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Speaker 1: Appoche production.

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Speaker 2: Welcome to Real Crime with Adam Shann I'm your host

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Speaker 2: Adam Shand Last week one of the most sensational criminal

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Speaker 2: trials in Australian history came to a verdict.

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Speaker 3: Three people have now died and another is fighting for

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Speaker 3: life after being poisoned by wild mushrooms at a lunch

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Speaker 3: with friends in Gippsland.

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Speaker 2: Erin Patterson has been found guilty of murdering her former

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Speaker 2: parents in law, Don and Gail Patterson, and Gail's sister

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Speaker 2: Heather Wilkinson, the.

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Speaker 4: Jury finding her guilty of deliberately serving her relatives at

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Speaker 4: beef Wellington Lace with deadly death Cap mushrooms.

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Speaker 2: And also of the attempted murder of Gail's husband, Ian Wilkinson,

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Speaker 2: the sole survivor of that deadly lunch. On July twenty ninth,

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Speaker 2: twenty twenty three.

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Speaker 4: Aaron Patterson a convicted triple murderer.

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Speaker 2: It's a case that's captured the world's attention because of

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Speaker 2: its central plot. Erin serves up a lunch of homemade

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Speaker 2: beef Wellington's laced with death cap mushrooms and then claimed

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Speaker 2: the fatal consequences were just a tragic accident.

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Speaker 1: Yeah, I didn't do anything. I love them, but I'm devastated.

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Speaker 1: I just can't tell them what has happened.

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Speaker 2: The fifty year old has captured the attention of the media,

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Speaker 2: but let's not forget the victims, good people, pillars of

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Speaker 2: their community, who did not deserve to die. Having been

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Speaker 2: caught up in the breakdown of the marriage between Erin

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Speaker 2: and her husband, Simon Patterson, the son of Don and Gale.

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Speaker 2: Simon skipped a lunch because he felt uncomfortable, but Erin

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Speaker 2: did put aside a portion of the deadly meal in

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Speaker 2: case he changed his mind, a wise decision to skip

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Speaker 2: that meal. When first charged with the murders, Erin Patterson

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Speaker 2: turned to one of Australia's most distinguished barristers, Philip DUNNKC,

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Speaker 2: to defend her. Later, she turned to Colin Mandy sc

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Speaker 2: to represent at the trial. But Philip done had a

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Speaker 2: chance to assess the police case and her likely defense

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Speaker 2: to the charges, and he's kindly agreed to have a

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Speaker 2: chat today. That's my pleasure to welcome Philip to the

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Speaker 2: Real Crime studio.

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Speaker 1: Can I phil thank you very much?

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Speaker 4: Adam that I should say I can't really discuss I

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Speaker 4: discussed with there in Patterson, But I'm more than happy

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Speaker 4: to talk about generalities of the case.

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Speaker 2: Of course, Yeah, that's right, there's client confidentiality here. But

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Speaker 2: what was your reaction to the verdict?

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Speaker 4: I was intrigued by the fact that the jury didn't

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Speaker 4: ask a question, and a number of colleagues and number

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Speaker 4: of friends who knew that I did have some connection

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Speaker 4: with the case. Rangmon kept asking me, and I said,

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Speaker 4: the thing that surprises me is that there has not

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Speaker 4: been one question, and that would rather indicate than in

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Speaker 4: a trial that went over two months, that the jury

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Speaker 4: will methodically going through the evidence witness by witness, as

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Speaker 4: the judge had directed them to. And so at the

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Speaker 4: end of the day, the Crown put their jigsaw together

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Speaker 4: to the satisfaction of the twelve good people and.

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Speaker 2: True because when you're the defense barrister and the jury

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Speaker 2: doesn't ask a question, is that a good or a

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Speaker 2: bad sign?

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Speaker 4: That's a worrying sign. The best possible question you can get, Adam,

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Speaker 4: is would you please redefine reasonable doubt for us? Or

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Speaker 4: what happens if we've got some doubts. They're the sort

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Speaker 4: of questions you want, but juries these days they're given

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Speaker 4: a transcript which tends to slow things down a bit.

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Speaker 4: You'll notice that most jurors will take notes and so

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Speaker 4: it's a bit of a jury trial as a raffle.

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Speaker 4: Defense lawyers in circumstantial evidence cases would often prefer to

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Speaker 4: have judge alone. For example, in the case of Lloyd

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Speaker 4: Rainey over in wa charged with murdering the proformatory of

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Speaker 4: the Supreme Court, you'd rather have a judge alone because

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Speaker 4: they'll put a motion to one side and be very technical.

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Speaker 4: Juries are swayed by other factors. It's pretty hard to

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Speaker 4: get twelve people who can agree, but it's also very

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Speaker 4: hard to get to twelve people will apply themselves.

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Speaker 2: Indeed, in the case of Lloyd Rainey, he was acquitted

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Speaker 2: of the murder of his wife Koren, and that case

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Speaker 2: is still a mystery to many people.

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Speaker 4: Especially after the Western Australian Police publicized on the front

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Speaker 4: news of the Perth newspaper that he was there suspect

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Speaker 4: and only suspect prior to his arrest.

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Speaker 1: Yeah don't know.

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Speaker 2: So as you watched this case go through, you had

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Speaker 2: some knowledge of the case the background to it, but

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Speaker 2: you're seeing it play out on the court and you've

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Speaker 2: got how many years from twenty years fifty or more

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Speaker 2: than that. It's ninety sixty nine you've begun this, so

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Speaker 2: that's the thirty one plus fifty six years at the bar.

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Speaker 1: How did you assess the conduct of this trial?

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Speaker 4: That's impossible for me to say because I wasn't there

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Speaker 4: on a day to day basis, and that defense council

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Speaker 4: and prosecuting council will make different decisions based upon the

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Speaker 4: mood or, as they say in the Castle, the vibe.

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Speaker 1: You will change and shift where you're going.

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Speaker 4: I mean, I just finished a trial other day, and

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Speaker 4: we're going to call four or five defense witnesses. We

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Speaker 4: called our first witness, who went like a train, so

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Speaker 4: we didn't call the others. And I can't really comment

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Speaker 4: on the running of the trial except circumstantial evidence. Trials

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Speaker 4: are difficult because you have a matrix of evidence, and

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Speaker 4: here you had conduct, did certain things. Here, You've got lies. Here,

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Speaker 4: you've got possible movements towards outrom or lock with the

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Speaker 4: car or the phone. Now all of them on their

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Speaker 4: own don't amount to anything much and are all explainable.

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Speaker 4: Particularly conduct, either conduct which the Crown was assuming was

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Speaker 4: sort of consciousness of guilt, conduct or post offense, conduct

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Speaker 4: or lies. These things are all explainable by one hundred

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Speaker 4: and one different reasons, and it's the combination. So you'll

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Speaker 4: find that the cases that cause the greatest controversy if

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Speaker 4: you look back over our time, Adam, yours and mine

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Speaker 4: in the criminal law, their circumstantial evidence cases Lindy Chamberlain,

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Speaker 4: the spear throw over the Rocks in Sydney tied up

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Speaker 4: with all sorts of fits and pieces. These cases where

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Speaker 4: the prosecution of putting their case together and they convince

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Speaker 4: a jury often leave in the minds of reasonable people

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Speaker 4: considerable doubts as to the hell is another circumstantial evidence case.

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Speaker 2: Indeed, and George pell was initially found guilty but ultimately

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Speaker 2: exonerated because of the I guess the reasonable doubt that existed.

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Speaker 4: And he hadn't given evidence. He hadn't given evidence. Once

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Speaker 4: you give evidence, then the court of appeal will say,

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Speaker 4: but the jury had the chance to assess and way

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Speaker 4: the accused. So the calling of your client in a

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Speaker 4: circumstantial evidence case for a defense lawyer is a question

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Speaker 4: which any lawyer, and I'm sure the very skilled legal

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Speaker 4: team that were down more or would have really tossed

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Speaker 4: and turned on as to which way are they going

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Speaker 4: to go, because the minute you call your client in

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Speaker 4: a circumstanced levians case is you're going to shut out

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Speaker 4: the court weighing the crown case and only the crown case,

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Speaker 4: because they will then say the three wise men. The

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Speaker 4: jury evaluated the accused and formed.

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Speaker 2: A view because when I saw that she was going

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Speaker 2: to give evidence, and she gave evidence, I thought that

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Speaker 2: it reflected the fact that defense felt that the prosecution

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Speaker 2: was struggling with actus raya mensraya guilty mind guilty act?

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Speaker 2: Where was the motive? Was this actually a tragic accident?

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Speaker 2: Is that what you felt?

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Speaker 1: No, I think that they the first thing.

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Speaker 4: I don't know what the events thought, and I didn't

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Speaker 4: do the trial, and they were very skilled and experienced operators.

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Speaker 4: But in a trial, if we can talk about a

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Speaker 4: circumstanced levance case, and in a trial where your clients

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Speaker 4: told porky pies in this case, no foraging for mushrooms

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Speaker 4: or whatever it might be, you've really got a weigh

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Speaker 4: it up.

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Speaker 1: And sometimes you'll think the jury really.

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Speaker 4: Wore to hear her side of it or his side

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Speaker 4: of it. But this is a critical decision and it

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Speaker 4: all goes back. Probably there are two or three steps

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Speaker 4: when you read the brief and you will map out

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Speaker 4: the chronology, the timeline. You'll map out what is the

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Speaker 4: objective or real evidence that implicates the client in the crime.

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Speaker 4: Then what are the circumstantial evidences, what are the bits?

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Speaker 4: And in this case they relied on lies or post

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Speaker 4: offense conduct. Now what explanations are there for this conduct?

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Speaker 4: So sometimes you feel that you've got to do it.

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Speaker 4: But the calling of the client's always a big, big decision.

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Speaker 4: And these days barristers in Victoria have been trained in

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Speaker 4: the Australian School of advocacy and they're trained to be cautious,

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Speaker 4: so it's uncommon to call your client in Victoria.

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Speaker 2: I felt it showed a certain confidence to things. But

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Speaker 2: I guess also could be interpreted as a moment where

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Speaker 2: they were trying to what you call look for.

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Speaker 1: The rat the rather alternative theory.

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Speaker 2: Exactly that could explain these facts in a different way,

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Speaker 2: rather than just leading to the inevitable conclusion that if

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Speaker 2: somebody lies and their post defense conduct is so revealing,

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Speaker 2: they can only be guilt.

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Speaker 4: That's right, So that in any case, the calling of

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Speaker 4: your client is a very weighty decision because the jury

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Speaker 4: will judge the client and the client's story, and as

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Speaker 4: Rumphol very wisely said, nothing sinks faster than a cast

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Speaker 4: iron alibi. You run your defense and they don't like it,

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Speaker 4: though the judge will tell them put that to one

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Speaker 4: side and look at the evidence. You're up against it.

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Speaker 4: You're up against it. So these are This trial will

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Speaker 4: be one that will be like the Lindy Chamberlain trial,

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Speaker 4: will be one that will be analyzed backwards and forwards,

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Speaker 4: and the prosecution their evidence.

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Speaker 1: The order in which they lead their evidence is up

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Speaker 1: to them.

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Speaker 4: They did it in a way that they would thought

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Speaker 4: would be effective, and the way that defense cross examined

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Speaker 4: and what they cross examined on, and what decisions they made.

