The department’s bean counters weren’t too fussed about that — Mrs Candoso was due to retire in less than three years, anyway. The major element of her damages was going to be the pain and suffering, and the ongoing difficulties she’d have to put up with for the rest of her life. Narelle had submitted her own assessment, advising her client to make an allowance for something in the range of $150,000–200,000 for that head of damage alone. With everything else (even public hospitals don’t come cheap when there’s an insurer in the background), it promised to be a half-million-dollar case, she’d predicted.
‘What happens if we win?’ Arabella asked the loaded question during the luncheon adjournment.
‘No risk of that, is there? Let’s be realistic and not legalistic — we don’t even have an expert report to counter Lenehan with. You can cross-examine him for two days, but we haven’t got a no-liability alternate hypothesis to offer. And all the rest — the damages and expenses — isn’t really in dispute. She was badly hurt, and I’m surprised she’s even willing to work two days. She’s a good stick, and Fairfax obviously thinks so.’ Narelle was distinctly complacent about defeat.
Her barrister wasn’t so sure. If there was one dictum that Arabella had adopted from Harry, it was that the duty of counsel was to win. Sympathy for the other party had nothing to do with it.
Meanwhile, back at the farm, Harry had a broken pump on his hands, and no water in the main tank. He wrestled with the little Honda two-stroke for a couple of hours, without success. He checked that there was fuel in the tank and even cleaned the spark plug. No joy there, so the best he could do was disconnect the water pipes, carry the pump up to his car, and drive the offending machine into Eden for a mechanic to look at it. It didn’t take long for the Honda to be pronounced dead. ‘It’s at least twenty years old,’ the mechanic told Harry. ‘It doesn’t owe you anything.’ Eight hundred dollars for a new one, and they didn’t have any in stock. A call was made to Bega, and Harry was promised that one would be put on the next bus south. Two hours or so to wait. He killed the time with a counter lunch at the pub and a long session in the supermarket. The bus and its cargo arrived on time. Installing the new pump back at Burragate was pretty easy, as it happened, and Harry had it running on the first try. He was inordinately proud of himself about that. He looked up to see that rusa deer had emerged from the national park on the other side of the river to watch him at work through the dusk.
Harry had a shower and changed his clothes before taking the den Boer brief out onto the verandah, opening the laptop and starting work. He was still bucked by having successfully replaced his pump, and approached the trial preparation with determination, enjoying the background accompaniment of the new two-stroke throbbing away quietly down by the river. Informing his efforts was the fact that his client, throughout all his discussions with David Surrey, had been absolutely unwavering in his protestations of innocence — ‘It was an accident! I thought I’d made sure the gun was empty!’ — so that Harry could only deliberate on his oft-expressed belief that an innocent man cannot be convicted.
Moths gathered in the air around the verandah light, and some fell dead on the table. Harry brushed the quivering bodies aside and kept working. He skipped dinner and spent the evening distilling the full-on evidential confrontations and typing them into the computer, two-fingered. There were five primary matters asserted by the Crown that he would have to counter: first, that his client had enlisted the victim’s help in patrolling the premises; second, that the two men had met on the far side of the building, each having patrolled one side of it; third, that den Boer had ever asked the victim what he was doing sneaking around in the dark, putting himself at risk of being shot; fourth, that he ever said ‘But I think I’ll shoot you anyway’; and finally, that he had deliberately taken aim and fired the shot that turned an active if unprepossessing young man into a depressed and hopeless paraplegic.
Harry took a break and made himself coffee. Strong, black. He took a handful of biscotti out of a jar (he’d bought a number of self-indulgences at Bi-Lo while waiting for the pump to be delivered) and ate them quickly in the kitchen. He poured a second mug from the plunger, and looked at the phone. He wanted to ring Arabella and ask how the first day of her trial had gone, but set himself the task of completing the primary stage of his own preparation before he did that. It would be something to look forward to.
He extracted from the brief Bruce den Boer’s handwritten statement and read it through slowly for the tenth time, at least.
The kid had been hanging around all night, they told me, since his shift ended at five o’clock. He was talking to the dispatcher and eating pizza and generally making a nuisance of himself. I started at 10.30 and he was still there. I asked him why he didn’t go home, and he said his mother was out at the club. He said she was always at the club. I took a car and went over to Canberra and did the rounds at the Civic shops, and got back about 11.30, 11.45. He asked me for a lift home. He loved riding in the patrol cars, with the 2-way and the aerials and all the badges on the side, and the ‘Armed Response’ signs across the bonnet and the boot. I said I’d give him a lift, but I wasn’t going to make a special trip to drop him off. He’d have to come with me on my rounds. I knew where he lived, out to the south of Queanbeyan.
