Speaker 1: This podcast contains information and details relating to suicide. We
Speaker 1: urge anyone struggling with their emotions to contact Lifeline on
Speaker 1: thirteen eleven fourteen thirteen eleven fourteen or visit them at
Speaker 1: lifeline dot org dot au.
Speaker 2: Welcome to the sixth edition of Conversations. It's Alison Sandy
Speaker 2: here and I have Liam Bartlett.
Speaker 1: Hi, lamb hey el, how are you good to catch up?
Speaker 2: Very good? We have a very special guest today, Michael Barnes,
Speaker 2: who's the new South Wales Crime Commissioner. Michael Barnes has
Speaker 2: been Commissioner of the new South Wales Crime Commission since
Speaker 2: twenty fourth of August twenty twenty. Is that right, Rick?
Speaker 2: Prior to that, Michael was New South Wales Onmbardsman from
Speaker 2: twenty seventeen to twenty twenty. In that role, he oversaw
Speaker 2: the restructuring of the organization, the appointment of a new
Speaker 2: executive and the launching of a new strategic plan charting
Speaker 2: the course for the organization for the next five years.
Speaker 2: You've also been new South Wales State Coroner in January
Speaker 2: twenty fourteen. You're appointed being the in oral Queensland State
Speaker 2: Coroner for the previous ten years. An impressive resume there, Michael,
Speaker 2: Welcome to the Truth About Amy Conversations. Thanks Alison, thank
Speaker 2: you so much for being here today. Really, I'm just
Speaker 2: so appreciative of your time because I know how important
Speaker 2: your time is. So first of all, I guess my
Speaker 2: first question, as our listeners have heard, you have a
Speaker 2: wealth of experience, but can you please tell us a
Speaker 2: little bit more about your current role at the New
Speaker 2: South Wales Crime Commission.
Speaker 3: Sure the Crime Commission investigates serious and organized crime and
Speaker 3: seeks to confiscate the proceeds of crime. We collaborate with
Speaker 3: other law enforcement agencies obviously to do that, both local
Speaker 3: and national. Most of our work targets large scale drug
Speaker 3: importation and distribution and money laundering associated with that and
Speaker 3: the related violence, kidnapping, public place shootings and the like.
Speaker 3: But we also undertake the investigation of historical homicides if
Speaker 3: the local police forces come to the conclusion that they
Speaker 3: can't take the matter further for Thank you.
Speaker 2: Well, that's quite considerable. How does this differ this sort
Speaker 2: of role, It seems quite different from what you've normally done.
Speaker 3: I've been involved investigations in one way or another since
Speaker 3: the Aboriginal Royal Commission of Actual Debts and Custody in
Speaker 3: the late nineties got me involved in investigations and from
Speaker 3: that time on I've been doing similar work at the
Speaker 3: Criminal Justice Commission in Queensland, then the University of Technology
Speaker 3: at Queensland before I became coroner. So criminal investigations has
Speaker 3: been my bread and butter work since the early nineties.
Speaker 2: Obviously, I sent you, as I do everybody who comes
Speaker 2: on conversations, a bit of a precie of of the
Speaker 2: truth about Amy links to certain key episodes. What were
Speaker 2: your impressions when you first delved into that.
Speaker 3: Yeah, I've listened to the three or four episodes that
Speaker 3: you sent me in and I congratulate you on the
Speaker 3: work that you and Liam have done. Looked, the first
Speaker 3: impression is what a terribly sad case a young mother
Speaker 3: devoted to her two children whose life ended so violently
Speaker 3: and so unnecessarily, and the grief that would always cause
Speaker 3: has been exacerbated by uncertainty about responsibility for the death.
Speaker 3: So the first and lasting impact is the terrible sadness
Speaker 3: for all of those involved, not the least of course
Speaker 3: Amy's children, her mother, but the community generally not knowing
Speaker 3: how this violent, horrible death came about. The other lasting
Speaker 3: impact is the unfortunately inadequate initial response of the police
Speaker 3: service to the death, the detectives who who were first
Speaker 3: called to the scene soon after it had occurred, the
Speaker 3: death had occurred, and the lasting impact that had on
Speaker 3: the ability of investigative agencies to unpack what had occurred
Speaker 3: and make definitive findings. That's been so severely hampered by
Speaker 3: the initial mistakes. You've probably heard of investigators referring to
Speaker 3: the golden hour, the first hour after the crime scene
Speaker 3: is located, is recognized as so crucial from a forensic perspective,
Speaker 3: gathering physical evidence, getting eyewitness accounts, ensuring that eyewitnesses don't
Speaker 3: intentionally otherwise corrupt each other's versions. All of those things
Speaker 3: were lost because of the initial mismanagement of the evanalytical
Speaker 3: that evant to keep it neutral.
Speaker 1: As Ellison says, thanks for joining us too. It's very
Speaker 1: kind of you to give us your time and your expertise,
Speaker 1: and especially in this case, your background really makes a
Speaker 1: big difference.
Speaker 2: I think yes. And now Tim Clark is usually on
Speaker 2: these conversations he's got a trial. Actually he's had to
Speaker 2: go to I can't believe that he actually has to
Speaker 2: do other work other than this very important case. So
Speaker 2: he obviously sends his apologies. But have you come across
Speaker 2: a case like this before, Michael.
Speaker 3: Well, as you probably know, there are approximately four hundred
Speaker 3: homicides in Australia each year, and it can only be
Speaker 3: approximate because we don't know how many wrongly categorized as
Speaker 3: suicides or missing persons. But so let's work with four hundred.
Speaker 3: And in the vast majority of those cases, the police
Speaker 3: do a fantastic job, in many cases fairly quickly putting
Speaker 3: an accused before the courts. Frequently, because of the dynamic
Speaker 3: nature of investigations, the complex circumstances in which homicides or
Speaker 3: alleged homicides occur, there are public I've never seen a
Speaker 3: perfect investigation.
Speaker 4: And in most.
Speaker 3: Of those cases, though, if there are problems, they can
Speaker 3: be remedied and the investigation brought back on track. But
Speaker 3: you're right to highlight that in a certain number of
Speaker 3: cases there are crucial errors made that caused the resolution
Speaker 3: of the matters to be very protracted and in some
Speaker 3: cases never resolved. I mean, everyone knows about the Chris
Speaker 3: Dawson case here in Sydney now got a conviction, but
Speaker 3: decades after the event. Similarly, there was a tragic case
Speaker 3: here involving a young American mathematician, Scott Johnson, who it
Speaker 3: took three inquests before we got a really strong police
Speaker 3: investigation that only last year resulted in someone pleading guilty
Speaker 3: and now serving a lengthy term of imprisonment. So yes,
Speaker 3: there are these cases. As I say, most of the
Speaker 3: time police do a great job, but from time to
Speaker 3: time mistakes are made and either someone's not charged or
Speaker 3: they are charged, and the system falls down somewhere else
Speaker 3: along the right the way, as you'd appreciate. Even when
Speaker 3: a charge is laid, because police have got what they
Speaker 3: think is sufficient evidence, all of the other parts of
Speaker 3: the criminal justice system.
Speaker 4: Have to work appropriately.
