WEBVTT - Conversations 9: King’s Counsellor 0:00:00.680 --> 0:00:06.440 This podcast contains information and details relating to suicide. We 0:00:06.640 --> 0:00:11.799 urge anyone struggling with their emotions to contact Lifeline on 0:00:12.000 --> 0:00:19.120 thirteen eleven fourteen thirteen eleven fourteen or visit them at 0:00:19.400 --> 0:00:22.560 lifeline dot org dot au. 0:00:28.520 --> 0:00:33.479 Hello, welcome to Conversations nine The Truth about Amy. With 0:00:34.040 --> 0:00:36.800 this week Tim Clark is back from his trial. 0:00:36.840 --> 0:00:38.040 Good a, Tim, gooday. 0:00:38.400 --> 0:00:41.279 Yes, there was a pause in the trial that I've 0:00:41.320 --> 0:00:46.240 been doing or covering this week. The prosecutor had another appointment, 0:00:46.320 --> 0:00:47.920 so the jury has been let off and so have I. 0:00:48.080 --> 0:00:51.080 So yeah, we'll slott it into place very nicely so 0:00:51.080 --> 0:00:52.000 I could be here this morning. 0:00:52.280 --> 0:00:52.960 So I'm very glad. 0:00:53.000 --> 0:00:55.760 Of I'm so glad. It's just not the same without 0:00:55.840 --> 0:00:58.959 either you or Lamb. It's better with all of us. 0:00:59.000 --> 0:01:02.560 But you are lucky today because we have a very 0:01:02.600 --> 0:01:06.119 special guest, Tom Percy. Now, for those of you who 0:01:06.160 --> 0:01:09.679 don't know, Tom Percy was born in Calgooley, where his 0:01:09.840 --> 0:01:13.960 family ran a hotel for many years. Attended Scotch College 0:01:14.000 --> 0:01:17.560 and UWA, graduating in nineteen seventy seven. That was when 0:01:17.600 --> 0:01:21.440 I was born, Tom, you feel, and was admitted to 0:01:21.560 --> 0:01:24.959 legal practice the following year. In nineteen eighty four, you 0:01:25.000 --> 0:01:28.279 were elected to the WA Bar Association and appointed King's 0:01:28.280 --> 0:01:32.760 Council in nineteen ninety seven. Tom practices primarily in the 0:01:32.800 --> 0:01:36.080 area of criminal law, specifically jury trials and court and 0:01:36.120 --> 0:01:39.840 tribunal appeals. In two thousand and six, Tom received the 0:01:39.880 --> 0:01:42.760 Community Service Award from the Law Society of WA and 0:01:42.800 --> 0:01:45.440 in two thousand and seven, Tom you were awarded the 0:01:45.520 --> 0:01:49.120 WA Civil Justice Award by the Australian Lawyer's Alliance. In 0:01:49.120 --> 0:01:53.440 twenty thirteen, Tom was awarded the WA Law Society's Lawyer 0:01:53.480 --> 0:01:55.800 of the Year Award, and in twenty twenty one was 0:01:55.880 --> 0:01:59.400 named one of Australia's most Influential Lawyers. My goodness, what 0:01:59.480 --> 0:02:00.600 a resume, Tom. 0:02:00.520 --> 0:02:01.600 And that's not behalf of it. 0:02:01.760 --> 0:02:08.600 He also writes books, rides horses, presents trophies and mentors 0:02:08.720 --> 0:02:12.760 many many up and coming lawyers in Perth. So welcome Tom, 0:02:12.800 --> 0:02:15.600 Thanks for sparing us some time. You know, I know, 0:02:15.639 --> 0:02:16.560 what's been a busy week. 0:02:16.720 --> 0:02:17.799 I don't know where to go from there. 0:02:18.440 --> 0:02:21.480 I might leave now, Yes, it can only go downhill 0:02:21.520 --> 0:02:21.960 from here. 0:02:23.440 --> 0:02:27.560 Well, I must admit it's very impressive, do you You know? 0:02:27.760 --> 0:02:30.760 I'm glad you've got your hobbies that you're that you're 0:02:30.800 --> 0:02:33.480 able to do. You take time out from your work, 0:02:33.560 --> 0:02:37.000 but thank you so much for coming on. And obviously 0:02:37.200 --> 0:02:39.440 since we last spoke, there's been a bit of movement 0:02:39.440 --> 0:02:42.799 with the Amy Wensley's case. I don't know if you're aware, 0:02:42.840 --> 0:02:46.440 but they have appointed a new task force. Wo Police 0:02:46.440 --> 0:02:49.840 have a putting a new task force to reinvestigate some 0:02:49.880 --> 0:02:53.680 of the leads that we got from as a result 0:02:53.720 --> 0:02:57.280 of the podcast in Spotlight. And they've also promised that 0:02:57.320 --> 0:03:00.640 I'll send the updated brief or refer it to the 0:03:00.680 --> 0:03:02.200 Director of Public Prosecutions. 