Harry Curry: Rats and Mice

by Stuart Littlemore

  ‘Well, I’ll hear from you in the morning, then. We’d better start at nine-thirty, if nobody minds.’ Not pausing to see whether anyone did mind the early start, Magee left the bench and the disbelieving and demoralised lawyers.

  That night, David Surrey rang home from his hotel room. While he waited for Nancy to answer, he looked down on the bustle of Chinatown and thought about dinner.

  ‘How are the girls?’

  ‘I’m more interested in the welfare of that poor young woman you’ve got under all that stress up there, with only a few days to go until the birth. Really, Dave, I’m not happy with you. You could have got one of those Legal Aid hacks you’re always talking about for this trial. It’s just a rotten little drug matter.’

  ‘Not if I want to win. But, really, she promises she’s okay. Says her gyno told her the head wasn’t even engaged.’

  ‘When was that?’

  ‘Well, a week or so ago, I suppose.’

  ‘Oh great. Brilliant. How does she seem?’

  ‘Well, yes, under pressure. But she’s doing a great job, especially this afternoon with her submissions to get the case thrown out.’ He pulled off his tie as he spoke and threw it on the bed.

  ‘I’m not asking about your bloody case. I’m asking about the baby.’

  ‘I can only rely on what she tells me, Nance. Be fair. And Arabella’s a grown-up; it was her decision to take this on.’ Under attack, he sat on the bed.

  ‘I thought her mother was coming out to help.’ Surrey could hear the frustration in his wife’s voice.

  ‘Been and gone, Harry says.’ He gestured with his free hand.

  ‘Oh God, that’s fantastic.’ There was a long pause. ‘I’m coming up. Someone has to be with her.’

  ‘Well, Harry will be.’ He looked at his watch.

  ‘Can you guarantee that, Dave?’

  ‘No, of course not. He’s five hundred kilometres away and he’s like me. He believes what she says. No cause for alarm.’

  ‘He should be there anyway. Whatever she says. You ring him and tell him that.’

  ‘D’you think?’

  ‘I do think. Soon as we hang up.’

  ‘Will you drive up? Your school be okay with this?’

  ‘I couldn’t give a stuff what the school thinks. That’s what a deputy’s for. And I’ll get the train. First thing. Mrs H next door can keep an eye on the girls.’

  She was gone. Surrey dialled Burragate.

  ‘You’d better get on your bike, Harry. Nancy’s sure the baby’s on its way.’

  ‘When did she get there, Dave?’

  ‘She isn’t, she’s still in Goulburn with the girls. She can tell from speaking to me, and she’s taken it upon herself to play big sister. I think it’s reasonable to infer that Nance’ll be speaking to Bella by now, and conspiring about arrangements from here on in. So, as I say, get a wriggle on, mate.’

  ‘I suppose.’

  ‘Leave now, Harry. Please. You can stop at Narooma or somewhere. Just get on the road, or my life won’t be worth living. Women know these things.’

  ‘How’s she doing with Magee?’

  ‘Bugger Magee. Just get moving, you stupid bastard. This is your child we’re talking about.’

  ‘It’s my girl, Dave. And my child.’

  In fact, Harry didn’t stop at all on the way north, except to refuel with petrol and Cherry Ripes. He let himself in to the Elizabeth Bay apartment at 2 a.m., very quietly, and instantly fell asleep in his clothes on the Corbusier sofa, heedless that it was too short for his legs. Arabella saw his bag lying where he’d dropped it in the hall when she got up at six to visit the loo, and told him to undress and get into bed. He was asleep when she left for chambers at seven o’clock, which rather defeated the whole purpose of the mad rush to join her.

  At nine o’clock, Arabella entered the robing room at the Downing Centre to find Harry there alone with a long black, an almost-finished bacon-and-egg roll, and the Herald. He stood up and kissed her.

  ‘Hope I didn’t wake you up when I got in.’ He held on to her, surprised at the relief that was sweeping through him.

  She hugged him back. ‘You’re a good boy. I wasn’t expecting you until the weekend.’

  ‘My darling, you don’t know the power of the Surreys.’

