‘Listen, Bruce, there’s a good chance you might have to jump the box this afternoon.’ Harry put his hand on his client’s arm as the court officer emerged from the building, shielding his eyes from the glare, and signalled that the judge was coming back on the bench. ‘Can you be ready for that?’
‘Yes, Mr Curry. I’m ready now.’
They returned to the courtroom.
At the judge’s direction, the jury had been held back in their windowless room while housekeeping matters were discussed. The bad news was that ex-Constable Grech was still at large. The slightly good news, by way of consolation, was an offer by the Crown to tender in its own case the Water Board diagrams (obtained by Surrey from ACT Water on subpoena) showing that there was only one tap outside the front of the warehouse occupied by Hot Adult Imports Unlimited, and it was nowhere near the location identified by Troy Kellaway. That wasn’t such a great concession, because Harry had every right to tender the document himself, and the prosecution couldn’t have raised any valid objection. Harry told his opponent that he still owed the defence a favour, and pressed Mr Crown to undertake that he’d raise no objection to a letter on the tenant company’s letterhead over its general manager’s signature, saying that under no circumstances was any hose left out overnight, given the absolute certainty that it wouldn’t have been there in the morning. After some thought and a heavy nudge from the judge, he agreed. Harry would be able to put the letter into evidence, when it was his turn, and it would be treated as establishing the fact there was no hose to drink from — even without the author of the letter appearing in court.
The Crown’s position was that the prosecution case, in all likelihood, would have to be closed without the jury hearing from the elusive Grech, the first man on the scene after the shot was fired, because all their diligent (he used that word) efforts had failed to locate him. Harry was furious about that. ‘They didn’t even issue a subpoena, your Honour,’ he said, ‘so how diligent have they been?’ and Skyrne-Jones agreed that ‘all their diligent efforts’ was an overgenerous characterisation. He wanted to know whether the defence was applying for an adjournment for the rest of the day to consider its position. Harry told him that two o’clock was acceptable, and the court (if his Honour pleased) could rise without the jury being brought back in.
‘I’m not sure what I can say to balance the scales, Mr Curry.’
‘No, your Honour. It’s more than unfortunate. What I will do at this stage is foreshadow a submission that I wish to make to the jury, so that my learned friend can consider it: I’m intending to say that there is no basis on which they could be satisfied that Mr den Boer had not emptied all the bullets out of the gun to the best of his ability, before the accidental discharge happened. In other words, that he did everything he could to make the gun safe.’
‘I hope we can avoid the double negatives, Mr Curry. You might give that some thought between now and two o’clock.’
Grech never materialised. At two o’clock, Skyrne-Jones DCJ called upon Harry to open his case to the jury, if he so chose.
Harry slowly panned his eyes along the two rows of jurors. Some had their notebooks open, their pens in their hands. ‘I won’t take long, ladies and gentlemen. In a couple of minutes, you’re going to hear from my client, and this ill-advised and ramshackle prosecution is going to collapse. Our case is pretty straightforward, and there are just two aspects to it: first, Troy Kellaway has only himself to blame for his injury; and — second — there is no rule of evidence — or life — that dictates that a paraplegic is, by reason of his disability, a truthful witness. Least of all this paraplegic.’
There was an audible intake of breath from some jury members. The foreman looked at the judge.
‘Perhaps you think that’s too brutal, members of the jury. If you do, consider this: what could be more brutal than to fabricate a story to conceal your own catastrophically mischievous stupidity, and then to maintain that fabrication, even to the point of perjuring yourself in this court where — if the jury are gulled into accepting your lies — an innocent man will be convicted and can be sent to jail for as long as twenty-five years?’
Skyrne-Jones erupted. ‘Mr Curry!’ he all but screamed. ‘It is grossly improper of you to refer to the maximum sentence for this offence. You shouldn’t have mentioned that at all.’ He was brick-red in the face. ‘Officer, take the jury out.’
