Chapter Three Part Six:

At the Bailey:

Ham smiled thinly. ‘Very well, my lord.’ Taking a deep breath, he plunged on. ‘Do you know the defendant?’ he asked, pointing to the dock.

This time Sir Archibald was up like a jackrabbit. ‘Again, my lord, and with respect to my learned friend, identity is in issue, and there has been no formal identification in this case.’

‘Is that right, Mr Berger?’ His lordship was not amused.

‘Well… er.’ Ham was going down for the third time, ‘Sir Adrian Browne is a well-known public figure, arrested in Argyle Square whilst persistently importuning for sexual favours…’

‘Yes, yes, that, as you explained in your opening address, is your case.’ Sourpuss was losing patience. ‘The question, however, for the jury, is can you prove it on admissible evidence? The jury are not remotely interested in what you say, it doesn’t amount to a row of beans.’

There was a long pause, the silence broken only by the ticking of the court clock, as Berger took stock of his hopeless situation. ‘But, but…’ he whined.

But, but will not do, Mr Berger. Have you any admissible evidence connecting the Defendant with Miss del Fabro, and, more to the point, any evidence that Miss del Fabro was even there on the night in question?’

Going down he might be, but Ham could picture his prosecution practice sinking without trace, and taking him down with it. He was not going to do so without a fight. There was now an irritable note to his whine. ‘My lord, had Miss del Fabro come up to proof, and given evidence consistent with her witness statement, the question of identity would not have arisen. She is obviously a recalcitrant witness, and I apply to treat her as hostile.’

According to my law lectures, still fresh in the memory, a hostile witness is one who is deliberately distorting the evidence, and who refuses to tell the truth. If Ham’s application was successful, he could cross examine Dolores and put her witness statement to her. I was also taught that a hostile witness was next to useless as a witness of truth, wholly discredited and unlikely to be believed by the jury. It was a high-risk strategy.

Sourpuss’s eyebrows had shot up like fireworks. ‘Do you agree, Sir Archibald?’ he asked.

‘No, my lord, I do not,’ came the reply as Sir Archibald rose from his seat. ‘My learned friend has not even begun to lay the foundations for such an application. A forgetful witness is not, and can never be, a hostile witness under any circumstances.’

‘Sir Archibald is quite right, Mr Berger,’ said Sourpuss, ‘and I rule against you. So where does that leave you?’

One last headlong rush into the Valley of Death. ‘I have another prostitute to call…’

Dolores was about to explode, but Sourpuss waved her down. ‘Mr Berger, this is intolerable. You have not proved that Miss del Fabro is a prostitute, so even if your next witness surmounts that particular hurdle, do you have any admissible evidence of a formal identification? I thought not,’ he continued, before Ham could reply. ‘And besides, where is your evidence that the defendant was persistently importuning for immoral purposes? “Persistently”, in my vocabulary at least, suggests more than once. Am I right, Sir Archibald?’

Sir Archibald rose with all the dignity that his high office and professional esteem could muster. ‘Your lordship is, as ever, a Solomon come to judgment,’ he purred. Game, set and match.

Sourpuss turned to the now totally bemused jury. ‘There you have it, members of the jury. On the admissible evidence called before you, the Crown haven’t even begun to establish a case for this defendant to answer, and I direct you to return a verdict of not guilty. The defendant may leave the dock without a stain on his character. I shall rise.’

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David is an English barrister, writer, public performer and keynote speaker. His full profile can be found on his website.

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