The Crime of Huey Dunstan (11 page)

I HAD NEVER been inside the Court of Appeal in Wellington, although it had been described to me often enough as seen from the steps of Parliament House in Molesworth Street, or from the General Assembly Library next door. I pictured a modest angular pile with vertical windows and white columns and a pohutukawa tree growing in front.

I arrived at 9.30 a.m. Lawrence met me and took me up to the smaller of two courtrooms on the first floor, situated at the end of a carpeted lobby that smelled faintly of sawdust. He left me for a moment, then came back and explained that another case, held over from the previous day, was just ending. We should be on by ten.

“Bit of luck,” he said. “We’ve got Smythe-Martin.”

The Rt. Hon. Sir Reginald Smythe-Martin was the Chief Justice. From the lobby Lawrence could peer in through glass squares set in the door and identify the panel before going in. The hearing was before three judges (Lawrence who intended arguing a rare point of law had feared there would be five judges): Smythe-Martin CJ, who was presiding, took the central position, with the two lesser judges flanking him like book-ends—Justice Lane on his right and a woman judge whose name I have forgotten on his left. They sat at separate tables, the outer two occasionally converging on the centre to compare notes. Lane was deceptive, Lawrence said, seemingly laid back but full of guile and with a short fuse; the chief justice had a penchant for the arts and literature which sometimes ran away with him. The woman judge, a recent appointment from Dunedin, he barely knew.

Just before we went in, Lawrence put down his satchel—I was pleased to learn he had spoken to his daughter and recovered his great-uncle’s “loot”—and wiped his feet on the carpet. “For some reason,” he said, “this place always makes me want to say my prayers.” We went in. Sparrow the Crown prosecutor and his solicitor were already there, waiting.

I sat on the public benches at the back. The seats were padded, the air smelled clean and filtered. The atmosphere was very different from that of its London counterpart where I had once been sent on an errand as a junior probation officer. Both appellate courts conveyed a sense of legal
omnipotence, the difference being that in London the Court of Criminal Appeal, a long narrow room, recalled the snuff boxes and faded leather of a club in St James as described by Evelyn Waugh in
Officers and Gentlemen
, whereas in Wellington the Court of Appeal, void of clutter and noise and where even grief one felt was muted, might have been designed by the secretary of Sport & Recreation or the Wadestown golf club.

Lawrence had briefed me in advance. From the voices reaching me as I sat down and took stock, it wasn’t difficult to imagine the layout. Modern courtrooms follow a set pattern, like supermarkets. The three judges on high, intent on their laptops and references, the two flanking ones suddenly skidding on their casters to the centre for an impromptu conference on a point of law…Below them, the registrar. To the right (their right, my left) the witness stand and press box. Microphones. But no jury of course. Then four benches like refectory tables without trestles for the opposing counsel—counsel for the appellant on the right (my left), Crown prosecutor on the left (my right)—the benches aligned in pairs, as Lawrence explained, two-times-two, one behind the other, so that when a case was ending and positions vacated, the waiting counsel could slide forward pat into the line of fire, tickety boo, on the cab-rank principle. And finally at the back seating for the public, of whom I appeared to be the sole representative.

“Don’t be surprised if they want you up almost straight
away,” Lawrence said. He came back and spoke to me as the other case was ending.

There was a short break, then a preamble from the president amid a shuffling of papers a bit like an orchestra tuning up in the pit. Then a question or two—I remember Lawrence being asked to clarify a point. Namely that he was not seeking an acquittal for his client.

“I take it,” he was asked, “the appellant does not seek to be exonerated for his crime?”

“Oh no,” Lawrence said. “Mr Dunstan accepts the need for punishment. He told the prison doctor before his trial that he was ready to consign himself to a lifetime in prison in order to atone. I am informed by experts that had he been acquitted at his trial, it would have been disastrous. He would have been plunged into deep depression. He might have hanged himself. No, what we are seeking in our submission for a retrial is a verdict of manslaughter, not an acquittal.”