0:03:02.639 --> 0:03:06.800 Well, I mean, Tom, you know better than anyone that 0:03:08.040 --> 0:03:12.960 these wheels and cogs tend to move quite slowly when 0:03:13.040 --> 0:03:17.440 you're pushing back against the decision that's been made and 0:03:17.440 --> 0:03:18.320 then ratified. 0:03:19.440 --> 0:03:21.440 But so, I mean, what do you make. 0:03:21.400 --> 0:03:25.239 Of that from your experienced eye, that the police would 0:03:25.440 --> 0:03:30.120 appoint a new team and then basically say when we're ready, 0:03:30.400 --> 0:03:33.799 we will pass it over to the dppeter to see 0:03:33.840 --> 0:03:34.480 what they say. 0:03:35.040 --> 0:03:37.160 I think it's an important breakthrough. I mean, they don't 0:03:37.200 --> 0:03:39.800 often do this, as you can imagine, and a lot 0:03:39.840 --> 0:03:42.160 of the cases that I've been involved in where we've 0:03:42.320 --> 0:03:45.360 pushed for that sort of thing to happen, and we've 0:03:45.440 --> 0:03:47.960 made a lot of resistance, and I think that's probably 0:03:47.960 --> 0:03:50.600 what they've met here too. But when they actually turn 0:03:50.680 --> 0:03:53.040 the corner and they make an internal decision to say, well, 0:03:53.080 --> 0:03:55.840 we're gonna have a look at this, they can mean 0:03:55.920 --> 0:03:58.840 one or two things. Firstly, they're feared income they're really 0:03:59.080 --> 0:04:01.760 going to have a red hot crack at it. Well, Secondly, 0:04:01.800 --> 0:04:03.160 they say, look, we're just going to do this as 0:04:03.200 --> 0:04:04.960 a bit of winding dressing, say that we've had a 0:04:05.000 --> 0:04:08.120 look at it, nothing's happening, and then they can't point 0:04:08.160 --> 0:04:12.000 the fingers having ignored it. So one hopes it's the 0:04:12.080 --> 0:04:14.920 former rather than the latter. I think the sort of 0:04:14.960 --> 0:04:18.480 the whitewash approach, which is the second option there. It's 0:04:18.560 --> 0:04:21.800 probably not the modern way, but it certainly used to 0:04:21.839 --> 0:04:25.560 be in the eighties, nineties and the two thousands. It 0:04:25.720 --> 0:04:28.880 was a way of sanitizing the whole brief and saying well, 0:04:29.080 --> 0:04:32.760 we've burned there, we've revisited it, and it's going nowhere. 0:04:32.800 --> 0:04:35.560 But if they actually have a really good look at it, 0:04:35.640 --> 0:04:38.400 and they're prepared to hand it over to the Director 0:04:38.440 --> 0:04:40.640 of Public Prosecutions, then I think you could be in. 0:04:40.600 --> 0:04:46.719 Business and again, you know, not hiking back too far, 0:04:47.279 --> 0:04:50.760 but there was one particularly miscourage of justice, very very 0:04:50.760 --> 0:04:56.000 famous one here involving Eric Cook, which you were. I mean, 0:04:56.000 --> 0:04:58.640 it's a part of the team that pushed and pushed 0:04:58.640 --> 0:05:03.280 and pushed to get that re investigated or get new 0:05:03.320 --> 0:05:07.000 evidence in front of fresh eyes, whether it be police 0:05:07.360 --> 0:05:13.960 and eventually the Court of Appeal. So drawing on those experiences, 0:05:14.560 --> 0:05:17.839 what did you learn there in terms of how hard 0:05:17.920 --> 0:05:20.839 you had to push or did you just have to 0:05:20.880 --> 0:05:22.919 find one chink in the armor or did you have 0:05:23.000 --> 0:05:25.400 to go sort of you know, pince the movement and 0:05:25.480 --> 0:05:28.920 just sort of corral everyone to convince them that there 0:05:29.000 --> 0:05:30.120 was something there that. 0:05:30.200 --> 0:05:32.440 Was a different sort of case. Because there've been too 0:05:32.440 --> 0:05:36.440 wrongful convictions. Here, there's been no conviction, so we were 0:05:36.440 --> 0:05:39.680 dealing there with politicians and we're dealing with courts and 0:05:39.680 --> 0:05:43.000 they're a bit easy to