by Mark Dryden
When Wild Bill tried to elicit evidence from Desmond Fuolau, it was obvious why Fuolau was a bouncer rather than, say, a university professor. Many of his questions just bounced off Fuolau's blank expression. It was as if nobody had told him why we were all in the courtroom. Eventually, Wild Bill got frustrated and started asking grossly leading questions.
I objected. "Your Honour, if Mr Anderson is going to give evidence in these proceedings, he should get into the witness box and do it on oath."
The judge gave me a particularly venomous look. "If I don't give Mr Anderson some latitude, we'll be here forever, and I definitely don't want that."
I didn't want that either and sat down.
When it finally emerged, Fuolau's evidence in chief was similar to Taggart's. He claimed they went up to the first-floor bar and found Mick Arnold drunkenly pushing and shoving another patron. They calmed him down and he agreed to leave. However, at the top of the stairs, he tripped and fell.
Wild Bill said: "And your evidence is that you didn't touch him, isn't it?"
"That's right. Total truth."
"Thank you."
Wild Bill sat and the judge gave me a hooded stare. "Mr Kennedy, any cross-examination?"
I climbed to my feet. "Yes, your Honour."
As a party to the proceedings, Fuolau had been entitled to stay in Court when I cross-examined Taggart. So it must have soaked into even his tiny brain that the presence of a surveillance camera on the stairs was a big issue.
I had almost forgotten the monster lurking behind the scenery and immediately hit my stride. "There are surveillance cameras at the pub, aren't there?"
He shrugged. "Yeah, course."
"Do you have anything to do with them?"
"Nah, course not. I'm just a bouncer. Don't know nothing about that sort of stuff. Not interested, neither."
"But you know that there was once a surveillance camera on the stairs of the pub, don't you?"
"Yeah, think so."
"And there isn't one now, is there?"
He paused. "Umm, no."
"When was that surveillance camera taken down?"
"Oh, long time ago."
"You mean before Mr Arnold suffered his injury?"
He looked suspicious, wondering why I was prompting him to mimicked the evidence Taggart gave to support their defence. "Umm, yeah - definitely."
"Mr Arnold, you've already said you had nothing to do with the surveillance cameras, haven't you?"
He chewed his lower lip. "Yeah, I said that."
"And that you weren't interested in the surveillance cameras?"
He chewed a fingernail. "Yeah, that's right."
"So you've really got no idea when that camera was taken down, have you?"
The witness saw he was trapped and produced a predictable lie. "Yes I do, cause I seen it done."
"That's just a lie, isn't it?"
Fuolau crossed his arms like a petulant child. "Nah, it's not."
"You mean you remember that, even though you had nothing to do with the surveillance cameras and weren't interested in them?"
"Yeah, I do."
"You're just making this up to help your case, aren't you?"
"No, I'm not."
I leaned forward. "Alright. Then tell me, do you recall the night Mr Arnold was injured?"
His pondered that for a while. "Yeah, pretty good."
I cross-examined him about that night and his answers were similar to Taggart's. Thus he also had trouble explaining why the inebriated and volatile Mick Arnold meekly agreed to leave the pub with no physical coercion.
While I cross-examined, the judge spent more time staring sourly at me rather than the witness, which was disconcerting to say the least.
Eventually, to my relief, the wall-clock showed it was four o'clock. The judge also noted the time. "Gentlemen, I see it's almost four. I'll adjourn until ten tomorrow morning." He gave me one last frosty stare and scuttled off the bench.
When he'd gone, I breathed a deep sigh.
Wild Bill leaned towards me. "Jesus, he was in a shitty mood today, wasn't he?"
Now, I did some lying: "Really? I didn't notice."
Wild Bill again looked uncharacteristically nervous. "Look, there's something I want to talk to you about."
"What?"
"Let's go outside. Just you and me."
"OK."
We strolled out into the hallway, where Wild Bill stopped, stuffed his meaty hands into the pockets of his pinstripe bar trousers and stared down at the toe of his well-polished right shoe. "Look, umm, I've been wondering if we can settle this case."
