‘What is the physical layout like at that part of the premises?’
‘The building itself is high, even if it’s only one storey — there must be high racks of shelving inside. Corrugated iron walls, or ClipLock. Steel, anyway. There aren’t many windows back there, one on each side and a bigger one at the back, all with bars, plus a double-width roller door at the back. There’s lots of bushes, shrubs, some trees, across the back fence and on both sides. You couldn’t get a vehicle down there. I don’t know what the bushes are, but they’re quite low to the ground and very thick. Bottlebrushes, I suppose. There were flowers on some of them, red flowers.’
He looked at the jury foreman. ‘I was scared.’
‘So what did you do?’
‘I turned off the Maglite, because I didn’t want them to see where I was. The training is to unload the weapon if you come across intruders and don’t know who they are. It could just be kids. So I bent down, put the torch on the ground and I stood back up and got the gun out of my holster.’
Harry asked that Bruce be handed the revolver. ‘Show the jury what you did, please. You’ll need to stand up.’
Bruce stood and demonstrated, the empty gun in his right hand. ‘I flicked the chamber open, like this — with my right hand — and I pointed the barrel upwards. I gave the gun a bit of a shake, and all the bullets — or so I thought then — fell into my hand. My left hand. I flicked the chamber shut again —’ he did that one-handed with a flick of his wrist, and the chamber made a sharp click as it closed, ‘— and I put the bullets in the left side pocket of my uniform parka.’ He mimed the action with his empty left hand, then rested the hand on the top of the witness box, gripping it hard. The revolver was still in his right hand.
‘Did you count the bullets before you put them in your pocket?’
‘No. I couldn’t even see them, it was that dark.’
‘What did you believe was the condition of the gun?’
‘I honestly believed I’d emptied the gun and put all the bullets in my pocket. Six bullets.’
‘Then what happened?’
‘I stood there and listened, but there was no more noise. So I started to go round the back of the building, and I heard someone sing out again. Sounded like “Here he comes.”’
‘What was going through your mind when you heard that?’
‘Kids. That there were kids there. Sounded like a kid’s voice. Like, high. I thought there must be a few of them, and they must be near the window you come to when you go back down that eastern side.’
‘Where was the gun?’
‘Still in my right hand, pointed down at the ground.’
‘Bruce —’ (The judge wasn’t going to like that, calling him by his first name. Tough.) ‘— will you please come out of the box — with his Honour’s leave — and stand over there where the jury can see your hand with the gun?’
The judge permitted the demonstration, and Harry’s client moved to position himself squarely before the front row of jurors. His right hand hung straight down, and the barrel of the revolver pointed at the floor next to his right shoe. Harry kept him there.
‘Did you stay where you were?’
‘No. I got well away from the wall of the building and went slowly towards where I thought the voice had come from. I was bent over a bit and side on to the wall, because the bushes were getting in the way, and I was trying to make myself smaller.’
‘At this stage, where did you believe Troy Kellaway was?’
‘Asleep in the car.’
‘Did you have any means of communicating with your base?’
‘Not there. No portable radio or mobile phone. There was only the radio in the car.’
‘Why didn’t you go back to the car and radio in?’
‘That’s what I was doing. I was going to go back to the car along the eastern side of the building and call for back-up. But I never got there.’
‘Why not?’
‘Because someone jumped me from the bushes behind me, just when I got to the corner on the east side.’
‘Did you have any idea who it was? At that moment?’
‘No. My first reaction was “This isn’t kids — it’s a big bloke, and he’s pretty strong.” He had both arms around me, and my right arm was being forced against my side. I was trying to get my arm free so I could hit him with the gun. It was really dark there, I didn’t have my torch, and he was behind me.’
‘Were you trying to hit him with the gun, or shoot him?’
‘No, hit him. The gun was empty. Or so I thought. I was trying to fight him off, and I couldn’t get my arm up, or not right up, anyway.’
‘What happened next?’
‘He was laughing but still hanging on to me, but we’d twisted around in the struggle and he’d got more or less in front of me and that’s when my arm started to come up a little bit, then bang. At first I didn’t realise it was my gun that went off. I couldn’t work out what’d happened.’
‘Then what?’
‘He let go and I saw the uniform. I got such a shock. I still didn’t realise who it was, even when he backed off a bit. It was still too dark.’
‘When did you work that out?’
‘He stepped back and he said, “Shit, Bruce, you shot me.” I recognised his voice. He was just standing there. He didn’t fall down or anything. I dropped the gun on the ground and ran over to get the Maglite. I brought it back and put it on his face. I said, “Shot where?” and he pointed to his stomach. He said something like, “Only joking, I was only joking.” I pointed the torch, but there wasn’t much blood. His jacket’s black, so you couldn’t see too much on it, and his pants were the same colour. I told him to sit down, that I was going to radio in for an ambulance. That’s what I did, then I went back to him and he was sitting on the grass, crying. Saying it was only a joke.’
‘Now Mr den Boer, the records show that the ambulance attended seven minutes after you radioed in to your base.’
‘It seemed to take hours.’
