MURDER BRIEF

by Mark Dryden

  However, despite that, he usually felt jittery on the morning of a murder trial, though he wasn't one of those barristers who habitually threw up into bathroom sinks. His nerves usually lasted until he started talking in court. Listening to his own voice always calmed him down.

  That Monday morning, he woke and immediately felt queasy. Bile tickled his tonsils before receding. Squadrons of butterflies did aerial acrobatics in his stomach and refused to land. God, he wished he’d gone into another profession - any other. Instead, he now had to suffer for his ambition, vanity and greed.

  It was vital during a big trial to eat regularly and not lose weight. So he shuffled into the kitchen and forced himself to eat a few pieces of toast, washed down with orange juice. After showering, he dressed and headed for his chambers.

  He arrived just after eight. On the metal court-trolley in the corner of his room were four ring-bound folders containing his whole brief. No point re-reading them and wasting precious mental energy.

  To distract himself, he sat at his desk and tried to read the sports section of the Sydney Morning Herald. But his nerves refused to settle. He stood and stared out his window at the ant-like pedestrians scurrying along Phillip Street, heading for their offices to shuffle paper, drink coffee and gossip about their weekends. Too bad he couldn’t join them.

  However, before long, his natural self-confidence started creeping back into his system. He’d appeared in murder trials before and survived. Indeed, he’d been brilliant before and would be brilliant again. No reason to think this trial would be any different. He’d be fine.

  He started pacing around his room, practicing his opening address to the jury, and was still mumbling to himself when the door opened and Robyn entered, fully robed.

  For the last two days, he'd been too preoccupied with the trial to reflect much on Friday night. But he strongly suspected that her rejection of him was not final. Indeed, the big problem was his timing. After all, propositioning her just before the trial - when they were both under so much pressure - was unforgivably dumb. No wonder she reacted so hysterically.

  Now, he had to wait until the trial was over and then delicately - yes, delicately - declare his love. Surely she’d succumb.

  Still, he looked for some sign she was angry or upset with him and saw none - just tension and excitement.

  She said: "Hi. How’re you feeling? Get much sleep?"

  "Enough. You?"

  "Not much. Only a couple of hours."

  "Well, I bet you slept more than our client."

  "Yeah, he must be terrified."

  He couldn’t just ignore Friday night. "Look, umm, about Friday night: I’m sorry if I offended you."

  She shook her head. "Forget about that. I already have. We’ve got to focus on the trial. We can talk about that sort of stuff afterwards, OK?"

  "We can?"

  "Yes."

  It looked like he was right: the only problem was his timing. He felt much better. "OK."

  "Good, now, do you want to talk about the case?"

  He preferred a distraction. "No point. The die is cast. What did you do over the weekend?"

  Robyn gabbled for a while about how she shopped on Saturday and spent Sunday at home. He tried to focus on what she was saying, but his mind kept drifting towards the day ahead.

  Just after nine o’clock, Brian’s secretary, Denise, popped her head through the doorway and said Bernie Roberts and their client had arrived. Brian told her to send them in.

  Soon afterwards, Bernie led Rex Markham into the room. Rex wore a light-blue business suit and dark expression. Large pouches underlined reddish eyes. But his bearing and gait were steady, suggesting he wouldn’t crumble under the pressure. Brian was relieved. He hated having to fight a case while propping up a fragile client. That was exhausting.

  Brian had warned Rex that, when the trial started, he’d be remanded in custody, so Rex carried a small overnight bag.

  Brian and Robyn said hello.

  Rex responded with a concrete smile and damp handshakes. "God. So the day has finally arrived."

  Brian said: "Yes, soon be over."

  He asked everyone to sit in the chairs facing his desk. Then he sat behind the desk and explained to Rex how, in court, Rex would be arraigned, the jury empanelled and the trial commence. Rex kept nodding, but obviously wasn’t taking much in.

  At 9.45am, Brian told everyone it was time to go. He quickly robed, picked up his bar bag and led everyone out of his room. Bernie pushed the metal trolley.

