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Speaker 2: Hello, welcome to Conversations nine The Truth about Amy. With
Speaker 2: this week Tim Clark is back from his trial.
Speaker 3: Good a, Tim, gooday.
Speaker 4: Yes, there was a pause in the trial that I've
Speaker 4: been doing or covering this week. The prosecutor had another appointment,
Speaker 4: so the jury has been let off and so have I.
Speaker 4: So yeah, we'll slott it into place very nicely so
Speaker 4: I could be here this morning.
Speaker 3: So I'm very glad.
Speaker 2: Of I'm so glad. It's just not the same without
Speaker 2: either you or Lamb. It's better with all of us.
Speaker 2: But you are lucky today because we have a very
Speaker 2: special guest, Tom Percy. Now, for those of you who
Speaker 2: don't know, Tom Percy was born in Calgooley, where his
Speaker 2: family ran a hotel for many years. Attended Scotch College
Speaker 2: and UWA, graduating in nineteen seventy seven. That was when
Speaker 2: I was born, Tom, you feel, and was admitted to
Speaker 2: legal practice the following year. In nineteen eighty four, you
Speaker 2: were elected to the WA Bar Association and appointed King's
Speaker 2: Council in nineteen ninety seven. Tom practices primarily in the
Speaker 2: area of criminal law, specifically jury trials and court and
Speaker 2: tribunal appeals. In two thousand and six, Tom received the
Speaker 2: Community Service Award from the Law Society of WA and
Speaker 2: in two thousand and seven, Tom you were awarded the
Speaker 2: WA Civil Justice Award by the Australian Lawyer's Alliance. In
Speaker 2: twenty thirteen, Tom was awarded the WA Law Society's Lawyer
Speaker 2: of the Year Award, and in twenty twenty one was
Speaker 2: named one of Australia's most Influential Lawyers. My goodness, what
Speaker 2: a resume, Tom.
Speaker 3: And that's not behalf of it.
Speaker 4: He also writes books, rides horses, presents trophies and mentors
Speaker 4: many many up and coming lawyers in Perth. So welcome Tom,
Speaker 4: Thanks for sparing us some time. You know, I know,
Speaker 4: what's been a busy week.
Speaker 5: I don't know where to go from there.
Speaker 4: I might leave now, Yes, it can only go downhill
Speaker 4: from here.
Speaker 2: Well, I must admit it's very impressive, do you You know?
Speaker 2: I'm glad you've got your hobbies that you're that you're
Speaker 2: able to do. You take time out from your work,
Speaker 2: but thank you so much for coming on. And obviously
Speaker 2: since we last spoke, there's been a bit of movement
Speaker 2: with the Amy Wensley's case. I don't know if you're aware,
Speaker 2: but they have appointed a new task force. Wo Police
Speaker 2: have a putting a new task force to reinvestigate some
Speaker 2: of the leads that we got from as a result
Speaker 2: of the podcast in Spotlight. And they've also promised that
Speaker 2: I'll send the updated brief or refer it to the
Speaker 2: Director of Public Prosecutions.
Speaker 4: Well, I mean, Tom, you know better than anyone that
Speaker 4: these wheels and cogs tend to move quite slowly when
Speaker 4: you're pushing back against the decision that's been made and
Speaker 4: then ratified.
Speaker 3: But so, I mean, what do you make.
Speaker 4: Of that from your experienced eye, that the police would
Speaker 4: appoint a new team and then basically say when we're ready,
Speaker 4: we will pass it over to the dppeter to see
Speaker 4: what they say.
Speaker 5: I think it's an important breakthrough. I mean, they don't
Speaker 5: often do this, as you can imagine, and a lot
Speaker 5: of the cases that I've been involved in where we've
Speaker 5: pushed for that sort of thing to happen, and we've
Speaker 5: made a lot of resistance, and I think that's probably
Speaker 5: what they've met here too. But when they actually turn
Speaker 5: the corner and they make an internal decision to say, well,
Speaker 5: we're gonna have a look at this, they can mean
Speaker 5: one or two things. Firstly, they're feared income they're really
Speaker 5: going to have a red hot crack at it. Well, Secondly,
Speaker 5: they say, look, we're just going to do this as
Speaker 5: a bit of winding dressing, say that we've had a
Speaker 5: look at it, nothing's happening, and then they can't point
Speaker 5: the fingers having ignored it. So one hopes it's the
Speaker 5: former rather than the latter. I think the sort of
Speaker 5: the whitewash approach, which is the second option there. It's
Speaker 5: probably not the modern way, but it certainly used to
Speaker 5: be in the eighties, nineties and the two thousands. It
Speaker 5: was a way of sanitizing the whole brief and saying well,
Speaker 5: we've burned there, we've revisited it, and it's going nowhere.
Speaker 5: But if they actually have a really good look at it,
Speaker 5: and they're prepared to hand it over to the Director
Speaker 5: of Public Prosecutions, then I think you could be in.
Speaker 4: Business and again, you know, not hiking back too far,
Speaker 4: but there was one particularly miscourage of justice, very very
Speaker 4: famous one here involving Eric Cook, which you were. I mean,
Speaker 4: it's a part of the team that pushed and pushed
Speaker 4: and pushed to get that re investigated or get new
Speaker 4: evidence in front of fresh eyes, whether it be police
Speaker 4: and eventually the Court of Appeal. So drawing on those experiences,
Speaker 4: what did you learn there in terms of how hard
Speaker 4: you had to push or did you just have to
Speaker 4: find one chink in the armor or did you have
Speaker 4: to go sort of you know, pince the movement and
Speaker 4: just sort of corral everyone to convince them that there
Speaker 4: was something there that.
Speaker 5: Was a different sort of case. Because there've been too
Speaker 5: wrongful convictions. Here, there's been no conviction, so we were
Speaker 5: dealing there with politicians and we're dealing with courts and
Speaker 5: they're a bit easy to deal with than police. So
Speaker 5: what we had to do was convince the Attorney General
Speaker 5: to open the case. Once it did, then it went
Speaker 5: to a court, so we're on pretty safe ground. The
Speaker 5: problem with police is that they very they take things
Speaker 5: very personally, especially at the upper levels, and if they've
Speaker 5: actually embarked upon an invested and they've come to a conclusion,
Speaker 5: it's been signed off by the people in the right levels,
Speaker 5: then it's very unlikely to be going to reopen it
Speaker 5: because there's a bit of egg on your face if
Speaker 5: you have to say, oh, and we might have got
Speaker 5: that wrong. They're not in the habit of saying you've
Speaker 5: got this wrong, like all this carriage of justice you've
Speaker 5: seen in these and stuts like Catherine Forbing and people
Speaker 5: like that, Lindy Chamberlain. The police are the last one
Speaker 5: to actually back down and say we've got this wrong.
Speaker 5: It's usually the courts who step in, and so there's
Speaker 5: burned an error. And sometimes it's because of political assistance
Speaker 5: that the people involved who are able to enlist, but
Speaker 5: to get the police to actually back down and say, look,
Speaker 5: maybe this is not exactly how we saw it in
Speaker 5: the first place. Some people I accuse the police of
Speaker 5: tunnel vision, a blinked approach, that is that once they
Speaker 5: think they've got a suspect, they run with it that way,
Speaker 5: even though other clues point in other directions. And we've
Speaker 5: seen that in the Clamont case and raining and things
Speaker 5: like that. Then and ye, they're very reluctant to go
Speaker 5: in a different direction. But I think in this case,
Speaker 5: if what you say is correct, that the police have
Speaker 5: decided to have another go, I would be very optimistic
Speaker 5: that something might come up.
Speaker 4: And in some cases you mentioned one there in Rainie,
Speaker 4: the police never backed down. Remember after Lloyd sued the
Speaker 4: police for defamation and he'd been acquitted, and the child
Speaker 4: judge had made certain findings in terms of the way
Speaker 4: the police had approached it. Even in court when they
Speaker 4: were called as witnesses in the defamation case, they were
Speaker 4: senior detectives determined to say on the stand that they
Speaker 4: still believe that Lloyd Rainie had killed his wife, even
Speaker 4: though that whole process had gone along. So, as you say,
Speaker 4: getting certain worms to turn when they're in when they're
Speaker 4: in uniform or in a detective's badge is can be
Speaker 4: can be a thankless task or even an impossible task,
Speaker 4: as as you've probably found as well, Ali in your
Speaker 4: journey on this case. Getting police to admit they might
Speaker 4: have stuffed up even when it's blatantly obvious that they
Speaker 4: did right at the start, he is like pulling teeth.
