Arabella had a hot shower and returned to the kitchen in warm pyjamas and a tartan dressing gown. Harry was sipping from his glass of red, and turned to look at her.
‘No curlers?’ he asked, putting a big lump of butter in the pan on the fuel stove and turning to beat the eggs.
‘You are aware of what I can do with a cheese grater, are you not, Mr Curry? I won’t warn you again.’ She hugged him. ‘Don’t you want a shower before we eat?’
‘That bad, is it? Sorry.’ He was still in his cricket clothes, the knees of his trousers grass-stained.
‘Not bad at all. On balance, would you count today a success, Harry?’
‘From what point of view? Touting with the local attorneys, or making peace with the rozzers?’
‘Either, I suppose. Or both. A stimulus to trade.’
The butter was foaming in the pan, so Harry tipped in the garlic and chopped onions and pushed them around with a wooden spoon. That done he chopped tomatoes, basil and avocado into a salad.
‘Probably,’ he responded as he worked. ‘But about that word you just used — “trade”. Reminds me that my mother was once asked what made her proudest, and you won’t guess what she said. Never in a million years.’
‘No, I won’t.’ In went the eggs.
‘“The fact that no member of my family has ever been in trade.” Fair dinkum.’ They both laughed. Harry poured a glass of wine for Arabella and then added vinaigrette to his salad and tossed it before placing the bowl on the kitchen table. He had put two plates onto the stove’s warming shelf, and now removed them and served up the omelette. Arabella retrieved napkins and cutlery, and they sat to eat.
‘You know, it’s funny that I should so willingly do things down here — like playing in social cricket matches — in order, as they are wont to say, to fit in.’
‘Funny because you always did just the reverse in Sydney?’
‘Precisely.’
Harry finished his wine and looked at Arabella’s untouched glass. ‘Ah,’ he said, ‘you’ll be wanting me to finish that.’ He did, while Arabella looked amused.
‘You’ll get used to the idea, my love.’ She went to the refrigerator and poured herself a glass of water from the jug, filled from the house’s rainwater tank.
Arabella wanted to talk about the den Boer trial. Harry had told her there would be no money for testing the evidence at committal.
‘You seem a bit defeatist about it, Harry. But, so far as I understand it, it’s word against word. And you’ve always said that juries want some kind of corroboration before they convict on a serious charge like that.’
Harry took her hand and led her to the living room, stooping to feed the fire. The dishes could wait. They sat close together on the sofa.
‘Normally, yes. But the man was shot, unquestionably by our gun, and unquestionably by us. And our adversary is not the prosecutor, but a paraplegic. It’s one on one, certainly, but the first narrative comes from a man who gains immense credibility from his injury.’
‘What does that mean?’
‘You know my trial theory: that the defence has to select and defeat an enemy. Sometimes it’s the policeman who’s verballing you, sometimes it’s the biased expert witness, but most times it’s the complainant. Where your alleged victim is patently a victim — and this bloke certainly is, and he’ll be in a wheelchair, sitting right in front of the jury in the well of the court, not the witness box — you’re on a hiding to nothing. He doesn’t need any corroboration to rebut the accused’s story — his paraplegia serves that purpose. The jurors won’t be able to take their eyes off him. We’ll be coming from behind, all trial. Like it or not, I’m going to be an unutterable bastard to him — as if being shot wasn’t enough. It’s always the same, defending against a rape victim, or a child who’s been abused, or an old woman who’s been bashed and robbed. Defence counsel’s doing it to them, all over again. Raping them again.’ He looked down at his hands. ‘I think it was your compatriot, Lord Shawcross — Hartley Shawcross the turncoat to you, but we won’t go into that just now — who famously said that, to him, the challenge for the criminal barrister is to change the minds of the jury. To get them to abandon a decision they’ve already made is what he meant. This jury’ll certainly have made their minds up before my bloke hits the box. Challenge is the word, all right. It’s the disability that they’ll use to prove guilt.’
He stared at the flames. ‘The good thing, if there is a good thing, is that it’s such a head-on conflict. That means it isn’t my performance that’s going to decide this thing: they’ll have two stories — one they want to accept and one they don’t. I often wonder how juries do it.’