  On the pavement outside, Brian turned right and headed towards the old Supreme Court building, less than 50 metres away. Roiling around its entrance was a huge media pack. They saw the Markham party and scurried forward. The case was sub judice, so the reporters didn’t bother asking questions. Instead, cameramen and photographers fanned out and aimed their lenses at Rex.

  Brian had a theory that television made people look like they were walking fast and thus scurrying to get away. So he led his little party at a funereal pace through the media throng and up the steps into the main foyer.

  The Banco Court, built in the 1860s, was the most splendid courtroom in the state. A large skylight was embedded in an ornamental wrought-zinc ceiling. All the furnishings were made of polished cedar, including a massive carved canopy above the judge’s bench. On the judge’s right was an elevated jury box, facing the dock. A raised public gallery jutted out over the well of the court.

  When Brian entered, the Crown Prosecutor, Sam Mahoney SC, was already at the Bar table, wearing his customary smirk.

  One of the first illusions Brian lost when he joined the Bar was that prosecutors were impartial and honest. He soon discovered they liked winning as much as anyone and didn't care how they won.

  Mahoney was one of the worst of the breed. A devout Catholic, widely known as "the Pope’s Prosecutor" or "the Mad Monk", he truly believed God had chosen him as an instrument of wrath. For him, trials were an apocalyptic struggle between the Forces of Light and the Forces of Darkness, the Children of God and the Spawn of the Devil, with the fate of Christendom in the balance. He took far more guidance from the Old Testament than the Crimes Act.

  Certainly, like all fanatics, he believed that ends justified means and was happy to misrepresent evidence, hide unpalatable facts and lie to opponents. God knew and understood.

  A few months ago, Brian clashed with him during a trial, because Mahoney kept flipping through a bible while Brian was extracting evidence from his client. Brian asked the judge to discharge the jury on the basis that Mahoney was trying to influence the jury; the judge agree.

  Brian never liked it when someone else pulled a dirty trick in court and was always anxious to claim the high moral ground. So, out in the hallway, he called Mahoney a professional disgrace. The two barristers then engaged in some fairly pathetic pushing and shoving until their solicitors dragged them apart.

  Sitting next to Mahoney at the bar table was his regular junior, Angus Tucker, tall and spindly with a bushy beard. Brian knew nothing about him and had never heard him speak. He was just a spooky presence.

  When Brian sat at the bar table, Mahoney smiled. "Hello Davis. How are you?"

  Brian half-smiled. "In a bad mood."

  "Oh, really? Why?"

  "Because you’ve dragged my poor client down here on a trumped up charge. You should be ashamed of yourself."

  Mahoney’s smile widened. "Come off it. He’s a murderer, and I can prove it."

  "We’ll see."

  Mahoney’s grin turned malevolent. "In fact, I feel especially confident about this one."

  "Why?"

  "Oh, I’ve got something up my sleeve."

  "What?"

  Mahoney waved airily. "You’ll find out, in good time."

  Brian glared. "No, I want to know now. You’ve got a duty to disclose all relevant information."

  Mahoney looked smug. "Don’t worry. I’ve complied with my duty. I always do."

  Did Mahoney
really have something up his sleeve? Was Brian walking into a trap? Such claims were usually a bluff. But Mahoney was a sneaky bastard and sounded particularly confident. Maybe he was planning an ambush.

  However, no point jumping at shadows. The die was cast.

  At ten o’clock, Justice Dobell trudged solemnly onto the bench and sat down. He was a thin, hatchet-faced man with the politeness of a coiled snake. His gaze travelled along the Bar table to see who might give him trouble.

  Mahoney announced that he appeared for the Crown with his learned junior, Mr Tucker.

  Brian rose. "Your Honour, I appear for the accused, with my learned junior, Ms Parker."

  The judge said: "Alright, Mr Davis. Your client here?"

  Brian nodded towards Rex Markham, sitting behind him, next to Bernie Roberts. "Yes, your Honour."