The twelve citizens were shepherded out, looking over their shoulders at the players in wigs and gowns, all the lawyers apparently taking this turn of events with the greatest seriousness. Well, maybe not the tall bloke with the broken nose — his expression was blithely unconcerned. And most of the jurors probably agreed with him, Harry thought. What was all the fuss about? would be their reaction. Wouldn’t they have been told the penalty anyway? Well, no, they wouldn’t.
The courtroom was very quiet. ‘Mr Curry, I’m going to take some time to consider what I do about your grossly improper reference to the maximum penalty. At the moment, my intention is to abort the trial.’
‘And why should that be the remedy, your Honour? I’m aware of no dictum from any superior court to say that juries are disqualified by reason of their knowledge of parliament’s prescription of the penalty. The court has no power to deny them access to the section of the criminal law that defines the offence they are trying. Indeed, you’re going to read it out and explain it to them when you give them directions of law. You’re just not going to read the last words in the section — the penalty — and for no reason other than that’s the way it’s always been done. Your Honour’s assumption amounts, in my respectful submission, to a contemptuous judicial view of the jury. It would keep them in the dark. In any event, the reality is that any or all of them could already have gone to the internet and searched up the Crimes Act and the offence of malicious wounding with intent to cause grievous bodily harm. You can be almost certain some of them have done that, meaning they’ll have seen the maximum sentence set out in the section: twenty-five years’ imprisonment.’
Skyrne-Jones would have none of it. ‘Imposing the sentence is solely a matter for me, as you know all too well. I’m the only one with discretion in that decision. It is simply not the business of the jury.’
‘Perfectly true, may it please you, but the jury is entitled to know how seriously this particular offence is regarded in the spectrum of the criminal law. That seriousness informs their decision-making. The court can’t be party to a meaningless fiction, anyway: is it seriously to be suggested that a juror should be disqualified if she or he is empanelled in a murder trial, and is aware or makes himself or herself aware that the maximum sentence is life? Hardly.’
‘That’s not a valid argument, Mr Curry, and you know it.’
‘With respect, I know no such thing.’
‘Do you have anything to say, Mr Crown?’
‘Only that counsel are never permitted to raise the issue of the maximum penalty in their jury address. It isn’t done.’
Harry was back on his feet. ‘Call that a reason, do you?’
‘That’s enough!’ the judge snapped. ‘I shall adjourn to give this further consideration.’
‘On the telephone, your Honour?’ Harry’s tone remained insouciant.
Skyrne-Jones QC, DCJ, glared at Harry as he walked out of court, but made no reply.
With the court adjourned for no one knew how long, Surrey wanted to know what Harry’s barb about the telephone meant. Harry pulled off his wig.
‘When in doubt, adjourn. He’ll call the Chief Judge.’
‘Who’ll be furious with you.’
‘Certainly, but he’ll tell Skyrne that it’s not enough reason to abort the trial. He can easily direct the jury to ignore the issue of maximum penalty, and leave that to him — because it’s irrelevant to the matters they have to consider. He can hose it all down very easily and calmly, and that’s what he’ll be told. Just say that and no more. Tell the jury that if there’s a conviction, they’ve go
t every right to stay and listen to the sentencing process. They never do. The crucial point’ll be that the Chief hates aborted trials — they play merry hell with his budget.’
‘God, Harry, there’s never a dull moment in your trials. If you’re not brawling with the prosecutor or spraying the blood of a hapless witness all over the courtroom walls, you’re insulting the judge. And to think that Skyrne-Jones has always been decent to my clients. Thanks, Curry. I’m indebted to you.’
The den Boer family needed things explained to them, so Harry and Surrey took them outside and ensured that they understood the kerfuffle had been just one of those things that happen in every trial. Every trial run by H Curry, Esquire, the long-suffering solicitor would have liked to have said, but didn’t. All the client’s parents were worried about was whether this would impact negatively on Bruce’s case. They were reassured by both lawyers and, as that point was being made, they were all called back into court.