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Speaker 4: Young lawyers and older lawyers and academics and people like

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Speaker 4: Adam Shand will be examining it for quite some time

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Speaker 4: to come and then being wow, maybe we should have

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Speaker 4: done this, or maybe they should have done that. Because

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Speaker 4: a circumstantial evidence case, and one of the very first

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Speaker 4: of them you learn in law school is the first

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Speaker 4: conviction of a murder trial where there was no body

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Speaker 4: the body that would overboard the boat. And so they

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Speaker 4: had to convince the jury when they didn't have a body,

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Speaker 4: and murder trials usually don't have the added complication that

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Speaker 4: this trial had. And this trial when you attempted murders

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Speaker 4: and rapes are much more complicated for a defense council

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Speaker 4: to run his case, to think of his rival alternate theory.

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Speaker 4: But in a murder trial, you're usually missing the eye witness,

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Speaker 4: so the road is open for a lot of interpretation, right,

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Speaker 4: But in this case you had a survivor, Ian Wilkinson,

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Speaker 4: somebody who sat at the table as each person cutting

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Speaker 4: to their beef Wellington and took a spoonful and chatted.

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Speaker 4: And the demeanor of the people around the table. And

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Speaker 4: if you picture that table, and I've seen that table,

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Speaker 4: I've sat at that table. But as the meal is

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Speaker 4: being consumed, as pleasantries are being exchanged, trifle Colty are

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Speaker 4: fit warm today? How's Auntie Nelly?

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Speaker 1: Oh?

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Speaker 4: What do you think of the vief Wellington? It's a

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Speaker 4: picture which I'm sure the prosecution would probably have painted

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Speaker 4: in the minds of the jurors, which paints once you

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Speaker 4: find that she put the mushrooms in there, a fairly

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Speaker 4: chilling portrait of the accused.

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Speaker 2: It really is, and the circumstantial evidence certainly weighed against her.

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Speaker 2: Things like on that table he served the deadly beef

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Speaker 2: Wellington's to her guests on the white plates, and her

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Speaker 2: own plate was a tan colored plate. Could just be

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Speaker 2: mismatching crockery. But in the hands of the prosecution, it

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Speaker 2: looks like somebody who's avoiding eating the deadly beef Wellington that.

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Speaker 4: Came from the survivor. And I would think that the

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Speaker 4: problem always was here, what's the motive to kill, Not

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Speaker 4: the motive to hurt, not the motive to annoy them,

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Speaker 4: not the motive to literally give them the shits right,

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Speaker 4: but what is the motive to bump them off? And

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Speaker 4: anybody with half a brain would say that if you

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Speaker 4: sit down with five guests and yourself minus the children,

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Speaker 4: and one person walks away, there's going to be questions asked,

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Speaker 4: And any half logical person would say, well, how come

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Speaker 4: you didn't perish as well? And this is the problem

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Speaker 4: for the Crown case. The Crown case picked its skirts

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Speaker 4: up and skipped lightly along. When they had a survivor

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Speaker 4: who could talk about mismatched plates, I'd have thought it

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Speaker 4: was unlikely that she would have mismatched the plates to

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Speaker 4: give herself, because it's not the plate that's the problem,

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Speaker 4: it's what's on the plate, right, So I think that

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Speaker 4: was color and movement, and I think that's been misportrayed.

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Speaker 4: She made individual beef Wellington's and she wouldn't have had

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Speaker 4: ticks or crosses on them, but you would have been

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Speaker 4: able to distinguish. You wouldn't need to have a plate.

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Speaker 4: It's what's on the plate, not the plate.

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Speaker 2: Very interesting, good point, but I'll be checking carefully if

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Speaker 2: I having get served beef Wellington and the plate's different,

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Speaker 2: that's for sure. But most of us are trying to

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Speaker 2: work out did she do it or did she not

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Speaker 2: do it? But the barris for the defense barrister's job

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Speaker 2: is very different. It's about whether there's any doubt. Explain

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Speaker 2: that difference.

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Speaker 4: In any criminal trial, the judge will tell the jury

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Speaker 4: right at the outset that the fundamental difference between our

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Speaker 4: system and say North Korea Iran is that the accused

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Speaker 4: person is presumed to be innocent. They don't have to

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Speaker 4: prove the innocent. The prosecution has to prove their guilt.

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Speaker 4: The jury actually is the safety valve in the legal system.

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Speaker 4: Police come at it with police think, please commit these

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Speaker 4: cases with police think. So a police officer will conduct

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Speaker 4: they conduct interviews in very much the same way, and

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Speaker 4: they will conduct things in the same way, and they

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Speaker 4: have their They're like a one eyed football supporter.

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Speaker 1: I know.

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Speaker 4: They are very very good and industrious and terrific investigators

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Speaker 4: in Victorian police, and there's some pretty average ones. But

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Speaker 4: police have a police view about the case. So what

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Speaker 4: they will do is they will be interpreting through that lens.

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Speaker 4: What the defense counsel has to do is to say,

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Speaker 4: I don't have to prove black is white. I don't

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Speaker 4: have to prove my client is innocent. What I've got

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Speaker 4: to show is there is a reasonable doubt about the

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Speaker 4: prosecution view. And so the standard line of attack will

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Speaker 4: be the police have been a bit one eyed and

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Speaker 4: how they've gone about their investigation. They started out thinking

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Speaker 4: she was guilty in it. They've tried to fit Cinderella's

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Speaker 4: slipper on the ugly sister. What they've done. But here

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Speaker 4: in a circumstantial case. And I can think of a

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Speaker 4: ripper actually that I was involved in. A fellow called

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Speaker 4: Peter Beatos, the silver gun rapist. He charged with eighteen rapes.

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Speaker 4: The man was attired in a balaklava and had a

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Speaker 4: silver gun and nothing much else, and he raped women.

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Speaker 4: And in those days they didn't have DNA, so they

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Speaker 4: had eighteen different rape cases, and nowhere were saying the

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Speaker 4: coincidence is that the one person did the same, and

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Speaker 4: they pointed to various things in a circumstantial case. In

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Speaker 4: the offense case, all he had to do is find

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Speaker 4: have a reasonable doubt about one of them, because then

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Speaker 4: if you had a doubt about that, a doubt about

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Speaker 4: the lot. So in a circumstantial case where you're relying

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Speaker 4: on post defense conduct, wearing white trousers, which is part

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Speaker 4: of the theory, why would you get.

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Speaker 1: Diary would you wear white trousers.

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Speaker 2: That they're in Patterson who claimed she was ill, also

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Speaker 2: having eaten some of the beef. Wellington also and that

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Speaker 2: she claimed that she'd had gastro and wore white pants.

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Speaker 1: But these are arguments.

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Speaker 4: They're arguments, and their arguments made by people who have

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Speaker 4: seen that through the lens that she's guilty. The fact

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Speaker 4: is there is no real definable motive, right, There is

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Speaker 4: no motive.

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Speaker 1: These are good people. I mean, there's no personal beef whatsoever.

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Speaker 4: Is the most no motive. There's no motive, and if

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Speaker 4: you apply ordinary common sense and the plate thing are furfy.

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Speaker 4: Therefore panicking afterwards when people have died. I mean all

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Speaker 4: of us have got children, in my case grandchildren. You know,

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Speaker 4: you'll see how quickly people who took the chocolate biscuits

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Speaker 4: are not me. This is little Johnny wiping the RUMs

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Speaker 4: from you think, because their first reaction is to avoid

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Speaker 4: the conflict. So I'm not so hypnotized by post defense

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Speaker 4: livest and I think an intelligent jury and you need

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Speaker 4: a Monday morning jury.

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Speaker 1: What's the difference.

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Speaker 4: Well, you need a Monday morning jury. That is, you

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Speaker 4: need the brightest of the bright to run a case

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Speaker 4: like this. You don't need a Wednesday jury. We've got

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Speaker 4: the dregs of all the ones and the others that

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Speaker 4: knock back right, So you need an astute jury.

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Speaker 1: You need a trial by a judge alone.

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Speaker 2: I was going to say, was that a potential risk

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Speaker 2: choosing a jury trial, or was that.

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Speaker 4: They had no choice way because in Victoria, unlike other

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Speaker 4: states in Australia, we don't have that possibility of having

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Speaker 4: a trial by a judge alone. And a trial by

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Speaker 4: judge alone works excellently. When you have a person who's

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Speaker 4: been subject to a lot of bad publicity, so people

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Speaker 4: have preconceived views on the photos. Aaron Patterson was always

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Speaker 4: portrayed as an overweight, fat, mean looking woman. You don't

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Speaker 4: know Aaron Patterson, whether she's a charming woman or not.

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Speaker 4: But you see those photos and the photos that are

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Speaker 4: constantly played, I mean, are they kindly far from it?

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Speaker 4: This woman was blackguarded right from the start, right from

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Speaker 4: the start, and it's.

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Speaker 2: Really a feature of Australian trials involving women where their

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Speaker 2: demeanor is disproportionately held up as evidence of guilt.

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Speaker 4: Why were the Northern Territory Police so focused on Lindy

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Speaker 4: Chamberlain And if you go back and analyze that case,

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Speaker 4: they thought that she didn't react in a way that

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Speaker 4: a mother would because she sat down and prayed quietly,

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Speaker 4: and therefore they did there's something dodgy about that, just

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Speaker 4: like the doctor in this case who thought there was

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Speaker 4: something dodgy about her reaction.

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Speaker 1: Well, doctor Chris Webster.

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Speaker 4: Yeah, at the hest of light embarrassment and upset and

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Speaker 4: all the rest of it, and somebody jumping to conclusions

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Speaker 4: Lindy Chamberlain was prejudged, and the photos of her and

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Speaker 4: the way she was portrayed and Aaron Patterson was blackguarded

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Speaker 4: in the press.

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Speaker 1: If you look at the photos now, they're horrible. They

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Speaker 1: are horrible, And.

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Speaker 4: The reality is there's always a real chance here at

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Speaker 4: them that a real misjustice has happened.

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Speaker 2: Because we've also seen the normal body language experts come

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Speaker 2: out and they're analyzing her medio appearances and the police

348
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Speaker 2: interview and so forth.

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Speaker 1: And they don't know, they don't they don't know. It's

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Speaker 1: pseudo science, isn't it real? Pseudo science? It's crap.

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Speaker 4: And somebody jump into conclusion, you know, and I know

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Speaker 4: that when you jump to conclusion that doesn't mean you're right.

353
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Speaker 4: You're often wrong when you jump to them like somebody

354
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Speaker 4: who forms an impression. The reality is that one of

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Speaker 4: the people survived, and the elderly person survived, a much

356
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Speaker 4: younger person would have a greater chance of survival. And

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Speaker 4: if you start thinking in those ways rather than saying, well,

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Speaker 4: how comes you wore white pants?

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Speaker 1: Oh, that's a bit more. Ah, that's very dodgy. Well

360
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Speaker 1: that's right.

361
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Speaker 2: And I think the August five police interview really forms

362
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Speaker 2: the bulk of the Crown case where they tied her

363
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Speaker 2: to a story which was riven with lies. And I

364
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Speaker 2: take your point about how people panic, and she was

365
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Speaker 2: certainly panic and is that about that? But you see

366
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Speaker 2: it in the movies where people say, oh, we should

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Speaker 2: go to the police.

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Speaker 1: Oh, they won't believe us.

