Harry Curry: Rats and Mice

by Stuart Littlemore

  Harry went and stood beside his client, bending down to speak to him. ‘Turn around and have a look at the jury panel,’ he said, indicating the civilians who were looking all about themselves. ‘If you see anyone you know, tell me or Mr Surrey. Especially if they don’t like you.’

  Bruce swept his gaze carefully across the faces. Some stared back at him. ‘All strangers to me, Mr Curry.’

  ‘Good.’ Harry turned and conducted his own appraisal of his client’s judges. ‘Are you happy to leave it to me to make your challenges?’

  Bruce was just saying he agreed, and being moved into the dock by a court officer, when there were three loud knocks and a cry of ‘All rise.’ Preceded by his associate, a young woman in a black gown with her hair in a tight bun, the judge entered the now-silent room and took his seat with the most perfunctory of bows to the assembly in front of him. Judge George Skyrne-Jones, QC. A very good lawyer who long ago, in a moment of weakness and jaded after conducting an eighteen-month judicial enquiry of phenomenal complexity as counsel assisting, had accepted the then Attorney-General’s invitation to join the District Court bench. It was generally agreed in Phillip Street that Skyrne-Jones QC was Supreme Court material, or even the Court of Appeal, and that he should have held out for a superior court appointment. But at least his wife was pleased to be Mrs Judge at the Killara Tennis Club.

  The ritual began: the Crown made his bow and presented an indictment for malicious wounding with intent to cause grievous bodily harm. The judge said, ‘Arraign him, Lucy,’ and the associate stood to read out the charge. Den Boer, who had been told to stand and remain standing, pleaded not guilty in a fairly firm voice. Jurors looked at each other, then more closely at the man in the dock. Harry stood, signalled with his hand to his client to sit down, and announced that he had the honour of appearing for Mr den Boer (not ‘the accused’. Never ‘the accused’, not from Harry). The associate again rose and started drawing numbers out of a wooden box and reading them out. Jury panel members stood in answer to their numbers, and were shown to a place in the jury box, until the twelve chairs were all occupied. Then each number was read out again, and the individual stood and was handed a Bible (or not, for those who opted for an affirmation). The process was uninterrupted until Harry, making a mark on his pad beside the initials OW (old woman) called out ‘Challenge’ and the unacceptable juror was shown to a seat in the body of the court. The Crown, not to be upstaged, proceeded to challenge almost immediately a young man, to Harry’s displeasure — at least the defence could rationalise its objection on the theory that old women were like rubber stamps, easily influenced by more assertive men in the privacy of the jury room, but there was no apparent reason for the prosecution’s rejecting such an inoffensive-looking male. Harry, nothing if not a counter-puncher, got square by rejecting a man of a certain age with an RSL badge in the lapel of his suit jacket. That left nine people in the jury box, and the associate had to draw out of the box another three numbers: the panel members who answered the call and took their seats were a girl, looking barely out of high school, a woman who could have been her mother, and a man of Middle Eastern appearance. Harry used up his last challenge (only three are allowed) on the middle-aged woman, but the Crown let the others through. The one empty seat was then taken by a young woman who looked Chinese to Harry.

  ‘Not so good,’ muttered Harry, who had many theories about ethnic attitudes to authority, ‘but nothing we can do now.’

  Surrey noted that the jury was an even split — six men and six women; but on balance quite a young group. They’d talked about it many times, he and Harry, and both believed that the younger the jury, the better. Fewer closed minds, less-developed prejudices, people not yet inclined to assume that the police wouldn’t charge an innocent man.

  Judge Skyrne-Jones nodded to the veteran prosecutor, who stood and straightened his papers on the lectern. He slowly took a sip of water and looked to his left at the faces of the jury.

  ‘Members of the jury, before you were empanelled, you heard the accused arraigned on a charge of malicious wounding. My task is to present to you the evidence of the prosecution supporting the charge. If I may give you a broad overview, I anticipate that the evidence will be as follows: the accused in this case, Bruce den Boer, was at the relevant time a security guard, employed to patrol certain business premises in Canberra and the surrounding areas by night. He was licensed to carry a pistol —’

  ‘Revolver,’ Harry interjected, looking at the jury as he did so.

