‘Why not?’
‘Because the box is for losers. You don’t win trials by talking your way out of it, or by calling alibis, whatever the great unwashed and the population of Long Bay believe. You win trials by keeping out evidence of guilt. Full stop.’
‘But the fingerprint evidence’s admissible, isn’t it? I can see no way we can object to it.’
‘True. But if you call him, what could your client say to negate it?’
‘That he did some innocent courier work for the phone business, that the shop manager gave him faulty mobile phones wrapped in plastic bags to take to the menders, and that’s where the prints must have come from, because he knows nothing about any drugs. Those are his instructions.’
‘The credible hypothesis consistent with innocence being that his brother’s mate, the Chinese New Zealander, Lee Phat or whatever his name is, who turns out to be the principal drug dealer, used plastic bags in his phone shop, and your client did some work for that perfectly legitimate business, as distinct from the naughty business of ice dealing?’
‘Yes.’
‘Then call the manager to say so. He’s not under suspicion, is he?’
‘Not so far as I know. I’ll check with David, but I’m sure that’s the case. He’s a white Australian, doesn’t even work there any more. How could he? The shop’s closed down. But why not call Craig as well? He’s well spoken, a nice boy.’
‘No. That way, you expose him to cross-examination, and that’s the last thing you want.’
‘Surely, Harry, it’s better to have two witnesses giving an innocent explanation for the jury to weigh? Not just the manager?’
‘Think about it, Bella: on what basis can the Crown put to the manager that he’s not telling the truth? How could they possibly have any basis for contradicting what he says? They can’t challenge his evidence just because they don’t like it — there has to be some proper basis for it before the prosecutor can suggest to the jury that the witness’s not to be believed.’
That went back and forth for a while, from Phillip Street to Burragate, with Harry increasingly insistent that Arabella not even consider putting her client in the witness box. The debate then returned to the fingerprint expert’s evidence.
‘Have you planned out what you’re going to ask?’
‘I’ve got all the headings.’
‘Not good enough. Write out your questions. And when you’ve done that, ring me back and we’ll settle them. Tomorrow or Sunday. The other thing is to write the outline of your no case to answer submissions. The pearls to cast before the swine. This has to be really carefully controlled, Bella. We have to look well past the trial, now that we know the trial judge’s the immediate problem. The insuperable obstacle to justice.’
‘Set it up for the appeal?’
‘Probably inevitable. Still, you’ve got one great advantage when you get up there.’
‘Which is?’
‘The judges in appeal are lawyers.’
‘Indeed. But I’ve still got a very big problem, Harry. You’re not going to like it.’
Harry, in the kitchen at Burragate, stood for the first time in more than an hour and took the cordless phone over to the refrigerator and got himself a beer. He looked out and noticed that the light was fading. He opened the beer and resumed his seat, elbows on the table.
‘Yes?’
‘I thought we’d been cut off.’
‘No, I was just getting a beer. Go on — what’ve you done that’s going to upset me?’
‘I told the family we were going to win.’
‘I see.’
A long pause. ‘You were so confident that there was no case to answer, Harry.’
‘There isn’t.’
‘Well, then.’
‘Do I really need to say anything, Bella?’
A shorter pause. ‘No, you don’t.’
Harry took a pull at his beer. ‘The first of the bogong moths came through here last night,’ he told Arabella. ‘Those that didn’t immolate themselves on the verandah light. They’re migrating. Autumn’s coming.’
‘You’ll have to explain that to a Pom.’
‘I’d prefer to show you. Will you be down before the baby’s born, do you think?’
‘Dr Rose gave me three weeks. That was last Monday.’
‘Two weeks, then.’
‘One week of which will be taken up with Nguyen at the suit of Her Majesty. So it doesn’t look good, I’m sorry. The airline wouldn’t take me, anyway.’
‘It’s not an international flight, Bella. And I could have Pambula Hospital standing by. That’s if the government hasn’t closed it down.’
‘I want my own doctor with me, Harry. And the father.’