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Speaker 2: So they make up a silly story which actually brings

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Speaker 2: them undone. So the police were very very good in

371
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Speaker 2: the interviewer in tying her to a story which had

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Speaker 2: these falsehoods. They began with what she said to doctor

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Speaker 2: Chris Webster at the hospital that she bought the mushrooms

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Speaker 2: at Woolworths. It continued with do you own a dehydrator?

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Speaker 1: No.

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Speaker 2: There was also lies about foraging for mushrooms and really

377
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Speaker 2: in her relationship with Simon's family. There's a bunch of

378
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Speaker 2: things there, but they're all circumstantial.

379
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Speaker 4: I don't really want to comment on the case because

380
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Speaker 4: I did have some involved in It would be wrong

381
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Speaker 4: of me. Sure, I do say this, I said to

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Speaker 4: you a moment ago. Police approach things in a police

383
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Speaker 4: interview and skilled interviewers start, they will have in their

384
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Speaker 4: mind the reasons why they're suspicious, so they will ask

385
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Speaker 4: the accused person to give them a version. Then they

386
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Speaker 4: will go through that version and pick it to pieces,

387
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Speaker 4: and then they'll put their version. Now that's how they

388
00:21:18,241 --> 00:21:22,361
Speaker 4: do it, but they're doing it as a skeptic, as

389
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Speaker 4: a skeptic, and what they're doing is then they're latching

390
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Speaker 4: onto something, whereas people's reactions and in your ordinary everyday life.

391
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Speaker 4: Just last night, my wife said to me to put

392
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Speaker 4: the bins out, and I knew she was in a

393
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Speaker 4: bad mood, and I said, of course, they thought bugger.

394
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Speaker 4: I had to wait until she went to bed to

395
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Speaker 4: sneak out and put the bins out right, because sometimes

396
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Speaker 4: it's easier to avoid a problem. And I think, Adam,

397
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Speaker 4: what will happen in this case, has happened in Lindy Chamberlain,

398
00:21:59,241 --> 00:22:02,600
Speaker 4: has happened in these other circumstantial evidence cases, as will

399
00:22:02,600 --> 00:22:06,281
Speaker 4: happen in Dawson and so on, is that people will

400
00:22:06,321 --> 00:22:08,761
Speaker 4: go over and over, they will chew the bone on this.

401
00:22:09,600 --> 00:22:12,961
Speaker 4: And I think you'll find that once the kind of

402
00:22:13,961 --> 00:22:18,240
Speaker 4: mass mob hysteria of the evil erin Patterson with the

403
00:22:18,281 --> 00:22:21,600
Speaker 4: horrible photos and the liar and she was nasty to

404
00:22:21,600 --> 00:22:24,200
Speaker 4: a mother, but all these terrible things they're saying about it,

405
00:22:24,441 --> 00:22:28,041
Speaker 4: Once that dies down, Lawyers and people like yourself will

406
00:22:28,041 --> 00:22:32,921
Speaker 4: start revisiting the carcass of the crime, and I think

407
00:22:32,961 --> 00:22:34,840
Speaker 4: there's going to be more questions and answers.

408
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Speaker 2: Personally, I always felt on the way through the evidence

409
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Speaker 2: that the motivation was weak, although I've seen people get

410
00:22:41,481 --> 00:22:44,120
Speaker 2: murdered for less, but in this case, he was a

411
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Speaker 2: person with no history of this sort of stuff with.

412
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Speaker 2: She doesn't have prior convictions, none, none, And here were

413
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Speaker 2: these nice, decent people coming for lunch and this event

414
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Speaker 2: takes place. But where was the moment where you go Aha,

415
00:22:57,801 --> 00:23:00,080
Speaker 2: that's the reason why. And I felt this way all

416
00:23:00,120 --> 00:23:04,961
Speaker 2: the way through until the jury then retired for its verdict.

417
00:23:05,160 --> 00:23:07,120
Speaker 2: I thought, I reckon, they're going to find her guilty.

418
00:23:07,160 --> 00:23:07,801
Speaker 2: How did you feel?

419
00:23:08,561 --> 00:23:08,721
Speaker 1: Well?

420
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Speaker 4: I hadn't followed the trial in that sort of detail.

421
00:23:10,961 --> 00:23:13,761
Speaker 4: But the thing that I was extremely curious about. In fact,

422
00:23:13,801 --> 00:23:17,761
Speaker 4: I made an inquiry as to the occupations of the jurors.

423
00:23:18,600 --> 00:23:22,401
Speaker 4: I wondered what they were, because I was intrigued by

424
00:23:22,400 --> 00:23:26,481
Speaker 4: the fact that they weren't asking questions. And you don't

425
00:23:26,481 --> 00:23:29,001
Speaker 4: know what goes on inside the jury room, and the

426
00:23:29,160 --> 00:23:31,960
Speaker 4: only way you'll find out, I mean, the judge has

427
00:23:31,961 --> 00:23:35,000
Speaker 4: a bit more intelligence because his staff will report on

428
00:23:35,681 --> 00:23:38,960
Speaker 4: the vibe. But it's the questions that give you the answers.

429
00:23:39,001 --> 00:23:42,401
Speaker 4: But there was stony silence from the jury room as

430
00:23:42,400 --> 00:23:46,001
Speaker 4: they are apparently were methodically going through their task. Had

431
00:23:46,041 --> 00:23:49,960
Speaker 4: there been division within the ranks or worrying about an

432
00:23:49,961 --> 00:23:53,840
Speaker 4: aspect of proof, that have asked a question, and the

433
00:23:53,921 --> 00:23:57,440
Speaker 4: longer it went without the question. And I had a

434
00:23:57,521 --> 00:24:00,321
Speaker 4: number of my colleagues, because I did have some preliminary

435
00:24:00,360 --> 00:24:02,400
Speaker 4: involvement in the matter, ringing up and saying what do

436
00:24:02,481 --> 00:24:06,440
Speaker 4: you think? And I said, hmmin, this jury's very methodically

437
00:24:06,441 --> 00:24:11,000
Speaker 4: going about things. It looks dangerous for the defense. I

438
00:24:11,041 --> 00:24:13,400
Speaker 4: didn't know, but that's was my hunch.

439
00:24:13,721 --> 00:24:16,600
Speaker 2: It's your experience tells you that. But it was also

440
00:24:16,961 --> 00:24:20,360
Speaker 2: noted that the judge spent a long time directing the

441
00:24:20,441 --> 00:24:23,521
Speaker 2: jury on what was admissible, what was not, and how

442
00:24:23,561 --> 00:24:25,440
Speaker 2: they should regard evidence. And it could be said that

443
00:24:25,481 --> 00:24:28,521
Speaker 2: he did his job very very well. Therefore there weren't

444
00:24:28,561 --> 00:24:30,161
Speaker 2: those critical questions left.

445
00:24:31,120 --> 00:24:36,680
Speaker 4: Adam, most people you have a lifelong not only history

446
00:24:36,681 --> 00:24:38,801
Speaker 4: involved in the criminal lord, but a lifelong interest in this.

447
00:24:39,561 --> 00:24:43,041
Speaker 4: Most people find it very difficult, whether they're a university

448
00:24:43,120 --> 00:24:47,600
Speaker 4: professor or a tram driver to sit in one seat

449
00:24:48,001 --> 00:24:50,880
Speaker 4: for day after day and listen to people talking. Now,

450
00:24:50,921 --> 00:24:53,360
Speaker 4: when the witnesses are giving evidence, there's a certain theater

451
00:24:53,441 --> 00:24:56,280
Speaker 4: about that. But when the barristers are talking, or when

452
00:24:56,321 --> 00:24:59,840
Speaker 4: the judge is methodically going through the jury charge book,

453
00:25:00,640 --> 00:25:04,481
Speaker 4: in going through each post offense conduct edward's lies, whatever

454
00:25:04,481 --> 00:25:08,680
Speaker 4: it might be, explaining all these things, it's hard work

455
00:25:09,600 --> 00:25:13,840
Speaker 4: and most people, untrained people don't pick that stuff up

456
00:25:13,880 --> 00:25:17,041
Speaker 4: at first. Go what's normal to you is not normal

457
00:25:17,041 --> 00:25:20,041
Speaker 4: to the jurors. That's why their occupations are kind of

458
00:25:20,080 --> 00:25:23,961
Speaker 4: important to me, to any defense lawyer, rather to understand

459
00:25:24,481 --> 00:25:27,400
Speaker 4: what their capacities are. If you pick an average jury,

460
00:25:27,481 --> 00:25:30,721
Speaker 4: not this jury. I mean, I just finished a rape

461
00:25:30,721 --> 00:25:31,601
Speaker 4: trial on Monday.

462
00:25:32,561 --> 00:25:34,801
Speaker 1: How's it go? Hung? Jury?

463
00:25:34,880 --> 00:25:37,680
Speaker 4: Believe it that it was an interesting case. But on

464
00:25:37,840 --> 00:25:40,401
Speaker 4: that jury, like many jurors, there were three or four

465
00:25:40,481 --> 00:25:43,321
Speaker 4: jurors who after one or two days sort of weren't

466
00:25:43,321 --> 00:25:46,000
Speaker 4: that interested. That's what it did over and done with.

467
00:25:46,400 --> 00:25:50,080
Speaker 4: They didn't make notes. They had a jury book with

468
00:25:50,201 --> 00:25:52,681
Speaker 4: the exhibits and things. They didn't bring that in when

469
00:25:52,681 --> 00:25:56,080
Speaker 4: they said please look at exhibit five, just looking up

470
00:25:56,080 --> 00:25:58,720
Speaker 4: at the ceiling. So you start with a number of

471
00:25:58,761 --> 00:26:03,281
Speaker 4: passengers in your average jury, there were some passengers then

472
00:26:03,321 --> 00:26:04,001
Speaker 4: you're going to have.

473
00:26:05,080 --> 00:26:06,321
Speaker 1: And you don't know who they are.

474
00:26:06,600 --> 00:26:10,880
Speaker 4: The dominance usually red faced men or something like that,

475
00:26:10,961 --> 00:26:14,561
Speaker 4: but they could be red faced women. The dominance. They

476
00:26:14,561 --> 00:26:17,401
Speaker 4: can easily annoy the others because they'll jump to conclusions.

477
00:26:18,241 --> 00:26:21,160
Speaker 4: And then you have the studious note takers, so you

478
00:26:21,160 --> 00:26:22,921
Speaker 4: want to know what the occupations aren't and you will

479
00:26:22,921 --> 00:26:29,481
Speaker 4: actually tailor your presentation of the defense to your jurors

480
00:26:30,241 --> 00:26:32,680
Speaker 4: because you will talk to the jurors. So if this

481
00:26:32,721 --> 00:26:36,081
Speaker 4: one's a school teacher, or this one is a social

482
00:26:36,120 --> 00:26:39,281
Speaker 4: worker in aged care, you might say to them, well,

483
00:26:39,321 --> 00:26:41,360
Speaker 4: you know how people may get a little bit funny

484
00:26:41,360 --> 00:26:44,440
Speaker 4: when they get old and they don't always remember things

485
00:26:44,481 --> 00:26:47,600
Speaker 4: and they misinterpret things. Oh, you know, you'll tailor your

486
00:26:47,640 --> 00:26:53,681
Speaker 4: case a bit how you present it. These are all acquired, teachable,

487
00:26:53,761 --> 00:26:56,840
Speaker 4: learnable skills that defense and prosecution lawyers have, as the

488
00:26:56,880 --> 00:26:58,880
Speaker 4: prosecution will tailor their case.