Speaker 3: I was involved in another very sad case in New
Speaker 3: South Wales, but they had some unfortunate similarities, and that
Speaker 3: the victim was a young Aboriginal woman with young children
Speaker 3: and a devoted family who died as a result of
Speaker 3: horrific internal injuries that the two miscreants who were with
Speaker 3: a claim were the result of sexual consensual sexual activity.
Speaker 3: The cops didn't go for that. She had a blood
Speaker 3: out a whole reading way beyond which anyone could make
Speaker 3: any sorts of reasonable decisions, and the circumstances in which
Speaker 3: she was found dead on the beach, with the two
Speaker 3: individuals involved burning all her clothing and the mattress from
Speaker 3: the back of the car made it very obvious that
Speaker 3: there was more to the story the cops charged with
Speaker 3: causing the death. The DPP discontinued the charge. We run
Speaker 3: an inquested, to my mind, made it abundantly clear that
Speaker 3: the version given by the two people who were with
Speaker 3: Lynette on the day that she died weren't acceptable, couldn't
Speaker 3: have possibly been true, and therefore strongly recommended that the
Speaker 3: charges again be preferred. Despite those detailed findings, the DPP
Speaker 3: declined to do that, and only when a couple of
Speaker 3: media outlets got involved and drue attention to the case
Speaker 3: was the DPP persuaded to brief an outside external council
Speaker 3: to give advice about whether or not charges could or
Speaker 3: should be laid. That council indicator that a conviction was likely.
Speaker 4: He was correct.
Speaker 3: He was brief to then run the trial, and guilty
Speaker 3: verdicts were returned by a jury after a five day trial.
Speaker 3: They're only out for thirty two minutes before they found
Speaker 3: the men guilty and they're now thankfully serving lengthy sentences.
Speaker 3: But that's just an example of how everything, at every
Speaker 3: step along the way, problems can arise that frustrate the
Speaker 3: pursuit of justice.
Speaker 1: Is that also an example, Michael, of how DPP officers
Speaker 1: generally work. And I am generalizing here, but you know,
Speaker 1: you mentioned the brief comes back from the outside source
Speaker 1: and it says, look, we do have a pretty good
Speaker 1: chance of getting a conviction. So the DPP is then
Speaker 1: confident to move forward and then prefers the charges, and
Speaker 1: so it goes. And in that case, you know, there
Speaker 1: was a win for justice. But I get the impression
Speaker 1: very strongly, especially from the DPP here in w WA
Speaker 1: at the moment. And yeah, I'm not singling him out,
Speaker 1: and he's not an orphan, but you know, unless let's
Speaker 1: put it this way, DPPs don't like to lose, do they.
Speaker 1: They do not like to lose, And if they think
Speaker 1: they're going to matter a case that it's even got
Speaker 1: a fifty to fifty chance, they're less likely to go
Speaker 1: forward with it.
Speaker 3: That's true, and that's not necessarily unreasonable. Putting someone before
Speaker 3: the court is a serious impact on that individual. You know,
Speaker 3: being wrongly accused and then publicly tried, even if you
Speaker 3: are a critter at the end of the day, is
Speaker 3: a very serious impact.
Speaker 4: So it's appropriate.
Speaker 3: That the people making that decision do so cautiously. I
Speaker 3: think the problem is that they have intangible, almost unknowable
Speaker 3: assessments they must make. Is it in the public interest,
Speaker 3: is it likely to result in a conviction? Well, sitting
Speaker 3: in the office, reading your papers, looking at what the
Speaker 3: records of interview show seems to me to be a
Speaker 3: fairly difficult way to make an assessment of how a
Speaker 3: witness is going to perform in front of front of
Speaker 3: a jury, what they will say to questions that haven't
Speaker 3: yet been asked of them, how the expert witnesses will
Speaker 3: impact upon a jury's assessment. All of those things are
Speaker 3: very difficult to know with certainty. So if, as you say,
Speaker 3: there's a fifty to fifty chance, well, how do you
Speaker 3: decide which way it goes? You'd be aware of William Blackstone,
Speaker 3: a famous English jurist who is credited with saying that
Speaker 3: the English legal system it's better that ten guilty men
Speaker 3: go free than one innocent person is convicted, and I
Speaker 3: stand beside that. I think that's extremely important. We can't
Speaker 3: have in this people being locked up, but nor can
Speaker 3: we have people who are actually guilty of crimes not
Speaker 3: being brought to account. And the problem we've gotten in
Speaker 3: the current system is if you were accused, there are
Speaker 3: multiple opportunities for you to vindicate yourself, for you to
Speaker 3: negate the proceedings brought against you. You usually have a
Speaker 3: committal proceeding in which you can seek to persuade the
Speaker 3: magistrate that the matter shouldn't go further forward. Even if
Speaker 3: you are committed for trial, you can make written submissions
Speaker 3: to the DPP, who will regularly listen to those submissions
Speaker 3: and decide that the matter shouldn't go to trial. If
Speaker 3: it goes to trial, you can make no case submission
Speaker 3: to the trial judge, saying there's no case for me
Speaker 3: to answer here. I shouldn't even have to go into evidence.
Speaker 3: And if you are convicted, of course you have all
Speaker 3: the appeal processes available to you. But people in the
Speaker 3: position of Amy's mother have no mechanism or process to
Speaker 3: contest the decision the DPP and the police not to
Speaker 3: bring charges. That's quite surprising when you think about our
Speaker 3: commitment to transparency and accountability. Think of an other public
Speaker 3: official whose decisions aren't reviewable in any other circumstance. There's
Speaker 3: no mechanism that you can review the decision of a DPP,
Speaker 3: even though they're making an assessment that isn't an objective,
Speaker 3: concrete decision that you can calibrate. It's not how many
Speaker 3: bricks were laid in a day, it's what will a
Speaker 3: jury think about these persons explanation for what happened.
Speaker 1: Yeah, part of that is a value judgment, isn't it.
Speaker 1: I mean, there's no way of getting around that. Yes,
Speaker 1: And also you mentioned Blackstone. That's interesting because of course
Speaker 1: part of that argument is also that there is a percentage.
Speaker 1: When I said fifty to fifty, I'm not factoring in
Speaker 1: the other unknown percentage. You can ascribe whatever you like,
Speaker 1: depending on your particular moral judgment, but there has to
Speaker 1: be some sort of percentage ascribed to justice being seen.
Speaker 4: To be done, undoubtedly, even if you think.
Speaker 1: It's going to go the wrong way. But can I
Speaker 1: come back to that what you're saying about Amy's mum,
Speaker 1: Amy's family, So where do they go in the system.
Speaker 1: If we assume in this case that okay, the DPP
Speaker 1: is saying, well, I haven't got enough in front of
Speaker 1: me at the moment, the police are saying, well, we've
Speaker 1: got a new team investigating, so hold the fort, we'll
Speaker 1: gather as much new evidence and then we'll put it
Speaker 1: to the DPP.
Speaker 4: Fair enough.
Speaker 1: We've talked on this conversations about Section twenty two of
Speaker 1: the DPP Act here in wa which gives the director
Speaker 1: a plenty of scope to be able to say to
Speaker 1: the police, Look, I'm not happy about this particular part
Speaker 1: about the investigation. Could you go back, please send a
Speaker 1: couple of officers out and just ask a couple more
Speaker 1: questions in this regard. So there is that potential, But
Speaker 1: let's put all that to one side, because I'm very
Speaker 1: interested in an earlier comment you made about and drawing
Speaker 1: from your experience as a coroner, those couple of cases
Speaker 1: you cited had multiple coronial inquests. Amy Wednsley's just had
Speaker 1: one at this stage. So what is the process or
Speaker 1: the avenue that Amy's family would have to have or
Speaker 1: obtain in order to get another in quest.
