The Reasons I Won't Be Coming

  Involuntary manslaughter, on the other hand, may be characterized broadly as fitting into one of two categories: unlawful-and-dangerous-act manslaughter and reckless or negligent manslaughter. Yadwiga was standing by the dock talking to Ray, who was standing with his feet apart, stretching. Counsel were outside in the courtyard with their instructors, smoking.

  The mental state required for a person who had caused the death of another to be found guilty of unlawful-and-dangerous-act manslaughter was merely the intention to commit the unlawful and dangerous act, be that act the brandishing of an unlicensed weapon or assault or some such act with a weapon. The Associate could not see why the Crown was not trying for an unlawful-and-dangerous-act manslaughter conviction in the alternative. The Judge was in his chambers drinking tea when the Associate put this to him.

  The Judge was at a loss to explain it. The defense was going for broke. It was clear that they were punting on the jury having trouble as to Ray’s intention at the precise moment the gun went off. Perhaps the Crown didn’t want to give the jury the easy way out of returning a manslaughter verdict? Murder or nothing.

  “But what if it is manslaughter?” asked the Associate.

  “I can’t put manslaughter to the jury if neither the Crown nor the defense has gone on that basis. If I did put it to them and they returned with manslaughter, there’d be an instant appeal.”

  “On what grounds?”

  “Unsafe and unsatisfactory, bias in my charge, something along those lines. There’s High Court authority.”

  “But what if manslaughter is clearly open on the facts?”

  “It is, but there cannot be two Prosecutors, one fool down there trying for a murder conviction on the basis that it was premeditated and me up on the bench pushing for manslaughter when the Crown hasn’t even put it.”

  “What if they came back with manslaughter all on their own?”

  “Well, that would be interesting. That’s a different story,” said the Judge. “But would you have the guts, if you were not a lawyer, to return a verdict that neither of two Counsel nor the Judge had put to you? Come on, we’d better get going. Let’s try to avoid an overnighter.”

  The Judge spoke slowly and with a greater solemnity than any of the jurors had ever heard:

  “Murder is committed when a person kills another person by a conscious and voluntary act done with the intention of either killing that person or of inflicting really serious injury upon that person where the act was done without lawful justification or excuse and with the death occurring within a year and a day.”

  The reluctant juror did not think she could stand another minute of sitting there, impassive, inert, next to these people, the eleven other randomly chosen colleagues of hers, that idiot in the yellow T-shirt. How many yellow T-shirts does he have, or does he wash the same one every night? Who cares anymore? Ray is a shit. Yadwiga is a fool at best. Hamish McPherson still can’t get used to being the foreman. It’s the highlight of his life. His family are going to have to shoot him when this is all over. He is unbearable. Will it ever be over?

  His Honor continued:

  “The Crown has to prove that it is not a reasonable possibility that any defense is open on the evidence. There is no dispute that the discharge of the shotgun killed the deceased and I will not deal with that element any further. But the Crown must prove that the discharging of the firearm, if you are satisfied it was done by the accused, was a conscious and voluntary act.”

  The foreman was leaning forward in his seat. What does he mean by if you are satisfied it was done by the accused ? Is that a hint or something? I think he might be trying to tell us something. I’m with you, old boy. I don’t know about the others, but I’m with you. I’ll have to mention it to them later. Must make a note. I suppose it’s part of my role as foreman, that sort of thing. Some of them might have got it, but not all of them. I’m sure the young girl would have missed it, sweet young thing. Then the Judge’s voice came back to him:

  “When I speak of a voluntary act which causes death, in the context of this case I am speaking of whether the discharge of the gun was a willed act of the accused. The relevant question is whether the discharge of the gun was a willed act, a voluntary act. If, for example, a person was holding a gun and had no intention of discharging the gun but was bumped by someone else and then, without his exercising any control over his actions, his finger came into contact with the trigger and caused the gun to discharge, then it could not be said that the act causing the death was the voluntary act of the accused man.”

