by Antonio Buti
‘All stand.’
It is three minutes past two as Justice Gray strides back into court.
‘Mr Burnside?’
Burnside picks up some papers. ‘Can I hand up a folder which contains originals and copies of the reports of Doctor Jureidini and Professor McFarlane?’ He has a similar folder for Walsh. ‘Professor McFarlane will tell Your Honour that Mr Trevorrow is depressed and suicidal at times, as I think on seven occasions he has tried to kill himself; he feels as though he doesn’t belong.’
Not belonging in either black or white culture, or in either his biological or his foster family, will be a recurring theme in Burnside’s narrative. ‘He has a major depressive illness for at least a decade,’ he continues, ‘although, looking at the Child Guidance notes, you might think it goes back a good deal longer than that, and has a profound sense of rejection which isn’t of any great surprise.’
This is the moment for Burnside to refer to Bruce’s siblings. He gestures to the public gallery from where Tom, George and Hilda ought to be watching and explains why they are not here today. But when they do give their testimony, he says, His Honour will see how different, how much more meaningful than Bruce’s life, their lives have been.
Giving emphasis to that difference, he tells the judge that Professor McFarlane will say, as will Dr Jureidini, ‘that if a child is neglected and is to be separated in infancy from his parents, then great care must be taken in placing the child. Even if the child is not neglected, you still need to take care with separating them as an infant.’
Burnside will call other doctors, including Dr Le Page, who will build on Dr Jureidini’s evidence. ‘Doctor Le Page will say that attachment disorder in the first three years of life will become the nucleus for the development of the personality.’ Moreover, ‘Such symptoms as soiling, limping without an organic cause and so on are signs of regression which illustrate that the child is unable to cope with their circumstances. What is more,’ here Burnside ends with a harshly unambiguous condemnation of the Aborigines Protection Board and its agents, ‘Doctor Le Page will also give evidence that the impact of separation was well known in the fifties when he was practising in Adelaide.’
Burnside turns towards the bar table, looks at an open folder and then closes it—not quite with a bang, but emphatically nonetheless. A clear indication that he has finished his opening submission. But he does have something else on his mind. He turns again to the bench. ‘If I may, Your Honour.’ His Honour nods his agreement. ‘I will be calling, as the plaintiff’s first witness, Bruce Trevorrow. However, I would like Your Honour to understand some of the difficulties the court might encounter when Bruce is in the witness stand. Bruce has real difficulty sitting down and concentrating for an extended time. He has also got a bit of a smoking habit, which doesn’t help.’ He elaborates, ‘In the course of giving evidence from the witness stand, Bruce might need to take an occasional short break.’
His Honour understands. ‘Yes, I am relaxed about that.’
As if that were his cue, Bruce dashes out for a quick smoke.
‘I hope he is coming back,’ Richardson murmurs to herself.
Justice Gray turns to the defence counsel. ‘Mr Walsh, are you ready to proceed?’
Calling on the defence at this stage is unusual. Justice Gray has invited Stephen Walsh to give the court an outline of his opening, before Burnside calls his first witness, with the court’s understanding that it will be only a synopsis and that Walsh can present his full opening later, before beginning the State’s defence. It is a practical invitation. The judge knows that the testimony Burnside is about to present will be wide-ranging and the expert witness testimony especially will be complex. If he knows in advance the thrust of Walsh’s defence, before he hears this testimony, it will help him to focus on the key points and to dismiss distractions.
It also works for Walsh. If he can alert the judge to the elements of the plaintiff’s case to which the State will object, it will encourage the judge to nip in the bud any witness answers that stray off core elements into emotional, but not probative, testimony.
‘Thank you, Your Honour.’ Walsh is experienced; he comes straight to the point. ‘This is not a case of a child forcibly removed from the custody of his parents. Rather, this is a case of a child who was in hospital with signs of neglect.’ He goes straight to the Adelaide Children’s Hospital notes, which record that Joe Trevorrow had been ‘nurturing the children with alcohol’.