Speaker 4: I'm not.
Speaker 3: Intimately familiar with the West Australian legislation, but generally currents
Speaker 3: need to be persuaded. There's fresh evidence that wasn't considered
Speaker 3: at the previous inquest. It's not appropriate simply to have
Speaker 3: another inquest because someone doesn't like the outcome of the
Speaker 3: first inquest, so they would need to be able to
Speaker 3: persuade the current There was fresh evidence that hadn't been
Speaker 3: considered at the inquest that's already been completed, that could
Speaker 3: lead to a different outcome. And something that strikes me
Speaker 3: in this case, it's and I said, I'm not familiar
Speaker 3: with all of the evidence. I haven't read all of
Speaker 3: the exhibits, but I haven't seen any reference to expert
Speaker 3: suicide ology one. It is a very well renowned homicide detective.
Speaker 3: On AUF interview'd mentioned how he was surprised by the circumstances,
Speaker 3: alleged that he'd never seen a suicide when where a
Speaker 3: young woman had shot herself in such an awkward position
Speaker 3: and such a difficult circumstance, When had she been inclined
Speaker 3: to do that? There were other more convenient ways that
Speaker 3: should have been done. And Ronzo wit As he said
Speaker 3: he's looked at a thousand cases. There are experts have
Speaker 3: looked at tens and hundreds of thousands of suicides. They
Speaker 3: undertake what they call psychological autopsy, so look at the
Speaker 3: victimology of the person and the circumstances of the death,
Speaker 3: and can offer expert advice about whether people do ever
Speaker 3: kill themselves in this way. The Scott Johnson matter I
Speaker 3: mentioned before the police wrote it off as a suicide
Speaker 3: in I think about two weeks. He was found naked
Speaker 3: at the bottom of a cliff, his clothes neatly folded
Speaker 3: at the top of the cliff. It was easy for
Speaker 3: US sociologists to say that people don't like themselves to
Speaker 3: be found in an undignified manner, even though they know
Speaker 3: they're going to be dead, so you don't take your
Speaker 3: clothes off before you jump to your death. That sort
Speaker 3: of expert evidence doesn't seem to have been brought to
Speaker 3: bear in this case.
Speaker 1: But Michael is expert evidence, fresh evidence in that category.
Speaker 1: Does that fall into it does?
Speaker 4: Certainly? I can't see why.
Speaker 3: I mean, certainly it's the way you would have heard
Speaker 3: about the foal Big case here in Sydney, a woman
Speaker 3: who was wrongfully convicted, it turns out, of murdering her
Speaker 3: three children expert scientific evidence in that case caused it
Speaker 3: to be re examined.
Speaker 1: Yeah, okay, So in this case, does that come from
Speaker 1: the police, what does that come from the Attorney General's
Speaker 1: office or how does that happen?
Speaker 4: Do you know?
Speaker 3: Usually folbig case came through the attorney's office. He the
Speaker 3: attorney caused a re examination, a commission of inquiry into
Speaker 3: the circumstances of her can that received the scientific evidence
Speaker 3: and produced a report saying that the conviction was unsafe.
Speaker 2: It's interesting that you should say that because we've obviously
Speaker 2: called on the Attorney general. The family has I should say,
Speaker 2: called on the Attorney General to ensure that the processes
Speaker 2: occur here. And it's something that we talked about and
Speaker 2: I mentioned that I'd ask you about. Is the separation
Speaker 2: of powers right? What are your thoughts on intervention from
Speaker 2: I mean our attorney, the WA Attorney General seems to
Speaker 2: think that there is no scope for him to intervene.
Speaker 2: What are your thoughts?
Speaker 4: I am hesitant and cautious about that.
Speaker 3: We've set up independent offices of the DPP to get
Speaker 3: politics out of those decisions. You can imagine, individual crimes
Speaker 3: can often inflame public passion and if I was the
Speaker 3: object or subject of that public passion, I'd want a
Speaker 3: DPP between me and the lynch mob rather than a politician.
Speaker 3: So I think bringing politicians into these decisions is unlikely
Speaker 3: to be helpful. I'm more inclined to think the mechanism
Speaker 3: referred to before, a mechanism to review decisions of the DPP,
Speaker 3: is preferable to getting politicians to buy into it once
Speaker 3: they start doing deciding who should be prosecuted, or giving
Speaker 3: instructions or recommendations to the EVP. I think there is
Speaker 3: a real danger.
Speaker 2: In the absence of that though. We don't have that
Speaker 2: mechanism in place. So what then can the family do?
Speaker 2: Can they refer it to? You know, does your Crime
Speaker 2: Commission looking to these sorts of things, for example in
Speaker 2: New South Wales?
Speaker 4: Yeah, we do.
Speaker 3: In New South Wales we review historic homicides and provide
Speaker 3: opinion and advice, and the police may do that when
Speaker 3: they think that our powers might assist in that regard.
Speaker 3: I don't know the jurisdiction of the Triple C in
Speaker 3: Western Australia, whether they have a similar jurisdiction or not.
Speaker 3: I mean, the difficulty you've got at the moment is
Speaker 3: that the police and the DPP are lined up in
Speaker 3: saying there isn't sufficient evidence. The police can obviously prefer
Speaker 3: charges without the DPP's concurrence, but they like the assurance
Speaker 3: that the DPP's advice will give them. The DPP, as
Speaker 3: Lamb says, doesn't like running and losing cases and thinks
Speaker 3: they're in a position to make a water type assessment
Speaker 3: of the assessment of the likely outcome. I think that's
Speaker 3: questionable in complex cases like this.
Speaker 1: But the DPP has also admitted Michael to Amy's family
Speaker 1: that they haven't looked at the case since twenty nineteen.
Speaker 1: You know, I mean it just if you were one
Speaker 1: of the family members, you'd be so frustrated it would
Speaker 1: be unbelievable. Can we just go back to what you
Speaker 1: were talking about, the golden hour? You know that that
Speaker 1: hour after a scene is discovered and the way we
Speaker 1: could because we were touching on fresh evidence. And I'm
Speaker 1: sort of intrigued about whether or not it does evidence
Speaker 1: already presented but are judged to be not given enough weight,
Speaker 1: if I can put it that way, does that also count?
Speaker 1: And by that, let me explain, I'm and I'm fascinated
Speaker 1: to hear your comments on this, because you've heard so
Speaker 1: many cases as a coroner. One thing that really struck
Speaker 1: me in that coronial inquest that Amy's family had was
Speaker 1: the lack of weight given to the evidence of the
Speaker 1: three constables who were first on the scene in that
Speaker 1: golden hour, Constable Blandford, Constable Dixon, Senior Constable Roberts. So
Speaker 1: they all in their own way, very strongly, very explicitly
Speaker 1: expressed suspicion, high levels of suspicion, and all their notes,
Speaker 1: those contemporaneous notes of that moment also backed up that judgment.
