‘That’s a pack of lies, I put to you. At least seven total falsehoods, as you well knew when you gave those answers.’
‘It’s just what happened. Listen — I’ll tell you what — you didn’t ask me if I lied when I said he shot me. You didn’t say I lied when I said I’ll never walk again.’ He looked at the jury in a show of defiance. Some nodded.
Harry stared him down while he counted to five, slowly. He had intended to count to ten, but it seemed excessive in the circumstances. ‘It’s hard, Mr Kellaway,’ he said finally, ‘to feel much sympathy for a shameless liar on oath, a perjurer, who feels so sorry for himself.’
The Crown was on his feet, angry. ‘Is that a question? I object to it. Totally improper.’
The judge didn’t need any help. ‘Any repetition of that, Mr Curry, and your client will be at risk of finding himself defended by Mr Surrey.’
Harry looked at the jury, not the judge. ‘As your Honour pleases.’
‘Do you have anything else for this witness?’
‘With your Honour’s leave, I’ll reserve the balance of my cross-examination. I would specifically reserve my right to make an application to re-call this witness after the jury has heard from the prosecution’s other witnesses. It may be necessary in the interests of justice, which is your Honour’s sole concern.’
Surrey bit his lip. He’d never seen Harry so close to losing control. It seemed to him that Skyrne-Jones would have to concede that his mischievous earlier remarks to the jury implying that Harry might break the rules relating to cross-examination had provoked the whole unfortunate outburst. This judge was an essentially fair man, Surrey had always found, and if that was indeed the case he’d come to realise that some accommodation would have to be offered to the defence.
‘Well, Mr Curry, no doubt you’d say — at the very least — that you’ve discharged your duty in terms of Browne v Dunn?’
Harry could recognise an olive branch when he saw one. ‘Yes, your Honour, I would.’
‘Yes, that’s probably right. Well, I don’t have to rule on it now, because I can wait for you to make the application, if you’re still then minded to do so. But I can indicate that I would be inclined to grant leave to Mr Curry if he seeks further to cross-examine this witness, Mr Crown. All things being equal.’
Mr Crown was plainly not pleased, but there was nothing he could say. Certainly not at that stage.
The judge addressed the jury. ‘Members of the jury, I should explain what’s just happened: as I told you earlier, the defence can’t ambush the prosecution with allegations that weren’t raised at the appropriate time. You might think that Mr Curry has now put to this witness that his evidence on the essential matters is, not to put too fine a point on it, a tissue of lies. That would probably cover the duty of the defence under what we call the rule in Browne v Dunn, which is a long-established principle which holds that … just hang on a moment —’ and he consulted a battered edition of Cross on Evidence before reading from it, ‘“— it is necessary to put to an opponent’s witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings.”’
Surrey whispered to Harry, ‘He makes a good job of riding his bicycle backwards.’ Harry gave the slightest of smiles. ‘Not that the jury’s got a clue what he’s talking about.’
‘Now,’ said the judge, ‘I think we all could do with a cup of tea. Twenty minutes.’
The lawyers left den Boer with his family and headed down Canberra Avenue in search of takeaway coffee. Surrey was looking troubled. ‘Christ, Harry, you’ve made an enemy of him. I’ve always thought old Skyrne was pretty pro-accused.’
‘Be fair, Dave,’ Harry said. ‘There was absolutely no reason for him to have a go at me as he did, right from the kick-off. On what possible grounds did he assume we were going to try to ambush that young man?’
They walked on, thinking about it. Harry, now perfectly calm, had his own theory. ‘You know what I think? Skyrne’s bored. Just another bloody District Court trial when he should be a judge in Appeal, just another lonely bloody circuit, staying in some lousy motel in Queanbeyan — they won’t pay for him to stay in a decent place in Canberra — and trying to make a profit on his travelling allowance. So he thinks a bit of harmless mischief can only lighten things up. Probably totally non-malicious. Spur of the moment, seemed like a good idea at the time.’