‘I’m sure it did. Let me ask you this —’
Skyrne-Jones interrupted. ‘Mr Curry, can your client go back to the witness box? I’m assuming he doesn’t need to demonstrate anything else at this stage.’ Judges hate witnesses remaining close to the jury.
‘Yes, your Honour.’ Bruce resumed his seated position in the box. And Harry resumed his questioning.
‘I’m going to ask you a series of questions now about what happened after Mr Kellaway was hurt: first, did you do anything to the gun after the shot was fired?’
‘Yes, after I’d radioed for the ambulance I took it back to the car and locked it in the glovebox.’
‘Did you in any way change the condition it was in at the time the shot was fired?’
‘No. If you mean did I take the bullets out, no. I’d already done that, except the one that wouldn’t come out, although I didn’t know that at the time. And I didn’t take the shell out either.’
‘You heard the ballistics expert say that this gun is defective because of the badly replaced handgrip. Were you aware of that defect?’
‘I don’t think I was even familiar with that particular gun. I loaded it, I must have, and I didn’t recall it being a problem then. The system was that the armourer signed out the guns to us, and we took whichever one he handed out. He didn’t say there was any problem, but he would have been the person who replaced the handgrips, so I wouldn’t expect him to.’
‘Did you do anything else to the gun?’
‘No. When the first policeman — it must have been Grech — asked for it as soon as he arrived, I unlocked the glovebox and left him to take it out wearing those disposable gloves. I saw him put it in a bag. Then he asked me if there were any bullets, and I took them out of my pocket and gave them to him.’
‘What did he do with them?’
‘Put them in another bag. A plastic bag. If he’d given evidence, he would have said that too.’ Bruce the advocate again.
&nbs
p; ‘What about the front passenger seat in the car? Did you alter its position in any way before the police arrived?’
‘No. It was flat, and I left it flat.’
‘Now let me ask you this, and please don’t give me any answer apart from a yes or no. Do you understand?’
‘Yes.’
‘Mr den Boer, are you aware of any reason why Troy Kellaway would hang around at work for hours after his shift ended, ask you for a lift home when you came on duty even though he’d have to wait another hour, pretend to be asleep in the car, then duck around behind the building you were patrolling to make noises and then jump out on you in the dark?’
‘Yes, he —’
‘No, Bruce, I told you that you should only answer that question yes or no. Was your answer yes, that you can think of a reason why he’d do those things?’
‘Yes, I can.’
And Harry left it there. Jurors might well have wondered why he went no further, but the tactic at this point was to trail his coat in front of the prosecutor, tempting him to ask the question in cross-examination. Not only that, but Harry had explained first to Surrey and then to the family that what Bruce would have told them would have been inadmissible: his belief in Kellaway’s motivation was speculative hearsay, and there was no possibility that the defence could get it into evidence. The trial was adjourned at five to four, upon Harry telling the judge that he thought he’d completed his evidence in chief, but would be grateful for a minimally early adjournment in order to review the day’s transcript and ensure that there was nothing left for him to cover. Of course there wasn’t, as all the lawyers knew. The idea was to leave the jury with the unspoken explanation for Kellaway’s fabrication ringing in their ears and uppermost in their minds. If cross-examination had commenced, the effect of the strategic silence would have been diluted, if not washed away.
Harry and Surrey farewelled the den Boer family, who drove back to Goulburn for the night. The trial was hurting their business, and they hoped Harry was right when he ventured to suggest that it might end the next day. The lawyers drove in Surrey’s Falcon back to University House and had tea on the lawn, admiring the new growth on the courtyard trees.
‘The question of motive cuts both ways, Harry,’ Surrey argued. ‘The jury are going to be just as interested in why Kellaway would fabricate his story as they must already have been in Bruce’s reasons for shooting him in cold blood.’
‘Except that they have got to have a reasonable doubt whether Bruce did that. That’s the difference. The pendulum’s swung even further back since Bruce jumped into the box. I thought he did bloody well.’
‘I admire your control of him, Harry. He hardly went outside the lines at all.’
‘Oh, there were a couple of things, but if you didn’t pick them up, I’m sure the Crown won’t have. But I never expect a client to escape some level of self-contradiction. It lends credence, somehow.’
Surrey drove home and Harry had a quick meal, no wine, and went back to his room to plan his closing address to the jury. Start with the coat of arms speech, as usual. But then, Harry thought, a systematic point-by-point undermining of any certainty as to the Kellaway allegations. By the time he capped his pen and turned on the television, Harry was pretty satisfied that his jury address was as good as it was ever going to be. As he watched the late news, he rang Arabella at home.
‘We should finish tomorrow, with any luck.’
‘Are you calling any other witnesses than your client, Harry?’
‘I’ve reserved my right to re-call the victim. Haven’t decided whether to do that yet — it’ll depend on whether the Crown puts his foot in my trap. Other than him, I don’t need anyone. Maybe I don’t even need him. We’ve got police photos of the car seat that corroborate Bruce’s story about Kellaway pretending to be asleep; the doctor had to agree that the bullet’s trajectory was in an upward direction and from one side, which must mean that it wasn’t fired from shoulder height and two metres away in front, as the Crown’s got to say; the ballistics bloke came through, and not just on the defective gun, but on the powder burns; and we got them to put in the Water Board plans that give the lie to Kellaway’s story about getting a drink from a hose at the front of the building.’
