‘In normal circumstances,’ Garrard said, ‘my friend would be entitled to his objection. But, My Lord, the circumstances are exceptional. This witness was asked to carry out an investigation on behalf of the defence. In this, he was hampered by the reluctance of the prosecution to release any information regarding the details of the case which we were to answer, or to give sight of physical evidence which is only now being produced. It also happens that during the last few weeks Mr Calder was unavailable due to the influenza virus now epidemic. And, finally, information was obtained only this morning from a man newly returned from abroad who will be called later to give evidence.
‘Your Lordship will appreciate that, in the circumstances, my brief is somewhat out of date. If time permitted I would ask for an adjournment in order to take fresh precognitions, cite further witnesses, make a fresh opening statement and proceed from there. But, with all respect M’Lord, time does not permit. In the event of an adjournment, Your Lordship might find it difficult to appoint a date on which to resume which is not unacceptably remote.
‘There is, however, a simple solution. If Your Lordship will accept that much of what remains to be said by this witness is in the nature of a preliminary statement being made on my behalf, and that any statements made in that capacity will be properly testified in due time, we can identify separately as we go along any matters to which the witness is speaking out of his own knowledge and which will therefore be subject to cross-examination.’
Garrard and the advocate-depute did their seesaw act.
‘My Lord, such a procedure can lead only to confusion.’
Lord Bickenholme looked at Keith. ‘You are only just recovering from flu?’
‘Yes, My Lord.’
‘Would you care to give the rest of your evidence seated?’
‘Thank you.’ Keith began to sit down.
‘Don’t try to balance yourself on the miserable little shelf,’ Lord Bickenholme said. ‘I have observed for years that it is extremely uncomfortable. Fetch Mr Calder a chair. We will then proceed as suggested by Mr Garrard. I feel sure that Mr Calder can avoid confusing the two parts of his testimony, and I am confident that I can guide the jury in order to avoid confusion in their minds. If the advocate-depute is confused he can blame his own tactics. The necessity might not have arisen if the defence had been allowed to prepare their case at the proper time. Let the witness proceed.’
The advocate-depute sagged into his chair and began a muttered argument with the Crown Office solicitor.
‘This is how I see it,’ Keith said. He pitched his voice up and spoke more slowly for the benefit of the shorthand-writer, who was now almost out of sight from his new position. ‘Take the following facts. Decoys badly laid out, facing down-wind, placed where there had been no feeding for pigeon since the grain stubbles were ploughed on a date to which the farmer can speak. The absence of a hide. The presence of shot pigeon which appear to have been feeding on stubbles, at a time when pigeon were feeding on kale or clover. And a racing pigeon which the farmer will testify disappeared, believed by him to have been shot by the late Mr Muir, on an occasion last August.
‘I can conceive of only one possible explanation, and that explanation is supported by other evidence. I suggest that the defence later calls the photographer for the Edinburgh Herald whose photograph of the decoy site you have already seen. On my instructions he took further photographs through a window of the Muir house which prove conclusively that Mr Muir never left his home that morning intending to shoot pigeon.
‘I believe that Mr Muir was killed in August or early September, at some time after an occasion which Andrew Dumphy, the farmer, will describe, on which Mr Muir shot a number of pigeon on his land and was accused by the farmer of having shot a valuable racing pigeon. Mr Muir denied it, but that may have been the kind of cowardly reaction to which we are all subject at times. I believe that Mr Muir put all his pigeon into the freezer, still in the feather.
‘I believe that he may well have been killed, as has been suggested, by a blow from his own gun-barrels. If, as I suppose, this happened while his gun was dismantled for cleaning after that or some other shooting trip, it would explain why his complete gun was not found but only two components of it. The other is still at his home.
‘I further believe that his body was then placed in a deep-freeze and kept there until shortly before it was found in the burning Land Rover.’
A buzz of comment was cut short. In dead silence except for the clicking of her heels, Mrs Muir walked out of the courtroom. Eyes followed her. So also, Keith noticed, did Chief Inspector Munro.