  "Good. Please ask him to step into the dock."

  Bernie guided their client into the dock.

  Mahoney passed the indictment of murder to the Judge’s Associate, who arraigned the accused by reading it out and asking him how he pleaded.

  Rex spoke loudly. "Not guilty".

  A dozen reporters in the press box bent over and scribbled in their notebooks.

  A Sheriff’s Officer led a panel of twenty prospective jurors through a side-door and seated them in the well of the court. Each juror was handed a card with an identification number. Identical cards were placed in a ballot box. The Judge’s Associate drew cards from the box until twelve jurors sat in the jury box.

  The prosecution and defence were only allowed three pre-emptory challenges.

  Mahoney made none. But Brian scanned the prospective jurors. He tended to be suspicious of young women, public servants and anyone carrying the Daily Telegraph; he didn’t mind old guys, because they had usually seen a bit of life.

  He challenged two young women in short skirts chewing gum and prayed he hadn’t just removed the two jurors most likely to acquit.

  Two new jurors were chosen and the jury empanelled. While that happened, Brian recalled an old barrister’s advice that: "Most jurors are idiots. But a jury is always much smarter than the sum of its parts: it misses nothing and forgets nothing, so never take it for granted."

  His nerves had settled and his mind was now completely focused on the trial. He probably wouldn’t panic again until just before the jury returned its verdict.

  After the Judge’s Associate had read out the charge of murder, Mahoney made his opening address to the jury, outlining the evidence he intended to call against Rex Markham. It would show that Rex had a bitter marriage, was present in Sydney on the night of the murder and initially lied about his whereabouts. "At the end of this trial, it will be very obvious to you that Rex Markham, angry at his wife, drove up to Sydney and murdered her. However, he slipped up badly and now finds himself in the dock."

  The first witness Mahoney called was the head of the homicide investigation, Detective Inspector Paul Holloway, a fat man with a gingery crew-cut and no-nonsense features. He spoke slowly, but was obviously no fool.

  Holloway explained how, at 9pm on the night of the murder, a neighbor of the Markhams heard a woman scream. The neighbour called the police and a patrol car was dispatched to the scene. The patrol officers found the back door of the terrace had a broken lock. They entered and found the body of Alice Markham in the kitchen.

  Soon afterwards, Holloway arrived at the crime scene, where he supervised the collection of evidence and removal of the body. The next morning, he drove down to the Markhams’ beach-house near Nowra, where he executed a search warrant and conducted a tape-recorded interview with Rex Markham. During that interview, Markham claimed he’d been at the beach-house for the whole weekend.

  Next, the detective described how an analysis of Rex Markham’s credit card records revealed that Markham purchased petrol in Sydney at 6.50pm on the night his wife died. The detective confronted Markham with that evidence. Then, in a second interview, Markham admitted that he had lied about his whereabouts on that night. Instead of staying at the beach-house he had, in fact, dined with his literary agent, Hugh Grimble, at Watsons Bay.

  Mahoney tendered transcripts of both the first and second interviews and the credit card records. Copies were handed to the jurors.

  Brian didn’t intend to spend much time cross-examining any of the prosecution witnesses. The crucial issue in the case was not whether they were telling the truth, but whether Rex was. Fruitless attacks on them would just underline the strength of the prosecution case. Better to accept their evidence and submit it proved nothing.

  However, Brian did get Holloway to admit that, after the murder, the detective discovered several pieces of jewelry missing from the Markhams’ terrace.

  "They have not been recovered?"

  "No. We don’t know where they are."

  "You’ve interviewed my client twice?"

  "Yes."

  "Did he ever refuse to give an interview?"

  "No."

  "He always co-operated with the police?"

  "Umm, yes."

  "And when you searched the beach-house, did you discover anything relevant to your investigation?"

  "No."

  "You mean, nothing incriminating?"

  "That’s correct."

  "So you didn’t find the murder weapon there?"

  "No."

  "In fact, you still haven’t found it?"

  "That’s right."

  "Thank you."