Speaker 2: Well, yeah, I mean, I don't know if when we
Speaker 2: spoke last Tom, you were aware of fois that we
Speaker 2: uncovered where you had seen your police as late as
Speaker 2: last year saying that you know it was a suicide,
Speaker 2: you know, like basically criticizing the decision to have a
Speaker 2: one million dollar reward and referring to it is as
Speaker 2: a homicide because it was a suicide. And I don't
Speaker 2: think I'd be very surprised if those particular officers changed
Speaker 2: their minds, and they were some of them quite senior ranking.
Speaker 5: Well, the cases that Tim's referred to occurred in the
Speaker 5: sixties and even earlier nineteen fifty nine, and today you'll
Speaker 5: find senior officers who, even though two courts have gone through,
Speaker 5: acquitted those purple and largely on the basis of new
Speaker 5: scientific evidence. I mean, the world of scientific cracks reinvestigation
Speaker 5: has changed enormously since these people went to court in
Speaker 5: the early sixties and that was proven in court. But
Speaker 5: senior coppers I'll say, oh, no, they were guilty of
Speaker 5: those blokes. So yeah, Cook didn't do it. No, those
Speaker 5: guys did it. Yeah, they were properly convicted.
Speaker 4: And unfortunately we could list the shopping list of cases
Speaker 4: similar to that in Western Australia and Tom, you've also
Speaker 4: been working on a case in Tasmania, a sort of
Speaker 4: contentious murder cases that's been through an appeal process, and
Speaker 4: so you have sort of more recent history in fighting
Speaker 4: against a conviction that many people believe might be might
Speaker 4: be troublesome. Interesting what New South Wales Crime Commissioner Michael
Speaker 4: Barnes had to say on this podcast last week, particularly
Speaker 4: about his opinion about the need for Directors of Public
Speaker 4: Prosecutions perhaps needing to account for decisions they make in
Speaker 4: terms of whether prosecutions go forward or not, which your
Speaker 4: general feeling on that because ODPPS and at the top
Speaker 4: of those organizations, they are public servants after all.
Speaker 5: I think if you look at the history of it,
Speaker 5: the office of Director of Public Prosecutions is a comparatively
Speaker 5: new thing in Australia. It happened in Western Australia in
Speaker 5: the nineties. Before that it was the Attorney General who
Speaker 5: sort of signed off on things, or the Chief States Solicitor.
Speaker 5: But they want to take that out of politics and
Speaker 5: they put it someone independent and the power in that
Speaker 5: position is enormous and I think that one thing that
Speaker 5: is desirable for people who hold that officers for them
Speaker 5: not to hold it too long because they may see
Speaker 5: themselves hamstrung by their own decisions that they'd made earlier
Speaker 5: on on the basis of of course they have evidence, perhaps,
Speaker 5: But I would think that there is some room for
Speaker 5: there to be open for some public or judicial scrutiny
Speaker 5: of decisions that are made by directors of public prosecution
Speaker 5: that's currently not provided for, so that a person who's
Speaker 5: agreed by a discretionary decision made by a director of
Speaker 5: public prosecutions could actually litigate.
Speaker 4: Them some sort of appeal process, or at least because
Speaker 4: those who sort of work in the justicestem you often
Speaker 4: hear from families of primary victims or secondary victims, and
Speaker 4: they can voice their disquiet about decisions that are made
Speaker 4: whether to prosecute or not, or what charges are finally
Speaker 4: placed on an indictment. And you know, we don't have
Speaker 4: so I call plea deals in Western Australia, or we
Speaker 4: don't appear to not as such. But there are negotiations
Speaker 4: that go on all the time which will then result
Speaker 4: in a conviction for one crime when the person was
Speaker 4: first charged with another. And the route to get to
Speaker 4: that is very very opaque. I mean, it's never seen
Speaker 4: publicly apart from when it might be discussed sort of
Speaker 4: vaguely in court. But you'd never get to see the emails,
Speaker 4: or you'd never get to see the final written decision
Speaker 4: that an OTPP.
Speaker 5: Might make, so you don't get to see them.
Speaker 4: I do, yeah, you do, yes, But as I say,
Speaker 4: as a public looking in to the system, so you
Speaker 4: think there would be some work that could be done
Speaker 4: there that might make that process a little bit more
Speaker 4: open to scrutiny.
Speaker 5: I'm all for transparency in the justice system, but I
Speaker 5: don't think you can revisit every last decision as to
Speaker 5: what happened.
Speaker 4: They would make a lot of those decisions, hundreds of
Speaker 4: those decisions every month.
Speaker 5: Probably, and they're not all made by the director personally.
Speaker 5: They're made by delegates of his further down the chain,
Speaker 5: and it's very difficult to review all of those. I'm
Speaker 5: not suggesting that every last prosecutorial discretion be capable of
Speaker 5: being or visited by some form of judicial review, but
Speaker 5: I would have thought in cases of homicide there's probably
Speaker 5: some room for a limited role of judicial review. And
Speaker 5: I think what you say is right is that sometimes
Speaker 5: a prosecutor director will find it in the public interest
Speaker 5: to accept a clear guilty de manslaughter rather than murder,
Speaker 5: and families are very aggrieved by that, very aggrieved by
Speaker 5: that that is implicit in that plea and the acceptance
Speaker 5: of it is that there's no intention to kill the
Speaker 5: person or even cause them a serious bodily havem So
Speaker 5: the families find that very difficult to live with. But
Speaker 5: at the end of the day, they've got to balance
Speaker 5: the public interest with the victims interest and the secondary
Speaker 5: victim's interest, and they come to those decisions which are
Speaker 5: not palatable to everyone. So that's the first type of
Speaker 5: decision they have to make. The other one is whether
Speaker 5: to prosecute at all and who to prosecute. So they
Speaker 5: will receive a brief, then they'll make a decision on
Speaker 5: the basis of the strength or otherwise. Quite often briefs
Speaker 5: do go to the DPP and the director will say,
Speaker 5: I've had a look at this, view the evidence. I'm
Speaker 5: not going to prosecute.
Speaker 2: One of the criticisms from Michael Barnes was that often
Speaker 2: when they make a decision, they'll just get two sentences
Speaker 2: of their decision. I mean, should they be more accountable
Speaker 2: in the sense of giving a proper explanation as to
Speaker 2: why they make the decision they make.
Speaker 5: There's no requirement on them to do that, but I
Speaker 5: would definitely agree with you, when a serious decision like
Speaker 5: that is made, it should be made on the basis
Speaker 5: of all the evidence, and that should be contained in
Speaker 5: the reasons. I think victims have a right titlement to
Speaker 5: that sort of reasoning and to see the process by
Speaker 5: which the director has arrived at that decision. Anything less
Speaker 5: than that we'll leave people with a very empty feeling,
Speaker 5: in a serious sense of misjustice.
Speaker 4: And that phrase when a prosecutor does stand up in
Speaker 4: court and says, we're you know, we're seeking to discontinued
Speaker 4: charges x y Z, you know Section twenty five in
Speaker 4: the interests of justice, and that's all all you hear
Speaker 4: those interests As you say that, there's a there's a
Speaker 4: balancing at there, Tom. But sometimes those most affected by
Speaker 4: the alleged crime, whatever it might be, I wouldn't think
Speaker 4: that those interests are weighed in their favor.
Speaker 5: I think they sometimes also say this, let's say, the
Speaker 5: directors of the view that there is no longer any
Speaker 5: reasonable prospect of a conviction. But I think that that.
Speaker 4: Gives you a more clear picture of where they've come from. There,
Speaker 4: They've they've reviewed all the evidence that's been gathered and say, well,
Speaker 4: we just we just don't think this is enough to
Speaker 4: get a conviction.
Speaker 5: But I think they should say why, Yeah, it's one
Speaker 5: thing to say we don't think there's any reasonable prospects
Speaker 5: of conviction. Holm We've got a body, we've got a suspect,
Speaker 5: we've got forensic evidence, we've got videos. Why is that
Speaker 5: not enough? And I think a family were entitled to that.
Speaker 2: It is very subjective though, right, I mean that's the
Speaker 2: other thing, And you would there would be cases that
Speaker 2: you see go to court where you might having to
Speaker 2: acknowledge of the factors that you think, wow, that's you know,
Speaker 2: that's quite amazing that you know, Chris Dawson that we
Speaker 2: touched on before, which was a largely circumstantial case. And
Speaker 2: i'd imagine Tom, you've come across cases that you would
Speaker 2: expect to go to court where they've determined that they
Speaker 2: wouldn't proceed.