489
00:26:59,761 --> 00:27:03,400
Speaker 2: Yes, and do you find in a high profile case

490
00:27:03,521 --> 00:27:04,921
Speaker 2: like this, where there has been a lot of meeting,

491
00:27:05,041 --> 00:27:07,321
Speaker 2: almost impossible to find a jury that has not had

492
00:27:07,400 --> 00:27:10,600
Speaker 2: some exposure to the facts. Do you find that they

493
00:27:10,681 --> 00:27:12,960
Speaker 2: walk in there with preconceived ideas, and you've got to

494
00:27:13,041 --> 00:27:13,481
Speaker 2: change them.

495
00:27:13,521 --> 00:27:16,440
Speaker 4: Of course they do, each and every one of us,

496
00:27:16,481 --> 00:27:22,241
Speaker 4: no matter how fair minded you are. We have conscious

497
00:27:22,281 --> 00:27:29,360
Speaker 4: and subconscious preconceptions and biases. And if you are a

498
00:27:29,481 --> 00:27:33,920
Speaker 4: union psychologist, you'd go back to the archetypes, the evil,

499
00:27:33,961 --> 00:27:39,240
Speaker 4: which the vestal virgin, the wise old man. These are

500
00:27:39,241 --> 00:27:43,640
Speaker 4: common archetypes which come from ancient Rome Esop's fables to

501
00:27:43,761 --> 00:27:47,720
Speaker 4: modern psychology. And these are all inherent and they are

502
00:27:47,761 --> 00:27:51,281
Speaker 4: inherent no matter what culture you come from. So the

503
00:27:51,360 --> 00:27:55,001
Speaker 4: archetypes and these are all light, lurk and lie in

504
00:27:55,801 --> 00:28:00,001
Speaker 4: our preconceived, sometimes unconscious bises. So how do you deal

505
00:28:00,041 --> 00:28:02,561
Speaker 4: with that as defence council too, Well, that's why you're

506
00:28:02,561 --> 00:28:04,840
Speaker 4: looking at the type of makeup of your jury becomes

507
00:28:04,880 --> 00:28:08,360
Speaker 4: very important. But also you have to deal with it.

508
00:28:08,441 --> 00:28:12,801
Speaker 4: Sometimes you've got to embarrass the jury into being independent.

509
00:28:14,080 --> 00:28:16,840
Speaker 1: How do you do that without risking losing them?

510
00:28:17,400 --> 00:28:19,960
Speaker 4: Well, you say to the jury, when you sat in

511
00:28:20,001 --> 00:28:24,200
Speaker 4: court you heard the accused man charged with rape, or

512
00:28:24,241 --> 00:28:25,600
Speaker 4: when you came to the court and you saw the

513
00:28:25,600 --> 00:28:27,720
Speaker 4: accused man of the lot, you'd say, I wonder what

514
00:28:27,801 --> 00:28:31,281
Speaker 4: he did? And then you heard rape, thought, oh, my god,

515
00:28:31,721 --> 00:28:34,881
Speaker 4: I'm in a rape case and this man's a rapist.

516
00:28:36,160 --> 00:28:39,201
Speaker 4: You say to the jury, if you were thinking that line,

517
00:28:39,241 --> 00:28:44,201
Speaker 4: you'd already made your mind up subconsciously. But you were

518
00:28:44,201 --> 00:28:48,601
Speaker 4: given an option by the judge to excuse yourself at

519
00:28:48,641 --> 00:28:50,720
Speaker 4: the start of the trial if you couldn't deal with

520
00:28:50,761 --> 00:28:55,200
Speaker 4: this sort of case. So the court assumes that you

521
00:28:55,201 --> 00:28:58,201
Speaker 4: were independent, even though you might have a prieve conceived

522
00:28:58,281 --> 00:29:02,440
Speaker 4: view that you have said, I volunteer by not asking

523
00:29:02,481 --> 00:29:06,601
Speaker 4: for an exception. It's particularly right. It used to be

524
00:29:06,641 --> 00:29:09,480
Speaker 4: more in cases you'd have to work harder. I'm an

525
00:29:09,521 --> 00:29:12,841
Speaker 4: older barrister. When you had my Italian migrants, they all

526
00:29:12,841 --> 00:29:16,480
Speaker 4: carry knives these day, guys. You know that these preconceived

527
00:29:16,521 --> 00:29:19,241
Speaker 4: that the old skippies had. So you have to sometimes

528
00:29:19,321 --> 00:29:22,841
Speaker 4: embarrass durors into being independent, and do you have to

529
00:29:22,881 --> 00:29:25,921
Speaker 4: remind them? And it starts and begins with the presumption

530
00:29:25,961 --> 00:29:28,121
Speaker 4: of innocence. The prosecution has to prove its case beyond

531
00:29:28,121 --> 00:29:31,281
Speaker 4: a reasonable doubt. Forget try to prove your clients innocent.

532
00:29:31,841 --> 00:29:34,521
Speaker 4: The jurors have to understand what their role is and

533
00:29:34,561 --> 00:29:36,961
Speaker 4: if you don't tell them, then you've failed in your job.

534
00:29:37,761 --> 00:29:40,081
Speaker 2: I've seen more than one defendant who's got en off

535
00:29:40,561 --> 00:29:43,041
Speaker 2: say thank God for the jury system, and that the

536
00:29:43,121 --> 00:29:44,281
Speaker 2: jury system gets.

537
00:29:44,041 --> 00:29:45,521
Speaker 1: It right more than it gets it wrong.

538
00:29:45,521 --> 00:29:48,401
Speaker 4: Would you agree with that, Yes, I do those who

539
00:29:48,441 --> 00:29:52,801
Speaker 4: work within the system. No, it's not perfect, but it's

540
00:29:52,841 --> 00:29:56,521
Speaker 4: better than the alternative. And as I described it before,

541
00:29:56,681 --> 00:29:59,721
Speaker 4: the juris system is the safety valve in the administration

542
00:29:59,801 --> 00:30:03,881
Speaker 4: of justice that don't always get it right. And I

543
00:30:03,921 --> 00:30:07,761
Speaker 4: think the jurors in a high profile case, whether it's

544
00:30:07,761 --> 00:30:10,921
Speaker 4: a biky, whether it's a cardinal or the Catholic Church,

545
00:30:11,881 --> 00:30:17,081
Speaker 4: whether it's a fat woman who's being poisoned, having the

546
00:30:17,161 --> 00:30:20,841
Speaker 4: juror's potential jurors poisoned daily by photos of her and

547
00:30:20,921 --> 00:30:24,041
Speaker 4: pictures of her, these people have a harder road to

548
00:30:24,161 --> 00:30:27,921
Speaker 4: travel and harder road to get an independent dura. I'm

549
00:30:27,921 --> 00:30:30,281
Speaker 4: not saying these jurors weren't independent her trial. Of course,

550
00:30:30,561 --> 00:30:32,681
Speaker 4: there's no evidence that at all. In fact that there's

551
00:30:32,681 --> 00:30:34,081
Speaker 4: been so much scrutiny that there are a couple of

552
00:30:34,281 --> 00:30:37,240
Speaker 4: farcical moments where it was discovered that the media was

553
00:30:37,281 --> 00:30:39,520
Speaker 4: in the same hotel as the jurors. But apart from that,

554
00:30:39,561 --> 00:30:41,801
Speaker 4: I think they were sequested well and they've done their

555
00:30:41,881 --> 00:30:46,641
Speaker 4: job beyond approach. Absolutely, absolutely, and nobody would say to

556
00:30:46,681 --> 00:30:47,161
Speaker 4: the otherwise.

557
00:30:47,561 --> 00:30:50,681
Speaker 1: But they have a hard job. Their job is harder.

558
00:30:50,761 --> 00:30:52,081
Speaker 4: I mean if they're acting for the head of the

559
00:30:52,081 --> 00:30:55,961
Speaker 4: common Sharos or that vers's the cardinal and the Catholic Church.

560
00:30:56,001 --> 00:30:58,921
Speaker 4: When everybody's saying, well, you will know these priests are pedophiles,

561
00:30:59,401 --> 00:31:01,361
Speaker 4: and they're all saying we all know, and Patterson's are

562
00:31:01,361 --> 00:31:04,321
Speaker 4: poisoner and look at it, fat older which woman.

563
00:31:06,041 --> 00:31:08,401
Speaker 2: Yes, you know what it's like to have unpopular clients.

564
00:31:08,481 --> 00:31:10,721
Speaker 2: You represented Mick Howie of the Commentary as you mentioned

565
00:31:10,761 --> 00:31:12,841
Speaker 2: that in the Sydney Airport melee.

566
00:31:13,241 --> 00:31:13,721
Speaker 1: How is that?

567
00:31:14,281 --> 00:31:18,481
Speaker 4: Well, you know these cases, aren't I've represented McMurray in

568
00:31:18,521 --> 00:31:22,440
Speaker 4: the These people aren't. They're not your best friends, you

569
00:31:22,481 --> 00:31:24,321
Speaker 4: don't want them are your best friends. In fact, it's

570
00:31:24,321 --> 00:31:26,681
Speaker 4: harder for the barrister if you like the client. It

571
00:31:26,801 --> 00:31:29,881
Speaker 4: best to keep well neutral of the client. But acting

572
00:31:29,961 --> 00:31:33,521
Speaker 4: for in a notorious case presents its own special problems

573
00:31:33,601 --> 00:31:34,721
Speaker 4: and they have to be dealt with.

574
00:31:34,841 --> 00:31:40,121
Speaker 1: They can't be ignored. I can't be ignored in this case.

575
00:31:40,161 --> 00:31:43,401
Speaker 2: What would those special You've actually mentioned it, the preconceived

576
00:31:43,441 --> 00:31:47,281
Speaker 2: ideas about Aaron Patterson and the archetype that's right.

577
00:31:47,161 --> 00:31:50,681
Speaker 4: And then the constant portrayal of it. And I think

578
00:31:50,721 --> 00:31:53,561
Speaker 4: the defense did a very good job in trying to

579
00:31:53,801 --> 00:31:57,440
Speaker 4: limit the damage the press were doing prior to the trial.

580
00:31:57,481 --> 00:32:00,321
Speaker 4: And obviously wasn't at the trial, so I can't comment

581
00:32:00,361 --> 00:32:00,801
Speaker 4: on the trial.

582
00:32:01,321 --> 00:32:02,921
Speaker 2: But we go back to that critical moment where they

583
00:32:02,921 --> 00:32:05,561
Speaker 2: decided to put Aaron Patterson on the stand to tell

584
00:32:05,601 --> 00:32:06,081
Speaker 2: her story.

585
00:32:06,201 --> 00:32:07,601
Speaker 1: Big decision, big.

586
00:32:07,441 --> 00:32:10,201
Speaker 2: Decision, and I think by all accounts, she did reasonably well.

587
00:32:10,561 --> 00:32:13,601
Speaker 2: She certainly didn't collapse in the box and provide the

588
00:32:13,681 --> 00:32:15,401
Speaker 2: coupdigraph of the prosecution.

589
00:32:15,081 --> 00:32:15,361
Speaker 1: Did she.

