A conversation with friends took me to a well the other day. We were walking in the Sydney sunshine along Bungaree’s Walkway at Middle Head, a natural pathway with extraordinary views around Sydney’s majestic harbour, when the conversation, idling unselfconsciously as they do, turned to grief.
I was asked about my brother’s death and from there we wandered into the topic of a court case that followed.
So I was at the edge of the well. I could walk around it, keeping my gaze firmly in the middle distance, or I could climb up the little wall and then travel down, down, down into the deep, while answering questions.
What surprised me was how easily I could recall the events of eight years ago – although I couldn’t talk about it. Some griefs never leave you, especially if there is a sense of injustice about them. You protect yourself, building a little wall around them, like the one at a well. But you could climb down into those wells at any moment, for the rest of your life.
I chose that day not to talk about the court case. But I want to share my memory of it now. However, first I want to reassure you. I do not dwell in this space. I have a full life, of love, adventures, projects and day-to-day challenges. I have family, friends and strategies of my own, so when the pail is lowered into the well, the rope is held and I can be reeled up again.
But that’s an important reason to share this story: people do not erase the experience of grief; they learn to live with it – and this is especially so if an aspect is unresolved.
When my brother was killed in his motorcycle accident, the ‘sorry business’, which I called it, lasted for several months. Among other things, the driver who killed him had been charged with “negligent driving occasioning death”.
“The driver is still denying any responsibility. She’s going to defend the charges,” my brother’s widow told me one day.
I rang the detective sergeant at the police station handling the case. I could hear the country in this policeman’s voice, the whistle as he said ‘s’, like the rustle of a poplar tree by an Australian country highway, a common sight.
“What’s likely to happen?”
“I’ve never seen one of these cases rejected by a magistrate. It’s unheard of. My guess is the driver will see the difficulty of her position, she’ll come around, realise that the sensible thing to do is to plead guilty.”
I was amazed that I cared. So many times, I had sat in front of the television, watching the nightly news and wondered why a family interviewed on the courthouse steps hoped the court case would help them after a violent death.
Whether the defendant had been remorseful or not, I’d wondered why it mattered so much to them. The person the defendant killed is gone. What difference did this court case make? It won’t bring back the dead. Let it go. But now I was in a similar space myself, although only a magistrate’s court, and all I wanted was for the record of my brother’s death to be accurate, because this would be the last thing that was ever said about him officially.
Months passed with nothing more said about this court case. So grief was consolidated with a gnawing anxiety.
Eventually the hearing date, December 6, came around, a time when the Australian heat would be building and we would already be sweaty under the collar. As the rest of the world geared up for Christmas, we prepared to relive my brother’s death.
I could feel my jaw clenching.
By now, my sister-in-law had had sleepless nights, had taken an abusive phone call from the driver’s mother, had been told by the police and her lawyer that she might be called as a witness, and had begged them not to put her through it. And as the court case drew nearer, she had relived the accident more vividly, to the point where she spent days shaking and could think of nothing else.
But there were to be a few more twists. The driver decided to plead guilty after all, but the magistrate refused to accept this. She had insisted on submitting a statement that my brother was travelling between 160 and 190kms per hour. I was stunned. I had no idea where she’d got that figure from – and nor did the police.
The case was adjourned until the new year so the police could organise experts to explain why any speed of the motorcyclist above 60km/h was irrelevant. A driver leaving a country property still had to look – and stop.
For all my distress about the way the magistrate dealt with the case, you might be surprised to hear that I felt compassion for the driver.
In the days following his death, my siblings and I had sat huddled in a spare room on my brother’s property, reading the initial police report.
The driver was a 17-year-old girl who had just got her driver’s licence. She drove up her grandmother’s long driveway. The question of whether she stopped long enough to see what was coming before turning out onto the road remains untested.
What I see (unobjectively) as an earlier error, planting a tree right at the corner of the drive that obscured the line of sight, merged with this girl’s too short a pause. The driver was young, she was looking west into the setting sun, and she didn’t see my brother. Also invisible to her was the long tail of life’s biggest mistakes.
This police report was full of technical details; the placement of tyres and bike stands, rear-view mirrors and car doors. But in amongst all the metal, trajectories, speed calculations and pieces of shattered motorbike, something very human forced its way into the cold, official policespeak. And it undid me.