Speaker 5: Usually the reverse. There's a lot of cases I expect
Speaker 5: they never see the light of day in a court
Speaker 5: room and they and they end up there. And I
Speaker 5: think a lot of those especially in Western Australia. I
Speaker 5: relate to uncrroborated sexual assault cases where there's no forensic evidence,
Speaker 5: no admissions, no nothing, just one person's word against the
Speaker 5: In a lot of states, and I know in America
Speaker 5: places like that, they're reluctant to take those to court.
Speaker 5: But the overwhelming trend these days is a lot of
Speaker 5: those cases do go to court, and on some of
Speaker 5: them that I see, I am very surprised that they
Speaker 5: run with them. But that's the modern way, and these
Speaker 5: cases all go to court.
Speaker 2: What about homicide homicides.
Speaker 5: I think usually the director attends to roll the dice
Speaker 5: unless there's a really strong indication that it was obviously
Speaker 5: self defense or suicide or just a complete accident. Then
Speaker 5: most of them go to trial. And that's why in
Speaker 5: the present case that brings us here. I was surprised
Speaker 5: that in.
Speaker 4: Rom because the trial that I've been covering for the
Speaker 4: last two and a half weeks, that's a purely circumstantial homicide.
Speaker 4: No cause of death has ever been found in the victim.
Speaker 4: Despite a post mortem and further testing being done. They
Speaker 4: couldn't categorically say how this lady died. But they've they've
Speaker 4: taken her son to court and are currently prosecuting him
Speaker 4: for murder. So and circumstances with cases are more and
Speaker 4: more common, you'd have to say, Tom, than perhaps back
Speaker 4: in the past.
Speaker 5: Well, I would think so. Historically they never used to
Speaker 5: run cases where there was no body, but that's no
Speaker 5: longer the case. They regularly run cases where there's nobody.
Speaker 5: So the case that you're looking at in one step,
Speaker 5: at least they've got a body. I mean, I've been
Speaker 5: involved in murder cases and been cases with it has
Speaker 5: ultimately been a conviction. There was nobody and there's still nobody,
Speaker 5: and you'd probably know a few of those cases as well.
Speaker 5: I mean, so it's no impediment to the fact that
Speaker 5: they are lack of body. If the circumstantial case is
Speaker 5: strong enough, and they'll run with them.
Speaker 4: Having pondered on what Michael Barnes have to say on
Speaker 4: the podcast last week, Ali, have you have you had
Speaker 4: any more thoughts about the points that he made?
Speaker 2: Yeah? Look what was interesting what I found some of
Speaker 2: the most fascinating. I completely agree with the whole idea
Speaker 2: of the DPP being accountable for their decisions, particularly in
Speaker 2: a case like this, but not only that, He also
Speaker 2: detailed how important it is to have people, particularly if
Speaker 2: they're the key witness in person, not via video link.
Speaker 2: What do you think of that time?
Speaker 5: Do you think that's the case, Well, it's always better
Speaker 5: to have the witness there. I think the quality of
Speaker 5: the evidence is much enhanced if the person's there and
Speaker 5: you're better able to make observations of their demeanor and
Speaker 5: whether they're telling the truth or exactly how accurate they
Speaker 5: might be. And that is always used to be the case.
Speaker 5: That was the only way you can give evidence when
Speaker 5: I first started necess thing as video links that side.
Speaker 5: But we've got used to it and I think it's
Speaker 5: a while the future. And whilst it's it's a it's
Speaker 5: a second class form of evidence, it's we live with
Speaker 5: those days.
Speaker 4: And you would find a lot of judicial office as
Speaker 4: well when it when it came to sentencing people, I've
Speaker 4: heard it said numerous times now that the person has
Speaker 4: to be in court or every possible effort must be
Speaker 4: made to have this person in court because I want
Speaker 4: them to be able to see me, and I want
Speaker 4: to be able to see them when I when I
Speaker 4: deliver my sentence to them, you know, particularly in more
Speaker 4: serious crimes. But then when it gets to an appeal level,
Speaker 4: for instance, the practicality of just having a person on
Speaker 4: the screen and while that appeal hearing is going on,
Speaker 4: you would very really actually see or not certainly not
Speaker 4: all the time would you would you see an appellent
Speaker 4: live in court? They're they're very often done on the screen.
Speaker 4: So different horses for different courses. To borrow a phraseology
Speaker 4: that Tom's much more averse too than me.
Speaker 5: Look, I think it's always proper and the solemnity of
Speaker 5: a sentencing occasion requires, I think usually that the person
Speaker 5: be there in person, and most judges insist on that.
Speaker 5: In terms of appeals, well, you can understand why they
Speaker 5: probably wouldn't come in to come to court. If you're
Speaker 5: actually in jail, it's not a very pleasant thing. They
Speaker 5: get you up about five o'clock in the morning, and
Speaker 5: then you sit around, and then they put you in
Speaker 5: a different set of clothes, and then they put you
Speaker 5: in a van and you're going and you get to
Speaker 5: the court about eight o'clock, and then they lock you
Speaker 5: up until ten o'clock and then there's no buses trucks
Speaker 5: back to the jail. It till about five o'clock that night,
Speaker 5: and sometimes they miss out on their meals and whatever.
Speaker 5: And I'm not trying to create a situation of sympathy.
Speaker 5: But if they have the option, they see you can
Speaker 5: do this on TVA, it's no wonder that they do it.
Speaker 2: I would have thought, though, if they're being questioned about
Speaker 2: the potential culpability, right, it just would be essential, I
Speaker 2: would have thought, because there is so much difference between
Speaker 2: being there and not being there in the way people
Speaker 2: answer questions and their body language, all that sort of thing.
Speaker 5: Rest assured the trial. You have to be present physically
Speaker 5: for your trial. Yeah, you can't participate in a criminal
Speaker 5: trial of video.
Speaker 4: Unless well, if prosecutors or defense want to have a
Speaker 4: witness on video, they've actually got to make an application
Speaker 4: to the judge. It's called a special witness application, I think.
Speaker 3: And there are.
Speaker 4: Reasons that a main witness in a particularly in a
Speaker 4: sexual assault case might not want to be in the court,
Speaker 4: you know, physically with the person that's alleged to have
Speaker 4: assaulted them. But that's got to go through the judge,
Speaker 4: and the judge's got to sign off on that. There
Speaker 4: might be you know, there's been witnesses this week that
Speaker 4: I've seen in this trial that have come in from
Speaker 4: Brisbane and on video link because as they're not you know,
Speaker 4: they're not absolutely vital witnesses, and the you know, the
Speaker 4: expense and time and everything that would go into flying
Speaker 4: halfway across the country to give evidence for possibly an
Speaker 4: hour is not worth it.
Speaker 3: But all all the family members, for instance.
Speaker 4: That were related to the alleged victim, have appeared in
Speaker 4: person as an uncomfortable and I know, as as emotional
Speaker 4: as that must have been for them, they were basically
Speaker 4: needed to be there for the jury to see them
Speaker 4: up closer and personal.
Speaker 5: Some people insisted they go. I mean, I think Brittney
Speaker 5: Higgins had the option of being by video, she decided
Speaker 5: she wanted to do it in person, and some people,
Speaker 5: for their own reasons, insist on doing that. But I
Speaker 5: think what we were talking about, as an accused person,
Speaker 5: there's no no one and they can do it.
Speaker 2: Now.
Speaker 5: Those witnesses team's talking about are only witnesses for the
Speaker 5: prosecution of the defense. They're not the person.
Speaker 4: And we think Rob Owen, the DPP of Western Australia,
Speaker 4: might get an updated brief at some point.
Speaker 3: But there's a third option it's very very.
Speaker 4: He really taken it all is to get your take
Speaker 4: on it. A civil prosecution like a private prosecution. It
Speaker 4: is possible in less than Australia, isn't it. You can
Speaker 4: bring one, it can They can be brought for anything,
Speaker 4: but a homicide that would be completely unprecedented. I think
Speaker 4: I haven't heard of one.
Speaker 5: Well, you know there's no direct victim a homicide that's
Speaker 5: still alive, so you know you understand why there might
Speaker 5: be a civil case in Higgins type situation or something
Speaker 5: like that, if there was no conviction, I can bring that,
Speaker 5: But I don't think we have the sort of like
Speaker 5: OJ Simpson type mechanisms here where acquittal in the murder
Speaker 5: case will lead to a civil case. Look, just as
Speaker 5: I said here now, I'm not sure what the answer
Speaker 5: is as to whether it might be available something. And
Speaker 5: it tells me that it might require the infroma too
Speaker 5: of the Attorney General or some higher level if you're
Speaker 5: actually alleging a homicide. But I wouldn't have thought that's it.