Arabella twisted herself around and put her legs across Harry’s thighs, arranging a cushion behind her head. ‘You mean because — to find the accused guilty — they have to be able to say, each and every one of them, that the defence account is simply not credible at all? That they don’t believe a word of it — they can find no room for doubt whatever? Black or white. No grey.’
‘Precisely. For me, there’s always doubt.’
‘There must be some certainties. You don’t doubt me, Harry, do you?’ Intensely.
Harry took his time. He thought about the words he wanted to use. He tested them in his mind. He wanted the absolute truth. ‘There’s been one occasion in my life when I’ve been able to suspend my disbelief, and only one.’
‘And this is it? You and me?’
‘And this is it.’
‘And me, Harry. But you’re wrong, don’t you know? The trial will be about your performance.’
‘D’you think so?’
‘It always is, Harry. Always. The truth is that your trick isn’t creating an enemy — it’s making Harry Curry the issue. One day, the judges are going to wake up to that, and find some way of stopping you.’
Arabella worked on her preparation of Tuesday’s civil suit in the lounge at Merimbula Airport, on the plane up to Mascot, and finally in her chambers, not heading home to Elizabeth Bay until ten o’clock on Monday night.
Her clerk had left a note for her that she had drawn Fairfax DCJ for the trial, which amused Harry when she told him that in their very short phone conversation just before she went to bed. ‘Flatter him, Bella. That always works.’
‘Flattery will get me nowhere, Harry. Not when he knows you and I are an item.’
‘Why would Unfairfax know?’
‘Everyone knows.’
Arabella’s matter came on in one of the dreadful little panelled-in-plywood courts in the Wentworth Chambers building. Under-lit, very 1950s, very cheaply finished, very uncongenial for all concerned. The plaintiff was represented by a down-at-heel silk, generally regarded as a mercy appointment (thirty years at the Bar, passed over more than a dozen times in his applications for Senior Counsel status). Dismal Des, for that was his name in the common room, appeared without a junior. He and his instructing solicitor were doing the case on spec — no win, no fee.
Judge Unfairfax (Arabella couldn’t think of him under the correct name) took counsels’ appearances and invited the plaintiff’s silk to give him ‘a thumbnail sketch’ by way of opening his case. ‘I don’t need all the detail.’
Dismal Des (aka Ahearn SC) kept it short: ‘The plaintiff is a married lady aged fifty-seven, your Honour, employed by the Education Department for thirteen years as a teacher’s aide. Last year, on the date particularised in the statement of claim, she was working at the infants’ school at South Windsor. One of her duties was to set out tables and chairs with painting easels and paints for the children in the playground, and she did that. Early in the afternoon, a storm started to develop and the headmistress asked the plaintiff to bring in the furniture and equipment. The children had all been taken inside.’
The judge interrupted, pen in hand. ‘Mr Ahearn, thirteen years, did you say?’
Narelle, Woman Lawyer from the Crown Solicitor’s Office (for it was another of her cases, despite the
unpleasantries exchanged in her most recent instruction of Ms Engineer as counsel), emitted a grunt. ‘For God’s sake, can’t he keep up?’
‘Not that it matters, Narelle. He’s going to recite the pleadings in his judgment, not Ahearn’s opening. He’s not famous for listening.’ Arabella smiled. ‘We must all be patient.’
‘Yes, your Honour, thirteen years with the Department.’ Judge Fairfax made a note in his exercise book. ‘If I may continue: when the plaintiff was folding up an easel that had been placed beneath a large tree near the playground fence — a river red gum, the expert evidence will show — there was apparently a particularly strong gust of wind, and the tree was blown down. One of the heavy branches struck the plaintiff on the left side of her body, causing serious injuries and continuing disabilities.’
The judge interrupted again, turning over the court file. ‘Your statement of particulars in the court’s file says her injuries were shock, a fractured left wrist, broken ribs, and extensive bruising and contusions.’
‘Yes, your Honour. You’ll also see from the statement of particulars that her continuing disabilities are, principally, an acute anxiety reaction together with pain and loss of movement in the left upper limb. Her earning capacity is consequently diminished, and accordingly her claim includes a significant element under that heading.’