That surprised me. My cross-examinations had done some damage, but hadn't counterbalanced Mick Arnold's disastrous performance in the witness box.
I said dryly: "Of course we can, if you make the right offer."
First, he had to soften me up, in the time-honoured way. "Well, before I make one you should know I've advised the insurance company it shouldn't offer a cent - not a cent. I mean, let's be frank, I butchered your little bastard in the witness box. But you know what insurance companies are like: sometimes they just look at the size of a claim and decide to spend a bit of money to get rid of it. So I've been instructed to offer your client $200,000 including costs to go away. I mean, if I was him, I'd grab the money and run."
If Mick Arnold won the case and was awarded full damages, he'd probably get about $1.1 million, plus his legal costs. So the offer of $200,000 was pretty measly, particularly after Meredith & Co's fees (probably at least $100,000) and mine (about $30,000) were taken out. But significantly, Wild Bill didn't say his offer was final. Thus he'd effectively told me that, if Mick made a decent counter-offer, the insurance company would go higher. The big question was, how much higher?
I feigned disappointment. "Piss-weak offer. I mean my client's legals are almost that much. I'll get some instructions."
"Do that."
Mick sat on a foam bench, with Bob Meredith next to him rummaging through his briefcase. I strolled over to them. "Well boys, the breaking news is that Wild Bill just made a settlement offer."
Mick's eyes widened. "You're kidding?"
"Nope. He offered you $200,000."
Until now, Mick had greedily insisted he wanted at least $1 million. However, his dire predicament seemed to have sunk in, because he looked pleased. "Shit, that's a lot of money."
"Not really."
"Why not?"
Meredith interjected. "Out of that $200,000 you'll have to pay us. So you'd probably end up with about a quarter of that amount."
Mick looked annoyed. "Fifty thou?"
"Yes."
"Shit, you boys charge a lot."
Bob frowned. He often had to explain the harsh facts of litigation to naïve clients. "Look son, so far we've charged nothing. We've taken a punt on your claim. But litigation is expensive - very expensive - and we've both got bills to pay, like everybody else. In the light of that, I think our fees are very reasonable."
Mick looked doubtful. "I suppose so."
I said: "Don't worry, $200,000 is obviously their opening offer. They've got more in the kitty. The big question is: how much more. So tell me: how much do you want in your pocket, after paying us?"
"If I could take home about 200 grand I'd be pretty bloody happy. I mean, the judge is a prick and really hates me. He's gonna slot me, right?"
Everyone around me was acting strange except Mick, who had become an island of common sense. Normally, I'd have agreed with him. Sloan was anti-plaintiff and Mick's performance in the witness box was a train-wreck. But recent events had rocked me. It seemed that Terry Riley had used the charge sheet to blackmail the judge. And now the judge knew I had it. Maybe that put Mick in the box seat. It was hard to know. Further, Wild Bill was behaving suspiciously. After braying loudly that Mick wouldn't get a cent, he'd made a decent opening offer. Was that because my cross-examination did some damage? Or was he worried about something else? Maybe his solicitor had found
the film and documents I called for and he wanted to settle before he had to hand them over.
I forced myself to stop speculating. Mick certainly wouldn't thank me if, on the basis of wild hunches, I advised him to reject a good offer and he lost. I had to keep reminding myself that Mick got smashed in the witness box and couldn't afford to be too greedy.
I said: "So you'd be happy to settle for $350,000 and walked away with about $200,000?"
Mick smiled. "Yeah. I'd be bloody happy with that."
A doubt tickled the back of my mind: maybe $350,000 was too little. But Mick was happy with that amount and I couldn't think of a cogent reason to discourage him. I turned to Meredith. "What do you think - $350,000 enough?"
Bob crossed his arms and tried to look thoughtful. If Mick settled for $350,000, Meredith & Co would get paid in full. So Meredith certainly didn't want Mick holding out for more. "Ben, you've done an excellent job. No doubt about that. But Mick did poorly in the witness box and litigation is uncertain. You never know what might happen. I think $350,000 would be an excellent figure."
Mick nodded and turn to me. "I agree, so ask them for $350,000."
