‘Where are you based?’
‘I rotate between stores.’
‘And which store were you working at on 2 July 2008?’
‘I was at the Chatsbury store.’
‘What time did you arrive at the store?’
‘I arrived just after noon.’
‘Who was working on the day?’
‘Harold Webb and Maureen White.’
‘Did you ask Ms White to transport the day’s takings to your Surry Hills store?’
‘Yes, I did.’
‘At what time did you make the request?’
‘Oh, about quarter to five. Just before we closed.’
‘What time does the shop close?’
‘At five.’
‘Why did you entrust this task to Ms White and not say to Mr Webb?’
‘I needed Mr Webb to complete a stocktake. He’d been doing it for the past couple of days and for the sake of continuity I wanted him to stick to that job.’
‘Mr Marks, did you convene WorkSafe meetings on 21 May 2008 and 18 June 2008?’
‘Yes, that sounds about right.’
‘Who attended on 21 May 2008?’
‘Harold Webb, Maureen White and myself.’
‘How many staff are employed in the Chatsbury store?’
‘We have another three part-timers who rotate shifts. They’re uni students.’
‘Why didn’t they attend the meeting?’
‘The girl rostered to work that day called in sick.’
‘Which day? There were two meetings.’
‘Sorry, I meant the first meeting, in May.’
‘And what about the second meeting, the one of 18 June 2008?’
‘Cam was rostered to work that day. But she left work early to go to uni.’
‘Why did you not reschedule both meetings so that all staff could attend?’
‘Well, three of us were present so I thought the meetings should go on anyway. With these kind of meetings, if you end up postponing them they somehow never get rescheduled.’
‘Fair enough.’
‘Objection. That’s not a question.’
‘Okay, withdrawn,’ Wallace said with a mischievous grin.
‘Mr Marks, why did your company not adhere to Work-Cover guidelines in relation to the transportation of money?’
‘We didn’t think we had to. We’re a small business. We always understood that those guidelines applied to larger operations. Security guards, advanced video surveillance equipment – those things are expensive. It’s not like we were transporting money every day. If we were I would have been the first to consider the expense justified. But it was only on the rare occasion that we transported money between stores.’
‘So what you’re saying is that on a cost-benefit analysis, you simply couldn’t justify the expense of employing such measures?’
‘Objection,’ Valopolous cried. ‘Counsel is leading the witness.’
‘Sustained.’
‘I’ll rephrase, Your Honour. Did you ever conduct a cost-benefit analysis?’
‘Yes.’
‘And what did you conclude?’
‘That the measures required by WorkCover were too expensive to justify us employing them.’
‘Did you understand those measures to be compulsory?’
‘No. I understood they were compulsory for large businesses and simply recommended for businesses of our size.’
‘Thank you, no more questions.’
Valopolous jumped up. He was clearly looking forward to going for Rodney’s jugular. I didn’t know what to expect. Rodney needed to let Bernie win. At the same time, his insurer’s claims officer was in the court, listening to every word. If he didn’t put up a fight against Valopolous, he’d probably get in big trouble.
‘Mr Marks, the minutes of the WorkSafe meetings mentioned clearly establish that you were aware of the dangers of failing to protect staff from harm when they transported money, so why did you not do something about it?’
‘Like I said, I didn’t think the expense was justified when measured against the risk of something happening.’
‘In other words, the life of your staff came second?’
‘Well I never thought their lives were in danger, just—’ ‘Well then what was in danger? Were they at risk of breaking a nail while transporting money? Ruffling their hair?’
‘No, what I meant was, well, I never thought that with the kind of money we were transporting, and the kind of small business we were, that their lives would be at risk in the way, say, people working for Armaguard would be at risk.’
‘And now one of your staff members is dead. Murdered. Because for all your policing and criminology expertise, you thought that criminals only target Armaguard employees.’
Wallace rose. ‘Counsel is badgering the witness.’