‘You’d better talk to me about liability, Mr Ahearn. Trees are blown over every day without anyone being at fault. Force majeure. I can certainly see that your client would have a good action in the Workers Compensation jurisdiction, but up here —’
Arabella looked sideways at Narelle, noting the self-importance implicit in the judge’s ‘up here’ reference.
‘— up here, the test is whether a reasonably prudent person in the shoes of the Education Department — a person with a duty of care to your client — would have acted in some way differently than they did at this school in order to avoid this accident.’
‘Quite so, your Honour.’ Ahearn SC didn’t seem intimidated.
‘Because, Mr Ahearn, accidents do happen — as Justice Windeyer once so famously said in the High Court. And nobody’s at fault.’
‘Yes, your Honour.’
Fairfax DCJ put the cap on his pen and laid it on his book. ‘Well, then?’
‘Liability will be proved, I anticipate with respect, by the evidence of our expert witness, Mr Lenehan. His report, which was duly served on the Crown Solicitor, concludes that this particular tree was so rotten that its imminent collapse, never mind in a storm, was or should have been obvious to the departmental staff responsible for routine safety inspections and the maintenance of the grounds and buildings. Your Honour might note that no contradictory expert report has been produced by the defendant, with all its resources, which may be strongly indicative that there’s no genuine dispute about the hazardous nature of this tree. We can’t know, of course, whether a report was commissioned, but is being held back by the defendant because it agrees with Mr Lenehan’s.’
‘Very well. He’s been required for cross-examination, has he, your expert witness?’
Arabella half rose from her chair. ‘He has, may it please your Honour.’
‘Thank you, Ms Engineer. All right. Call your first witness, please, Mr Ahearn.’
The silk turned to where the plaintiff was sitting, and indicated that she should enter the witness box. ‘I call the plaintiff, if your Honour pleases.’
Mrs Candoso was sworn in, and gave her name and address.
‘Can I take you back to the day of your accident, please, Mrs Candoso? In your own words, would you tell the judge what happened?’
The obviously rehearsed plaintiff began nervously, but settled down after a short time to repeat the story she had told so many times before to so many lawyers and investigators.
‘I put the tables and chairs and easels out in the playground at half past eight. I put the paper on the easels, and took out the paints and the water. After playlunch, the children came out to do paintings. The kindergarten teachers and I helped them — we took off the pictures they’d finished, and hung them on the fence to dry. Then it was lunchtime.’
She took a breath, and her counsel interposed a question. ‘Did you put up any of the furniture in proximity to any tree?’
‘Yes, we always put the easels under the trees, for the shade. It was a hot day.’
‘I’ll show you this photograph.’ He handed a snapshot to the court officer, who took it across to the witness box. ‘Do you recognise what’s shown there?’
‘Yes. That’s the playground.’
‘Do you see a number of trees in that photograph?’
‘Yes, but one’s missing.’
‘Just stopping you there, Mrs Candoso, to make things perfectly clear. Is that the way the playground was on the day of your accident?’
‘No. This is taken after the accident. After the tree blew down and hit me.’
Ahearn had the court officer hand the plaintiff a felt pen. ‘Would you please mark on that photograph, Mrs Candoso, the position of the tree that fell?’
Arabella objected. ‘It’s a leading question, your Honour. The witness has, as yet, given no evidence that any tree fell.’
‘That’s a bit academic, isn’t it, Ms Engineer? Your client doesn’t deny that a tree fell, does it? Or that the tree struck the plaintiff and injured her?’ Fairfax DCJ flicked through the papers in front of him, looking at the formal defence in the court file.
The defendant’s counsel blushed. ‘Quite so, your Honour. I withdraw the objection.’
The judge smiled at her, but not pleasantly. ‘Let’s not take silly points, hmmm?’ He was aware of her relationship with Harry Curry, a barrister for whom he had a particular dislike.
‘May I continue, your Honour?’ Ahearn SC wanted to get on with it.
‘Go ahead.’
‘Have you marked the photograph, Mrs Candoso?’ She nodded. ‘May I see it, officer?’ The photograph was returned to the Bar table, and Ahearn made a corresponding X on his photocopy of the picture. ‘I tender the photograph, and the marking made by the plaintiff.’
‘Show it to Ms Engineer.’
Arabella and Narelle put their heads together and looked at it. ‘No objection.’