  ‘Yes, Harry, I do. A two-hour phone call from Nancy last night, after which I phoned you and you didn’t answer.’

  ‘I was on the road.’

  ‘I gave you a mobile phone.’

  Sheepish look. ‘Which I left at Burragate. I wasn’t going to turn back when I realised.’

  She laughed. ‘You made it, anyway.’

  ‘Never in doubt. Now, turning to immediate matters: where are we with the no case?’ He spoke through his last mouthful of breakfast.

  ‘I’ve finished. Crown’s about to respond.’

  A handful of barristers entered the robing room, nodded to Harry and Arabella, and set about preparing themselves for the day’s conflicts. Suit jackets into lockers, wigs and gowns out of lockers. Copies of the Crimes Act and the Uniform Law of Evidence stacked beside their brief folders. Harry crumpled his breakfast wrappings and threw them in the bin. ‘How did our submissions go?’

  ‘Over Magee’s head. Way over his head.’ An eavesdropping barrister laughed bitterly.

  ‘Afraid of that,’ Harry said. ‘What’s the prosecutor going to say? Did the penny drop eventually?’

  ‘Yes, it did, but watch this space.’

  Surrey put his head around the door and waved to Harry, who went over to speak to him. ‘Nance and I’ll wait out here,’ he said. ‘Everything okay?’

  Harry looked across at Arabella. ‘Nancy’s here to keep an eye on you.’ Arabella smiled broadly at Surrey.

  ‘I’ll be out to say hello in a minute.’ She finished robing, picked up her papers, used the mirror next to the door to adjust her wig, and went out to speak to her friend.

  At nine-thirty, the salaried Crown prosecutor (recreation leave, maternity leave, sick leave, State government super scheme, free library, free laptop, vehicle allowance, unfettered access to the stationery cupboard and public holidays off) spent fifteen minutes arguing unconvincingly to herself that the matter should be decided by the jury, and not stopped here and now by the judge. She tried to equivocate, acknowledging the correctness of Arabella’s submissions characterising the factual evidence and offering no binding legal rulings from higher courts that said anything to counter the defence arguments about the legal inconclusiveness of those facts, but — and plainly this was what had been urged upon her by her solicitor — notwithstanding all that, suggested to Magee that the issue would best be resolved by the common sense of the jury, free of judicial interference. Leave it to them. In all the circumstances.

  Magee agreed, delivering no judgment at all, but ordering the court officer to bring the jury back.

  ‘You pig-ignorant bastard,’ an incandescent Harry said from his seat in the public gallery, audibly to all — except the man at whom it was directed. The DPP solicitor turned to direct a look of self-righteous outrage at Harry, who mouthed at him the words ‘And you’. The prosecutor knew better than to turn around. In the dock, Craig Nguyen sat, shattered.

  ‘As the jury are brought back, Ms Engineer,’ said Acting Judge Magee, ‘may I ask whether you’ll be going into evidence?’

  ‘Yes, I shall.’ She didn’t say, ‘May it please your Honour,’ and she didn’t stand when she spoke. The explicit disrespect wasn’t lost this time on the person at whom it was directed, but he couldn’t take his displeasure any further, because the jury were filing in. When they were seated, Magee offered them no information on what had occurred in their absence, but invited the defence to call its evidence.

  Arabella stood and addressed the jury very briefly. ‘You’re now going to hear from just one witness: the manager of Chris Lee’s phone business. He’s going to tell you, I anticipate, about the innocent explanation for my client’s fingerpri
nts being on those seven bags that you’ve seen in the jury room, if only in the form of photographs. That explanation, in a nutshell, is that Chris Lee and Craig Nguyen’s older brother were best friends. Ronald Nguyen, the brother I’m talking about, is not involved in this matter in any way. But it was through Ronald that Craig came to run errands for the phone business on days when he wasn’t attending lectures at university. The shop manager, Mr McNamara, is now employed elsewhere and is completely impartial in this matter. He is not a friend of my client, and has no reason whatever to tell you anything but the truth. And what he’ll tell you is that the errands Craig Nguyen ran for Chris Lee’s business involved his taking broken phones, or defective phones, to the workshop that repaired them. On the occasions when that happened, he will tell you, the phones were carried in plastic bags of precisely the kind that you’ve seen carrying the drug exhibits. Nothing could be more of an everyday item, and they kept a supply of them in the shop. So, our case is this: Yes, my client’s prints are on the bags, but they were put there in the course of his part-time work for the phone shop. Whoever put drugs in those bags did so later. My client had nothing to do with it and, never forgetting that the very opposite has to be proved beyond reasonable doubt to each and every one of you individually before you can find Craig guilty — this is not a question on which the majority rules — then you must acquit.