‘But you never found the missing policeman?’
‘They didn’t, you mean. I really can’t say whether that’s good or bad. There’s no question that when he searched Bruce, the five bullets were in his jacket pocket, not the gun. That much is established by Grech’s official notebook. But we’re only ever going to have the client’s word as to when he emptied those out.’
‘I see.’
‘What’s happening with you?’
‘An email from my mother. From my sister, actually, but to tell me that Mother’s booked her ticket. She intends to be here two months before the birth.’
‘Why so long?’
‘She has to interview ayahs, doesn’t she?’
‘She what?’
‘You heard, Harry.’
‘An ayah being a nanny?’
‘An Indian nanny. They might be a bit hard to find in Sydney.’
Harry looked at tomorrow’s weather map, and buttoned off the TV. ‘And your own position on nursemaids, Bella — be they Indian ayahs, Chinese amahs or English gels with big prams and starched pinafores — is what?’
‘Wholeheartedly in favour.’
‘Because you’ve got a burgeoning civil practice to run, courtesy of the Women Lawyers?’
‘Insha’Allah.’
‘What would be the attitude of your mother to a male nanny getting on in years?’ Harry wanted to know. ‘With her grandchild growing up on a farm in just a nappy and gumboots, wrestling wombats and eating guinea fowl eggs raw? Learning to swim in winter in the Towamba River?’
‘That sounds to me like the most challenging exercise in advocacy you’ll ever be confronted with.’
‘Not totally out of the question, then?’
‘Neither of us is arguing from a position of strength, my darling. But let’s not deal with this now — she’s not due until February. And you’d better get some rest. Big day tomorrow, for a man who runs every case as if it were his last.’
Because Harry had kept open his right to ask further questions, he was at liberty to give his nervous client some final coaching about keeping his answers to the Crown’s cross-examination short, truthful and non-evasive in manner. The den Boer parents listened in silence, their faces reflecting the deep anxiety Surrey and Harry knew they must be suffering. And then it was time. The court resumed, Harry declared that he had nothing further to ask, and the accused turned to face his accuser.
Criminal trials are rarely the down-to-the-wire contests of popular fiction. The old hands can usually tell who’s going to come first by the time the star witness has stepped down. Surrey, though, had a bad feeling about this one. Harry didn’t share that doubt: despite the excitement of his clashes with the judge throughout the trial, the day started in a mood of anticlimax, with Mr Crown’s cross-examination reflecting his own colourlessness and, to be fair, the fact that prosecutors don’t often get involved in head-to-head contests with the accused: most defenders believe in keeping their clients out of the box, especially when they’ve submitted to police interrogation and made arguably adequate denials of guilt. ‘My client has nothing to add to what he told the detectives, members of the jury, and his/her Honour will direct you that he has every right to remain silent without you drawing any adverse inference from that. There was, of course, no lawyer there to advise him.’
The prosecutor did all the orthodox things: I put it to you; do you expect the jury to believe; do you seriously say … all that palaver, attempting to counter the emphatic defence evidence of innocence with a stripped-down, matter-of-fact repetition of what he must have appreciated were the inherently bizarre allegations made by Kellaway. His trump card remained the man in the wheelchair, whom he seemed to regard as an exhibit, rather than a witness.
There was no issue as to who fired the shot, or the catastrophe it had caused. The prosecutor at least got den Boer to concede that everything turned on whether or not he pulled the trigger involuntarily.
Harry was betting on disquiet among the jurors: why would any man deliberately shoot his workmate, absent a history of animosity or any discernible motive? Even with his alarming tattoos, den Boer hardly fitted the picture of a cold-blooded psychopath or thrill killer. He was stolid, and at heart a conformist and respectful of authority. He had been well schooled by Harry: told to answer yes if the answer was yes, no if the answer was no, and ‘I don’t recall’ rather than guessing, and he followed his counsel’s instructions to the letter. ‘Just play a straight bat,’ Harry had said. ‘Pretend Shane Warne’s bowling — and remember you don’t try to score runs. We’ll see whether he gives you a long hop.’
It looked as if Mr Crown was going to do exactly that. Having failed, at least in his opponent’s judgment, in his efforts to discredit Bruce — up to the end of his planned cross-examination, anyway — he rose to the surface and had a good look at the bait Harry, the trout angler, had cast gently on the stream in front of him. He could see the otherwise attractive March Brown had a barb hidden within, and held back.
‘Mr den Boer, you told your counsel that you were aware of a reason why Mr Kellaway would, as you claim he did, go through with this unbelievably elaborate scheme of remaining at work until late, getting you to give him a lift in the patrol vehicle, faking sleep, and then hiding in the bushes and jumping out on you when you were checking the premises at Queanbeyan.’
‘Yes.’
‘But you didn’t ever do the jury the favour of telling them what his reason was.’
Harry Curry: Rats and Mice Page 22