Speaker 2: Why is that? Is it problematic?
Speaker 5: At the end of the day, when we're talking about
Speaker 5: it's a motor vehicle accident. Someone got very badly injured
Speaker 5: and the person got acquitted of dangerous driving for one
Speaker 5: reason or another, that person can still bring a civil
Speaker 5: action because they're the person who is the primary victim.
Speaker 5: In a murder case, the primary victim is deceased, so
Speaker 5: that's probably the difference.
Speaker 2: Yeah, got it, that makes sense.
Speaker 4: And civil cases are obviously brought for very serious sexual
Speaker 4: offenses as well. We've seen one quite recently in Western Australia,
Speaker 4: and in the what I'm thinking of, the person that
Speaker 4: was being accused attended court right up until the actual
Speaker 4: trial and then didn't and wasn't represented other than some
Speaker 4: emails that they sent to the court. So, as you say, Tom,
Speaker 4: right up to homicide, it is possible to bring a
Speaker 4: civil action. But as you say, with the primary victim deceased,
Speaker 4: would it be possible for a family to sue a
Speaker 4: person they believed to cause that death for injuries that
Speaker 4: they caused to the family rather than the person that
Speaker 4: was deceased.
Speaker 5: Yeah, So I think it's struggled. You still have to
Speaker 5: prove it on the balance of probabilities, and it's expensive
Speaker 5: and there's no guarantee you're going to get an outcome,
Speaker 5: and at the end of the day, what are the
Speaker 5: damages now understand as sexual assault. There's obviously massive damages
Speaker 5: sometimes because of physical and psychological injuries, a motor vehicle accident,
Speaker 5: industrial accident, something like that, where there was an acquittal
Speaker 5: in a criminal proceeding, you can see that there's but
Speaker 5: the damages where someone is deceased to the appearents are
Speaker 5: really visited by large amounts of damages. Let's say you
Speaker 5: had a child that was killed as a result of
Speaker 5: a negligent driver. Basically, if you brought the civil action
Speaker 5: on behalf of the deceased child, your damages would be
Speaker 5: funeral expenses, not the grief and angst that you would
Speaker 5: suffer for the rest of your life. That's not compensable.
Speaker 2: Mental health compensation, that sort.
Speaker 5: Of thing not compensable usually, I mean it's not my area,
Speaker 5: but usually my fleeting engagement with these things and the
Speaker 5: people who run these cases, because otherwise all secondary victims
Speaker 5: would have massive claims. Every time a child was killed,
Speaker 5: there'd be a massive claim for that person would be
Speaker 5: in the millions. If you could actually really quantify what
Speaker 5: the loss is psychologically and emotionally and how long it
Speaker 5: would last for, I mean, the damages would be in
Speaker 5: the millions, but you don't get that that's not the
Speaker 5: way you can pense them. If the child had lived
Speaker 5: with serious injuries, that person would have had a massive claim,
Speaker 5: but the secondary victims have none. So to get back
Speaker 5: to the question of whether if you could bring a
Speaker 5: civil case for murder where someone was acquitted or not charge,
Speaker 5: then the point would be almost an exercise and futility
Speaker 5: other than the gratification of knowing that in some way
Speaker 5: you'd nail them.
Speaker 2: Well, it's like the defamation with Bruce Lehman, right, Well, that.
Speaker 4: One the appeal I thought was always probably going to
Speaker 4: go ahead, even though Channel ten as lawyers are calling
Speaker 4: it weak and hopeless. The decision this week was about
Speaker 4: whether mister Lehmann would have to put up two hundred
Speaker 4: thousand dollars in surety basically to cover some of tens
Speaker 4: on going costs because he still hasn't paid the costs
Speaker 4: from the trial.
Speaker 3: But the judge took.
Speaker 4: The view that he didn't need to put the money
Speaker 4: up front, and so that will roll on into another year,
Speaker 4: which will be which will be interesting to see the
Speaker 4: arguments that roll out and the legal tactics that mister
Speaker 4: Lhrman brings given that, given that he's now a law
Speaker 4: student himself.
Speaker 5: Well, there's two things to balance in a case like that.
Speaker 5: Everyone should have the right to appeal, whether you've got
Speaker 5: a lot of money or whether you haven't. Yep, obviously
Speaker 5: he doesn't have a lot of money, So does that
Speaker 5: mean he's not allowed to run an appeal like anyone else.
Speaker 5: The second question is whether it was weak and hopeless.
Speaker 5: Now they always say that, but I can tell you
Speaker 5: the circles I'm moving, and some of the Easterns says
Speaker 5: silk that I've spoken to which happens to can't say
Speaker 5: it with My own view is that that verdict was
Speaker 5: not open and I think every chance Lemine will succeed
Speaker 5: on its.
Speaker 3: Interesting scoop.
Speaker 2: So we have a few letters. This is an example
Speaker 2: of one. We've got high truth about Amy team First,
Speaker 2: really great work on the podcast. It was so needed
Speaker 2: to shed some light on this case. I would like
Speaker 2: to send my deepest condolences to Amy's family, and I
Speaker 2: stand in solidarity with them in their quest for justice
Speaker 2: and truth on Amy's behalf. I'm so very frustrated listening
Speaker 2: to the podcast, but unfortun you're not surprised. I remember
Speaker 2: Amy's case vaguely when it happened, but I came across
Speaker 2: it again when I was researching processes, policies, procedures and
Speaker 2: legislation governing the actions taken at a sudden death after
Speaker 2: the death of my brother in law in twenty twenty two. Unfortunately,
Speaker 2: my brother in law's case was mishandled by the WA
Speaker 2: Police and the Coroner's office. The consequences were not as
Speaker 2: serious as in Amy's case, but still devastating for the family.
Speaker 2: I wrote to the Attorney General in October twenty twenty three,
Speaker 2: and I mentioned Amie's case briefly as an example of
Speaker 2: why the WA public desperately need change regarding the handling
Speaker 2: of sudden deaths. I pointed out several changes that I
Speaker 2: believe needed to be made to the Coroner's Act. The
Speaker 2: points relevant to Amy's case is that all deaths should
Speaker 2: be treated as suspicious until proven otherwise, and family should
Speaker 2: always be consulted. I also suggested that domestic violence be
Speaker 2: overtly addressed in the WA Coroners Act. I suggested we
Speaker 2: need a legal system which is accountable, transparent, and has
Speaker 2: an ability to self correct when mistakes are made. Unfortunately,
Speaker 2: we don't have that. There is so much additional unnecessary
Speaker 2: harm and suffering heaped on grieving family when the police
Speaker 2: and coronial system choose to protect their initial decision making
Speaker 2: in favor of getting to the truth. I'd love to
Speaker 2: hear from a legal expert Tom in conversations about what
Speaker 2: needs to change in legislation to prevent what happened to
Speaker 2: Amy to give families better avenues to fight bad decisions.
Speaker 2: For Ranker. Now, before you answer, maybe if you could
Speaker 2: provide some insight as to whether you think she's correct
Speaker 2: in her analysis.
Speaker 5: There's about twenty questions there. If I was a judge,
Speaker 5: I'd be ruling that inadmissible and I'd be requiring it
Speaker 5: to be compartmentalized. So look, I don't think there's a
Speaker 5: lot wrong with the system. Occasionally one slips through the cracks,
Speaker 5: and that happens in the criminal law and the law generally.
Speaker 5: I mean, sometimes people get convicted when they're clearly innocent
Speaker 5: and subsequently proven to be so sometimes people get acquitted
Speaker 5: when they're not innocent, so it works both ways. I
Speaker 5: think coroners are in a really difficult position. I don't
Speaker 5: think we can start from the premise that every death suspicious.
Speaker 5: Quite obviously, many deaths aren't suspicious, and people who die
Speaker 5: in hospital suddenly that's not suspicious. People who die in
Speaker 5: accidents not suspicious. I mean, we can't start from the
Speaker 5: proposition that is, there's any certain amount of cases which
Speaker 5: need to be examined by the coroner. And I think
Speaker 5: the balance struck in the Coroner's Act is probably fear
Speaker 5: enough at the moment. I'm open to suggestions, but I
Speaker 5: don't think you can just say that every sudden death
Speaker 5: needs to be investigated.