David Surrey, sitting behind his counsel in court, couldn’t have been more impressed with Arabella’s conduct of the defence. As the prosecutor efficiently built her case against Craig Nguyen of knowingly taking part in the supply of 941.13 grams of a prohibited drug, viz. methylamphetamine, the defender painstakingly set up her client’s long-term strategy, reluctantly accepting that, being at the mercy of Acting Judge Magee, it was better to prepare for the worst than vainly hope for the best. Surrey knew she’d been given detailed riding instructions from RonLyn, and was carrying them out to the letter.
At the end of each session, the defence solicitor and counsel compared notes. At lunchtime on day two, Surrey noticed that Arabella winced as she sat down, lecture pad in hand, at the tiny café across the road from the Edwardian department store building, the former Mark Foy’s, that had been converted into criminal courts of the Downing Centre. The Emporium de Justice, H Curry was wont to call it.
‘Are you all right, Bella?’
‘Baby stuff, David. Don’t worry, my doctor says the head’s not engaged yet. We’ll get through this. There’s still plenty of time.’
‘Nance is not happy with me, you know. Says it’s an outrage, me asking you to run this thing so late in your term. God help me if something happens.’
‘It won’t. Nothing unexpected, at least.’
‘If you say so.’ He looked at his yellow pad, then back up at Arabella’s face. ‘So where are we? Much more in their case?’
‘Well, they’ve established the narrative: Chris Lee was under surveillance, they followed him into the basement of the Mosman building, they made him open the storage unit, and the Aladdin’s cave was revealed. No factual issues so far. The drug analysis is established, and the weights of drug in each of the seven parcels.’
‘Never was any basis to attack any of that.’
‘No. Really, all that’s left is establishing the nexus between Craig and the seven plastic bags.’
‘Just the fingerprint evidence. You got some great stuff from the surveillance blokes, Bella …’ Surrey turned back a few pages of his pad and read from his neat notes, arranged on the page in bullet points: ‘Senior Constable Lambie admitted they had no evidence that Craig had anything to do with the premises; he admitted none of the client’s prints were found on any surface within the premises; he admitted there was no DNA linking him with the premises …’ He looked up. ‘That was marvellous, when Magee had a go at you about your DNA question. You’re turning into Harry Curry!’
‘Not entirely sure that’s such a compliment, David. Anyway, you’re the one with the note of what he said — I can hardly ask questions and keep a transcript at the same time, can I?’
‘Here it is …’ Surrey had gone back a few more pages. ‘Defence asks, “Detective Lambie, do you agree that your evidence would have been stronger if you’d done the CSI thing?” Then the judge interrupts: “What do you mean — ‘the CSI thing’, Ms Engineer? I don’t know what you’re talking about.” And you said —’
‘I know what I said, David.’
‘You said, “Don’t worry about it, your Honour. The jury knows exactly what I mean.”’
‘As they did. They all do. CSI Miami, CSI NY. Everyone watches it. The public defenders
gave us a talk last week, and — on purely anecdotal evidence, gathered at the pub after acquittals — said that twenty-first-century juries think that if the police haven’t got DNA, or electron microscope images, or fibre or soil technology, they haven’t got a case.’
‘All the same, the rejoinder was pure Harry.’
Arabella put her left hand on her baby and stroked her black dress while she made a note. For this trial, she had left her tightly fitted Bar jacket in her chambers wardrobe, and was wearing her court gown over a plain black dress. Armani, but plain. Surrey thought it didn’t look right, somehow. A sort of white stock tied around her neck instead of the jabot. Regimentally noncompliant.
‘So just the fingerprint bloke this afternoon, then they close their case?’
Arabella nodded. ‘Then it’s my turn. Wish me luck.’
The interior of the Downing Centre is ambiguous postmodern. In some courtrooms, the old department store’s ornate high ceilings remain in place, with a hint in the polygonal form of their supporting plaster columns, terminating in stylised Egyptian capitals, of art nouveau. The joinery is in blond-and maroon-stained veneer, and the Bar tables are curiously lenticular in shape. The jury boxes almost overhang the advocates, and the docks remain an uncomfortable environment for the accused. Television screens are fixed to the walls, occasionally enlivened to replay a DVD of investigators executing search warrants, or detectives conducting their interrogations. David Surrey told Arabella that his favourite career-criminal client was a Mastermind quiz fan, and had once answered every difficult question in a video-recorded interview with the terse and rapid-fire ‘Pass’.