‘It’s called cross-examination, Your Honour, but if Mr Wallace can’t distinguish between the two I will withdraw my statement.’
The judge nodded. ‘Please continue.’
‘Mr Marks, how much would it have cost to hire a security guard?’
‘I can’t remember off the top of my head.’
‘Well let me assist you. Exhibit 4, Your Honour: quotes from ten security companies. Could the witness please be shown Exhibit 4?’
The clerk handed Rodney Marks a piece of paper.
‘Mr Marks, what is the cheapest quote in that table you have just been handed?’
‘Forty-five thousand dollars per annum.’
‘Mr Marks, is it your evidence that Jenkins Storage World could not afford to hire a security guard?’
‘Afford is a relative term.’
‘Is it? Well I’m sorry, I’m just a lawyer, not a businessman. But I always thought that establishing what expenses a business can or cannot afford was a fairly easy thing to do, Mr Marks. I’ll ask you again: is it your evidence that Jenkins Storage World could not afford to hire security guards?’
‘Yes.’
‘Your Honour, I tender Jenkins Storage World’s profit and loss statement for 2007, Exhibit 5. Mr Marks, would you please take a look at this profit and loss statement. What was your profit that year?’
‘Just under a million.’
‘Based on that figure, could Jenkins Storage World have hired security staff for the lowest quote on offer?’
‘I suppose . . .’
‘Could the witness please be shown Exhibit 2? Mr Marks, this is a purchase order. Is that your handwritten note?’
‘Yes.’
‘Please explain it to us.’
‘I ordered a motion-sensor security camera. There was a part missing. I wrote a note to call them to arrange delivery of the missing part.’
‘What date was the camera delivered?’
‘On 19 June 2008.’
‘And when did you make the call to arrange delivery of the missing part?’
‘I didn’t.’
‘Why not?’
‘Because I forgot.’
‘You forgot?’
‘Yes.’
‘If that part had been ordered and the camera had been in use on 2 July 2008, do you think Maureen White might be alive today?’
‘Objection. Speculation.’
‘Sustained.’
‘Mr Marks, your note says, “staff pressing”. What did you mean?’
Rodney took a deep breath. ‘Maureen . . . Maureen had asked me about it.’
‘Maureen asked you about it?!’ Valopolous’s gaze met Casey’s. Neither of them had expected such a response. It was like hitting the jackpot.
‘Yes.’
‘And why did she do that?’
‘She’d been . . . concerned . . .’
‘Why?’
‘She . . . she said she worked back late sometimes, especially on Thursdays when we close at nine, and she didn’t feel safe in the car park.’
‘YOU BASTARD!’ Bernie yelled from behind me.
‘ORDER!’ Judge Monahan commanded.
>
‘SHE MIGHT HAVE BEEN ALIVE NOW!
‘Security!’ Judge Monahan bellowed, and the court security guard stormed over to Bernie and escorted him from the courtroom.
I felt like spewing. Their acting was perfect.
Rodney looked shaken – or pretended to.
‘Mr Marks,’ Valopolous continued, ‘it is your evidence that it was about four forty-five pm when you asked the deceased to transport the money to your Surry Hills store. Correct?’
‘Yes.’
‘Where were you and the deceased when you asked her to do this?’
‘At the front desk.’
‘Were there any customers in the store?’
‘Yes.’
‘Were there any customers at the front desk?’
‘Yes.’
‘Could your request have been overheard by them?’
‘I suppose so.’
‘Yes or no?’
‘Yes.’
‘Why didn’t you take the deceased aside to the store room or somewhere private to ask her to transport the money?’
‘It didn’t . . . it just didn’t occur to me.’
‘No further questions, Your Honour.’
‘We’ll break for lunch. The defendant’s next witness will be called at two sharp.’
Valopolous was on a high. Rodney Marks had dug Jenkins Storage World a deep grave. ‘And the judge is going to fill it with compensation,’ he said happily. ‘Lots of it.’
