Expert Witness (9 page)

Rule 2

Having established that you will definitely be required to attend court, decide what you're going to wear. Make sure it's clean and ironed. Take your clothes to a room where, tomorrow morning, you will be able to get dressed with the light on despite sunrise not being due for three hours after you've left the house. This is unless you live on your own, in which case you can wander around in the buff to your heart's content, looking for that lost sock.

I learnt about getting dressed with the light on from the man
who went to court wearing one tan shoe and one black shoe — all because he'd got dressed in the dark. The impression he set was less ‘sophisticated, highly trained and experienced expert witness' and more ‘wandered out from local institute because they left the front door unlocked at breakfast time', particularly as he didn't notice until it was too late to nip to a local shoe shop.

Rule 3

Always carry a small amount of cash for emergency situations. All courts are different, all parking situations at said courts are different. Even travelling by public transport has its risks of cash outlay including unexpected delays requiring purchase of drinks and sustenance. Some public toilets, such as those at King's Cross in London (even Platform 9
³
/
⁴
) require money to gain access to said facilities, although presumably Hogwarts pupils can just magic their way in. Public car parks are unpredictable in location and cost — Brownies, Guides, Cubs and Scouts: Be Prepared.

Rule 4

Always, always arrive early at court so you can scope out the landscape, find the courtroom and check for the tenth time that you've got a working pen and some paper.

Rule 5

Take tissues (possibly more relevant for women). Not for unexpected emotion, but for lack of toilet rolls. One particular court springs to mind — it has blue lighting to stop drug users seeing their veins for shooting up. It also has no locks
on the doors, no toilet seats, metal sheeting instead of mirrors (desperate people can slash their wrists with broken mirror glass; it's pretty hard to break sheet metal) and no toilet rolls. The toilets in question have never pretended to have toilet rolls — there aren't any toilet roll dispensers. These toilets have never pretended to have toilet seats either — not sure why; the only thing I could think of was not being able to use them as weapons. Of all the courts I've been in, this one could have learnt from the way things were done in London's Central Criminal Court in the early 1900s, when there were separate waiting rooms for ladies and gentlemen with yet another separate room for ‘the better class'.

Rule 6

Turn off your mobile phone once you've met up with your instructing counsel — they're the only people who count until you've given evidence and are no longer required at court for that particular case that day.

Rule 7

Always make sure you have your name ticked off on an official clipboard as soon as you arrive at court. If the officials who run the court don't know you were there and the time you arrived, even if you give evidence in a case, you run the risk of not getting paid.

Rule 8
(courtesy of a former colleague)

When you've been released from a case, run like the clappers until you're out of sight of the front door and don't turn on your phone again until you're at least an hour away.

D
ouglas Adams once wrote about a rain god in his book
So Long, and Thanks for All the Fish
. This guy was a long distance lorry driver who happened to be a rain god. He didn't know he was a rain god but the clouds loved him and followed him around everywhere. He saw so much rain that he classified it. I'm not a rain god but I think I've been stuck behind him on many a long, court-related journey. I like to try to classify the rain when I'm travelling, whether I'm stuck in a traffic jam on the Auckland Harbour Bridge or peering out at the drizzle blowing horizontally across the runway at
Christchurch airport, just so it doesn't depress me any more than it already has. The only time when I haven't been that bothered about the rain was when I was landing at an airport in one of those planes that are so narrow you can stretch out your arms and touch opposite sides of the cabin at the same time. From your seat. On that occasion, the plane was coming in at such an angle that when I looked out of the cockpit window (because there are no doors to the cockpit either), I couldn't see the runway. That was because I could see it out to my left — the cross-wind was
very
strong (no, it wasn't Wellington) and we were coming in at a strong angle to compensate; the rain really didn't seem that important at that point.

I've travelled a lot in my time and I've seen a lot of rain. There are lots of different types of rain. Sumatran rain is hard and merciless, but precise in where it stops and starts — you can literally draw a line on the ground where it has decided not to rain. Auckland rain is similar but with more wind. Scottish rain is bitingly cold and, in the highlands, often horizontal. Canary Islands rain is warm and not cleansing at all. It somehow manages to make you feel more grimy than before it rained, but that could just be the gentle wafting of rehydrated vomit and stale beer recently deposited by Brits abroad on a stag week. Australian rain some times doesn't even touch the ground because it's so hot. However, of all the rain I've ever encountered English rain depresses me the most. It's grey, dreary and incessant. I once heard a description of an English winter as like being stuck inside a Tupperware box for six months of the year.

