Harry Curry: Rats and Mice

by Stuart Littlemore

  ‘That’s pretty right. More or less.’

  ‘And eucalypts will also display growth rings where they grow in Australian environments that have strong seasonal variations — alpine country, the tropics, and so on?’

  ‘Yes.’

  ‘You expected to see patent annular rings, obvious growth rings, in the broken-off trunk of the river red gum shown in Exhibit 2, didn’t you?’

  ‘Yes.’

  ‘Despite the appalling quality of the photograph itself?’

  ‘Well, it’s out of focus, but you can still see there are no rings visible.’

  ‘Despite the wood being jagged? It’s not as if it’s been sawn off cleanly, is it?’

  ‘No, it’s not. That’s fair enough.’

  ‘Your whole opinion stands or falls on an assumption you made, having viewed nothing more than an out-of-focus photograph — isn’t that right? You never visited the school, let alone inspected the stump.’

  ‘I couldn’t. The solicitor only engaged me a month ago, and he told me the stump, and the rest of the tree, had been cut down, taken away and burnt. There was nothing left to inspect.’

  ‘Will you have a look at this, please? Just read to yourself the highlighted passage, if you’d be so kind.’ Arabella handed the slim volume she was holding to the court officer, who passed it to the witness.

  Her opponent got to his feet and made a querulous objection. ‘There isn’t going to be any ambush here, your Honour. Will my learned friend please identify the document she’s given the witness?’ He sounded very dismal.

  ‘No, Mr Ahearn, I’m not required to do that.’ Arabella spoke very firmly. She had a better grasp of the rules of evidence than the silk, she was gratified to learn.

  Dismal Des remained standing alongside Arabella, meaning that one of them was in breach of court etiquette, but Arabella wasn’t sure which it was. So she sat.

  ‘I make the rulings in my court, Ms Engineer.’ Unfairfax, in highly displeased mode. ‘But your learned friend is correct, Mr Ahearn, all the same. You can save your objection until she seeks to tender the book. Go on, Ms Engineer.’

  ‘Have you read that, Mr Lenehan?’ A nod.

  ‘And?’

  Dismal was back on his feet, aggrieved. His instincts told him that something disastrous was about to happen. ‘Is that a question? I object.’

  ‘I withdraw it in that form,’ Arabella said. ‘Do you have any comment to make, Mr Lenehan, on what I’ve just asked you to read?’

  ‘Not really.’ A hint of embarrassed truculence. ‘I’ve already said that I would defer to Dr Brooks on this subject.’

  ‘It’s a pretty emphatic contradiction of your evidence, though, isn’t it? Surely you’ve got some comment to offer on what he’s written there?’ No verbal response. ‘Well, not to put too fine a point on it, what Dr Brooks says in that passage — and please correct me if I’m wrong, but I’m trying to express this in lay terms for the benefit of the court — is that he would definitely not expect annular ring structures to be visible in a river red gum growing in a temperate area close to a river, as you have noted in your written report that this one was, at South Windsor. Do you accept that?’

  Lenehan was past embarrassment. He looked as if he were about to burst into tears. ‘I would have to.’

  ‘Because, as you’ve already acknowledged, he is a better-qualified man than you, and you would always defer to his opinion.’

  ‘I would.’

  ‘In which case, the inevitable conclusion his Honour must draw, Mr Lenehan, is surely that the foundational assumption you made in order to justify your opinion that this tree was rotten to the core, and would have been or should have been obviously dangerous, was false?’

  ‘Incorrect. I’d put it that way. It was incorrect. I don’t agree with the word false.’

  ‘No, Mr Lenehan, it was either true or false, wasn’t it?’

  A long pause, in which the witness looked at Mrs Candoso’s solicitor but found no comfort. Dismal Des knew better than to object.

  Lenehan looked away from his questioner. ‘I suppose.’

  ‘Well, which was it? True or false?’

  ‘It wasn’t true.’

  ‘However anyone wants to put it: you were wrong?’

  Lenehan looked momentarily at the judge, then looked away again. ‘I was.’

  After that, it was only a matter of mopping up, entering a formal verdict for the defendant (with a costs order that everyone knew could, and would, never be paid by Mrs Candoso), and indulging in a little self-congratulation. Dismal Des failed to observe the barristers’ convention of congratulating his adversary.

