‘Not in this court, sergeant.’
The courtesy-titled sergeant was plainly angry. He seemed to think he was being humiliated in front of the entire audience in court. ‘Yes, in this court. In fact, Ms Quist herself always calls me the Crown.’
‘If she does, sergeant, and I find that hard to credit, there’s a misunderstanding. You won’t do it with me. Is that clear enough?’
‘I understand what you’re saying. If I can get back to the point, the Crown’s attitude —’
Bettens interrupted. ‘Did you do that deliberately, sergeant, or was it inadvertent?’
Truculent silence from that end of the Bar table. Harry, seated at the other end of the table, worried that Bettens had enmeshed himself, on the morning of his first day as a judicial officer, in an insuperable standoff.
‘Sergeant, be so good as to answer me.’ Bettens’ eyes blazed.
‘Everything I say is deliberate.’ Even more truculent.
‘Let me ask you this, sergeant: is there another prosecutor in the police station this week? Perhaps one senior to yourself?’
‘Yes, there is.’
‘In that case, sergeant, I withdraw your leave to appear. I’ll take a ten-minute adjournment while you arrange for the other officer to take over from you.’
‘I would want to make some submissions before you do that.’
Bettens stood and lifted his papers. ‘I can’t hear you, officer. I’ve withdrawn your leave to appear.’ And he retired to his chambers behind the court, sending out word that he’d like to see all the legal practitioners immediately.
Five solicitors (one of them Surrey) and Harry filed into the small room. Bettens was standing behind the desk. A startlingly painted motorcycle helmet occupied an otherwise empty mantelpiece over the cast-iron Victorian fireplace.
‘I certainly fucked that up, didn’t I?’ he asked them.
Nobody spoke for a second, and Harry thought that, as the senior man present, he should.
‘Yes, John, you did. But he’s a self-important, ignorant prick, and none of us is ever going to mention it again, are we?’
‘Of course not,’ Hugo said. ‘Mention what?’
The other four solicitors (Surrey included) nodded agreement.
‘Good of you. Thanks. Harry, can you stay for a sec?’ Harry agreed, and the others filed out, smiling. ‘Cup of coffee? It’s only instant, I’m sorry.’
Harry said that’d be all right, and they moved into the tea room, where there was lots of Laminex, a chrome-legged kitchen setting from the fifties, a fridge, an electric jug, a caterer’s tin of Nescafé, and some stained mugs. The magistrate boiled the kettle and made two mugs of strong black coffee. ‘How dumb can I get, Harry?’
‘John, you’ve got to learn to listen: nobody’s ever mentioning it again. That means you, too. The Bega District News wasn’t there — still in bed, I expect — and the copper’s not going to give them the story. It’d make him look stupid. Bloody lucky there’s another prosecutor on tap, though. Saves your bacon.’
Bettens sipped. ‘You got that right.’
‘On a more positive note, John, congratulations on the appointment — but why? Why’d you take the Queen’s shilling? You’re the last bloke I expected to see up there. When I saw your bike out the back it rang a faint bell, but I would never have guessed.’
‘Oh, lots of reasons. Divorce being the most damaging. But the money’s good.’
‘Bit early to ask how you’re enjoying it.’
Bettens winced. ‘Yep.’
They finished their coffee and Bettens looked at his watch. ‘We’d better get back to it. Do me a favour, will you, Harry? See if the other prosecutor’s out there, and ask him to have a word with me.’
‘Sure.’ And Harry left. The new prosecutor, an older man, overweight and bald, was in position at the far end of the Bar table, waiting. His bulk was straining the buttons on his suit jacket into a caterpillar’s belly, Harry noticed. Imagine buttoning all three! Harry approached him and bent over to speak quietly. ‘The beak’d like to see you. You heard what happened?’
‘I got one version of it.’ The bald sergeant knew who Harry was; they’d crossed swords before, years ago in Newcastle, even if Harry had no recollection of it.
‘Well, a word to the wise,’ Harry said. ‘He’s really steamed up about the young bloke’s rudeness — it was pretty bad, really; all the lawyers thought so — so it might be a good idea to take it quietly. Let’s get through the list without anybody suffering a bloody nose.’