  The juror with the bra strap wondered. I think I know what he means. It sounds a bit like that night at the beach when that boy drowned. It was hot like it is now and we had barbecued chicken with coleslaw, potato salad, beer and red wine. It was a nighttime beach barbecue to raise money for the surf lifesaver volunteers. I was swimming after everything else, late, with some of the members. Everything happened quickly there as well. There were about four or five of them and me swimming out by the rocks at Sandringham. They were clowning around with me, dunking me and trying to take off my top. It didn’t hurt or anything but then they did get a bit rough. There was a sort of tug-of-war over me. I got kicked. Everyone was having fun until one of the boys bumped his head on the rocks. No one knew. No one meant it or anything. They were just clowning around with each other, some of the volunteers. Maybe he was pushed or just slipped? We didn’t know. Split his head open. I bumped my head, too, and swallowed water. He drowned right next to us. We didn’t know, not at first. Then she heard the Judge again.

  “The accused was asked by Detective Senior Constable Morgan: When was the first time that Wednesday night that you acknowledged that it was Geoff inside the house? Answer: While I was struggling with him. Question: Did you make any efforts to have Geoff identify himself? Answer: Well, I—I could when—while it was happening, it—I could see that it was him. I recognized him. My thoughts were just stopped because I was so—so scared what would be there.”

  Oh God, no. He’s not going to go through all the evidence too? the reluctant juror shouted to herself. Murder was becoming completely explicable to her.

  “Question: You said earlier that you had your finger on the trigger, is that right? Answer: Well, no. I wasn’t aware of it but I must have. I—I can’t understand how else it would happen.”

  The Associate swore in three jury keepers in front of the jury, the Judge’s Tipstaff, a Tipstaff attached to another judge and a female permanent jury keeper from the Sheriff’s Office. It was their task to keep the jury from having any contact with the outside world until they had returned a verdict. Then the jury was sent into the jury room to commence their deliberations. It was not possible from within the jury room to gain any information via a pocket transistor radio as to the fortunes of Our Sovereign Lady who was racing in the third at Morphettville. The yellow T-shirt was upset. His plans had come to nothing. Let’s get this over then. Come on.

  But it was not something that was going to be gotten over quickly. The yellow T-shirt insisted Ray was guilty because otherwise he would have fired more than one shot. If there had been a real struggle, there would have been more than one shot. Someone else said that was nonsense. There was a general commotion, someone agreed, voices everywhere. How many shots were there? The foreman asked for quiet and then for a show of hands. All those who thought that there might have been more than one shot were asked to raise their hands. The reluctant juror stood up from the table and got a glass of water.

  No, that’s normal. The Judge has to go over all the evidence for them. It won’t be long now. Well, she’ll probably get worse before she gets better. After the verdict, I mean. Well, because your mother isn’t over him yet. She’ll get over him but it will take a little bit of time. Even for her.

  At six o’clock no verdict had been reached and the Judge re-convened the court. The jury was given the option to cease its deliberations for the day, retire to a hotel for the night under the supervision o
f the three jury keepers and return the next morning, or else to break for a meal and try to reach a decision before nine p.m. After a brief meeting in the privacy of the jury room, the foreman announced that the jury preferred to take a break for a meal and then to continue its deliberations. The Judge said that if the members of the jury wished messages to be passed on to their families, they could write short notes with the relevant names and telephone numbers and his Tipstaff would see to it that they were passed on. Then he adjourned the court. The barristers, solicitors, journalists, family members and onlookers all left hurriedly in search of telephones or personal space to make calls on their mobile telephones. This would be a long day. The yellow T-shirt sent a message to his wife through the Tipstaff. “Not over yet. They’re giving us a feed. Probably won’t be home tonight at this rate.”