‘The Chief must be having a quiet day. Skyrne might have been kept waiting until five o’clock if Ron was in court himself. To be told what to do, that is.’ Harry put his wig back on his head and straightened it, looking at his reflection in one of the floor-to-ceiling windows as they crossed the foyer.
‘Ron? You’re on first-name terms with the Chief Judge of this honourable court?’ Surrey couldn’t conceal his scepticism.
‘Did you think the only judicial celebrations I get invited to are barbecues at the High Court?’
That’s the way it goes in trials: the days pass, the high emotional moments fade and pale in the memory, and the pick-and-shovel labour of building the prosecution evidence plods on, with the defender trying to pull bricks out of the wall, or to undermine the foundations. In this trial, Harry’s decision had been to run a bulldozer through the entire structure, hard and fast. His brief opening to the jury — that short speech that had so enraged the judge — was forgotten, left to one side, and Bruce den Boer was called to the witness box, sworn in and invited to sit.
‘Are you Bruce den Boer?’
‘Yes.’
‘And do you live at Goulburn, on the Crookwell Road, with your parents?’
‘Yes, I do.’
‘How old are you?’
‘Twenty-two last month.’
‘Are you employed by a company named Safansecure Pty Limited as a licensed security officer?’
‘I was. I’m not working during the trial.’
‘We hope to have you back there later this week.’ The Crown was getting to his feet to object, but Harry ploughed ahead. ‘Can I take you back to the night of the third of October?’
‘Yes, I remember it.’
‘Were you working that night?’
‘Yes. My shift started at 10.30 p.m. I did one roster, and I was due out on patrol again at midnight. Green Patrol, it was. There are six patrols, all different colours in the names.’
‘What happened before you went out on the first occasion?’
‘Put on my uniform, signed the timesheet, got a pistol and holster out and signed for it, signed separately for the ammunition, loaded the gun in the weapons room and put it and the holster on.’
‘Anything else?’
‘Checked the daily info sheets and bulletins, checked my route roster for the first patrol; after that I picked up the Green Patrol clipboard with update notes on the premises I was going to check — any changes, that sort of thing.’
‘Then what?’
‘Made a cup of coffee in the crib room, talked to the blokes coming off the afternoon shift. There were two general duties police there, and I talked to them for a bit.’
‘Did you know them?’
‘Not their names. There were often police there, that time of night. I’d seen their car outside when I parked. It wasn’t Grech, other blokes.’
‘Were they there on duty, or what?’
‘No. Well, they were working, but when things were quiet for the cops, they’d call in. Have coffee and a biscuit, chat a bit. Watch the TV. There was a league match on — Kangaroos and the Kiwis. It was just finishing up. I don’t follow league.’
‘Was anyone else in the crib room?’
‘Troy.’
‘Troy Kellaway?’
‘Yes.’
‘Was he on duty at that time, to your knowledge?’
‘No, he only worked day shifts, but he hung around the patrol blokes a lot, and specially the police. He wanted to be a policeman.’
‘How do you know that?’
‘He told me. Lots of times. Said he’d get a security licence when he was old enough, and eventually go to the Academy. I said he’d have to get fit, lose weight. He was eating a Chinese takeaway and had a Mars Bar and a big bottle of Coke.’
Surrey looked at his client. He’d scrubbed up well, and he was following the script, which was what really mattered. His voice was clear and even, and he looked directly at Harry as he spoke. He seemed thoughtful, but not evasive; calm but not cocky. So far, so good.
There was still twenty-five minutes until the four o’clock adjournment, and Surrey knew that Harry wanted to keep the evidence in chief going until then. Harry never finished before a day’s adjournment, if he could help it, because that always gave him time for overnight reconsideration before he surrendered his witness to the Crown. He liked to check the day’s transcript to ensure nothing was ambiguous, nothing had been forgotten. Curry might be a loose cannon in some people’s eyes, but Surrey had come to admire his systematic technique.