  ‘In fact, Mr Curry, a revolver is one type of pistol,’ Skyrne-Jones DCJ responded, none too pleased that the sledging had already started, ‘and it seems highly probable that Mr den Boer’s licence was to carry a firearm. The Crown can probably do without your assistance, and so can I — unless absolutely necessary. Which means you should wait until Mr Crown has finished, and then raise any objection in the usual manner.’

  Harry half rose from his seat and nodded his head in the direction of the judge. As he sat, he pulled a wry face at the jury, several of whom essayed little smiles.

  ‘Naughty boy.’ Surrey didn’t entirely approve of Harry working the jury over.

  ‘As I was saying before I was …’ the Crown resumed, still standing, ‘the accused was armed with his firearm, loaded with six bullets.’ He held out his hand, and the dark-suited detective sitting behind him picked up the weapon, still in its clear plastic evidence bag bearing tags, and handed it over. ‘This is the gun, which I will move into evidence later and which you’ll have in the jury room while you undertake your deliberations. You’ll also be given the bullets, or five of them, but not at the same time as the gun.’ He placed the gun on the Bar table.

  An older juror leaned closer to his neighbour. ‘They’re scared we’ll shoot the judge,’ he said. His neighbour nodded agreement. He didn’t appear to recognise a joke when he heard one. Surrey watched the exchange, and made a mental note to the effect of ‘Blue shirt — no SOH.’

  The prosecutor continued, and set out the Crown’s version of what had happened on the night in question, pausing when he reached the part when Bruce den Boer supposedly said, ‘Yeah, but I think I’ll shoot you anyway.’

  The eyes of the twelve jurors were all on den Boer, appalled. Because Harry had warned him that would happen during the opening, he looked up from his study of the threadbare courtroom carpet and, as Harry had asked him to do, looked as firmly and unblinkingly as he possibly could at the jurors. There was total silence for five seconds, but it seemed to the defence team to be closer to an hour. Somewhere outside the courtroom, a door slammed.

  The Crown took another beat, and resumed. ‘The gun was loaded, there was a bullet in the chamber, and the accused fired it. The projectile struck Mr Kellaway, passed through his body, and lodged in his lower spine. We’ll tender the X-rays, which show the position of the spent projectile. It’s still there in Mr Kellaway’s spine. Mr Kellaway was rendered paraplegic.

  ‘Turning to your role in this trial: what the evidence must establish in order for you to return a verdict of guilty of malicious wounding with intent is three things: first, that the accused acted maliciously — which means in this case deliberately or recklessly; second, that he wounded or inflicted grievous bodily harm on the victim — in this case, a gunshot wound causing paraplegia; and third, that he did it with the intention of doing grievous bodily harm — really serious injury — to the victim. What the Crown says is that the evidence will establish each of those elements, and to the requisite standard in a criminal trial — of beyond reasonable doubt.’

  Harry looked at Surrey, sitting to his right. The jury couldn’t see his expression, but to the solicitor his raised eyebrows and pursed lips said that this wasn’t going to be easy. He looked at Harry’s hand, resting on a thick black binder labelled Criminal Law (NSW), and could see that it was scabbed in thin lines. He’d been grubbing out blackberries at Burragate, and the scratches had almost healed.

  The Crown havin
g completed his opening, Skyrne-Jones turned to the defence end of the table. ‘Anything, Mr Curry?’

  Harry rose. ‘Not at this moment, your Honour. I won’t be making an opening address until the Crown case closes.’ Harry had tried that once, and had come a dreadful cropper when the defence case he laid out was turned to nonsense by the evidence. Never again. Surrey, Harry well knew, wanted him to rebut the prosecution’s narrative as soon as he could, but he was going to keep his powder dry. Then Harry thought of something and got back to his feet.

  ‘I’d be grateful, though, if my learned friend would refrain from referring to Mr Kellaway as “the victim”. That rather tends to beg the question.’

  ‘Indeed it does,’ Skyrne-Jones agreed. ‘You’ll bear that in mind, Mr Crown?’ The Crown bowed shallowly, uncomprehending. He always called the complainant the victim.