I smiled and shook my head. "That's not how the game's played. They'll think that's your starting offer rather than your bottom line. You want $350,000, you've got to ask for about $500,000, because they'll assume you want to settle half-way between your offer and theirs'."
Mick shook his head. "Jesus, you guys play bullshit games."
I shrugged. "I don't make the rules."
"OK then, ask for half-a-mill."
Wild Bill was now chatting with Mild Bill and their instructing solicitor. I strolled over and took him aside. "I've talked to my client. Your offer's rejected. He'll accept $500,000 inkle costs."
Now it was Wild Bill's turn to feign disappointment. He frowned. "Look, there's no way the insurer will pay anything like that. We might have a bit more money in the kitty, but not that much. That's preposterous. Your offer's rejected."
I shrugged. "OK. I'll see you tomorrow morning."
I strolled back to Mick and described Wild Bill's reaction.
He scowled. "What happens now?"
"The ball's in their court. Got to wait for their counter-offer."
"What if they don't make one?"
"I'm pretty sure they will."
"Why don't you just say I'll take less?"
"Because, if you bid against yourself, you'll look piss-weak. Don't worry, they'll make another offer. Just a question of how much."
"OK."
As he strolled off towards the lifts, I noticed Meredith was studying me closely, as if we'd only just met. Jesus. I wondered if he, as well as the judge, somehow knew I had the police charge sheet and suspected the judge was a murderer. I prayed I was being paranoid, but my hopes weren't high.
He broke the spell by glancing at his watch. "I'd better get back to HQ and make sure the lazy bastards are working."
"I'll come out with you."
We silently strolled outside, where I said goodbye and crossed the road. I briefly wondered if $350,000 was too little to settle for, then defaulted to obsessing about the judge's large catalogue of dark secrets. He obviously knew that I knew about them. So what the hell should I do? Surely, I couldn't just sit back and wait for him to give judgment in the case. Somehow, before the hearing resumed tomorrow morning, I had to work out a plan. That wouldn't be easy.
I got out of the lift and headed for my room, so preoccupied that, at first, I didn't understand what Denise said.
I looked at her. "What?"
She waved a message slip at me. "You've got a call."
"Who from?"
"Justice Sloan's associate."
God almighty. Hand trembling, I took the message. "Thanks."
"She wants you to call her back right away."
I scuttled into my room, shut the door and flung my wig and gown onto an armchair. I shakily picked up the telephone receiver and dialled the number on the message.
A brusque-sounding woman answered. "Hello, Justice Sloan's Associate."
"Hello, Ben Kennedy."
"Ah, Mr Kennedy, his Honour wants you to come over here for a chat."
"You mean, with Mr Anderson?"
She hesitated. "No, he didn't mention him. He just wants you."
I'd never heard of a judge, during a hearing, seeing one barrister in his chambers without the other. A stab of panic. He obviously wanted to talk about his drink-driving charge. There could be no other reason. My voice seemed far off. "Umm, you sure about that?"
"Yes. His Honour said it was about a personal matter - not the case."
"Alright. When does he want to see me?"'
"Right now, if possible."
"Right now?"
"Yes, right now."
"OK, alright, I'm on my way."
A sweaty hand put down the receiver. Shit. A small tape-recorder lay on my desk. Should I secretly tape my conversation with the judge? Prudence said I should. But my ingrained respect for judicial officers made me leave it behind.
I passed Denise, touching up her make-up. She glanced up. "Where are you going?"
"To see Justice Sloan."
"OK, I'm off home. See you tomorrow."
"Sure."
Heart thumping, hands shaking, still wearing my bar jacket, I trudged back across Phillip Street into the Supreme Court Building, which looked even more brutal than usual. I desperately wanted to turn back. But deference to judicial authority and morbid curiosity drove me forward.
I went up to the 13th floor and used an intercom to contact the Associate. She asked me to wait. A few minutes later, a side-door opened and a woman in her mid-forties, with matronly features and a permanently dour expression, stepped out. Like most Judge's Associates, she was a combination of Praetorian Guard and typist. I bet she would lay down her life for the judge, and he would gladly let her, without a word of thanks.