  The next witness was Dr Rowena Butt, the police pathologist who performed the autopsy on Alice Markham. She was a small, whey-faced woman whom Brian had cross-examined many times before and found competent and honest, with an unusual devotion to the facts.

  Mahoney asked her to explain the cause of death. She said Alice Markham died from three stab wounds in the chest. The time of death was about 9pm on the Saturday night.

  The pathologist also explained that, on the victim’s dress, she found hair fibres with Rex Markham’s DNA.

  Brian cross-examined on that. "Doctor, you’d expect, wouldn’t you, that a woman’s dress would contain some of her husband’s hair fibres?"

  "Yes, it’s quite possible."

  "And those fibres could find their way onto the dress during normal domestic interaction?"

  "Yes, I suppose so."

  "You found other hair fibres on her dress, didn’t you?"

  "Yes, three other templates."

  "One was the victim’s?"

  "Yes."

  "But you couldn’t identify the other two people?"

  "Correct."

  "And either of them could have been the murderer?"

  She shrugged. "Not for me to say."

  Next, the prosecutor called several friends of Alice Markham to give evidence about the poor state of the Markhams’ marriage.

  There had already been an interlocutory hearing - before Brian and Robyn were briefed in the matter - during which Rex’s former counsel had objected to this evidence. However, the judge decided that the state of the Markhams’ relationship was relevant and the evidence could be adduced at the trial.

  Now the friends told the court how Alice often described having bitter arguments with her husband and confided that they planned to divorce. They were obviously telling the truth, so Brian didn’t cross-examine them. Better to submit that their evidence had little or no probative value.

  Next, the prosecutor called the two patrol officers who attended the Markhams’ terrace six weeks before Alice Markham was murdered. They described finding Alice in a distressed state with a large head wound. She claimed that her husband hit her, but refused to press charges.

  Once again, Brian saw no point cross-examining these witnesses and inflaming the issue.

  The prosecutor rested his case on the third day, just after the morning tea adjournment. Justice Dobell then turned to Brian and asked if he wanted to make an opening address.

  Brian rose and told the jury in a calm, conversational manner that the p
rosecution’s case was entirely circumstantial and went nowhere near establishing guilt beyond a reasonable doubt. "Rex Markham does not have to prove anything and isn’t going to try. We’ll probably never know exactly what happened on the night Alice Markham was murdered. Maybe a burglar snuck into the terrace and, when confronted, stabbed her to death and fled with some items of jewellery. Or maybe someone else killed her. We’ll never know. And it is precisely because of that uncertainty that you must acquit Rex Markham."

  Brian said it was obvious that the Markhams had an unhappy marriage. "But so what? People don’t murder because they’re unhappily married. If they did, this city would be littered with bodies." A few jurors tittered. "I am surprised that is the best motive the prosecution can come up with."

  Brian admitted that his client lied to the police when he said he was at the beach-house when his wife was murdered. "He shouldn’t have done that. But he’d just lost his wife and was being interrogated. He did what many people do when they are afraid and confused: he fibbed. That makes him a liar, not a murderer…"

  Brian then explained that Rex Markham had an alibi for the night of the murder. "He dined with a well-known literary agent, Mr Hugh Grimble, who will give evidence to support that fact."

  Brian said a number of prominent citizens would attest to Rex Markham’s good character. "Indeed, it is important to remember, members of the jury, that Rex Markham is a well-respected and successful citizen whose novels have given pleasure to millions. He has no criminal record of any kind. Yet the prosecution wants you to believe that he drove up to Sydney and murdered his wife in cold blood. But where is the evidence that he is a monster capable of such a crime? There is none."

  In a confident tone he turned to the judge and said: "Your Honour, the witness has been advised of his rights and elects to give evidence."

  The judge asked Rex Markham to step into the witness box. Rex left the dock, strode to the witness box and took the oath.

  Brian wanted Rex to deal with the worst evidence against him in chief, rather than have it dragged from him in cross-examination. So he suggested to Rex that his marriage was in a bad state when his wife died.