*
‘It is evident, My Lord,’ the advocate-depute said, ‘that Mr Calder’s theory would aim to incriminate a specific individual. As such, it would be a special defence by impeachment, for which notice should have been given.’
Garrard, who had sat down, stood again. He was a stout man, and Keith thought that the exercise was probably doing him good. ‘It is also evident,’ he said, ‘that Mr Calder has been trying very hard to avoid naming names.’
‘And,’ said His Lordship, ‘has been considerably hampered thereby.’ He looked up for a few seconds at the Greek key pattern around the cornice before going on. ‘During preliminary debate, the advocate-depute argued that he had given advance information to the defence and implied that the length of the period in advance was only relative if not irrelevant. I take the view that so short a period would have made it extremely difficult for the defence counsel to consider the prosecution’s case, obtain adequate precognitions from the prosecution’s witnesses and consult Mr Calder afresh. We have already been told that this is at least partly the reason why the defence’s rival theory is only now being put forward.
‘There is a saying, no doubt as familiar to the present witness as to anyone, about sauce for the goose. Furthermore, if we fail to conclude this trial expeditiously a man as yet unconvicted may have to wait in prison for some considerable time before the trial can be resumed.
‘I therefore propose to get all the evidence in, and in the presence of the jury, even if this court has to sit through the weekend to do it. It may be that Mr Calder’s theory may be untenable and can be discounted.’
‘Very probably, My Lord,’ said the advocate-depute.
‘On the other hand, it may be that Mr Calder’s theory proves so convincing that the advocate-depute will concede the case. In either of those eventualities, no harm will have been done. If, however, the new defence falls between those two poles I will, very reluctantly, grant an adjournment so that the prosecution can investigate the fresh evidence. Mr Calder, please complete your exposition and we can then proceed towards hearing other witnesses in support of it.’
‘Thank you, My Lord. I may name names?’
‘You may.’
Keith was very tired. He sipped more water and struggled on. ‘Andrew Dumphy, the farmer, will tell the court that on that day last August when he accused the late Mr Muir of shooting his racing pigeon, Mrs Muir had also been present as a spectator, and that she had left early. She was in her own car because she disliked sitting in her husband’s Land Rover. I shall come back to this point.
‘The fatal quarrel may even have occurred that same day. As to the reason for such a quarrel, I believe that it is not essential even for the prosecution to prove motive and that it would certainly not be necessary for the defence to do so. But it seems to have been common knowledge, and therefore should not be hard to prove, that Mrs Muir wished her husband to give up the rural life when he retired. Their trip together to Mr Dumphy’s farm may have been an effort on his part to interest her in country activities. I am advised that Mr Muir had decided to remain where he was and to invest his retirement sum in partnership with the defendant. That, I think, is already in evidence.’
‘It is,’ said Garrard.
‘That may have been enough to provoke a disagreement. Witnesses may be found to confirm that Mrs Muir is a woman given to sudden l
oss of temper. She snatched up the barrels of the gun which her husband was cleaning and clouted – er – struck him with them, fatally.
‘When she had calmed down, she realized that she had more than one problem to face. She didn’t want to be prosecuted, of course. Additionally, her husband had not been a rich man. He had only been with his last employers for a short time, so it’s to be supposed that her entitlement to a widow’s pension would not be large. But he had been persuaded to take an early retirement in return for a lump sum in compensation. He was already on his retirement leave at the time of his death. Whether or not his compensation depended on his living past his actual retirement date doesn’t matter, it’s enough that Mrs Muir may have thought that it did. Mr Muir’s solicitor—’ Keith caught Mr Enterkin’s eye ‘—can speak to the financial details.
‘Mrs Muir decided to postpone the day of her widowhood. She is of an athletic build and her husband was a small man. She deposited him in his own deep-freeze alongside his pigeon and gave out the story that he was spending his retirement leave on a tour of those sporting hotels which arrange shooting for their guests. There are a whole lot of such hotels. I have telephoned to more than thirty of the most likely without finding a single one which he visited last autumn, although several knew him from earlier visits.