Bruce has returned just in time to hear Walsh begin his outline of the State’s plan to deny him justice. He does not like what Walsh is saying. Burnside listens but is not fazed. He would have been surprised if the defence did not try to exploit matters in contention, to which he had alluded without elaboration in building the plaintiff’s case.
Now Walsh is about to ensure that the court knows the defence intends to give the elaboration: ‘One of the very great concerns that the defendant has is that a gloss is being put on events which may very well not be correct. We will put to Your Honour that, in fact, there are numerous instances where a gloss has been put on something where there is evidence to the contrary. But there will be many instances where a gloss has been put on something because that is the assumption that is being made on the face of the document but, in fact, there were other possibilities which are now unknown.’
As an introduction this statement lacks the elegance and precision Walsh would normally bring if he had had the time to prepare, being invited by Gray to do a brief opening only once the trial had already begun. But His Honour will not worry about style. He just wants to know the main points of the State’s defence. And Walsh obliges him.
He starts by reminding the court that the Aborigines Act imposes on the Aborigines Protection Board an obligation of guardianship. The State will argue that the Board had the right to arrange custody for ‘illegitimate Aboriginal children’. He stresses that, having learned that the Children’s Hospital notes on Bruce described all the signs of a child whose parents had neglected him, the Board had to make a decision quickly. It needed to move Bruce into an environment in which he would receive the attention and proper nurturing that his family home had denied him.
Burnside makes a note: ‘(Guardianship) hospital record—neglect. Rebut.’ And underneath that: ‘Legitimacy—Joe as biological father.’ He could have been reading Justice Gray’s thoughts.
His Honour: I haven’t looked at the definition of ‘legitimate’ at all but, presumably, at that stage there was a reference to a child born in lawful wedlock.
Walsh: Yes. The effect of it.
His Honour: What’s the position with regard to Indigenous law and Indigenous marriage?
Walsh: I don’t know the answer to that. I can’t assist you. I will try. Going back to the fundamentals, section ten provides that in effect because the Board is the legal guardian, it has the responsibility and the rights of a legal guardian. That must be so. It follows that it’s picked up those common law rights.
His Honour: Do you say that the parents or the father is no longer the guardian by reason of this section?
Walsh: Yes, the parents would be custodians while that is permitted.
His Honour: So, in your case, this Act overrode otherwise legal guardianship?
Walsh: It’s not the case; it’s the law.
Walsh goes on to argue that today it might be thought ‘a big thing to do in an act of parliament’ to override the rights of the natural parents. But, he says, ‘Unfortunately, thinking has not always been as we see it today.’
Yes, Burnside thinks, unfortunate is one way to describe it. Morally indefensible is a better way. He jots down another note as Walsh forewarns that this is one of his challenges, some forty-eight years on: ‘to go back to the times of the day’. Burnside, O’Connor and Richardson listen intently to the judge’s response.
His Honour: Yes, it’s going to be a challenge. For example, the various duties that are alleged—I will have to think this throug
h—but it doesn’t necessarily follow that the quantitative duty today would be the quantitative duty years ago and I rather assume you’ll be putting to me that the conduct of the day is to be judged by the standards of the time.
Walsh: Yes, and inevitably one might be left to draw on one’s own experience but not allow that to influence too much because, of course, we don’t have perfect recollection of all those things. Quite often, they are seen through the eyes of the children and that might not necessarily be the way parents understood it and those who voted and those who were in parliament but, yes, it is a challenge. That’s what we say about the Aborigines Act and the legal perspective.
Walsh winds up his synoptic opening with an observation on causation. Predictably, but pertinently, he will argue for the State that there are reasons which have nothing to do with Bruce’s removal from his family that have caused his mental and physical decline. He foreshadows that he will be leading evidence of those causes.
Each member of Bruce’s legal team is scribbling furiously on their yellow notepad. They now know the nature of the battleground. Tonight, with their lead counsel, they will review their tactics to ensure they have sufficiently armed Julian Burnside to direct his firepower at the heart of the State’s defence.