Speaker 4: By because we've been over this a few times, and
Speaker 4: as you say, Tom, the coroner is in an invidious position.
Speaker 3: Sometimes because their sole purpose.
Speaker 4: Is to find out how the person died, the cause
Speaker 4: of the death, not to apportion blame. But in some
Speaker 4: of the more contentious in quests, those close to victims
Speaker 4: and families go in there with the hope it's going
Speaker 4: to become a de facto trial, and then they get frustrated.
Speaker 4: So do you think there needs to be a bit
Speaker 4: more clarity about what a coroner is there to do.
Speaker 5: I think there probably needs to be a counseling service
Speaker 5: attached to it to deal with the secondary victims of
Speaker 5: the death before they get there to know what to expect,
Speaker 5: because you're right, a lot of them approach this as
Speaker 5: a trial. I think this is the trial where we
Speaker 5: find out exactly who killed them, how and why, whereas
Speaker 5: what do you say is correct. The position of the
Speaker 5: coroner is comparatively limited and they're not out there to
Speaker 5: answer every question about this, and that's the way it works.
Speaker 5: I think the police have a function to do and
Speaker 5: if there's no police investigation, then it goes over to
Speaker 5: the coroner. The police have already investigated and there's nothing
Speaker 5: suspicious about it. If it was and it was still
Speaker 5: currently the subject of an investigation doesn't go to the.
Speaker 4: Current and coroners they can make adverse findings about people
Speaker 4: and they can't. But again that's not a verdict. Well
Speaker 4: that's not a judgment. That's just a finding. What happens
Speaker 4: from there is usually up to the police and then
Speaker 4: potentially the prosecutatorial service as well. And coroners also can
Speaker 4: make recommendations and they do very regularly, particularly about deaths
Speaker 4: and custody. I would say the majority of the inquests
Speaker 4: that are held at all involve a death in custody,
Speaker 4: because that makes it compulsory that an inquest has got
Speaker 4: to be found. You could probably go back fifteen years
Speaker 4: Tom and look at recommendations made by coroner's back in
Speaker 4: the late nineties early two thousands that are still being
Speaker 4: acted on or waited to be acted on today in
Speaker 4: terms of safety in custodial settings for people that might
Speaker 4: be mentally ill. So again, the coroner can make recommendations
Speaker 4: to a government department, to any public utility it wants,
Speaker 4: but whether they get acted on or not, that's basically
Speaker 4: up to the person at the other end of the line.
Speaker 5: Well, it's a question of politics whether the I've got
Speaker 5: enough money to do that, to install the sort of
Speaker 5: supervision you need in children's prisons and the sort of
Speaker 5: things that you need to deal with for Indigenous people
Speaker 5: in custody. It's all political and it's all the question
Speaker 5: of finance as well. So I don't think any government's
Speaker 5: ever said, oh, that's a ridiculous finding, we're not going
Speaker 5: to implement that. They'll just say, look, it's amount of
Speaker 5: priorities for us, and we'll just work through it as
Speaker 5: best we can. It's not usually serious, satisfactory, it's just
Speaker 5: the fact of life.
Speaker 2: But you've got the inquests that often there'll be several
Speaker 2: inquests before you get to the outcome. Surely inquests are expensive,
Speaker 2: right you want to reduce the need to have several
Speaker 2: inquests if possible, So you know, I know one case
Speaker 2: here in Queensland where Brianna Robinson of the high rise
Speaker 2: like a re renting her all the time, but that
Speaker 2: inquest was paused so that police could do further investigation.
Speaker 2: Do you think there are circumstances where it might be
Speaker 2: better to pause and get all the information you know
Speaker 2: or does it need to be several inquests?
Speaker 5: I think can be the same in quest part heard
Speaker 5: if there's a reason for it to stop, and if
Speaker 5: there is something of enormous significance and mergers, they can
Speaker 5: just in quest can go part heard. It's not like
Speaker 5: a jury trial which has to run until it finishes.
Speaker 5: Can't be disu You can't send the jury away for
Speaker 5: a month. When you send themway for a weekend. In
Speaker 5: this case, it's like a civil case can stop and
Speaker 5: start as one is required. I don't think there's any
Speaker 5: any haste and I don't think it has to be
Speaker 5: a second inquest if we know that one hasn't been
Speaker 5: completed and there are reasonable grounds to consider that there's
Speaker 5: fresh evidence which needs to be assimilated and brought before it.
Speaker 5: I think that that can be facilitated.
Speaker 4: So two in quests bring to mind. One that's currently
Speaker 4: ongoing into the death of an indigenous young man in
Speaker 4: Atralian youth custodial setting, first time that's ever happened. His
Speaker 4: inquest is currently ongoing and has been paused and has
Speaker 4: been extended because the coroner has been presented with several arguments,
Speaker 4: different facts FOI requests that have come through and he's
Speaker 4: just it was due to finish last week, I think,
Speaker 4: and then it's now been extended out to December and beyond.
Speaker 4: So the coroner, although we've said is quite limited in
Speaker 4: his orhearscope, they do have discretion to pause stop in
Speaker 4: order whatever information that they think might be in the
Speaker 4: system that they might not have seen. And then the
Speaker 4: other one, the Shirley Finn in quest, which was a
Speaker 4: lady that was found dead on a golf course with
Speaker 4: several bullets in her and the lingering mystery of what
Speaker 4: happened to her lasted for I want to say forty
Speaker 4: years before the inquest was actually called for and when
Speaker 4: it did.
Speaker 3: I mean, gosh, that was that was an absolute parade of.
Speaker 6: Wild accusations against politicians and dead are alive and various
Speaker 6: police officers were implicated by sort of all manner of
Speaker 6: witnesses and the coroner.
Speaker 4: To my view, and that basically let everyone have this.
Speaker 4: I was there, yeah, because it had been so long
Speaker 4: in coming that he that they took the view that
Speaker 4: however wild and wacky the possibility might be of how
Speaker 4: miss Finn came to her end, we're going to hear
Speaker 4: it all right here, right now, because we've all waited
Speaker 4: so long to get here.
Speaker 5: I think that's what they do. They were open to
Speaker 5: all ideas and no matter how far fetched a proposition
Speaker 5: might be. That someone wants to flood at ann in
Speaker 5: quest and usually you find the current is open to entertainer.
Speaker 5: That it was entertained, and it was entertaining. I've got
Speaker 5: to tell you I had a bird's eye view of
Speaker 5: that one.
Speaker 2: Well, just another letter we got here. I might just
Speaker 2: go into this one now. This is from Chris. I
Speaker 2: am Amy's cousin in law. So my stepfather is Anna's brother.
Speaker 2: Amy lived at our home in Armadale when the family
Speaker 2: moved from New South Wales, and then he goes on
Speaker 2: to say what he thinks of David Simmons. He says,
Speaker 2: I knew David before he met Amy, as I played
Speaker 2: Aussie rules and cricket for Armadale Sporting Club for twenty
Speaker 2: plus years. It might not be today or tomorrow, but
Speaker 2: the truth will come out. Keep up the good work.
Speaker 2: One of the things that has been brought up is impossible.
Speaker 2: The word impossible right where that Amy could have killed herself.
Speaker 2: Do you use that word much, tom impossible because I'm
Speaker 2: just saying, like the biomechanic analysis was highly probable, she
Speaker 2: did not kill herself, and the evidence is highly consistent
Speaker 2: with someone else having killed her. I mean, I would
Speaker 2: have thought that it's always on the balance of probabilities
Speaker 2: and people always talking about this is more likely rather
Speaker 2: than being absolute, because is anything really impossible?
Speaker 5: I don't know. As a general proposition of advocacy, if
Speaker 5: you're appearing in court, understatement is a far better way
Speaker 5: to go than absolutism. And because you always leave yourself
Speaker 5: open to failure. If you say this is impossible, that's impossible,
Speaker 5: and jurists don't like that kind of nomenclature, nor to judges,
Speaker 5: because that's wow impossible, mister Percy hack, so that nothing's
Speaker 5: ever technically impossible. Accept at a scientific level, if you
Speaker 5: sometimes have a proposition where you can demonstrate unequivocally that something,
Speaker 5: it's just not possible. But in terms of something like well,
Speaker 5: could you've done this to yourself? Could this have happened?
Speaker 5: Could that happen? I think improbable is probably as strong
Speaker 5: as you're going to get. And you get to that position,
Speaker 5: then the reverse proposition opens itself up, doesn't it.