Then I heard my name called. Lawrence took me up to the witness box where I stood—there is no chair in the Court of Appeal—was sworn, and heard a gnarled throaty voice inquire, quite close, as if continuing a conversation we had begun the day before:

“Just a couple of supplementary items, professor, if you wouldn’t mind. We have your affidavit outlining the fresh turn of events. I gather the information was given to you by the appellant in Middlemore Hospital. But we are not clear what Mr Dunstan was doing in hospital, except
there had been an altercation of some sort. What was he doing there?”

“My mistake, Your Honour. An oversight.” I explained about the broken arm.

“Both the radius
and
the ulna were broken?” the voice continued. And I thought I heard the owner of the voice—it could only be that of the chief justice—wince into his microphone.

There was a hum in the air, a distant
puss-pussing
sound that seemed to emphasise a silence that had not occurred. The gnarled voice went on:

“The disclosures in your affidavit, professor, if they are to be believed, seem to open up a new chapter. They go to provocation, of course. But we are a little puzzled…”

Here it comes
, I thought—the touch on the thigh. I had anticipated the question, as had Lawrence. “Whatever happens,” he had warned me, “don’t go there. Don’t let them take you down that path or they’ll think you got into bed with him.” We had rehearsed what I should say if the question arose, but I was still uneasy, imagining the newspaper headlines next day:

“We are a little puzzled, professor, as to why it should have taken the appellant so long to disclose the allegation of
abuse, the touch on the thigh which it is claimed in your affidavit was the instrument of provocation. You see the point. Plus of course the look, the smile that induced the flashback, as alleged. But principally the touch on the thigh. That’s the nub of it, isn’t it?”

I said, “You mean why should Mr Dunstan have told me, when so many others had failed to prise the secret from him?”

“Exactly.”

O the relief!

“Can you enlighten us, professor?”

“I have asked myself the same question,” I said. “I’ll try to explain it.”

“Please do.”

But now my relief at having escaped the other question, the one I had dreaded, was succeeded by a sense of panic. My mind had gone blank. How
did
I explain it? I stood there wilting like a stunned mullet.

Eventually I cleared my throat and said, “I hope this won’t sound self-serving, Your Honour. Quite simply, I told him a story.”

“The appellant?”

“The appellant, Mr Dunstan. Yes. I told him the story of a man who had committed what he believed to be a criminal offence on account of a trifling incident in his youth, which had so consumed him with guilt that he was unable to own up to it. He had kept silent all his life. Then one day he met a stranger and blurted out his secret
to him. I think this took his fancy.”

“Why do you say that?” It was the woman judge who spoke. Her question caught me off balance. “Why did it ‘take his fancy’, professor?” Something in her tone struck me as derisory. Her tone was impertinent.

“Why do you think that took his fancy?” She repeated the question.

Because I was trying to gain his confidence, you stupid woman!
I nearly said.

Because I was trying to be honest with him.

Because what happened in the caravan had stunted his relationships
with women.

Because (excuse me, madam—have you ever been raped?), because
the trauma lasted through adolescence and has never stopped.

Because water that doesn’t run turns sour.

Because he had been guarding his virginity.

Because he had learned to survive by not trusting another human
being.

Because, madam judge—

“Would you like a glass of water?” somebody said to me. I don’t know how long I had stood there mouthing these thoughts to myself. The water was lukewarm. I drank it slowly, listening to the whirring in my head, before saying in reply, as nicely and neutrally as I could:

“Because the man in the story, Your Honour, was me. Until that moment I had not told anyone.”

“Yes, I see,” I heard the chief justice interpose, after a pause. “I see.” There was a skidding of chairs on the stage.
They were conferring. The chairs stayed together for a few minutes, then broke apart.

“I think I see,” the CJ repeated, and this time there was a kind of hospitality in his voice. “Mr Dunstan was the stranger, the stranger in your story. A story-within-a-story …A sort of parable, professor? I see. And then he became tearful. That led to the tears you describe…?”