I have never been more concerned about the type of rain
than the time I went to court in a drugs case. The memory of this case came rushing back to me when I gave a talk to the Auckland Executive Club. I put up a photo of some fragments of cannabis resin, to provide an example of the sort of casework I've done. As I looked at it, the memories barged through some door at the back of my brain, careered into my thinking area and clogged up the view.

The case itself wasn't difficult: the defendant was claiming that the weight of cannabis resin reported by the police was incorrect — he said it was less than reported. He also said he had cut up some of the resin using a knife with a serrated edge. I had to go to the forensic science laboratory, examine the resin, weigh it, confirm it was correctly reported and check the cut faces for signs of having been cut with a serrated knife of the type that was supplied to me. The resin had started off as a whole block and was described as such by the Crown scientist, although she commented that it was quite dry and friable. However, after it had been driven 300 kilometres back to the police station and then back to the lab for my examination, it had broken into pieces. Small, small pieces. Not a problem — all part of the job. I spent a happy few hours trying to piece the bits together to confirm that the cannabis was, indeed, the same as that described by the arresting officer and the Crown scientist. Once I established that, in fact, no one had pinched any or added any to it, and that it was so fragmented I couldn't tell what was a cut edge and what was a sheared face, I went on my merry way, back to the office to write the report and post it to the solicitors.

So, what was the bad memory that swept over me when I was giving my presentation to the Executive Club? The court
appearance, that's what. Travelling to and from court can be quite nice — a bit of a jolly, out from the office for extremely legitimate reasons, some times a nice, short day if the Hearing is within an hour's drive of home and is heard in the morning. Always unpredictable, though. As usual, I had checked with the instructing party the day before and he confirmed that, yes, I would be required.

To make it to court by 9.30 a.m. I had to leave home at five. Crappy weather, raining and cold. Decisions, decisions: go along the back roads or take the motorway. I opted for the latter but got stuck in a two-hour traffic jam. There was a small glimmer of pleasure when I heard on the radio that there was a 10 kilometre tailback on my alternative route so it wouldn't have mattered which way I went. By this time, the radio breakfast show had finished, which meant two things: It was 9 a.m. and I wasn't even halfway there yet and there was no decent radio programme for at least another hour. There was a car fire on the motorway ahead — delay for 45 minutes. By now, it was 9.15 a.m. so I telephoned the solicitor to advise I was running late. I wouldn't get a ticket from the cops because the car was stationary, had been for some time, the handbrake was on, and they were all at the car fire up ahead anyway. I advised the solicitor I'd be there in time for a 10 a.m. start in court. However, I had woefully underestimated the time taken to negotiate a car fire. Eventually, I arrived in the right general location at 11 a.m. but couldn't find the court. When I eventually did find it, tucked behind some trees with no road signage, there was nowhere to park, despite the solicitor advising me yesterday that there was loads of parking and, no, I wouldn't need any change for a parking meter.

I rolled into court with cramp in my legs having spent six and a half hours driving across the country in the pouring rain and what did the barrister say when I got there? ‘Who are you?'

Rather than poking him in the eye and storming off, which is what I wanted to do, I explained to him that my presence was requested, by his solicitor. ‘Oh, your report was agreed by the prosecution yesterday. You really should have rung to check that you were required; my client changed his plea to guilty last night. I'm not sure whether your fees can be paid, seeing as we didn't know you were coming.' Strangely enough, the instructing solicitor, whom I had rung while I was on my way to court, wasn't actually at court, even though he told me he was.

So, what did I do? What could I do? I got back in my car, turned round and took five hours to get home, swearing most of the way, still trying to find some thing decent to listen to on the radio. Inevitably, I became stuck in the rubber-neckers traffic going past the car fire in the opposite direction because let's face it, it was a big fire and I'd only gone past it 40 minutes previously. Total of my day: 10 and a half hours driving in drizzly winter weather, five minutes at court (including three using the bathroom), no court appearance, more time spent ‘at work' than on a normal day. To this day, I wonder if the solicitor was ever actually at court and if he was, whether he hid when I arrived because he should have told me not to come. Or whether he got me mixed up with another case he was doing that day. I classified the rain that day as grey, depressing drizzle, persistent and likely to last for some time.
Having made it to court and actually being required to do some thing when you get there, there is the potential problem of having to get up and speak in front of a lot of people you don't know.