Speaker 4: And then in a criminal set, it's beyond a reasonable
Speaker 4: doubt right, which is the highest standard of law you
Speaker 4: have to get to. And that is explain to every
Speaker 4: dura on every trial every day. The common meaning of
Speaker 4: those words it's beyond a reasonable doubt. I mean, everyone
Speaker 4: has doubts right about everything every day, but it's whether
Speaker 4: those doubts are reasonable, and if you can get past them,
Speaker 4: then that's the standard you have to reach to get
Speaker 4: a criminal conviction.
Speaker 5: In trouble, you would have to exclude the proposition of
Speaker 5: suicide and there was a reasonable possibility that a death
Speaker 5: I'm not necessarily talking about this one was not caused
Speaker 5: in the manner that the prosecutional edge and there has
Speaker 5: to be an acquittaled so to get a conviction in
Speaker 5: this case. I think that's probably the problem that confront
Speaker 5: of the police, and one that probably appealed to them
Speaker 5: is that suicide's not overwhelmingly certain was a reasonable possibility,
Speaker 5: and if that was the case, they couldn't run the trump.
Speaker 4: Well, that's certainly the conclusion that the first detectives came
Speaker 4: to very quickly. But then as we know, as we've
Speaker 4: rolled on, two mechanical experts have basically said we don't
Speaker 4: think that you could have, and all that has been
Speaker 4: weighed up over the last many.
Speaker 5: Weeks, and that's that's the problem that the director ultimately
Speaker 5: will have to grapple with.
Speaker 2: Michael barn suggested that a suicideologist provide expert advice as well.
Speaker 5: One thing I want to say is this that if
Speaker 5: the matter goes to trial, you'll find other experts come
Speaker 5: forward who probably hold a different view, and this is
Speaker 5: what happens in a lot of cases. Secondly, the prosecution
Speaker 5: case is one where you can't say this is entirely
Speaker 5: consistent with not having a suicide, consistent with does not
Speaker 5: equal beyond reasonable doubt. As you say, there's other aspects
Speaker 5: of a suicide note and things like that children were
Speaker 5: and stuff like that, and things which are counterintuitive to suicide. However,
Speaker 5: that's not a test. The bar is a very high one,
Speaker 5: and the prosecutors know that, the police know that, and
Speaker 5: the director who will make the decision as to whether
Speaker 5: it's going to be a trial knows that that's the
Speaker 5: sort of things that will be waiting to the equation.
Speaker 2: If you're looking at the suicide element, right, you would
Speaker 2: get as much advice on that as possible, So I
Speaker 2: don't think it would be necessarily inconsistent with them looking
Speaker 2: for advice from a suicideologist, as Michael barn suggested, which
Speaker 2: would be new evidence. But isn't it a determination as
Speaker 2: to whether it goes to trial? I guess that's my point, right, No,
Speaker 2: it's a chicken or the egg.
Speaker 5: We used to have a situation where you had committal
Speaker 5: proceedings and a magistrate would hear all the evidence and
Speaker 5: then he would decide whether it goes to trial. They've
Speaker 5: been abolished in Western Australia. They still occur in the States.
Speaker 5: Cases like George pell it was a committal proceeding some
Speaker 5: of it went to trial, some of that didn't, So
Speaker 5: that's a different function altogether. As to a coroner, they
Speaker 5: really have no interest at all as to whether the
Speaker 5: matter goes to trial at all. If something stands out
Speaker 5: like a beacon, then they can refer the matter to
Speaker 5: the DEPP. But you know that's that's not their not
Speaker 5: their warrant, it's not their remits. So it's not like
Speaker 5: a court sitting a magistrate's court sitting in committal proceedings
Speaker 5: to fight out whether this matter should go to trial.
Speaker 5: That's not the slightest interest to the court.
Speaker 2: Why do they get rid of the committal process?
Speaker 5: Too expensive and because there was a very large lobbie
Speaker 5: of people who the complainants in sexual assault cases shouldn't
Speaker 5: have to be re victimized twice. Bad enough having to
Speaker 5: go to trial and giving your evidence there. But I
Speaker 5: used to get to cross examine them twice, and you
Speaker 5: know that there was devastating effect quite of them.
Speaker 4: Do you think commit all hearings should be renstall for
Speaker 4: certain crimes or.
Speaker 5: Don't start me. That don't start me. I think they
Speaker 5: should be there for all crimes. I mean, it's unfortunate
Speaker 5: that in any case a victim, whether it's a murder, homicide,
Speaker 5: whether it's sexual assault, whether it's fraud, it doesn't matter
Speaker 5: traumamatic injuries. It's all unfortunate to give evidence twice. But
Speaker 5: I think that's the only safe way we can have
Speaker 5: to make sure that cases it shouldn't go to trial
Speaker 5: don't go to trial.
Speaker 2: Yeah, I think that's a great idea. I know you
Speaker 2: say I sound like the prosecution. I just think that
Speaker 2: everything has to go through exhausted processes to ensure that
Speaker 2: there was justice one way or the other.
Speaker 5: He said, there needs to be answer is there's a
Speaker 5: presumption of innocence. At the moment, there's a very firm
Speaker 5: presumption that he didn't He's not guilty of anything, and
Speaker 5: he will have that till the day he dies if
Speaker 5: there's no trial. But he doesn't need any justice because
Speaker 5: the system looks after him. He is presumed, just like
Speaker 5: you and I are, of any complicity in that particular crime.
Speaker 5: It's presumed we're entitled to. Really, it's not a question
Speaker 5: is whether there's a chance that he did it. They
Speaker 5: need to say that there's a body of evidence which
Speaker 5: would support a finding beyond reasonable doubt that he did
Speaker 5: it not that there's a chance that he did it.
Speaker 5: They don't have to investigate that.
Speaker 2: I think that questions haven't been asked that should have been.
Speaker 2: As we've mentioned before, why did David Simmons go back
Speaker 2: for the phone Amy's phone, pink phone? We need to
Speaker 2: know why there wasn't any blood or gun residue on
Speaker 2: their clothes when one of them had padded down Amy
Speaker 2: after she died to find her phone, and both of
Speaker 2: them had been shooting guns all afternoon. I just think
Speaker 2: that you've got to make sure that all the answers
Speaker 2: are there so that they can make a determination.
Speaker 5: Sure you've got some interesting circumstantial facts such as the
Speaker 5: gunshot I read as during things like that, I think
Speaker 5: what the DPP has to do is sit down, say
Speaker 5: it got all of these things.
Speaker 2: Have you agreed with every decision a DPP has made
Speaker 2: in relation.
Speaker 5: To we're talking about defamation earlier on and I don't
Speaker 5: want to put on my foot in the water there,
Speaker 5: And the answer is I regularly regularly disagree with decisions
Speaker 5: that are taken by the DVP.
Speaker 2: It's subjective, that's the problem. Law is subjective too, right?
Speaker 2: Is a Naiven thinking that.
Speaker 5: At some levels at some levels.
Speaker 2: All right, last letter. I have listened to every episode
Speaker 2: and up to date with every conversation so far. I
Speaker 2: am absolutely heartbroken for Amy's family and for what they
Speaker 2: must be going through over the past ten years. It
Speaker 2: is every parent's worst nightmare to lose a child, and
Speaker 2: I cannot imagine the pain and suffering. They go on
Speaker 2: to talk about how the domestic violence is out of control.
Speaker 2: It seems to be a key issue here that they
Speaker 2: bring up because our daughter took out a VRO at
Speaker 2: one stage. The person in question broke that several times.
Speaker 2: His punishment was to be locked up for twenty four
Speaker 2: hours and then out again. He's now in jail for
Speaker 2: many other unrelated offenses. My daughter never charged him, as
Speaker 2: she was too frightened of the repercussions. I now see
Speaker 2: why victims don't report these things to the police, as
Speaker 2: our judicial system seems to favor the perpetrator. I feel
Speaker 2: sick about him being released. How no one in the
Speaker 2: position of power has helped this family to find out
Speaker 2: the truth beggars belief domestic violence. I guess I just
Speaker 2: wanted to get your view on that. How significant an
Speaker 2: issue in your experience, Tom.
Speaker 5: There is it's out of control, and I'm not sure
Speaker 5: what that is. I think Mettha Fernaman's got a lot
Speaker 5: to do with it. I think cultural reasons have a
Speaker 5: lot to do with it. We've brought up these days
Speaker 5: with not the same sort of respect for people that
Speaker 5: we had in the past. I think education's got a
Speaker 5: fair bit to do with it, but I don't think
Speaker 5: any law was going to be able to change that.
