‘No doubt you have your reasons, Mr Curry, because that’s certainly nothing like the evidence.’
‘Not yet it’s not, may it please you.’
‘You always have your reasons, Mr Curry.’
‘I certainly hope so, your Honour.’
Surrey asked why Harry was so anxious about the completeness of the transcript. ‘Because they usually don’t transcribe argument — just what the witness says. In this case, I want to pre-empt deniability.’
‘Like Skyrne says, no doubt you have your reasons.’
The doctor was replaced in the witness box by the ballistics man, whom Harry had spoken with the previous week. Harry whispered to Surrey, ‘As you said, I thought he seemed pretty reasonable, pretty impartial, when we talked. Let’s see if they’ve got to him.’
‘Heaven forfend.’
The ballistics expert — a member of the New South Wales Police Force — proved to be his own man, and didn’t resile from anything he’d told Harry in their telephone conference.
The prosecution had called him to give evidence of examining the gun and the bullets. What the Crown wanted, and got, was evidence to the effect that there was no defect in the trigger mechanism. In other words, you had to apply pressure to the trigger to make it fire — it wouldn’t go off accidentally because it was dropped or bumped. Then Mr Crown made the cardinal error of asking his own expert a question without notice.
‘Senior Constable Cavanagh, was there any defect in the safety catch mechanism of the weapon?’
A withering look from the ballistics man. ‘Would you repeat that question, please?’
‘I was asking about the safety catch. Could it have failed — if you presume the accused put it on, but the gun fired notwithstanding?’
Cavanagh looked at the judge. ‘Your Honour, so far, in all the history of gun manufacture, there have been only three revolvers built with safety catches in their designs. The Smith & Wesson 38 military and police model — this gun — isn’t one of them. In fact, I’ve never even seen a revolver with a safety catch, and I’d be pretty sure none has ever been sold in Australia. They’re museum pieces, all dating from before the First World War.’
‘Perhaps it would have been wise for you to take a look at the exhibit before you asked that question, Mr Crown. You might have seen that for yourself. Or not have seen what wasn’t there.’ The judge was amused. And sober. The embarrassment was enough to cause the prosecutor to resume his seat and hand the witness to Harry rather earlier than he had intended.
‘What Mr Crown didn’t ask you, senior constable, was whether there was any apparent defect in the gun, quite apart from any problem with an imaginary safety catch.’
‘Yes, he didn’t.’ He and Harry knew that was probably because Mr Crown had become flustered and forgot what he’d planned to lead in evidence, but that wasn’t going to stop the defence scoring some points.
‘No doubt he had his reasons, but — whether or not the prosecution was trying to keep this from the jury — was it not the case that you found, and reported, that there was a fault in the weapon?’
‘Yes. On examination, I found that there had been new handgrips screwed to the handle; they were some sort of after-market part.’
‘And they were faulty?’
‘One certainly was.’
Harry waved to the court officer. ‘I’ll have you handed the exhibit. Feel free to take it out of the plastic bag, unless his Honour objects to that.’ His Honour had no problem with the ballistics man handling the gun, and it was passed to him in the witness box. He turned it over in his hands.
‘Now,’ Harry continued, ‘will you explain your last point to the jury? The defect in the weapon?’
‘Yes.’ Cavanagh held the gun up. ‘You can see that there are wooden grips that have been attached on both sides of the handle with short chrome-plated screws. They aren’t the original fittings. Maybe the originals had become worn, or broken … I don’t know. But somebody at the security company has replaced them with after-market parts. At the top here on the replacement grips, where I’m pointing, on both sides, there’s a raised section above these cross-hatched flat surfaces. A sort of shoulder … presumably it’s to stop the user’s hand sliding up to make contact with the chamber.’
‘And what’s the problem with that?’
‘On the left-hand side, it’s standing about two millimetres proud of its proper position. Someone’s left a washer underneath the wood.’
‘Is that all — is the problem just the look of the thing?’
‘No.’
‘Does it have some unintended consequence, this handgrip, the way it sticks up?’
‘It does. When you open the chamber to load the weapon, it makes it very hard to get the bullet past the raised shoulder.’
