Harry Curry: Rats and Mice

by Stuart Littlemore

  ‘Mr Curry, what are you doing there?’

  Harry stood. ‘Ms Engineer has been taken to hospital, your Honour. She’s commenced labour. I trust you can see me.’

  ‘Good heavens. Of course I can see you.’

  Harry and the Crown compared notes and told the judge the page and line numbers they’d already agreed on. Magee told the jury his associate would read the evidence to them, and she stood. Magee advised the jury that he’d instructed his associate to leave out an exchange between himself and Ms Engineer that occurred at that point. ‘That’s because it has no bearing on the evidence proper.’ The edited-out exchange was, in fact, his embarrassing admission that he didn’t know what ‘CSI’ meant. No need to revisit that.

  The associate read nervously. ‘Question from Ms Engineer: “Detective Lambie, do you agree that your evidence would have been stronger if you’d done the CSI thing —” Then there was an exchange with his Honour, after which the question resumed. “— if you had done a microscopic examination of the fingerprints, to see whether there was any methylamphetamine dust, or any particles, mixed up in them? I mean, finding particles within the fingerprints would indicate that there were drugs in the bags when my client handled them, wouldn’t it?”

  ‘Answer: “We did. We had that done.”

  ‘Question: “And, obviously, you found nothing — otherwise you would have put that evidence before the jury?”

  ‘Answer: “That’s correct.”’

  Several jurors nodded. ‘Does that cover it, Mr Foreman?’ Magee asked, and the foreman indicated that it did. The jury went back to their room. Harry looked at his watch. Arabella had left the building eighteen minutes ago. The judge stood and started to leave, but halted to ask Harry whether he would be off to the hospital now.

  ‘Well, your Honour, I’m hoping for a quick verdict. My — Ms Engineer has given me an hour to get her a verdict,’ which wasn’t strictly true — it was Nancy Surrey who imposed the deadline, ‘after which I’m going to leave everything to my instructing solicitor.’

  ‘Well, my very best wishes to her,’ said Magee, twigging to their relationship. ‘And you. I don’t think the verdict’s going to take long.’

  The waiting started again. Remaining at the Bar table in the otherwise deserted courtroom, Harry told Surrey that the jurors had asked a great question. ‘It shows that they’re on to the hopelessness of the forensic proof. We’ll get a result.’

  And then the waiting was over. It took only a further fifteen minutes, in fact, and Surrey was speaking to Nancy on his phone (nothing yet, and the doctor was right then examining Arabella) when the court officer emerged from the direction of the judge’s chambers to mouth to Harry, ‘Verdict.’ Surrey went outside and gathered the Nguyen family, which now included Ronald. They’d been nowhere.

  The tableau reassembled: counsel at the table, judge on the bench, custodial officer standing next to the dock. Craig Nguyen, terrified, sitting in it. As the jury entered, Harry indicated to Craig to stand. Several jurors were looking at him as they resumed their seats. The associate stood, read from the indictment, and asked the foreman for their verdict.

  That terrible, exciting, makes-it-all-worthwhile moment. Pulse racing, dry mouth. Harry had opened Arabella’s brief to the backsheet, and automatically made his customary preparation to note the outcome. He wrote: Jury retired 11.07; jury question 11.21; verdict 11.47. Then he wrote GUILTY in capital letters, leaving a space before that word, and sat with his pen poised above that space, praying (it was the only time Harry ever prayed) for the word NOT, and the elation that always resulted from it.

  It never came.

  Perhaps the jury heard Harry mutter ‘Jesus Christ’. Perhaps they didn’t. Magee was crestfallen. Surrey was furious, banging his briefcase around. The Nguyens looked shattered, Mrs Nguyen sobbed loudly, and Craig had his head in his hands.

  Magee spoke. ‘What do you want to do, Mr Curry?’

  Harry stood. ‘Appeal.’

  Magee seemed sympathetic. ‘Do I take it you’re applying for appeal bail?’

  ‘Yes, your Honour.’

  Magee turned to the prosecutor. ‘I don’t want to hear from you on the question of bail, Madam Crown. I’m allowing it. I think what I’ll do, counsel, bearing in mind Ms Engineer’s situation, is stand the matter over until tomorrow at four o’clock. I’ll assume either Mr Curry or Mr Surrey can appear then. In the meantime, you can agree on the longer-term bail conditions and any other orders necessary to get the matter up to the Court of Criminal Appeal. And I’ll set a date for sentencing, which has still got to be done, of course. Madam Crown, I’ll ask for your assistance on the question of whether I can defer passing sentence until the appeal is decided. Mr Nguyen is bailed to appear in this court at 4 p.m. tomorrow.’

  Harry and the Crown said, ‘Suitable, your Honour,’ in unison, and the court rose.

  ‘Shall we join the ladies?’ Surrey asked Harry, and they left the courtroom at speed.

