This Mortal Boy

by Fiona Kidman

  ‘You ask me what I would like to do for work. I have not thought much about a trade though I may take up plumbing if I get a chance. Time seems to go ever so quickly for me, it seems only yesterday I booked into this hotel.

  ‘God bless you, Peter. Your friend, Albert.’

  This time there are five judges sitting on the bench, but Albert Black is absent.

  ‘Do you mean they all get to talk about me behind my back?’ Paddy asked Buchanan when he outlined the procedure to him.

  ‘There’s nothing more they’ll allow you to say, I’m afraid. The discussion is all on points of law.’ All the same, Paddy was excited when he heard the arguments to be presented on his behalf for the appeal. He’d hold his breath all day, he promised. Buchanan had to explain to him that it wouldn’t all happen on the same day. The judges would have to go away and think about it.

  A fly circles around the courtroom, and some of the esteemed judges try to swat it away. It is almost as if the defendant had sent the essence of himself in the form of a small malevolent insect, Oliver Buchanan thinks, an irritant in the room that had to be dealt with.

  Pearson rises to his feet. The learned judge who had presided over Mr Black’s trial, he respectfully submits, failed to direct the jury adequately that, apart from the question of provocation, they could still bring in a verdict of manslaughter if they considered it appropriate. ‘I submit, your Honours, that apart from the intent to kill, the jury could properly have found manslaughter if they thought the accused did not intend to inflict bodily injury of a type likely to cause death.

  ‘Equally, the jury could have found manslaughter if they thought that, whatever Mr Black’s intention, in fact the bodily injury he inflicted was not likely to cause death. The evidence put forward by the pathologist Mr Cairns suggests that it was extremely unlikely he intended to sever Alan Jacques’ spinal cord and something of a fluke that he did. So, if he didn’t intend to sever the spinal cord but only to stab the victim in the neck, it’s extremely unlikely that would cause death. I suggest that a verdict of manslaughter was not only open to the jury but quite possible, and the judge should have directed the jury accordingly.’

  Mr Justice Gresson, the presiding judge says, ‘I’d have thought a stab in the neck was most likely to cause death regardless of where it landed.’

  There is a general murmur of assent among his colleagues, a nodding of heads in unison. Because this is the Court of Appeal, the judges do not wear robes, for all the world like businessmen about to head for the stock exchange or a company board meeting.

  ‘Frankly,’ says the judge sitting on his left, ‘I thought the summing-up was benevolent to the defence. It’s difficult to see how defence counsel can seriously question the summing-up.’ The lazy fly traverses the tip of his nose; he swats it with mounting irritation. Buchanan thinks then, this is what it may come down to, a fly distracting the judges. He wishes he had a handy fly-swatter in his pocket. How ingratiating would that be? His heart is sinking; he sees little sympathy in the faces of the men on the Bench.

  It is his turn now to speak. ‘That is not the only grounds for notice of appeal,’ he tells them.

  ‘Yes, yes,’ says Gresson, ‘we’re aware of that.’

  Buchanan traverses the grounds again. The second ground in the notice of appeal was that a miscarriage of justice had occurred because certain statements had been published in the press during the trial, both in morning and evening newspapers, reflecting the judge’s opinion of the accused before the verdict had been delivered, in fact, before the case had even begun, and that that opinion was prejudicial to Black’s case. ‘Listen,’ he says, quoting from a newspaper cutting, ‘may I remind you of this, he — meaning Black — belongs to a peculiar sect, if you could call it that, or a peculiar association of individuals whose outlook on life varies from the normal. It goes on to say that he’s not needed in this country, and that it’s premeditated murder. If that’s not prejudicial, what is, your Honours?’

  Although these comments had been made to the Grand Jury six weeks earlier, he reminds them, they had been released in the newspapers to coincide with Albert Black’s trial. The common jury had received copies of these newspapers and, Buchanan tells the Bench, the comments were likely to influence the outcome of the trial.