  ‘Let’s have your first witness, then, Mr Crown.’ The judge picked up a fresh lecture pad in which to keep his own notes. He’d have a daily transcript of the evidence delivered to his chambers every evening, so he wasn’t going to attempt to record the testimony, but his system was to make notes of aspects of the evidence that he thought would prove crucial, paraphrasing them, and later to locate the relevant passages in the court record to recite to the judges of fact, as he was habitually pleased to call the jury, when he summed up the evidence. Unlike most of his colleagues, he was only too pleased to give the jurors their own copies of the transcript.

  The prosecutor said, ‘I call Troy Jayden Kellaway,’ and turned to watch the sheriff’s officer leave the courtroom and after a pause return to hold the doors open wide. The twelve jurors watched intently as a wheelchair was pushed into the room by a uniformed policeman and manoeuvred to a halt in front of them. The brake was applied. Nobody was going to suggest lifting the witness into the box to give his evidence. The policeman withdrew.

  The witness was sworn in, and was taken through the formalities of name and address by the prosecutor. He shifted uncomfortably in his wheelchair.

  Looking for sympathy, Harry thought. Playing the cripple card.

  ‘Mr Kellaway, as at third and fourth of October last year, were you employed by a company named Safansecure as an apprentice alarm technician?’

  ‘Yes. Third year.’

  ‘Was that company based at Fyshwick?’

  ‘Yes, John Kerr Place. Still is.’

  ‘Unfortunate name,’ the judge commented. He’d been preselected as an ALP candidate in 1975. Routed, of course. ‘Go ahead, please.’

  What happened next was that Kellaway unwound his story with remarkable fluency. He began with his staying back at the company’s central control room on the Saturday night because he had nothing better to do — his mother and her boyfriend were always drunk and fighting on Saturday nights when they got back from tea at the club, having lost their money on the pokies or keno or whatever, so he kept away as long as he could. Anyway, the patrolmen — except for den Boer, who was always a bit stuck-up and didn’t talk to the techs, let alone the apprentices — were his mates, and the police often dropped in for coffee and biscuits, and he liked police. Liked talking to them. He was going to go to the Academy at Goulburn, wanted to work in CSI, maybe Police Rescue. Not now, though, of course.

  Harry had whispered to Surrey, ‘Keep a good note,’ and kept his eyes on the witness. Hugely overweight. Deathly pale. Fat white fidgety hands. Nails bitten right down. Bling — a silver bracelet, huge gold rings with big coloured stones, gold earrings, two gold necklaces showing through his open-necked shirt. Tracksuit trousers with stripes down the legs and ironic tennis shoes. What looked like a perm in his mousy hair. The vanity of the catastrophically handicapped with nothing but time, a TV set and a mirror. Like the vanity of the long-term prisoner. Little eyes disappearing into a fleshy face, but sharp and shiny. Sweating. Tugging at one earring, often, as he told his story. His incredible story. Harry drifted off into ‘What if it’s all true?’ speculation and had to drag himself back to studying the young man. The little eyes darted away from the prosecutor when Kellaway was recounting the events following the arrival of the car at Hot Adult Imports Unlimited, and kept darting away. He wasn’t making eye contact with anyone. His tone of voice changed. His eyes were brightly manic, but he became more measured in his delivery, as if he were reading prompts from an invisible autocue that were being projected onto the walls, the ceiling, the floor. Yet he sounded pretty good, pretty natural. He’d had nothing but time to rehearse. Months. Surrey passed Harry a note on a piece of paper, torn off the corner of his lecture pad. ‘Rote?’ it said.

  Harry thought about it, but made no response. In front of him his white folder was open at a page he’d headed ‘XX notes — Kellaway’, but the page remained blank.

  The Crown had only a few reminders to give his witness once his uninterrupted narrative, totally consistent with the Crown’s opening address, finished. Having tidied up those loose ends, the prosecutor double-checked with his instructor (who shook his head, satisfied that they’d covered everything), told the judge that was the evidence in chief, and sat down.

  The judge turned to the jury. ‘What happens now, members of the jury, is that the accused — through his counsel — has the right to cross-examine the witness. You will, of course, listen closely to the questions and answers, because you may well think that this is where the defence version of events is going to emerge for the first time. You should also bear in mind that it is the duty of Mr Curry to put to the witness anything in the nature of a contradiction of his evidence, because I am certainly not going to allow him to later make allegations that were never put to Mr Kellaway. The rules of evidence forbid that kind of ambush.’

