Wednesday, 9 July 2014

Appetite For Destruction

As he prepared himself for his latest conference, Daniel Soames looked at his clock and realised the conference was due to commence in about ten (10) minutes. He thought conferences between the Accused and his legal representatives shortly before the trial have an amazing ability to concentrate the minds of all concerned on the relevant issues.

Within moments of that thought concluding, Stuart Hemlock arrived with the Accused, Brogan Affleck, for their scheduled conference. Daniel said to them both, “Come in, let us get started.”

After the initial and very brief introductions, Daniel got straight down to business.

Daniel said to Mr Affleck, “I will tell you the case as I understand it and then I will tell you my response to that case. After I have finished, you can ask me any questions you may have about my understanding and my proposed approach. Is that acceptable to you?”
Brogan Affleck answered  “Yes.”

The Offence
Daniel continued “The Crown case is that the relevant occasion was a Friday night and The Complainant, Hamish Doyle, went to the Zulu Bar at the Hacienda Hotel, a venue well-known to be frequented by homosexual men. Mr Affleck, you went to The Gallery upstairs at the Hacienda Hotel to see The Hoodoo Gurus play.

“At the conclusion of The Hoodoo Gurus concert you and two mates left the venue and were milling around outside with many of the other patrons from The Hoodoo Gurus concert. The Complainant and his friends had been discussing whether they would leave the Zulu Bar and go to The Beat, another nightclub not far away.

“Once The Complainant and his friends were on the footpath outside the Zulu Bar, the Complainant was attacked and violently assaulted. It was an unprovoked attack and it occurred in circumstances where he was effectively unable to defend himself. There were a lot of people around, but it happened so fast, no one was able to conclusively say what happened and in what order. You were present, but no one was able to conclusively say precisely what you did. You were certainly a strong suspect as the perpetrator of the attack.

“The injuries to The Complainant were serious, he received a punctured lung. However, medical intervention resulted in him being able to completely recover from the physical aspects of the injury.

“Whatever closed-circuit television cameras were available at the scene, they were not sufficient to conclusively show that you were the offender. Accordingly, the investigating police knew identification was definitely going to be an issue. Police subsequently arrested you and whilst you made no confession, nevertheless you were charged with doing grievous bodily harm to the Complainant.

“The legal representatives you engaged at the committal hearing were not Stuart and I; it was another firm of solicitors and another barrister. After the committal hearing you changed legal representation and consulted the firm that employs Stuart. In turn Stuart briefed me to appear for you at your trial.”

Advice On Prospects
“The identification evidence is pretty thin and there is little other evidence of any significance against you. In the circumstances you have a reasonable chance of being found not guilty of the offence. However, there is evidence upon which the jury can convict and if they find you guilty on that evidence, it will be difficult to argue that the verdict was unsafe and unsatisfactory. So there are good reasons for the Crown to proceed with the prosecution. There are also reasonable grounds for you to want to pursue a trial.”

“Is that a fair summary of the situation in which you find yourself?” Daniel asked Brogan Affleck.
“Yes it is”,  Brogan Affleck replied.
“Do you continue to deny your involvement in the offence?” Daniel asked.
“Yes I do”, responded Brogan Affleck.
“So I take it that you still want to go to trial, that you are not interested in pleading guilty to the offence?”
“That is correct” Brogan Affleck replied.
“Well then, Stuart can take those written instructions from you, as he is so good at doing. We can then wrap this up. I will see you both back here the morning of trial.”

The Trial
During the second day of the trial, in the absence of the jury, the Trial Judge spoke to the Crown Prosecutor and to Daniel.

"Earlier in my career, when I was at the bar, I argued a matter in the Court of Appeal for the Crown. It was similar in many respects to this matter. The appeal by the Accused was allowed on that occasion and the Appeal Judges said to the Court that the particular location in Fortitude Valley where the alleged offence occurred was notorious for violence. It is the same location that is the subject of this trial.” The Judge continued, “It could not be conclusively ruled out that at the same time as an assault was occurring on one corner, another assault was occurring on another corner of that block. That being the case, the Crown could not conclusively prove the identification of the Accused and we shall find him not guilty of the offence with which he has been charged."

The Trial Judge then said to both barristers that the not guilty verdict option was realistically open to the jury to find in this case and he would be leaving that aspect of the defence case to the jury for them to so find; unless the evidence against the Accused improved for the Crown in respect of identification.

At the end of the second day of the trial Brogan Affleck went on his way, leaving Daniel and Stuart to talk amongst themselves. Seizing the opportunity presented by the absence of Mr Affleck, Stuart asked Daniel how he thought the trial was going, to which Daniel replied:

"I think there is a very real chance Mr Affleck will be acquitted. The identification evidence is fairly thin and the aspect of the case the Judge raised earlier in relation to the identification was absolutely possible as an option for the Jury."

Stuart seemed to be both surprised and happy to hear that assessment from Daniel.

At the same time The Complainant Hamish Doyle, his brother Garrick and their sister Elise had a conference with the Crown Prosecutor. Garrick asked the Crown Prosecutor how he thought the trial was going.

The Crown Prosecutor said, “This is not the strongest case I have prosecuted, but I remain confident that the jury will find the Accused guilty when the time comes.”

Garrick then said to the Crown Prosecutor, “I got the impression from the Judge that there is a reasonable chance the Accused will be acquitted, particularly in light of what the Judge said about the identification evidence. What do you say about that?”

“It is certainly open to the jury to take that view of the case” the Crown Prosecutor replied.  “In any event, we are not going to change that situation by talking about those kinds of possibilities now. Unless you have any other questions, I propose to return to my office.”

