Tim Vicary - A Game of Proof

‘And what about the old bat with the necklace? She hates me, you could see it in her eyes!’ Simon swung round to face them. ‘And those two old farts next to her. They’d have me shot, if they could!’

‘You can’t always tell from looks, Simon. Sometimes …’

There was a rattle of keys in the door. The three of them froze. A warder came in.

‘Are they back?’ Sarah asked.

‘No, not yet madam. It’s the judge — he’s called for you. Urgent, he says.’

‘Oh? Right.’ She glanced at the others apologetically. ‘I’ll be back.’

When Harry walked into the Crown Court he wondered if Churchill would be there. He’d phoned Terry half an hour ago and learned that Sean and Gary had escaped. The patrol car had lost sight of them and they could be anywhere. Terry had put out an all car alert.

‘How’s Sharon?’ Terry had asked.

‘Dead on arrival, sir, I’m afraid. But she said something, in the ambulance.’

When Harry had explained what he had heard, Terry had insisted he go straight to the court to tell the judge. Harry was worried — this was direct interference in DCI Churchill’s case. Shouldn’t they consult him first?

‘Just tell the judge, Harry,’ Terry had insisted. ‘That’s an order. If it’s wrong, it’s my head on the block, not yours.’

Nonetheless, Harry did not relish bumping into Churchill on his way. He imagined how the conversation might go.

‘Hi, Harry, what are you doing here today, old son?’

‘Just come to wreck your case, sir, that’s all. Won’t take a minute.’

‘Oh, okay, fine, go ahead. Use my name when you apply for promotion, okay?’

Outside court he saw Churchill in conversation with a tall, rustic-looking barrister in wig and gown and a fat, middle-aged solicitor, whom Harry took to be the prosecution team. Luckily, Churchill had his back to the entrance. Harry strode swiftly past, located the court clerk, and a few minutes later was telling his story to the judge in chambers.

Judge Mookerjee sat back in his leather chair, drumming his fingers thoughtfully on his desk. ‘You’re quite sure of this, detective constable?’

‘Perfectly, sir. It happened less than an hour ago. My superior officer ordered me to bring you the information immediately.’

‘Quite so, quite so. Then I suppose I must disclose this to counsel. Though whether it can make a difference, at this stage … Wait there, detective constable, will you?’

He picked up the phone and dialled.

‘It seems to me that it makes all the difference in the world, my lord,’ Sarah insisted. We all know there’s been a series of unexplained rapes and murders in York, and now we have evidence that a man who has murdered again, this very day, has admitted to them all. Including the murder of which my son stands accused. You must stop this trial now. Any conviction in these new circumstances would be unsafe.’

‘Hm. I see your point, of course. But there are difficulties.’ Judge Mookerjee leaned forward. ‘Mr Turner?’

Turner seemed reluctant to speak. He rubbed his ear thoughtfully. ‘I’m sorry, but I can’t see how this evidence can be admissible. It’s hearsay. Hearsay at second hand, in fact, since DC Easby is telling us that he heard Sharon Gilbert tell him what she heard another person say. If, of course, he heard her words clearly at all. You were in an ambulance, constable, you say?’

‘Yes, sir. Approaching York District Hospital.’

‘Anyone else with you at the time?’

‘Yes, sir. The paramedic. And the driver, of course.’

‘Did the paramedic hear the words as well?’

‘I don’t know, sir. I haven’t asked him. He was called away on another emergency shortly after we arrived.’

‘Well, what do you think? Were the words clear enough for him to hear?’

Harry hesitated. This was not what he’d anticipated. As usual the lawyers were screwing things up. ‘It was a whisper, sir. But he may have heard, I don’t know. It was quite clear to me.’

‘Was the siren sounding?’

‘Yes, sir, of course.’

‘Well, there we are then.’ Turner turned back to the judge. ‘Hearsay, at second hand, whispered in an emergency ambulance with the siren on. Another witness present who may well have heard nothing at all. It has to be inadmissible.’

‘But there are clear exceptions to the hearsay rule,’ Sarah intervened desperately. ‘In homicide cases exactly like this. The law assumes that when a person is dying, as this woman was, what she says must be treated as truth. After all, what could she gain by lying?’

‘If she said it at all,’ Turner said, picking up a book from a row on the judge’s desk.

‘But she did. You heard him, didn’t you, constable? There’s no doubt in your mind?’

‘No doubt at all,’ Harry confirmed. ‘ He killed Jasmine Hurst too. That’s what she said.’

‘Here it is. Article 39.’ Turner began to read from the law book in his hands. ‘The oral or written declaration of the deceased is admissible evidence of the cause of his death …’ he paused significantly. ‘… at a trial for his murder or manslaughter, provided he was under a settled hopeless expectation of death when the statement was made, and provided he would have been a competent witness if called to give evidence at that time. It seems to me that Ms Gilbert’s statement fails on at least three grounds. Firstly, this is not a trial for her murder. Secondly, I doubt if she was under a ‘settled hopeless expectation of death’ — do you think she knew she was dying, detective constable?’

‘It’s hard to say, sir,’ Harry admitted hopelessly. ‘It was all very sudden.’

‘Exactly. And thirdly, would she have been a competent witness if called to give evidence in this trial? No, presumably, because it’s still hearsay.’

‘But this is a clear statement that my son is not guilty. Made by a woman who has just been murdered,’ Sarah insisted. ‘We know that this man — what’s his name?’

‘Sean Murphy,’ Harry said. ‘We think, anyway.’

‘You think , exactly,’ Turner interrupted. ‘That’s another element of doubt here.’

‘But there’s no element of doubt about the fact that he killed her, surely? So whatever his name is, we know he is a murderer. And he made this statement knowing that he was going to kill Sharon Gilbert, and therefore thinking that no one else would hear about it. So there was no reason why he shouldn’t tell the truth. So surely, if this evidence was put before the jury, they would have to conclude that my son is innocent.’

Turner shook his head sadly. He seemed convinced by his argument, but embarrassed to meet her eyes. The judge peered at her reproachfully over his reading glasses, as though she were a student who’d handed in a sub-standard essay.

‘Your argument is flawed on several grounds, Mrs Newby. Firstly, until this man is arrested, tried and convicted we cannot know for a fact any of these things — either that he is a murderer, or that he killed Sharon Gilbert, or that he made this statement knowing that he was about to kill her. Even we accept that he did actually make the statement, it does not necessarily follow that he was telling the truth. In the absence of other evidence, it might be argued that he lied deliberately in order to frighten or torment his victim.’

‘And the jury? I doubt if they would see it like that.’

‘They might very well not. But it is my function, as trial judge, to decide what evidence does and does not go before this jury. And I regret to say that in view of its undoubted nature as hearsay at second hand, the evidence of DC Easby cannot be put before this jury.’