It was hot, walking back to the courthouse, and Harry carried his jacket rather than wearing it. The detective sergeant was waiting for them outside the courtroom, and handed over a small black notebook with a white police crest on its cover and a photocopy of a page headed ‘Exhibits Room Register’. Harry began with the notebook, checking first that it had belonged to Constable Grech. On a numbered page about halfway through, he found the entry he was looking for. He handed the other document back. ‘We won’t be needing that. Thanks. What about the duty book?’
‘Can’t get that till tomorrow, they tell me.’
‘We can live with that, Dave.’ Surrey nodded. ‘This’ll do for a start.’
‘You got much more for me, Mr Curry? Only I’m supposed to be up at Goulburn this afternoon.’
‘At the Academy?’
‘Yeah. Four o’clock.’
‘You should be right for that. Lights and siren.’
‘It’s 85 clicks.’
‘Then an hour’ll be plenty. I’ll have you away by three o’clock.’
But the judge was late, not resuming his seat until after 2.15. He looked flushed. Surrey put his head close to Harry’s and whispered, ‘Not a drinker, is he?’
‘Not that I’ve heard. But it’s years since I’ve been in front of him. You’ve seen him more recently than me.’
Surrey pulled a face. ‘He doesn’t look too good. And that was a long morning-tea break, too.’ He stood, bowed, and went to speak to his opposite number, the DPP solicitor, at the other end of the Bar table. While some housekeeping was being dealt with by the judge and counsel, the two solicitors whispered together. Surrey returned to his chair.
‘They reckon he’s got a problem. The instructor agrees that performance before morning tea was way over the top — when he insulted you and thought it was a great joke. Skyrne’s been down here for two weeks on circuit, and evidently he’s getting worse. He fell off his chair last week, and counsel had to adjourn the court. The associate didn’t know what to do. There’s some story about his daughter being killed in a car crash. The solicitor’s praying you’ll lay off any confrontation, or the whole thing’ll go pear-shaped.’
‘Easy for him to say. Poor old bugger. I’ll just have to do my best.’
The jury were brought back into court, and took the same seats they’d chosen after the morning adjournment, five of the women sitting together in the back row. The sergeant went back into the box, and Harry stood at the lectern.
‘Sergeant, have you located ex-Constable Grech’s official notebook and duty book?’
‘Just his notebook, Mr Curry. The duty book’s still being looked for.’
‘I call for the notebook, if your Honour pleases.’
It was handed to the sheriff’s officer, who took it to Harry. ‘One moment, please, your Honour.’ He turned to the page he’d found earlier. ‘What appears here, sergeant, is a note that the officer made, stating that he searched my client and found five bullets in the left side pocket of his uniform jacket.’
‘Yes, I’ve seen that.’
‘So your earlier assumption, which was that the constable took them from the gun, is proved to be quite wrong.’
‘It is.’
‘There’s a further record that the casing of a spent bullet was in the top chamber of the revolver.’
‘I saw that.’
‘You would agree, wouldn’t you, that there’s no evidence to contradict an assertion that my client had removed all but one bullet before the gun was fired?’
‘Why would he do that?’
The judge’s head jerked back, and he let fly. ‘Sergeant! You’ve been sworn in as a witness for the prosecution. You don’t ask any rhetorical questions in my court, and you don’t engage in argumentation with counsel. Do you understand that?’
The witness bowed his head and mumbled, ‘Yes, your Honour. Sorry.’
‘And let’s have no more of your ill-informed speculation as to the facts. From now on, you will just answer the bloody question. Get that?’
Harry and Surrey stared at each other, stunned. The jury looked as if their faces had been slapped.
‘He’s away,’ said Harry.
‘This is turning into a disaster, and it’s only day one.’
The judge took a drink of water. ‘Ask your next question, Mr Curry.’
‘Thank you, your Honour. Sergeant, is it the fact that there is no forensic evidence as to the state of the gun at the time it was fired?’
‘There’s a ballistics report the DPP got. And fingerprints of your client.’
