CHAPTER 23

November 1955.

‘Dear Peter,

‘Your most welcome letter came today and I was certainly glad to hear from you so soon. Now Peter, old chap, I hope you don’t think I was getting bored with your company when I asked you to go the last day you visited. You see my girlfriend was waiting to see me, and I only had until four o’clock. I do hope you will understand. Well my appeal comes up on Tuesday, so here’s hoping. Yes, prisoners come and go but I guess I stay on for ever. Ha ha. Well, I see you went to my happy hunting grounds. I’m sorry that you did not like Ye Old Barn cafe.

‘You ask me what I would like to do for work. I have not thought much about a trade though I may take up plumbing if I get a chance. Time seems to go ever so quickly for me, it seems only yesterday I booked into this hotel.

‘God bless you, Peter. Your friend, Albert.’

This time there are five judges sitting on the bench, but Albert Black is absent.

‘Do you mean they all get to talk about me behind my back?’ Paddy asked Buchanan when he outlined the procedure to him.

‘There’s nothing more they’ll allow you to say, I’m afraid. The discussion is all on points of law.’ All the same, Paddy was excited when he heard the arguments to be presented on his behalf for the appeal. He’d hold his breath all day, he promised. Buchanan had to explain to him that it wouldn’t all happen on the same day. The judges would have to go away and think about it.

A fly circles around the courtroom, and some of the esteemed judges try to swat it away. It is almost as if the defendant had sent the essence of himself in the form of a small malevolent insect, Oliver Buchanan thinks, an irritant in the room that had to be dealt with.

Pearson rises to his feet. The learned judge who had presided over Mr Black’s trial, he respectfully submits, failed to direct the jury adequately that, apart from the question of provocation, they could still bring in a verdict of manslaughter if they considered it appropriate. ‘I submit, your Honours, that apart from the intent to kill, the jury could properly have found manslaughter if they thought the accused did not intend to inflict bodily injury of a type likely to cause death.

‘Equally, the jury could have found manslaughter if they thought that, whatever Mr Black’s intention, in fact the bodily injury he inflicted was not likely to cause death. The evidence put forward by the pathologist Mr Cairns suggests that it was extremely unlikely he intended to sever Alan Jacques’ spinal cord and something of a fluke that he did. So, if he didn’t intend to sever the spinal cord but only to stab the victim in the neck, it’s extremely unlikely that would cause death. I suggest that a verdict of manslaughter was not only open to the jury but quite possible, and the judge should have directed the jury accordingly.’

Mr Justice Gresson, the presiding judge says, ‘I’d have thought a stab in the neck was most likely to cause death regardless of where it landed.’

There is a general murmur of assent among his colleagues, a nodding of heads in unison. Because this is the Court of Appeal, the judges do not wear robes, for all the world like businessmen about to head for the stock exchange or a company board meeting.

‘Frankly,’ says the judge sitting on his left, ‘I thought the summing-up was benevolent to the defence. It’s difficult to see how defence counsel can seriously question the summing-up.’ The lazy fly traverses the tip of his nose; he swats it with mounting irritation. Buchanan thinks then, this is what it may come down to, a fly distracting the judges. He wishes he had a handy fly-swatter in his pocket. How ingratiating would that be? His heart is sinking; he sees little sympathy in the faces of the men on the Bench.

It is his turn now to speak. ‘That is not the only grounds for notice of appeal,’ he tells them.

‘Yes, yes,’ says Gresson, ‘we’re aware of that.’

Buchanan traverses the grounds again. The second ground in the notice of appeal was that a miscarriage of justice had occurred because certain statements had been published in the press during the trial, both in morning and evening newspapers, reflecting the judge’s opinion of the accused before the verdict had been delivered, in fact, before the case had even begun, and that that opinion was prejudicial to Black’s case. ‘Listen,’ he says, quoting from a newspaper cutting, ‘may I remind you of this, he — meaning Black — belongs to a peculiar sect, if you could call it that, or a peculiar association of individuals whose outlook on life varies from the normal. It goes on to say that he’s not needed in this country, and that it’s premeditated murder. If that’s not prejudicial, what is, your Honours?’

Although these comments had been made to the Grand Jury six weeks earlier, he reminds them, they had been released in the newspapers to coincide with Albert Black’s trial. The common jury had received copies of these newspapers and, Buchanan tells the Bench, the comments were likely to influence the outcome of the trial.