Surrey looked at him, incredulous. ‘There must be more to it than that.’ They waited for a break in the traffic, and crossed the busy road. ‘So you’ve forgiven him?’
‘He apologised.’
They stopped at a café and placed their order. Surrey said, ‘If he apologised, I didn’t hear it.’
‘He said he’ll let me reserve the rest of my cross-examination of Kellaway. That’s as close to an apology as we’re ever going to get from a District Court judge.’
A huge B-double stinking of terrified sheep thundered its way past, drowning out all conversation. When it had disappeared, Surrey asked Harry if he’d heard the story about Skyrne-Jones being appointed to the District Court by mistake.
‘That’s not entirely true,’ Harry responded. ‘The story as I understand it is that he accepted a Dizzo judgeship after the A-G stuffed up his appointment to the Court of Appeal. Apparently the government intended to appoint Skyrne, but the A-G asked his flunkey to get him “S. Jones”, and up came a nonentity called Simon Jones, a Workers Comp hack of no particular ability. The A-G, who’d previously been a suburban solicitor and didn’t know either of the Joneses personally, had blurted out the offer of the Court of Appeal vacancy — and it was accepted instantly — before anyone realised he had the wrong Jones.’
‘So he went through with it?’ Surrey was laughing.
‘He had to. An apologetic message was sent to Skyrne saying he’d get the next job, and the silly bugger told his wife, who’s apparently the most appalling social climber. Or was — I think she’s died. When the next job turned out to be on the inferior bench, she didn’t know the difference, and she didn’t care. So he had to take it. She’d already started calling herself Mrs Justice Skyrne-Jones.’
Coffees in hand, they headed back towards the courthouse, dodging young women with gigantic strollers and the latest in mobile phones. Surrey was still laughing, but at the same time feeling sorry for their judge. ‘And so here he is,’ he said, ‘poor bastard. Sitting on scruffy trials in uncongenial places, wasting his intellect, pushing deadbeats through the revolving door of criminal justice.’
‘You could say that,’ Harry agreed. ‘When he should have been laying down the law from a great height at Queens Square. Never having to leave the thirteenth floor, or wherever it is they sit.’
‘Then we’d better be nice to him from now on,’ Surrey said, ‘except that if you did that you’d only alarm the poor man.’ He paused. ‘So what happened to Simon Jones?’
‘He went mad and they shot him. It was all too hard for him, and his conduct got more and more bizarre, so he took the psychiatric express and the pension, and was last seen propping up the bar at the Chatswood RSL, telling war stories about his great appellate judgments.’
‘Does that happen often, Harry? To judges who go off the rails? You never hear about it.’
‘Well, maybe solicitors don’t, but it happens more often than you’d think, Dave. Some of them become hopeless alcoholics, a few simply can’t handle the pressure, and some were never up to it intellectually in the first place. In extreme cases, they refuse to see sense and try to hang on and have to be brought up before the parliament. That’s always horrible. Blood on the walls. But most are sensible and sensitive enough to do the honourable thing, and fall on their swords like gentlemen, as long as it can be done quietly. A decent medical certificate’ll secure their pensions. The trouble is that there’ve been a lot of appointments over the years that were for th
e wrong reasons. It’s a shitty job — I cannot comprehend why anyone would take it on — and you’ve got to wonder why more of them don’t go off the rails.’
‘Harry, would you ever?’ Surrey asked.
‘Never.’
‘You wouldn’t be asked, anyway. Harry Curry could never send anyone to jail. Everyone knows that.’
When they returned after the short adjournment, Kellaway had been wheeled out of court to await possible recall later in the week (unless the judge changed his mind about Harry’s right to delay further questioning), and the lead detective was next to be called. Harry had never run a case against this Crown, a late-middle-aged man of remarkable colourlessness whose name he kept forgetting — Brad, was it? Or Brett, or Barry? — and didn’t attempt to strike up any sort of beneficial cooperative relationship that would have given the defence notice of which witness was next to be called, or which document was to be tendered in the prosecution case. Harry didn’t mind. He found the element of surprise made his mind work faster. It seemed to stimulate ideas that might not have come from dogged and systematic preparation (though he’d done that too, of course).