‘Thank you, but I was asking about the state of the gun. Perhaps I should have been clearer —’
‘Yes, Mr Curry, no “perhaps” about it. You should.’ The judge again, his speech now indistinct.
‘But what I am interested in, sergeant, in particular, is whether you will now admit that the police have no evidence whatever of how many bullets were in the revolver at the time it was fired.’
The sergeant started to argue. ‘But it’s obvious …’ And then looked sideways at the judge and thought better of it. ‘No, we don’t.’
The judge muttered something that sounded like ‘For Christ’s sake’ and lapsed into silence, his eyes closed.
Harry waited for the eyes to reopen, then said, ‘Would your Honour give me a moment?’ He walked down to the Crown and bent close to his ear. ‘He’s obviously pissed. We can’t go on with this today. Have a look at the jury.’
The prosecutor looked across to his left. Most of the jurors appeared to be upset. Some were whispering together.
‘Well, I agree there’s something wrong with him.’
‘Don’t be a bloody wimp. Your solicitor knows it, you know it. He’s drunk, and everyone knows it. We’re going to have to do something.’
‘I’m not going to be quoted as agreeing with that.’
Harry gave him a contemptuous look as he straightened up. ‘I’ll do it, then.’ He went back to where Surrey was sitting, making a note on his pad. ‘The bloody Crown won’t dirty his hands with it, so I’ll have to take it on.’ He waited for Skyrne-Jones to make eye contact.
‘You have any more questions for this witness, Mr Curry? Otherwise, I’ll let him go.’
Harry shook his head. ‘No, your Honour, I haven’t finished. But I’ll have to ask you to send the jury out. I have an application to make.’
‘Make it now.’
‘No, your Honour. It would be inappropriate to make it in front of the ladies and gentlemen.’
‘Either make your application, Mr Curry, or get on with the cross-examination.’
‘I’ll write it out, your Honour, if you’ll give me a moment.’
A grunt from the bench. ‘Very well.’
Harry wrote on his pad: I believe your Honour to be indisposed, and ask that you adjourn the court immediately. He tore out the page, folded it twice then gestured to the sheriff’s officer who took it from Harry and handed the paper to the associate. She started to unfold it.
Harry raised his hand. ‘No, Madam Associate, please hand it to his Honour.’ She gave him a glare, but handed it up.
Skyrne-Jones QC, DCJ, the once much-admired commercial-appellate silk robbed of his rightful place as a Judge in Appeal, fumbled with Harry’s note, but managed to unfold it. He stared at it for several seconds before realising he was holding it upside down. He turned it in his hands and appeared to read it.
His eyes met Harry’s. ‘Your application’s rejected, Mr Curry. Ask your next question. And you can have your note back.’ The judge thrust the note, still unfolded, at his associate.
‘Will your Honour have it marked for identification?’
‘Whatever you want, Mr Curry.’ The embarrassed associate stapled an identifier to the note. Then she started to read it, which Harry did not want her to do.
‘If you please, Madam Associate, my instructing solicitor will take custody of the MFI. It’s not essential for you to read it.’
/> The associate, chagrined, folded and handed the note to the sheriff’s officer, who held it at arm’s length as he carried it across to Harry. Harry thanked him and gave the note to Surrey.
‘What am I supposed to do with this?’ he whispered.
‘Take good care of it. Put it in an envelope and seal it. I pray they won’t, but the CCA might need to see it in due course.’ Harry also kept his voice down.
‘Oh, sure, I can just see the Court of Criminal Appeal reading your first ground of appeal: that the learned trial judge was inebriated.’
‘Maybe the jury’ll save him. I don’t think I can.’
For the rest of the afternoon, Skyrne-Jones sat in sullen silence. It was obviously an effort. From time to time, he gripped the edge of the bench with both hands. Harry took the sergeant through the questions he had planned, with no particular success or failure. By three o’clock he had finished, as promised, the witness was excused, and the Grech notebook had been entered into evidence.