  Postscript

  The matter of Craig Nguyen v the Queen was called on eight months later in the Court of Criminal Appeal, sitting in the Banco Court — a vast aircraft hangar of a space on the thirteenth floor of the Supreme Court building at Queens Square. Tiered seating enough for hundreds, quite empty.

  Harry announced his appearance for the appellant to a bench consisting of the Chief Justice, the Chief Judge at Common Law and Justice Rathmines. The Crown was represented by Fighting Phil Franks of Senior Counsel, famous for never taking a backward step.

  Harry moved to his lectern to commence his argument for quashing the conviction, and waited for the judges to look at him. Rathmines J was the first to speak.

  ‘Mr Curry, I seem to remember you famously saying at some criminal law conference that you didn’t do appellate work.’

  ‘I’m flattered that your Honour should remember.’ Harry dragged his gown up on one shoulder.

  ‘The reason being, as I recall you explaining it, that judges in appeal don’t listen to counsel, because they’ve already made up their minds.’ Rathmines resembled nothing so much as a small boy, intent on pulling the wings off a fly.

  ‘If my memory serves me in turn, your Honour corrected me then.’

  ‘I did.’ There goes another wing, but the fly’s not dead yet.

  ‘Your Honour said, again if I recall it correctly, that I was wrong — only one judge had to make up his mind. Or her mind. And the others would follow.’ Harry looked to see what the other members of the bench were making of all this, but the Chief Justice was studying his own portrait on the courtroom wall, and the third of them, Justice McCorkle, was polishing her rimless glasses with a lace handkerchief, looking down.

  ‘Yes, Mr Curry — a reference to the judge who’d been assigned the task, as you put it, of pre-judging the matter.’ No wings left.

  Enough of that. The Chief Justice intervened. ‘For the moment, Mr Curry, we’re going to ask you to sit down. It’s Mr Franks that we need to hear from, as to why we shouldn’t quash this conviction as unsafe and unsatisfactory and enter an acquittal. Thank you for your written submissions, which we have all read — not only Justice Rathmines, on this occasion. I think we all understand your argument and the force of it.’

  Harry sat, and turned to pull a wry face at Surrey, sitting behind him. Surrey shrugged a ‘this can’t be bad’ response: the court plainly wanted to know how the Crown could justify the verdict, asserted in Harry and Arabella’s written submissions to have been ‘perverse and so unreasonable as to be irrational’.

  The Chief Justice must have taken it upon himself to be the one pre-judging the appeal in Nguyen, because he immediately made the running. He turned to a page of notes he’d dictated to his secretary the previous evening, and prepared to take Franks SC to the first of the bullet points appearing there.

  ‘Mr Franks, what’s that epithet of Thoreau’s about circumstantial evidence?’

  Senior Counsel for the Crown thought for a moment. He
was not an unlettered man, and had a pretty good grasp of what he was being asked. ‘Doing the best I can, may it please you, I think it’s along the lines of “Some circumstantial evidence is very strong, such as when you find a trout in the milk.”’

  ‘That’s not this case, though, is it?’

  ‘Possibly not.’

  ‘Well then, Mr Franks —’ the Chief smoothed his page of notes with the palm of his hand, ‘— I want you to tell me whether you disagree with any of the following being the critical facts established by the evidence at the trial.

  ‘First, that the appellant’s fingerprints could have been placed on the seven plastic bags at any time up to a year prior to the day the police raid took place?’

  Franks already had a sinking feeling. ‘We accept that as critical, may it please the court.’

  ‘Next, that the fingerprint expert’s evidence fails to establish that the plastic bags were not empty at the time the appellant’s fingerprints were placed on them?’

  ‘Also conceded to be critical, your Honours.’ Franks’ tone was long-suffering.

  ‘Thirdly, that the microscopic examination of the bags, the results of which were not disclosed to the defence until Ms Engineer raised the issue in the course of the trial, failed to find any trace of methylamphetamine on their outer surfaces?’

  ‘Yes.’

  ‘Fourth — incidentally, do you admit that was an impropriety on the part of the prosecutor? The non-disclosure to the defence of the microscopic examination?’

  Franks was nothing if not loyal to the team. ‘Only if she knew of the existence of that evidence, your Honour, and I am not instructed that she did. It may have been an impropriety on the part of the police.’

  The Chief Justice treated that as a reasonable response. ‘Very well. That officer is now dead, I understand. Fourth, fifth and sixth — do you concede that these are each critical facts, established by the evidence: that the appellant’s DNA was located nowhere in the underground storage unit; that the appellant’s fingerprints were found on no fixed surface in the unit; and that there was no surveillance evidence disclosing any visit by the appellant to the unit, or that he’d ever been observed in company with the man who leased the unit, Christopher Lee?’

  ‘The Crown concedes all that your Honour has just put.’ Not exactly uncomfortable, but Franks SC gave every appearance of wanting to throw in the towel. Why not? No skin off his bulbous nose — it was that idiot solicitor–cum–joke-of-a-judge Magee who botched the trial, not him. All the same, he was hoping the court wouldn’t ask him why his colleague hadn’t conceded that there was no case to answer. He had nothing he could say about that.

