Night Games

by Anna Krien

  When they saw him, he was standing at the mouth of Emerald Hill Place, just off Clarendon Street. ‘You’re not under arrest,’ the detectives reminded him, protecting themselves and the recording. ‘You don’t have to be here. You don’t have to say anything. We invited you here.’

  You could practically hear him nod. ‘It’s just here,’ he said and he sounded polite and fragile now that we knew he was being recorded without his knowledge.

  *

  On the stand, Senior Detective Constable Christine Stafford said that when Justin Dyer identified Emerald Hill Place as the alleyway and even indicated where he’d urinated, the sexual crimes squad had taken swabs of the area, only to discover later that DNA would not show up in less than a litre of urine.

  She described taking Sarah for a D/O, a drive-over, after meeting her at the Royal Women’s Hospital. Together they drove around South Melbourne looking for a ‘newish townhouse.’ When they found it, they began looking for the alleyway. Sarah remembered ‘cobblestones and high walls’ – Justin’s alley had both, and Kathy Hackett’s had cobblestones with a high wall on one side and a fence on the opposite.

  And as the questioning began to drag on, police officers reading from their notebooks and young twenty-somethings reciting how much they had to drink, you could tell the novelty had worn off for the jury. It had been ten days of shuffling in and out of the courtroom – of strange applications, legal matters that needed to be discussed without them, blind spots that no one asked about. So when Judge Taft called stumps, you could see that they were relieved.

  Thomas tabled the phone records for Sarah, Justin and Tom Shaw, and then it was time for the closing addresses.

  CHAPTER 24

  Prosecutor Ryan began. And again the courtroom felt alive with nerves: finally we were getting to the guts of the matter.

  ‘The onus is on the Crown to prove,’ he said, ‘while the accused man need prove nothing.’

  He started with the laneways. Was the relevant laneway the one closest to Cecil Street, where Kathy Hackett lived, as supported by both Toby Davis’s and Matthew Bateman’s testimonies? The same laneway, he added, suggested by Sarah’s statement at the hospital – Detective Stafford had noted ‘cobblestones that she ran across to run away from the accused.’ ‘You have to remember,’ Ryan reminded the jury, ‘that she had been awake for twenty hours.’

  Thomas and his defence team all had their heads down, busy scribbling notes.

  Ryan told the jury that it had been put to Kathy Hackett, resident of the alley, that her mind had been poisoned in some way. But Hackett had volunteered her information to the police.

  ‘The accused man got it wrong when he identified the laneway. He had had twenty-odd drinks. His account is just as affected as the Mount Eliza Drinking Team’s,’ said Ryan, pausing. He then raised his eyebrows at the jury. ‘And yet, when you read his account, it is flawless, a chronological account. When you analyse his account of events, it is contrary to human experience.

  ‘This incident happened in the laneway next to Kathy Hackett’s house,’ said Ryan, hammering the air with his hand, bleary-eyed but determined.

  Now, Justin’s arrival at Dorcas Street, said Ryan. He walked up the stairs, asking where’s the toilet, even undoing his fly. ‘It’s a matter of urgency,’ said Ryan, ‘he’s busting. But then he talks to everyone else instead.’

  ‘He was so struck by his physical attraction to her that he forgot to go to the toilet,’ said the prosecutor, disbelievingly. ‘And she says, “I’m walking home” – now, let’s look at the shoes she was wearing.’ Ryan referred to the photo of Sarah’s high heels. ‘One thing you can bet on is that she did not say she was walking home.’

  I stifled a laugh at this. Only a man would say this and only a jury full of men would consider believing it. Every woman knows that females walk miles in heels, especially when drunk.

  Ryan continued: ‘This is about commonsense, experience of life. He’s been in the house for five minutes, busting to go to the loo but doesn’t go, and then in the next instance, he’s having a sexual act with her.

  ‘A “blonde bombshell” in a matter of moments,’ said Ryan, shaking his head. ‘It doesn’t ring true.’

  The jury was riveted. ‘I will walk you, fair damsel, to get a cab to Carlton, then in a matter of fifty metres it’s my hand down her dress,’ Ryan scoffed.