Speaker 1: They all got on the standard. They all repeated the
Speaker 1: same thing years later. Now, I was flabbagasted that the
Speaker 1: coroner didn't give that more weight, especially considering as we
Speaker 1: know now that the two detectives who were found to
Speaker 1: be negligent in their duty when they turned up had
Speaker 1: less than an a four page of notes between the
Speaker 1: two of them, which was just unfathomable. Do you see
Speaker 1: what I'm getting out here? I mean, I'm just amazed
Speaker 1: that that's not a higher ratio in the coroner's findings.
Speaker 3: Yeah, I mean, the officers who turned up initially could
Speaker 3: only give their opinion about what they saw. I don't
Speaker 3: think they can swear to theultimate issue, namely who caused
Speaker 3: the death. They expressed their concerns and suspicions, and clearly
Speaker 3: they should have been acted on by the detectives who
Speaker 3: turned up. Principally, there should have been a proper forensic
Speaker 3: examination of the scene, and most particularly the two people
Speaker 3: or three were not sure who were present when the
Speaker 3: death occurred should have been grilled. They should have been
Speaker 3: exhaustively interviewed, kept apart until that had occurred. We might
Speaker 3: then be in a position to be more confident. The
Speaker 3: other expert, the person who gave evidence about whether it
Speaker 3: was possible for a young woman to hold a gun
Speaker 3: in such an awkward and difficult position, their evidence seemed
Speaker 3: to also be discounted to some extent, which surprised me.
Speaker 3: And again I'm confident. I used to be an adjunct
Speaker 3: professor at the Australian Institute of Suicide Research and Prevention.
Speaker 3: I know people there will talk very convincingly about circumstances
Speaker 3: in which people choose to take their own life, about
Speaker 3: how they tend to try and get themselves somewhere secure
Speaker 3: and comfortable. They don't try and hold up a shotgun
Speaker 3: with one hand and hope they managed to hit the
Speaker 3: right part of their body. It just seems surprising that
Speaker 3: expertise of that sort wasn't brought to bear.
Speaker 1: Well, two two biomechanical experts, not just one, both said
Speaker 1: the same thing in one in Perth and one in Sydney.
Speaker 1: And now the American expert too. It's pretty amazing, isn't it.
Speaker 2: Yeah, I mean, is it one of those things though?
Speaker 2: I mean, these law, as you know, is so subjective, right,
Speaker 2: there's so many you know, the interpretation. I mean to
Speaker 2: us obviously having worked on this, we think if Dawson's
Speaker 2: case went to trial, I mean, surely this guy's cold
Speaker 2: go to trial, you know what I mean, Like it
Speaker 2: doesn't seem you know that the likelihoods and you know
Speaker 2: we've looked at prima faci and we've looked at reasonable
Speaker 2: doubt and things like that. So I mean the DPP
Speaker 2: to have your hands in the DPP, you know, I
Speaker 2: guess the families, you know that the future of this
Speaker 2: in just one person is in which you know you've
Speaker 2: touched upon with the review process. So I guess the
Speaker 2: point is is what happens if the DPP decides n
Speaker 2: I don't think we can take this to trial. What
Speaker 2: can possibly happen? Can the family then get someone to
Speaker 2: do an external brief?
Speaker 3: It can only be public opinion. Because of that, what
Speaker 3: I see is a gap in the system, the inability
Speaker 3: to have a formal review of DPP decisions, which seems
Speaker 3: to me to be inappropriate. All other officials need to
Speaker 3: justify their decisions. All other decisions that impact people are
Speaker 3: able to be reviewed. This seems to me to be
Speaker 3: a real gap, and in the twenty first century approach
Speaker 3: to public administration, I don't understand why it's been left
Speaker 3: out of this system of review that everybody else is
Speaker 3: subject to. But absently that public opinion is really the
Speaker 3: only thing that's going to make a change unless the
Speaker 3: current is persuaded that the new expert evidence, be from
Speaker 3: a full cidologist or another by a mechanist, is sufficient
Speaker 3: to reopen or convene a new inquest.
Speaker 1: I hate to cite the American legal system, Michael, because
Speaker 1: we don't want to compare to compare some of the
Speaker 1: things going on over there, but I can't help but
Speaker 1: mention that you said public opinion. I was just thinking
Speaker 1: about the Menendez case Eric and Lyell Menandez, who've already
Speaker 1: spent something like thirty years in jail, but thanks to
Speaker 1: a Netflix series, public opinion there has actually got them
Speaker 1: a new hearing. Albeit you know that would be all
Speaker 1: about the sentencing decision because there was no doubt that
Speaker 1: they actually killed their parents. But yeah, it just goes
Speaker 1: to show you, doesn't.
Speaker 3: They have elected district attorneys, elected judges and the like.
Speaker 3: He says, I'm not sure I want to go down
Speaker 3: that path either.
Speaker 4: Agree with that.
Speaker 2: I can understand that. How hard is it, I guess
Speaker 2: in this case, you again, you were to come across
Speaker 2: this when they have made the wrong decision at the start,
Speaker 2: there seems to be a bit of a tunnel, you know,
Speaker 2: the blinkers go on. Certainly at the inquest in this case,
Speaker 2: police weren't even entertaining the prospect of it being anything
Speaker 2: but suicide. How hard is it then to get that
Speaker 2: opinion changed?
Speaker 3: In your experience, it's difficult, And I think that's in
Speaker 3: part explained by the nature of police work. Offices in
Speaker 3: the field must make snap decisions constantly. Every DV incident
Speaker 3: they attend, every traffic stop they attend, can involve an
Speaker 3: explosion of unforeseen violence.
Speaker 4: They have to very quickly assess is.
Speaker 3: That person who's getting out of the car that I've
Speaker 3: just pulled over is he doing that to run away,
Speaker 3: to attack me, or just because he thinks I want
Speaker 3: to speak to him. They've got to make an assessment
Speaker 3: straight away. Is that person a danger to me? Or
Speaker 3: is it there's just going to be a mundane, straightforward job.
Speaker 3: That's the way they grow up, that's the training that
Speaker 3: they inevitably get on the job. I wonder whether that
Speaker 3: necessity to make snap decisions then carries over into their
Speaker 3: other work and makes it harder for them to withhold
Speaker 3: judgment un till they've got all of the information. At
Speaker 3: a traffic stop, you certainly can't do that. You can't
Speaker 3: wait till you know everything about the individual, to a
Speaker 3: background check, find out whether he's got a gun license,
Speaker 3: talk to the lat person who spoke to him. You
Speaker 3: just have to make your own assessment on what's there.
Speaker 3: And I wonder if that doesn't affect the way police
Speaker 3: seem frequently to make snap judgment I said before, frequently. Indeed,
Speaker 3: perhaps usually they're right to the benefit of all of us,
Speaker 3: and you will hear, Please talk about their gut feeling. Again,
Speaker 3: they can't really explain it and I don't know if
Speaker 3: there is a scientific basis for it. But again, usually
Speaker 3: they are right, but when they're wrong, it's very difficult
Speaker 3: to persuade them. That's the case multiple inquests I did
Speaker 3: where the police said, this is a waste of public money,
Speaker 3: we shouldn't be having an inquest at all. This is
Speaker 3: all clear what went on here have then resulted in
Speaker 3: homicide convictions. Daniel Morkham as a famous case in Queensland,
Speaker 3: which is exactly that the police for adamant there was
Speaker 3: no need for an inquest and that were going to
Speaker 3: be a waste of public funds. They've submitted that open
Speaker 3: court when we found it was more likely homicide and
Speaker 3: gave them a prime suspect. They had a fantastic job
Speaker 3: flattening out god Eman resulted in a conviction. But right
Speaker 3: up until that stage they were contesting any need to
Speaker 3: have an inquest at all.
