Harry Curry: Rats and Mice

by Stuart Littlemore

  Mr Buchanan looked even less pleased. He had the air of an unsuccessful long-distance runner who’s finished at the back of the pack and thrown his court regalia on without having time to take a shower. That impression wasn’t far from the truth: his life was spent running from inferior court to inferior court, running inferior cases for inferior suburban solicitors who had yet to learn the fundamental lesson of litigation: never believe your client. If there’s no proof other than what she or he is going to assert from the witness box, settle the bloody thing and get out. At least he had a few straws to clutch at here. ‘We rely on the expert reports of the general practitioner and the treating neurologist, your Honour. I’ll be tendering those into evidence.’

  ‘Will you now? How novel.’ Gosling DCJ’s piles appeared to be flaring up, judging by his pained expression. ‘That’d be Doctors Theophanous and Bannister? That shameless coupling? You only need one more for an unholy trinity.’

  There was a sudden and ominous silence throughout the courtroom. The judge’s associate busied herself with a bundle of papers, and the sheriff’s officer studied the downlights in the ceiling. A couple of lawyers, sitting in until their case was called in another court, smirked at each other, enjoying the moment. Arabella, stunned, turned to her solicitor. ‘He seems a bit doolally — is he always like this?’ Her first time before the Goose.

  Narelle leaned close. ‘You have to remember that he did workers comp for twenty-five years. He isn’t afraid of the Court of Appeal jumping on him for bias. He’s proud of being a loose cannon. Famous for it. Reckons he knows more medicine than most of the medical witnesses. Probably does, too. Anyway, you can be sure he’s speaking from experience. He’ll have his reasons.’

  ‘What did he mean about an unholy trinity? Why did he bring that up?’

  ‘That expression was used by a Supreme Court judge in another matter, not all that dissimilar. He got his arse kicked by the three wise men, well and truly.’

  ‘The who?’ Arabella was not yet totally in command of the Sydney Bar argot. She was a creature of the Courts of Justice in the Strand, and all their lordships’ genteelisms.

  ‘The Court of Appeal.’

  Mr Buchanan found his voice. ‘I’m sure your Honour had no intention of indicating apparent bias.’

  ‘Don’t be too sure of that, Mr Buchanan. I have considerable actual bias — never mind its appearance — against the tendentious evidence of people who are supposed to owe my court a duty of impartiality. Anyway, you’re running the case. Call your first witness.’

  Buchanan took a sheaf of papers from his solicitor. ‘With your Honour’s leave, I’ll tender first the two medical reports: Dr Theophanous, dated 12 December last year; and Dr Bannister, dated 23 February. My friend has been served with copies.’

  ‘Any objection, Ms Engineer?’

  ‘No, your Honour.’ Arabella had half risen.

  ‘Are either of these gentlemen going to be cross-examined?’ The judge looked again at Arabella’s end of the Bar table.

  Arabella had found nothing on the subject in her brief, but still checked whether her solicitor’s office had given notice for the doctors to attend. It hadn’t, as she had assumed. ‘No, your Honour. It’s apparently to be done on the reports.’

  ‘So there’s no issue as to the correctness of these opinions the plaintiff has tendered? They’re the evidence, unchallenged?’

  Arabella asked Gosling to give her a moment, and leaned over to consult Narelle.

  ‘We’ll rely on our neuro’s report. They don’t want him for cross-examination, either.’

  ‘Oh, splendid.’ Arabella could anticipate what the judge was going to say next. She turned back to the bench and waited for Gosling DCJ to speak.

  He spoke. ‘Absolutely unsatisfactory, from both of you. What you’re telling the court, in other words, Ms Engineer and Mr Buchanan, is that your clients intend me to determine matters of credit and expertise by reading — what?’ He counted the pages in front of him. ‘Six pages of typewriting? Conflicting opinions, untested in front of me?’

  ‘Your Honour, my instructions are that issue is joined on the question of liability, which is going to have to be decided on the plaintiff’s own evidence, and that the medical picture will be dependent on her credibility, rather than that of the experts. Causation can’t be established by these doctors, who are entirely dependent on the veracity of the history they were given. It’s not that we dispute the opinions about the possible causation of trigeminal neuralgia by a light blow to the head — the contest is about whether it happened at all.’