‘Will you show the jury what you mean by that?’
‘I’ll need to use some bullets.’
Harry looked at Skyrne-Jones, who was shaking his head. ‘I’m not having anyone — not even a very experienced man such as Senior Constable Cavanagh — load a weapon in court.’
‘No, your Honour,’ the ballistics man said, ‘if I could have my briefcase, there are some dummies in it that I brought for this purpose.’
The briefcase was retrieved, and the dummies produced from a ziplock bag. Cavanagh showed the jury the problem, after which demonstration Harry had the gun and dummy rounds handed to the jury, and most of the men tried it for themselves. The women, except one, merely watched and passed it along when it was their turn with the exhibit. The process took all of ten minutes.
‘Of course, that’s the problem with loading the gun.’ Harry resumed his cross-examination. ‘But what about unloading it? Same fault?’
‘Worse, if anything. What happens in unloading is that you unlatch the chamber —’ Cavanagh took the gun back and demonstrated by releasing the catch with his thumb, holding the gun horizontal, ‘— and it swings down — well, drops down — on the left side. If you then point the muzzle upward with the chamber open, the bullets will fall out into your other hand. That’s if the grips are properly set up. But with this grip —’ he twisted his right hand to point the gun at the ceiling, and caught five dummies as they slipped out of their slots, ‘— you can see that the rim of the shell at the top catches on the shoulder of the left-side handgrip.’
‘So it won’t fall out.’
‘Correct. If you then close the chamber, you might believe the gun’s empty, specially if the light’s bad, but there’s still going to be one bullet under the hammer. Pull the trigger once, and it’ll fire.’
‘Russian roulette,’ said Skyrne-Jones. ‘Unintentionally.’
‘You could put it like that,’ the witness said.
‘Which reminds me,’ said his Honour. ‘The jury might enjoy this: if Russian roulette has one bullet in the gun, do you know what Italian roulette is?’
The senior constable was amused. ‘I’ve heard this one, your Honour. Italian roulette’s where there are no bullets in the gun.’
‘And did you also hear about Irish roulette?’
‘Yes, I did.’
‘Then you’d better tell the jury.’
‘Yes, your Honour. Irish roulette’s where there are six bullets in the gun.’
Most of the jury laughed.
‘This can’t hurt us,’ Harry told Surrey. ‘In fact, it makes the point better than any jury address would be able to. All I have to do is remind them of the judge’s little joke.’
Skyrne-Jones made a show of apologising to any Irish or Italian people on the jury, or in court, and told Harry to get on with his questions.
‘It wasn’t I who went into parentheses, your Honour.’
‘Next question, Mr Curry?’ The good humour fleeting.
‘Will you pardon me for one moment, please?’ Harry bent down and spoke in Surrey’s ear. ‘Here goes. Out onto the tightrope without a safety net.’ He took a sip from his water glass and hitched his gown up on his sho
ulders.
‘Might the witness be shown the exhibit consisting of Mr Kellaway’s jacket?’ Harry had arrived at court at nine o’clock that morning to make sure the prosecution team wouldn’t be around to see what he was doing, and had asked the judge’s associate (who was in charge of the exhibits during the trial) for access to the clothing. He’d looked very closely at it before returning it to her, making no comment.
‘Will you take that out of the bag and examine it, please?’ The witness complied, under the close scrutiny of the jury.
‘Would it be correct to say that your training, skill and experience includes familiarity with powder burns caused by firearms being discharged?’
‘Yes.’ Cavanagh turned the garment back and forth, looking closely at the front, which was decorated with a Safansecure logo (a nasty-looking bulldog with its gigantic teeth bared) and the embroidered words ‘So you can rest easy’.
‘Those of us, including jury members, who take an interest in crime fiction would be familiar with the idea that firing a weapon will cause not just a projectile to be discharged, but also burning gases?’
‘Yes, and burning gunpowder. When you see a muzzle flash,’ Cavanagh explained, ‘what you’re seeing is the flame of the burning gunpowder exiting the barrel, along with soot and unburned gunpowder particles.’
‘So what happens? How do you get a powder burn? On clothing, for a start?’