‘Let’s hope so,’ Bernie said. He was beaming. I couldn’t blame him. Rodney had delivered an Oscar-winning performance.
We were in one of the briefing rooms for the lunch break. I couldn’t eat though. Not even a chocolate bar. My stomach was tied in a thousand knots.
‘Can you believe it was Maureen?!’ Valopolous said with delight, referring to Rodney’s revelation that it had been Maureen, of all people, who had pressed him about installing the video camera.
‘Who would have guessed her fears would come true?’ Bernie said, ducking his head, feigning despair.
Good on you, Bernie. You could have a great career writing Hallmark cards.
Valopolous glanced at Casey. ‘You’re extraordinarily subdued considering how well that went.’
‘Sorry, I’m just thinking about . . . about the next witnesses.’
Valopolous pulled a stern face. ‘You yourself said this case would hinge on negligence and I’ve certainly exposed the defendant to an enormous claim.’
‘Yeah!’ Bernie said and I wondered how it would feel to wipe the overconfident grin off his face with my fist.
‘Yes, well done,’ Casey said a little too cheerfully. Maybe she was feeling guilty about using those fake notes.
Maybe I had acted wrongly during the case. But the way I saw it, nothing I did was as bad as Valopolous and Casey ignoring the information I gave them about the WorkSafe minutes.
I couldn’t wait for lunch to be over and for Claudia Hognio and Harold Webb to take the stand. Their evidence would wipe the cocky grins off the faces of Bernie and Valopolous and maybe, finally, the truth would come out.
Claudia was petite and wore glasses which sat halfway down her nose. I knew something was wrong when I saw how uneasy she looked in the witness box. Her eyes darted anxiously around the courtroom. She didn’t want to be there, which was weird given that her partner, Harry, had said she was looking forward to exposing Bernie.
Wallace stood erect and confident. This was the first of his two prize witnesses. ‘Ms Hognio, are you Maureen White’s sister?’
‘Yes I am,’ she said stiffly.
‘Were you close to your sister?’
‘I suppose.’
I noticed Wallace tense. Claudia was obviously not warming to her own barrister.
‘Did your sister confide in you?’
‘No, not really.’ Claudia was dodging his gaze, looking anywhere but at Wallace, who was obviously confused by her body language.
‘Did your sister confide in you about her marriage?’
‘No.’
I couldn’t believe it. She was lying!
Wallace erupted into a coughing fit. Humphries handed him a glass of water which he gulped down. ‘She never spoke to you about her personal life?’
‘No.’
‘Ms Hognio, are you telling the truth?’
Valopolous sprang up. ‘Your Honour, counsel is badgering his own witness! The witness has been explicit in her answer.’
Judge Monahan tapped her pen against the bench. ‘Yes, I’d have to agree. Counsel, your witness is answering your questions. Now move on.’
Wallace was agitated, pressing his fingers to his temple. ‘Ms Hognio, were you aware that Bernie White was having an affair?’
I waited, breathless.
Claudia, again looking anywhere but at Wallace’s face, said: ‘No.’
My notepad fell out of my lap and onto the floor. I was dumbstruck. Who had got to her? Bernie? Rodney Marks?
Wallace grimaced, paused, and then said, ‘No further questions, Your Honour.’
Judge Monahan looked confused. ‘Very well . . . Mr Valopolous?’
‘Er, no questions, Your Honour. Quite frankly we have no idea why Ms Hognio was called.’
Claudia virtually ran from the courtroom.
Wallace, looking extremely angry, called Harold Webb to the stand.
But he had no joy with this witness either. Webb, it seemed, was suffering from severe memory loss.
‘Mr Webb, your statement clearly says you offered to accompany the deceased to her car.’
‘I don’t remember.’
Wallace seemed ready to throw a tantrum. ‘Well when did you write this statement?’
‘My lawyers wrote it for me.’
‘Are you saying that you had no input? That you gave no instructions?’
‘Yeah, sure I did. But I reckon they exaggerated it.’