deal with than police. So 0:05:43.720 --> 0:05:45.920 what we had to do was convince the Attorney General 0:05:45.960 --> 0:05:48.760 to open the case. Once it did, then it went 0:05:48.800 --> 0:05:51.560 to a court, so we're on pretty safe ground. The 0:05:51.640 --> 0:05:54.679 problem with police is that they very they take things 0:05:54.839 --> 0:05:58.440 very personally, especially at the upper levels, and if they've 0:05:58.480 --> 0:06:01.720 actually embarked upon an invested and they've come to a conclusion, 0:06:01.760 --> 0:06:04.239 it's been signed off by the people in the right levels, 0:06:04.760 --> 0:06:06.719 then it's very unlikely to be going to reopen it 0:06:06.760 --> 0:06:09.080 because there's a bit of egg on your face if 0:06:09.080 --> 0:06:11.160 you have to say, oh, and we might have got 0:06:11.200 --> 0:06:14.160 that wrong. They're not in the habit of saying you've 0:06:14.240 --> 0:06:17.040 got this wrong, like all this carriage of justice you've 0:06:17.040 --> 0:06:20.320 seen in these and stuts like Catherine Forbing and people 0:06:20.400 --> 0:06:23.480 like that, Lindy Chamberlain. The police are the last one 0:06:23.520 --> 0:06:26.200 to actually back down and say we've got this wrong. 0:06:26.240 --> 0:06:28.279 It's usually the courts who step in, and so there's 0:06:28.279 --> 0:06:33.480 burned an error. And sometimes it's because of political assistance 0:06:33.520 --> 0:06:36.479 that the people involved who are able to enlist, but 0:06:36.640 --> 0:06:39.560 to get the police to actually back down and say, look, 0:06:41.240 --> 0:06:43.359 maybe this is not exactly how we saw it in 0:06:43.360 --> 0:06:46.880 the first place. Some people I accuse the police of 0:06:46.880 --> 0:06:51.160 tunnel vision, a blinked approach, that is that once they 0:06:51.680 --> 0:06:54.120 think they've got a suspect, they run with it that way, 0:06:54.200 --> 0:06:57.120 even though other clues point in other directions. And we've 0:06:57.120 --> 0:06:59.800 seen that in the Clamont case and raining and things 0:06:59.839 --> 0:07:04.200 like that. Then and ye, they're very reluctant to go 0:07:04.360 --> 0:07:07.919 in a different direction. But I think in this case, 0:07:08.520 --> 0:07:10.920 if what you say is correct, that the police have 0:07:10.960 --> 0:07:14.520 decided to have another go, I would be very optimistic 0:07:14.560 --> 0:07:15.560 that something might come up. 0:07:15.880 --> 0:07:18.640 And in some cases you mentioned one there in Rainie, 0:07:18.680 --> 0:07:24.480 the police never backed down. Remember after Lloyd sued the 0:07:24.520 --> 0:07:30.320 police for defamation and he'd been acquitted, and the child 0:07:30.400 --> 0:07:33.520 judge had made certain findings in terms of the way 0:07:33.560 --> 0:07:36.720 the police had approached it. Even in court when they 0:07:36.720 --> 0:07:39.600 were called as witnesses in the defamation case, they were 0:07:39.800 --> 0:07:45.120 senior detectives determined to say on the stand that they 0:07:45.160 --> 0:07:48.440 still believe that Lloyd Rainie had killed his wife, even 0:07:48.480 --> 0:07:52.920 though that whole process had gone along. So, as you say, 0:07:54.680 --> 0:07:58.440 getting certain worms to turn when they're in when they're 0:07:58.440 --> 0:08:02.880 in uniform or in a detective's badge is can be 0:08:03.600 --> 0:08:06.119 can be a thankless task or even an impossible task, 0:08:06.200 --> 0:08:11.040 as as you've probably found as well, Ali in your 0:08:11.360 --> 0:08:16.240 journey on this case. Getting police to admit they might 0:08:16.280 --> 0:08:20.080 have stuffed up even when it's blatantly obvious that they 0:08:20.120 --> 0:08:22.840 did right at the start, he is like pulling teeth. 