Many people have a fear of public speaking and I was no exception. I swore I would never
ever
give another presentation to my peers after a particularly harrowing experience presenting some research findings as a soft-bellied, freshly hatched PhD graduate. Quite how I ended up giving evidence once or twice a week for six years is quite beyond me — it just sort of happened. Giving evidence in New Zealand happens less often, but, as with buses, court appearances seem to come irregularly and generally in groups of three. Giving evidence to a court is the part of being an expert witness that, to be honest, no one really thinks about when they get into the job. Even when people are asked about it in a job interview, you can see them lie through their eye teeth about how they're absolutely fine with the idea, the key word here being ‘idea'. By the time they realise how tough it is, it's too late. The prospect of even contemplating giving evidence reduces the strongest constitution to a sweaty, clammy amoeba with damp hands and armpits and a pasty pallor. And that's before they've even actually got to court. It's just one of those things you can either handle or you can't. If you can't, it's going to be a short career.

I'm not even sure if you ever get used to doing it. Each court appearance is different, each case is different, all the personalities involved are different — if anything the only thing I can say about it is, in the words of Forrest Gump, you never know what you're gonna get. It's definitely not as nice as
a box of chocolates. It's often said that if you don't get nervous before going to court then you've done some thing wrong.

The blood starts to pump when you open the file at the office and read through it — that's when it goes one way or the other. Either you read through it and know instantly that you worded the key sections of text appropriately so that you can be stronger in what you have to say when you're in the witness box, if necessary. Or you find a blinding error and your whole blood supply flashes round your body in less than a second on its way to the surface of your skin to bring you out in the most almighty panic sweat in the history of creation.

Thankfully, the latter has only happened once. It was a case I'd prepared when I was heavily pregnant and the court date had been set especially for me, based on my return-to-work date three months later. It was a drink-drive case in Wales, so it was going to entail a very early start in the morning. I can see it clear as day in my head: I was at home, it was warm and light outside so it must have been late summer. I read the report after dinner and there it was — the last line of the last paragraph of the conclusions. I'd missed out a word. Instead of reading
Mr X's indicated pattern of alcohol consumption could not have given rise to the recorded breath alcohol reading
, it said
Mr X's indicated pattern of alcohol consumption could have given rise to the recorded breath alcohol reading.
I'd missed out the word ‘not'. It didn't matter that it was correct in an earlier part of the report, the fact was that none of the solicitors ever read the main body of the report in drink-drive cases — they always skipped to the Summary/Conclusions section.

It also didn't matter that my boss had missed it when he'd peer-reviewed it — although it might be true and it might be
his responsibility to make sure my report was correct (you never see your own mistakes, or not at least until it's too late). Such excuses count for diddly squat in the witness box. In fact, such excuses would not even be made. The simple response in the witness box is
I apologise. That was my error
and move right along.

It was the absence of that one teeny tiny word that was the reason for my having to attend court. The gist of the paragraph was that the defendant's story about what he had drunk before and after the incident was credible — it went directly to the heart of the issue, the ultimate issue: whether or not the defendant was guilty. Credibility is hugely important in drink-driving cases because often there's only one account of what the defendant drank, and that's the defendant's account. Here I was saying that the defendant's account was credible when what I actually meant in science speak was that
he was wrong about what he'd drunk.
The total opposite of what I'd written. Panic, panic, sweat, sweat, deep breaths.

Fortunately, I had the solicitor's mobile phone number written on the file (which I now always do, in case of emergencies). I rang him and had to admit my appalling mistake. He was very gracious and I didn't bore him with any efforts to appease the mistake or explain why it had happened. Like I say, no one cares how the mistake happens, they just want someone to hang for it.

I can guarantee the solicitor will have gone into court the following day and made an absolute meal of the whole episode, largely so his client wouldn't have to pay costs for wasting court time. That will have been squarely set at my door. For once I was being blamed for some thing in court
and it really was my fault. I tell you what, it's never happened again. The next time I had a baby, I doubled my maternity leave and took six months, just to ensure my ‘baby brain' had subsided.

The other response to having to attend court is to just refuse. However, if you
do
refuse, there will be a lot of very angry people. I've actually been there when it's happened. I prepared a report for the defence in an alleged rape case. It was a very straight forward report about the drugs that were detected in the blood sample of the woman who had made the complaint to the police, and what they meant in terms of how she would have been affected by them at the time of the alleged incident. From memory, she was more drunk than anything else. Anyway, the expert for the prosecution suddenly decided when we were at court and after the trial had been going for three days that she couldn't bring herself to give evidence. Mad panic in the prosecution camp — they had to draft in another expert. If a defence witness had decided they didn't want to give evidence because they were out of their depth, they'd probably lose their job.

 

I ask you now to clear your mind and accompany me on a journey, a journey along a winding, rocky road of discovery. A road that leads to enlightenment, release and the ultimate destination of one's inner being. No, you don't need to check the cover of the book — you're still reading the same thing. I just want to get you in the mood for imagining. Perhaps I should stick to my day job.