‘If the barrel of the gun’s near the victim when the gun fires, the flame will actually burn the person’s clothing and skin, depending on what he’s wearing. The gunpowder residue and soot will also stick to the person’s clothing and skin.’
The judge, who should have known better (Cavanagh was Harry’s witness now, and he should have been left to cross-examine to his own strategy), was feeling more of a participant since he’d sobered up and liked the feeling, so he joined in, taking the witness over.
‘How close has the muzzle to be in order to get burning of the clothes?’
‘Less than 300 millimetres, for this weapon.’
‘Less than a foot, for those of us old enough to think imperially?’
‘Yes, your Honour.’
‘No harm done,’ Harry whispered to Surrey. ‘Yet. But that’s my point. Just leave it there, please, Skyrne.’
‘And, senior constable —’ The judge obviously didn’t want to leave it there, so Harry interrupted.
‘With the greatest of respect, will your Honour be so kind as to leave the cross-examination to me?’
There was a sudden silence. Skyrne-Jones thought for a minute, and looked across from the witness to Harry. ‘Yes, Mr Curry. Quite right. My apologies.’
‘Not at all, your Honour. I’m indebted to your Honour for your assistance.’ Back to the expert. ‘Now, you’ve had time to take a good look at the jacket, senior constable. Find any powder burns?’
‘Yes.’
‘Where?’
Cavanagh held the garment up, and pointed to a hole just above the hem on the left side, near the open zipper. ‘That’s a bullet hole. The fabric’s some sort of synthetic — nylon, probably — and you can see that there’s a melting of the fabric in a rough circle, concentric with the hole and about three to five millimetres away, and there’s a black residue present in the same area. Consistent with burnt gunpowder.’
Harry sat down, having told the judge he had nothing further for the witness. Surrey was displeased. ‘Christ, Harry, make your point with the jury! Get him to say you wouldn’t get powder burns from two metres away!’
‘Leave it to Beaver, Dave.’ He knew there’d be re-examination, and he wanted Mr Crown to give in to temptation … surely he wouldn’t be able to help himself. Actually, it was always going to be Bruce den Boer who he helped, if he fell into the trap.
‘Any re-examination, Mr Crown?’
‘Yes, just briefly. Senior Constable, would it have been possible to get some burning of the clothes if the gun was fired from further away than 300 millimetres?’
‘How much further do you mean, sir?’
‘Around two metres?’
‘No.’
Clunk. Harry was right — the prosecutor had just underlined the defence’s point most effectively. One last try from the Crown?
‘Well, a little less? Say, a bit less than a metre?’
‘I object.’ Harry was on his feet. ‘Not only, your Honour, does this question not arise from anything I asked in cross-examination, but it flies in the face of the prosecution evidence. The version given by Mr Kellaway — and the prosecution’s stuck with it — is that the muzzle of the gun was more than two metres away when it went off. Mr Crown can’t reinvent that reality. I repeat: he’s stuck with what his witness swore was the truth.’
‘Well, Mr Crown, that’s got to be right, hasn’t it?’
‘And,’ Harry was back on his feet before the prosecutor could open his mouth, ‘when I say he can’t reinvent reality, the reality of which I speak is that’s the only evidence given by Mr Kellaway. We say, of course, that — in reality — his account was a lie.’
‘One must be careful before one asserts that the witness is a liar, Mr Curry.’ Skyrne-Jones was hesitant.
‘The court may assume that I’m well aware of the rules governing what I may put. I will simply say that I do so advisedly. In any event, your Honour will recall that this was fairly and squarely put to Mr Kellaway — that he lied about the facts of the shooting.’
‘Yes, you did. That’s true. Mr Crown, I won’t allow that question. Have you anything else arising from the cross-examination that you need to clarify?’
A quick check with the instructor, and no. Cavanagh closed his briefcase and left the court, excused from further attendance. Forgetting that they’d already had the short adjournment, Skyrne-Jones stopped proceedings again — for morning tea, he told the jury.
‘Did you notice,’ Surrey said as the court emptied out, ‘that Skyrne called it “morning tea”? He wants everyone to know he’s not going to have a quick Scotch.’