0:08:22.960 --> 0:08:25.360 Well, yeah, I mean, I don't know if when we 0:08:25.400 --> 0:08:28.440 spoke last Tom, you were aware of fois that we 0:08:28.840 --> 0:08:31.960 uncovered where you had seen your police as late as 0:08:32.080 --> 0:08:36.120 last year saying that you know it was a suicide, 0:08:36.160 --> 0:08:39.360 you know, like basically criticizing the decision to have a 0:08:39.360 --> 0:08:42.480 one million dollar reward and referring to it is as 0:08:42.480 --> 0:08:46.040 a homicide because it was a suicide. And I don't 0:08:46.080 --> 0:08:50.839 think I'd be very surprised if those particular officers changed 0:08:50.920 --> 0:08:54.240 their minds, and they were some of them quite senior ranking. 0:08:54.559 --> 0:08:58.439 Well, the cases that Tim's referred to occurred in the 0:08:59.440 --> 0:09:04.720 sixties and even earlier nineteen fifty nine, and today you'll 0:09:04.720 --> 0:09:08.280 find senior officers who, even though two courts have gone through, 0:09:08.480 --> 0:09:12.320 acquitted those purple and largely on the basis of new 0:09:12.400 --> 0:09:17.079 scientific evidence. I mean, the world of scientific cracks reinvestigation 0:09:17.280 --> 0:09:21.440 has changed enormously since these people went to court in 0:09:21.480 --> 0:09:25.320 the early sixties and that was proven in court. But 0:09:25.559 --> 0:09:28.000 senior coppers I'll say, oh, no, they were guilty of 0:09:28.000 --> 0:09:30.120 those blokes. So yeah, Cook didn't do it. No, those 0:09:30.160 --> 0:09:31.880 guys did it. Yeah, they were properly convicted. 0:09:31.920 --> 0:09:37.559 And unfortunately we could list the shopping list of cases 0:09:38.320 --> 0:09:42.240 similar to that in Western Australia and Tom, you've also 0:09:42.400 --> 0:09:46.400 been working on a case in Tasmania, a sort of 0:09:46.440 --> 0:09:51.359 contentious murder cases that's been through an appeal process, and 0:09:51.440 --> 0:09:55.359 so you have sort of more recent history in fighting 0:09:55.480 --> 0:10:00.520 against a conviction that many people believe might be might 0:10:00.559 --> 0:10:05.280 be troublesome. Interesting what New South Wales Crime Commissioner Michael 0:10:05.280 --> 0:10:07.920 Barnes had to say on this podcast last week, particularly 0:10:07.960 --> 0:10:12.200 about his opinion about the need for Directors of Public 0:10:12.280 --> 0:10:17.880 Prosecutions perhaps needing to account for decisions they make in 0:10:18.000 --> 0:10:22.200 terms of whether prosecutions go forward or not, which your 0:10:22.320 --> 0:10:26.840 general feeling on that because ODPPS and at the top 0:10:26.880 --> 0:10:30.199 of those organizations, they are public servants after all. 0:10:30.240 --> 0:10:31.559 I think if you look at the history of it, 0:10:32.000 --> 0:10:35.480 the office of Director of Public Prosecutions is a comparatively 0:10:35.559 --> 0:10:39.959 new thing in Australia. It happened in Western Australia in 0:10:40.000 --> 0:10:43.160 the nineties. Before that it was the Attorney General who 0:10:43.240 --> 0:10:46.560 sort of signed off on things, or the Chief States Solicitor. 0:10:47.400 --> 0:10:49.760 But they want to take that out of politics and 0:10:50.200 --> 0:10:53.160 they put it someone independent and the power in that 0:10:53.280 --> 0:10:58.679 position is enormous and I think that one thing that 0:10:58.840 --> 0:11:01.480 is desirable for people who hold that officers for them 0:11:01.520 --> 0:11:03.800 not to hold it too long because they may see 0:11:03.800 --> 0:11:06.600 themselves hamstrung by their own decisions that they'd made earlier 0:11:06.600 --> 0:11:09.959 on on the basis of of course they have evidence, perhaps, 0:11:10.440 --> 0:11:13.920 But I would think that there is some room for 0:11:14.160 --> 0:11:17.920 there to be open for some public or judicial scrutiny 0:11:17.920 --> 0:11:20.640 of decisions that are made by directors of public prosecution 0:11:21.200 --> 0:11:25.040 that's currently not provided for, so that a person who's 0:11:25.040 --> 0:11:29.560 agreed by a discretionary decision made by a director of 0:11:29.559 --> 0:11:32.520 public prosecutions could actually litigate. 