The chief justice continued as if talking to himself: “I can see how that might appeal to him, it’s reasonable I suppose. Perhaps not a parable, professor, more of a metaphor. It happened by metaphor. I suppose that is what you are telling us. Of course, there are different sorts of metaphor which can appeal to different sorts of minds, as the poet Borges says. But I don’t think we need go into that now…Are we agreed? I think we are agreed. Well, thank you, professor, for clearing that up.”

That was all they wanted to know. I stepped down.

AFTER THAT IT was easier. All I had to do was sit at the back and listen. The whirring sound had ceased. There was an awkward moment before Lawrence was formally granted leave to appeal, when one of them, Justice Lane I think, raised a procedural point; then came another break, and the appeal proper began.

Lawrence outlined the case. He was frequently interrupted, as when he described the drama on the opening day of the trial when the photographs of the deceased were shown to the jury, and one of the jurors had to be taken to hospital after fainting. The juror was a diabetic and on returning to court had insisted on carrying on.

“I would have preferred a fresh jury,” Lawrence said.

“Why?” the woman judge asked. “Why didn’t you ask
the trial judge to withhold the photographs, if they were so shocking?”

“I did,” Lawrence said. “It made no difference.”

Again, when he described Huey’s mistrust and fear of being touched, Judge Lane said: “I thought your contention was that the mistrust stemmed from what happened in the caravan. Now you seem to be saying it began with the burns he received as a three-year-old. Are you saying it was both?”

“Yes. Both,” Lawrence said. “First after the burns when he was stuck in a glass case with tubes coming out of it, no one to hug him or touch him or snuggle up to him. Complete isolation. Then he’s stuck in a caravan where fresh trauma ensues of a most disturbing kind, as you see from the evidence of the affidavit which you have in front of you. Trauma added to trauma. The effect was cumulative. He suppressed the past so successfully that when the trigger came, the touch on the thigh that preceded the attack, he had no coping mechanisms at all.”

“Yes, thank you. Tell me, Mr Goodenough. What happens if your appeal fails?” It was the chief justice, Smythe-Martin. Was it a trick question?

His voice had mellowed, less gnarled, with a hint of mischief. Lawrence shot back that he had lodged the appeal at his own expense and if the hearing went against his client he would take his case to the Privy Council.

Lawrence spoke for more than an hour. I don’t remember them breaking for lunch, although I suppose they must
have done. I slipped out for a sandwich, and rang Lisbeth; then remembered I had to go to the chemist and the bank. When I got back, the Crown prosecutor was on his feet.

Mr Sparrow addressed the court in measured tones. He reminded me of a wel-appointed suburban bus conductor. Mr Sparrow said Huey’s killing of a defenceless old man was unprovoked and deliberate. Well might his counsel claim he had lost control and killed in a frenzy, but anyone could see that his acts afterwards—drawing the curtains, smashing the outside street lamp, going back inside and striking the still-twitching body with the axe, administering the
coup de grâce
in cold blood—were those of a callous and rational man in command of his senses.

He had recovered his senses, he said, “in a very short time”.

Predictably, Mr Sparrow questioned my opinion. Not only did he attack my credibility but he repeated the words of the trial judge—“Is Professor Chesney in a better position than anyone else to make inferences about provocation?” On “proportionality”, the prosecutor continued, the attack was “out of all proportion” to the event which provoked it (the touch on the thigh). But such were the subtleties and legal distinctions and arcane points of law Sparrow raised, that he lost me.

Provocation, I knew, was an important question. For Lawrence, it was
the
question. He had argued in the morning that the trial judge had erred; he should “never have ruled on the matter of provocation at all”. But Mr Sparrow had
come prepared. He cited precedents, including one from the seventeenth century where “if a fellow pulled you by the nose, it was sufficient provocation to justify running him through with the sword in retaliation.”

“Is my learned friend suggesting we are still living in the seventeenth century? I think not,” Mr Sparrow said.

At this point I dozed off. I sat up when the judges began to produce their own precedents, dozed again, then I heard one of them, I think Judge Lane, say: “Do you mean, Mr Sparrow, that we should measure Mr Dunstan’s response by the standard the law applies to a normal person?”

“No. I didn’t say that.”

Claws were being sharpened.

