Harry Curry: Rats and Mice

by Stuart Littlemore

  ‘In which case,’ said Amy, the more extrovert one, ‘I’ll have a G&T.’

  Lucy, who had dressed for court as if she were going to church, opted for an orange juice and Harry’s opinion of the ‘lawful excuse’ argument they had prepared (and he had not read).

  ‘It reminds me,’ he said, ‘of the BUGA-UP case — the Billboard Utilising Graffitists Against Unhealthy Promotions mob. They defaced cigarette advertisements, and ran a similar defence when they were caught rebadging the Marlboro Man. It didn’t work. They opted for trial by jury out at Parramatta — not a good move. They’re dreadful juries at Parramatta, all petty bourgeois shopkeepers, pharmacists, Liberal voters. Downed them, of course.’

  ‘Listen carefully, girls,’ said Surrey, ‘this may be the only time you ever hear Mr Curry talk about a case he lost.’

  ‘What happened to them?’ Lucy asked. ‘The BUGA-UPs?’

  ‘Well, the evidence was that the poster was worth $70. After the jury did their dirty work, the judge fined the two on trial $35 each. The cigarette company was furious, but what they didn’t know was that the judge’s wife had died of lung cancer. He didn’t record a conviction, either.’

  ‘So, you see? Harry didn’t really lose the case after all.’

  ‘Thank you so much for that, Mr Surrey. It’s your shout.’ Harry and the team spent another hour knocking around the ratio decidendi (law students like a bit of Latin, he told Surrey later) of the Court of Criminal Appeal in the Springboks’ goalposts case, and the symposium was adjourned until the following morning, over the road. Harry warned his clients that they would both be giving evidence, and exhorted them to go back to their motel room and learn their statements. ‘Not off by heart,’ he said, ‘but you’ve got to be totally familiar with everything on those pages, and I don’t want to hear any answer — in evidence in chief or cross-examination — that doesn’t appear there.’

  Harry risked the drive back to Burragate, only semi-confident that his blood-alcohol level wouldn’t be a problem. It wasn’t tested, happily, and he changed out of his court clothes before doing the rounds of the vegetables, the chickens, the guinea fowl and the pump down at the river. He then heated up two cans of pea-and-ham soup and made some grilled cheese and chutney on toast for dinner. He rang Arabella and gave her a quick rundown of the day’s events. He left out the ‘you’re not my friend’ business with the sergeant.

  ‘Three acquittals in a day has to be some kind of record, Harry.’

  ‘Well, they were just rats and mice. Nothing earth-shattering.’

  ‘I like that — rats and mice. It’s new to me.’

  ‘Old barrister talk, Bella, for bits and pieces. Small beer. Means you don’t need your elephant gun. In these cases, just a nicely baited trap will do.’ Companionable silence over the phone until he asked what she was up to.

  ‘I’m at home with the laptop, finishing off that Bar committee report on gender-neutral judicial language. Nothing you want to know about.’

  ‘I admire the new generation of lawyers, Bella, and their glossolalia. I really do. Anyone who can use nouns as verbs has my respect.’

  ‘Pig’s bum, Harry.’

  He laughed. ‘Did you say pig’s bum?’

  ‘I picked it up from a witness we conferred with today. A dear old fellow. He won’t be much of a witness for my client, but very amusing. I think I should call him, even if he doesn’t help us.’

  Harry took a drink from his coffee mug. ‘We’ll make a Strine of you yet. What’s the matter about?’

  ‘Another of those Education Department suits. This one’s a teacher’s aide, quite badly hurt by a tree that was blown down in a storm. They sent her out to gather up some easels and other stuff when the weather suddenly changed.’

  Harry finished his coffee. ‘I rather thought that you wouldn’t be getting any more briefs from that direction, after your little contretemps with the unlovely Narelle.’

  ‘That’s probably right, but I’ve had this for some time, and I’m pretty much on top of it. I’ve given them a number of advices on liability and on evidence. It’s too late for her to take the brief back and get someone new to take it over.’

  Harry paused and listened. He held the phone out at arm’s length, close to the floor. ‘Can you hear that?’ he called.

