Without prejudice, p.29
Without Prejudice, page 29
Robbins stood silently, waiting for the jurors to file into the jury room. When the last one had disappeared from view and their door closed, he spoke.
‘My learned friend for the Crown is aware of my submission, Your Honour. Perhaps I can outline it to you before detailed argument is given. It concerns the interview given by the first defendant upon arrest. Your Honour will find it in Exhibits File One.’
‘Yes, I have it. It’s quite lengthy, Mr Robbins.’
‘That is precisely my point, Your Honour – one of them, at least. The first defendant was seventy-seven at the time of the said interview. He has now just turned seventy-eight. He is a man of good, in fact exemplary, character; he was, and is, not in good health, and has not been for some time; and at the time of the interview he did not have the benefit of legal advice. The Crown’s case against the first defendant rests substantially on this piece of evidence, which they claim was voluntarily given. It is my submission that the interview was obtained through fundamental breaches of the Police and Criminal Evidence Act 1984 and its Codes. If I can direct Your Honour to Archbold—’
‘Before you do, Mr Robbins – I’m grateful for your outline – I’d like to hear briefly from Mr Fairfax. I take it you’re objecting to this submission?’
‘Yes, Your Honour.’
‘On what grounds?’
‘On the grounds that the confession made by this defendant in his interview was freely given, and that he voluntarily waived his entitlement to legal advice; he says as much in his interview. If the defendant was being coerced in any way, it was not by the police.’ Peter looked over at Lee, sitting next to Robbins. ‘It has always been the Crown’s case that this defendant was being coerced by his younger son. This is now supported by Hector Omartian’s statement.’
‘Very well. Now I know the parameters of the argument, please take me to your authorities, Mr Robbins.’
As she listened to full argument from both sides, Lee wondered what Robbins would do if he won. Peter could still proceed against him, he had the handwriting evidence, after all, and she was pretty sure he would. As the debate unfolded, it seemed increasingly unlikely that he would lose.
But not, apparently, impossible.
Ever mindful of the possibility of appeal, McCallum’s own detailed ruling was almost as long as the argument that preceded it. However, he made it clear that, although the defence argument had some force, he was narrowly persuaded by the Crown’s submissions. When Robbins rose again to address the judge, he had an air of defeat that went beyond the loss of the voire dire.
‘In the light of Your Honour’s ruling, could I have some time to confer with the prosecution counsel and the defendant? It may shorten matters considerably.’
McCallum didn’t need to ask why. ‘How long will you need, Mr Robbins?’
‘Fifteen minutes should be sufficient.’
‘Are you sure that’s all the time you’ll need?’
Robbins looked over his shoulder towards Frederick Omartian, sitting in the dock. ‘Quite sure, Your Honour.’
‘Very well. None of this affects you, Ms Mitchell.’
‘Not directly, Your Honour.’
‘Very well, I’ll rise. Please send word via the court clerk if you need further time.’
As soon as the judge had risen, Nicholas and his solicitor went to where Frederick Omartian was seated, and helped him out of the witness box. Then the three of them, as well as Peter, left court together. Apart from the court staff, Lee, Brendan and Clive were the only ones remaining.
‘Let’s go to the Bar Mess,’ Lee suggested to her solicitor. It was the one place Clive couldn’t accompany them.
As soon as they sat down, Lee said, ‘Robbins is going to plead Frederick out.’
‘I guessed as much. Peter may not go for it, though.’
‘Not after the judge’s ruling. Robbins nearly succeeded; in front of another judge it could have been very different. Peter knows that. Plus, he’s a percentage player. He’ll agree the plea, if it’s still on offer.’
‘Are you kidding? Robbins is on his knees even as we speak. It’s Frederick I feel sorry for, poor bastard. He’s not even carrying the can for someone who appreciates his sacrifice. He might get an open prison, but that’s the best he can hope for. He’ll lose his reputation and everything he’s worked for; his health has definitely deteriorated as a result of these proceedings, his family’s split in two, and for what? A lying, ungrateful shit he calls a son.’
‘To be fair, even to Clive, his reputation was shot from the time he was charged. Who’s going to trust him with their money again? And have you noticed that, since his arrest, every paper, even the broadsheets, has mentioned the fact that he was originally from Eastern Europe, even though he’s been naturalized over fifty years?’
‘Yes. Well, they’re going to have a field day with this when we get back in court. It will cut the trial time virtually in half. That doesn’t give me much time.’
‘Do you still think you can find a way out of this?’
‘I’ve got to try. I’m not beaten yet. I can’t let him give perjured evidence, Brendan. I’m walking a very fine tightrope, morally and legally, as it is.’
As if on cue, a message came over the loudspeaker. ‘Would all parties in the case of Omartian and Omartian please return to court immediately.’
Lee and Brendan looked at each other. ‘Already?’ Lee said.
As they entered court, Lee saw a very relieved Robbins sitting in his appointed place. Neither the judge nor the jury had yet come in, but the court, unlike before, was now packed. Peter was seated also. They barely had time to resume their places when the jurors filed in. As soon as they had taken their places, the court usher stated, ‘All rise!’