  ‘How romantic, ladies and gentlemen,’ he announced, spinning around to face the court, ‘in a pool of urine Sarah Wesley drops to her knees to suck a stranger’s penis. What nonsense.’

  She ‘turned around, pulled her dress up, pulled her pants down.’ Again Ryan scoffed: ‘She certainly is a sport.’

  Justin’s family turned to look at him searchingly, trying to read him – but Justin’s face was blank. The jury was excused for a break, and Thomas stood up to make an objection. He reeled off some of Ryan’s speech: ‘Fair damsel, she’s a sport, a fifty-metre relationship.’ It was an extremely unfair approach, he said – particularly as she had had sex with x number of men beforehand, something the defence was not allowed to allude to. Taft listened to Thomas’s objection, but was dismissive.

  As the two talked, a lone female police officer who had given evidence earlier entered the court and sat in a seat behind the prosecution. The seats around her were empty. Still, no one had turned up for Sarah.

  ‘They’ll be here if he’s convicted,’ I was told on a later break by the police officer. ‘To hear his sentencing.’

  *

  ‘Now I’m going to tell you a story,’ said Ryan to the jury, rocking back on his heels, ‘and it’s only in an Australian context. How do you know when someone is really a friend?’

  He waited for a moment, letting the room fill with silence. Then he opened his mouth, puncturing the hush.

  ‘When you say to them, “I just killed someone,” and the friend responds, “Where should we bury the body?”’

  I glanced over at Justin. He was staring at Ryan, mouth open.

  ‘Dayne Beams and Scott Dempster are burying the body,’ Ryan continued, ‘the body of Sarah Wesley.’

  Dempster, said Ryan, is lying. And as for Beams: ‘He couldn’t remember the convention centre where he went with his team to celebrate. Think of the things he says he sees. He gets into the cab and sees Justin kissing a girl.’

  He’s known Justin for a few years, said Ryan, before repeating ominously, ‘Where do we bury the body?’

  Carol stood up unsteadily. She looked as if she had been punched. She walked out of the courtroom. The jurors’ eyes followed her out. Ryan paid no attention.

  ‘Now, I want to take you to the complainant. She’s a foreigner to people in the house. It doesn’t seem that she is surrounded by a galaxy of friends.’

  None, actually, I thought.

  Ryan said that Sarah had not reacted in the way she thought she would have in such a situation: she had thought she’d fight back, but she didn’t. ‘She thought she’d be safer if she went along. We all have artificial expectations of ourselves,’ Ryan said, his tone suddenly good-natured, ‘I’m an old man in the mirror, but in my head I’m seventeen, twenty-two.’

  Earlier, Ryan had mentioned the 1950s film Kim, starring Errol Flynn, to make a point, and now he started talking about a book called The Singapore Grip, a 1978 classic, he explained. The jury stared at him blankly as he outlined the book’s plot, concerning the Japanese invasion and fall of Singapore in World War II. Ryan talked about the ups and downs, the pressure the island was under, how it was forced to surrender after the British rulers capitulated, abandoning Singapore to the enemy.

  ‘Sarah Wesley capitulated,’ says Ryan. ‘She went with Justin Dyer – what was she to do?’ In the taxi, he continued, she wanted to get into the front, but he said get in the back. He knew she capitulated.’

  �
�Her memories are not intact,’ Ryan conceded, while the accused’s were ‘ordered, chronological and in my view artificial.’ He described how she got away and Justin caught up with her on the street, asking for her number. ‘Having suffered what she suffered, she capitulated.’

  Ryan looked at each juror, pushing the capitulation, the burying of the body. ‘You will convict Justin Dyer,’ he said finally, and sat down.

  Justin looked pale. His girlfriend twisted in her seat to look at him, tried to catch his eye, but he just stared at Ryan in a daze.

  CHAPTER 25

  Malcolm Thomas stood up. He handed the phone records to the jurors and then scratched his head.

  ‘Now, I’ve been trying to work out if I was in primary school when Mr Ryan was doing this job,’ he said, ‘and trying to work out why such an experienced prosecutor would not say anything about these phone records, and then I realised why. It’s best not to talk about them.’

  ‘Well, I’m going to talk about them. That document,’ Thomas said, pointing to the phone records, ‘is an agreement between the complainant and the accused.’