‘Were you and Mr Kellaway friends?’
‘No, but I didn’t mind him. I had nothing against him.’
‘I was going to ask you about that. You understand, do you, that the prosecution case against you is based on an allegation that you deliberately shot Mr Kellaway.’
‘Yes, I know they say that.’
‘Is there a word of truth in it?’
‘No.’
Good boy, thought Surrey. Not ‘Why would I do that?’ and not ‘That’s ridiculous.’ No polyester outrage at the suggestion. Harry had spent hours training Bruce in the best answers: there’s not much a cross-examiner can do with a straight no. An unemotional straight no.
‘You have been in court since this trial started, and you’ve heard all the evidence given?’
‘Yes.’
‘In particular, you heard Mr Kellaway give his evidence?’
‘Yes, I did.’ Still no gratuitous comments. Good.
‘I’m going to take you through the essential parts of that evidence. Did he tell any falsehoods to the jury?’
‘Plenty.’
‘We’ll take his story in chronological order, then. He started by saying that he asked you for a lift home.’
‘That’s true, he did. I said okay, but I wasn’t going to make any special trip. I knew where he lived, and I told him I’d drop him off there, or as near as my route went to it, when I was in that location.’
‘So, up to this point, Mr Kellaway told the truth.’
‘Yes.’
‘What happened after that? The true story?’
‘We went out and got into the car at midnight. I had the clipboard on the dash — there’s a holder for it — and I followed the route for my roster. I checked the premises one by one, and there was nothing to report. Ticked the places off as I did them. Radioed in at one stage. Just routine.’
‘Did he take any part in your work? Did he offer to give you a hand?’
‘No. Which was a bit funny, because he was always saying he wanted to do patrol work when he finished his apprenticeship and got a gun licence and that. I thought he’d take more interest in what we actually do on patrols.’
‘Did you ask him to give you a hand?’
‘Never.’
‘Mr den Boer, you heard Troy Kellaway say that when you got to Hot Adult Imports at Queanbeyan, you asked him to check the doors down the southern and eastern sides of the building.’
‘Yes.’
‘Yes what?’
‘Yes, I heard him say that. But it wasn’t true.’
‘What actually happened? What’s the truth?’
‘Long before we got there — I can’t be sure, but I think it was as much as half an hour before, he’d reclined the passenger seat and lay back on it. He said he was going to sleep and would I wake him when we got near his mother’s place. I said okay, and well before we got to the premises he stopped talking and was asleep. At least I thought he was.’
‘Did he ever say to you that he’d give you a hand after he had a drink from a hose at the premises?’
‘No, he didn’t. Everyone knows there was no hose there.’
Bruce shouldn’t have tried to be his own advocate, but he got away with it.
‘So when you got to Hot Adult Imports with him appearing to be asleep, what did you do?’
‘I got out, trying not to wake him up. I didn’t even shut my door, because it would have made a noise. I left the headlights on. I had my Maglite, and I switched that on and started down the left-hand side of the building, checking the doors and windows with my torch. Everything was normal.’
‘Did anything unexpected happen at that time?’
‘Yes.’
‘Tell the jury.’
For the first time, as Harry had planned — the ‘tell the jury’ line was the cue — the accused man faced his judges, not his counsel. He nodded in acknowledgment of their attention, and took a breath.
‘There was a noise. A couple of noises. I thought someone was inside the building.’
‘Can you describe the noises?’
‘It sounded like someone was dropping something on a hard surface. Stones or marbles on metal. Something like that. The noises seemed to be coming from the far side of the place, away from the road — the north-east corner. I thought I saw a light inside, just for a second. Might have been a reflection in a window. And I heard voices. What I thought was voices, but it could have been just one voice. Saying, “He’s coming, look out,” — something like that.’
Harry Curry: Rats and Mice Page 21