Once Judge McCallum sat down, so did everyone else, all except Robbins.
‘Thank you for your time, Your Honour. Might the indictment be put again to the first defendant?’
‘Is the defendant fully aware of the possible consequences for him of this proposed course?’
‘He is, Your Honour.’
‘Is this an agreed course, Mr Fairfax?’
‘Yes, Your Honour.’
‘Very well, let the indictment be put again.’
There was a low murmur from the more seasoned court reporters as the clerk stood up. When an indictment was put again, it meant only one thing. The murmur grew significantly louder when Frederick Omartian, in a quavering, but dignified, voice, said ‘Guilty’ to the charge against him. Journalists started writing furiously. Some of them left court with as much speed as decency would allow to telephone their copy.
Lee looked back at Clive. He was completely unmoved.
‘Is the plea acceptable to the Crown, Mr Fairfax?’
Peter looked quickly at the dock, then at Lee, before replying, ‘Yes, Your Honour.’
‘Mr Robbins, I take it you don’t wish to mitigate now.’
‘No, Your Honour. Your Honour might find pre-sentence and community service reports of assistance.’
‘Mr Robbins, given the amount of money involved, and the fact that the defendant stole money entrusted to him by his clients to invest, community service is wildly optimistic, even if he were young enough and fit enough to carry out such work. The defendant must be under no illusions about the likely disposal of this case. In fact, it is only because of his age and his state of health that I’m not going to remand him in custody. He can have bail, with an additional condition that he surrender his passport, pending the preparation of the reports. I take it your client’s plea is still the same, Ms Mitchell?’
Again, now would be the time to say something. Lee felt all eyes upon her as she stood up. ‘Yes, Your Honour.’
‘This shortens things considerably, doesn’t it, Mr Fairfax?’
‘Yes, Your Honour, it does. The trial should now be no more than five to seven working days. Certainly I expect to finish the Crown case this week.’
‘Very well. Frederick Omartian, stand up. Your part in this case has been adjourned for four weeks, so that pre-sentence reports can be prepared on your behalf. Please do not feel that because you have been admitted to bail this is any indication of the likely sentence in this matter. Very well, you can go. Mr Robbins, there’s no need to wait.’
‘Thank you, Your Honour.’
Lee got up in order to let Robbins out. As she did so, she watched Frederick being helped, once again, from the dock, except this time he was leaving his good character behind. He had made his fortune long ago, but now that was all he had.
Chapter Twenty-Six
It was an impressive opening speech.
Peter nailed his colours very clearly to the mast. Right at the beginning he told the jury that, despite Frederick’s plea, they still had to give separate consideration to the guilt of the only remaining defendant. It was the Crown’s case, he told them, that Clive Omartian had coerced his father into committing this offence; if that was also their view, he, too, was guilty of this offence. Clive had also been interviewed, Peter added, in the presence of his solicitor, and although he had the right not to say anything, having been cautioned by the police, he neither denied the police allegations nor positively asserted his innocence, as one might expect. Peter told the jurors that they would hear a great deal of evidence, in particular from the defendant’s brother, Hector Omartian, to support the Crown’s contention that Frederick Omartian was merely a conduit through which the defendant could commit this offence, in order to finance his cocaine habit. As if to cover himself, however, he also warned the jury about being swayed by media coverage of either this court case or of Clive Omartian himself. They were to try this case on the facts, nothing more.
Clive visibly relaxed when he heard this last comment. For a moment he had been worried. He could control his own lawyers, but Fairfax was an unknown quantity. He had always appeared so affable, as if he wanted everyone to like him. Weak. He hadn’t expected him to be this good. But now hadn’t the very person who was supposed to prosecute him told the jury they should disregard gossip column publicity about him and drugs?
Lee was impressed too, but for different reasons. In setting the scene, Peter was using his likeable personality to win the jury over to his side; he had to, because with the amount of statements to be read, and so little live evidence, he was forced to attract, and hold, their interest right from the start. He was also taking all her good points – the father’s confession, the adverse publicity – and deflating them. In addition, because of the dramatic turn of events as far as Frederick was concerned, the handwriting evidence was no longer of any real significance. After all, the Crown by accepting Frederick’s plea were no longer saying that Clive committed the offence himself. Hector would be the trump card, and his evidence would be kept, tantalizingly, until last.
The assembled journalists were not used to hearing such an impassioned opening from the Crown. A few of them even stopped writing.
By the beginning of the fourth day, however, everyone, including the judge, was visibly wilting. All except Clive. Lee wondered whether some of the women on the jury were wilting over him. Given the way he was looking, better than she’d ever seen him, she couldn’t entirely blame them. They had no idea how different the inner man was from the outer. McCallum had been at pains to point out to the jury that statements to be read were as important as if the evidence was coming live from the witness box, and that in fact the reason for their being read was because the defence did not require the live witness to be brought to court. Important, however, was not necessarily the same as interesting. The jury had heard very little evidence so far and seen hardly any of the interplay between barristers and witnesses that gave criminal trials their distinct character.
Everyone stood up as McCallum entered court to start the day’s proceedings.