The lead detective, whose mien was somehow gratingly unattractive (the defence was happy to note) in the style of a bad-tempered veteran of hundreds of such trials, didn’t have much to say, but had the responsibility of telling the jury that the accused had declined to be interviewed by police (the judge interrupting to tell them that was his inalienable right, and theirs too, and that they were not to draw any adverse inference from the refusal), and that den Boer’s fingerprints had been taken (and found on the revolver). One problem for the Crown was that the first policeman on the scene on the night of the shooting had left the Police Force, and couldn’t be found. The detective was plainly embarrassed at the prospect of being queried about that.
Skyrne-Jones seemed calmer since the break, and there was even a hint of the effusive in his manner. He asked Harry if he was going to object to the detective being the witness through whom exhibits were tendered — the clothing worn that night by Kellaway (bullet hole, bloodstains and all), the revolver, the five live bullets, the X-ray revealing the location of the one spent projectile, its casing retrieved from the gun, photographs of the scene and of the security company’s patrol car, the hospital documents, and floor plans of the warehouse and office. The problem to which he was alluding was that the detective couldn’t give first-hand evidence of any of those matters, because he wasn’t at the scene when Kellaway and his clothes were taken away in the ambulance, the gun and ammunition were seized and bagged by the police first attending the scene, the photographs were taken by scene-of-crime officers, and the documents were produced on subpoena. Harry didn’t make things difficult for the prosecution by raising any objection, for which the judge and prosecutor were grateful. He had every right to put the Crown to formal proof, but they would have eventually overcome their problems and Harry couldn’t see the point in being bloody-minded. A defender being paid a daily rate by Legal Aid might have acted differently, Surrey was later to say, because it would have given her or him another week’s fees.
‘Thank you, Mr Curry. We’re all greatly indebted to you for your thoughtful cooperation.’
Harry took a moment to look at the judge. Why the change? ‘Not at all, your Honour. There is one exception, though: we will require the photographer for cross-examination in due course. And I do have some questions for this witness, all the same.’
‘Of course, of course. Will you finish by the luncheon adjournment?’ Looking at the clock.
‘I should, may it please you.’
‘Mr Crown,’ the judge turned his attention to the other end of the Bar table, ‘you will be calling the officer who took the photographs, won’t you?’
‘If Mr Curry requires, your Honour, yes.’
‘I think you can take it that he does.’
Harry nodded ‘Yes’ at his opponent and turned to a page of handwritten notes, looked at it for a moment, then fixed his attention on the detective in the witness box. His suit looked rather too expensive for a policeman’s wage, Harry thought. He made such a comment to Surrey, who took a close look and agreed with him. ‘Hugo Boss, I’d say. I couldn’t afford it.’ The judge probably assumed they were discussing tactics. ‘Hugo Boss doesn’t do Harris tweed’ was what Harry actually said.
‘Sergeant —’ Harry began, but was interrupted.
‘Detective Sergeant.’ Standing on his dignity.
‘Thank you, sergeant.’ Cop that. ‘Have you located Constable Grech yet?’
‘Unfortunately, no, we haven’t.’
‘So the New South Wales Police Force, with all its resources, can’t locate a man who only left its ranks three months ago, was until then, at least, a resident of Queanbeyan, has a mobile phone, a driver’s licence, presumably a car registered in his name, credit cards and a bank account into which he probably had his wages paid every fortnight, and is to be found on the electoral roll. He possibly has a Facebook page, for all we know. Everyone else under the age of forty does. Even though you knew he’d be required to give evidence in this case, your efforts to find him have failed.’
‘I already said we can’t locate him.’
‘Not we, sergeant, you. You’re the officer in charge. I’m asking about your own efforts. And you were keen for me to address you as “detective”, weren’t you? Some detective.’