Speaker 2: Why that is it a case that they're afraid that
Speaker 2: there'll be some sort of onus put on them to
Speaker 2: you know, I mean the family hasn't got an apology.
Speaker 2: Their basketle and they got a letter of regret because
Speaker 2: it has been acknowledged that they did mess up, but
Speaker 2: there is still As late as the end of last year,
Speaker 2: you had senior police still saying, despite that there's a
Speaker 2: million dollar reward that no, no, she killed herself and
Speaker 2: they were adamant about that.
Speaker 3: Yeah, I mean, you're right. It does seem to be
Speaker 3: a tendency. I don't know if you're across it. There
Speaker 3: was a commissioner inquiry into about eighty seven I think
Speaker 3: it was suspected gay hate murders in New South Wales
Speaker 3: that handed down its report at the end of last year.
Speaker 3: Justice John Sacker presided out of that report and he
Speaker 3: found the same thing. Police just refusing to accept that
Speaker 3: they'd rushed to judgment and that what they said was
Speaker 3: a suicide or a missing person should have been investigated
Speaker 3: as a homicide. In that case, the suspicion was that
Speaker 3: homophobia fed into it. In cases like Amy's and others
Speaker 3: that I've been involved in, there's a suspicion that the
Speaker 3: fact that the victim is either a First Nation's family
Speaker 3: or from the wrong side of the tracks plays into it.
Speaker 3: It unfortunately seems to be the case that the least
Speaker 3: powerful sometimes get the worst service from the justice system,
Speaker 3: and as you know, they are also more likely to
Speaker 3: be victimized than anyone else, so the disadvantage compounds upon itself.
Speaker 2: Can there then be a danger that is a relationship
Speaker 2: then between WA police and if they take an organizational
Speaker 2: stance like that. You know that those senior brotherhood as
Speaker 2: Ron Ddle's referred to it, and the DPP, in your experience,
Speaker 2: they do. They work really closely. They tend to be
Speaker 2: on the same you know, they have the same thing.
Speaker 3: That's not my experience. The senior police certainly feel under
Speaker 3: a lot of pressure to support the decisions of those
Speaker 3: made below them in the hierarchy. It's very command control structure,
Speaker 3: very hierarchical, and you often need a change somewhere in
Speaker 3: that chain for improvement to occur. In the Scott Johnson case,
Speaker 3: straight after the inquest, the lead detective approached the family
Speaker 3: and said, well, that's it. You're not getting any more.
Speaker 3: Even though the inquest finding I made was that this
Speaker 3: is a homicide that should be investigated outside the court.
Speaker 3: Within twenty minutes of that finding being handed down, the
Speaker 3: detective you're not getting any more from us, That's what
Speaker 3: you're going to get Fortunately for the Johnson family. There
Speaker 3: was also a change of commissioner about that time, and
Speaker 3: Commissioner Fuller read the inquest findings and was persuaded that
Speaker 3: or could and should be done, appointed a really cracked
Speaker 3: team who then did a fantastic job unpicking events that
Speaker 3: had occurred twenty five years previous and got a conviction.
Speaker 3: And they've got a guilty plea out of the person
Speaker 3: they located and brought before the courts. So can happen,
Speaker 3: but it needs a change somewhere. I think it's very
Speaker 3: difficult for police in the hierarchy to publicly say no,
Speaker 3: the investigators got this role the DPP. I've not seen
Speaker 3: a lot of evidence of them falling in behind faulty
Speaker 3: decisions of made by another agency, namely the police force.
Speaker 3: They pride themselves on being independent of the police force,
Speaker 3: but like everybody, they don't like their decisions being criticized.
Speaker 3: They consider they have unmatched expertise in assessing how juries
Speaker 3: will react to evidence, and therefore not inclined to accept
Speaker 3: contrary opinions on those sorts of matters.
Speaker 1: I don't disagree with anything you're saying that about the
Speaker 1: police structure Michael, I think if I can just add
Speaker 1: maybe another layer to that which makes it even more impenetrable.
Speaker 1: Here in Wa is that we've had a series of
Speaker 1: and I'm talking of every look, every jurisdiction has it.
Speaker 1: We all make mistakes. You know, people are human, but
Speaker 1: I think pound for pound, proportionally in Wa we've had
Speaker 1: a higher than average strike rate of some major cases
Speaker 1: that have gone very badly for the police for a
Speaker 1: number of different reasons, but have reflected very badly on them.
Speaker 1: And I think you know, in that structure that you're
Speaker 1: talking about, it's easy to build another wall psychologically and
Speaker 1: practically they build another wall. And I think there is
Speaker 1: a lot of that that goes on in the WA
Speaker 1: Police force unfortunately and also generationally because some of these
Speaker 1: cases you're talking about where people then come in who
Speaker 1: have no attachment, but it takes a take fifteen years,
Speaker 1: eighteen twenty years for that throughput to happen until you
Speaker 1: get a completely fresh team. So there's a number of cases.
Speaker 1: I won't go through them now, but there's a number
Speaker 1: of cases. Twenty fourteen when Amy died, there's a number
Speaker 1: of cases around that time. So if you look at
Speaker 1: a major crime squad. You know, there's not a huge
Speaker 1: head count. I mean, I think we still have problems
Speaker 1: here in WA. Give the police their due with resources,
Speaker 1: they need extra resources. I still think that they're running
Speaker 1: on fumes a lot of times to investigate these things thoroughly,
Speaker 1: which is more and more of a reflection on the
Speaker 1: government giving them the right head count and also attracting
Speaker 1: the right people. That's another debate, another argument. But what
Speaker 1: I'm saying is there's a pool of people with the
Speaker 1: same sort of mentality and same training, and you know,
Speaker 1: you don't you don't let down your immediate superiors, and
Speaker 1: then your promotion happens, and then you're part of the
Speaker 1: plan and so on and so forth and so on.
Speaker 1: It goes that the sort of life cycle of a frog.
Speaker 1: There's a lot of frogs in there from those particular
Speaker 1: times that are still there. Maybe that mentality. You know,
Speaker 1: I'm not into conspiracy theories. I'm just saying that in
Speaker 1: a human way, it takes a while for these things
Speaker 1: to wash out.
Speaker 3: Yeah, I accept what you say, Lamb. It's undoubtedly the case.
Speaker 3: The workload is huge. There's a lot less work in
Speaker 3: writing up a suicide report for a coroner than there
Speaker 3: is in doing a homicide investigation. It's inevitable that that's
Speaker 3: going to have some impact. Hopefully most officers will put
Speaker 3: that to one side and say, no, we've got to
Speaker 3: do what we need to do.