  Thomas went through the records, pointing out that there were no calls made from Sarah’s phone.

  ‘Not only,’ said Thomas, ‘but Tom Shaw is calling her. At 5.48 a.m., 5.53 a.m., 6.07 a.m., 6.36 a.m. and left a 48-second message.’

  Now, said Thomas to the jury, forget all the witnesses, the conspiracy, the Beams and Dempster whatever. Sarah Wesley is a liar. ‘What is she lying about? Where do her lies stop?’ he asked. ‘Lie after lie, and then other lies to explain those lies.’

  In opening the case to the jury, Ryan had said Sarah tried to call Tom Shaw on her phone, but the records of her phone calls showed otherwise, Thomas stated. She didn’t call him. Not only that, but she didn’t need to call him – she could have just answered his calls.

  Thomas read from the transcript of his cross-examination of Sarah regarding her phone records. ‘Lie, lie, lie,’ he said.

  Thomas looked at the jury. ‘Lie. And then we get to the last refuge of a lie. What is the last refuge of a lie? It’s “I don’t know, I can’t remember.” There is a difference between TV and real life,’ said Thomas. ‘On TV, she gets the phone records put to her and she breaks down, admitting that she’s lied. But in real life, the lies dig in.

  ‘And she lies to Tom Shaw too. She didn’t say, “I was ignoring your calls, having a good time and couldn’t be bothered getting back to you” – instead she lies.

  ‘Control, says the prosecution. Everything that happened after the alley is about Justin maintaining control over her. He gave her his number, showed her where he lived. How does that maintain control? Now, Sarah got a message from Shaw saying they could come and pick her up. She got it as she was coming out of the alleyway – but instead she spends fifteen minutes on Clarendon Street trying to find a taxi with the man who supposedly just raped her.

  ‘Why? Simple explanation. There’s no need. He hasn’t raped her. No need for concern. If you tell one lie, you have to tell another lie.

  ‘So, we have this bloke who is supposedly in control – and he’s just letting her ring?

  ‘Now, why wouldn’t you believe Mr Adani? He’s not drunk, he’s not part of the conspiracy. How lucky are we to have Mr Adani – if we didn’t have him, you’d just have Mr Dyer’s word against Miss Wesley’s. Mr Adani is not connected to anyone, has no reason to lie.

  ‘Mr Adani says they were talking “very gently and slowly,” while Sarah denied she got out of the cab at Justin’s place.’ Thomas referred to Sarah’s evidence in the committal hearing, her claim that she had pushed Justin away in the cab and said ‘No’ loudly. But in this trial she had failed to mention that, he said. ‘Remember what I said about lies and digging their heels in?’

  Thomas now turned to the alley. ‘This isn’t a capitulation,’ he said, dismissing the prosecution’s explanation for Sarah’s behaviour. He reminded the jurors of her evidence: ‘this is a violent struggle.’

  Thomas mentioned Sarah’s high heels and that she had never called out to anyone walking past. And yet, with his pants down – and here Thomas threw up his hands – Justin was supposed to have got in front of her three times. ‘I don’t mean to make light of it,’ he said, ‘but it’s ridiculous.’

  As for which alley, Thomas said, ‘We’ll never know for sure.’ But Kathy Hackett was ‘not the silver bullet. If you’re not satisfied it’s her laneway, then her evidence is worthless. Don’t let evidence that doesn’t fit be twisted around, bits pulled off it to make it fit.’ And: ‘You might think it very dangerous to put much weight on what she says. She remembers more, the more she is told.’

  Now, said Thomas, as if dusting his hands of Kathy Hackett, the prosecution has to prove that 1) Sarah Wesley was not consenting at the time, and 2) Justin Dyer did not believe she was consenting.

  ‘First, Justin spells his name out to her – “Here’s my number.” A course you take if you have consensual sex and you want to maintain contact. He gets in a taxi with her with independent witnesses, pays with his credit card and “Here’s where I live.” That behaviour is utterly consistent with a man who believed he just had consensual sex.

  ‘Justin’s account is plausible and consistent. In fact he is criticised because it is too consistent – but his account is consistent with the taxi driver’s and phone records. Why is it all so plausible? Because it’s the truth.’