0:11:32.080 --> 0:11:36.679 Them some sort of appeal process, or at least because 0:11:37.320 --> 0:11:40.439 those who sort of work in the justicestem you often 0:11:40.920 --> 0:11:46.200 hear from families of primary victims or secondary victims, and 0:11:46.800 --> 0:11:51.880 they can voice their disquiet about decisions that are made 0:11:52.600 --> 0:11:56.640 whether to prosecute or not, or what charges are finally 0:11:56.720 --> 0:11:59.679 placed on an indictment. And you know, we don't have 0:12:00.000 --> 0:12:03.160 so I call plea deals in Western Australia, or we 0:12:03.240 --> 0:12:07.120 don't appear to not as such. But there are negotiations 0:12:07.160 --> 0:12:10.360 that go on all the time which will then result 0:12:10.520 --> 0:12:13.600 in a conviction for one crime when the person was 0:12:13.640 --> 0:12:17.720 first charged with another. And the route to get to 0:12:17.760 --> 0:12:21.200 that is very very opaque. I mean, it's never seen 0:12:21.280 --> 0:12:24.520 publicly apart from when it might be discussed sort of 0:12:25.120 --> 0:12:28.960 vaguely in court. But you'd never get to see the emails, 0:12:29.040 --> 0:12:31.920 or you'd never get to see the final written decision 0:12:32.000 --> 0:12:34.040 that an OTPP. 0:12:34.520 --> 0:12:36.480 Might make, so you don't get to see them. 0:12:36.480 --> 0:12:38.920 I do, yeah, you do, yes, But as I say, 0:12:38.960 --> 0:12:44.000 as a public looking in to the system, so you 0:12:44.040 --> 0:12:47.760 think there would be some work that could be done 0:12:47.840 --> 0:12:51.280 there that might make that process a little bit more 0:12:51.440 --> 0:12:52.480 open to scrutiny. 0:12:52.480 --> 0:12:55.360 I'm all for transparency in the justice system, but I 0:12:55.360 --> 0:12:58.880 don't think you can revisit every last decision as to 0:12:58.960 --> 0:12:59.400 what happened. 0:12:59.920 --> 0:13:02.560 They would make a lot of those decisions, hundreds of 0:13:02.559 --> 0:13:03.840 those decisions every month. 0:13:03.640 --> 0:13:07.640 Probably, and they're not all made by the director personally. 0:13:07.679 --> 0:13:11.240 They're made by delegates of his further down the chain, 0:13:11.480 --> 0:13:13.839 and it's very difficult to review all of those. I'm 0:13:13.880 --> 0:13:18.439 not suggesting that every last prosecutorial discretion be capable of 0:13:18.440 --> 0:13:21.520 being or visited by some form of judicial review, but 0:13:21.600 --> 0:13:24.800 I would have thought in cases of homicide there's probably 0:13:24.800 --> 0:13:28.520 some room for a limited role of judicial review. And 0:13:28.600 --> 0:13:31.800 I think what you say is right is that sometimes 0:13:33.120 --> 0:13:36.520 a prosecutor director will find it in the public interest 0:13:36.600 --> 0:13:39.319 to accept a clear guilty de manslaughter rather than murder, 0:13:40.080 --> 0:13:43.319 and families are very aggrieved by that, very aggrieved by 0:13:43.320 --> 0:13:46.920 that that is implicit in that plea and the acceptance 0:13:46.960 --> 0:13:49.000 of it is that there's no intention to kill the 0:13:49.040 --> 0:13:53.400 person or even cause them a serious bodily havem So 0:13:54.400 --> 0:13:56.320 the families find that very difficult to live with. But 0:13:56.360 --> 0:13:58.400 at the end of the day, they've got to balance 0:13:58.440 --> 0:14:01.720 the public interest with the victims interest and the secondary 0:14:01.800 --> 0:14:04.560 victim's interest, and they come to those decisions which are 0:14:04.600 --> 0:14:08.960 not palatable to everyone. So that's the first type of 0:14:08.960 --> 0:14:10.480 decision they have to make. The other one is whether 0:14:10.559 --> 0:14:15.880 to prosecute at all and who to prosecute. So they 0:14:16.080 --> 0:14:18.120 will receive a brief, then they'll make a decision on 0:14:18.160 --> 0:14:20.560 the basis of the strength or otherwise. Quite often briefs 0:14:20.560 --> 0:14:23.200 do go to the DPP and the director will say, 0:14:23.520 --> 0:14:26.360 I've had a look at this, view the evidence. I'm 0:14:26.360 --> 0:14:27.240 not going to prosecute. 