Kapelis- The Hatmaker

by Andreas Kappa

  Andrew continued, ‘Members of the jury, in 1947 there was a criminal trial before Andreas. In the trial, we will prove that the then king of Greece, the first respondent’s father, gave orders-in-council under the royal seal to the entire judiciary, all the judges of Greece, to find people coming before the court in criminal matters guilty of the crime, whether they were innocent or not, and then send them to prison if they were not monarchists. On one view of that fact, if we prove it, and limiting any speculation, it was to remove any politics that endangered the king’s rule and suppress free-thinking citizens. You may find another reason for that conduct. That is a matter for you, members of the jury.

  ‘We will prove that no matter how you characterize that conduct, the old man behind me applied the law and acquitted the man. Following this judicial acquittal, Andreas was arrested, imprisoned, and then sent to the equivalent of the American prison of Alcatraz for nearly three years without his family knowing whether he was alive or dead. We will prove that the orders-in-council from the then king were illegal, unconstitutional, and of no legal force and effect. To heap abomination upon abomination, he was beaten, ill-treated, and was fearful for his own life and the life of his family. He was deprived of food, water, and basic nourishment. A fakelo, a file, was then created which labelled him and his entire family communists for evermore.’

  At this stage, after the core of his case was addressed and presented to the jury, Andrew was visibly emotional. He took a breath.

  The judge saw his reaction and said to the court, ‘It is now 12:45, we will take an early lunch adjournment rather than the usual 1 p.m. and we will resume at 2 p.m. Thank you, members of the jury.’

  The jury had reacted to Andrew’s presentation of the case and were moving in their seats. The judge had come to Andrew’s aid in adjourning the matter. Andrew regrouped and shook off his emotions during the luncheon adjournment.

  At 2 p.m. Andrew continued, ‘You will remember that before lunch, I used the words abomination. Well, the cruelty and atrocity continued. He returned to his village after three years as a broken man, his children had grown up without a father, and he had lost his job as a judge and mayor. This man was and continues to be nothing but a peasant farmer in the mountains of southern Greece—unemployable and heartbroken, as he believed in the rule of law. All that was left was his higher education, which no one could take from him. To this day, you will hear from Andreas that he still maintains his belief in the rule of law and asks a simple favour from you, the jurors in this case – please apply the law and find in his favour.’

  After Andrew had highlighted other aspects of the facts and law involving his case, the matter concluded for the day, and the men went back to their hotel.

  Around 6 p.m., whilst Andrew was in his room, speaking to his family back in Australia and giving them an update, there was a message notification which flashed on his television.

  The message was from Wagstaff. He would tell his grandfather later after he spoke with Wagstaff. He rang Wagstaff.

  Wagstaff said, ‘Before we all spend an enormous amount on costs, we have a further offer—20 million euros from our client and 10 million from the Greek State. That is our final offer.’

  Andrew said in reply, ‘Thanks. I will convey the offer to my client.’

  It was obvious from the increased offer made by Wagstaff, that his opening address to the jury had a significant impact on the strategy of his opponents.

  It seemed to Andrew that the respective clients of his opponents had re-grouped and were growing concerned about the potential outcome in favour of Andreas.

  He spent the next hour thinking about how to put the offer to the old man so he would take it. Then Andrew went downstairs to the dining room.

  Andrew said to his grandfather, ‘Papou, they have just offered 30 million euros. I will not persuade you to take it, as I know better, but it is an enormous amount of money and takes away the risk of you losing the case or getting less than the offer.’

  Andreas said, ‘I know you are being an advocate now—not mine, but theirs. Do not fear, as you are persuading the jury from where I sit. Did they say it was their final offer?’

  Andrew said, ‘Yes.’

  Andreas said, ‘Enormous pressure produces extra virgin olive oil. Offer rejected. Please proceed.’

  Andrew and Hans were starting to doubt the old man’s capacity and that he was having lapses in his faculties due to the pressure of the trial. They could not prove that because a doctor had said that he had capacity to deal with his own affairs.

  Andrew rang Wagstaff two hours later and said, ‘My client has instructed me to reject your offer.’

  Wagstaff sounded deflated and said, ‘I knew he would. Thank you for your efforts. I know you really tried.’

  On the fourth day, Andrew continued his opening address. He described Makronisos again as a re-enforcement of those facts.

  He then told the jury of Andreas’s children wanting to continue their schooling but because of the fakelo confirming he was a communist, they could not further their education and, in desperation, went Australia to find a better life than their lives in Greece.

  He described the broken heart of the old man in losing five of his seven children to a foreign country, that country being where Andrew came from in a distant land.

  He described that Andreas was ostracised from 1947 until 1967, for almost twenty years, until the colonels, the junta, took power in Greece.

  Andrew then came specifically to the junta and said, ‘When the colonels took over in April 1967, you will hear from Andreas the curfews in place, the revisiting of the fakela, and how, as a registered communist, he was taken to a local town by the military police, Hittes, from the army and beaten again, causing his left shoulder to be broken and damaged forever.