  ‘Given all those critical facts, none of which were in issue, plus the evidence of the shop manager about the appellant’s innocent use of plastic bags when he ran errands for Mr Lee, can you tell us why the prosecutor at trial didn’t support a directed verdict?’

  So they had asked, and he was bound to come up with some sort of answer — preferably one of the type that turneth away wrath.

  ‘Would it help if I conceded it now, your Honours?’

  ‘Wouldn’t hurt,’ grumbled Rathmines, closing his book.

  Almost perfectly on cue, there was a delighted baby noise from the very back row of the gallery of seats facing across the void to the long bench.

  Justice McCorkle made her first contribution to the proceedings. ‘May I take it that we have the pleasure of Ms Engineer’s company today, Mr Curry? Even if she wasn’t able to appear when the verdict was entered?’

  ‘We do, your Honour.’ Harry had already turned and looked behind him. Good heavens, a bit of humanity in the Banco Court. He hadn’t known they were coming. The Nguyen family was there too.

  ‘And is that the baby whose sense of timing left a great deal to be desired?’

  ‘It is she, yes, but if that’s in any sense a criticism of my daughter, your Honour, it’s rejected.’

  Harry turned again. Looked at them both.

  Mine, he thought.

  THANKS

  To Dr Matthew Brookhouse of the ANU for the silvicultural expertise, Professor Rashda Rana for the cultural advice, John Bettens (once more) for the use of his name, the Women Publishers (especially Amanda O’Connell and Kelly Fagan) and a fortiori to Jeanne Ryckmans, as Harry would say, the persona sine quem.

  About the Author

  Stuart Littlemore QC is an Australian barrister and former journalist and television presenter. He was the writer and host of the ABC’s Media Watch program from its inception in 1989 until 1997. His first book of Harry Curry stories, Harry Curry: Counsel of Choice, was published in 2011. Harry Curry: The Murder Book was published in 2012.

  Praise for Harry Curry: Counsel of Choice

  ‘Immensely readable with an accessible style and excellent dialogue with shades of Rumpole and Rake’ Bookseller + Publisher

  ‘A well-written, entertaining book’ Sydney Morning Herald

  ‘a thrilling debut … Harry Curry is one class act … the novel features dialogue par excellence … I can’t wait to read the next Harry Curry’ Calvet’s Book of the Week

  ‘An enjoyable, refreshingly Australian read that also provides a fascinating look at the country’s legal system’ Australian Penthouse

  ‘both engaging and diverting’ Adelaide Advertiser

  ‘certain to strike a chord with readers who enjoy a good legal stoush … an entertaining and absorbing frolic’ Sunday Tasmanian

  Praise for Harry Curry: The Murder Book

  ‘The iconoclastic Harry Curry is a superb creation’ Sunday Times

  ‘Another fun series of adventures … a witty, entertaining read’ Canberra Times

  ‘gorgeously observed dialogue … silky smooth’ Herald Sun

  ‘articulate, witty and thoughtful writing … the characterisation is skilful’ The Saturday Age

  ‘Clever and well written … an entertaining read’ Sun Herald

  ‘Littlemore treads a fine and clever line between robust dialogue and storylines while presenting persuasive court dramas … Littlemore captures all this with a sharp eye and subtle humour’ Daily Telegraph

  ‘sharp witticisms and keen observations … in this entertaining journey through the corridors and back alleys of the NSW Supreme Court … As you would expect, this is an enjoyable read’ Launceston Examiner

  Copyright

  HarperCollinsPublishers

  First published in 2013

  This edition published in 2013

  by HarperCollinsPublishers Australia Pty Limited

  ABN 36 009 913 517

  harpercollins.com.au

  Copyright © Stuart Meredith Littlemore 2013

  The right of Stuart Littlemore to be identified as the author of this work has been asserted by him under the Copyright Amendment (Moral Rights) Act 2000.

  This work is copyright. Apart from any use as permitted under the Copyright Act 1968, no part may be reproduced, copied, scanned, stored in a retrieval system, recorded, or transmitted, in any form or by any means, without the prior written permission of the publisher.

  HarperCollinsPublishers

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  National Library of Australia Cataloguing-in-Publication data:

  Littlemore, Stuart, author.

  Harry Curry : rats and mice / Stuart Littlemore.

  978 0 7322 9527 1 (pbk)

  978 1 7430 9577 5 (epub)

  Lawyers – Australia – Fiction.

  Australian fiction – 21st century.

  A823.4

  Cover design by Christa Moffitt, Christabella Designs

  Cover images: Ede
n courthouse by J.T. Collins Collection, La Trobe Picture Collection, State Library of Victoria (H98.252/1619); woman by istockphoto.com; pram by shutterstock.com

  Author photograph by Kezia Littlemore