you when you first saw him?’

  ‘Err, I can’t remember exactly.’

  ‘Let’s break it down, then – were you on your property?’

  The witness hesitated. ‘I must have been.’

  ‘Because if you’d been on the lane, the defendant would have seen you?’

  ‘Yes.’

  ‘Were you inside your house or outside?’

  ‘Outside, I think.’

  ‘Mr Bailey,’ Jack empathized. ‘Your driveway winds around in a curve doesn’t it?’

  ‘Yes.’

  ‘You wouldn’t have been able to see anyone on the lane, let alone getting out of a vehicle, from anywhere in your front garden?’

  The witness didn’t reply.

  ‘Would you, Mr Bailey?’

  ‘What is the relevance of this, Mr Kowalski?’ demanded the judge. ‘Are you suggesting that the witness didn’t actually see the defendant?’

 
; ‘I’m not suggesting anything, Your Honour, merely testing the evidence.’

  ‘It sounds as if you’re challenging the identification?’

  ‘I’m just trying to establish the view he had. This is the only witness to put Timothy Smart at the scene.’

  ‘Other than the ANPR that puts his vehicle coming and going along the M56 at the material times,’ Finlay replied, rolling his eyes.

  ‘Well?’ Jack asked, turning back to the witness.

  ‘I must’ve been at the end of the drive then, near the lane,’ the witness explained. ‘I definitely saw him,’ he added, his voice full of regret. Bailey glanced sideways at the dock.

  Smart was rocking backwards and forwards in his seat, seemingly oblivious to everything going on around him.

  ‘Are you done, Mr Kowalski?’ chided the judge.

  Jack was out of questions. He remained motionless, looking down at his notes on the lectern.

  Katterman got to his feet. ‘I have no re-examination. Thank you for coming, Father.’

  ‘Yes,’ Finlay agreed. ‘The court thanks you, I’m sure this has been very difficult for everyone in the village.’

  Touching his collar, the priest smiled weakly and stepped down from the box.

  ‘Can priests lie?’ Jack blurted out.

  ‘Mr Kowalski!’ roared the judge. ‘The witness has been released.’

  ‘I’m still on my feet, Your Honour.’

  Bailey hovered in the well of the court.

  ‘Your duty is to test the evidence, not attack the credibility of an eyewitness,’ Finlay seethed.

  ‘Absolutely,’ agreed Katterman. ‘I object to any cheap attack on this witness.’

  The jurors watched open-mouthed, enjoying the sport.

  Jack stood firm. ‘The defendant is facing the rest of his life behind bars. I must finish this cross-examination.’

  The judge cooled. Nobody wanted any loose ends or a ground of appeal – especially not a judge trying his first murder. ‘You’d better be brief, Mr Kowalski,’ Finlay warned.

  Jack bowed, then swallowed hard as the witness walked back into the box.

  ‘Can priests lie?’

  ‘Everybody lies,’ came the careful reply.

  ‘Have you lied in your evidence?’

  Bailey didn’t reply immediately. ‘No.’

  ‘Hypothetically, if you had, would you still go to heaven?’

  ‘Your Honour?’ Katterman protested.

  ‘I thought I said keep it brief,’ said Finlay.