Walsh is finished. But the judge, not quite. ‘Mr Walsh, a couple of questions upon the pleadings. A number of times there are assertions by the plaintiff on matters of law … It might be of assistance to know what your client’s position is about those issues of law; whether they are disputed or whether they are accepted or at least if there is an issue about these sorts of matters?’
‘Can I leave that to a more fulsome opening when we open our case?’ asks Walsh.
If Justice Gray is perplexed by Walsh describing the opening to come as fulsome, he does not show it. Burnside just smiles inwardly. Yes, he thinks, it will be immoderate, excessive and perhaps a little fawning. And, yes, it probably will be more comprehensive, which is what Walsh actually means.
Gray persists, ‘Yes, although it may be that it might be helpful to know your position on these matters before the client closes his case. I’m certainly going to be interested to know what your position is on those matters; whether they are disputed or whether it’s a matter of refinement or a major dispute.’
Walsh seems a bit confused. ‘Notwithstanding what might have been said by other persons, the Act will speak for itself in that regard. What we will probably hope to do is to provide Your Honour with a written opening before we start. We might be able to get to that a bit earlier tomorrow.’
His Honour does not pursue the point and calls a ten-minute adjournment at one minute to three, before Burnside calls his first witness.
Bruce’s day in court is about to begin.
Chapter 14
PLAYING IT AS IT IS
‘I just thought I was part of their family.’
Later, when the combatants have argued their fight to its finish, when—alone in his chambers—Justice Gray is still to declare the victor, he will recall Bruce speaking those nine sad words. In the contemplative stillness of his chambers, those words carry a poignant subtext.
He will recall, too, how on this adversarial battlefield he has allowed hearsay evidence that in a different trial he would have disallowed. But, in this case, it helps him discern Bruce’s state of mind. A benefit of being a judge sitting alone. A benefit that would not be allowed a jury, he will muse. He will recall one such challenge made on grounds of hearsay. It is a poignant expression of Bruce’s unsureness about which, if either, of his two families ever really wanted him.
Burnside: Did you see your mother during that time when you were at Windana or McNally’s? This is between the age of fifteen and eighteen.
Bruce: When I was staying with Hilda.
Burnside: During those years, did you get the chance to talk to your mother about what she had done to try and get you back?
Bruce: Yes.
Burnside: What did you learn from her that she had done? What did you say to that?
Walsh: I object to that. It is hearsay evidence. It’s nothing that we contest in that. It is known that the mother has now passed away.
His Honour: It can’t go, of itself, to the truth of what’s said but it does go to Mr Trevorrow’s state of mind … In this case, one of the issues is the relevance of Mr Trevorrow’s state of mind to any damages that might flow in the event that he succeeds and that has to be assessed.
Walsh: I accept the point.
His Honour: But it can’t go to prove the truth of what was recounted to him.
Burnside: What did she tell you about her efforts to get you back?
Bruce: That she done every effort that she could to get me back but they just wouldn’t let me go back.
Burnside: Up to the time she told you that, what had you believed about whether she had tried to get you back or not?
Bruce: Very mixed up and hurt and angry.
Burnside: Before she told you that, did you think she had tried to get you back or did you think she hadn’t?
Bruce: Before that, I thought she never looked at getting me back.
Today, Thursday 10 November 2005, His Honour is about to hear those nine words for the first time. That time for quiet reflection is in the future. Burnside is asking questions; Bruce is giving his evidence in chief, now talking about his other, his foster, family.
‘When you were at home with the Davies, did you initially believe that you were their child, before you knew about your natural mother; what did you think you were in the family?’
‘I just thought I was part of their family,’ Bruce answers.
Why did Bruce not say, ‘I thought they were my family’? Why did he say ‘part of’? Why did he say ‘their family’? His Honour jots down his thoughts, to contemplate later. He also makes a note of Burnside’s question: ‘What did you think you were?’ Why not ask, ‘Who did you think you were?’ He underlines his jotted ‘what’ and ‘who’.
