A Game of Proof

‘Hm. I see your point, of course. But there are difficulties.’ Judge Mookerjee leaned forward. ‘Mr Turner?’

Turner seemed reluctant to speak. He rubbed his ear thoughtfully. ‘I’m sorry, but I can’t see how this evidence can be admissible. It’s hearsay. Hearsay at second hand, in fact, since DC Easby is telling us that he heard Sharon Gilbert tell him what she heard another person say. If, of course, he heard her words clearly at all. You were in an ambulance, constable, you say?’

‘Yes, sir. Approaching York District Hospital.’

‘Anyone else with you at the time?’

‘Yes, sir. The paramedic. And the driver, of course.’

‘Did the paramedic hear the words as well?’

‘I don’t know, sir. I haven’t asked him. He was called away on another emergency shortly after we arrived.’

‘Well, what do you think? Were the words clear enough for him to hear?’

Harry hesitated. This was not what he’d anticipated. As usual the lawyers were screwing things up. ‘It was a whisper, sir. But he may have heard, I don’t know. It was quite clear to me.’

‘Was the siren sounding?’

‘Yes, sir, of course.’

‘Well, there we are then.’ Turner turned back to the judge. ‘Hearsay, at second hand, whispered in an emergency ambulance with the siren on. Another witness present who may well have heard nothing at all. It has to be inadmissible.’

‘But there are clear exceptions to the hearsay rule,’ Sarah intervened desperately. ‘In homicide cases exactly like this. The law assumes that when a person is dying, as this woman was, what she says must be treated as truth. After all, what could she gain by lying?’

‘If she said it at all,’ Turner said, picking up a book from a row on the judge’s desk.

‘But she did. You heard him, didn’t you, constable? There’s no doubt in your mind?’

‘No doubt at all,’ Harry confirmed. ‘He killed Jasmine Hurst too. That’s what she said.’

‘Here it is. Article 39.’ Turner began to read from the law book in his hands. ‘The oral or written declaration of the deceased is admissible evidence of the cause of his death …’ he paused significantly. ‘… at a trial for his murder or manslaughter, provided he was under a settled hopeless expectation of death when the statement was made, and provided he would have been a competent witness if called to give evidence at that time. It seems to me that Ms Gilbert’s statement fails on at least three grounds. Firstly, this is not a trial for her murder. Secondly, I doubt if she was under a ‘settled hopeless expectation of death’ — do you think she knew she was dying, detective constable?’

‘It’s hard to say, sir,’ Harry admitted hopelessly. ‘It was all very sudden.’

‘Exactly. And thirdly, would she have been a competent witness if called to give evidence in this trial? No, presumably, because it’s still hearsay.’

‘But this is a clear statement that my son is not guilty. Made by a woman who has just been murdered,’ Sarah insisted. ‘We know that this man — what’s his name?’

‘Sean Murphy,’ Harry said. ‘We think, anyway.’

‘You think, exactly,’ Turner interrupted. ‘That’s another element of doubt here.’

‘But there’s no element of doubt about the fact that he killed her, surely? So whatever his name is, we know he is a murderer. And he made this statement knowing that he was going to kill Sharon Gilbert, and therefore thinking that no one else would hear about it. So there was no reason why he shouldn’t tell the truth. So surely, if this evidence was put before the jury, they would have to conclude that my son is innocent.’

Turner shook his head sadly. He seemed convinced by his argument, but embarrassed to meet her eyes. The judge peered at her reproachfully over his reading glasses, as though she were a student who’d handed in a sub- standard essay.

‘Your argument is flawed on several grounds, Mrs Newby. Firstly, until this man is arrested, tried and convicted we cannot know for a fact any of these things — either that he is a murderer, or that he killed Sharon Gilbert, or that he made this statement knowing that he was about to kill her. Even we accept that he did actually make the statement, it does not necessarily follow that he was telling the truth. In the absence of other evidence, it might be argued that he lied deliberately in order to frighten or torment his victim.’

‘And the jury? I doubt if they would see it like that.’

‘They might very well not. But it is my function, as trial judge, to decide what evidence does and does not go before this jury. And I regret to say that in view of its undoubted nature as hearsay at second hand, the evidence of DC Easby cannot be put before this jury.’

There was a silence, as the short-hand writer’s fingers rattled out the decision on her keys. Sarah felt faint, as though a hand was squeezing her heart.

‘And if other evidence comes to light? As it may very well do now that the police are investigating this man. What then?’

‘Then, if your son is convicted, he will have grounds for an appeal.’

‘After three or four years in prison.’

‘That is the nature of the law, Mrs Newby. We cannot bend it to suit ourselves, as you well know.’

Sarah was struck dumb. She had lost another argument, the worst of all. She gazed at the judge helplessly, hoping for pity. He smiled faintly.

‘After all, the jury are still out. They may well acquit him today.’

The traffic police spotted the van on the A64. When they stopped it two men got out and sprinted away across the fields, but one of the traffic policemen, a rugby back, brought down Gary with a fine tackle as he paused to cross a ditch. A second squad car arrived in time to rescue Sean from a farmer with a shotgun who had found him, covered in mud and cow pats, fiddling with wires under the dashboard of his Range Rover.

Terry watched as the pair of them were booked in at the police station by the custody sergeant. The knife, wrapped in a plastic bag, had already been checked in. In the back of the van the arresting officers had also found a rucksack, packed with clothes and other items.

‘Is that yours, son?’ Sergeant Chisholm asked Gary.

‘No, it’s his,’ said Gary sullenly. ‘All of it’s his.’

‘Yours, then,’ said Sergeant Chisholm placidly, turning to Sean.

‘Never seen it before in me life.’

Terry studied the man he had been hunting for so long. He was filthy after his attempted escape. Apart from that he was big, powerfully built like Gary, with the red-gold hair and boxer’s nose they’d seen in the photofit. But it was the eyes that interested Terry mostly — the eyes that he was going to look into during the interrogation to come. As far as he could see they were flat, devoid of any obvious emotion — no fear, no panic, no resentment or anger at his predicament. Just emptiness, and a sense of sullen, reserved control. This was not over yet, clearly.

He turned his attention to the rucksack, which Sergeant Chisholm was unpacking methodically. Clothes mostly, and a few items of toiletry, as though for a journey. And then, at the bottom, a crumpled brown envelope. Sean shifted uneasily as the sergeant emptied it.

‘A pair of female panties, white, stained — these yours, son?’

‘None of it’s mine.’

‘No? And yet it’s your rucksack, Gary says. And what’s this — dog collar? And a scrapbook?’ He opened it. ‘Oh my God! Sir — I think you’d better have a look at this.’

Terry and Sergeant Chisholm leafed through the book together. Newspaper cuttings, locks of hair, and photographs. Large, black and white pictures. The sort of quality any scenes of crime officer would die for. The sort of subject two women had died for.

Terry’s phone trembled in his pocket. Hardly knowing what he was doing, he answered.

‘Sir? It’s Harry. I’m at the court now.’

‘Oh yes, Harry. Good. Did you get the trial stopped?’