  ‘We have the affidavit of a witness,’ Buchanan says. ‘Mr Rabone was the assistant manager of the Station Hotel, and his evidence will be that, on instruction, he distributed copies of the Auckland Star and The New Zealand Herald to members of the jury while they were domiciled in the hotel.’

  Mr Justice North asks, with some impatience, ‘Well, is this about what the judge said, or is it about what was published?’ He appears to have taken charge of the line of questioning.

  ‘Your Honour,’ Buchanan says, choosing his words with care, ‘it’s immaterial whether or not it was a correct transcript. I’m in no position to know whether the report was a verbatim account of the judge’s direction. What I do know is that the character and reputation of my client was effectively destroyed when the jury read the comments by the judge.’

  ‘The judge was addressing a Grand Jury on depositions from the Magistrate’s Court. It didn’t disclose the defence. You need to be careful of what inferences might be taken from your comments, Mr Buchanan.’

  It goes through Buchanan’s mind that his own reputation is being monitored. Then he sees Paddy’s young face swimming before him, the unquenched hope that his life might still be handed back to him. He takes a deep breath and continues as if the judge hadn’t spoken. ‘There is nothing wrong, your Honour, with the judge speaking as he did, but with the publication. It’s one thing to say something to the Grand Jury, which is only concerned with deciding about a true bill and not with questions of defence, but it matters if what is said could gravely prejudice a trial jury.’

  ‘Well, really,’ the judge shoots back, ‘doesn’t the whole thing come down to a question of whether the publication of proper remarks by the judge to the Grand Jury could ever be regarded as prejudicial?’

  ‘In essence, yes. The judge is entitled to say whatever he likes, provided he directs that the common jury doesn’t hear what he says.’

  ‘So how do you screen a jury once it’s been empanelled?’ the judge asks. ‘Who’s supposed to do that?’

  ‘I’m not in a position to answer that, your Honour. At the very least, it would have been advisable if the newspaper reports had been kept from the common jury.’

  ‘So the effect of your submission is either that judges should refrain altogether from making any remarks even remotely approaching these, or that newspapers should in some way be prevented from publishing these remarks?’

  ‘That might be the result,’ Buchanan says. He thinks he may be getting somewhere but he’s not sure.

  Mr Justice Gresson starts to pay attention, as if he had been drifting away into some personal reverie and had suddenly reminded himself where he was. ‘It’s inconsistent with the whole basis of the administration of justice if a Grand Jury must be addressed in secret,’ he says.

  Buchanan sees the case slipping from his grasp. It is the fly, he thinks, the bloody fly.

  Timms, for the Crown, weighs in. ‘For this submission to succeed the appellant must show that there’s been a miscarriage of justice — in the sense that, on fair consideration of the whole proceedings, this court must hold that there’s a probability that the newspaper publicity turned the scale against the appellant. There’s no justification for suggesting that members of the jury could be so influenced by what they may have heard or read that they cannot be relied upon to do their duty as a jury.’

  ‘Your Honours,’ Oliver Buchanan says, ‘be that as it may, we are talking about putting a man to death. The death penalty may be enshrined in the law as it now stands, but it has not always been the case. In fact, the law has changed several times over the past two decades.’

  ‘Are we now to be treated to the crusade for abolition?’ the
judge on the left of Gresson says.

  ‘I’m aware of campaigns for abolition,’ Buchanan says. ‘But I speak from the heart. The famous writer, Victor Hugo, whose name I’m sure is familiar to you all, conducted a life-long crusade against the death penalty. He wrote these words — Look, examine, reflect. You hold capital punishment up as an example. Why? Because of what it teaches. And just what is it that you wish to teach by means of this example? Thou shalt not kill. And how do you teach that “thou shalt not kill”? By killing. Hugo goes on to explain that he had examined the death penalty under each of its two aspects: as a direct action, and as an indirect one. What did it come down to? Nothing but something horrible and useless, nothing but a way of shedding blood, that is called a crime when an individual commits it, but is called “justice” when society brings it about. Make no mistake, you judges and lawmakers—’ and here Buchanan pauses long enough for the judges on the Bench to be clear that he is reciting Hugo’s comments for their benefit — ‘that in the eyes of God as in those of conscience, what is a crime when individuals do it is no less an offence when society commits the deed.’