590
00:32:16,161 --> 00:32:18,921
Speaker 4: I'm lucky in the sense that I'm an older barrister

591
00:32:19,561 --> 00:32:22,761
Speaker 4: and therefore I've seen a bit more and I really

592
00:32:23,241 --> 00:32:27,081
Speaker 4: when I started, one of the great criminal trial lawyers

593
00:32:27,161 --> 00:32:31,281
Speaker 4: who had spectacular success was Frank Galbi. He wasn't embarrassed

594
00:32:31,321 --> 00:32:33,801
Speaker 4: her sister. Mister Frank, as we all called him. We

595
00:32:33,881 --> 00:32:36,761
Speaker 4: used to go and watch him. Mister Frank said, you

596
00:32:36,761 --> 00:32:39,361
Speaker 4: should always called your client. That should be a starting

597
00:32:39,361 --> 00:32:41,921
Speaker 4: point because the jury would like to hear their story.

598
00:32:43,041 --> 00:32:46,281
Speaker 4: Barristers are trained by the Australian skill of advocacy in

599
00:32:46,361 --> 00:32:49,921
Speaker 4: barrister training to be far more cautious these days, But

600
00:32:50,041 --> 00:32:53,321
Speaker 4: mister Frank said, it doesn't matter how they go, as

601
00:32:53,321 --> 00:32:57,881
Speaker 4: long as they hold the line. They're not actors, they're

602
00:32:57,881 --> 00:33:02,081
Speaker 4: just ordinary people. And that's why there's a lot of

603
00:33:02,081 --> 00:33:02,681
Speaker 4: wisdom there.

604
00:33:02,881 --> 00:33:03,161
Speaker 1: I mean.

605
00:33:03,241 --> 00:33:05,641
Speaker 4: But mister Frank practiced in a very different day to

606
00:33:05,681 --> 00:33:07,281
Speaker 4: the days now. I mean, he used to talk about

607
00:33:07,281 --> 00:33:10,601
Speaker 4: our Lord and Savior Jesus Christ was taken by the

608
00:33:10,641 --> 00:33:12,721
Speaker 4: police of Jerusalem and interrogated.

609
00:33:13,961 --> 00:33:17,161
Speaker 2: You also learned at the feet of a great criminal solicitor,

610
00:33:17,201 --> 00:33:20,361
Speaker 2: Bob Vernon here in Melbourne. A few of his cases

611
00:33:20,561 --> 00:33:22,801
Speaker 2: were very and he was a guy, that very dashing

612
00:33:22,801 --> 00:33:25,361
Speaker 2: individual ran with the hounds and the hairs at times.

613
00:33:25,041 --> 00:33:27,161
Speaker 4: Oh very much, say, with the black leather overcoat and

614
00:33:27,161 --> 00:33:30,521
Speaker 4: the little Clark gable mustache. But he was an old

615
00:33:30,521 --> 00:33:34,001
Speaker 4: fashioned blood and thunder barrister. This was in the days

616
00:33:34,081 --> 00:33:36,801
Speaker 4: when you're doing robbery and murder trials, where every hand

617
00:33:36,881 --> 00:33:39,440
Speaker 4: was turned against you. There were no signed records of it,

618
00:33:39,521 --> 00:33:42,520
Speaker 4: of you, no tape records of interview. Police verbals were

619
00:33:42,601 --> 00:33:45,881
Speaker 4: very common. Police those days were very different to the

620
00:33:45,961 --> 00:33:49,361
Speaker 4: way they are now. And in those days, when you failed,

621
00:33:49,401 --> 00:33:51,881
Speaker 4: you went to John for twenty five years, and those days.

622
00:33:51,921 --> 00:33:53,960
Speaker 4: I mean murder trials lasted four or five days. I

623
00:33:54,041 --> 00:33:55,961
Speaker 4: did murder trial at the murder trial.

624
00:33:55,721 --> 00:33:58,481
Speaker 1: In a week, and this lasted weeks and nine weeks

625
00:33:58,521 --> 00:33:59,200
Speaker 1: I think in total.

626
00:33:59,281 --> 00:34:02,361
Speaker 4: And the judge was so careful, you know, everything's in

627
00:34:02,401 --> 00:34:04,760
Speaker 4: those days. It was just up and at them, you know.

628
00:34:05,121 --> 00:34:05,361
Speaker 1: Yeah.

629
00:34:05,441 --> 00:34:07,801
Speaker 2: I did hear one story, maybe apocryphal, about Bob Vernon

630
00:34:07,841 --> 00:34:11,121
Speaker 2: where one of his junior solicitors was being threatened by

631
00:34:11,121 --> 00:34:12,841
Speaker 2: one of the clients who was unhappy with the service

632
00:34:13,241 --> 00:34:15,961
Speaker 2: and had assaulted him, and Vernon turned up at this

633
00:34:16,081 --> 00:34:18,201
Speaker 2: client's door and shot him in the foot.

634
00:34:18,761 --> 00:34:19,921
Speaker 1: I don't know if it's sure or not, but it's

635
00:34:19,921 --> 00:34:20,561
Speaker 1: a good story.

636
00:34:20,841 --> 00:34:23,841
Speaker 4: Bob Vernon deserves a book. Bob Vernon was a very

637
00:34:23,881 --> 00:34:29,441
Speaker 4: complicated and unusual character. And somebody was talking to me

638
00:34:30,281 --> 00:34:32,121
Speaker 4: about a case that I was in with Bob Vernon

639
00:34:32,201 --> 00:34:36,121
Speaker 4: only yesterday, which involved the fixing of race meetings at

640
00:34:36,121 --> 00:34:41,001
Speaker 4: Mornington and Flemington, and Vernon ran with the hairs and

641
00:34:41,041 --> 00:34:43,201
Speaker 4: hunted with the hounds. He was a very different and

642
00:34:43,241 --> 00:34:44,281
Speaker 4: complicated man.

643
00:34:44,921 --> 00:34:46,361
Speaker 2: Do you find you have to do that as a

644
00:34:46,361 --> 00:34:51,480
Speaker 2: barrister where you're where it's not your role to either

645
00:34:51,481 --> 00:34:53,881
Speaker 2: be a friend of the client, or determine their guilty

646
00:34:53,921 --> 00:34:56,361
Speaker 2: or innocence, but to represent them, how do you approach

647
00:34:56,401 --> 00:34:57,081
Speaker 2: that whole question.

648
00:34:57,961 --> 00:35:01,361
Speaker 4: Well, these days it's a little bit more complicated than

649
00:35:01,361 --> 00:35:03,161
Speaker 4: it was. Nowadays, the idea is always to keep the

650
00:35:03,241 --> 00:35:06,881
Speaker 4: desk between you and the client. Keep the desk between

651
00:35:06,881 --> 00:35:09,801
Speaker 4: you and your client. That's it. They're not my friends.

652
00:35:10,441 --> 00:35:11,921
Speaker 4: I don't have to go to dinner with them. I

653
00:35:11,961 --> 00:35:13,681
Speaker 4: don't have to like them. They don't have to like me.

654
00:35:14,361 --> 00:35:18,641
Speaker 4: These days, clients expect a bit more client management, a

655
00:35:18,881 --> 00:35:21,321
Speaker 4: bit more hand holding. But you've got to be very

656
00:35:21,321 --> 00:35:25,681
Speaker 4: careful because clients are treacherous their charge with the criminal offense.

657
00:35:25,681 --> 00:35:27,801
Speaker 4: This dominates their life. They're not going to the dentist

658
00:35:27,801 --> 00:35:29,401
Speaker 4: to get a filling. They might be going to job

659
00:35:29,441 --> 00:35:31,161
Speaker 4: for the next eight years or ten years, or twenty

660
00:35:31,241 --> 00:35:33,440
Speaker 4: years or thirty five in this case, or thirty five

661
00:35:33,481 --> 00:35:37,121
Speaker 4: in this case. So you can't say, oh, the clients

662
00:35:37,121 --> 00:35:40,721
Speaker 4: are friend of mine. You've got to treat them very professionally.

663
00:35:40,801 --> 00:35:42,960
Speaker 4: You've always got to keep the desk between yourself and them.

664
00:35:43,801 --> 00:35:47,440
Speaker 4: And I always get my clients to write their instructions.

665
00:35:47,601 --> 00:35:49,121
Speaker 4: I asked them to read the record of video and

666
00:35:49,201 --> 00:35:50,961
Speaker 4: comment or ask them to tell their side of the

667
00:35:50,961 --> 00:35:54,401
Speaker 4: story and under theatic legal instructions to Philip Dunnan's on,

668
00:35:54,801 --> 00:35:58,081
Speaker 4: so you get their version, so you're always sort of covered.

669
00:35:58,841 --> 00:36:00,881
Speaker 4: Nine out of ten people changed, or more than nine

670
00:36:00,921 --> 00:36:03,161
Speaker 4: out of ten people charge at criminal offenses plead guilty

671
00:36:04,081 --> 00:36:08,000
Speaker 4: more than nine more than ninety percent of the less

672
00:36:08,001 --> 00:36:11,201
Speaker 4: than ten percent who pleaded not guilty. A number of

673
00:36:11,201 --> 00:36:15,961
Speaker 4: them clearly have real problems, but for all sorts of reasons,

674
00:36:16,601 --> 00:36:20,001
Speaker 4: they won't even contemplate a plea a guilty, and the

675
00:36:20,041 --> 00:36:24,841
Speaker 4: Crown can be realistic in plea bargaining and negotiation, so

676
00:36:24,881 --> 00:36:28,961
Speaker 4: that's always something that should be explored. But there are people,

677
00:36:29,241 --> 00:36:34,041
Speaker 4: particularly grandparents charged with sexually enlisting their granddaughters. They'll never

678
00:36:34,041 --> 00:36:37,641
Speaker 4: plead guilty. They'd burn on the cross rather than say

679
00:36:37,641 --> 00:36:41,281
Speaker 4: they did it. So you've got to manage your client.

680
00:36:41,321 --> 00:36:44,121
Speaker 4: You had to point out the pitfalls and then act

681
00:36:44,161 --> 00:36:45,081
Speaker 4: on their instructions.

682
00:36:45,241 --> 00:36:49,601
Speaker 2: It certainly is a high stakes moment because running to

683
00:36:49,641 --> 00:36:53,881
Speaker 2: trial is expensive and if you take up the court's time,

684
00:36:54,241 --> 00:36:56,241
Speaker 2: they're not going to look so kindly upon you when

685
00:36:56,281 --> 00:36:59,601
Speaker 2: it comes to sentencing. Aaron Patterson is looking at thirty

686
00:36:59,601 --> 00:37:01,361
Speaker 2: five to forty years at the moment, which is what

687
00:37:01,481 --> 00:37:05,121
Speaker 2: Carl Williams got for murdering eight or ten people. And

688
00:37:05,361 --> 00:37:08,481
Speaker 2: I guess there's a moment when you're dealing with your

689
00:37:08,481 --> 00:37:11,001
Speaker 2: client and you obviously you can't speak for Aaron Patterson.

690
00:37:11,041 --> 00:37:14,121
Speaker 2: That was a client confidential conversation, but there must be

691
00:37:14,201 --> 00:37:17,001
Speaker 2: moments when you've got a client where the circumstantial evidence

692
00:37:17,041 --> 00:37:19,841
Speaker 2: is so great in a murder trial that a manslaughter

693
00:37:20,321 --> 00:37:22,361
Speaker 2: plea with the crown makes sense.

694
00:37:22,681 --> 00:37:26,480
Speaker 4: Always, always has to be discussed. I remember one of those.