‘A broken man.’ These are the words Burnside used when he introduced Bruce as his first witness. Justice Gray looks at him now in the witness stand. ‘If you need a break when you are giving evidence, you let me know,’ he says. Bruce nods as if to affirm that the need will arise. It is also a silent thanks for understanding.
His Honour glances towards Burnside, who acknowledges the glance with his own nod; Gray is telling him to proceed.
‘Did you feel close to Mrs Davies?’
‘No.’
‘Did you feel close to Mr Davies?’
‘No.’
‘What sort of punishment would you get if you misbehaved?’
‘Get sent to bed with no tea. Flyswatted.’
‘Did you think you deserved it at the time?’
‘No.’
‘You didn’t, even when you were mucking up?’
‘No.’
Bruce does not elaborate. Burnside does not probe.
Why not? Justice Gray can see an opportunity to ask the supplementary question to find out more about how Bruce as a little boy thought of himself. But, as an experienced judge, he knows why not. Burnside wants to develop his narrative his way.
He moves the narrative forward tangentially. ‘Did you ever run away from home as a kid?’
‘Yes.’
‘Would you tell His Honour about that?’
‘I was a bit late from school, so I didn’t bother coming home so I run away from home and I stayed out all night. I was actually just down the road from the house. There was a place called Beck’s and I just hid in between the bushes.’
Many questions arise from that answer, His Honour notes. But Burnside does not want to stray from his narrative plan. ‘When did you go home after that?’
‘Early the next morning.’
‘What happened to you?’
‘I got the strap.’ Bruce feels no urge to elaborate.
Yet, in its terseness, the answer stirs Justice Gray. A fleeting moment in which he retu
rns to his childhood when, with the indulgence of his mum and dad—especially his mum, who, accepting the role that society assigned to married women in those days, was at home all day—he and his brother and sister ranged free through the neighbourhood streets, exploring nature, playing cricket, enjoying themselves. Like those free-range chickens he sees now on that television commercial. Free to roam, but dutifully returning home when called. In the absurdity of his reminiscence, he can feel for the young Bruce. As young Tom Gray, what would he feel had he put his parents through the anguish to which Bruce subjected Martha and Frank by staying out all night? And what about Martha? Bruce’s laconic replies to Burnside’s questions compel one also to think about her state of mind. Why did she sometimes frighten Bruce? Did her relationship with Bruce lack the forgiving love of her biological bond with her other children? Burnside has shown how Martha punished Bruce for infractions of her house rules. He did not ask Bruce whether she meted out the same level of punishment to her biological children for their infractions. No need. Let the question hang.
‘Did you feel close to Mrs Davies?’ Without hesitation, ‘No.’ Is this because that subliminal consciousness nagged at him that somewhere he had a real mother and Martha was not her?
Justice Gray thinks about these questions. There is a certain soullessness in the question-and-answer performance he is watching. But because of his reluctance to engage personally with Bruce’s feelings, Burnside can adroitly develop his narrative so that those questions present themselves. There is no need to try to look into his client’s soul; the answer will appear as his narrative develops.
So His Honour watches and listens to these exchanges without interjecting, even though some answers raise other questions that he would like to put to Bruce. He could figuratively descend from his judgment seat on high and interpose a question, or even questions, of his own. But this would disrupt the ordered orality of adversarial trial discourse, which is its accepted strength. In an adversarial trial, the question-and-answer format through which evidence is presented to the court is not a conversation. Rather, it is a performance. Counsel knows the answers to the questions they put. They have discussed with the plaintiff and established what the questions are before the trial begins. The performance is for the court, whether judge alone or judge and jury, to hear those answers from the witness directly. The answers, therefore, in the unvarnished vernacular, are straight from the horse’s mouth. Or, in the argot of the courtroom, counsel has not mediated the answers by putting their own slant on them. What’s more, counsel puts only those questions that contribute to their preferred development of the narrative, and which invite answers that are unlikely to transgress the rules of evidence or to open the way for the witness to ad lib. A well-phrased question encourages a short answer and reduces the chance of contradiction.