She didn't know why I was there, but sensed I was not a positive force in her judge's life and eyed me suspiciously before crisply commanding me to follow her. She led me down a hallway past three judges' suites until we reached Sloan's. She guided me past her desk and into his room. Law books lined every wall, except the far one which had a long window overlooking the Eastern Suburbs and Pacific Ocean beyond.
Sloan stood in his bar jacket and bar trousers, staring out the window with slumped shoulders. His grey hair had the lank, sweaty sheen that comes from wearing a wig all day. He turned and stared at me, expression flecked with malice and fear. Instead of shaking my hand, he pointed towards two dilapidated armchairs near the window. "Take a seat."
As I obeyed, the Associate asked if we wanted tea or coffee.
The judge's head snapped around. "No, we're fine."
She looked concerned. "Will I be needed?"
He fidgeted. "No. Kindly leave us alone and shut the door."
She frowned and obeyed.
The judge sat and his tired eyes dug into me. "You're obviously wondering why I wanted to see you?"
"Yes."
He shifted heavily on his chair. "It's because I got a telephone call this morning from, umm, a Detective Sergeant Metcalfe."
I'd strongly suspected the cop talked to the judge. Now, with the truth out, I felt an odd mixture of panic and relief. A hot wind blew across my tongue. "Really?"
"Yes. He said you asked him about a charge sheet involving, umm, involving the accident in which my wife died. Is that true?"
Sweat stuck my hands to the leather armrests. My tongue baked even further. Still, words crawled out, as if to escape the heat. "That's right. I found it in one of Terry's law reports."
I studied him closely. Judges and barristers are good at masking their feelings, and he was better than most. But he was no longer an alpha-male judge. His jowls looked droopy, he'd missed some stubble when shaving and sweat popped out on his brow. Even his voice shook. "S-s-o you still have the charge sheet?"
"Yes."
; "With you?"
"No."
"I'd appreciate it if … if … you'd give it to me."
His obvious fear calmed my nerves and helped me focus on my cross-examination. I leaned forward and stared hard. "Your Honour, I don't intend to do anything until you explain to me what happened."
"When?"
"When your wife died."
He stared at me for almost 20 seconds, wondering what to say, before his face crumpled slightly and voice cracked. "What happened? I made a mistake - a terrible mistake - and I regret it. But that's behind me."
"You mean, you were drunk when your wife died?"
He shivered and looked away. "I don't want to talk about that."
"You have to, because I've got the charge sheet; you talk to me or you talk to someone else, like a cop."
Another long and empty stare. "Well, I …I …I …went to a dinner party with my wife. I, umm, had a few drinks. She did too. Then I drove home. It wasn't far. I didn't think there would be a problem."
"Until you hit a telegraph pole?"
"Yes," he mumbled.
Though I'd never liked him, I pitied the burden of guilt he carried. "And after the accident, you were taken to a police station, right, and charged with drink driving?"
A long pause and slow nod. "Yes."
"Then the charge was dropped. Why? What happened?"
He slowly shook his head. "I don't want to talk about that."
I spoke sternly. "Judge, you can do what you like. But unless you tell me what happened - what really happened - I can guarantee the charge sheet will get a wide distribution."
Fear blazed in his eyes. "You wouldn't dare."
"Yes, I would. Tell me what happened."
After weighing me up, he sank back into his armchair, voice flat. "The police reviewed the charge and decided they wouldn't proceed – decided that, umm, the breathalyser reading was faulty."
"Bullshit. You measured 0.16. It couldn't be that wrong. You got Terry involved, didn't you - to help you out?"
"No I didn't?"
He'd stopped being a judge and was now one of the many liars I battled with day in and day out. I started to rise. "Well, I suppose that's something the cops - the real cops - can sort out."
He held up a hand. "Stop. OK, OK, I got Terry involved." A long sigh. "You see, straight after the accident, I was a total mess. So I called Terry and asked him to come to the police station and help. When he arrived, he spoke to the duty sergeant and persuaded him to, umm, drop the charge."