  ‘Have you quite finished, Mr Buchanan?’ asks the presiding judge.

  CHAPTER 24

  And still the notebooks pile up in the Blacks’ front room. Kathleen can estimate the number of signatures by multiplying the number of notebooks by the number of pages by the lines in each notebook. Notebooks x pages x lines = 12,000. More and more just keep arriving. Signatures from the church, from the marketplaces where they ran a book, from the pubs, most of all from the mills. There is her own Jennymount Mill, but her fellow workers know others in different mills. Inside of a week these twelve thousand signatures have arrived, supporting the petition seeking clemency for Albert Black.

  In the night, Kathleen lies awake, her eyes scratchy from tiredness, until she can’t stand it any longer, and she inches herself out of the hollow of the bed. Bert groans in his sleep and throws an arm out as if to stop her, but she’s hell-bent on counting the notebooks again. She needs to check through and see if any have been crossed out, or lines missed, or someone hasn’t put their address. It feels the same as if she were counting votes in an election. Every vote for the life of her son must count. They are running out of time. The notebooks have to be delivered to Mr Clifton Webb who is about to visit Belfast.

  She wonders, over and again, what is happening inside the head of her boy. He has written her the strangest letter, telling her of his conversion to the Roman Catholic faith. There must be some reason for it, but she hasn’t worked that out. Or maybe this is to do with the state of his mind that he is talking guff. She hasn’t told Bert about this letter.

  In New Zealand, a railway worker called John Vermeulen stabs another man by the name of Dick Lucas on a Hamilton dance floor, enraged because Lucas is dancing with his girlfriend. He inflicts four knife wounds. Lucas doesn’t die. But he might have, people mutter, and there is an unease in the air. Vermeulen is required to take out a prohibition order, and undertake not to attend a dance for a period of time, and not to carry a knife. Otherwise, he goes on with the business of keeping the trains running on smooth track.

  In London, the colourful and passionate-hearted publisher, Victor Gollancz, heads a four-thousand-strong rally in Hyde Park, demanding the abolition of the death penalty. He tells the crowd that it is unnecessary, morally unjustified and inconsistent with the self-respect of a civilised and Christian country. YES, the people shout in unison, ABOLITION. He quotes the words of an American abolitionist who has declared the penalty arbitrary, haphazard, capricious and discriminatory. DOWN WITH THE DEATH PENALTY, shout the crowd, as they strain to shake the hand of Gollancz. He is hoisted high on shoulders.

  Kathleen thinks that Mr Gollancz probably doesn’t know about her Albert, but Mr Webb will surely know about Gollancz. Will it make any difference? When she thinks about it in her terrace house, in the fastness of the Belfast night, it occurs to her that Mr Gollancz is a Labour man, and she thinks Mr Webb might not be sympathetic to his views. She has never thought much about politics, she hasn’t had the time, what with working in the mill and caring for her sons and their father and making ends meet and all of that. It’s more a case of who kicks with which foot, the left or the right, and the distances between the Irish people in general that have preoccupied her, not the goings-on in places across the sea. Now she is doing her homework. Since she has been told, in effect, not to go to New Zealand, she has asked a lot of questions, called on the editors of the newspaper, and asked them what they know of who’s in and who is out in New Zealand, what attitudes are held and by what parties. What she hears is not encouraging. Why is she not surprised that Mr Webb has been and gone without seeing her? But she cannot be ignored, she believes. For by now she has delivered the letters to Mr Warnock, who, she understands, has passed them on to the New Zealand High Commissioner. And there is the letter she has written to the Queen. Surely someone will take note of that.