Speaker 5: We have very strong laws here about this. You can
Speaker 5: get a VRO at the drop of a hat, and
Speaker 5: the bar to be able to establish that remaining in
Speaker 5: place is still very low, and I think the politicians
Speaker 5: have done everything they can to ensure that's right. The
Speaker 5: penalties for breaching it are very, very high. They're very severe,
Speaker 5: and I don't think that that's necessarily going to change
Speaker 5: anything because most people who get charged with that, I
Speaker 5: don't think they're ever going to be dealt with. They
Speaker 5: don't think about it in advance. Like most crimes, the
Speaker 5: Terrance sentence is rubbish. So I think it comes back
Speaker 5: to education, It comes back to culture, It comes back
Speaker 5: to drugs, alcohol and things like that which they are
Speaker 5: causing it to permeate through society. It's reached everywhere. I
Speaker 5: was in Calgary not that long ago, and I was
Speaker 5: speaking to a chap I know who's worked for the
Speaker 5: Aboriginal Legal Service for many years. I said, what's the
Speaker 5: biggest thing confronting the Aboriginal community up here these days?
Speaker 5: Is it methamphetamine? Its domestic violence? So you've got it
Speaker 5: too across the board. It's the worst thing we have
Speaker 5: in our community. So from top to bottom, it's from
Speaker 5: the most affluential people in the community right down to
Speaker 5: those who are living in the streets outscoots the coal.
Speaker 5: We've got it. The answer is not more punishment. It's
Speaker 5: not tougher sentences. It's a long process and it starts
Speaker 5: with education, It starts at home, and it starts with drugs.
Speaker 2: More resources.
Speaker 5: Absolutely, I'm a big resource based person. If you want
Speaker 5: to stop the road toll, it's all about resources. You
Speaker 5: want to stop drugs, It's all about resource. It's not
Speaker 5: about sentences. It's not about courts being weak or influenced
Speaker 5: by purple. It's about resources. If you've got police, if
Speaker 5: you've got education, if you've got campaigns like that going on,
Speaker 5: you're in the remember the chance of doing something about it.
Speaker 4: But currently oh would echo that given the court lists
Speaker 4: that we see every day and the lists of allied
Speaker 4: defenses on there, the vast majority of them would be
Speaker 4: domestic based, whether they be breaches or whether they be
Speaker 4: aggravated assaults. Myself, Tom, we're talking about weekend courts before
Speaker 4: we started the on air conversation. You could sit there
Speaker 4: all day and seventy five percent of the alleged defenses
Speaker 4: for people locked up over a weekend in Western Australia
Speaker 4: would be breaches of VROs, breaches of bail, protective bail conditions,
Speaker 4: or the assaults that go with them. It is absolutely
Speaker 4: rife in Western Australia. Politicians talk a good gain, the
Speaker 4: police commissioner talks a good game, but the prevalence of
Speaker 4: all ranges of those offenses, from the you know the text,
Speaker 4: to the X that has got a VR out on you,
Speaker 4: all the way up to some of the more horrific
Speaker 4: crimes that we've had in this state show that there
Speaker 4: hasn't been a real impact in the actual frontline so far.
Speaker 4: I tend to agree with Tom. I don't think stricter
Speaker 4: sentences make much difference because these are often crimes of passion.
Speaker 4: Then people are not thinking, oh my gosh, I'm going
Speaker 4: to get between ten and fourteen years if I do this.
Speaker 4: That's just not the way the human brain works in
Speaker 4: those situations. So it has to be, as you say,
Speaker 4: educational cultural change, starting in schools, carrying on in colleges,
Speaker 4: going into prisons, going into the regional communities, which is.
Speaker 5: A stance in the home too. I think we can
Speaker 5: palm the responsibility off to politicians and educators and things
Speaker 5: like that. It's in the home. How are these kids
Speaker 5: being brought up. What are their standards and what do
Speaker 5: they look up to? And if they see it's okay
Speaker 5: to give a woman a clip over the year, if
Speaker 5: they're not doing the right thing, that will be ingrained
Speaker 5: and they'll grow up that way.
Speaker 4: And seeing some of the public comment about what happened
Speaker 4: at the Great Western Sydney Giants's end of season celebration
Speaker 4: and the punishment that was handed to some of the
Speaker 4: players for some of the attitudes that were behind closed doors,
Speaker 4: it makes me shake my head really because oh, well,
Speaker 4: you know, they were only having a laugh, they're only
Speaker 4: letting off steam. They're only they weren't offending anyone. It
Speaker 4: wasn't about offending the public. It was about, obviously, what
Speaker 4: an attitude that he's still ingrained in all of society.
Speaker 3: Not just football players, but all of society.
Speaker 4: And it's going to take a hell of a long
Speaker 4: time to stamp out. As a father of a seventeen
Speaker 4: year old boy who is touchwood, very respectful of every
Speaker 4: woman in his life, he has been brought up a
Speaker 4: lot differently than I was, and his attitudes are a
Speaker 4: lot different than mine were back when I was seventeen.
Speaker 4: So hopefully that is just a tiny microcosm of a
Speaker 4: wider change that is definitely needed.
Speaker 5: Better or worse.
Speaker 3: Attitudes much better. Much about a melon. We're at seventeen,
Speaker 3: he teaches me, He teaches me.
Speaker 2: Well, I think that's inspiring, at least Phillips I spoke
Speaker 2: to last week. I think the other thing is to
Speaker 2: be mindful of, I suppose is that it's not necessarily
Speaker 2: getting worse. It's just that we know about it. It's
Speaker 2: being reported more. You know. I think this is a
Speaker 2: problem that has been around for a long long time.
Speaker 2: I mean even Ron Eddals was talking about. You know,
Speaker 2: the homicide squad was called the heavy Domestics back in
Speaker 2: the eighties, you know, so it's not a new issue.
Speaker 2: Do you think there is a case that people are
Speaker 2: reporting it more that we are going in the right direction.
Speaker 5: I disagree with you. I do think it's getting worse. Okay,
Speaker 5: I'm at the cold pace down there, but certainly being
Speaker 5: reported more that it is actually getting worse. I mean,
Speaker 5: we all grew up in an age when meth and
Speaker 5: fiamine wasn't around, and I think I did my first
Speaker 5: meth am fiedamine case in about the mid nineties. I
Speaker 5: never knew anything about it in those days. We certainly
Speaker 5: never took it when we're at university or in our
Speaker 5: young adult days. It makes people angry, it makes them wild,
Speaker 5: it makes them unreasonable. Now, in the old days the
Speaker 5: cases I did, but people smoked a bit of a mile,
Speaker 5: they went to sleep, and the old junkies took a
Speaker 5: bit of heroine and made them feel good. And myth
Speaker 5: Amphetamine makes people want to fight, It makes people want
Speaker 5: to kill people. It puts them on the edge. And
Speaker 5: to say that it's just a question of being underreported
Speaker 5: in years gone by domestic violence, I don't think that's right.
Speaker 5: We've got a generation now of people who were brought
Speaker 5: up on Metham fhetamine whose parents use metham fetamine, and
Speaker 5: they saw violence in the home and in the workplace,
Speaker 5: in the schools, in the universities, in the pubs, in
Speaker 5: the nightclubs, and that's a generation, and it's assumed a
Speaker 5: degree of normality. And I think it's not fair to
Speaker 5: say it's always been there. It's always been there a
Speaker 5: little bit now by coming them on a Friday and
Speaker 5: I'd had too much drinks mine, I've had blue with
Speaker 5: the wipe. And you know, these days it's much more
Speaker 5: deep so than intrenched, and I think it's getting much worse.
Speaker 5: It's not just under report.
Speaker 4: I hate to sort of draw another black cloud over
Speaker 4: our conversation, but the amounts of this drug that are
Speaker 4: being imported in the last ten years, particularly in Western Australia.
Speaker 4: A case involving one kilo, two kilo, five kilo used
Speaker 4: to be very newsworthy. We won't get out of bed
Speaker 4: now for less than two hundred kilos and we have
Speaker 4: had cases of tons being imported into Western Australia because
Speaker 4: of our coastline. It is it is a major three
Speaker 4: point for this drug for the country. And they are
Speaker 4: the ones that we know about, and there are the
Speaker 4: there's thousands and thousands of kilometers of coastline in Western
Speaker 4: Australia where this stuff comes in from Asia mostly so
Speaker 4: if we know there are boat loads that are being
Speaker 4: captured with one tons on, we have to know that
Speaker 4: there are many more boat loads that are not captured.