  ‘I can hardly hear you, Harry. What was I supposed to hear?’

  ‘There’s a wombat banging up against the underside of the floor in this room. He comes at about this time every night. They have this habit of always taking the same route. You can build a fence, and they’ll just throw themselves at it, if it’s in their customary path.’

  ‘You’re somewhat of a wombat yourself, wouldn’t you say?’

  ‘By which you mean endearing, paradoxically attractive, quintessentially Australian?’

  ‘Not exactly, you dear old thing,’ Arabella said. ‘I was referring more to your bull-at-a-gate characteristics. Butting up against brick walls.’

  ‘In that case, yes, I am a bit of a wombat. There are worse tendencies.’

  After that, there were five minutes of I-miss-you, how-are-you-feeling, when-are-you-coming-up/down? before Arabella begged off, saying she really had to finish the report.

  ‘Before I do, you can relieve me of my ignorance, Mr Curry. Glossolalia?’

  ‘Look it up, Ms Engineer. It’s a word particularly suited to Bar Council committee reports.’

  Tuesday morning, and midwinter had returned to Bega. The locals were getting around in heavy coats, or staying indoors. A hard sou’wester was coming straight off the snow that still capped Mount Kosciuszko, and you could almost see the budding trees changing their minds.

  The courthouse doors hadn’t opened by 8.30, and Harry climbed the steep steps to the sandstone verandah to find his clients huddling together for warmth. The State flag was standing out horizontally from its mast, snapping angrily. Harry took the young women, both in de rigueur duffle coats and woolly hats, to the nearest coffee shop to thaw out, and Surrey found them there ten minutes later. When it came time to run the clients through their statements of evidence, Harry separated Amy from Lucy because he didn’t want any suggestion of collusion in their testimony, despite the fact that any reasonable person would expect that co-defendants travelling and staying together would unquestionably have discussed what they were going to say. They were back in the otherwise empty courtroom by 9.30, putting up with the nauseating smell of the institutional gas radiators that struggled to take the chill off the air.

  When Bettens LCM resumed the sittings, right on ten o’clock, the courtroom was still empty but for the Curry–Surrey team, the bald prosecutor and the uniformed officer in charge of the criminal damage brief, the prosecution witnesses having been told to stay outside and wait until they were called. Seeing they were all police officers, they’d retired to the comfort of the cop shop next door, and close consideration of the sports and gossip pages of the Daily Telegraph. Two young women with shorthand pads — reporters from the Bega newspaper and ABC radio — slid into the back pew.

  ‘Police v Leary and Moresby, then. Just a brief opening will suffice, sergeant.’

  The prosecutor stood and rebuttoned his caterpillar jacket, one more go at beating this bastard. ‘Facts are that Bega police received a phone call making certain allegations about a VW Kombi van parked at the advertising hoarding beside the Princes Highway two kilometres south of Bega, and as a result attended the location where the defendants were observed defacing two billboards there. What they call 24-sheeters, your Honour, the biggest ones.’

  ‘Exactly how were they defacing them, sergeant?’

  The prosecutor looked at the typed sheet on top of his file of documents. ‘Each defendant was observed to be using an aerosol spray can of enamel paint, gaffer-taped to a broom handle or some such length of wood, which they were able to activate by pulling a wire attached to the nozzles, and then writing words across the images on the billboards. I seek to tender a photograph of
each of the billboards. The court will be able to read what they wrote from those pictures.’

  ‘That’s a bit coy, sergeant. Are the words going to upset me?’

  ‘I wouldn’t have thought so, no.’

  ‘Show the pictures to Mr Curry, please.’ The sergeant did so. ‘Any objection to the tender, Mr Curry?’

  Harry glanced at the pictures, but had already seen the black-and-white versions provided in the police brief of evidence. ‘None at all, your Honour.’

  ‘Exhibits 1 and 2, then. I’d better see them.’ Bettens held one in each hand, and spent a minute looking back and forward between them. ‘Well, the university will be pleased there are no spelling mistakes that I can see, at least. Punctuation’s okay, too.’ He put them aside. ‘Please continue, sergeant.’