  Thomas pointed out to the jury that no evidence had been presented about the character of Sarah Wesley, and yet it had been suggested by the prosecution that she would not have done these things on such a brief acquaintance. But there was no evidence to prove this. Then, speaking the language of a younger generation, he added: ‘People at a party hook up without any great conversation or otherwise.’

  As Thomas began to wrap up, I looked at the jurors. Most of the men were middle-aged or older. I wondered what their idea of ‘commonsense’ was. It had been two and a half days of closing addresses. They looked admirably attentive given the long hours.

  Thomas continued: ‘Consent does not equal romance. It doesn’t stop it being consensual because it was later regretted. There is a presumption of innocence in this country, it’s real, it’s important.’

  Miss Wesley has lied, the defence lawyer repeated. If you deliver any verdict other than not guilty, then later on you might think you’re not so sure.

  *

  ‘There’s an inherent improbability in the account offered by Mr Dyer,’ Judge Taft had said. And it was true, it was doubtful Sarah turned around, pulled down her undies and bent over for Justin all by herself. Nor was it likely that she had got on her knees entirely of her own accord. Justin’s hands would have been on her, guiding her. He wasn’t a lamppost, inanimate, after all.

  Justin’s account seemed to me devoid of his own agency. But there were parts of his story that sounded plausible. Sarah stopping in the alley, saying she had to go to a party, his asking to be ‘finished off.’ It was dialogue you couldn’t make up. As I looked over my notes at my observations of Justin, I realised I had little more than a pencil sketch of him. He was strangely passive. Had I failed to colour him in, or was he a cipher, a cardboard cut-out, a straggler separated from his herd? I thought about how, each time I tried to get his measure, it was like trying to calculate the depth of a peculiar body of water. He was neither shallow nor impossibly deep. All this time I had thought that Sarah was the ghost, the absent one in the story – but it was Justin. Lost in the blur of his team colours, he was the opposite of a criminal. He was extremely obedient. It was just that the rules of his world didn’t match up with those followed by the rest of us.

  CHAPTER 26

  Maybe I’ve got it all wrong. Maybe there is no common truth. The trial is black and white, Sarah and Justin are as one-dimensional as their competing storylines make out. You’ve
got the rapist or the liar. A Law and Order version, and by trying to seek out a shade of grey I’m protecting one of them. That is not going to sit well with feminists or footballers, I think, a knot of dread in the pit of my stomach. I prepare myself for the accusations – that I’m a traitor to women for even suggesting that Sarah is not telling the exact truth, for not pointing the bone at Justin. I wish I’d chosen to follow an ‘easier’ rape trial – one with an obvious villain, where a female was clearly intoxicated beyond consent, where I could make observations that don’t stink of the bad old days. But while every good story needs a villain, I can’t make it Justin. He’s been carved out of a pack. Whatever he did that night, he thought it was okay. The herd had said as much. Teams, after all, require a certain amount of groupthink to succeed.

  And again, I wonder how much of myself I’m projecting onto Sarah. I may be filling her with my own failings, the teenage me who failed to articulate myself, who absolved myself of the responsibility to say no and yes, who was complicit – I can see this now – in being treated badly. Something Ian Roberts said on ABC TV’s Australian Story has stayed with me. Talking about his experience as a gay man in rugby league, he said:

  This is a tough thing to say but, you know, predominantly gay people want to be treated as equal but fail to treat themselves as equal.

  If Sarah did not tell the truth, if she lied about explicitly telling Justin ‘No’ and that he pushed and dragged her, then I can only say that she chose a lie over what she perceived as her only other option, silence. She had no language to explain the grey zone, to explain what was lost in translation between the sexes.

  It is as if there’s a fear that venturing into a grey area to discuss the complexities of consent and rape will unravel some forty years of feminist spadework, that people will be unnecessarily confused by any such discussion. But surely feminism isn’t that fragile. And isn’t it obvious that people are already confused? For despite the law being clear on the definition of consent, neither the police nor the public prosecutors seem to have much faith in a jury’s ability to convict in certain cases, even if they do satisfy the legal criteria.