Speaker 1: And as evidence by a chat with Ron Iddle's the
Speaker 1: other week, Ol, I mean, you know, there's a fellow
Speaker 1: who has done the right thing, right the way through,
Speaker 1: straight as an arrow, and he's even been chosen to
Speaker 1: write that report for that case that was the same generationally,
Speaker 1: you know, his erstwhile colleagues, and now they say, well,
Speaker 1: hang on, Ron, hang on, how come you've dropped us
Speaker 1: in it? Well, his response is, I've just written what
Speaker 1: is the truth. I've just you know, in the interests
Speaker 1: of justice. I'm just saying it as it is. But
Speaker 1: he's not popular.
Speaker 4: I can understand that. It's unfortunately the way it is.
Speaker 2: So that's the thing also, right, there have been some
Speaker 2: coroners that have been criticized as being a little bit
Speaker 2: too close to the police in those sort of situations.
Speaker 2: I guess that's sometimes that can come back to, you know,
Speaker 2: where they're at. But this latest inquest into Ami has
Speaker 2: been heavily criticized by the public. In fact, when we
Speaker 2: started this, there might have been you know, like the
Speaker 2: first episode, second episode might've had a couple of people say, oh,
Speaker 2: you know that they weren't ruling out source. But by
Speaker 2: the end of it, every single person is just you know,
Speaker 2: sort of frustrated and outrage. So I guess, you know,
Speaker 2: without putting it back, there's a lot of responsibility on
Speaker 2: the coroner. Are there circumstances where there seems to be
Speaker 2: I guess pressure put on the car.
Speaker 3: In Undoubtedly there's a lot of pressure put on corners.
Speaker 3: As I said, on numerous cases I've done inquests over
Speaker 3: public objection by the police. If this is a waste
Speaker 3: of money, it's been fully investigated, why prolonged? Why drag
Speaker 3: people then to give evidence when this has don't been done.
Speaker 3: The Gay Hate Commission of Inquiry received submission about how
Speaker 3: many hours we're going to be spent getting the documents
Speaker 3: the inquiry needed, and even suggestion of how many crimes
Speaker 3: were not going to be investigated because the Commission was
Speaker 3: requiring particular records to be produced.
Speaker 4: So there is a lot of pressure.
Speaker 3: The police forces in each of the states are very
Speaker 3: powerful organizations, and none of us like being criticized. None
Speaker 3: of us likes having our work picked apart, particularly in
Speaker 3: the police. If the outcome of criticism is you let
Speaker 3: a murderer get away, you can see what a negative
Speaker 3: impact that would be, or seen as such a negative
Speaker 3: impact by the investigators. So you can understan and why
Speaker 3: they resist so strenuously, particularly when they're convinced that they
Speaker 3: are the experts, that no one else can do this properly.
Speaker 3: Coroners vary in their appetite for challenging police decisions. They
Speaker 3: are dependent upon police for the investigations. They don't have
Speaker 3: any investigators other than the police involved, but they can
Speaker 3: give directions to the police, take a statement from this person,
Speaker 3: get a report from this person. They also have the
Speaker 3: assistance of investigative lawyers who can critique the work of
Speaker 3: the police and point out shortcomings. Like every profession, some
Speaker 3: people do that more enthusiastically. Some of your colleagues press
Speaker 3: releases as if it's news. Same thing can happen in
Speaker 3: any other field.
Speaker 1: Got a good point, Michael, Yeah.
Speaker 2: No, it's so true, and that's why there's several inquests,
Speaker 2: often on different cases.
Speaker 1: Right.
Speaker 2: I think Dawson had three. Another famous one in Queensland.
Speaker 2: You probably remember this one Arnold lay murder, the murder suicide. Yeah,
Speaker 2: did you come across that one or did that pass
Speaker 2: your debt?
Speaker 3: I did the third in question that I did the
Speaker 3: third in quest and said it was a homicide and
Speaker 3: the DPP refused to charge.
Speaker 4: Wow.
Speaker 2: So okay, getting back to that, the DPP refusing to
Speaker 2: charge that, that's obviously the last potential challenge for the
Speaker 2: family in that sense, you know, it's obviously what they
Speaker 2: think and just getting that justice ability to be tested
Speaker 2: in the justice system. So if it was in New
Speaker 2: South Wales, which of course because you're in our commission,
Speaker 2: in the New South Wales Crime Commission, if that didn't happen,
Speaker 2: if the DPP in New South Wales refused to charge,
Speaker 2: could they then go to the New South Wales Crime
Speaker 2: Commission and say, hey, you know this is not this
Speaker 2: is not good enough. We believe that there should be charges.
Speaker 4: No.
Speaker 3: No, the Act makes it clear the referrals on need
Speaker 3: to come through the police force, So the police force
Speaker 3: would need to choose to make that referral.
Speaker 2: Okay, So it really is it's just the public opinion,
Speaker 2: like you said, that pressure publicly, which he then of
Speaker 2: course gets back to the politicians, right, because of the
Speaker 2: politicians are the only ones who are elected. So you
Speaker 2: can kind of see the quandary for the family here
Speaker 2: that they have to put the pressure on the politicians.
Speaker 2: But then there's this whole there should be a separation
Speaker 2: of power. But who also they're going to go to?
Speaker 2: They represent the people.
Speaker 3: Right, sure, and I can I have no concern about
Speaker 3: politicians being involved. It's the attorney general that I think
Speaker 3: we need to keep out of it. First, law officer
Speaker 3: has to have a separate and distinct function. I think
Speaker 3: there are real risks if he recommends someone who's charged
Speaker 3: in this case, why isn't he recommending that someone be
Speaker 3: charged in another case? I just think the public pressure
Speaker 3: that will then fall on the attorney. You'll see now
Speaker 3: whenever a sentence that the shock jocks consider to be
Speaker 3: inadequate is handed down, the as an immediate call for
Speaker 3: the attorney to appeal the sentencing decision, And thankfully most
Speaker 3: of them say, you know, I've referred to matters the
Speaker 3: DPP for his or her consideration, and that's the appropriate response.
Speaker 3: It's too easy to put pressure on politicians.
Speaker 2: Unfortunate, Oh yeah, not to make the decision, but referring
Speaker 2: it to the DPPs not unreasonable.
Speaker 3: I need a referral. They've got the information, they can
Speaker 3: speak to the police. That wouldn't cause any different process
Speaker 3: to be put in train. I mean, you either give
Speaker 3: the attorney power to direct the DPP or you say
Speaker 3: the attorney's got to stay out of it. I don't
Speaker 3: think just a mere referral saying look at this again
Speaker 3: is going to help. The dp p's got the brief,
Speaker 3: presumably got the inquest findings. It's up to the DPP
Speaker 3: to do what he or she thinks is right in
Speaker 3: the circumstances because we haven't got a mechanism to review that.
Speaker 2: Yes, yes, so we just need that mechanism to review
Speaker 2: their decision. That's right, that's the key. But in this instance,
Speaker 2: finally anyway, the family has been told that it will
Speaker 2: be referred to the DPP to make a decision. So
Speaker 2: that's now negative. But I guess the problem was they
Speaker 2: were worried because WA police were so resistant at several
Speaker 2: stages that it wouldn't even be referred to the DPP again.