  Arabella and Narelle were soon standing outside Wentworth Chambers in the famous Phillip Street wind. The rest of the city might be in the doldrums, but the wind tunnel effect of the street had a mind of its own, and it was flogging at Arabella’s gown as if it were a loose spinnaker. ‘Well done us,’ Arabella smiled broadly, ‘or, Narelle, is this going to be another of those cases where you won’t thank me for winning because you’d advised the department it was bound to lose?’

  ‘You owe me a cup of coffee,’ was all Narelle had to say on the subject.

  ‘Nothing like a good win in court,’ Harry agreed when Arabella rang him at dinnertime with the news. ‘Of course, that’s still nothing like the buzz of winning the liberty of the subject. All you’ve actually done is save the bureaucracy a bag of gold that they’ll spend somewhere else it isn’t needed, and the poor old Candosos will go to their graves still worrying that you’ll grab their children’s inheritance.’

  ‘Not me, Harry. That’s down to Narelle.’

  ‘Do you think the family knows the difference? You’re all the enemy, and you beat them.’

  ‘You know how to deflate a girl, Mr Curry. I was going to engage in a bit of triumphalism, but you’ve poured cold water on that. You would have liked the cross-examination, all the same, or I hope you would.’

  ‘Proud of you. Even Unfairfax is going to have to show you some respect from now on. Very clinical, and very effective. I hope you thanked the Emperor Nero for the lend of his book?’

  ‘First thing I did. He was chuffed.’ Arabella’s voice turned thoughtful. Sad, even. ‘Harry, what about Mrs Candoso? She was really quite badly hurt, after all. She gets nothing except a bill from the Crown.’

  ‘She still has her workers comp entitlements, Bella. This doesn’t affect those rights. The only difference is that she’s not going to get a lump sum, or anything for her pain and suffering, but you can console yourself that the family’s not going to be out of pocket because she lost the case. I’m assuming it really was a no-win, no-fee agreement with her lawyers. And not even the State bloody Crown’s going to try to enforce that costs order. What are they going to do? Take their house?’

  There was a pause. ‘It’s not so bad, then?’ Arabella asked.

  ‘Stop worrying, my beautiful girl. Pick up the next trial, and get on with it. Every case has a loser, you know. Sometimes more than one.’

  ‘Too true. Actually, there isn’t another trial in my diary for the moment — just chamber work. Plenty of that, though. No court work until next month.’

  ‘For a moment there, Bella, I thought you were going to make an overture about coming down here for some R and R. But you’re not, are you?’

  ‘Maybe at the end of the month, depending on how much I can get done before then.’ She could hear Harry banging pots around. ‘Are you washing up one-handed?’

  ‘No, trying to make a cup of tea. You had dinner yet?’

  And from there they spent five minutes talking about what they’d eaten (spaghetti for Harry) or were planning to eat (a bruschetta at the Elizabeth Bay café for Arabella), what she was wearing (still in the Armani suit she’d worn to court, but stockinged feet), and what they were reading in bed (Ian Rankin for Harry and Uniform Civil Procedure for Arabella). When those topics were exhausted, Arabella asked about Harry’s trial preparation.
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  ‘I’ll have to go up to Goulburn for a few days to prepare the punter and go over whatever evidence Dave’s been able to gather to corroborate him. Nancy’s invited me to stay with them.’

  ‘That’s nice of her. Will you?’

  ‘Don’t think so — two teenage girls and a teacher? There are plenty of motels within walking distance of Dave’s office.’

  ‘The trial’s not in Goulburn, though, is it?’

  ‘No, but the client and the solicitor are. Trial’s at Queanbeyan. Struggletown, Canberra people call it. Quite possibly the ugliest courthouse in this State.’

  ‘Does that make a difference, Harry?’

  ‘Strange as it may seem, it does to me. It’s a polygonal courtroom something akin to a Hillsong church. Hideous.’

  Arabella chuckled. ‘As long as you don’t draw some happy-clappy judge to go with the fundamentalist architecture.’

  ‘I’ll have to think about that. Given that they’re appointing academics and solicitors to the District Court, it’s a distinct possibility.’