695
00:37:27,001 --> 00:37:29,241
Speaker 4: It's what do I call Plan AM Plan B? And

696
00:37:29,281 --> 00:37:32,041
Speaker 4: I remember when I was acting for Carmen Lawrence, who

697
00:37:32,081 --> 00:37:34,281
Speaker 4: was then the Minister for Health and the Keating government,

698
00:37:35,481 --> 00:37:37,761
Speaker 4: and she was charged with perjury and we sat in

699
00:37:37,761 --> 00:37:40,361
Speaker 4: my chambers and she was full of fight and confidence

700
00:37:40,801 --> 00:37:43,481
Speaker 4: and she gave her instructions and then I said, well

701
00:37:43,521 --> 00:37:46,681
Speaker 4: we should also think about plan B. And she said

702
00:37:46,681 --> 00:37:47,921
Speaker 4: what's out? I said, what happens to if you get

703
00:37:47,921 --> 00:37:52,121
Speaker 4: fan guilty? Well she just about passed out at the table,

704
00:37:52,761 --> 00:37:54,561
Speaker 4: and she said, why don'd be fan guilty? And I said,

705
00:37:54,601 --> 00:37:57,521
Speaker 4: because I can see immediately these problems in what you're

706
00:37:57,561 --> 00:38:00,641
Speaker 4: telling me. And she was a very clever woman. Carden

707
00:38:00,681 --> 00:38:02,761
Speaker 4: Lawrence a very clever. It is a very clever one.

708
00:38:02,801 --> 00:38:06,601
Speaker 4: And I said to her, you formed a view on

709
00:38:06,641 --> 00:38:10,361
Speaker 4: your recollection, but the human memory is not a tape recorder.

710
00:38:11,161 --> 00:38:14,321
Speaker 4: The human memory is not a camera. I'd be greatly

711
00:38:14,401 --> 00:38:16,401
Speaker 4: assisted if you could go away and do a little

712
00:38:16,681 --> 00:38:20,321
Speaker 4: paper from me on human memory. Because she's an academic.

713
00:38:22,281 --> 00:38:24,521
Speaker 4: She came back with one hundred and eighty page document

714
00:38:25,761 --> 00:38:28,441
Speaker 4: and she said, you know, maybe I can't rely on

715
00:38:28,481 --> 00:38:33,361
Speaker 4: my memory. I said, nay, you're talking. Don't lock yourself

716
00:38:33,361 --> 00:38:37,161
Speaker 4: into a position where you might think, because you're so

717
00:38:37,321 --> 00:38:40,681
Speaker 4: horrified by the allegation of telling lies, that you're being

718
00:38:40,681 --> 00:38:44,321
Speaker 4: adamant on the rest is history. I'm mean, there's a

719
00:38:44,401 --> 00:38:47,521
Speaker 4: cigarette verdict. The jury went out, had a cigarette three minutes,

720
00:38:47,561 --> 00:38:51,521
Speaker 4: came back and I quit it. So clients that have

721
00:38:51,641 --> 00:38:54,041
Speaker 4: to be managed and sometimes but.

722
00:38:54,001 --> 00:38:57,321
Speaker 2: It's a hard discussion, particularly when the police case, as

723
00:38:57,321 --> 00:39:00,401
Speaker 2: in Aaron Patterson's trial, seems to be very strong. The

724
00:39:00,441 --> 00:39:04,921
Speaker 2: circumstantial evidence is there. I thought, well, listen to the layman,

725
00:39:05,081 --> 00:39:08,601
Speaker 2: it was, I mean to you, you're seeing the rational alternative,

726
00:39:09,481 --> 00:39:12,241
Speaker 2: the rat You see the rat the rival alternative theory.

727
00:39:12,481 --> 00:39:14,841
Speaker 2: Most of us see the archetype that you're talking about

728
00:39:15,081 --> 00:39:17,481
Speaker 2: where she looks guilty the post conduct.

729
00:39:17,521 --> 00:39:19,441
Speaker 4: Therefore she wore a white pad, she must be guilty

730
00:39:19,481 --> 00:39:22,281
Speaker 4: because she wouldn't wear that if she had diarrhea, or

731
00:39:22,321 --> 00:39:26,121
Speaker 4: she wouldn't tell a lie about the dehydrator.

732
00:39:27,001 --> 00:39:28,441
Speaker 1: It's kind of nuts.

733
00:39:29,481 --> 00:39:32,161
Speaker 4: It's almost proof of innocence, the fact that she'd lied

734
00:39:32,161 --> 00:39:36,561
Speaker 4: about the dehydrator. How so, because it's such a silly lie,

735
00:39:38,521 --> 00:39:41,681
Speaker 4: it's a nonsensical lie. It's a panic you eye, and

736
00:39:41,721 --> 00:39:44,641
Speaker 4: she kept the manual that if she had mixed the

737
00:39:44,721 --> 00:39:50,081
Speaker 4: death cap mushrooms into the dehydrator, and then she hid

738
00:39:50,121 --> 00:39:53,081
Speaker 4: the dehydrator, didn't hide the manual. And when did she

739
00:39:53,161 --> 00:39:56,681
Speaker 4: hide the dehydrator when the balloon went up? Right, It's

740
00:39:56,681 --> 00:40:01,401
Speaker 4: something you could turn to your advantage rather than it's

741
00:40:01,441 --> 00:40:04,441
Speaker 4: such a silly lie. It shows in a way she's innocent,

742
00:40:05,281 --> 00:40:08,841
Speaker 4: because if she is the evil, conniving person, she'd got

743
00:40:08,961 --> 00:40:10,841
Speaker 4: rid of all of this stuff a long time ago,

744
00:40:11,521 --> 00:40:15,321
Speaker 4: and it would be very simple thing to say, Actually,

745
00:40:15,881 --> 00:40:18,761
Speaker 4: I'm a forager, and I went out in my forage

746
00:40:18,881 --> 00:40:21,601
Speaker 4: just around those oak trees over there, and I found

747
00:40:21,641 --> 00:40:25,841
Speaker 4: these mushrooms, and I thought they'll be just wonderful, natural,

748
00:40:26,081 --> 00:40:28,921
Speaker 4: not polluted not made with chemicals, not made in a

749
00:40:29,001 --> 00:40:32,761
Speaker 4: factory somewhere, because I wanted my guests to have a

750
00:40:32,761 --> 00:40:36,441
Speaker 4: wonderful dinner, and I gave the natural mushrooms. The fact

751
00:40:36,441 --> 00:40:38,881
Speaker 4: that she told her live about the dehydrator, I would

752
00:40:38,921 --> 00:40:40,641
Speaker 4: say as an indicator of innocence.

753
00:40:40,561 --> 00:40:41,041
Speaker 1: Very interesting.

754
00:40:41,081 --> 00:40:42,641
Speaker 2: I think good way putting it, because really, when you

755
00:40:42,641 --> 00:40:44,401
Speaker 2: look at it, it would have to be one of

756
00:40:44,401 --> 00:40:47,241
Speaker 2: the dumber murder plots if you were to put one together,

757
00:40:47,281 --> 00:40:49,761
Speaker 2: because there's only one possible coproate.

758
00:40:50,281 --> 00:40:51,041
Speaker 1: Nay, you're cooking.

759
00:40:52,241 --> 00:40:55,401
Speaker 2: You should have been on the juror because all the

760
00:40:55,441 --> 00:40:58,841
Speaker 2: evidence pointed towards her, the lies seemed to point towards her,

761
00:40:59,201 --> 00:41:02,001
Speaker 2: And I think it was a very difficult assignment for

762
00:41:02,081 --> 00:41:03,721
Speaker 2: the defense in this case.

763
00:41:04,041 --> 00:41:06,001
Speaker 1: And therefore they were very careful.

764
00:41:06,041 --> 00:41:09,041
Speaker 4: Analysis was and would have been made by a highly

765
00:41:09,081 --> 00:41:10,561
Speaker 4: skilled and competent legal team.

766
00:41:11,321 --> 00:41:13,521
Speaker 2: And she spent a fortune on this. I mean was

767
00:41:13,721 --> 00:41:16,241
Speaker 2: she inherited something like three million dollars? I think you

768
00:41:16,241 --> 00:41:18,601
Speaker 2: wouldn't get much change in this sort of a murder

769
00:41:18,641 --> 00:41:19,401
Speaker 2: trials say.

770
00:41:19,241 --> 00:41:19,881
Speaker 1: Is that was that right?

771
00:41:19,961 --> 00:41:21,960
Speaker 4: I'll tell you what, in a case like this, money

772
00:41:22,001 --> 00:41:24,921
Speaker 4: doesn't matter. You'd do it anyway. Barristers would climb over

773
00:41:25,041 --> 00:41:27,801
Speaker 4: broken rocks to do this case right.

774
00:41:28,361 --> 00:41:30,041
Speaker 2: I remember I did a story and a guy called

775
00:41:30,081 --> 00:41:32,841
Speaker 2: rober John Adams, who'd murdered a woman called Mary Louise

776
00:41:32,841 --> 00:41:35,921
Speaker 2: Wallace back in only eighty three. He posed as a

777
00:41:35,961 --> 00:41:38,361
Speaker 2: police officer, met her in a nightclub, took her out,

778
00:41:38,481 --> 00:41:42,161
Speaker 2: raped her, murder, to dispose of the body, and he

779
00:41:42,801 --> 00:41:46,121
Speaker 2: for many, many years maintains his innocence. He was finally

780
00:41:46,121 --> 00:41:49,401
Speaker 2: convicted and got a last sentence, and the question now

781
00:41:49,521 --> 00:41:51,161
Speaker 2: came up of where is the body?

782
00:41:51,201 --> 00:41:52,681
Speaker 1: Can you show us where the body is? You can

783
00:41:52,681 --> 00:41:53,761
Speaker 1: get parole. You aren't that old.

784
00:41:53,801 --> 00:41:56,201
Speaker 2: I went to visit him at Sessnock Jail and I

785
00:41:56,201 --> 00:41:57,681
Speaker 2: sat for two or three hours with him, trying to

786
00:41:57,721 --> 00:41:59,601
Speaker 2: get this question out of him. The answer out, where

787
00:41:59,681 --> 00:42:01,961
Speaker 2: is Mary's body? Because her family wants to bury her.

788
00:42:02,241 --> 00:42:04,081
Speaker 2: And you know you'll get out of here if you'll

789
00:42:04,081 --> 00:42:07,041
Speaker 2: say where the body is. And he said to me, listen,

790
00:42:07,161 --> 00:42:08,881
Speaker 2: I'm not going to change my story, but look at

791
00:42:08,881 --> 00:42:12,201
Speaker 2: it this way. I met a woman shortly after Mary disappeared.

792
00:42:12,521 --> 00:42:15,321
Speaker 2: I married her, I had children with her. They've spent

793
00:42:15,361 --> 00:42:19,161
Speaker 2: their whole lives in the knowledge of my innocence. I

794
00:42:19,241 --> 00:42:21,681
Speaker 2: spent their entire inheritance on the defense. Do you think

795
00:42:21,721 --> 00:42:23,481
Speaker 2: I'm going to turn around now and say yes, I

796
00:42:23,521 --> 00:42:24,921
Speaker 2: did it.