  Still out! What the hell’s taking them so long? No, I don’t know. I’m not blaming you, Carly. Well, just because . . . I don’t know . . . it’s obvious he did it. You told them you saw him do it. I just don’t know what’s taking them so long. They can’t be much longer now. How’s your mother? Why not? Is she there? Okay. I get it. Talk about something else till she goes. Anything. I don’t mind. How’s your brother?

  The Associate was last to leave the court. He walked up the back stairs to his office to disrobe and meet up with the Judge for dinner. Maybe Thai this time. He was still thinking about unlawful-and-dangerous-act manslaughter. The unlawful act had to be more than a civil wrong. And, as to its dangerousness, it had to be such an act that all sober and reasonable people would inevitably recognize that such an act must subject the other person to at least the risk of some harm resulting from it, even if it was not serious harm. The judge was on the telephone to his wife. The Associate went back to his office and waited.

  The jury did not reach a verdict by nine o’clock. The court was adjourned until the morning, and arrangements were made to transport the jurors to the Roundhouse Motor Inn. The second Tipstaff and female jury keeper kept the jury quarantined in the motel foyer while the Judge’s Tipstaff startled, calmed and explained all, in that order, to the after-hours clerk who had no bookings under either the Department of Justice or the Sheriff’s Office. Twelve rooms? At this time? No. Fifteen rooms? No doubling up. Okay. Which one’s the Sheriff out of all of you, anyway, because I’m feeling a bit “Wild Bill Hickok” myself tonight.

  The two Tipstaves waited up together until all the jurors were settled in their rooms. As was so often the case, they soon got talking about their respective eligibilities and entitlements from Veterans Affairs. Only men who had served their country in combat did the government have the effrontery to pay as poorly as the Department of Justice paid its Tipstaves. There was always talk of the Department phasing them out, but it was shrugged off fatalistically by the Judges’ men in the heavy gray coats, and with each year the heaviness under their coats made it harder to shrug off. If the Vietcong couldn’t finish them, what hope did the Department have? It was time to hit the sack. Got to be awake in time to get these buggers up and running. About to turn in, the second Tipstaff saw his colleague at the drinking fountain with a small bottle of pills.

  “Help you sleep, mate?”

  “No. Stops me dreaming.”

  The second Tipstaff lightly touched the firm shoulder of the other old soldier as they passed each other on the way to their rooms at opposite ends of the corridor. Once they had closed their doors, everything was quiet. Only far-off televisions on other floors could be heard mixing with the indiscernible low white hum ever-present in places where people pay to sleep.

  A little while later a door opened and the foreman tentatively made his way into the corridor wearing ersatz leather slippers and a pale blue terry-towelling dressing gown.

  He walked past five rooms before stopping at the door of the sixth. He stood alone in the corridor and wiped the palms of his hands on the front of his dressing gown. Then, hesitantly, he knocked on the door twice and waited. There was no answer, and with his hands now inside his pockets he turned his back to the door he had just knocked on and surveyed the length of the corridor. It was still empty and, turning back to the door, he knocked again. He was retightening the terry-towelling dressing gown belt when she slowly half-opened the door.

  She had her bathrobe hastily draped over one shoulder, but the other, the shoulder farthest from the half-open door, was exposed. It was the first time he had seen her shoulder completely exposed, without the thin cover of a bra strap. It was a hot night. Her hair was dishevelled. He swallowed.

  “I’m sorry, my dear. I hope I didn’t waken you?”

  “No. I was . . . I wasn’t asleep yet.”

  “I just thought I would . . . check in on you . . . see if you were all right. It’s so hot and . . . with everything we’ve seen and heard in the last two weeks and with this . . . decision that you . . . that we all have to make . . . I wouldn’t blame you if you were a little upset or were having trouble sleeping. I was having a bit of trouble sleeping and I thought that if I was . . . well, a sweet young thing like you, I might be having trouble as well. It’s all a bit upsetting isn’t it, eh, especially . . . especially for a sweet young thing like you?”