My brother’s shoulder connected with the left passenger window with such force it shoved the car sideways. From this detail, the police speculated he had seen the car, realised he was about to be hit and swerved unsuccessfully to try to avoid it.
I couldn’t imagine the exact logistics of the hit to one side; the pivoting, the cartwheeling, the flinging over and forward, the bad luck of the tree stump the report speculated my brother had hit. But he had tried to avoid the car. He flew – he always wanted to fly – over the car and kept going and going. When he hit the tree stump he rolled and skidded until he had travelled 100 metres – the spot where a neighbour had now laid a cross, made of local tree branches.
So, now that they were going to have to defend their decision to charge the driver, the police would have to call a forensic scientist of their own.
We were left with a Christmas with an edge to it. A New Year where behind the mistletoe was not a kiss but a punch.
When the case eventually came on the following February, we found ourselves in one of those bleak lower courts built in the 1980s, reserved for the rough end of life’s illegalities.
The presiding magistrate had a long beard and looked surprisingly Dickensian. He was cantankerous and eccentric, insisting on being called Your Honour.
The police prosecutor, grinding through her list of petty crimes, tried to be light. His Honour asked how long one case would take.
“How long is a piece of string, Your Honour?” she asked.
“That’s easy, twice its length divided by half its width,” he replied, quick as a flash, at that point jolly.
But before long he was irritated. He berated her because police informants were not available in an early case. She explained she had no control over the problem.
“So the prosecutor finds herself in a position today where she can’t explain and doesn’t have insight into the commander’s mind. So the rotting corpse of the prosecutor is left to swing in the breeze,” His Honour jibed.
It was an allusion he liked, returning to it again when he described once more the prosecutor “swinging merrily in the breeze” over aspects of another case.
He demanded to know how much the prosecutor was paid per hour so he could calculate what that particular case had cost the court so far. I felt for her as she hedged, holding back on telling something to a courthouse full of strangers she’d probably never told her mother. When he pushed her further she revealed she was paid $150 an hour. His Honour played with her now, repeating the figure loudly and enjoying his joke about how little she was worth.
Eventually, the police charge of “negligent driving occasioning death” worked its way up the list.
Reams of documents must have been handed over to His Honour in earlier mentions, whittling down and narrowing the issues. Facts that I wanted to hear about had clearly been agreed. As they do, the police put their case first. Since they knew the driver’s lawyer was going to make an argument about my brother’s speed, the police expert discussed this at length.
To my layman’s eye, everything now looked back to front. The police were countering propositions not yet put; stabbing at boots under floor-length curtains, only to hit gusts of air. It felt as if my brother was on trial, the driver was merely responding.
Time was distorted now; my brother’s part of the morning was as long as the six months that had gone before.
The police expert stood in the witness box calculating with calm confidence that he had only been riding at no more than 141km/h, as the police laboured over an ever-expanding argument focused on proving his speed was lower than the driver alleged.
I was making notes. A policeman walked up to me: “The prosecutor wants you to stop because if the magistrate sees you he’ll flip.”
I’d always thought a courtroom was a public place, open to anyone to document its events, but I put my pen away. I might have had a centuries-old right to scrutinise from the public gallery but it was easy to imagine this man’s flip and I didn’t want it somersaulting into my brother.
When asking questions of the expert, His Honour referred to measurements in yards, rather than metres and when this jarred enough for the expert to politely correct him, pointing out the documents were all in metrics, he lashed out: “I just do imperial measurements because they have a somewhat objective referencing point, as opposed to some creation of some French person at some stage.”
As if measurement was a fluid thing, a game with rules that changed depending on what language you spoke, what prejudices you held.
There was discussion about scrape marks, gouging, formulas for throw distance, coefficients, rotation of car wheels and broken tyre rods, the distance my brother was flung and how this allowed precise calculation of the speed he was riding – whether during his 100 metres airborne he slid or tumbled. There was a glancing reference to the tree stump he might have hit, slowing him down. To many in the courtroom this was a technical prelude to the number 141, but to me it was my brother, whose flensing they were so coolly parsing.
I patiently waited for the court to move on, to scrutinise whether the driver had looked properly, how close she thought she was to the road, whether she looked left, then right, then left again. To ask, if she had music playing, who else was in the car, how she managed to see over the grass as tall as a car, beside the front gate, how she’d negotiated that big tree, close to the fence.