“Or did you mean,” interposed the chief justice, “did you mean that the offender must be presumed to possess in general the power of self-control of the ordinary man,
except
in so far as his power of self-control is reduced
because of some peculiar characteristic or difference in psyche possessed by him?”

“You see, Mr Sparrow,” Judge Lane took up again—and it was at this moment (I could almost smell the provocation on his breath) that I began to entertain thoughts of treason. These appellate judges, I thought to myself, these abstract entities in black gowns plumped on chairs with runners in the highest court in the land, were not interested in Huey Dunstan at all. Whether he was put in a glass case and orphaned at three or abandoned to his fate at seven. Whether he was abused or not abused. Whether he was to
be helped or left to rot in Paremoremo. Mercy? Questions of mercy did not concern them. Courts were not designed to entertain thoughts of mercy. Remorse?
I would gladly give
my life to change what happened
, Huey had said to me in the hospital. But these appellate judges were not interested in remorse or contrition either. They were interested in points of law. As in:

As in:

This, I told myself, is what we have come to. This is what really excites them, the nuances and particularities of their profession. They reminded me of the famous surgeon who in 1967 performed the first successful human heart transplant—and when asked by his wife when he got home
afterwards to give her something for a migraine, had no idea how to help her. These judges were like that. Outside their own field they were at a loss; they were good for nothing beyond what their training had equipped them for; somewhere along the line their feelings had been amputated. They were no better than hired hands.

Suddenly, for the second time, I sat up. I don’t now remember what exactly it was—the word “unique”?—that roused me.

Judge Lane was saying:

“You see, Mr Sparrow. You will appreciate that we are wrestling with the application of a notoriously difficult aspect of criminal law to a unique set of facts. A killing has occurred, allegedly the result of a flashback to an event perpetrated by a Doppelgänger, a double or duplicate of the unfortunate victim, the deceased. So we are told by Mr Goodenough. Mr Goodenough in his submission would have us think of the deceased as perhaps a kind of agent provocateur. Professor Chesney tells us that never in his experience has he encountered such a set of circumstances. And the literature appears to bear him out, that the facts are possibly unique. Now. Mr Goodenough for the appellant submits that this case has opened up an area that is not defined in law: it goes to provocation. He submits that there may be a case for redefining ‘provocation’. What do you think? You have not addressed his point.”

“I thought I had, sir.”

“Oh no. You have been talking gobbledegook.”

Judge Lane pronounced the word, “gobbledegewk”. “Bravo,” I said, under my breath.

But the Crown prosecutor was not in the least fazed. “I have an Australian authority, Your Honour,
the Queen and
Adam (1990)
which rules that the gravity of the act—”

And Mr Sparrow plodded on. He continued to argue. Again Judge Lane intervened:

“Mr Sparrow, we are at opposite poles and must agree to disagree.”

Undeterred, the Crown prosecutor produced another authority,
R v Burke (1969)
. I badly needed to pee. I imagined the judges did too. A microphone crackled. The bench was growing restive, although the chief justice was smiling (as I thought). I imagined him leaning forward to adjust his microphone with a sweet and apologetic smile. He said: “By a strange coincidence, Mr Sparrow, I have
Burke
open in front of me.”

Mr Sparrow almost yelped with glee. “Thank you, sir. I believe it supports what I am saying.”

“Oh no. I thought it supported what Judge Lane was saying,” the chief justice said.

General laughter.

I fled.

It was nearly four o’clock. I excused myself from the court and left them to it.

“Mildly promising, I think.” Lawrence telephoned me when he got back to Cornford that night.

It was nearly midnight. I had waited up for the call. Lawrence wouldn’t commit himself any further. They had gone on, he said, till a quarter to five, almost the full day. He sounded tired.

“When do we hear?” I said.

“A month at least. It could be longer. Don’t hold your breath.”

It was more than a month. I was at first cautiously optimistic, but as the weeks passed I began to have doubts. I thought of cancelling our planned trip to Florence in September, but Lisbeth said that as one of the keynote speakers I had to attend the conference. She was right of course. Lisbeth had set her heart on Florence and sitting round waiting, as she said, “won’t make your nails grow any faster”. The trip was good for us both.