Speaker 3: And undoubtedly the work you've done has contributed to a
Speaker 3: softening of that position. The difficulty though in the current circumstance,
Speaker 3: the DPP will look at it and you'll get a
Speaker 3: two line letter saying I don't consider there's sufficient prospects
Speaker 3: of a conviction. If that's of course, they take no reasons,
Speaker 3: no analysis of the evidence, or you get this very
Speaker 3: perfunctory letter saying no, I know better than everybody else,
Speaker 3: it's not going to happen.
Speaker 1: That's the problem. You've got to rely upon the fact
Speaker 1: that it's been methodically worked through and comprehensively analyzed. I mean,
Speaker 1: it's a big call, isn't it when you especially when
Speaker 1: you're emotionally attached to something too, Michael, when you're a
Speaker 1: member of the family. I'm not being cynical about this,
Speaker 1: but overly cynical. But it's a big call just to
Speaker 1: put your trust in somebody when you, as you say,
Speaker 1: when you get a two line letter. So at the moment,
Speaker 1: let's just recap on that. Al So, what we know
Speaker 1: from things that have been put in writing to Amy's family,
Speaker 1: the current DPP has said nothing to see here. Nothing
Speaker 1: has come to my attention, nothing has come across my
Speaker 1: desk that changes this office's position from the decision made
Speaker 1: by my previous colleague, you know, the former DPP who's
Speaker 1: now moved on to a judicial position. So we know
Speaker 1: that that's it. They say, if in due course, you know,
Speaker 1: we get new information, then we'll look at it. Accordingly.
Speaker 1: They have done nothing since the original decision four or
Speaker 1: five years ago. He's not looked at anything. That's his
Speaker 1: stated public position. Then we go to the police and
Speaker 1: as you have done, put those questions to the police commissioner.
Speaker 1: And now we've got those answers back in the most
Speaker 1: recent answers, which I find some of the choice of
Speaker 1: words very interesting actually, and they've used for the first time, Ol,
Speaker 1: they've used the word task force in that response to
Speaker 1: you just a couple of days ago.
Speaker 2: Can you read those answers out, Liam? I thought that
Speaker 2: our listeners should know because I read the questions last week,
Speaker 2: so we should let our listeners know the question or
Speaker 2: the answers we got back on those. Have you got
Speaker 2: them in front of you?
Speaker 3: Yeah?
Speaker 1: Well yeah, just on a couple of these specifically so
Speaker 1: that Michael can comment. I mean, it really reinforces what
Speaker 1: you've been saying.
Speaker 2: Michael.
Speaker 1: The question two is give given how much new evidence
Speaker 1: that's now available compared to the last time the Director
Speaker 1: of Public Prosecutions reviewed Amy's file at least five years ago.
Speaker 1: Why hasn't it been referred to them already? And the
Speaker 1: police say, quote, as this matter is currently under investigation,
Speaker 1: it would be premature to refer it to the DPP
Speaker 1: at this stage. Once this investigation is comp WA police
Speaker 1: will present all findings of the task force to the
Speaker 1: Office of the Director of Public Prosecutions for his consideration.
Speaker 1: I just find that word task force interesting because it
Speaker 1: started off with new team, it's a new investigation. Now
Speaker 1: it's a task force number three. What progress, if any,
Speaker 1: has been made on the investigation by the new team
Speaker 1: looking into Amy Wensley's case, And they say, quote, the
Speaker 1: investigation team are making progress. However, no further details will
Speaker 1: be provided at this time and the rest are basically
Speaker 1: a repeat of that. So really all roads lead to
Speaker 1: Rome there, Michael the Wensley family is really dependent on
Speaker 1: what that police brief ends up being to the ODPP
Speaker 1: and how it's interpreted.
Speaker 3: YEP, and taking face value, it would appear that they
Speaker 3: are actively investigating. From what I know about the circumstances
Speaker 3: of Amy's tragic death, it seems clear that if it
Speaker 3: was in the homicide, then there will be evidence known
Speaker 3: to people other than the perpetrator. And that's why I
Speaker 3: would have hoped that a proactive investigation might lead to
Speaker 3: a positive out here.
Speaker 2: Now, we were also talking about the suicide ologists, that
Speaker 2: obviously would be a good thing for them to get
Speaker 2: information on. WILL certainly do that now as well, because
Speaker 2: we're you know, we're committed to going down every rabbit hole,
Speaker 2: you know, and there's certain people that we've spoken to
Speaker 2: that we've handed will via and are handed all the
Speaker 2: contact details, all the information we have with the permission
Speaker 2: of those that we've spoken to over to the police.
Speaker 2: So that's happened, including Scott Roder. And we just got confirmation, Lamb.
Speaker 2: I don't know if you saw, but Michael, we just
Speaker 2: got confirmation that Scott Roder is coming to Perth. So
Speaker 2: that's positive as well.
Speaker 1: Yeah, that's very interesting. A couple of raised eyebrows there
Speaker 1: on that one. I wonder whether this is all part
Speaker 1: of exactly what we've just been talking about, this task force.
Speaker 1: I wonder whether they wanted to talk to him and
Speaker 1: have engaged his services at least for an extended interview.
Speaker 2: I hope so, because he's involved in another case in Sydney.
Speaker 2: So they have these people and one of the issues
Speaker 2: that they had with the other biomechanical evidence at the inquest,
Speaker 2: as raised by the Detective Superintendent Rob Scantalbury, is that
Speaker 2: accland had limited information at the time that he thinks
Speaker 2: he should have been provided more information and then that
Speaker 2: extra information may have colored his opinion, which of course
Speaker 2: was that she was more likely to be shot than
Speaker 2: had shot herself. So but I guess the argument here
Speaker 2: is that that extra information because Scott Rohder looked at
Speaker 2: both the left and right hand in very great detail
Speaker 2: that he said that neither hand could have done it. Now,
Speaker 2: I just want to say one more thing. Before I
Speaker 2: asked a question of you, there was a letter which
Speaker 2: I just love, an email sent and we were actually
Speaker 2: wondering about where her hand fell. And so listening to
Speaker 2: the latest episode and the confusion about her right hand
Speaker 2: being under her leg slash bum and use of her
Speaker 2: left hand to possibly defend I recall hearing a biomechanical
Speaker 2: expert on another podcast at some point saying that it's
Speaker 2: not uncommon for the dominant hand side to be used
Speaker 2: as a stabilizing force. They explained it, in a situation
Speaker 2: where you're vulnerable, your dominant side and hand is the
Speaker 2: one that reaches out as a natural response. I've also,
Speaker 2: unfortunately been backed into a shower before by a violin
Speaker 2: X and I know, despite being right side dominant, that
Speaker 2: was the side I pushed against the base and wall
Speaker 2: and for some reason protected using my left arm that's
Speaker 2: frankly useless at the best of times to cover push
Speaker 2: them away. Just wondering if this perspective might help. Thank you, Hannah,
Speaker 2: and I'm so sorry to hear about your experience. I
Speaker 2: guess it just goes to show that there are other
Speaker 2: things to consider. I mean, I guess my question to you,
Speaker 2: Michael is you kind of are reliant on circumstantial evidence
Speaker 2: and things like that. The value of circumstantial evidence, I mean,
Speaker 2: we certainly have with that with the lay Arnold one
Speaker 2: and other cases that you've cited, and of course Dawson
Speaker 2: most notably so. There is a lot of strength in
Speaker 2: circumstantial cases where you don't have a slam dunk confession, right.