  ‘Now, with your Honour’s leave, I call Brian McNamara.’

  Magee spoke. ‘You don’t intend to call your client first?’

  ‘That, your Honour, is a question you should not have asked in the presence of the jury.’ Arabella turned her back to him, incensed by his query and its implicit attack on the defence, and watched the courtroom door for the entry of the shop manager, who’d been told to wait outside.

  Harry cheered silently. What a great girl! Magee’s injudicious enquiry was just one more point for the appeal court to consider — if any appeal was going to be necessary. It seemed to him that Arabella’s short opening had been powerful — and persuasive, judging by the faces of a good number of the jurors. Maybe, after all, it wasn’t going to be necessary to expose this judge’s incomprehension of the difference between a question of law (sufficiency of evidence) and a question of fact (proof beyond reasonable doubt). Maybe the jury would save Magee by returning an acquittal.

  McNamara was shown to the witness box and sworn in. He gave his name and address. Arabella then led him through the very evidence she had anticipated he would give, simply and perfectly clearly. At its completion, she said to him, in the style favoured by English counsel, ‘Just wait there a moment, Mr McNamara, in case my learned friend has any questions for you.’

  She had. The Crown made a final note as she stood, and fixed her gaze on the witness.

  ‘Why have you come here, Mr McNamara?’

  ‘Because I was given a subpoena.’

  ‘Are you happy to give evidence for Mr Nguyen?’

  ‘I object.’ Arabella stood up. ‘Whether or not the witness is happy or sad is utterly irrelevant. And he’s not giving evidence for or against anyone — he’s here to tell the truth.’

  ‘I don’t press the question. Mr McNamara, are you a friend of Mr Craig Nguyen?’

  ‘No.’

  ‘No? You worked with him over a period of months. Wouldn’t you form some sort of friendship in those circumstances?’

  Arabella stood again to cut off any answer. ‘Why won’t the Crown call a spade a spade? If my friend wants to suggest to this witness that he’s biased in favour of my client, let her do so, or move on to a proper question. Your Honour will reject this pusillanimous innuendo.’

  Harry had moved to a position immediately behind Surrey, and touched his arm. Surrey turned, grinning.

  ‘Are you objecting to the question, Ms Engineer?’ Magee looked as if things were slipping further out of his control.

  ‘Obviously.’ A pause. ‘Yes, your Honour, I am.’

  ‘What do you say, Madam Crown?’

  ‘I withdraw the question, and I’ll ask it this way: I suggest to you, Mr McNamara, that your evidence is deliberately biased in favour of the accused. What do you say?’

  Arabella halted that before her witness could open his mouth. ‘Again, I object. Which part of his evidence is biased, are we to be told? There is no basis whatever for that question, your Honour. There are some rules that apply to this exercise, as my learned friend well knows, and yet she persists in contravening them. This does the office of the Director no credit at all. A suggestion of bias can only be made to a witness — and it amounts to an assertion of untruthful evidence, which is a scandalous suggestion — when there is some arguable or colourable basis for it. In this case, your Honour, there is no such basis. I shall ask my friend to withdraw the question.’ My goodness, she thought, Harry Curry rides again. I don’t even sound like myself any more.

  Magee seemed incapable of making a decision. The prosecutor looked sideways at Arabella, who was back in her chair and staring straight ahead. She sighed.

  ‘It’s withdrawn. I have nothing further for Mr McNamara. He can be excused.’