‘What d’you mean, rudeness? He didn’t tell me anything like that. I got the impression that the beak went over the top. Up himself, I was told.’
Harry looked serious. ‘Well, he would say that, wouldn’t he? We can only hope the beak doesn’t make a formal complaint. Pity to see a young cop’s career go up in smoke because he didn’t know how to behave in court. I, for one, would be pretty unhappy about giving evidence against him in the Police Integrity Commission, but I suppose if they served me with a subpoena, I’d have no choice.’
The sergeant slumped. ‘Puts a different complexion on it. That’s not what I heard. Christ. Okay, I’ll see if I can placate him. Thanks for the warning.’ And he went off to apologise to the magistrate for his junior officer’s gaffe.
QED, Harry thought to himself. You bastard.
Surrey, sitting within two metres of the conversation, heard it all. ‘If you weren’t a barrister, Curry, they’d have to lock you up for false pretences.’
‘Yeah, but I am a barrister, Dave, so they can’t.’
The newly minted magistrate, looking as if a weight had been lifted from his shoulders, sailed through the handful of guilty pleas, handing out middle-of-the-road disqualifications for the drink-driving offences, and not recording a conviction against the elderly man whose vehicle management was admittedly negligent, considerately taking into account his fifty years of safe driving. Then the first of the Curry–Surrey summary trials was called on: Police v Laura Cress. Surrey brought his client forward from the public seats and showed her to a chair close to Harry’s position. She was a tall, pretty woman, her reading glasses on a chain around her neck. From her clothes, a grandmother living in a coastal village, Harry thought. As the police prosecutor was about to outline his evidence to the court, Harry rose.
‘Given the events of this morning, we haven’t been able to negotiate with my friend the sergeant in order to agree on shortening the proceedings, your Honour, but may I say this for his assistance? Mrs Cress, for whom I appear, is a seventy-four-year-old woman who was arrested in the Mount Imlay State Forest on the date alleged in the charge sheet in the course of a protest against old-growth logging that was going on there. There’s no dispute that she was there, or that she refused the police direction to leave the area. There’s no dispute that she told the police who were called out by State Forests they’d have to arrest her, because she wouldn’t leave voluntarily. Our point is simply this: she was charged under the Inclosed Lands Protection Act of 1901 with remaining on land after being given a lawful direction to leave —’
‘And?’
‘— and the State Forest isn’t enclosed. The relevant definition — I’ve photocopied it for the court, and the prosecution —’ he handed over copies ‘— reads as follows:
Enclosed land is any land, either public or private, inclosed …
‘Don’t ask me to explain the archaic spelling differences, your Honour,
or surrounded by any fence, wall or other erection, or partly by a fence, wall or other erection and partly by a canal or by some natural feature such as a river or cliff by which its boundaries may be known or recognised, including the whole or part of any building or structure and any land occupied or used in connection with the whole or part of any building or structure.
‘The point is this: the brief of evidence served by the prosecution contains no evidence from which the court could possibly find that the part of the forest where my cl
ient was arrested was fenced, to put it at its simplest, or in any other way closed off.’
The magistrate used his laptop to search up the legislation. ‘Given that the charge alleges that Mrs Cress remained on those lands after being requested by the person apparently in charge of the lands to leave, there would appear to be a further problem, sergeant.’
‘And that would be?’ The bald man was finding it hard to keep up, and his witnesses, armed with maps of the forest and DVDs of the arrest, looked as if they were beginning to lose their faith in justice.
‘The person requesting Mrs Cress to leave wasn’t in charge of the lands. That’s clear enough. The senior constable was in charge of his troops, and that’s about all. You see that?’
The sergeant paused. ‘I don’t think I can take the matter any further.’
‘Ah,’ said Bettens, ‘those famous words of surrender.’
‘No, not exactly.’ The prosecutor was biting back. ‘I wouldn’t want it to be thought that Mrs Cress won’t be charged under another provision, your Honour. The arresting police obviously made a mistake as to the appropriate law, and I’d ask you to stand the matter down while I get someone to look at amending the charge.’