  ‘You will hear that the then king, who is a respondent in these proceedings, fled his homeland rather than protect it and die to protect it then left citizens like Andreas to confront the wrath of the colonels. In this madness, the king fled to Thessaloniki, in the far north of Greece, and then fled to Rome and Spain then went into exile in London whilst his country was burning. He remains in exile in the comfort of London to this very day.’

  That statement struck a nerve with the jury and moved the judge.

  During the last remarks to the jury in his opening address, he said, ‘Members of the jury, it was not until 14 August 1987, forty years after this mayhem and madness in a country which gave birth to democracy that the sick child of democracy reviewed Andreas’s file and destroyed it.

  The state gave him a medal and certificate acknowledging him for his contribution to the resistance against the Germans and his efforts for his country and the Greek people as a member of EAM.’

  Andrew’s final words were these: ‘I fear I have not done justice to the story of Andreas Kapelis. I am worried the account has been understated. I am also concerned that I may have missed something important. However, members of the jury, once you hear the evidence, you will ask yourselves, how is this man still alive today to now tell his story? Simple, I say to you. Fate has made him a living exhibit and the real evidence before you in this trial. I thank you for your audience and attention during my opening address. I now call to give evidence Andreas Kapelis.’

  The judge said, ‘Thank you, Mr Kape. You can call your first witness.’

  It was clear to Andrew that his opening address to the jury have moved and shaken them.

  One of the jurors, a tough looking man in his late forties or early fifties, took out tissues and wipe the tears rolling down his face.

  Andrew told the judge that Andreas would take the oath on the Bible, as he was a Greek Orthodox.

  The old man lifted himself, slowly aided by his walking stick, and hobbled into the witness box while aided by the judge’s tipstaff. He was offered a glass of water by the judge. He was sworn a
s a witness.

  There he was—a white-haired, blue-eyed old man with bushy eyebrows, a wry smile, and a short moustache. He was dressed simply. As a former lawyer, he looked directly at the jury.

  Andrew said, ‘I want you to keep your voice up, listen carefully to the questions, and answer the questions so that both the jury and the judge can hear your answers. We have a Greek interpreter to assist you in giving your evidence. The parties have agreed that you will give your evidence from your memory, as the other witnesses will. When you have exhausted your recollection and you need to refer to your statement prepared by your lawyers, you will do so. Do you understand that?’

  Andreas said, ‘Yes, I do, counsel.’

  Andrew then asked him some love-and-kisses questions about his name and where he lived in Greece, his birth date, his family and how he grew up. The old man was now left to his own devices to give his evidence.

  His evidence of the twenties through to World War II was given orally without reference to his statement and was cogent and measured. The facts then turned to the forties, the critical part of the evidence.

  Both Wagstaff QC and Cox QC commenced to be vocal. There was a barrage of objections about the evidence that required to be determined by the judge in the absence of the jury.

  The jury was getting frustrated at being asked continually to leave the courtroom, which was the product of objections being taken to the evidence taken by the counsel for the respondents. The objections to evidence by counsel needed to be determined by the judge in the absence of the jury.

  The jury keep on going in and out of the courtroom.

  Most of the points taken by the respondents in relation to points of relevance, inflaming the jury, hearsay, unprovable facts and speculation failed after the objections were determined by the judge.

  There were several matters of evidence that failed. Other objections were upheld and the evidence was excluded by the judge.

  Andrew was growing concerned in relation to proving some points.

  At one point during cross-examination by Wagstaff, the following exchange occurred.

  Wagstaff said, ‘Mr Kapelis, you are a man in your late nineties. How could you possibly remember the king’s order-in-council you describe without the document?’

  Andreas replied, ‘Please don’t waffle. Just call me a liar.’

  The judge intervened. ‘Please answer the question, Mr Kapelis. It will go much faster.’

  Wagstaff repeated the question. ‘How could you remember the king’s orders-in-council without the document?’

  Andreas said, ‘I do, because I read it and I did not follow it.’

  Wagstaff said, ‘How do you know the king actually signed it and it was not a forgery?’

  ‘It had the royal seal and was signed by the king. As a judicial officer, I recognised the king’s signature.’

  Wagstaff said, ‘You did not say that in your statement. Are you making this evidence up?’

  An objection was taken by Andrew, which was overruled by the judge.

  Andreas said, ‘No, I am not making this up.’

  In his frustration, Wagstaff went that extra step and said to Kapelis, ‘You are lying, sir, aren’t you?’

  Kapelis said, ‘Excellent! You have finally called me a liar after going around and around in circles. True to my oath, I am not lying about this fact or any other matter.’

  Wagstaff continued his skilful cross-examination of Kapelis on his evidence and on his statement.

  In one fiery exchange between Kapelis and Wagstaff, Wagstaff said, ‘You are in this for the money—not justice.’

  Andreas replied, ‘The soaked man does not need a cape.’

  The jury laughed. The judge had to cover her mouth quickly not to show she was laughing. There was a pause in the proceedings.

  Once the judge had composed herself, she said, ‘Mr Kapelis, please answer Mr Wagstaff’s questions, I implore you.’

  Andreas said, ‘Okay. I want justice, not money. I want someone in this lifetime to tell me I am right and I suffered because of injustice.’