‘Mr Curry!’ A low rumble from the bench. The young associate swivelled in her chair, frowning, and looked at the judge.
Harry didn’t respond. ‘Did you cause a subpoena to be issued?’
‘I didn’t, no.’
‘Despite his importance to the case of which you are the officer in charge.’
No answer.
‘The point is this, sergeant: ex-Constable Grech is the only officer who handled the gun, and the only officer to take custody of the bullets.’
‘So I understand.’
‘And you can’t tell me where he found the bullets, can you?’
‘In the gun, I assume.’
The judge knew where this was going. ‘You may not assume, officer. The jury will disregard your assumption. The answer to Mr Curry’s question is in the affirmative, isn’t it? You cannot say where the constable found the bullets — whether in the gun’s chambers or anywhere else?’
‘I can’t say, your Honour.’
Harry took the witness back. ‘And what about Constable Grech’s duty book and police-issue notebook, sergeant? Where are they?’
‘No idea.’
‘But those documents remain the property of the police, don’t they?’
‘Yes. Theoretically.’
‘So they can be brought to court?’
‘If his Honour directs me to.’
‘I do.’ Skyrne-Jones was being firm.
‘Yes, your Honour.’
‘By two o’clock today, officer. Got that?’
‘Yes, sir. That’s if we have them.’
‘We’ll adjourn until then.’
Bruce den Boer was ordered by the judge, speaking over his shoulder as he left the bench, to remain within the precincts of the court over the lunch break, so he and his parents settled down in the foyer to eat sandwiches his mother had brought from their delicatessen. While the lawyers had lunch further down the street (toasted ham, cheese and tomato sandwiches on white bread and tea; the one decent restaurant in Queanbeyan having closed for lack of interest), Harry borrowed Surrey’s mobile phone and rang Arabella in her chambers.
‘Have you seen the doctor yet?’
‘That’s not till four o’clock, darling. Stop worrying.’
‘You’ll let me know?’
‘Of course. How’s the trial? Who’ve you got on top?’
‘Skyrne-Jones. A pretty good draw, though we’re still butting heads. He seems a bit, I don’t know, erratic. We’ll settle down.’
‘And the client?’
‘Trying manfully to keep up with t
he action. He’s ready, but it’s hard to know when he’ll get into the box. At the moment, I’m trying to force the coppers to produce a missing officer and his records of the property seized. He’s allegedly disappeared.’
‘What does that mean?’
‘He left the force. They say they can’t find him.’
‘Left as in under a cloud?’
‘No idea. Not yet, anyway. If they can turn up his notebook, maybe we won’t need him. Oh, that reminds me of something we didn’t ask for. I’ll have to go. Call you tonight.’
‘Good luck, Harry.’
Harry closed the phone and handed it to Surrey.
‘Reminds you of what, Harry?’
‘We should have asked the sergeant to produce the register from the property room. There might be something in that. Can you ring him and ask him to bring that, too? He’ll still be at the cop shop.’
Surrey did so, and received a grudging agreement.
‘He says he’s located the notebook.’
‘Good. I hope we get to see it before Skyrne comes back on the bench.’
Surrey finished his tea and took ten dollars out of his wallet. ‘At least it’s cheap.’ He waved to the waitress, and she came over and collected their money. ‘What I don’t understand, Harry, is why there was only one policeman at the scene. Don’t they always patrol in pairs?’
‘Yes.’
‘So where was his mate?’
‘The official version is that he had a sudden attack of diarrhoea, and had to stay at the station.’
‘And the truth?’
‘Who knows? There is, however, a brothel at Fyshwick, and it’s on their route.’
‘Plus ça change, eh? The Police Force of New South Wales.’
‘As you say, Dud. Keep the change.’
‘What?’
‘That’s what it means, isn’t it? Keep the change?’ Harry left a two-dollar tip beside his plate and stood up, taking his Bar jacket from the back of his chair. ‘Time we got back.’
Harry Curry: Rats and Mice Page 17