‘We have the affidavit of a witness,’ Buchanan says. ‘Mr Rabone was the assistant manager of the Station Hotel, and his evidence will be that, on instruction, he distributed copies of the Auckland Star and The New Zealand Herald to members of the jury while they were domiciled in the hotel.’

Mr Justice North asks, with some impatience, ‘Well, is this about what the judge said, or is it about what was published?’ He appears to have taken charge of the line of questioning.

‘Your Honour,’ Buchanan says, choosing his words with care, ‘it’s immaterial whether or not it was a correct transcript. I’m in no position to know whether the report was a verbatim account of the judge’s direction. What I do know is that the character and reputation of my client was effectively destroyed when the jury read the comments by the judge.’

‘The judge was addressing a Grand Jury on depositions from the Magistrate’s Court. It didn’t disclose the defence. You need to be careful of what inferences might be taken from your comments, Mr Buchanan.’

It goes through Buchanan’s mind that his own reputation is being monitored. Then he sees Paddy’s young face swimming before him, the unquenched hope that his life might still be handed back to him. He takes a deep breath and continues as if the judge hadn’t spoken. ‘There is nothing wrong, your Honour, with the judge speaking as he did, but with the publication. It’s one thing to say something to the Grand Jury, which is only concerned with deciding about a true bill and not with questions of defence, but it matters if what is said could gravely prejudice a trial jury.’

‘Well, really,’ the judge shoots back, ‘doesn’t the whole thing come down to a question of whether the publication of proper remarks by the judge to the Grand Jury could ever be regarded as prejudicial?’

‘In essence, yes. The judge is entitled to say whatever he likes, provided he directs that the common jury doesn’t hear what he says.’

‘So how do you screen a jury once it’s been empanelled?’ the judge asks. ‘Who’s supposed to do that?’

‘I’m not in a position to answer that, your Honour. At the very least, it would have been advisable if the newspaper reports had been kept from the common jury.’

‘So the effect of your submission is either that judges should refrain altogether from making any remarks even remotely approaching these, or that newspapers should in some way be prevented from publishing these remarks?’

‘That might be the result,’ Buchanan says. He thinks he may be getting somewhere but he’s not sure.

Mr Justice Gresson starts to pay attention, as if he had been drifting away into some personal reverie and had suddenly reminded himself where he was. ‘It’s inconsistent with the whole basis of the administration of justice if a Grand Jury must be addressed in secret,’ he says.

Buchanan sees the case slipping from his grasp. It is the fly, he thinks, the bloody fly.

Timms, for the Crown, weighs in. ‘For this submission to succeed the appellant must show that there’s been a miscarriage of justice — in the sense that, on fair consideration of the whole proceedings, this court must hold that there’s a probability that the newspaper publicity turned the scale against the appellant. There’s no justification for suggesting that members of the jury could be so influenced by what they may have heard or read that they cannot be relied upon to do their duty as a jury.’

‘Your Honours,’ Oliver Buchanan says, ‘be that as it may, we are talking about putting a man to death. The death penalty may be enshrined in the law as it now stands, but it has not always been the case. In fact, the law has changed several times over the past two decades.’

‘Are we now to be treated to the crusade for abolition?’ the judge on the left of Gresson says.

‘I’m aware of campaigns for abolition,’ Buchanan says. ‘But I speak from the heart. The famous writer, Victor Hugo, whose name I’m sure is familiar to you all, conducted a life-long crusade against the death penalty. He wrote these words — Look, examine, reflect. You hold capital punishment up as an example. Why? Because of what it teaches. And just what is it that you wish to teach by means of this example? Thou shalt not kill. And how do you teach that “thou shalt not kill”? By killing. Hugo goes on to explain that he had examined the death penalty under each of its two aspects: as a direct action, and as an indirect one. What did it come down to? Nothing but something horrible and useless, nothing but a way of shedding blood, that is called a crime when an individual commits it, but is called “justice” when society brings it about. Make no mistake, you judges and lawmakers—’ and here Buchanan pauses long enough for the judges on the Bench to be clear that he is reciting Hugo’s comments for their benefit — ‘that in the eyes of God as in those of conscience, what is a crime when individuals do it is no less an offence when society commits the deed.’

‘Have you quite finished, Mr Buchanan?’ asks the presiding judge.