Tim Vicary - A Game of Proof

‘No, my lord, we didn’t.’ Terry’s voice was wooden, stolid, but underneath he was seething. What a bitch the woman was! Was she planning this in the pub? Her questions continued, swift and relentless.

‘Did you find the watch that Sharon Gilbert described?’

‘No, my lord.’

‘No hood, no watch. You did search the flat, I suppose?’

‘Yes, we did.’

‘But you found no hood and no watch. Did you find any evidence at all in the flat, to suggest that Gary Harker had raped Sharon Gilbert?’

‘No, my lord. But …’

‘So your only justification for arresting Mr Harker at five o’clock that morning was Sharon Gilbert’s identification of a man whose face she had not seen. Is that correct?’

‘It … was the main reason for arresting him, yes.’

‘Was there any other reason?’

‘No.’

‘So it wasn’t just your main reason, it was your only reason, wasn’t it? Tell me, Detective Inspector, when you interviewed Ms Gilbert that night, was she sober?’

‘I … understood she had been drinking, my lord, but she didn’t seem particularly drunk. She was quite clear about what she was saying.’

‘Not particularly drunk, you say. Ms Gilbert has told this court that she drank five vodkas and a double gin at the party, plus a vodka just before you arrived. But she was not particularly drunk, in your view. Detective Inspector, how many units of alcohol can a woman drink without exceeding the drink drive limit?’

Terry hesitated. ‘Er … one or two, I believe. Maybe three, if it’s consumed with food.’

‘You believe ? You’re a police inspector. Aren’t you sure?’

‘It varies with circumstances and body weight. Anyway I’m not a traffic policeman.’

‘Let me tell you then. An average woman is unfit to drive if she has consumed more than three units of alcohol in three hours. Sharon Gilbert had consumed at least eight units of alcohol. She was nearly three times over the driving limit. And yet you say she wasn’t drunk.’

‘I didn’t say she was fit to drive. I said she could identify the man who raped her.’

‘Even though that man was wearing a balaclava hood?’

‘Yes. He was a man she knew very well.’

‘Well, look, Detective Inspector, it seems to me that you’re asking this jury to believe one of two impossible things. Either you believe that a woman who has drunk six vodkas and a double gin is perfectly sober, or, if you accept that she wasn’t sober, you are saying that a woman who was hopelessly drunk can positively identify a man with a hood over his face. Which is it?’

There was smothered laughter from the jury box. It sounded like applause to Sarah, mockery to Terry, who sighed.

‘Neither of those. As I said, she wasn’t completely sober but she was clear enough in her mind to identify the man she believed had raped her. And she repeated those allegations the next day when she was perfectly sober. She has always been perfectly clear about that.’

‘I see. Well, is it also true, Detective Inspector, that Mr Harker denied the allegation of rape when you first arrested him, and has clearly and consistently repeated those denials every time you’ve asked him?’

‘That is true, my lord, yes.’

‘Very well. And you found no other evidence whatsoever in his house or on his clothing to substantiate this charge. That’s correct too, isn’t it?’

‘That’s true, my lord.’

‘Very well. That’s all I have to ask.’

She folded her gown about her and sat down. And as he made his way to the back of the court she watched him with a slight enigmatic smile on her face. A smile signifying what, Terry wondered. Irony? Mockery? Self-satisfaction?

Bitch.

The final prosecution witness was a man called Keith Somers. His testimony was straightforward and damning. He knew Gary Harker, and he had seen him in Albert Street just after one a.m. on the night of the rape. Gary had been wearing black jeans and a black shirt, and had even acknowledged him with a wave.

The significance of this was that Albert Street ran parallel to Thorpe Street, where Sharon Gilbert lived. The houses had small back gardens with low fences which backed onto each other. The rapist could easily have left Sharon’s house, climbed the fence and come out in Albert Street.

From Sharon’s phone bill, Lloyd-Davies demonstrated that she had phoned her friend Mary at 1.08 a.m., and the police at 1.22 a.m. Somers had seen Gary at about 1.05. This, Lloyd-Davies insisted, put Gary in exactly the right place, at exactly the right time.

As Sarah stood up to cross-examine she felt her pager tremble in her pocket. Looking down she saw her husband’s work number. What did he want — more problems with Emily? Nothing she could do now, anyway.

Somers was a good, credible witness. She tried to cast doubt on the time he had seen Gary, but he would have none of it. He had been at a friend’s house watching a film which ended at 12.50 a.m. He’d left immediately: no lingering conversations, no cups of coffee. He’d had a few beers but he wasn’t drunk. He’d seen Gary’s face clearly under a streetlight. Sarah tried to turn this, at least, to her advantage.

‘You could see all of his head, could you?’

‘Yes. He was bare-headed.’

‘So he wasn’t wearing a balaclava hood?’

‘No.’

‘Did you see any sign of a hood — something in his hand, a bulge in his pocket, perhaps?’

‘No. No, I can’t say I did.’

‘I see. Well, thank you very much.’ She sat down. It was the best she could do — Gary admitted being in the area that night, after all. Sarah remembered the pager again. What did Bob want? She felt suddenly tired, unaccountably low after the adrenalin rush of the early afternoon.

Julian Lloyd-Davies said: ‘That completes the case for the prosecution, my lord.’

‘Very well.’ The judge looked inquiringly at Sarah, who stood up. ‘My lord, I would like to address the court on a point of law.’

‘I see. In that case, members of the jury, I must ask you to retire for a short time.’

As the jury filed out of court the barristers digested the phrase a short time . Lloyd-Davies knew very well what Sarah was about to say, and no doubt regarded it as a forlorn hope. But she was determined to give it a try.

‘Before I present the case for the defence, I would like to invite your lordship to dismiss the case as being unsafe to put before a jury. As your lordship will have seen, the prosecution have completely failed to produce any evidence which puts my client at the scene of the crime. They have no forensic evidence at all. My client has consistently protested his innocence, and the only evidence against him is that of identification. The evidence of the victim’s child has been discounted, and that of the victim herself is highly suspect and tainted by her own extreme animosity towards my client, whose face she never saw. In view of all these points it seems to me that the only proper course for your lordship is to dismiss the case now rather than running the risk of an unsafe conviction before a jury.’

Julian Lloyd-Davies stood to reply but the judge waved him away.

‘No, Mr Lloyd-Davies, it won’t be necessary. I hear what you say, Mrs Newby, and I agree with you that there are a number of difficulties with the identification evidence, and the child’s evidence has been excluded. But the fact remains that Ms Gilbert was very well acquainted with the defendant, and can be presumed able to recognise his voice, even from behind a mask. The last witness puts your client in the area at precisely the time the rape was committed. Even if the Crown have not been able to produce the watch, its existence does give your client a motive, in addition to the intention to rape, for entering the house, and its theft suggests that the intruder knew the layout of the bedroom. So in view of all these points I am satisfied that the Crown have produced a case to answer.’