Hamish, Garrick and Elise Doyle all said they had no further questions and they would see the Prosecutor tomorrow.

With that they all parted company and went their separate ways.

Calling In a Favour
Privately Garrick was a long way from happy with the prospect of the Accused being found not guilty of the assault upon his brother Hamish. As he drove home from court Garrick could not stop thinking about how unfair it would be for the Accused to get away with that assault. He decided to take a slight detour on that journey home via a pub at which he attended semi-regularly. When he arrived at the pub, he proceeded directly to the public bar and noticed his mate Davo sitting alone at a table. There were not many other people drinking in that bar at the time and no one was sitting particularly close to Davo. Garrick ordered an orange juice, collected his drink and walked over to sit at the table with Davo.

After an initial exchange of greetings Garrick said to Davo, in a soft but stern voice, “I want to call in the favour you owe me.”
Davo replied, “Do you really want to have that conversation here, now?”
“Well I have not really got much choice.  Time seems to be a pretty significant factor.”
Davo said, “All right, but not here. Meet me in the car park, near my car, in five minutes.”
“Okay, I will finish my drink and meet you in the car park in five minutes.”

Davo finished the small amount left in his glass and walked out of the public bar to his car in the car park. Garrick took a little longer to finish his drink and then he too left the public bar, but by a different exit to the one Davo used.

Once they were both in the car park standing next to Davo’s car, Davo said to Garrick, “Do you know what you are asking?”
 “Yes” replied Garrick.
“Are you sure you want to do this? Davo asked.
“Yes” said Garrick “I want the guy who assaulted my brother taken out; and I want you to contact the guy you know to take care of it.”

After a short pause Davo said to Garrick, “Once you engage this guy, there is no turning back. You understand that, don’t you?”
“Yes, I understand” said Garrick.
“Do you also understand that you must do everything he tells you or there will be serious trouble for you?” Davo added.
“Yes I understand” Garrick said again.
“OK, you stay here, while I go and telephone him” Davo said to Garrick.
“No problems” Garrick replied.

Davo walked around the car park of the pub to where there was apparently no one around and no one within earshot of his conversation.

About five minutes later Davo returned to his motor vehicle and resumed his conversation with Garrick. “Listen carefully” Davo said, “I do not want to have to repeat any of this.” Garrick nodded his head in agreement.

“You will go immediately to the Astor Hotel on Wickham Terrace in the city. You will book into a room under the name William Maynard. Pay cash, do not use a cheque or credit or any type of card to satisfy the bill. Proceed to the hotel room, put the details of the mark in a yellow A4 sized envelope, along with the fee, which will also be in cash, and leave that sealed envelope on the bed in that hotel room. Do not leave anything else in the hotel room and do not disturb anything within the room. Leave the hotel room, return the room key to reception and do not tell reception that you are checking out. Just let them think you are leaving the key with them for safety reasons, whilst you go elsewhere and do your business. You will have done all of these things by 8:30 pm tonight. Do not return to that hotel. If you follow those instructions, there should be no problems. You will know when the job is done. Is that all clear?”

“Yes that is clear” Garrick said.
“All right, I am going to go now. You might want to wait a few minutes before you leave and it is probably prudent for you to leave via a different exit to me” Davo said to Garrick.
“No problems” he replied.

With that Davo drove out of the pub car park and out of sight. Garrick walked to his car, sat in it for a little while, then drove out of the car park by a different exit to the one Davo used and proceeded home.

Garrick headed straight to his bedroom and the safe in one of his built-in cupboards. He opened the safe and took out a yellow A4 sized envelope containing a significant amount of cash. He also took out a folder containing the details of the accused, Brogan Affleck, including photographs of him, and placed all of that material in the yellow A4 sized envelope along with the cash. He sealed the envelope, placed it in a backpack and returned to his motor vehicle with the backpack. He was familiar with the location of the Astor Hotel, so that presented no problems for him. He drove to the nearby railway station where he caught a train to the city and then a taxi passing by to the Astor Hotel.

Once at the Astor Hotel, he did precisely as Davo had instructed him. After he had checked in as William Maynard, he took himself and his backpack to the room. The bed was located against the far wall in the hotel room and he left the yellow A4 sized envelope containing the details of the mark, the accused, Brogan Affleck, and the cash on the bed, disturbing nothing else in the process. He left the hotel room, taking his backpack with him and returned to reception.

At reception he asked the male attendant, “Could I leave the room key with reception, as I am going out for a while and I do not want to risk losing it?”
“No problems sir” the male reception attendant replied.

Garrick then left the Astor Hotel with his backpack, walked to the City and caught a train to the station where he parked his car. Then he drove home.

Trial - Day Three (3)
The next day Daniel and Stuart met at his Chambers shortly before Court was scheduled to start. They had arranged to have a conference with Brogan Affleck prior to the trial recommencing. However Brogan did not attend the conference. Daniel said that it had got to the stage where it was too late to wait for Mr Affleck and they would need to go to Court immediately. Stuart agreed and went with him. Once they got to Court they did not see Mr Affleck.  The time arrived for the trial to start, so they entered the Court.

Before proceedings recommenced Daniel told the Judge that he did not have the Accused with him and he could not explain why the Accused was not present at Court as required.

The Crown Prosecutor told the Court that he had just received news that the Accused had died overnight. That news was so recent, it had only just been passed on to him by the police. In fact there had not even been time to tell Daniel about that news.

At the end of the proceedings Daniel and Stuart left Court and walked to the Chambers of Daniel, discussing the case. After a brief stop at Chambers, they then decided to go and have morning tea.

Daniel thanked Stuart for the brief and said that he looked forward to working with him again. With their morning tea finished, they went their respective ways.