  ‘The defendants were spoken to and asked to cease. The defendant Moresby said, “Just a sec, I’m almost finished,” and the defendant Leary dropped her gear immediately. I mean … not her gear, the can on the stick.’ He almost blushed, and there was some laughter from the journalists. ‘Both defendants agreed to provide identification, but after that they refused to answer any questions. They were allowed to drive their own vehicle to the police station with the highway patrol vehicle following. They were charged and admitted to bail on condition that they return to Canberra — they’re at the ANU, your Honour. The owner of the billboards is claiming compensation.’

  ‘Now, that could be a bit tricky, sergeant. Do you mean the owner of the physical structures on which the advertising matter had been pasted, or do you mean the owner of the advertising matter itself?’

  The sergeant asked for a moment to consult the officer in charge. He turned back. ‘It seems the police have only spoken to the owner of the structures. Or the structure, I should say — it’s double-sided. One poster on each side.’

  ‘That’s a bit of a blunder on the part of the police, isn’t it? I mean, you’re not claiming that the billboard structure itself was damaged, are you?’ Bettens looked displeased. Was this the best they could do? Maybe the Bega police couldn’t track a bleeding elephant in a snowstorm.

  ‘No, we’re not. If you’d give me some time, I’ll see if we can get a statement from the actual owner of the advertisements.’

  ‘No, I won’t, sergeant. An adjournment to see whether you’ve got a case? I’m minded to throw this matter out, here and now. And, this time, with costs against the informant. And I wouldn’t grant any application for compensation without a valid request, I can tell you that now.’

  Harry rose and the prosecutor resumed his seat, red in the face and breathing hard.

  ‘May I attempt to be of assistance, your Honour?’

  ‘If you think you can, Mr Curry.’

  ‘I’m instructed, your Honour, against the grain as I might find it, that my clients don’t take any point about proving ownership of the damaged property. I am instructed that this is, to my clients, an important matter of principle upon which they seek this honourable court’s ruling. In short, they make no bones about their intention to go on taking direct action against demeaning, sexist and exploitative advertising. Their sincere belief is that it would be in the public interest for their defence of lawful excuse to be litigated and — if it comes to that — ruled upon by the superior courts.’

  ‘On appeal, you mean?’

  ‘Yes. As I just said, if it comes to that.’

  ‘Very well, Mr Curry. That’s your clients’ right. Call your first witness, sergeant.’

  Harry hadn’t finished. ‘I rise again to assist, your Honour. I take no issue with the allegation that my clients painted the words shown in Exhibits 1 and 2 on the advertisements, and neither am I going to argue that they didn’t damage the property, meaning the paper. The simple issue is whether the damage they caused was criminal within the meaning of the Act.’

  ‘Well, sergeant, Mr Curry sets a cracking pace, doesn’t he?’

  ‘Certainly does, your Honour.’

  ‘All the same, that covers just about everything you need to prove, doesn’t it?’

  The sergeant checked with his puzzled colleague. ‘We think so, yes.’

  Bettens picked up the court’s well-used copy of the Crimes Act of 1900, and read it in silence.

  He looked up. ‘It appears that the mens rea is intentionally or recklessly damaging the property of another person. Do I take it you’d also admit it was done by both defendants intentionally, Mr Curry?’

  ‘I have been so instructed, yes.’

  ‘Fine, so I hold there’s a case to answer. Let’s hear from your clients. Who’s first?’

  Harry had decided the extrovert should lead off. ‘Ms Moresby, your Honour. I call her.’

  Amy, the taller of the young women, walked confidently to the witness box and took an affirmation, still in her duffle coat but having doffed the woolly hat. She gave her name, and her address as Toad Hall, Australian National University. Her occupation was given as postgraduate student in law.

  Harry took her through her statement. ‘You have admitted, Ms Moresby, the essential elements of this offence of damaging the advertisement, and that you did it intentionally?’

  ‘I have, yes.’

  ‘Let me ask you, then, whether you claim to have had any right intentionally to damage the property of whoever owned the twenty-four sheets of paper?’

  ‘Calvin Klein, I suppose it would be. Or whatever corporate veil he’s drawn over himself. Company law’s not my thing.’