  Arabella was on the back foot, hoping that the Goose, as a former member of the Bar, would understand that her referral to her ‘instructions’ was shorthand for ‘None of this is my fault — this is what the solicitor told me to say.’

  He understood perfectly. ‘Well, Ms Engineer, counsel are bound by their instructions. Or they were in my day.’

  ‘Which, your Honour, was not all that long ago,’ Buchanan rose to remark.

  Unctuous, thought Arabella.

  The judge gave him a withering look. ‘Don’t try to brown-nose yourself back into favour, Mr Buchanan. You were hauling me off to the Court of Appeal for unconscionable bias three minutes ago.’

  ‘Not at all, your Honour. I merely raised the matter of an ostensible indication.’

  ‘Get on with it, please.’

  ‘Very well, your Honour. I call the plaintiff.’ He turned and gestured to his client to climb up to the witness box. The short, slightly built woman relinquished her husband’s hand, stood and moved forward. She was pretty, with carefully permed dark hair and a bright pink silk blouse under her black suit. Arabella leaned over to speak to Buchanan.

  ‘You’d better send the husband out, if you’re going to call him later.’

  Her opponent whispered to his solicitor, and Mr Papadopoulos, with obvious reluctance, was sent from the courtroom. The judge had been watching the process and, as the plaintiff was handed a Bible to take her oath, interrupted. ‘I’ll ask the court officer to close the door. We don’t want any suggestion that Mr Papadopoulos is listening in, and tailoring his evidence to fit with his wife’s, do we?’

  Nobody responded, the heavy door was swung closed and the court officer returned to swear in the plaintiff, who seemed to have difficulty following the instructions she was given. ‘Help me God,’ she finally managed to whisper.

  Harry was first to arrive at the Waterfront restaurant at Merimbula. Spring had come early to the far South Coast, and he stretched his long legs, clad in KingGee cotton drill and Blundstone boots, out in front of him in the sun on the wide wooden deck. The tide was running in fast around the roots of the mangroves and under the deck, and seagulls were busy along the water’s edge. Melbourne tourists were being taken through the channel in bright white boats to look for whales. Victoria’s Gold Coast, Harry was thinking, as David Surrey dropped an overnight bag full of papers beside the free chair, and sat down.

  ‘Wouldn’t be dead for quids, would you?’ he asked. Harry looked at his friend: no longer a metropolitan high school teacher but affecting the style of a Southern Tablelands grazier, updated as an attorney with aviator sunglasses and a smartphone.

  ‘Spare me the faux workingman’s clichés, Dave. They don’t suit the Harris tweed and moleskins.’

  ‘You know how to hurt a man, Harry. How are the guinea fowl?’

  ‘Not breeding yet, but I have great expectations.’

  ‘Probably a bit cold for them to get it on.’

  ‘“Get it on”? “Get it on”? Jesus Christ! Next, you’ll be punctuating your sentences with “like” and “OMG”. Really, Surrey, the legal profession expects more of you than the Teachers Federation did. You’re not trying to ingratiate yourself with spotty highschoolers any more. You have to relate to adults.’

  ‘What’s the matter, Harry? Arabella maintaining radio silence?’ Surrey was cheerfully unaffected by Harry’s hostility, and had sta
rted to read down the menu. ‘Scallop risotto sounds good. And a beer.’

  ‘Two of those,’ Harry agreed. Surrey called over the waiter and gave their order.

  Harry poked the overnight bag with the scuffed toe of his boot. ‘How many matters, Dave?’

  ‘Most of the list, but not everything. Hugo’s got a couple of private-payer PCAs and a neg drive — pleading to the lot — and we’ve got half a dozen things after that. Presuming we get on on Monday morning, after the short adjournment, we’ll go into Wednesday.’ The amiable Hugo was one of the long-term local lawyers.

  ‘Give me the executive summary, then.’

  The beers were delivered, and Surrey took a sip. He bent and removed a bundle of manila folders from his bag, putting them on the table. He opened the first folder.

  ‘Supply of marijuana. Local kitchenhand, a dreadful prick, selling the stuff to schoolkids. They searched his car at a random breath test or a traffic stop or some such outside Pambula and there were twenty-plus grams in the glovebox done up in little ziplock sandwich bags, all ready to sell. That’s a plea of guilty.’