‘Just a Scotch finger,’ Harry smiled.
Harry and Surrey stood outside in the shade of the building with their client and his parents and drank coffee bought for them by Mr den Boer. Harry asked what was happening to the Goulburn delicatessen during the trial.
‘It’s shut for the week,’ Mrs den Boer told him. ‘But, Mr Curry, I’m still a bit worried about how it’s going in there. Is Bruce going to be all right?’
‘Well, Mrs den Boer, at this stage what we’re trying to do is create doubt about the essential facts. Kellaway’s story is breaking up. But we’re not home yet.’
Mr den Boer joined in. ‘They can’t prove anything he said, can they? I mean, where’s their evidence?’
Harry finished his coffee and put the lid back on the cardboard cup. He spoke gently, patiently, recalling his conversation with Arabella on this very point. Explaining to two anxious parents was much more difficult. ‘You have to bear in mind that he was shot, there’s no question that Bruce had the gun, and Kellaway’s now a paraplegic. It’s a lot to get over. If what you’re saying is that it was only accidental, in technical terms they’ve already proved it was deliberate: when Kellaway took an oath and swore that Bruce took aim and shot him, that was the “proof”. What you mean, if you don’t mind me saying so, is that they haven’t corroborated what he said.’
‘Well, I’m not a lawyer, Mr Curry, but I thought the jury would need more than just his say-so. In the end, it’s going to be one man’s word against another.’ He looked at his son. ‘When does Bruce get to speak to them?’
‘The jury? Could be as early as this afternoon. The prosecution evidence is just about finished. We’re still waiting to hear about the missing policeman — Constable Grech. Dave, has the DPP bloke said anything further about that?’
‘Just that they’re still trying to find him.’
Mrs den Boer fiddled with her coffee cup for a few moments, then put it, unopened, in a nearby bin. Whe
n she came back to the group, she spoke quietly to Harry. ‘So it’s a matter of who the jury believes?’
‘No, it’s not — not if the jury understand their job — but it might take some time to explain that to them. The question — and the judge is going to have to tell them this very clearly after I’ve had my go — is whether they can accept what Kellaway says beyond all reasonable doubt. In theory, they could think Bruce here is the biggest liar unhung, but that wouldn’t justify them in finding him guilty. It’s Kellaway who has to be believed.’
Surrey took over. ‘And that’s why Mr Curry’s preparing the evidence to establish a reasonable doubt. The most important one so far is the doubt about Bruce taking aim from six feet away and pulling the trigger. That’s why the ballistics man was so important. The prosecutor came out of that looking as if he was trying to cover up the fact that the gun was defective, and then he got shot down in flames — that’s a somewhat unfortunate figure of speech in all the circumstances, of course — when he tried to explain away the powder burns.’
‘I’m not sure I understood all that,’ Mrs den Boer said. ‘Was it enough to make them believe Bruce?’
‘They’ll acquit Bruce if they want to. I have to give them good and sufficient reasons to do so, but in the end it’s up to him. If the jury like him, he’ll win. If they’re convinced Kellaway’s trying to make fools of them, we’ll win, and that’s down to me. But Bruce has to accept responsibility for his own evidence, and he knows that. That’s why we took so long to rewrite and rewrite and rewrite his proof of evidence — the statement he’s been working on every night. But I really don’t like us talking at such length about all this as if Bruce isn’t here.’
Still Bruce said nothing. Harry and Surrey both knew that their biggest problem may well be that their client may be unlikeable. They’d done their best, but the jury had still been riveted by the sight of this big, looming man whose very persona communicated threat. Of course, Surrey had persuaded Bruce to wear a business shirt and tie, remove his earrings, shave his face clean (including the wispy goatee) and let his hair grow out of the skinhead stubble he had affected at the time of the shooting (‘Jesus,’ Harry had said to Surrey after his first conference with him, ‘he looks like a bloody bikie who earns a living selling crystal meth to schoolkids then molesting them. What are we going to do about the tattoos?’), and the body art had mostly now been hidden under his shirt and jacket.
Harry Curry: Rats and Mice Page 20