  ‘I’ve got a doctor’s appointment next week.’

  ‘Everything okay?’ Arabella thought she picked up the faintest note of anxiety in his voice.

  ‘Everything’s perfect, Harry. I’m still radiant. D’you know what my clerk said tonight? She was very shy about it, but she said she thought I was “starting to show”. At least she didn’t ask if she could put her hand on the baby.’

  ‘I miss you, Bella. Both of you. Listen, we’re going to have to visit my old man before the baby’s born, you know.’

  ‘Ready when you are, Mr de Mille.’

  ‘Soon as the trial’s over, then? Hopefully the weekend after next.’

  ‘I’ll put it in my diary. And I miss you, too, Harry. We both do. I want the baby to get used to your lovely deep voice.’

  ‘Readings from The Magic Pudding?’

  ‘Indeed. And more slices. Cut and come again, I believe is the motto.’

  In the end, Harry spent four days in Goulburn, staying at a cheap but cheerful and spotless motel, eating his dinners with the Surrey family (whose distaff side seemed only to want news of Arabella’s pregnancy) and taking over one of Surrey’s offices above the Commonwealth Bank to construct the best possible rebuttal of the prosecution case, and then painstakingly to rehearse Bruce den Boer’s evidence with him.

  ‘Here’s a secret not many lawyers know,’ Harry told the young man at the end of their first session, which hadn’t gone all that well. Getting the evidence to flow from Bruce had been a bit like drawing teeth with his bare fingers. ‘You’ll win this case if the jury like you. So your job is to make them like you, and you do that not by telling jokes or tapdancing on the Bar table, but by impressing them with the truthfulness and frankness of your answers. It’s all down there on those pages. Just read them and read them and read them. This isn’t a school play — you don’t have to recite it word perfectly, but you do have to know it inside out. Those pages are the whole universe of this trial. For you, nothing outside those pages exists. You aren’t going to tell me anything in front of the jury that isn’t written there. Neither are you going to spew out some answer in cross-examination that you’ve just thought of.’

  ‘Easier said than done, Mr Curry.’

  ‘I know that. That’s why we’re working so hard on this. It’s just as well you don’t have a job to go to, and you can spend all your time on it. We’ll need the weekend, too. Anyway, that’s enough for today — I’ve got some things to talk to Mr Surrey about. You get off home, and go for a run or ride your bike or something. Get some fresh air.’

  Once Bruce had set off, Harry went into Surrey’s office and slumped in the client’s chair. Surrey boiled the electric jug and made them tea. Harry got the ‘Sue the bastards’ mug, and Surrey kept hold of his Laura Ashley one. His girls had given it to him, and he liked it.

  ‘How’s he going? That sounded like a pretty tough session you were giving him.’

  ‘We’ll get there. He’s not a bad kid. He just has to let the jury see that. He’s got to drop the armour. Of course, it’ll help if you’ve made progress on my wish list. Did you get the Water Board plans?’

  ‘Subpoena duly served, returnable on the first day of the trial. They’re also posting me a copy of the plans by express mail at the client’s expense.’

  ‘Good man. Is the police ballistics bloke prepared to speak to me?’

  ‘Tomorrow at 1.30. Took a bit of persuading.’

  ‘Thanks. How’d he sound?’

  ‘In the end, he was okay. Perhaps a trifle sententious.’

  ‘That might not be so bad. He’ll want to run his own race, whatever the Crown wants from him.’

  ‘Yeah, I got that impression. It’s a fundamental contradiction, though, isn’t it — police specialists being treated as if they were independent experts, when they’re on the payroll of the prosecution?’

  ‘You’ll notice, Dave, if you care to look at it in an idle moment — of which country attorneys seem to have such an abundance — that they’ve watered down the code of conduct for expert witnesses. The common law used to mandate that the witness had to be truly independent, but that doesn’t apply in crime. Ridiculous, really, because if there’s anywhere you need impartiality, it’s in adducing evidence of guilt.’

  ‘Couldn’t have put it better myself, Harry.’

  ‘Just as well, seeing I’m supposed to be the persuasive advocate, not you.’ He finished his tea. ‘What about the other things on the list?’