0:14:27.600 --> 0:14:30.560 One of the criticisms from Michael Barnes was that often 0:14:30.800 --> 0:14:33.360 when they make a decision, they'll just get two sentences 0:14:33.560 --> 0:14:37.280 of their decision. I mean, should they be more accountable 0:14:37.280 --> 0:14:40.600 in the sense of giving a proper explanation as to 0:14:40.640 --> 0:14:41.960 why they make the decision they make. 0:14:42.040 --> 0:14:44.400 There's no requirement on them to do that, but I 0:14:44.440 --> 0:14:47.400 would definitely agree with you, when a serious decision like 0:14:47.440 --> 0:14:50.240 that is made, it should be made on the basis 0:14:50.320 --> 0:14:53.280 of all the evidence, and that should be contained in 0:14:53.400 --> 0:14:59.600 the reasons. I think victims have a right titlement to 0:14:59.640 --> 0:15:02.280 that sort of reasoning and to see the process by 0:15:02.320 --> 0:15:05.920 which the director has arrived at that decision. Anything less 0:15:05.920 --> 0:15:08.000 than that we'll leave people with a very empty feeling, 0:15:08.480 --> 0:15:11.720 in a serious sense of misjustice. 0:15:11.040 --> 0:15:13.280 And that phrase when a prosecutor does stand up in 0:15:13.320 --> 0:15:16.440 court and says, we're you know, we're seeking to discontinued 0:15:16.800 --> 0:15:20.880 charges x y Z, you know Section twenty five in 0:15:20.920 --> 0:15:23.600 the interests of justice, and that's all all you hear 0:15:24.800 --> 0:15:27.000 those interests As you say that, there's a there's a 0:15:27.080 --> 0:15:31.080 balancing at there, Tom. But sometimes those most affected by 0:15:31.360 --> 0:15:35.400 the alleged crime, whatever it might be, I wouldn't think 0:15:35.440 --> 0:15:37.920 that those interests are weighed in their favor. 0:15:37.960 --> 0:15:42.040 I think they sometimes also say this, let's say, the 0:15:42.040 --> 0:15:44.320 directors of the view that there is no longer any 0:15:44.360 --> 0:15:48.360 reasonable prospect of a conviction. But I think that that. 0:15:48.600 --> 0:15:50.800 Gives you a more clear picture of where they've come from. There, 0:15:50.840 --> 0:15:53.800 They've they've reviewed all the evidence that's been gathered and say, well, 0:15:54.520 --> 0:15:57.640 we just we just don't think this is enough to 0:15:57.680 --> 0:15:58.320 get a conviction. 0:15:58.680 --> 0:16:01.240 But I think they should say why, Yeah, it's one 0:16:01.240 --> 0:16:03.320 thing to say we don't think there's any reasonable prospects 0:16:03.320 --> 0:16:06.160 of conviction. Holm We've got a body, we've got a suspect, 0:16:06.200 --> 0:16:09.640 we've got forensic evidence, we've got videos. Why is that 0:16:09.720 --> 0:16:11.720 not enough? And I think a family were entitled to that. 0:16:11.840 --> 0:16:14.160 It is very subjective though, right, I mean that's the 0:16:14.200 --> 0:16:17.040 other thing, And you would there would be cases that 0:16:17.080 --> 0:16:20.160 you see go to court where you might having to 0:16:20.240 --> 0:16:24.760 acknowledge of the factors that you think, wow, that's you know, 0:16:24.800 --> 0:16:27.760 that's quite amazing that you know, Chris Dawson that we 0:16:27.920 --> 0:16:32.080 touched on before, which was a largely circumstantial case. And 0:16:32.800 --> 0:16:35.560 i'd imagine Tom, you've come across cases that you would 0:16:35.560 --> 0:16:38.600 expect to go to court where they've determined that they 0:16:38.640 --> 0:16:39.360 wouldn't proceed. 0:16:39.560 --> 0:16:43.080 Usually the reverse. There's a lot of cases I expect 0:16:43.080 --> 0:16:44.680 they never see the light of day in a court 0:16:44.760 --> 0:16:47.520 room and they and they end up there. And I 0:16:47.560 --> 0:16:51.880 think a lot of those especially in Western Australia. I 0:16:52.080 --> 0:16:57.120 relate to uncrroborated sexual assault cases where there's no forensic evidence, 0:16:57.160 --> 0:17:00.800 no admissions, no nothing, just one person's word against the 0:17:00.880 --> 0:17:02.640 In a lot of states, and I know in America 0:17:03.680 --> 0:17:06.200 places like that, they're reluctant to take those to court. 