I wanted the prosecutor to announce what the police had told us, that beyond 60km/h it didn’t matter, the driver needed to stop and she needed to look, but the prosecutor never said this.
I was open to the possibility that as soon as I saw a teary teenager, struggling to come to terms with events on a sunny evening the previous summer as she looked into the setting sun, that I would want to jump up and put my arms around her, to reach out to her and connect. I wanted to hear remorse so I could shout forgiveness.
“Photos tendered by Det Sgt saved the court from having to go out to the site, to have a view of the area,” His Honour said.
It dawned on me that the photos the police prosecutor was looking at didn’t tell the story. Here was a police prosecutor on a public circuit who had arrived in town late the night before. Maybe she’d seen the list and bemoaned her bad luck in drawing this particular magistrate. I could see her grabbing too many briefs and desperately trying to absorb them, while she choked down a ham sandwich with hot English mustard in a modest motel on the edge of the New England Highway.
At the lunch break I stood behind a pillar so I didn’t have to see the girl who had killed my brother – an experience I had never imagined I’d have. I wasn’t afraid of the power of my righteous indignation, I was afraid I had become a nothing, who would lose a staring match with this young woman, barely more than a child, and her audacious sense of impunity.
Her expert was waiting to be called after lunch, hovering on standby via video link from Melbourne. Finally, at long last, it was her barrister’s turn.
“Your Honour, I make submission that there is no case to answer. I submit –” he started.
His Honour cut him off: “You would probably be on stronger grounds if you went straight to the second leg of May v O’Sullivan.”
In criminal cases, May v O’Sullivan puts the onus on the prosecution from first to last, to establish guilt beyond reasonable doubt.
The barrister looked momentarily stunned and then scratched his head. He’d come prepared to examine a witness via video link but suddenly he had no need to say anything.
I was still assuming more witnesses might be called, or more explanations might be demanded, when His Honour suddenly started wrapping up.
“A motorcycle struck (her) vehicle. I don’t think there is any evidence whatsoever, it was the other way round,” he said.
How would we tell my sister-in-law?
“You tell her,” I said to the policeman afterwards
My sister and I met her in the council carpark across the road from the courthouse. Though she had not wanted any engagement with the proceedings, she was crushed.
“It’s not fair,” she said, crying. “No acknowledgement of her responsibility at all. She gets off scot free, nothing.”
I wasn’t sure whether it was the fumes from the carpark, fatigue or just a desire to be free of this mountain of sorry business that made me feel so sick. I wanted to lie down and flatten myself into the ground, wanted to get down and never get up again.
This was the ignoble place where my brother had just been dispensed with, so casually, so dismissively. There was no comfort, no sense of justice, no dignified finale; just a council car park, his old bomb of a car with its excess of McDonald’s hamburger wrappers on the floor to bear witness to his final public record.
Over the following months, the whole family struggled. Aside from my sister-in-law’s pain, which was immeasurable compared to mine, my face felt numb and I couldn’t feel my mouth, maybe because words were useless.
I had a sensation that a whole lot of people couldn’t be seen. It was as if my sister-in-law, like Job’s wife, was now stuck forever hiding behind a pillar in a courthouse; that three children’s right to a father to take them into adulthood had been thrown away; that if they crossed the road to walk from their school to the hospital where their mother worked and their father had died, that they too could be hit by a car; that any of their wide network of friends driving down a country road could be hit with impunity by a car leaving a private driveway.
Is country life that cheap?
The authorities decided there was no need for an inquest, since the evidence had already been examined and dealt with.
In my naiveté I had been patiently waiting for the opportunity for something else to be said. For a little note to be put on my brother’s file. My fantasy was that it would say there is a dissenting view, that a sister asked the question: why was the driver not cross-examined? It didn’t need to be much. Just a dog-eared scrap of paper maybe, with a few questions written by a grieving sibling. Not in search of closure but in honour of the question mark.
“Who made that decision, not to proceed to a coroner’s inquest?” I later asked the court registrar.
“The magistrate who heard the case.”
“Well, that’s putting the rabbit in charge of the lettuces,” I complained.
I didn’t like it at all that the person who’d heard the case was the one who had the right to close it. I would like to have heard that someone else’s stamp was on it, so there’d be some sort of review, even if token, even if it was just two men sitting in a pub, “Hey Roger, why’d’ya wrap that one up the way you did?”
Acceptance eventually came, but the well is deep.