‘To bring a fresh charge under what other law? Got anything in mind?’
‘Probably the Forestry Act, I would have thought.’
‘What’s the date today, sergeant?’
‘Fourteenth of September,’ he said, looking at his watch.
‘Summary offence committed, or allegedly committed, on the second of March? More than six months ago, sergeant? You can’t do it, can you? The statute of limitations kicks in.’
‘I suppose it does. I can’t put on a fresh charge at this stage.’
‘Very well, then. The matter’s dismissed. Costs, Mr Curry?’
‘That’s our application.’
‘Can you give me a figure?’
Harry looked at Surrey, seated beside him, and held up the five fingers of his left hand. Surrey nodded.
Mrs Cress blinked, uncomprehendingly. ‘What happened?’
Surrey whispered that he’d explain everything later. She could come and see him next week, when the court wasn’t sitting and he’d have more time.
Harry was still on his feet. ‘My instructing solicitor tells me it’s five hundred dollars, your Honour.’
‘Cheap at the price, sergeant, wouldn’t you say?’ But he had nothing to say. ‘The informant is ordered to pay the defendant’s costs in the sum of five hundred dollars. Thanks, Mr Curry. Next matter’s Police v Wayne Gregory Plowman — possession of a prohibited drug, to wit, marijuana, in a quantity deemed to be for the purpose of supply.’
The sergeant rose and Surrey exchanged Mrs Cress for an unpleasant-looking and painfully thin man of about thirty, wearing a sloppy joe and jeans, with thongs on his feet. He had a tuft of whiskers under his bottom lip.
‘The defendant’s in court, may it please you.’ Plowman sat in the just-vacated chair behind Harry, and looked around with a smirk.
‘Two witnesses for the prosecution, your Honour,’ the sergeant announced. ‘Short facts are that the highway patrol pulled over the defendant’s car for running a stop sign in Toalla Street, Pambula. On searching the car, they found twenty-five grams of marijuana in the glovebox in five small packages. The defendant was arrested and when interviewed on tape denied any knowledge of the drug.’
‘This capable of being shortened, Mr Curry?’
‘Only insofar as we don’t require corroboration of the senior officer’s evidence. But it will need to be on the record, and I will need to cross-examine him, though, on the voir dire.’
‘Very well. He’s here, is he, sergeant?’
‘Senior Constable Verity, your Honour. He’s in court.’
‘How appropriate. Okay, put him in the box. Are you saying we can take his evidence as read, Mr Curry?’
‘If the prosecutor will be so kind as to hand a copy of his statement up to you, your Honour, yes, we can.’ That was duly done, and the magistrate read the three pages through in thirty seconds.
‘Okay, swear him in.’ That, too, was done.
The sergeant adduced his evidence, subject to Harry’s objection, which meant that it would not be admitted in the case until a legal argument was ruled on.
Harry rose to explain his grounds for rejecting the evidence.
‘The search of the defendant’s motor vehicle was ultra vires the provisions of the Crimes Act and the Drugs Misuse and Trafficking Act, your Honour, and — because of the unlawfulness of that search — the evidence can’t be admitted.’
‘That’s clear enough. Let’s have your evidence, constable.’
The policeman then read out his police-speak version of the events: the defendant drove his maroon 1997 Holden Caprice through the stop sign at the eastern end of Toalla Street, and accelerated away from the highway patrol vehicle when its light bars and siren were activated. When he eventually stopped, the defendant was directed to exit from the car and produce his licence, which he did. The junior officer then conducted a search of the car, first using the keys to open the boot. In the glovebox, he located a total of 25.45 grams of green vegetable matter, contained in five sandwich bags, reasonably suspected of being marijuana. The green vegetable matter was submitted to the analytical laboratory at Lidcombe. The witness produced the analyst’s certificate declaring it to be the prohibited drug in the weight alleged. The defendant was charged with the present offence at the Eden police station and later bailed.