‘She now required a manner of death for her husband which would make it difficult or impossible for pathological examination to detect that the body had ever been frozen. Virtual cremation in a burning vehicle would have been the most practical.
‘She did not feel confident of faking an accident so she decided to set a scene in which, if murder was detected, she would not be suspect. And she also decided to provide herself with an alibi. She needed, in fact, a lover. It may have been coincidence that the man she took up with was the accused, Jake Paterson, who was also the man who had been her husband’s choice for a future partner. She may or may not have intended to incriminate him. Personally, I think not. But she must have seen the advantages of having access to his stock of explosives. She also took some used cartridges, in order to make up the number she needed. Her husband had been a tidy man who collected and disposed of his spent cases, and if the pigeon in her freezer were the product of more than one of his outings she would have found herself with more dead birds than used cartridges. Foolishly and out of her ignorance, she decided to make up the number of cartridges rather than discard some of the birds.
‘At the convenient time, once her husband’s retirement date was past, she prepared to act. She made an early morning appointment with her lover.
‘At some stage, she threw away the stock and barrels of her husband’s gun, but she did not know enough to take the fore-end, which I saw still in her house, and had photographed, after the event.
‘Overnight, she must have been hard at work. She must have made two journeys and walked home, or at least made her way home, between them. She had to bring the Land Rover, with her husband’s body, to where it later burned. And she had to bring her own car to the same place. Then she had to place the decoys, and for that she must have waited until shortly before dawn, because the moon did not rise until five am that day.’
Keith paused and took another sip of water. The public seats had filled up during the afternoon, but he was speaking into a deathly hush.
‘When I first visited the site, I noticed that the decoy in the tree had been pulled up on a light line passing over a high branch. The usual technique for doing that is to use a boy’s catapult. I do it that way myself. There was such a catapult with the bag of pigeon. You need to be good with the catapult and lob your weight cleanly over a single branch or you get the line fankled up among all the twigs. That had me thinking of this as a man’s crime. And the solicitor for the defence put me further off the track when he agreed that Mrs Muir was an athletic lady and had been a successful sporting competitor but he referred to “squash or badminton or something”. I think that those were his words. Eventually, I remembered having seen her before. It was at a country fair. She had been a successful competitor at the archery, and had then visited the catapult stand and walked off with most of the prizes.’
‘Could the witness speak up please?’ the shorthand-writer asked.
Keith spoke up. ‘Lastly, she would have wanted to be well on her way to her alibi before the Land Rover blew up. Sophisticated timers would have been beyond her skill, and traces might have been found. I would suppose that a long candle in a shallow tin of gunpowder would be nearer her mark. She would have found by experiment that the candle would sometimes extinguish itself in molten wax. It would be surer if a hole were drilled through the base of the candle and filled with gunpowder. I think that I saw, through Mr Muir’s study window, scorch-marks on his workbench which might have resulted from such experiment. If I am right, there would also be traces of candle wax. Investigation by the police would certainly determine whether or not such signs were there.
‘That, My Lord, concludes my theorizing, but I would like to bring to your attention some supporting evidence. First, may I see Mr Muir’s gun?’ The gun was fetched by the macer from the table behind Keith. The bend in the barrels was conspicuous and, to Keith, offensive. He looked first at the number on the tang of the trigger-guard. ‘The number on this gun agrees with the number on the fore-end in the photographs which will be produced. Also, the insides of these barrels are clean. The gun has not been fired since it was cleaned. I find it extraordinary that the officer in charge of this investigation either missed or suppressed that fact.’
‘Please refrain from criticizing the police,’ Lord Bickenholme said. But he spoke gently. ‘Continue with your evidence.’
The gun was passed round the jury. Several men tried to look through the barrels.