  Despite objection to the answer, the judge said that he was entitled to give his answer in that form as his response needed explanation, which Andreas gave.

  Andreas was cross-examined for five long and painful days by Wagstaff. Wagstaff was an excellent cross-examiner and put difficult questions to Andreas.

  The old man was up to the task and showed great mental agility in responding to the questions. When Wagstaff was frustrated with Andreas, his habit was to cross-examine Andreas ruthlessly. It appeared to Andrew and Hans that the jury seemed visibly annoyed with this approach.

  Both Hans and Andrew could see that the old man was very tired. During the days he was being cross-examined, he would go straight to the hotel, eat a meagre meal in his room and rest from 6 p.m. The men left him alone.

  Andrew was also vigorous in his objection to the cross-examination, making Wagstaff work even harder. Andrew was trying, as best he could, to protect the old man.

  It was now day 10. It was the turn of Cox, QC, to cross-examine Kapelis. His approach was good cop, and the bad cop had been Wagstaff.

  Cox was tempered and went directly to questions involving the state’s knowledge of the orders-in-council and their alleged aiding and abetting what had occurred to Andreas.

  In one critical exchange, the cross-examination went as follows.

  Cox, QC, said, ‘Mr Kapelis, assuming you are correct about the king’s orders-in-council, the state could not have known anything about it, correct?’

  Andreas said, ‘no king is above the law. For an order-in-council to be sent by the king to judicial officers, it must be given to the recorder of the parliament and approved by the minister. It was in the constitution of 1947.’

  Cox said, ‘Accepting what you said is correct and assuming the king did that by circumventing the law under the constitution, the state could not possibly be responsible for that, could it?’

  Andrew objected to the fairness of the question and its speculation, but the judge ruled against Andrew’s objection because Kapelis was a judge at the time and he could be deemed as an expert of the law of Greece in 1947 as a judicial officer.

  Andreas answered, ‘I agree with you. The state could not be responsible for that.’

  Andrew whispered to Hans behind him, ‘I think we may have lost the case against the state on the strength of that answer. I will have to ask him some questions in reply.’

  Cox, QC, was deliberate and tactical and a very courteous and gentle cross-examiner to Kapelis, and it seemed he had won over the favour of the jury.

  The tactic employed by Cox, QC, was that of a ‘fireside chat’ between witness and the cross-examiner. He took him only three days to cross-examine Andreas, much less than Wagstaff.

  In some of his final questions to Andreas about the state’s knowledge, Andreas quipped, ‘Outwardly a lamb but inwardly a wolf.’ It was directed personally at Cox, QC.

  The jury, of course, enjoyed that aside. Andreas was chastised and admonished by the judge for this refrain. The judge’s displeasure was really to keep the counsel for the former king and the state at bay.

  Andreas immediately apologised to the judge and the jury and blamed it on his old age. Again, the jury smiled at Andreas.

  Andrew called his grandfather in reply to the cross-examination and was met with stiff opposition from the respondents.

  A little evidence trickled through to try to remedy the damage caused to his case by the cross-examination. Andreas behaved sheepishly in re-examination.

  That brought a laugh in unison from the jury.

  Over two weeks had now completed in the trial.

  Diki was called to give evidence over heavy objection by both the respondents’ counsel. Cox, QC, said it was not relevant in proving the complainant’s
case against his client and was speculative. Wagstaff argued it was hearsay and a veiled attempt to inflame the jury.

  The offending word contained in the notes was him rather than Andreas, and it could have been any of the judge’s colleagues at the time or any other time he was a judge.

  The judge allowed the evidence of Diki to be received and the notes of the former chief justice Kalapaseas to be tendered as evidence in the proceedings, forming part of a matrix of facts entitling the complainant to prove a circumstantial case for the jury to consider.

  Andrew was relieved after a lengthy battle over the admissibility of the evidence that the evidence had gone to the jury.

  Andrew was also worried that, without the document that is, the orders-in-council, he might fail to prove that element of his case on the balance of probabilities.

  Aspros was the next witness. Although not educated, he was a cunning old man. He walked into court with the blue weathered fisherman’s hat that Kapelis had made for him in 1947. When he went into the witness box, he still had the cap on his head.

  The judge asked him politely to remove it. He complied with the judge’s request and apologised.

  He told the story about his friendship with Kapelis from childhood and the fact that it was his case that Andreas heard involving the oranges and that he was acquitted by Andreas.

  He then gave evidence about Andreas going away with no one knowing where he was. He did not mention that Andreas had made him the cap because Andrew did not think it was relevant to ask the witness any questions about it. Over objection, he gave evidence about the effects the beatings and the ill treatment had on Kapelis.

  He gave evidence of Andreas’s children leaving the village and how he would tell him of his heartache and how much he missed them. He then gave evidence about the junta and Andreas’s broken shoulder at the hands of the military junta.

  Aspros was then cross-examined by Wagstaff and then Cox. They played the same roles to keep it consistent. Wagstaff was the brute. Cox was the diplomat. Their cross-examination was temporal and almost ineffectual.