Arabella waited for her learned friend to complete the fingerprint man’s evidence in chief, and resume her seat, satisfied that she’d proved beyond reasonable doubt that the accused, the young and admittedly Asian man over there in the dock in a neat suit, tie and haircut, had handled seven packages of drugs and was thus a knowing participant in a major supply of ice. The young man’s defender (that’s the way it’s getting, Magee had thought, all women these days, and still working when they should be at home waiting for their babies to arrive) stood and moved awkwardly to the lectern, taking her open folder with her. She arranged it in position, then looked up at Acting Judge Magee. He waved his pen impatiently, and Arabella turned to the policeman and addressed him in a mild tone.
‘Detective Petrosian, it’s true isn’t it, that there’s no way of telling from the surfaces on which you found my client’s fingerprints when those prints were applied?’ This was the man dying of lung cancer, and she wasn’t going to strike any sparks in questioning him. No need to, Harry was adamant.
‘No, Ms Engineer, you can’t. The only thing you can take into account is potentially the age of the object itself, but you can’t tell the age of the print.’
Arabella looked at the jury. Harry had told her that he’d observed one of the great cross-examiners thank the witness at significant moments, thereby asserting to the jurors that the answer he’d just got was to his client’s advantage.
‘Thank you, detective. Something like the plastic bag you’ve got in front of you — there’s no way in the world, is there, you could ever say when the print went on it?’
‘No. If you knew when the bag was made — or sold at a certain time, say — if you could trace all that information then you could narrow it down, but you can’t tell exactly when the print was put on there.’
Arabella didn’t thank him that time, fearing it may be over-egging it a bit. ‘Another thing you can’t advance any opinion on is where the bag was when the fingerprint was applied to it.’
‘Oh, no.’
‘Thank you. A third thing upon which you can’t advance any opinion is what was in the bag, if anything, when the print went onto it?’
‘No, that’s right.’
‘So the prints you found on these bags, all seven of them, might have been applied at a time when the bags were empty — correct?’
‘Correct.’
‘And they could have been touched at some location nowhere near the storage unit in which they were eventually found after someone had put drugs in them?’
‘Right.’
The prosecutor was slow to get to her feet and object, but object she did at the urging of her instructing solicitor, yet not before her opponent had thanked the policeman for the third time.
‘I object. Your Honour, that question assumes a fact that hasn’t been proved.’ In truth, Madam Crown wasn’t sure what objection she was supposed to take, but she was sure the question was objectionable, and the one the solicitor had hissed at her seemed as good as any.
Magee wasn’t following. He’d never cross-examined in his life, never taken an objection in his life. ‘What do you mean, Madam Crown? I don’t quite follow.’
The prosecutor looked at her instructor with her eyebrows raised in a manner seeking endorsement. ‘The question assumes the drugs were put in the bags at the storage unit, your Honour.’
‘Does it?’ Magee frowned.
‘No, it doesn’t, your Honour.’ Arabella was on her feet. ‘All I’m doing is making it plain to the jury that this circumstantial case fails to prove any contemporaneity between my client’s act of touching the bags and the bags being found with drugs in them.’
‘Contempt what?’
‘No, with respect, contemporaneity. Simultaneity, if you prefer.’
‘No, Ms Engineer, not really,’ Magee grumbled. ‘I suppose the jury’s following this.’
Several nodded that they were, and an older woman in the back row beamed at Arabella. Surrey gave his counsel a ‘maybe the tide’s turning’ look, but she shrugged with one shoulder and glanced down at her next question, settled — as they all had been — by her consultant on the Far South Coast.
‘If I may proceed, with your Honour’s leave?’
Magee noted that Madam Crown had not risen from her seat, so waved Arabella on.