‘Next,’ Keith said, ‘I will call your attention to the windscreen of the Land Rover. When I saw the scene, I noticed that the windscreen had blown out in one piece and had landed unbroken in a bush. I noticed that it was scratched. May I see it please?’ The macer brought the windscreen and, on Keith’s instructions, turned it round. Keith nodded. ‘Please show it to His Lordship and to the jury. They’ll see the scratches. And they’ll see that they are circular or spiral. Look against the light. Scratches just like that are only too familiar to those of us who let our wives drive our cars. They get made by a lady who wears jewelled rings and uses the back of her hand to wipe the mist off a windscreen. Mr Dumphy and others will state that Mrs Muir never sat in, let alone drove, her husband’s Land Rover. And a mechanic from Ledbetter’s Garage in Newton Lauder can testify to putting a new windscreen in Mr Muir’s Land Rover shortly before Mr Muir’s death.
‘Finally, I suggest that the defence calls Mr Dunbar, the witness who arrived back from the Middle East only this morning. He informed me, and will inform the court, that he was also out after pigeon that morning. His position overlooked the road, perhaps half a mile south of where the Land Rover was found. He saw a car go by which may be assumed to be Mrs Muir’s, on her way to her tryst with the accused. Mr Dunbar described the colour of her car, and if there is another like it around Newton Lauder I’ve never seen it. His attention was drawn to the car by “the white plume of the exhaust” as he put it. It is common experience, My Lord, that in cold weather a car’s exhaust will produce visible steam while it is cold but not after the engine and exhaust have heated up. I suggest that, if Mrs Muir had done the five or so miles from her home non-stop, the exhaust of her car would not still have been visible.
‘That is all. I have no more observations to offer.’
‘I have no further questions for this witness,’ Garrard said, his tongue firmly in his cheek.
Lord Bickenholme looked at the courtroom clock. ‘We have already passed the hour for adjournment,’ he said, ‘and no doubt the counsel for both sides would like time for thought before we proceed. We will adjourn until ten am tomorrow. The police will visit the house of the late Mr Muir and investigate as suggested by Mr Calder. Mr Calder,
you will attend in the morning for cross-examination. In the meantime, you must not discuss your evidence with anyone at all.’
There was whispering between Mr Enterkin and Garrard, who rose for the last time. His face was lit with mischief. ‘It is for the jury to return a verdict, My Lord,’ he said. ‘But it must already be evident that the defence has provided an explanation of the facts at least as credible as that of the prosecution.’
‘If you are about to ask me to dismiss the case, you are somewhat previous.’
‘I was about to suggest, My Lord, that bail in a murder case is unusual but not unprecedented. My client is a man of substance. He will not disappear before the verdict.’
‘But Mr Calder may well not stand up to cross-examination—’
‘He may well not,’ The advocate-depute said, without rising.
Lord Bickenholme frowned. ‘Your client,’ he said to Garrard, ‘can spend one more night in detention—’ there was a long pause ‘—before hearing the jury’s verdict.’
*
‘And,’ Mr Enterkin said as he drove slowly past the last lights of Gilmerton and out into the dark countryside, ‘if that wasn’t a strong hint then I don’t know one when it jumps up and down in front of me.’
‘Can’t comment,’ Keith said, yawning. ‘Not allowed to discuss the case.’
‘Who’s talking to you? I was addressing your friend in the back seat. We can’t prevent you listening, of course.’
‘Who’s listening?’ Keith said. The taste of exhaustion was in his mouth. Virtue had gone out of him.
‘I certainly took it for a hint,’ Watty Dunbar said from the back seat. ‘Surely it’s all over bar the shouting? The prosecution can hardly make out that theirs is the only reasonable explanation.’
‘You may be right,’ Mr Enterkin said. ‘Quite possibly. If Keith stands up to what’s certain to be a pretty searching cross-examination. And, of course, always providing that you and the other witnesses – not excluding my own self – do their stuff. It really is a pity that he can’t discuss the case. I’d have liked to tell him he was quite right about the archery. I remember now. Some of the trophies on the Muir mantelpiece feature minute figures of toxophilites in Cupid-like attitudes. And I would also have liked to give him some advice regarding cross-examination.’
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