  In Wellington, Ralph Hanan is meeting with Jack Marshall. Hanan, the draper’s son from Invercargill, and Marshall, a Wellington man through and through. He knows how the city works, its intrigues and secrets. He is also a chess player. The two Honourable Ministers of the Crown sit discussing the implications of hanging. A secretary has brought in a tray bearing a silver teapot, cups and saucers, a plate of scones and a little Royal Albert dish of raspberry jam. There is a choice of butter or whipped cream. ‘A special little treat I asked Bellamy’s to provide,’ Marshall remarks. Hanan has waved away the scones, and perhaps this is a mistake. He takes a cup of tea with a dash of milk. Marshall drops jam thoughtfully on his scone.

  ‘Jack, you know why I’m here,’ Hanan begins. ‘I’ve just heard the news about Black’s appeal.’

  ‘Well, not good news for him, I’m afraid.’ Marshall’s voice is as smooth as the butter in its dish. ‘I’ve sent a telegram to Webb this morning so he can let the mother know.’

  ‘We still have the chance to do something for Black when the Executive Council meets. As a government we can advise the Governor-General to stop this going ahead.’

  ‘Really, Ralph, we’ve gone over this more times than enough. Why on earth should we overturn the views of five judges? Our very top men.’

  ‘Your men. Mr Holland’s men.’

  ‘That’s enough. I won’t listen to this.’

  ‘Look, you must know as well as I do the arguments being made abroad. Surely you can’t deny that the death penalty in this country is haphazard. You’ve got Horton locked up for a truly vicious rape and murder alongside Black, who might or mightn’t have intended to kill his victim. You can’t hang Horton, because there wasn’t a death sentence in play, but you can hang Black. It doesn’t make sense. The penalty in this country has been enforced and suspended, then abolished, then reinstated and suspended again. All since 1935. It depends on which government’s in power. It’s too important to be decided on a whim.’

  ‘I resent that,’ Marshall says. ‘My beliefs are not a whim. In fact, Horton’s situation is surely worse than that of Black. It seems inhumane to me that a man be locked up in Mount Eden prison for the rest of his natural life. That seems like torture.’ His voice is quivering with anger.

  ‘I see. Well, Jack, if you mean that, I guess we’re looking at what’s humane and what’s not from different points of view. I’m ready to respect that, but it doesn’t change where I stand.’

  ‘We must have deterrents to murder in place.’

  ‘But the hangings that have happened over the past five years haven’t deterred the more recent murders.’

  ‘So we should have hanged Horton?’

  ‘No, that’s not what I said.’ Hanan’s voice is impatient. ‘Look, murderers are often indifferent to death. Look at those who kill themselves before their sentence can be carried out. And there’s some murderers who simply don’t think of the consequences between their action and what will happen later.’

  ‘Like your Mr
Black?’

  ‘He’s not my Mr Black. Although I’m not convinced he’s a murderer. But yes, I’d say that the death sentence was the last thing he had in mind in that cafe. I believe that essentially he is a young man of good character.’

  ‘What is character, Ralph? It’s been said that character is the sum of a man’s habits. Have you studied this man’s habits?’

  Checkmate. Hanan pauses, gathering himself for a fresh argument.

  ‘I don’t agree with anything you’re saying, Minister,’ Marshall says, ‘but perhaps you’ll be happier if I tell you that I’ve ordered some evaluations of Black to see whether or not he’s a suitable candidate for the hangman’s noose. Well, there are certain pressures. As you know very well or you wouldn’t be here. It might illuminate the discussions we have when the Executive Council meets. The Governor-General has to be able to account for our decisions when he next meets Her Majesty.’

  Hanan walks out of the room, along the pale-green corridors of Parliament, beneath its archways and cornices, its stained-glass windows and high ornate ceilings, until he comes to the public gallery that looks down on the debating chamber. It is empty now, but in the afternoon it will fill with Government and Opposition members. He will take his seat there in one of the high-backed chairs that stand in rows on the dark-green carpet with its fleurde-lis pattern. He is looking down at that space and wonders what he would be thinking if he were a member of the public sitting here later in the day. What would be expected of him? And he knows the answer. He would expect the politicians to be honest with one another, but most of all to their own selves. He is not sure how long he will live. The old war wound haunts him, his lungs fit to burst some days. Whatever happens, however long he is given, he must find a way to change those things that he believes to be wrong.