0:17:06.240 --> 0:17:10.399 But the overwhelming trend these days is a lot of 0:17:10.400 --> 0:17:14.040 those cases do go to court, and on some of 0:17:14.040 --> 0:17:17.040 them that I see, I am very surprised that they 0:17:17.160 --> 0:17:22.280 run with them. But that's the modern way, and these 0:17:22.359 --> 0:17:23.400 cases all go to court. 0:17:23.440 --> 0:17:25.520 What about homicide homicides. 0:17:25.000 --> 0:17:28.520 I think usually the director attends to roll the dice 0:17:29.240 --> 0:17:33.960 unless there's a really strong indication that it was obviously 0:17:33.960 --> 0:17:40.360 self defense or suicide or just a complete accident. Then 0:17:40.400 --> 0:17:42.600 most of them go to trial. And that's why in 0:17:42.640 --> 0:17:46.440 the present case that brings us here. I was surprised 0:17:46.440 --> 0:17:46.639 that in. 0:17:46.800 --> 0:17:50.720 Rom because the trial that I've been covering for the 0:17:50.800 --> 0:17:55.400 last two and a half weeks, that's a purely circumstantial homicide. 0:17:55.880 --> 0:18:00.160 No cause of death has ever been found in the victim. 0:18:00.160 --> 0:18:05.879 Despite a post mortem and further testing being done. They 0:18:05.920 --> 0:18:12.480 couldn't categorically say how this lady died. But they've they've 0:18:12.520 --> 0:18:17.320 taken her son to court and are currently prosecuting him 0:18:18.400 --> 0:18:24.560 for murder. So and circumstances with cases are more and 0:18:24.600 --> 0:18:28.040 more common, you'd have to say, Tom, than perhaps back 0:18:28.080 --> 0:18:28.600 in the past. 0:18:28.840 --> 0:18:30.960 Well, I would think so. Historically they never used to 0:18:31.000 --> 0:18:34.399 run cases where there was no body, but that's no 0:18:34.520 --> 0:18:37.400 longer the case. They regularly run cases where there's nobody. 0:18:37.480 --> 0:18:40.080 So the case that you're looking at in one step, 0:18:40.119 --> 0:18:41.880 at least they've got a body. I mean, I've been 0:18:41.920 --> 0:18:45.920 involved in murder cases and been cases with it has 0:18:46.000 --> 0:18:49.920 ultimately been a conviction. There was nobody and there's still nobody, 0:18:50.520 --> 0:18:52.760 and you'd probably know a few of those cases as well. 0:18:52.760 --> 0:18:55.800 I mean, so it's no impediment to the fact that 0:18:55.880 --> 0:18:59.199 they are lack of body. If the circumstantial case is 0:18:59.200 --> 0:19:01.240 strong enough, and they'll run with them. 0:19:01.280 --> 0:19:05.560 Having pondered on what Michael Barnes have to say on 0:19:05.640 --> 0:19:10.560 the podcast last week, Ali, have you have you had 0:19:10.560 --> 0:19:13.520 any more thoughts about the points that he made? 0:19:13.920 --> 0:19:16.760 Yeah? Look what was interesting what I found some of 0:19:16.760 --> 0:19:19.560 the most fascinating. I completely agree with the whole idea 0:19:19.600 --> 0:19:22.720 of the DPP being accountable for their decisions, particularly in 0:19:22.720 --> 0:19:25.840 a case like this, but not only that, He also 0:19:26.160 --> 0:19:30.320 detailed how important it is to have people, particularly if 0:19:30.320 --> 0:19:34.160 they're the key witness in person, not via video link. 0:19:34.200 --> 0:19:35.080 What do you think of that time? 0:19:35.240 --> 0:19:37.359 Do you think that's the case, Well, it's always better 0:19:37.400 --> 0:19:39.560 to have the witness there. I think the quality of 0:19:39.600 --> 0:19:42.000 the evidence is much enhanced if the person's there and 0:19:42.000 --> 0:19:47.040 you're better able to make observations of their demeanor and 0:19:47.240 --> 0:19:50.879 whether they're telling the truth or exactly how accurate they 0:19:50.960 --> 0:19:55.359 might be. And that is always used to be the case. 