  ‘We have that much in common. But to revert to my question — do you tell his Honour that you claim to have been exercising a legal right to destroy this property?’

  ‘Either that, or that I was acting bona fide under a supposed legal right.’

  ‘And what do you claim that right, or that supposed right, to be?’

  And away she went: ‘What I wrote was “Fuck off Calvin. You’re a child molester.” The reason I did that was, first, the advertisement is offensive. The court can see from the photographs, Exhibits 1 and 2, that the models used in the advertisement are very young children — little boys and girls, infants really — dressed only in underwear. One little girl’s got a full-length singlet, while the other girl’s singlet is tucked up to suggest a bra. I believed that if we — if I — defaced it with an obscenity, the advertising company would be very quick to remove it. That was one way to get quick action. Next, I have a more general and more important long-term strategy: to raise consciousness of this offensive and obscene advertising practice and its role in multinational profit-taking.’

  ‘Have you, Ms Moresby, conducted any research into how this advertising came to be used in Australia?’

  ‘Yes, I have. What I found was that these very same images first appeared as full-page ads in the New York Post — that’s a Murdoch paper, as you’d know — and in a number of high-circulation magazines in America and Europe, and also as a huge billboard in New York City in Times Square.’

  ‘Without objection?’

  The magistrate interrupted the evidence. ‘Mr Curry, this would have to be hearsay, wouldn’t it? How can I receive this evidence?’

  ‘Well, on the basis — as provided in the Evidence Act, your Honour — that these facts are not genuinely in dispute. Otherwise, we’d have to call witnesses from the United States, including expert witnesses.’

  ‘So, because no objection has been raised to the hearsay, I ought to accept that it isn’t controversial.’

  ‘The expense and delay of proving it would be unjustifiable, because these facts are well known. My clients can show the sergeant the primary academic material, if he wishes.’

  ‘Sergeant?’

  ‘Oh, whatever.’

  Bettens shrugged. ‘Very succinctly put. Go ahead, witness.’

  Amy was proving something of a scold. ‘Mr Curry asked me whether the same images had appeared overseas without any public objection. The answer’s no. In fact, the public outcry over the Times Square billboards — these v
ery same photographs — was so immediate, and so trenchant, that the posters were taken down within twenty-four hours. It was claimed by Calvin Klein that the company’s intention was to use the pictures of scantily dressed children, and I quote, “to capture the same warmth and spontaneity that you find in a family snapshot”. As I said, there was an avalanche of protest, and a wide range of experts uniformly expressed the opinion that the images were sexualised and pornographic. It was thought to be highly relevant that Calvin Klein had a record of sexually offensive advertising, but this was the lowest point to which the company had sunk. So, yes, I believed at the time and still believe that I had every right to do two things: take action to get the images removed immediately, and also to draw the attention of the public to their unacceptability.’

  ‘Thank you, Ms Moresby. That’s the evidence in chief.’

  Amy raised her chin in a self-satisfied thrust.

  ‘Any cross-examination, sergeant?’

  Police prosecutors don’t get to do much cross-examination, for the simple reason that most lawyers keep their clients in the chairs behind them. ‘The box is for losers’ is one of the great shibboleths of criminal defence, and Harry had preached it more than once to Arabella. The sergeant, although a veteran, wasn’t sure where to go, and asked for a moment to think about it. In the end, he thought better of it.

  ‘No questions, your Honour.’

  ‘So,’ said Bettens, ‘it remains for me to be satisfied that your client’s evidence is sincere, Mr Curry.’

  ‘Yes, it does. But the very fact that my friend the sergeant doesn’t in any way —’

  ‘It’s okay, Mr Curry. I’m persuaded. You don’t need to push against an open door.’

  ‘May it please you.’

  The magistrate lined up his papers and laid down his pen. ‘Sergeant, do we need to call Ms Leary, or will you concede that, if called, her evidence would be to the same effect as that of her co-defendant, and that it also would be sincere and truthful?’

  A quick consultation took place between the policemen sitting to Harry’s right. The sergeant straightened up and expressed his concern. ‘The informant’s asking me about costs orders, your Honour.’