“Thank you, my lords. The first Witness from the Crown list is...The Reverend Thomas Paterson.”
At that point, Kane was sure that he heard Norris give a kind of snort. Kane looked up. Norris was already on his feet: “My lords...”
The three judges looked down at Norris. He was well-known in those courts. It was extremely unusual for Defence Counsel to be on his feet so early - with what already looked like an objection - but it was recognised by all that Norris knew what he was doing, and there was likely to be a valid point in there.
Lord Wallis, in the centre chair, picked up his pen: “Yes, Mr Norris?”
Norris pointed over at Charles Cod: “My lords, far be it for me to gainsay the well-known ability of my Learned Friend, the Advocate Depute, but would it not be customary to introduce the Crown Case - for Attempted Murder, mark you - with the evidence of the complainer, some would say ‘victim’ in the case? Namely...”. Norris looked down and read the name from his copy of the Indictment,, “...namely the individual, ‘Mr John Sanders Barrington Smith’?”
The judge shook his head: “Mr Norris as you are well aware, the Advocate Depute, the prosecutor, is the Master of the Instance in this case. In every case. He can call any witness in any order - or none at all. It is entirely a matter for him.”
Lord Wallis smiled down at the prosecutor, Charles Cod, who nodded and smiled back. Norris was not deterred. He pressed on: “I am obliged to my lord for that. I fear, however, that the gentlemen of the jury,” and at this point, Norris turned towards the jurors and smiled “may not appreciate being presented with a large quantity of factual material that looks as if it has been cut up and scattered by a jig-saw...”
Some of the jurors smiled at this. Not Lord Wallis. He became a mite testy: “Mr Norris, Mr Norris - I have made my decision here. Now, I would invite you to sit down, sir...”
Norris ducked the command: “I am happy to do so, my lord. But I wonder if we could simply ascertain at this early juncture, at what point will we hear from the complainer in this case, Mr John Sanders Barrington Smith?”
Norris looked across the table at Charles Cod. Cod was shifting uneasily in his seat now. Norris had a sudden intuition: “...if we are to hear from that witness at all?”
Lord Wallis looked down at Cod. Cod appeared to be avoiding his gaze. The judge thought for a moment, then: “Advocate Depute?”
Charles Cod stood up. Lord Wallis continued: “Advocate Depute, an issue has been raised. One that is easily resolved. Now - at what point do you expect to take the evidence of the complainer, Mr John Sanders Barrington Smith - the injured party here?”
Cod turned over the papers on the desk before him (somewhat shame-facedly, thought Kane) and then replied: “At no point, my lords. The Crown does not require him...”
Kane saw the three judges - all of whom had had experience of being prosecutors - look at each other somewhat quizzically. Wallis spoke: “Is Mr Smith under some form of incapacity, then? Have the events narrated in the libel rendered him incapax?”
Cod was perspiring now. “No my lords. I understand that he is currently out of the country.”
“Has he been cited personally to appear?”
“No, my lords. Personal citation proved impossible, since...”
Lord Wallis picked it up: “...since Mr Smith is out of the country.” Again, he looked around at the other judges, then back at Cod: “Then, how do you intend to proceed, sir?”
Cod, spoke now giving the impression that the absence of this main witness - the man whom it was alleged had almost been murdered - was not going to be a problem. Cod addressed the judges with the appearance of ease and confidence, every inch the experienced prosecutor. He indicated Lord Albert in the dock: “Oh, my lords, the evidence against the Pannel in this particular case is overwhelming. And there is a great deal of it. I am confident that I will be able to demonstrate a clear sufficiency here, despite the absence of Mr Smith.”
The judge nodded: “Very well, Advocate Depute.” He turned to NP Norris: “Mr Norris, are you content to proceed?”
Norris stood up: “Yes. I am obliged to the Court for clarifying that the individual who claims to have been the victim of an attempted murder should not trouble himself to turn up at the trial...”
Some of the jurymen laughed. Lord Wallis could no longer contain his annoyance: “Sit down, Mr Norris. That remark - and before the gentlemen of the jury - was quite uncalled for”. He turned towards the jury members: “Please disregard what you have just heard, gentlemen.” Then, turning to Cod: “Call your first witness...”
Norris sat down and grinned at Edward Kane. Kane whispered over to Norris: “How can they disregard the fact that the victim hasn’t ‘troubled himself’ to show up?”
Norris smiled: “Oh, they can’t, Edward, they can’t...”
“And what is the name of your dog, sir?”
Charles Cod was examining his first witness, the Reverend Thomas Paterson (D.D.), the clergyman who - when he was walking his dog - had witnessed the duel.
The clergyman replied: “The dog is called ‘Ezekiel”, sir.”
Cod turned towards the jurymen: “No doubt because of his interest in bones...”
Some of the jury members laughed. Others, who did not recognise the Biblical allusion laughed anyway at what was obviously meant to be a humorous comment by the prosecutor.
Kane watched Charles Cod, an experienced Advocate at work. Oh, yes - Charles Cod knew how to play to his audience. Confident and clear. Taking the evidence with a very sure touch. Letting the story unfold. The men in the jury looked intently at Cod. Here was a man who could be trusted. Cod continued: “And so, you came upon a duel...”
Norris leapt to his feet: “Don’t answer that question...”
The clergyman seemed startled by Norris’ loud objection and looked towards the three judges for guidance. Lord Wallis looked down at the witness with a kindly smile:
“Reverend Paterson, forgive the interruption but Defence Counsel has an objection.” The judge turned to Norris: “Yes Mr Norris?”
“I am objecting to my learned friend’s last question. It is a leading question. The words ‘...and so, you came upon a duel’ are entirely leading. They tell this witness precisely what the evidence is - before he gives it.”
This objection seemed so entirely reasonable that even the jurymen began to nod. Norris continued: “Further, the prosecutor’s question ‘you came upon a duel’ alleges a course of criminal conduct not in the charge. Duelling is, of itself, an offence. But he is not accused of that. The wording of the charge is very specific: ‘...you did arrange to meet...” - no mention of a duel there.”
The judges began nodding now. Lord Wallis turned to Cod: “Advocate Depute?”
Presenting as ever-reasonable, Cod held up his hands: “Mea culpa, my lords. Mea culpa. Of course, my learned friend is entirely correct. I will withdraw the question.”
And then Cod smiled over at Norris. Both of them knew exactly what had just happened. The prosecutor had just informed the jury that Sir Albert had turned up to fight a duel. Despite the judge’s acceptance that this evidence was not admissible, Charles Cod had now placed that image into the minds of the jurymen.
Lord Wallis said: “Thank you Advocate Depute please continue.” And picked up his pen again. Cod continued his questions:
COD: And what did you see?
PATERSON: I saw that gentleman, there [at this point, the witness pointed at Lord Albert in the dock]. He was standing about twenty paces away from the other chap. They were both holding pistols and pointing the pistols at each other...
There was a slight pause, and in the silence, Lord Arthur was heard to say in a very loud stage whisper: “Well - sounds like a duel to me...”
Ross Macfarlane QC has written The Scotsman Christmas story every year for the last ten years. His Scotsman story “Mr Charles Dickens and the Tale of Ebenezer...Scroggie” was chosen as the featured fiction by the international organisation, the Dickens Fellowship in 2017. His novella “Edward Kane and The Matter of Honour” is set in Edinburgh in the same period, the mid-19th Century and has been specially commissioned by The Scotsman. Illustrations by Lesley-Anne Barnes Macfarlane.