It was handed to the judge’s associate. ‘Exhibit 1. Yes, Mr Ahearn?’
‘Mrs Candoso, are you familiar with the tree that was blown down? Can you describe it to his Honour?’
‘A gum tree, I don’t know exactly what kind. Very big, bigger than the roof of the school. Higher, I mean. If I put my arms around the trunk, my hands wouldn’t have touched. But I never measured it. Big branches. Heavy.’
‘Did you see the tree after it was blown down?’
‘No, not really. I was underneath it. They took me to hospital in an ambulance. My husband went to the school the next day and took a photograph of the stump.’
Arabella was slow off the mark, realising too late that she should have taken a formal objection to hearsay.
Des kept the pace up. ‘I’ll show you this photograph. Do you recognise what’s shown there?’
The plaintiff studied it for a moment. ‘That’s the stump, after it broke off.’
Ahearn SC tendered the picture, and it was handed to Arabella.
‘For heaven’s sake, Narelle,’ she muttered, ‘this is so out of focus it could be anything.’ When Narelle agreed, Arabella got to her feet. ‘I have to object, your Honour.’
‘On what basis Ms Engineer?’
‘Two bases, may it please you: first, this photograph is so indistinct as to be impossible to interpret. And the second objection is that the last answer is hearsay. Mrs Candoso, with respect to her, wasn’t there when the photograph was taken, so she can’t say this is the tree in issue. It could be any tree, anywhere, and the photograph could have been taken at any time. She’s not in any position to say.’
‘Well,’ the judge countered, ‘as to the second objection, is the identity of the t
ree in the photograph genuinely in issue? I mean, all Mr Ahearn has to do is call Mr Candoso, and he’ll undoubtedly swear that he took the picture at the school the very next day, and the tree’s position coincides with the gap in Exhibit 1. I’m not keen on objections to evidence that isn’t, or shouldn’t be, genuinely in issue, Ms Engineer. I thought one of your learned friends may have warned you about that.’
‘I would have thought, your Honour,’ Arabella wanted to bite back a little, ‘that my learned friend Mr Ahearn would be calling Mr Candoso on other issues, particularly about his wife’s disabilities, and would at the same time be able to prove the picture in the usual way. I am entitled, with great respect, to insist on proper proof, particularly when it causes the opposing party no inconvenience or delay. It’s not a matter of what your Honour may be pleased to call genuine issues inter partes.’ Her Latin was intended as a small barb.
Fairfax DCJ, while not exactly chastened, appeared at least to regard Arabella with more seriousness. She had a point, and he was no admirer of shortcutting for its own sake. ‘Very well. I’m going to mark it for identification, Mr Ahearn, and you can tender it through the photographer. The objection’s upheld for the moment.’
‘One for us,’ Narelle whispered.
‘It’s a lot more important than he realises,’ Arabella whispered back. ‘If I can keep the picture out, their expert report’s inadmissible — because Lenehan bases his whole opinion on what has to be a specious interpretation of that picture. You’ll notice Unfairfax had nothing to say about the validity of my first objection.’
‘And if they can’t get the report in, they can’t prove liability?’
‘Quite so, Narelle. My point exactly.’
‘Very good, Arabella.’ The solicitor’s tone suggested to Arabella that perhaps this wouldn’t be her last State Crown engagement after all.
The plaintiff’s evidence in chief continued in the conventional way: she related the circumstances of the accident (‘It all happened so fast — I just picked up the easel and was running back to the building, and the next thing I knew I was in the ambulance and I was hurting all down my left side, and in my head’); the pain and suffering it immediately occasioned; then the period of treatment and convalescence; and her continuing disabilities were examined minutely in a long series of questions. The parties agreed that Mrs Candoso’s hospital and medical expenses would be the subject of separate agreement once all the accounts were inspected, and her wage loss would also be agreed — although she remained on weekly workers compensation payments, those would have to be repaid out of the judgment sum and had to be ignored by this court for the purposes of the common law damages award. Mrs Candoso told the court that she could no longer manage to work five days a week, which the defendant’s doctors agreed was the case, and so a calculation was going to have to be figured in, assessing her earning capacity at only 40 per cent of its previous level.
Harry Curry: Rats and Mice Page 13