‘The statement can be VD Exhibit 1,’ said Bettens. ‘Cross-examination, thanks, Mr Curry.’
‘Constable, you don’t claim in your statement to have had any reason for suspicion at the time of the traffic stop that the car contained any illicit item, do you?’
‘No.’
‘Are you now telling the court that you formed a suspicion of contraband in the car?’
‘Well, no, but he certainly looked like a druggie.’
‘Why do you say that, constable?’
‘Well, tattoos and that.’
‘And what?’
‘You know — druggie-style clothes. Lots of rings and chains and that. His T-shirt had “Shit happens” written on it. He’s got one of those soul patches.’
‘Guilty of bad taste, certainly, but you can put it no higher than that?’
All these exchanges had no visible effect on the client who seemed to be looking at the backs of his hands and planning even more tattoos for the unoccupied spaces.
‘I suppose not, no.’
Harry put down his pad of notes and addressed the bench. ‘That’s the cross-examination on the voir dire, your Honour.’
‘Thank you. Any re-examination, sergeant?’
‘No, your Honour.’
‘Now, gentlemen, we’re proceeding with the voir dire on the assumption that the corroborating officer, the constable who actually conducted the search, will make no further allegation beyond what has been given to justify any reasonable suspicion of the presence of contraband. Is that correct?’
‘It is,’ said the prosecutor. Waiting for things to become clear.
‘Over to you, Mr Curry. Submissions on admissibility of the evidence?’ Bettens was becoming more confident, more efficient.
‘May it please you, yes. As I indicated, your Honour, our objection is that neither the stop-and-search provisions of the Crimes Act nor the Drugs Act warrant a search of a vehicle unless it be proved that the officer authorising or conducting the search reasonably suspects that there are drugs, to put it briefly, in the car. It will not be possible for the prosecutor to suggest any other source of power or right to search the defendant’s vehicle. It cannot possibly be alleged that the fact that my client was wearing an objectionable garment and an excessive amount of cheap and vulgar jewellery would enable a reasonable suspicion to be held that there were drugs in the car. What’s regrettable, if I may say so at this point, is that there seems to be a widely
held and totally erroneous belief in the ranks of the New South Wales Police Force that constables have an unfettered right to stop and search citizens, with no reasonable basis for doing so.’
‘Even, Mr Curry, when their suspicion proves ex post facto to have been correct?’
‘Not even then, no. Being proved correct doesn’t per se make it reasonable.’
‘Sergeant?’
‘I’m not in a position to argue with what Mr Curry says on the law, but it’s still a matter for your Honour’s discretion. I would be submitting that the very fact that the suspicion might not have been strictly reasonable, but was correct, is sufficient for you to decline to exercise your discretion in the defendant’s favour.’
‘Anything further from you, Mr Curry, on that discretionary point?’
‘Just this: the High Court has made it plain that the cogency of the evidence found in an illegal search, or an illegal interrogation, is irrelevant. Chief Justice Barwick, no bleeding heart in criminal matters, as your Honour would well appreciate, put it this way in Ireland’s case — if I can recall it accurately: “Convictions obtained by the aid of unlawful acts may well be obtained at too high a price. Hence the discretion to exclude the evidence.”’
‘Not bad, Mr Curry, but I seem to recall that his Honour’s final sentence was actually: “Hence the judicial discretion”, full stop.’
‘I stand corrected, but it means the same thing.’
‘In this case, gentlemen, it means that the evidence will be excluded. Anything to say, sergeant?’
‘Only that this is the first time I’ve lost two summary trials before morning tea.’ Rueful, but willing to fight on.
Harry laughed. ‘What about costs orders? Ever suffered two of those before morning tea?’
Bettens stepped in. ‘Well he’s not going to this time, Mr Curry. Next thing I know, you’ll be asking me to return the drugs to your client. No order for costs. We’ll take the short adjournment now.’
The court rose. Surrey was shaking his head. ‘Christ, Harry, I’ve heard about speed dating — but speed litigating?’
‘Speed acquitting, Dave. Reckon we can finish off the rest today?’
Harry Curry: Rats and Mice Page 7