Starting about midnight, I did the warehouses at Fyshwick. I didn’t ask him to help. He was saying he was tired, and he reclined his seat back almost flat and went to sleep. As I was driving towards Hot Adult Imports, or whatever it’s called, at Queanbeyan, he was asleep. I got out of the car and left my door open, so the light and the headlights were on. It’s very dark there — there are all these shrubs and low trees around the building. I had the Maglite, too. I went round the left-hand side of the building, and then I heard a noise like someone banging on corrugated iron. Lots of bangs, a bit like shots, but I knew it wasn’t shots. I put the Maglite on the ground and took out my revolver and flicked the chamber open. I held it pointing up, and shook all the bullets out into my hand. Then I put them in the side pocket of my parka. Uniform parka. I called out ‘Security. Anyone there leave at once.’ There was another noise, and this time I thought there might be someone inside the building. The offices are on the far side, away from the road, and I thought I saw a light or something moving inside, through the glass. I was scared at that time. I kept walking around in front of the windows, calling out ‘Security!’ but no one answered. It went very quiet. I was walking backwards, with a big bush behind me, or a couple of big bushes. I had the gun in my right hand, down by my side, pointing down. I took the bullets out because I thought I might have to show the gun to whoever was there, just to frighten them off, or whatever. I was stepping back with the gun still in my right hand, and at first I felt the branches of the bush at the back of my head and shoulders, then suddenly hands grabbed me from behind. One was around my neck, and the other around my right arm at about the height of my chest.
I turned around as fast as I could, but he had a good hold of me and I was having to fight with the man, and we were wrestling there for what seemed like a long time. I was trying to hit him with the gun, but I couldn’t get my right arm free. The man was sort of laughing, giggling. I couldn’t understand what was going on. I was still holding the gun, and I heard it go off. I have no recollection of pulling the trigger, because I wouldn’t have done that, I knew it was empty, or I believed it was. Obviously one bullet hadn’t fallen out. I’ve been told since that one of the guns at work had a problem, but I can’t say that was the gun I was issued that night. I don’t know. The police have got the gun. He said, ‘Oh shit, you shot me,’ and let me go. Then he just sat down on the grass, and I saw who it was. First thing I saw was his uniform. I went back to the car and radioed in, then I went back to him. He wasn’t saying anything. I told them to send an ambulance.
The police arrived first and asked me what happened, but I kept telling them to hurry up with the ambulance. The kid was passing out, off and on, and ther
e was blood all over his pants. The police kept me away from him. They kept saying we had a fight and I told them that was bullshit. After they took him off to hospital, I said something like I thought he was trying to get the gun off me, but I can’t really remember what I said. I know I told them it was an accident, over and over. They arrested me, and I was kept in a cell that night, but they let me go in the morning without charging me. They said they were still investigating, he was too sick to interview, and I wasn’t to leave town, and I said, ‘What is this — a Western?’
Harry typed a series of notes covering the matters he wanted investigated further. He thought about the expense of an expert witness to respond to the forensic issues — but DNA and fingerprints weren’t really controversial. Ballistics were going to be important, quite probably crucially important, given the story about the defective revolver, and the police seemed, from his experience, to have the monopoly there. It looked like another Harry Curry v The World extravaganza. He and Surrey were going to have to find the answers from their own resources. That’s what he wrote in the email to his solicitor covering the attachment headed ‘Advice on Evidence’.
‘God save us,’ Harry thought as he closed the laptop, ‘from innocent clients.’
At the District Court in Sydney, the first day’s hearing had wrapped up with the plaintiff’s evidence and cross-examination completed. Arabella had gone gently with her, given that there was little dispute over the pain and suffering she claimed, and that Mrs Candoso didn’t herself attempt to give evidence that could have proved the Department’s people to have been negligent in failing to recognise the dangerous condition of the tree. Fairfax DCJ had ungraciously agreed to adjourn early, having been told by the plaintiff’s silk that his expert, Mr Lenehan, wasn’t available before Wednesday morning. The judge had Ahearn tender the expert’s report so that he could read it overnight, but Arabella asked him to make its admission into evidence subject to the plaintiff proving the validity of its foundational assumptions.
‘What you’re talking about is his basing everything on the MFI — that fuzzy photograph of the stump?’ Narelle asked, as she and Arabella left the courtroom together. ‘Are you going to insist on the husband being called first, to prove that’s actually the right tree?’
‘I am,’ said Arabella. ‘If he’s weak on that, or even if Unfairfax agrees with me that no rational expert could make assumptions from a picture of such hopeless quality and no other evidence, the report can’t go in.’
Back in chambers, Arabella passed through the floor’s common room on the way to make herself a cup of tea in the tiny kitchen. One of her floor’s more senior members, Tony Nero, was sprawled in a battered armchair, reading the Herald. She made her tea and joined him.
‘Busy, Tony?’
‘No barrister ever admits to a lack of work, Engineer. My trick is always to look bad-tempered, so solicitors will think I’m run off my feet when, in truth, I’m depressed about my unfashionability.’
‘You did that big bushfire inquiry, didn’t you?’ Arabella asked. He nodded and turned a page. ‘So it’d be reasonable to expect you to know a lot about eucalypts, wouldn’t it?’
He put the newspaper down. ‘Try me.’
‘All right — have you ever had evidence about how to detect a dangerously rotten tree?’
‘What species?’
‘River red gum.’ She finished her tea.