The Crown called his next witness, and Senior Constable Tunks was sworn in.
‘You are a scientific officer attached to the Queanbeyan Local Area Command?’
‘Yes.’
‘Your duties — do they include taking photographs of crime scenes?’
‘They do.’
‘On the third of October, did you photograph a motor vehicle and premises in Parkview Close at Queanbeyan?’
‘Yes, I did. It was the early hours of the fourth, actually.’
‘I show you this group of photographs. Do you recognise them?’ The prosecutor handed up a folder of clear plastic sleeves in which were inserted some twenty pictures, obviously taken at night.
‘Yes, those are the photographs I took.’
‘I tender those.’
‘No objection.’ Harry already had his photocopied set of the pictures.
‘We have twelve sets for the jury, your Honour, and another for the court.’ The prosecutor gave them to the court officer.
The judge left his associate to give a number to the exhibit. He didn’t look at his set, but pushed it to one side.
The Crown continued. ‘I shall give the jury time to look at the pictures, if your Honour pleases.’ No response, so the twelve sets of pictures were passed from hand to hand along the two rows of chairs occupied by the jurors, and they turned the pages of their copies slowly. Eventually, when they all looked up, the Crown asked another question.
‘Did you also take measurements at the scene, and draw up a plan from those measurements?’
‘I did.’
‘I show you this document.’ The Crown held his hand out, and his instructing solicitor put an A3 sheet into it. It was handed on to the court officer and eventually the constable checked it over.
‘Yes, that’s the plan I drew. From the measurements I made on the night.’
It was tendered and given an exhibit number by the associate, and the jury each received a copy. The defence had theirs in front of them. Time was again taken to study the drawing. Again, Skyrne-Jones simply pushed his copy to the edge of the bench.
‘That’s the evidence of this witness.’ The Crown sat.
Unbidden by the judge, Harry rose and asked his first question. ‘Just turn to the first picture in the photographic exhibit, please — it shows the security company’s patrol car.’
The witness complied. ‘I’ve got that.’
‘That’s the car as it was parked at the scene when you arrived?’
‘Yes.’
‘I note that you haven’t indicated that position on your plan of the premises. I’ll have you handed back that exhibit, and I’ll get you to do the best you can to mark on the plan the precise location of the car. You’ve got a pen, have you?’ The witness nodded. When the exhibit was handed to him, he duly marked it, taking care to draw a little police-style car symbol with one pointed end indicating its front. The plan now located the car in the parking lot on the south side of the building at an angle of about 45 degrees, facing north-east. Harry had the amended drawing returned to him, noted the car’s position on his copy, then passed it down to the Crown to make his own note. There was no objection when Harry re-tendered the exhibit, as amended.
‘Were the headlights on when you arrived at the premises?’
‘No. I think the car’s battery was flat by then.’
‘So you can’t say whether they’d been left on or off?’
‘No, I couldn’t say.’
‘Will you look now, please, at the fourth and fifth photographs in that folder. In my copy, they’re of the interior of the car, taken through the open passenger-side front door.’ The jurors and the witness turned to the pictures.
‘Yes, two interior views. It’s only a two-door car, actually.’
‘Quite so, thanks. Do those photographs show the condition of the car as it was when you arrived?’
‘Yes.’
‘With the passenger’s seat reclined almost flat?’
‘Yes.’
‘As if someone had been sleeping in it?’
‘Yes, I suppose so. I couldn’t say if anyone had been.’
‘Did you discuss the way that seat was with Constable Grech at the scene?’
‘Is he the uniformed bloke?’
‘He was at the time, yes.’
‘I’m pretty sure we did talk about it. He made a bit of a joke about the security fellers sleeping on the job, if my memory serves me.’
The Crown objected. ‘Hearsay, your Honour.’
Making an obvious effort, Skyrne-Jones wordlessly waved the objection away.
‘Can the jury take it, Senior Constable Tunks, that Grech made no suggestion to you that he or anyone else had changed the position of the passenger seat?’