‘Thank you, your Honour. Now, detective, just so the jury’s quite clear on the effect of your expert evidence: all you can say for certain is that Mr Nguyen touched those seven bags?’
‘Yes, he did.’
‘Thank you. But not when he touched them?’
‘No.’
‘Thank you. Nor where he touched them?’
‘I agree to that.’
‘Thank you. Neither can you say that the bags were not empty when he touched them?’
‘I agree to that.’
‘Thank you yet again. And you cannot say, can you, that others did not touch the bags after Mr Nguyen touched them?’
‘I agree to that.’
Arabella asked the judge for a moment, and bent over to speak to Surrey. ‘Anything else, David?’
‘Done all Harry’s questions, Bella?’ It wasn’t implicitly critical, for they both knew the strategist’s plan needed the support of the foundation he’d specified and fine-tuned. ‘I reckon you’ve covered it all.’
‘Done my best, I hope.’ She turned to the judge. ‘That’s the cross-examination, if your Honour pleases.’ She returned to her seat, taking her notes with her, then was quickly back on her feet. ‘Might the witness be excused, your Honour? We don’t want to keep him here unnecessarily.’
A grumbling noise from the bench, and a sharp query whether the Crown would now close its case. It did, and Arabella got back to her feet as Detective Petrosian left the room. ‘I have an application to make, may it please your Honour, in the absence of the jury.’
‘What is it, Ms Engineer? What do you want me to do?’
Silly man, she thought. You’ve invited me to tell the jury what I’m asking for. Thanks. ‘The application is that your Honour will direct the jury to acquit my client, on the basis that the Crown has failed to establish a case for him to answer.’
‘I see. Well, officer, I think we can let the jury go for today. Back at ten to ten tomorrow, please, ladies and gentlemen.’
They were shown out. Now came the ar
gument.
Arabella returned to the lectern, opened her folder and extracted a sheaf of papers. She handed the court officer, for him to hand to the associate and for the associate to hand up to the judge, the outline she’d typed up of her submissions that the judge must now halt the trial and direct the jury to acquit her client. The no case to answer application. Arabella herself gave two copies to the prosecution end of the table and one to Surrey.
‘I shall speak to that outline, may it please you.’
For the next forty minutes, taking all the time left until the judge adjourned the trial at five minutes past four, Arabella presented a compelling and well-argued submission that this was an entirely circumstantial case, a ‘He must have done it’ case as distinct from an ‘I saw him do it’ case or a ‘He confessed that he did it’ case, and that the only evidence suggestive of guilt was that Mr Nguyen had touched seven bags that were later found in a storage unit at a time when they contained smaller bags filled with a prohibited drug. The High Court had made it plain, Arabella contended, not least in the Lindy Chamberlain appeal case (‘That’s the Seventh Day Adventists who blamed the dingo, isn’t it?’ Magee had asked) that if — in a circumstantial evidence case — there was an alternative hypothesis for the existence of that evidence, and the alternative hypothesis was consistent with innocence, no conviction could stand.
‘It comes to this, your Honour —’ she picked up a buckram-bound volume of law reports and opened it at the page where a post-it had been placed, ‘“— In a circumstantial evidence case, the jury should be directed that the inference of guilt must be the only one reasonably open on the facts before the jury can return a verdict of guilty.”’
‘What’s your authority for that, Ms Engineer?’
‘Again, the High Court of Australia in Chamberlain.’
‘But that’s not a drug case, is it? That’s correct, isn’t it, Madam Crown? I could use your help here. That was a murder case.’
Arabella sat down, speechless at the incompetence of the acting judge. The prosecutor was no more impressed than she.
Madam Crown stood and chose her words as carefully as she could. ‘No, Chamberlain wasn’t a drug case, your Honour. Not that I would contend that fact is of any relevance when you’re considering the principle of the sufficiency of circumstantial evidence.’ She sat down, shaking her head. She had seen the force of the defence submission, and knew she couldn’t rebut it.
Harry Curry: Rats and Mice Page 26