0:19:55.359 --> 0:19:57.320 That was the only way you can give evidence when 0:19:57.320 --> 0:20:00.560 I first started necess thing as video links that side. 0:20:01.359 --> 0:20:02.720 But we've got used to it and I think it's 0:20:02.720 --> 0:20:06.680 a while the future. And whilst it's it's a it's 0:20:06.760 --> 0:20:10.119 a second class form of evidence, it's we live with 0:20:10.119 --> 0:20:11.080 those days. 0:20:11.520 --> 0:20:13.879 And you would find a lot of judicial office as 0:20:13.920 --> 0:20:17.000 well when it when it came to sentencing people, I've 0:20:17.040 --> 0:20:20.320 heard it said numerous times now that the person has 0:20:20.359 --> 0:20:24.960 to be in court or every possible effort must be 0:20:25.040 --> 0:20:27.160 made to have this person in court because I want 0:20:27.240 --> 0:20:28.760 them to be able to see me, and I want 0:20:28.800 --> 0:20:30.560 to be able to see them when I when I 0:20:30.560 --> 0:20:35.400 deliver my sentence to them, you know, particularly in more 0:20:36.160 --> 0:20:40.000 serious crimes. But then when it gets to an appeal level, 0:20:40.040 --> 0:20:44.080 for instance, the practicality of just having a person on 0:20:44.119 --> 0:20:47.400 the screen and while that appeal hearing is going on, 0:20:48.240 --> 0:20:53.040 you would very really actually see or not certainly not 0:20:53.119 --> 0:20:55.000 all the time would you would you see an appellent 0:20:55.800 --> 0:21:00.400 live in court? They're they're very often done on the screen. 0:21:00.640 --> 0:21:06.160 So different horses for different courses. To borrow a phraseology 0:21:06.160 --> 0:21:08.720 that Tom's much more averse too than me. 0:21:09.040 --> 0:21:13.440 Look, I think it's always proper and the solemnity of 0:21:13.480 --> 0:21:16.720 a sentencing occasion requires, I think usually that the person 0:21:16.800 --> 0:21:20.720 be there in person, and most judges insist on that. 0:21:21.320 --> 0:21:23.840 In terms of appeals, well, you can understand why they 0:21:23.840 --> 0:21:26.159 probably wouldn't come in to come to court. If you're 0:21:26.200 --> 0:21:29.000 actually in jail, it's not a very pleasant thing. They 0:21:29.040 --> 0:21:31.000 get you up about five o'clock in the morning, and 0:21:31.000 --> 0:21:32.800 then you sit around, and then they put you in 0:21:32.800 --> 0:21:34.320 a different set of clothes, and then they put you 0:21:34.359 --> 0:21:36.359 in a van and you're going and you get to 0:21:36.400 --> 0:21:38.399 the court about eight o'clock, and then they lock you 0:21:38.480 --> 0:21:43.359 up until ten o'clock and then there's no buses trucks 0:21:43.359 --> 0:21:45.840 back to the jail. It till about five o'clock that night, 0:21:46.600 --> 0:21:48.680 and sometimes they miss out on their meals and whatever. 0:21:48.720 --> 0:21:51.160 And I'm not trying to create a situation of sympathy. 0:21:51.200 --> 0:21:53.200 But if they have the option, they see you can 0:21:53.200 --> 0:21:56.119 do this on TVA, it's no wonder that they do it. 0:21:57.280 --> 0:21:59.800 I would have thought, though, if they're being questioned about 0:21:59.840 --> 0:22:04.840 the potential culpability, right, it just would be essential, I 0:22:04.880 --> 0:22:08.720 would have thought, because there is so much difference between 0:22:09.040 --> 0:22:11.200 being there and not being there in the way people 0:22:11.240 --> 0:22:13.959 answer questions and their body language, all that sort of thing. 0:22:14.200 --> 0:22:16.720 Rest assured the trial. You have to be present physically 0:22:16.760 --> 0:22:19.360 for your trial. Yeah, you can't participate in a criminal 0:22:19.400 --> 0:22:20.399 trial of video. 0:22:20.359 --> 0:22:26.480 Unless well, if prosecutors or defense want to have a 0:22:26.520 --> 0:22:29.639 witness on video, they've actually got to make an application 0:22:29.840 --> 0:22:34.000 to the judge. It's called a special witness application, I think. 0:22:34.480 --> 0:22:35.359