‘No he didn’t.’
‘You would reasonably expect, wouldn’t you, that the officer who was at that time in sole control of the crime scene, and was the first to arrive there, would raise something like that when the scientific people showed up to take photographs and measurements?’
‘You mean, if he’d changed anything in the car? Certainly he’d tell us if it had happened. I’m sure anyone would.’
‘Indeed. Now can I ask you this?’ Harry pressed on, keeping half an eye on Skyrne-Jones, who had resumed his look of torpor. ‘Your drawing doesn’t indicate any tap at that location, does it?’
‘I think it does. Can I see it again?’ It was handed back to him. ‘There,’ Tunks said, putting his index finger on the drawing.
Harry sought the judge’s leave to approach the witness and received a token nod. Mr Crown joined him at the witness box.
‘Will you just point it out again for us?’
The witness did so. ‘That’s the symbol for a tap.’
‘Might the transcript show that the witness pointed to the south-west corner of the building?’
‘I agree with that,’ said the Crown.
Harry had the senior constable add the word ‘tap’ next to the symbol on the exhibit. Then he held up the drawing for the benefit of the jury, and some of them made marks on their own copies. One juror, a young man in a T-shirt, held up his open folder of photographs, pointing at one. Harry went back to the Bar table and retrieved the defence copy of the pictures.
‘Senior constable, I think a jury member wants to draw our attention to photograph 3.’ Everyone (except the judge) turned it up. ‘Ah, yes. Do you agree that a tap’s visible at just about the point you indicated on the plan?’
A gratified witness, pleased that his evidence had been corroborated by the photograph, agreed.
‘Now, still on that subject, was there a hose anywhere? I can’t see one in that picture, or any of your photographs. Particularly not something so noticeable as a white hose.’ The jury flicked through them all.
‘No. In fact, I asked the manager of the company about that.’
‘Yes?’
‘And he said something about they’d had a lot of hoses stolen, so they didn’t leave
them out any more. Hadn’t for years.’
‘Indeed.’ Harry let that sink in with the jury. ‘So if it were claimed that Mr Kellaway got out of the car, which was facing north-east, and used a hose, perhaps a white hose, which was visible in the car’s headlights to get himself a drink of water, it would necessarily have been on the south-east corner of the building, wouldn’t it?’
‘Yes.’
‘At the very opposite end of the facade from the only tap?’
‘Yes.’
‘And, even more to the point, there simply wasn’t a hose anywhere there.’
‘Not when I was there.’
‘Thank you, senior constable. That’s the cross-examination, your Honour.’
The Crown stood, waiting for Skyrne-Jones to invite him to re-examine the witness. The judge’s eyes were shut, so the prosecutor decided to simply go ahead unbidden. Harry raised no objection.
‘Senior Constable Tunks, all you can say is that you saw no hose. It could have been removed between the time the security patrol arrived there and your own arrival.’
Harry was on his feet. ‘Are we going to be read Alice in Wonderland? In any event, I object to leading.’
The judge maintained his silence, although his eyes were open. His associate swivelled in her chair to look at him again, but quickly turned back towards the barristers, a helpless look on her face. Harry moved from his position to speak to the prosecutor in a voice neither the bench nor the jury could hear.
‘Look, Brett, we’re going to have to run this ourselves for the rest of today, and keep out of trouble. If this has to go on appeal, everything we do’s going to be under scrutiny by the three wise men. You know that question’s objectionable. Just withdraw it, on the record, will you?’
The prosecutor (whose name was Brad, not Brett, but this was hardly the time or place to point that out) thought about his position, and could see the force of what Harry had said. ‘For the record, I withdraw the question. I have no further re-examination.’
Harry pointed at his watch, and his opponent nodded and faced the judge. ‘Your Honour, I notice the time.’ It was not yet half-past-three on a day when the court sits until four. ‘Would that be a convenient moment to adjourn for today? There might be a short delay before my next witness can be brought here.’
Harry Curry: Rats and Mice Page 18