‘If you go into my room,’ he said, ‘and look on the bookshelves behind my desk, you’ll find a slim volume, light brown in colour, entitled The Characteristics of the Knotty Core of Eucalypts. It is, I have always been led to believe, the bible. You’ll find it between Osborn’s Concise Law Dictionary and Rocky Elsom’s biography.’
‘Thanks, Tony.’
‘My pleasure, Engineer. Let me know how you get on.’
Arabella got on quite well. The civil trial resumed before Fairfax DCJ on Wednesday morning, with Mr Candoso called to detail his observations of the changes in his wife’s domestic performance since the accident, and to swear that the unsatisfactory photograph, already objected to by Arabella, was indeed taken by him the day following, and was of the only broken-off stump in the infants’ school playground. Ahearn SC renewed his tender, and the picture became Exhibit 2 for the plaintiff. ‘As to your complaint about the quality of the picture,’ the judge loftily told Arabella, ‘that’s going to be a matter of the weight I attach to it. It doesn’t render it inadmissible.’ Arabella had no cross-examination for Mr Candoso.
A man in a tweed jacket and wool tie had slipped into the back seats (made artfully from curved plywood, and phenomenally uncomfortable) of the depressing courtroom during Mr Candoso’s evidence, and the solicitor instructing Dismal Des held a muted conversation with him while he waited his turn in the witness box. When Mr Candoso was excused from further appearance, he stepped down and sat with his wife, taking her hand in his, and Mr Lenehan was sworn in.
‘You are Denis Lenehan?’
‘I am.’
‘You work as a consultant silviculturist, including as an expert witness on matters in your field of training, skill and experience?’
‘I do.’
Mr Lenehan was taken through his tertiary qualifications, professional experience, and publications. It took some time, and followed the shibboleth that it never hurts to dazzle a court with your man’s expertise — especially when the other side hasn’t a silviculturist of its own to contradict him. Or her. Harry would have made a show of waving away the need to run through Lenehan’s résumé, but the less experienced Arabella sat through it, making notes on her pad. The judge didn’t seem all that impressed by the exercise, but the plaintiff’s silk was earning his money. Subject to winning a verdict.
Ahearn SC next tendered the Lenehan report on the playground tree — it was marked as Exhibit 3 — and took its author in some detail to his conclusions.
‘You say that the dangerous condition of this tree must have been patently obvious —’
Judge Fairfax interrupted the question. ‘Yes, Mr Ahearn, I also noticed your witness’s tautology. Most unfortunate, but such is the standard that seems to apply in reports these days.’
‘Well, no, your Honour, that wasn’t what I was going to ask about. My question was directed to the factual basis for that opinion, however infelicitously it may have been expressed. If I may: what would have made the internal damage to the tree’s trunk — the rot you say can be identified in Exhibit 2 — apparent? Would there have been some manifestation on the trunk itself? In the bark?’
‘Do you want me to answer?’ Lenehan was confused by the exchange, which didn’t seem to be addressed to him.
‘If you’d be so kind, Mr Lenehan.’
‘Well, it’s hard to say.’
‘That’s your best answer?’
‘It’s a very technical question. There might, there might not.’
With a characteristically dismal look at his unhelpful expert witness, Des let it go at that, and sat down to keep a note of the cross-examination. He couldn’t for the life of him imagine what Arabella was going to put in issue, seeing she had no ammunition in the form of a contradictory expert report.
Arabella moved to the central lectern and opened her notebook. ‘Well,’ she said, with a look at the judge, ‘may I take you first, Mr Lenehan, to some questions as to your silvicultural expertise?’
Fairfax DCJ didn’t want to drag it out. ‘If you must, Ms Engineer. Do you undertake to the court that your proposed cross-examination will be relevant to a fact in issue?’
‘Certainly, your Honour. Expertise. Mr Lenehan, your CV sets out that your primary degree was awarded by Sydney University?’
‘Yes, it was.’
‘And your Masters was done at the Australian National University?’
‘It was.’
‘And you’re working on your thesis for a doctorate, supervised again at the ANU?’
‘That’s correct.’
‘Your pa
rticular field of expertise is not a large one, is it?’
‘Australian silviculture’s pretty specialised, yes.’
‘You would accept, would you not, the expertise in your field of the author of the monograph published by the CSIRO entitled The Characteristics of the Knotty Core of Eucalypts?’
‘Dr Martin Brooks. Yes.’
‘To put it as briefly as possible, Dr Brooks is an expert to whose opinion you would defer, isn’t he?’
‘Certainly.’
‘And you would defer to him on any question concerning the characteristics of growth in Eucalyptus camaldulensis?’
‘The river red gum? Yes, of course. He lectured me.’
‘And that applies even more frankly to any issue involving dendrochronology, does it not?’
Fairfax DCJ needed that one explained.
‘Dendrochronology, your Honour, is the study of ring structure in trees. Including eucalypts. Is that correct, Mr Lenehan?’
‘Yes, it is.’
‘Have I got this right, Mr Lenehan: northern hemisphere trees, by way of example, have characteristic annual, or growth, rings that one can see in their trunks, caused by what a layperson might call the stop-and-start growth patterns of the pronounced seasons in that part of the globe?’
Harry Curry: Rats and Mice Page 14