Speaker 4: As much as the law enforcement and the AFP do that,
Speaker 4: it's impossible to police that whole coastline. And so the
Speaker 4: amounts coming in are destructive and for the people that
Speaker 4: it ends with, and very very profitable for the people
Speaker 4: that the drugs start with. So and it trickles down,
Speaker 4: it does. It does trickle down, and it causes people
Speaker 4: horrible harm psychologically, it causes psychotic episodes. And every single
Speaker 4: violent homicide almost in this state in the last five years,
Speaker 4: you could probably at least eighty percent of them would
Speaker 4: be directly attributable to meth. And we're not and we're
Speaker 4: not just talking when we say domestic violence. These these
Speaker 4: are these are sons killing parents. These are sons killing
Speaker 4: relatives as well as intimate partners. And you know, and
Speaker 4: and the children involved inevitably in so are those crimes
Speaker 4: as well. So, yeah, it is particularly agreed just when
Speaker 4: you do what Tom does every day. And when you
Speaker 4: do what I do every day, because you see it,
Speaker 4: you see the results of it pretty much every day.
Speaker 4: So as much as the government and governments will talk
Speaker 4: and try and act and they and they need to,
Speaker 4: I personally think they need to be doing a lot
Speaker 4: more to try and not only educate but somehow eradicate the.
Speaker 3: Worst effects of those drugs. But as Tom says, that's
Speaker 3: been a generational problem.
Speaker 4: And it's just unfortunate this generation is using a drug
Speaker 4: that is particularly damaging.
Speaker 5: I think the whole argument about drugs and what we
Speaker 5: do about the drug problem is for another podcast. We
Speaker 5: do another twelve episodes on that. Just a line. I've
Speaker 5: got a few ideas, government's got no idea, and until
Speaker 5: they tackle that, I just don't think we're going to
Speaker 5: see any light at the end of the tunnel in
Speaker 5: domestic violence, I mean, doing what they can until they
Speaker 5: get drugs under control. Particularly myth and Fatamain. Stick around
Speaker 5: and watch this space because it's going to give us.
Speaker 2: Yeah, well, I thank you for bringing that up. But
Speaker 2: that's the thing with the conversations. You don't know where
Speaker 2: it's going to head. And I like that we did that,
Speaker 2: like We certainly didn't know with Michael that we're going
Speaker 2: to head down the whole reviewal but decisions for DPPs.
Speaker 2: But one last question just for both of you, actually,
Speaker 2: is is it a case that meth use is now
Speaker 2: being used in prosecutions for other crimes like domestic violence
Speaker 2: or sexual assault or indeed homicide.
Speaker 4: Well, it's certainly. It's certainly never used as an excuse anymore.
Speaker 4: A lawyer can stand in the court and say, look,
Speaker 4: my client toxicology reports show, you know, post crime poster
Speaker 4: fans showed my client had you know, X number of
Speaker 4: micrograms perly through any system, and then they can get
Speaker 4: experts to say, well, that level would be I mean,
Speaker 4: would translate into this type of potential violent activity or
Speaker 4: whatever it might be. But a lawyer can never now say, well,
Speaker 4: and that's why he did it, and so he should be.
Speaker 3: Led off or treated differently.
Speaker 4: It can be treated as a cause and can be
Speaker 4: taken into account, but I don't think a prosecutor could
Speaker 4: ever say, well, he had myths in his system, so
Speaker 4: he must have he must have thought about doing this,
Speaker 4: you know, in the days or weeks leading up.
Speaker 5: I think prosecutors can say, though, given his level of
Speaker 5: Intoxication's myth intoxication. He may have been predisposed violent at
Speaker 5: a grater level than he would if it was sober.
Speaker 5: But I agree with what Jaims says. It's a bit
Speaker 5: like alcohol, any fawn of intoxication, which is voluntary. Judges
Speaker 5: don't want to know about it. They say, like, I'll
Speaker 5: look at it because it might explain why an otherwise
Speaker 5: peaceable person in a good relationship might have turned into
Speaker 5: a monster. That doesn't excuse it, and I'm not going
Speaker 5: to give you any lesser sentence. I'll look at it
Speaker 5: and see if it gives me some explanation as the way,
Speaker 5: but don't come here asking for any leniency as a
Speaker 5: result of it.
Speaker 4: And then if it tips over into the potential for
Speaker 4: you know, an unsoundness of mind what used to be
Speaker 4: called and insanity. Defense judges are also now very reluctant
Speaker 4: to say, well, because you were in a you know,
Speaker 4: a drug induced psychotist or whatever it might be, that
Speaker 4: your culpability is less, because the argument almost always now
Speaker 4: is well, you took the choice to take the drugs, right,
Speaker 4: It was a conscious decision for you to install that
Speaker 4: substance into your body, and so the subsequent fallout from
Speaker 4: that cannot be then explained away by an unsoundness of mind.
Speaker 4: Whereas there are the bases obviously for insanity please still,
Speaker 4: but not ones that are that are induced by drug intoxication.
Speaker 5: Well, I think criminal is pretty strict on that voluntary
Speaker 5: assumption of illegal substances which you knew were likely toxic
Speaker 5: cage and you've got real problems in using good.
Speaker 4: Yeah, even if you had a pre existing mental health condition.
Speaker 4: The judges now say, well, you knew that, and there
Speaker 4: was always the likelihood that use of methaan fatamine for
Speaker 4: whatever reason, whether you were self medicating, could either make
Speaker 4: you relapse or or enhance you know, or you know,
Speaker 4: or make more serious your mental health condition. Even that
Speaker 4: that can't be taken into account during sentencing in terms
Speaker 4: of a reduction.
Speaker 3: Now, so yeah, to answer a question.
Speaker 4: Now, I mean it's it's it's definitely a factor in
Speaker 4: in cases, all violent cases, including domestic violence ones.
Speaker 2: Yeah, Well, the term methoad does have a connotation of
Speaker 2: someone who's violent. Right, If you say method, do you
Speaker 2: think instantly, well, I think that they must be by.
Speaker 4: Now, well, that is what it does to you. I'll
Speaker 4: urge a listener if they have the time god in
Speaker 4: any regional rule or city court on any given day,
Speaker 4: and you will see. You will just have to listen
Speaker 4: to the to the charges being read out, and you
Speaker 4: will see how vast and widespread the problem of math is.
Speaker 4: And well, you know, if math didn't exist, Tom, then
Speaker 4: we wouldn't need half the courts and half the lays
Speaker 4: that we've got.
Speaker 5: I'll be quite happy to go back to the family
Speaker 5: Court if we can get rid of the drugs, go
Speaker 5: back there quite happily, because it's society's best interest. And
Speaker 5: all the politicians I talked to about that, they say
Speaker 5: the answer is Tom Harsher sentences lock them up for longer.
Speaker 5: But I mean, drug dealers are like cane toads. I
Speaker 5: don't think you could have more of them in Queensland
Speaker 5: than we have mercifully. But as soon as you kill
Speaker 5: one next morning, isn't got another twenty ready to take
Speaker 5: its place. And I don't know one drug dealer, and
Speaker 5: I've don't with thousands of them. Who's ever been deterred
Speaker 5: by penalties none. I mean, when Federal Parliament to thirty
Speaker 5: years ago changed the penalty for importation of a commercial
Speaker 5: quality of drugs from twenty five years to life imprisonment.
Speaker 5: They all came out and politicians said to me, that'll
Speaker 5: fix them. Toime life imprisonent, that will fix them. You'll
Speaker 5: see the graph of importations go down like that. What's
Speaker 5: happened in thirty years, the graph of importation has gone
Speaker 5: up like that. So you tell me that increasing penalties
Speaker 5: has any effect, I'll shake your hand.
Speaker 2: I understand that, Tom, And look, thank goodness you haven't retired.
Speaker 2: You're still there with the golf club killing the pat
Speaker 2: cane toads. I mean, everyone counts. It counts as frustrating
Speaker 2: as it is with the twenty more turning up after.
Speaker 5: I think you're mistake of me for a copper. The
Speaker 5: coppers are the ones killing cane toads. I'm the one.
Speaker 5: I just try and talk them, sensing them.
Speaker 2: None of these things are one per It's a multitude
Speaker 2: of people, and we've just got to keep fighting for
Speaker 2: the good of society. But thank you so much, Tom
Speaker 2: for joining us today. We've been really lucky just with
Speaker 2: people that are willing to provide some insight into the
Speaker 2: justice system, this case and where we go from here.
Speaker 2: So thank you so much no pleas things Tom