  ‘The police have got photos of the car, taken at the scene. They’re sending me photocopies first thing in the morning, and proper coloured prints will be at court for you on Monday.’

  ‘We should have had them in the brief, of course. But that’s better than nothing. What else, Dave? I forget.’

  ‘The hospital notes have been subpoenaed, but I couldn’t get advance copies, sorry. That subpoena’s returnable on Monday morning. And the last thing’s the constable’s list of the personal property turned up when he searched young Bruce at the scene. Bit of a problem there. The constable’s resigned, and they can’t put their hands on his notebook. That’s why there was nothing about that in the brief.’

  ‘Not good enough, Dave. Not your fault, but not good enough. That’s the trouble with not having a proper committal hearing, where you can dig this stuff out. Look, you’ve got his name, haven’t you? You should be able to track him down, or someone who knows him, in the Queanbeyan district. Phone book, electoral roll, Facebook. No one can hide any more, and maybe he’s not trying to. You could always ring the cop shop and say you’re his mate, asking where he works now. Someone’ll know. Then you can ask him whether he’s still got his notebook — he shouldn’t have, it always remains police property, but anything’s possible — and, if not, get his best recollection of what he found when he turned out our punter’s pockets.’

  ‘Consider it done, counsel.’ Surrey looked at his watch. ‘Beer?’

  ‘Lead on.’

  On the Sunday night before the trial, Harry installed himself at University House at the ANU. Over the years, he had based himself there for his sporadic briefs in Canberra matters (usually from Sydney solicitors, because the Canberra profession appeared to both hate and fear counsel from the smoke). It suited him — a couple of rooms, designed for visiting postgraduate students, with a big desk and plenty of bookshelf space, and easy access across the lawns to the ANU Law School’s library. The House was only the distance of a pleasant walk, except in winter, from the city’s courts. Harry still walked it in winter — it just wasn’t so pleasant, not even in a cashmere overcoat.

  It was impossible, though, to walk as far as the Queanbeyan District Court, so Harry packed his wig, gown and jacket into the blue bag embroidered with the initials HMC (his mother had done the needlework fifteen years ago, in the same chain-stitch as she had embroidered the initials of Wallace Curry upon the occasion of his appointment as Queen’s C
ounsel, and his exchanging his blue bag for a scarlet one), gathered his Criminal Law Practice, Cross on Evidence, his evidence folders and other papers, and ferried the lot over to Struggletown in the mud-spattered LandCruiser. He was the first lawyer to arrive at the courthouse, and had to wait outside the locked courtroom door, looking at the faces of the men and women who’d been served with jury summonses and were now lingering uncertainly in the public area. A jury panel of everyone from the long-term, nothing-better-to-do unemployed to the impatient and resentful businesspeople of Queanbeyan’s CBD, anxious to be excused from the inconvenient demand for service to their community. Not a promising array, Harry thought. Maybe I should challenge the lot.

  David Surrey and his client joined Harry ten minutes later, carrying bundles of white plastic folders in cardboard cartons. Bruce den Boer was sans beard and earrings and wearing a sports jacket and tie. To Harry’s eye, he displayed all the indicia of terror and alienation that typify the accused — guilty, innocent or (and Harry knew this to be a third choice) not guilty. They were let into the courtroom to set themselves up.

  Everything happened in a flurry in the five minutes before ten o’clock. The prosecution team — two solicitors and an elderly male prosecutor in wig and gown — rushed in, looking anything but ready to launch the trial, dropping and stooping to retrieve papers and looking harried, trailed by the detective in charge of the brief with his own folders, plans, plastic bags containing the revolver and a number of bullets (five unused and one shell), the complainant’s bloodstained uniform jacket and further bundles of what Harry assumed to be original documentary exhibits. The court officer put out the Bibles for the jury swearing-in and filled the carafes on the Bar table with water. There was a hurried conversation between Mr Crown and a court official about whether a TV set would be needed to play any DVDs of police interviews, or anything else.

  Harry and Surrey were in their places at the Bar table, calm, everything ready. Bruce den Boer sat behind and to one side of Surrey, waiting to be shut into the dock, where a policeman would sit guard beside him. The jury panel, about twenty of them, had been shown to seats in the public gallery, displacing a handful of the merely curious who had got in first.