  ‘Be buggered it’s a plea. Did they have any sufficient reason to search the car?’

  ‘No, don’t think so. But he admits it was his.’

  Harry looked exasperated. ‘That has nothing to do with it. RBTs are a bad enough invasion of our civil rights, but they certainly won’t justify searching the car. Unless the car reeked of dope, or he was smoking a bloody joint at the time.’

  ‘No, nothing like that.’

  Harry took the folder out of Surrey’s hands. ‘Well, that one’s going to be defended.’

  ‘Whatever the client says?’

  ‘Exactly. Next?’ Harry put the folder on the deck beside his chair.

  Surrey opened the next file. ‘You’ll like this. Criminal damage. A couple of feminists from the ANU, caught defacing politically incorrect posters with spray cans. Those big 24-sheet billboards beside the highway south of Bega.’

  Harry drank some beer. ‘What’s the defence?’

  ‘They’re second-year law students —’

  Harry groaned. ‘A little learning being a dangerous thing?’

  ‘— and they say you should defend it on the grounds that they didn’t have a criminal intention.’

  ‘What, they were only trying to enhance the advertisements’ appeal, were they?’

  ‘Not exactly. They were writing “feminist slogans” on them. As I understand it, the argument is that they were acting to protect very young children from multinational pornographic exploitation. Something to that effect.’

  ‘Marxists, then. Ads for what?’

  ‘Children’s underwear. Not-so-soft porn for paedophiles, they call it. Nancy and Arabella could explain it better.’ Nancy was Surrey’s schoolteacher wife.

  The risottos arrived and they started eating. Harry paused after a few forkfuls. ‘Doesn’t sound all that hopeful.’

  ‘I dunno, Harry. They’ve put together a five thousand-word thesis for your assistance, relying on the Queen against Phillips and Pringle.’

  ‘Only law students know any law, Dave. What’s that case stand for? Phillips?’ He resumed eating.

  ‘It’s all in there,’ Surrey mumbled through a mouthful of risotto, handing over the folder, which Harry placed on top of the first. Surrey swallowed. ‘Phillips and Pringle were trade unionists who tried to saw down the goalposts at the SCG back in 1973 when the all-white Springboks were due to play a test there the next day. Their argument was that they had a lawful excuse.’ It was warming up, and he stood to drape his Harris tweed jacket on the back of his chair.

  ‘Namely?’ Harry looked sceptical.

  Surrey sat and picked up his glass. ‘United Nations resolutions against racial discrimination.’

  ‘Bright girls, your clients, to think of that?’

  ‘Fearsomely so, though I suspect one of their criminal law lecturers had a hand in it. The appeal court back then held that the prosecution had to prove beyond reasonable doubt that the defendant vandals didn’t have a belief that they had a lawful excuse for the damage.’

  ‘Pretty hard to prove what they didn’t believe. So that’s going to be a defended matter too. Think the magistrate’s going to understand all those negatives, and the special onus of proof?’

  ‘It’s his job to.’ Surrey said no more than that, and Harry smiled to himself. They ate in silence. Harry finished his beer and signalled for another.

  ‘Speaking of RBTs, Harry …’

  ‘I anticipate being here for a couple of hours, Dave. Here or in your impressive suite of offices. Plenty of time to metabolise this and a couple more, I would’ve thought.’

  ‘Your funeral, counsel. Okay: third matter’s a forest protest — seventy-four-year-old woman demonstrating against the cutting down of old-growth eucalypts.’

  ‘What’s the charge?’ Harry finished his meal and put his fork down. He wiped his mouth with his napkin and looked at Surrey.

  ‘Remaining on enclosed lands after being asked to leave,’ Surrey read from the folder.

  ‘That’s stupid. How can a forest be enclosed lands?’ The second beer arrived.

  Surrey opened the folder and leafed through its pages. He stopped, pulled one page out and read from it: ‘The land at issue is gazetted.’

  ‘So what?’ Harry remained doubtful. ‘I’ll have to look at that. I did a bunch of enclosed lands cases, years ago. For the Builders’ Labourers, when they were stopping work on big sites in the city, invading them and refusing to leave. Saying they were there to recruit members. It’s a funny bit of legislation — an attempt to give meaning to the legal fiction that trespassers will be prosecuted.’