‘Good morning. Are we ready to proceed, Mr Fairfax?’
‘Your Honour, yes.’
‘Will this evidence be in the form of statements to be read?’
‘No, Your Honour.’
There was an audible sigh of relief from one of the jurors.
‘I call Hector Omartian.’
There was a rustle of excitement and expectation. Everyone watched Hector as he strode to the witness box. He had a purposeful walk, and an almost military bearing. Lee remembered what his father had been like the first time she had met him, how he had walked and carried himself, in spite of his advanced years and ill health. In this regard, Hector was definitely his father’s son. As he took the oath in a deep, steady voice, Lee could hear something of his father in his voice as well. But she would never have guessed he and Clive were related in any way. At fifty-five, Hector was old enough to be Clive’s father himself. Short where Clive was tall, bald where his brother had a full head of hair, clearly not a follower of fashion, and with a face only a mother would love – the differences were too great to explain simply by the fact that they were only half-brothers. No matter what he said, whether he was going to speak the truth or lie on oath, whether his evidence was motivated by malice and envy or by much higher, nobler feelings for his father, some of the jurors and most of the press would already have judged him and found him wanting.
After he had stated his name and address for the court, Peter asked, ‘The defendant, Clive Omartian, is your brother, is that right?’
‘No. We’re half-brothers. My father married his mother after my mother died.’
‘I stand corrected. But it is right, is it not, that you have no previous convictions?’
‘None whatsoever.’
‘I know you’re anxious to be totally honest with, and helpful to, this jury, so it’s right they should know you too were originally to face trial with the defendant and your father over this matter.’
‘Yes, that’s correct. The case was discontinued against me.’
‘You were first arrested in December of last year in connection with this matter?’
‘Yes.’
‘Some weeks before your half-brother?’
‘Yes.’
‘When you were interviewed after your arrest, did you make any kind of statement?’
‘I denied having any part in any fraud, or any dishonest dealings.’
‘Apart from that interview, did you make any other statement about what happened?’
‘Not at the time. Not until two or three months ago, in fact.’
‘Was there any reason for that gap of several months?’
Hector hesitated. ‘I had wanted to come forward and tell the truth about this whole thing for several months. But my father wouldn’t let me.’
Somewhere in the public gallery someone sniggered. McCallum looked up sharply, then turned to the witness. ‘I apologize for the interruption, Mr Omartian. Please continue.’
‘What I meant was, my father had made it clear that he was prepared to take the blame. He didn’t want Clive getting into trouble. It’s always been like that between them.’
‘If that was the case, what made you change your mind?’
‘Clive can do no wrong in my father’s eyes. I don’t think he knows what he’s doing. Whatever my father does won’t change him. It’ll never change him. Clive doesn’t appreciate the sacrifice my father has made, even now, because he’s never had to sacrifice anything, for anyone, in his life.’ He was getting angrier. ‘My father is an old, sick man. Because of him,’ pointing to Clive, ‘he’s almost certainly going to prison.’
Lee believed every word Hector had said so far but as long as she was still representing Clive, however reluctantly, she had to object.
She rose to her feet. ‘Your Honour, is my learned friend for the Crown intending to direct this witness to the evidence any time in our future, as in his statement, or has he brought him merely to air his personal grievances?’
‘My learned friend knows me better than that, Your Honour.’
‘Maybe, but she does have a point. Please get to it, Mr Fairfax. And Ms Mitchell, sarcasm has no place in my court.’
‘You’ve said you’ve come here to tell the truth, Mr Omartian. What is that truth?’
Lee rose again. ‘Truth is a matter for the jury to decide, Your Honour.’
‘Point taken, Ms Mitchell. Mr Fairfax, surely you can ensure the witness expresses himself in some less emotive way.’
‘What really happened, Mr Omartian?’
Lee found herself holding her breath. What Hector would say next would have far-reaching consequences.
‘Clive came to my father. Said he was desperate. He owed some money to some people in America. I think it was for drug dealers—’
‘The witness doesn’t know this, Your Honour,’ Lee objected. ‘He’s here to give evidence about facts, not his opinion.’ She placed a determined emphasis on the word ‘facts’.
Peter looked at her deliberately before turning back to Hector. ‘Go on,’ he said after a pause.
‘He forced my father to take the money. Said if he didn’t do it, he would do it himself. And I wasn’t speculating. I’ve seen him take cocaine.’
Lee suppressed a sigh of relief. She stayed in her seat. No grounds for objection there. Hector had risen to the bait. For the first time in a long time, she felt the thrill of a small personal victory.
‘My father’s stubborn,’ Hector went on. ‘He’ll also do what he thinks is right. He thinks it’s right to protect Clive, even from his own wrongdoing because, as he sees it, he has his whole life ahead of him. But I think it’s right that the truth be known. Clive’s not a child. He’s a man, and should be man enough to shoulder his responsibilities rather than let them be carried by an old man who may not see out the year.’
It was a good, sympathetic note to end on. ‘Thank you, Mr Omartian.’ Peter looked at his former pupil. ‘I’m sure my learned friend will have some questions for you.’
The room was deathly quiet as Lee rose and turned to face Hector.