  He looked at Harry, whose face was suddenly like thunder. Surrey tensed in his seat.

  Harry got to his feet. ‘There are two further things your Honour will also want to tell the jury: first, that you didn’t intend to insult me; and, second, that a judge who makes the unforgivable mistake of descending into the arena as a participant will be corrected by the Court of Criminal Appeal.’

  ‘Yes, Mr Curry, you’re quite right. On both counts.’ He grinned as if it were all a huge joke between friends and looked toward the jury box. ‘Mr Curry never takes a backward step, members of the jury. Fasten your safety belts.’

  Harry hadn’t finished. ‘I am protected, of course, by the record. Your Honour’s remarks will be faithfully recorded on the transcript and read in another place, if that becomes necessary.’

  Skyrne-Jones DCJ’s good humour wore out quickly. ‘Yes, all right. Do you have any questions for the witness, Mr Curry? If so, get on with it.’

  Harry looked at his watch. The judge looked at the courtroom clock. Eleven-fifteen. Certainly not enough time to complete cross-examination on the crucial evidence in chief, which had taken a good hour to lead, before morning tea. ‘I’ll be brief, your Honour.’

  The Crown, for one, couldn’t believe that.

  ‘Very well.’

  Harry paused to allow the court to settle, and so that his cross-examination would be distinct from everything else. ‘Mr Kellaway, I want to put a number of propositions to you, fair and square. After each one, I shall invite you to reply. Do you understand that?’

  ‘Yes.’

  ‘First proposition: you lied when you said my client asked you to check the doors on the southern and eastern sides of the warehouse.’

  ‘I didn’t lie. That’s just what happened.’

  ‘So you say. Second proposition: you lied when you said that you told my client you were going over to have a drink from the hose before you helped him check the doors.’

  ‘That’s exactly what I said.’

  ‘And, as I have already put to you, that was a lie. Incidentally, where exactly was the hose?’

  ‘You could see it in the headlights. It was right where the car was pointing, on the right-hand corner of the building.’

  ‘What colour was the hose?’

 
‘I don’t remember. White, I think.’

  ‘Hard to miss, then. Third proposition: you lied when you said that you patrolled the southern and eastern sides of the warehouse.’

  ‘No I didn’t. Didn’t lie, I mean.’

  ‘Once again, so you say. Fourth proposition: you lied when you said my client upbraided you for sneaking around in the dark, and said he could have shot you.’

  ‘I dunno what that word means, but that’s what he said. I didn’t lie.’

  ‘Thank you for that. Fifth proposition: you lied when you claimed he said he’d shoot you anyway.’

  ‘That’s what he said. Exactly what he said.’

  ‘You say that, but it’s a lie, isn’t it? Five lies to date.’

  ‘All true. No lies.’

  Harry paused and looked at the jury, who were sitting on the edges of their seats. Some were making notes, listing the lies asserted to have been told. Kellaway was looking at anyone who was not Harry, and couldn’t keep his hands away from his face.

  ‘Sixth proposition, and this is the vital one: it was a lie when you told the jury that my client took aim and deliberately shot you.’

  ‘It’s exactly what he did.’

  ‘That’s six lies in a row, isn’t it, Mr Kellaway?’

  ‘All true.’

  ‘Tell me this, if you’d be so kind: how far apart were you when he pulled the trigger?’

  ‘Two metres.’

  ‘No more, no less?’

  ‘At least two metres.’

  ‘And would you please just show the jury how he did it?’

  ‘Demonstrate, you mean?’

  Harry nodded.

  ‘All right. Okay. He undid the button on his holster — it’s got a press-stud sort of thing, flapped it back, and he took out the gun, then he lifted it —’

  ‘Just show us that.’

  Kellaway lifted his right arm above the wheelchair, straight, to shoulder height, his hand shaped into a gun as in a boyhood game of Cowboys and Indians. His arm was parallel to the floor. He pulled the trigger of his index finger. ‘Bang, like that.’