797
00:42:24,921 --> 00:42:27,961
Speaker 4: It's like when that fellow who was alleged to have

798
00:42:28,041 --> 00:42:32,041
Speaker 4: kill Dol Mackay was on his deathbed. It was I

799
00:42:32,081 --> 00:42:34,201
Speaker 4: think Rondol's or Charlie Bisin. One of those bokes went

800
00:42:34,241 --> 00:42:38,601
Speaker 4: to scene and they said, the grandchildren of Mackay and

801
00:42:39,201 --> 00:42:42,441
Speaker 4: the family need to know. Tell us now who We

802
00:42:42,481 --> 00:42:45,441
Speaker 4: won't say anything till after you're gone. And he said

803
00:42:45,761 --> 00:42:47,761
Speaker 4: it wasn't me that that little job was now the

804
00:42:47,761 --> 00:42:48,321
Speaker 4: side of town.

805
00:42:49,001 --> 00:42:52,321
Speaker 1: James Baisley, I believe Jimmy machine Gun Baisley. Yeah, we

806
00:42:52,361 --> 00:42:55,201
Speaker 1: went over the wall with Ryan and Walker. That's right.

807
00:42:55,481 --> 00:42:57,721
Speaker 2: And we've got the same situation with Bradley John Murdock

808
00:42:58,161 --> 00:42:59,721
Speaker 2: with the murder of Peter Falconio.

809
00:42:59,841 --> 00:43:00,681
Speaker 1: It's interesting too.

810
00:43:00,761 --> 00:43:03,641
Speaker 2: He's on his deathbed now palliative care and he's not

811
00:43:03,721 --> 00:43:04,521
Speaker 2: opening up either.

812
00:43:04,641 --> 00:43:07,001
Speaker 4: There's some pretty unusual stuff in that case. Don't worry

813
00:43:07,041 --> 00:43:10,481
Speaker 4: about that. There's some big question marks there really is.

814
00:43:10,601 --> 00:43:13,121
Speaker 4: There is about Murdock and the drug running and the

815
00:43:13,161 --> 00:43:14,801
Speaker 4: connection with falconions on.

816
00:43:14,881 --> 00:43:15,801
Speaker 1: But anyway, there you go.

817
00:43:15,841 --> 00:43:19,161
Speaker 2: And Derek Ernest Percy he killed numerous children. He went

818
00:43:19,201 --> 00:43:21,681
Speaker 2: to his grave not admitting to what he did. Why

819
00:43:21,721 --> 00:43:24,681
Speaker 2: don't defendants make these deathbed confessions?

820
00:43:26,401 --> 00:43:30,041
Speaker 1: What's in it for them? What's in it for them?

821
00:43:30,121 --> 00:43:32,561
Speaker 4: And when you talk about Percy or duw passing, these people,

822
00:43:32,561 --> 00:43:35,401
Speaker 4: they're psychopaths so anyway, so you can't You can't evaluate

823
00:43:35,441 --> 00:43:40,201
Speaker 4: them by any common sense reasoning or russianing nationale. You

824
00:43:40,241 --> 00:43:43,961
Speaker 4: know these guys, well, I've only met a few, but

825
00:43:44,041 --> 00:43:46,801
Speaker 4: you've probably met a few more. But you can't apply

826
00:43:46,921 --> 00:43:47,960
Speaker 4: ordinary logic to them.

827
00:43:48,161 --> 00:43:52,081
Speaker 2: You can't. And with Aaron Patterson, this lack of motive

828
00:43:52,161 --> 00:43:54,041
Speaker 2: was troubling for the media as much as it was

829
00:43:54,081 --> 00:43:56,201
Speaker 2: for the prosecution, because there was a lot of time

830
00:43:56,281 --> 00:43:59,641
Speaker 2: spent now going back through her history to show.

831
00:44:00,121 --> 00:44:02,241
Speaker 1: Make Cinderella's slippet fit on the ugly.

832
00:44:02,081 --> 00:44:05,761
Speaker 2: Says correct, the irrational behavior, the nonsense call, the lying,

833
00:44:05,841 --> 00:44:06,721
Speaker 2: and so on and so forth.

834
00:44:06,761 --> 00:44:08,401
Speaker 4: But if you stop and talk about it and you

835
00:44:08,441 --> 00:44:10,841
Speaker 4: say it like that, Adam, don't you see the problem

836
00:44:10,841 --> 00:44:13,121
Speaker 4: and all of that? Of course you see that she's guilty.

837
00:44:13,161 --> 00:44:18,481
Speaker 4: She's the archetypal, fat, ugly ole witch. Huh over the caldron,

838
00:44:19,041 --> 00:44:22,241
Speaker 4: She's the evil witch. Oh, she was nasty to a mother.

839
00:44:22,921 --> 00:44:26,321
Speaker 4: H Oh, she swore at somebody at the air traffic control.

840
00:44:26,441 --> 00:44:29,641
Speaker 4: Oh really, well, I adam shand and I feel it done.

841
00:44:29,641 --> 00:44:32,401
Speaker 4: I'd never sworn anybody at work, not.

842
00:44:32,401 --> 00:44:35,721
Speaker 1: This week anyway. So the archetype comes to play.

843
00:44:36,601 --> 00:44:39,681
Speaker 2: Yeah, it's like my grandfather Jack Shan Casey. He defended

844
00:44:39,721 --> 00:44:42,201
Speaker 2: a woman called Shirley Beeger back in the fifties who

845
00:44:42,721 --> 00:44:45,921
Speaker 2: had a cheating, nasty boyfriend, Arthur Griffiths. She went up

846
00:44:45,921 --> 00:44:48,241
Speaker 2: to the Checker's nightclub and sat there in a cab

847
00:44:48,241 --> 00:44:50,521
Speaker 2: outside with her mother with a twenty two rifle. He

848
00:44:50,561 --> 00:44:54,361
Speaker 2: walks out shoots him between the eyes. And my grandfather

849
00:44:54,401 --> 00:44:56,881
Speaker 2: saw her as that she was the vestal virgin. She

850
00:44:56,961 --> 00:44:59,401
Speaker 2: was a model. She was the one that people couldn't convict,

851
00:44:59,721 --> 00:45:02,321
Speaker 2: And over time he was able to introduce this little

852
00:45:02,321 --> 00:45:05,921
Speaker 2: bit of element of doubt that perhaps Arthur reached in,

853
00:45:06,361 --> 00:45:09,921
Speaker 2: grabbed the gun and caused his own demise and she walked.

854
00:45:10,361 --> 00:45:15,641
Speaker 4: What about Gloria cropeh When mister Frank went on the

855
00:45:15,721 --> 00:45:21,841
Speaker 4: view of Miss Australia's household where her mother and another

856
00:45:21,881 --> 00:45:25,481
Speaker 4: move family were charged with murdering the father and delisted

857
00:45:25,561 --> 00:45:28,721
Speaker 4: his daughters and they're walking around looking at the house.

858
00:45:29,441 --> 00:45:33,121
Speaker 4: The locus and quo was pointed out from the peepholes

859
00:45:33,161 --> 00:45:35,921
Speaker 4: that he bored. The father had bored into the girl's

860
00:45:35,921 --> 00:45:39,921
Speaker 4: bathroom so he'd watch his daughter's showering and masturbate. And

861
00:45:39,961 --> 00:45:44,241
Speaker 4: mister Frank said Terrence to Terry forest Nast, judge the jury.

862
00:45:44,241 --> 00:45:46,601
Speaker 4: When the jury see this, our client will be acquitted.

863
00:45:47,921 --> 00:45:48,361
Speaker 1: And he was.

864
00:45:49,881 --> 00:45:52,401
Speaker 2: And what about one of the early cases, Margaret Francis

865
00:45:52,401 --> 00:45:54,241
Speaker 2: Glashen Do you remember that one.

866
00:45:54,201 --> 00:45:58,201
Speaker 4: Oh, Margaret Francis Glasheen, that's a long time ago that

867
00:45:58,361 --> 00:45:59,321
Speaker 4: you've done your homework.

868
00:45:59,361 --> 00:46:03,681
Speaker 1: I have, yes. That was actually the very first criminal

869
00:46:03,721 --> 00:46:04,201
Speaker 1: trial I.

870
00:46:04,201 --> 00:46:06,641
Speaker 2: Did, because she was a prostitute who was accused of

871
00:46:06,681 --> 00:46:08,841
Speaker 2: luring a punter in a situation where her mind could

872
00:46:08,921 --> 00:46:09,641
Speaker 2: rob him.

873
00:46:09,921 --> 00:46:13,681
Speaker 4: The badger game it's called, and the defense was identity.

874
00:46:14,201 --> 00:46:17,081
Speaker 4: And I was a young barrister and I asked far

875
00:46:17,121 --> 00:46:19,681
Speaker 4: to him and equipped. But the victim had been to

876
00:46:19,681 --> 00:46:23,000
Speaker 4: the factory breakup and drunk an enormous amount of beer

877
00:46:23,041 --> 00:46:26,121
Speaker 4: and cognac and whiskey, and he drunk as a lord,

878
00:46:26,361 --> 00:46:28,641
Speaker 4: and on his way he thought, just killed her to

879
00:46:28,641 --> 00:46:30,041
Speaker 4: get a woman what he wanted a woman for.

880
00:46:30,121 --> 00:46:30,521
Speaker 1: In that state.

881
00:46:30,601 --> 00:46:32,761
Speaker 4: Nobody was quite sure, but he finished up in Fitzroy

882
00:46:32,841 --> 00:46:36,561
Speaker 4: with Margaret Francis Klasheen, and I thought, I was cooking

883
00:46:36,601 --> 00:46:38,601
Speaker 4: with gas. How could you identify this up for all

884
00:46:38,641 --> 00:46:40,281
Speaker 4: that and you're sek and you're vomiting and the add

885
00:46:40,681 --> 00:46:42,761
Speaker 4: and you went to the He said, well, I don't

886
00:46:42,801 --> 00:46:44,721
Speaker 4: know about this, but all when I walked into the room,

887
00:46:44,761 --> 00:46:48,681
Speaker 4: I saw the black Virgin of Kracker on the mantelpiece,

888
00:46:49,521 --> 00:46:53,041
Speaker 4: quick fumbling through the papers, and there on the mantelpiece

889
00:46:53,081 --> 00:46:55,241
Speaker 4: in her room in the boarding house in orphics Roy

890
00:46:55,401 --> 00:46:58,321
Speaker 4: was the black Madonna. The defense suddenly had to do

891
00:46:58,361 --> 00:47:00,081
Speaker 4: a bit of a U turn then and went from

892
00:47:00,121 --> 00:47:03,361
Speaker 4: identification to duress. We were coerced into.

893
00:47:03,161 --> 00:47:05,801
Speaker 2: Doing this, right because you inadvertently put on the scene

894
00:47:06,521 --> 00:47:07,561
Speaker 2: and they yet to change.

895
00:47:07,361 --> 00:47:11,881
Speaker 1: Tack up up good identification. Gage. If I kept asking,

896
00:47:12,041 --> 00:47:14,961
Speaker 1: are you're sure about that? Yes, I couldn't be. And

897
00:47:15,001 --> 00:47:17,801
Speaker 1: then so yes, that's a long time ago in a

898
00:47:17,841 --> 00:47:19,081
Speaker 1: different galaxy, that's right.

899
00:47:19,121 --> 00:47:21,081
Speaker 2: And she was finally quitted. So you did your job,

900
00:47:21,241 --> 00:47:24,361
Speaker 2: and you pivoted magnificently. Now I think all eyes are

901
00:47:24,401 --> 00:47:28,441
Speaker 2: now on the appeal for Aaron Patterson. She's not been

902
00:47:28,481 --> 00:47:30,801
Speaker 2: sentenced yet, so she'll have twenty eight days from that

903
00:47:30,961 --> 00:47:34,641
Speaker 2: moment to lodge and appeal. People are already fumbling around

904
00:47:34,721 --> 00:47:38,521
Speaker 2: to find grounds for appeal. What's the process from here?