  And that was it, really. The defence case closed well before the normal time for morning tea, and Craig sat it out in the dock while Acting Judge Magee tried his best to incant the mandatory legal directions to the jury from his dog-eared Bench Book, and to summarise the meagre and entirely circumstantial evidence. From the look on his face as he recited the facts, it seemed clear to the lawyers that it had finally dawned on him that there really was no case for this accused to answer, and that he’d made a terrible blunder. With considerable and apparent reluctance (Harry thought Magee was pondering whether he could change his mind, even at this stage, and direct an acquittal) he sent the jury out to consider their verdict.

  Magee also ordered that Craig be taken into custody and adjourned the court until just after eleven o’clock. Standard operating procedure, Surrey told his client. The judge’s associate collected the mobile numbers of the advocates, and asked whether they’d be remaining in the precincts of the court, or returning to their chambers to await the verdict. Arabella told her they’d stick around, and exchanged pleasantries with the prosecutor. Before he was taken down to the cells, Craig’s parents, who had sat quietly in the back row of the public seats throughout the trial, saying nothing and asking nothing, shyly asked Arabella how long the jury would take. She gave them the standard answer: nobody knows. Best to go and get a cup of tea. Arabella had become more sanguine about the outcome, but still worried that she’d done more harm than good in assuring the family that all would be well.

  Nancy Surrey, who had been watching proceedings — and Arabella, especially — with interest from the back row, waited with her husband and Harry at the top of the building’s spiral staircase, lit incongruously by a gigantic crystal chandelier (no doubt a leftover from the department store days) as Arabella retired to the robing room to change out of her regalia. The three of them chatted idly about the weather down the coast, then the men turned to the weightier matter of the Super 15 season. After a while, Nancy wondered aloud what was keeping Arabella, and Harry went to have a look.

  He found her, halted midway through changing, seated in a plastic chair, an astounded look on her face.

  ‘I think the expression is that my waters have broken,’ she said. ‘You’d better get me to hospital.’ Harry immediately fetched Nancy and Surrey, and a hurried conference was conducted in the otherwise vacant robing room.

  ‘I can’t leave Craig, can I?’ Arabella was panicky. ‘What if there’s a jury question?’

  ‘Or a verdict,’ Surrey added.

  ‘Who cares?’ said Nancy. ‘You’re coming with me to the hospital, my girl. The men can sort this out, and bloody quickly, and then Harry’ll join us there. Harry, look after her stuff.’ And they were gone, Nancy’s arm around the startled young woman, who was looking back over her shoulder at Harry, eyes wide. Harry picked up and jammed her discarded court attire
into the nearest empty locker, and ran after them. He caught up as they waited for a lift to the ground floor, and embraced Arabella.

  ‘Don’t forget I love you,’ he said. The lift doors opened and Nancy hustled Arabella inside.

  ‘I’ll give you an hour, Harry Curry,’ Nancy said. ‘Be there.’

  Outside in Liverpool Street, they found a taxi immediately and took off at a great rate in the direction of the Royal Hospital for Women at Randwick. Arabella retrieved her phone from her handbag, and called Dr Rose’s rooms to tell them what was happening. Nancy listened to Arabella answering what must have been a question about contractions, then hanging up.

  ‘Dr Rose is already there. Just finished a delivery. She’ll be waiting for us.’

  Nancy smiled. ‘Couldn’t be better. This is going to work like a charm, my lovely girl.’ They hugged, and the driver flicked a fond look at them in the mirror as he ran the red light at the top of Wentworth Avenue. En route, Arabella expressed concern for the impending verdict, but Nancy wouldn’t have a bar of it.

  ‘If those two men can’t deal with whatever’s thrown up, nobody can.’ The no-nonsense schoolmarm.

  As it happened, ten minutes after the women left, there was a jury question. The foreman had sent the judge a note to the effect that several of the jurors wanted part of the evidence read back, so the court was reconvened. Harry, in a quickly borrowed dark jacket and tie, sat at the defence position with Surrey behind him.

  Magee still looked uneasy as he got things under way.

  ‘Members of the jury, I have a request to read back to you the evidence of Detective Senior Constable Lambie about microscopic examination of the exhibits — the plastic bags. I’ll just ask counsel, who have transcripts of the oral evidence, how much they wish me to have read to you.’ He looked at the Bar table, and appeared to notice Arabella’s absence for the first time.