It was nine weeks before the judgment came.

We returned from Florence on the last Friday in September. The following Tuesday I was up early. I took Lisbeth her coffee in bed and a glass of water and lemon juice warmed the way she likes it, and sat down with a cup of tea in the living room at the piano. I hadn’t played the piano in months, and I didn’t now. I considered writing a letter to the newspaper about something or other, but instead put on my dressing gown and went outside and watered the herb garden although the forecast was for rain. The parsley was wilting. I went into the bathroom and listened to the news on the radio while I shaved. Now what?

“Go and write your memoirs,” Lisbeth said. I had put them aside when we left for Italy, and was in no mood to go back to them—I took the radio into the kitchen and mooched about wondering what I would cook in the evening. Pasta alla Norma? I took out from the pantry fettucini, garlic, a tin of peeled tomatoes, olive oil, almonds, salt, pepper, and scoured the fridge for aubergines without success. I’ve made Pasta alla Norma dozens of times, the basic ingredients I can locate because they’re labelled in braille. But I still like to know in advance that everything is there, where I can put my hands on it when the time comes. My study is a congenital mess, but in the kitchen my desire for order is absolute. I am a despot in the kitchen. Lemon squeezer—where
is
it? Are the onions brown onions or red onions? I scream if the pepper grinder or my long-handled sauté pan isn’t where it should be, the same goes for the paring knife to slice the aubergines, the pastry brush to coat the slices with oil (right-hand drawer), the olive oil (beside the vinegar), the cooking spoons (in the jug), the almonds (top shelf, left)…The recipe is from Sicily and says pine nuts but almonds are better besides cheaper. The baking sheet (next to the bread board). And the mortar and pestle (beside the Len Castle pot on the window-sill) to crush the garlic. I am not a gourmet and I am not a perfect cook (please avert your eyes from the scorch marks on the bench), but I am a fussy one and I guard my patch like a secret policeman.

I jotted down mentally in my head. I remembered we had run out of parmesan for grating, added that to the list, put the night before’s dishes in the machine, switched it on and went into the bathroom to shave, forgetting I had done that already, and at about twenty minutes to ten was back in the bedroom getting dressed when the telephone rang.

“Morning, Ches. Are you standing up? We’ve got a judgment.”

“Just a minute.” I was sitting on the edge of the bed with my trousers half on and half off. I put the phone down, pulled them up and went to a phone in the other room. Lisbeth was still in bed, reading.

“Hello. Lawrence. I’m here.”

“They’ve ordered a fresh trial.”

“True?”

“True.”

“When?” I said.

“What d’you mean, when?”

“Silly question. Sorry.”

“What’s the matter with you, Ches?”

“Nothing. Excitement.”

“What’s that squeaking noise?”

“Lisbeth’s probably listening in on the other phone. She’s still in bed.”

“Must be the bed.”

“You’re not kidding me,” I said.

“I’ve asked the registrar to post you a copy of the judgment.”

“You don’t sound a bit excited, Lawrence.”

“It should be in your box tomorrow morning. Silly bugger.”

“What?”

“I said you’re a silly bugger, Ches. I’m in court.”

“This is a very strange conversation,” I said.

“So is the judgment. Talk to you later.”

I saw what he meant when the envelope came the next day. It took us half the morning to work out the logic of the reasoning. The judgment by the Court of Appeal was thirty pages long. Lisbeth read it out to me, page by page.

“It says here, Charlie, ‘In his summing-up, the trial judge put the defence case fully and fairly’. They’re apologising for him.”

“No, no. It’s just their way of buttering him up before they knock him down.”

“I don’t get it.”

“They’ve thrown the book at him. That’s just one aspect. They say he ‘misdirected the jury’, full stop. Lawrence appealed on a point of law related to the defence of provocation, tick. He appealed on the grounds of expert evidence, tick. He appealed on character evidence, tick. They have found for him one, two, three. What they are really saying is that the trial was bungled by the
stupidity of the judge.