905
00:47:38,721 --> 00:47:42,521
Speaker 3: For Aaron Patterson, the process is that the legal tea

906
00:47:42,521 --> 00:47:44,521
Speaker 3: will have already had a view as to whether the

907
00:47:44,601 --> 00:47:49,401
Speaker 3: judge is misdirected or left something out, or overemphasized something

908
00:47:49,521 --> 00:47:52,441
Speaker 3: or for illegal they need to establish a legal error

909
00:47:53,161 --> 00:47:56,081
Speaker 3: and they will already have a checklist of things that

910
00:47:56,161 --> 00:47:57,401
Speaker 3: they These are very.

911
00:47:57,361 --> 00:48:00,881
Speaker 4: Experienced people and so they'll have a checklist. On the

912
00:48:00,921 --> 00:48:04,361
Speaker 4: other hand, there's a problem because this judge is a

913
00:48:04,481 --> 00:48:07,801
Speaker 4: very experience judge and a very thorough judge and a

914
00:48:07,921 --> 00:48:10,841
Speaker 4: very careful judge. Doesn't mean he won't make a mistake.

915
00:48:11,721 --> 00:48:14,561
Speaker 4: But his wig is gray, not white. You know, he's

916
00:48:14,561 --> 00:48:16,961
Speaker 4: been around the block, so he knows what he's doing.

917
00:48:17,601 --> 00:48:19,121
Speaker 4: But that doesn't mean he didn't make a mistake.

918
00:48:19,161 --> 00:48:19,681
Speaker 1: But they'll be.

919
00:48:19,601 --> 00:48:22,601
Speaker 4: Looking for one. But they will go against the weight

920
00:48:22,841 --> 00:48:27,121
Speaker 4: at the evidence. But with the client having given evidence,

921
00:48:27,241 --> 00:48:29,601
Speaker 4: when you run that as an argument, you have some

922
00:48:29,681 --> 00:48:32,521
Speaker 4: problems because the court will said the jury formative view

923
00:48:32,521 --> 00:48:35,841
Speaker 4: of the witness. So it all plants course.

924
00:48:35,761 --> 00:48:39,361
Speaker 2: Because in the movies, there's that moment of aha, fresh

925
00:48:39,361 --> 00:48:41,801
Speaker 2: and compelling new evidence. How often does it actually come

926
00:48:41,881 --> 00:48:44,121
Speaker 2: up between a trial and an appeal.

927
00:48:44,601 --> 00:48:45,201
Speaker 1: Hardly ever.

928
00:48:45,521 --> 00:48:50,681
Speaker 4: Actual dream it's like the dream of every young footballer

929
00:48:51,241 --> 00:48:53,641
Speaker 4: to kick the winning goal in the last fifteen seconds

930
00:48:53,681 --> 00:48:54,521
Speaker 4: of the Grand final.

931
00:48:54,801 --> 00:48:58,601
Speaker 1: It's the dream to find the nugget of gold, the rat.

932
00:48:59,601 --> 00:49:02,321
Speaker 4: The rat's always there, but you need a compelling piece

933
00:49:02,361 --> 00:49:06,921
Speaker 4: of evidence. It happens rarely. It always happened for Perry Mason.

934
00:49:07,641 --> 00:49:10,000
Speaker 4: He was able to pluck it out of the sky.

935
00:49:10,121 --> 00:49:13,321
Speaker 4: But in real life, in the daily grind of the

936
00:49:13,361 --> 00:49:16,921
Speaker 4: administration of justice, a sausage machine of the justice system,

937
00:49:17,281 --> 00:49:18,161
Speaker 4: that's very rare.

938
00:49:19,081 --> 00:49:22,241
Speaker 2: Sometimes it's about limiting the damage in the sentencing. You

939
00:49:22,321 --> 00:49:25,641
Speaker 2: make some mitigating argument. It might be around mental health

940
00:49:25,761 --> 00:49:27,081
Speaker 2: or some aspect of the trial.

941
00:49:27,081 --> 00:49:27,681
Speaker 1: I don't really know.

942
00:49:27,921 --> 00:49:30,321
Speaker 4: But when you look at the offense and then the offender,

943
00:49:31,681 --> 00:49:33,401
Speaker 4: they're the starting points in time.

944
00:49:33,481 --> 00:49:37,281
Speaker 1: But this is a complicated and difficult plan because right

945
00:49:37,321 --> 00:49:40,441
Speaker 1: now things look pretty black. She'll need be yes. It

946
00:49:40,641 --> 00:49:43,481
Speaker 1: is it's they're going to earn their money now.

947
00:49:43,481 --> 00:49:47,121
Speaker 2: A premeditated case where which has been proven. But she

948
00:49:47,241 --> 00:49:49,761
Speaker 2: set out, she did the research, she foraged for the mushroom,

949
00:49:49,841 --> 00:49:52,561
Speaker 2: she got all the gear, she made the beef Wellingtons.

950
00:49:52,761 --> 00:49:55,281
Speaker 2: She tried to lure her husband there as well, apparently

951
00:49:55,321 --> 00:49:57,440
Speaker 2: so there could have been another victim as well. And

952
00:49:57,801 --> 00:50:00,201
Speaker 2: at the end of all this, how on earth do

953
00:50:00,241 --> 00:50:00,801
Speaker 2: you try.

954
00:50:00,681 --> 00:50:03,361
Speaker 4: These words to show how conditioned you are? You see,

955
00:50:03,441 --> 00:50:06,161
Speaker 4: I'm a journalist. Yeah, but lu husband, you know this

956
00:50:06,201 --> 00:50:08,761
Speaker 4: is the grand case. I mean, why not have your

957
00:50:08,761 --> 00:50:10,161
Speaker 4: family and friends around?

958
00:50:10,441 --> 00:50:14,321
Speaker 1: Why not? Why not the dinner?

959
00:50:14,641 --> 00:50:16,441
Speaker 2: I don't think that beef Wellington will behind on the

960
00:50:16,441 --> 00:50:21,041
Speaker 2: list of most people's menus from here on in. But overall,

961
00:50:21,081 --> 00:50:22,481
Speaker 2: do you think this is one of those cases that

962
00:50:22,561 --> 00:50:25,241
Speaker 2: will make law? Are we going to see something that

963
00:50:25,281 --> 00:50:26,161
Speaker 2: goes like pell.

964
00:50:26,241 --> 00:50:30,241
Speaker 4: But it'll make it will make controversy. And what will

965
00:50:30,281 --> 00:50:34,361
Speaker 4: happen because just like Lindy Chamberlain, just like we'd like

966
00:50:34,401 --> 00:50:37,841
Speaker 4: the rest of them, people will in a more cold

967
00:50:37,841 --> 00:50:43,081
Speaker 4: blooded way analyze the disadvantages that this unfortunate woman had

968
00:50:44,041 --> 00:50:47,721
Speaker 4: in running a trial. She didn't come independently before the

969
00:50:47,761 --> 00:50:52,281
Speaker 4: court and be judged independently of prejudice or bias. And

970
00:50:52,841 --> 00:50:56,361
Speaker 4: I often tell juries, if you look at the courts

971
00:50:57,081 --> 00:51:00,441
Speaker 4: throughout Victoria, they often have the statue of justice. Who's

972
00:51:00,481 --> 00:51:05,161
Speaker 4: a woman who's blindfolded, so she has no preconceived ideas,

973
00:51:05,401 --> 00:51:07,321
Speaker 4: and she has the scales of justice mone and the

974
00:51:07,321 --> 00:51:11,641
Speaker 4: sword of punishment. The other this woman justice wasn't blindfolded.

975
00:51:11,961 --> 00:51:17,281
Speaker 4: This woman was vilified on day one, very heart verd

976
00:51:17,281 --> 00:51:19,841
Speaker 4: to get a fair trial. And so you will find,

977
00:51:20,041 --> 00:51:23,161
Speaker 4: I think, just like a linear Chamblain, time will pass

978
00:51:23,241 --> 00:51:25,721
Speaker 4: and that's the dust settles. People will look at this

979
00:51:25,721 --> 00:51:29,000
Speaker 4: a bit more dispassionately, like a couple of things which

980
00:51:29,161 --> 00:51:32,001
Speaker 4: are independent of any conversation or instructions I had in

981
00:51:32,001 --> 00:51:33,721
Speaker 4: this trial. But I point out it to you, like

982
00:51:34,481 --> 00:51:36,201
Speaker 4: it's not the color of the plate, it's what's on

983
00:51:36,241 --> 00:51:40,041
Speaker 4: the plate. It's like the dehydrator. The timing of that

984
00:51:40,241 --> 00:51:42,401
Speaker 4: is an indicator of innocence, not an indicator of guild.

985
00:51:43,361 --> 00:51:47,961
Speaker 2: Fascinating, philm Would you hazard a prediction as to the appeal?

986
00:51:48,721 --> 00:51:51,961
Speaker 1: I know I can't. I wouldn't think you would. Philip.

987
00:51:51,961 --> 00:51:54,721
Speaker 1: Thank you so much up your inquiries and your good works.

988
00:51:54,961 --> 00:51:56,841
Speaker 2: You brought a fascinating viewpoint to this because I think

989
00:51:56,841 --> 00:51:59,321
Speaker 2: there's barely a person in Australia or internationally who would

990
00:51:59,321 --> 00:52:01,321
Speaker 2: have thought there was any alternative or that she had

991
00:52:01,321 --> 00:52:03,681
Speaker 2: been vilified. So I think it's a really valuable point

992
00:52:03,841 --> 00:52:06,161
Speaker 2: and it really goes to the heart about justice system

993
00:52:06,401 --> 00:52:09,681
Speaker 2: that reasonable doubt is a very good.

994
00:52:09,761 --> 00:52:11,881
Speaker 1: That's why the jury is the safety help. They sometimes

995
00:52:11,921 --> 00:52:12,561
Speaker 1: get it wrong, though.

996
00:52:12,761 --> 00:52:17,361
Speaker 2: Fantastic. Well, thank you Philip Dunn. That's Philip donecasey fascinating case.

997
00:52:17,601 --> 00:52:19,441
Speaker 2: I don't know what you thought going through the trial,

998
00:52:19,481 --> 00:52:21,681
Speaker 2: but I always felt the Crown was struggling for a

999
00:52:21,721 --> 00:52:26,881
Speaker 2: motive and that the overwhelming circumstantial evidence of Aaron Patterson's

1000
00:52:26,881 --> 00:52:29,721
Speaker 2: guilt would wagh against her, and particularly when it came

1001
00:52:29,761 --> 00:52:32,121
Speaker 2: down to the final deliberation of the jury, I thought

1002
00:52:32,121 --> 00:52:32,681
Speaker 2: she was cooked.

1003
00:52:32,681 --> 00:52:33,521
Speaker 1: I don't know what you thought.

1004
00:52:33,881 --> 00:52:35,761
Speaker 2: Maybe you'd like to share your thoughts with it you

1005
00:52:35,841 --> 00:52:40,201
Speaker 2: give me an email Adam Shand writer at gmail dot com.

1006
00:52:40,321 --> 00:52:42,681
Speaker 2: This has been real crime with Adam Shann. Thank you

1007
00:52:42,761 --> 00:52:43,321
Speaker 2: for listening.