  He moved in towards the door and extended his arm so that his hand might touch the skin of her uncovered shoulder. As she stepped back out of his reach, the door opened further and he was then half inside the room. The bed was unmade and on the floor next to a white bra he noticed with a shudder of revulsion the boldness of a yellow T-shirt.

  Between the overtime and a full breakfast of cereal, eggs, bacon, sausage, tomato, toast and coffee, the Tipstaves agreed crime was not too bad. As long as the jury didn’t play up on you. It seemed there was more chance of a criminal jury playing up than a civil jury, but then, there were less and less civil juries these days, so it all evened itself out in the end. It was hard to say exactly what it was about murder that made a jury more likely to play up. Perhaps it was the photos. At first they’d all be squeamish, wouldn’t touch them, but after a few days you could open the door to the jury room and find any one of them flicking through the photos with one hand and a jam fancy in the other. But this lot was no trouble at all. The Tipstaff had them back in the jury room at court by nine o’clock, all washed, fed and ready for work.

  The yellow T-shirt started things off with a rousing exhortation to everyone to find Ray Islington guilty of murder and end their confinement. This was the second day cooped up like animals and it was bloody ridiculous, inhuman. He shot him and the little girl had even seen it, so why not stop the messing around? The foreman asked exactly what it was Carly saw. Wasn’t she in her triangle at the time of the shooting? The mention of the triangle started everyone talking at once. Couldn’t see a thing from there. Was she lying? Lying or just mistaken? What did it matter? Wrong. Carly was wrong. Wrong in what she said happened or wrong in saying she saw it happen? Hold on just a minute, you’re starting to sound like them out there. This is not hard. You know he did it. Shall we go over it from the beginning? Why don’t we? No need to. All those who think we should go over it from the beginning, raise your hands, please. Please.

  By ten o’clock the courtroom was beginning to fill. The television crews were the first to arrive. Their reporters had heard, like everyone else in court the previous evening, that the Judge would not be taking a verdict before ten thirty, but it was almost as though the waiting itself added urgency to the event. The crews camped in the street not far from their variously sloganed TV station wagons. Next to the words Nobody Knows News Better on the first wagon, a rival crew had fingerprinted in the dust Than Anybody Else.

  Boom microphones looking like small furry dogs attached to the handles of devices used to remove leaves from swimming pools rested on the footpath. They would remain asleep until they were thrust into someone’s face to record how it feels to be free or how it feels that the man who killed your dad has been found guilty. And if there was no verdict in time for the morning
news update, they would be raised above the marvellous hair of a young woman to record her announcement that the jury had not returned a verdict yet. Then it would be her turn to get the coffees. They smoked a lot of cigarettes and drank a lot of coffee. It was recognized by the proprietors of the nearby Four Courts Café that a good defense address could make a substantial difference to a day’s takings.

  By twenty past ten the lawyers had arrived, their cases, books, papers and depositions all neatly piled at each end of the bar table. The accused’s solicitor was there for the first time in days, having heard on the news that the jury was out. He had been very busy in the last twelve to eighteen months. Things had really started to take off for him and he was usually unable to be in court on a daily basis when his clients were on trial. A sole practitioner, he had cursed the bureaucrats at the Legal Aid Commission for investigating his habit of charging for instructing in court without actually attending in body. The clients never complained and his business was brisk. To think he had almost gone into real estate!

  The dumpy woman sat at one end of the long bench that made up the second back row, just as she had every day. She had brought a straw basket, which she kept close to her. It contained some magazines and, hidden among them, a thermos flask of tea. Her sister, who had come down from Swan Hill to stay for a while, had suggested the tea. A calm and capable woman, it had been a great help to have her stay. She put her up in Amy’s room and Amy had slept with her in the big bed. There was room enough. The lawyers all said good morning to her and she nodded just slightly, searching with one hand between the magazines and the thermos for the Sweetex.