‘But you signed it.’
‘Well when a lawyer gives you something to sign you don’t question it. This is all new to me. I wasn’t going to challenge them.’
‘So is it your evidence that you never offered to walk out to the car park with the deceased?’
‘I really can’t remember. It was last year.’
Wallace was sweating. He stopped and poured himself another glass of water. He seemed ready to ask another question and then thought better of it. ‘No more questions, Your Honour.’
And that was it. I wanted to scream. Without Webb the contributory negligence defence fell apart. Without Claudia we had no evidence of a girlfriend, no evidence of financial support, no evidence to make Bernie look bad. I couldn’t believe it.
Bernie and Rodney had pulled it off.
Valopolous wore a red bow-tie for his closing address the next morning.
We were sitting around the bar table, waiting for the judge to arrive. Wallace was outside the doors of the courtroom talking to his legal team.
‘What are they doing out there?’ Bernie asked. He was sitting two seats from me, nervously jiggling his foot up and down.
‘I’ll bet Wallace is trying to convince them to settle,’ Valopolous said. ‘He won’t want this case in Monahan’s lap.’
‘Why? Do you think we’d get more through a judgment?’
‘She’s soft with plaintiffs as it is, and with the defendant having such a poor case, she’s got free rein. We should be able to wrap this up nice and early, then it’s off to a celebratory lunch.’ Valopolous winked at Bernie. ‘Don’t worry, it won’t come out of your costs. I should think that after today Saleh & Co Lawyers will be more than happy to foot the bill!’
‘Let’s hope you close the case as smoothly as you give away other people’s money,’ Casey teased.
‘Don’t you worry your pretty little head, I intend to,’ Valopolous said.
The look on Casey’s face at Valopolous’s sexist remark reminded me of a raging bull.
When I’d returned to the office yesterday and told Jacinta wha
t happened in court, and how I couldn’t understand why Casey didn’t stand up to Valopolous about using the notes, Jacinta explained that Casey intended to go to the bar next year. If she was going to make it as a successful barrister she had to get into the good books of senior barristers, which Valopolous was. In fact, he was one of the top barristers at the Sydney bar. She needed the support of people like him if she had any chance of getting good work as a junior barrister. Jacinta’s theory was that because Casey would be determined to make a good impression, she wouldn’t want to challenge Valopolous. What a cop-out.
‘I wouldn’t want to be in Wallace’s shoes,’ Valopolous said. ‘Not much of a case. Actually, he has no case.’
At that point Wallace walked in, looking fatigued.
‘Have you got a big, fat settlement offer for me, Fred?’ Valopolous called out.
‘The insurer wants to take its chances with the judge,’ he said wearily, not even attempting to disguise his disapproval.
Valopolous roared with laughter. ‘Suits us just fine,’ he said.
Judge Monahan adjusted her robes, took a sip from her glass of water, and asked Valopolous to commence his closing address.
Valopolous sprang up as elegantly as someone of his size could. ‘The court has heard incontrovertible evidence of the defendant’s negligent workplace practices. The defendant has all but explicitly conceded that it failed to implement a safe system of work and failed to implement measures it knew were necessary to avert the foreseeable risk of harm to its staff ’s safety. The defendant’s omissions causally contributed to the deceased’s death. It failed to establish a system for ensuring the safe transportation of money between its various stores. It failed to install security cameras or employ suitably trained security people to transport money between premises, a measure we have shown the defendant could easily afford. It failed to have the deceased accompanied by another staff member and failed to provide her with a distress alarm. But for the defendant’s failures, the deceased would still be alive.’
My ears pricked up; Valopolous was using the ‘but for’ test, Dad’s favourite. ‘But for your behaviour, the boys’ toilets would not have wet tissues stuck to its ceiling.’ ‘But for you removing the ladder, the workman would have been able to come down from the roof.’
Valopolous leaned against the lectern. He was relaxed and clearly enjoying this.
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