  Surrey was interested. ‘How did you go?’ The waiter removed their plates and left the dessert menu.

  ‘Need you ask?’ Harry decided on the tiramisu and laid the laminated card down.

  ‘I suppose not, knowing you. You never talk about your losses, do you?’ No response was elicited. ‘Fourth matter: the runaway Ferrari.’

  That made Harry sit up. ‘Tell me more.’

  The hovering waiter took Harry’s dessert order — just an espresso for Surrey — and Harry was handed the next folder unopened.

  ‘I defy you to find a defence for this bloke, counsel. Very wealthy businessman from Wollongong, disqualified from driving, takes bimbo he meets in a nightclub for a spin in his Ferrari, loses control of it and they sail through the fence of a hobby farm outside Cobargo in the very early hours of the morning. Three a.m. or something like that. You know, a sports car overcomes impotence faster than Viagra. Unfortunately, the smashed-up fence belongs to a local policewoman, who’s woken by the noise and sees the couple getting out of the car and walking off. Arrests them both. In her pyjamas.’

  ‘Charges?’

  ‘They didn’t charge the bimbo. He’s up on dangerous driving, drive while disqualified, fail to stop after an accident, drive under the influence.’

  ‘That one can’t be on Legal Aid?’

  ‘Absolutely not. Play your cards right and we’ll finish up with the Ferrari.’

  ‘It’ll be leased, Dave. They always are. You’d better set up a conference.’

  ‘Okay.’ He opened the fifth folder. ‘Next: we have to finish off a coronial into a fire that destroyed an elderly Range Rover and an abalone boat on its trailer that were stolen from outside the Fishermen’s Club and found the next day at the Eden tip. Coppers are trying to make an insurance fraud out of it. The claims manager’s been down here buying them drinks.’ He handed over the papers and Harry read and sipped his beer for five minutes.

  ‘A bit unusual. The magistrate’s going to put on his coroner’s hat just to finish this one off by hearing from your punter?’

  ‘Yeah. The detective in charge assumed the abalone diver’d refuse to give evidence lest he incriminate himself, and left him till last. But he’s only too willing to give evidence. He’s got quite a lot he wants to say about
the sergeant who interviewed him.’

  ‘Such as?’ Harry was presented with his tiramisu. He studied it for a moment, then finished it in four mouthfuls while Surrey explained.

  ‘Such as that he was verballed, that the sergeant tried to winkle an admission of guilt out of him by saying everyone knew it was an insurance job, that he hated insurance companies, too, and that he just wanted Claude to confirm it, and he’d leave it at that. Bloody boofhead. Claude also wants to tell the beak that he’s heard that the sergeant’s got a poker machine at the bowlo.’

  ‘That last reference is impenetrable, David. Or it is to a humble Burragate guinea fowl breeder.’

  ‘What he means is that the sergeant’s widely known to be corrupt.’

  ‘Credible, is it?’

  ‘It is to me, Harry. Wait till you meet the man.’

  Arabella’s case in the Sydney District Court was making very slow progress. Mrs Papadopoulos, apparently believing that both barristers were against her, refused at first to answer her own counsel’s questions, claimed she didn’t understand what she was being asked (‘And how long had you worked at this particular school?’) and made a frequent show of bursting into tears. Gosling DCJ, despite his obvious physical discomfort, was unexpectedly patient with her. Eventually, he proposed that the matter be adjourned until the next day, and a Greek interpreter brought in to assist the plaintiff. ‘I am aware, of course,’ he commented with a hint of disbelief, ‘that Mrs Papadopoulos told her doctors that she has been in Australia for thirty years.’

  Mr Buchanan wanted to be heard. ‘My client spoke to her doctor in Greek, your Honour.’

  ‘Not Dr Bannister, she didn’t. Ten o’clock tomorrow, and no more obfuscation, Mr Buchanan.’ The judge walked out, painfully descending the steps from the bench. Arabella gathered up her brief, and suggested a cup of tea to her solicitor. The building’s ground floor café being chained shut and in darkness (how could anyone not make a fortune out of toasted sandwiches and cappuccinos with a captive clientele of hundreds of lawyers, witnesses and litigants in that building every day?), they headed up Elizabeth Street to the Bambini hole-in-the-wall café opposite the criminal courts.