Speaker 3: Yep, And that they're harder cases to prosecute. And it's
Speaker 3: undoubtedly the case that detectives and prosecutors are concerned about
Speaker 3: relying only on circumstantial evidence.
Speaker 4: That's what we now call the white coat effect.
Speaker 3: Unless you've got a sign to give evidence to connect
Speaker 3: the accused to the offense juries one convict. They expect
Speaker 3: DNA evidence in every case. They expect our scientists to
Speaker 3: jump in and say, this is how it happened. And
Speaker 3: in circumstantial cases you often haven't got that. So that's
Speaker 3: part of the problem.
Speaker 2: So this one does have the biomechanic evidence, sure, in
Speaker 2: the case with Lay and Arnold. In cases you've had,
Speaker 2: I mean, is that all that extra the whole If
Speaker 2: there's a domestic violent situation, things like that, they're all
Speaker 2: taken into account by you when you make your decisions.
Speaker 3: Yes, all of the evidence should be considered. And that
Speaker 3: clearly is the relationship between the people who were present
Speaker 3: when the death occurred, their previous history of how they
Speaker 3: interact with each other, the resilience of the victim to
Speaker 3: get on with her life after those incidents in the past.
Speaker 3: Why would she suddenly resort to suicide? There or matters
Speaker 3: that need to be considered.
Speaker 2: Another question I have is with the whole situation, you're
Speaker 2: talking about suicide and how likely it is. And you're
Speaker 2: talking about the folded up clothes for example. So have
Speaker 2: you ever known a case where someone has killed themselves
Speaker 2: or heard of a case where someone has killed themselves
Speaker 2: when they have the car running, with their kids in
Speaker 2: the car packed up, ready to go, and as you're say,
Speaker 2: in an awkward situation where it's actually occurred, which wouldn't
Speaker 2: be the usual way that you'd necessarily kill yourself. No, note, etc.
Speaker 2: Have you ever heard of a case like this one?
Speaker 3: No, But my exposure is small compared to people who
Speaker 3: spend their whole careers comparing all of the elements of suicides,
Speaker 3: and that's why you need an expert opinion about that.
Speaker 3: But certainly they're the types of matters that draw your
Speaker 3: attention to whether or not these experts should be engaged.
Speaker 3: It's such an unlikely or improbable circumstance and for a
Speaker 3: suicide to occur, that you would be inclined to get
Speaker 3: expert advice about that. I mean, it's sadly the case
Speaker 3: that family very very often don't accept suicide as the outcome.
Speaker 3: They think they know they'd loved one better, and they
Speaker 3: are convinced that it couldn't have occurred. Whereas evidence shows
Speaker 3: that people do make impetuous decisions, outrageously sad decisions and
Speaker 3: take their own lives, but that can be unpacked in
Speaker 3: ways that make it more or less likely that that occurred.
Speaker 4: When you've got.
Speaker 3: Someone in a lock cell and there's a CCTV camera
Speaker 3: rolling that records their sad death, there's no doubt. But
Speaker 3: in circumstances like this, where you've got a volatile, violent
Speaker 3: situation and lots of weapons around, then things like placing
Speaker 3: the children in the car, it is very puzzling. But
Speaker 3: you know that's not my expertise. There are others who
Speaker 3: can say how unlikely that is that a suicide would
Speaker 3: occur in those circumstances.
Speaker 2: As a corner, you would have I mean, that would
Speaker 2: have been something that you possibly would have liked to
Speaker 2: have heard at an inquest.
Speaker 4: Certainly, and that could well amount to new evidence. I
Speaker 4: would have thought, yeah, among.
Speaker 2: With Scott Rhoders, absolutely, and I guess we picked apart
Speaker 2: a lot in there that wasn't picked up. You know,
Speaker 2: timelines that didn't make sense. You know that, you know
Speaker 2: there was a lot was on their lamb that was
Speaker 2: taken for granted, they didn't ask about, you know, wasn't
Speaker 2: given particular weight, even David Simmons asking for his phone
Speaker 2: saying it was a pink phone. You know, I thought
Speaker 2: that was quite remarkable. And his phone not being seized
Speaker 2: or don't I don't think it was seised. So there's
Speaker 2: all these sorts of things, and obviously the triple zero
Speaker 2: call involving the father, there were so many elements.
Speaker 3: And what was that aspect only just picked up somewhere
Speaker 3: at the end a couple of days ago about uncertainty
Speaker 3: as to whether the other friend who had been shooting
Speaker 3: with him was also there when the death occurred.
Speaker 4: Tell me about that.
Speaker 2: So we picked that up with the major crime timeline,
Speaker 2: did we land? And it had a time that he
Speaker 2: said which he would have been gone, right because he
Speaker 2: talked about the kids being in the car, but that
Speaker 2: didn't happen until after he was supposed to be gone,
Speaker 2: So how could he have seen that?
Speaker 1: And on top of that, there's also been a call
Speaker 1: to crime Stoppers from a person who has also contacted
Speaker 1: this podcast to say, look, she was at a particular
Speaker 1: location with him and a bunch of friends and partners
Speaker 1: at the time where he said words to the effect
Speaker 1: which was totally contradictory to what we know on the
Speaker 1: public record. So I take it that's also going to
Speaker 1: be something that that new task force can investigate further
Speaker 1: and tease out. Can I ask you something to Michael
Speaker 1: that's a coroner like one of the things I was
Speaker 1: surprised about, as Allison just mentioned that David Simmons wasn't
Speaker 1: questioned harder if I can put it that way more
Speaker 1: intricately over things like this pink thing. Is that just
Speaker 1: a lack of curiosity on behalf of the coroner or
Speaker 1: does that indicate that the coroners made up their mind
Speaker 1: that that particular person or witness is not responsible for
Speaker 1: any foul play.
Speaker 3: The coroner is in a difficult situation in that they
Speaker 3: don't want to be accused of further adding to the
Speaker 3: trauma of a least secondary victim. If my wife has
Speaker 3: killed herself, then to be wrongly accused and publicly harangued
Speaker 3: in a process about whether I did it is clearly
Speaker 3: a terrible thing to happen.
Speaker 1: But doesn't that doesn't that pre assume then that the
Speaker 1: coroner has already made up their mind about the suicide angle?
Speaker 3: No, because I've still got to keep that in my mind.
Speaker 3: I think he might be suspicious, I think he may
Speaker 3: be in the frame, but I can't be certain of that,
Speaker 3: so I've got to be careful how I deal with him.
Speaker 3: It's because I don't know one way or the other,
Speaker 3: and because he is in such a vulnerable position. I
Speaker 3: wouldn't have those concerns. If there was a tradesman who
Speaker 3: happened to be there on the day and he wasn't
Speaker 3: being forthcoming and he seemed to be shifting his ground
Speaker 3: a bit, you'd go up and down each side of
Speaker 3: him to try and get a version. But someone who,
Speaker 3: if they're telling the truth, is a serious victim of
Speaker 3: this death, in that the loved one has taken her
Speaker 3: own life, then you have to treat a bit more
Speaker 3: carefully because you can't know. You can't just treat them
Speaker 3: like a suspect and jump all over them.
Speaker 1: And what about behavior after the incident that's being inquiet about.
Speaker 1: Let me be a bit more clear. In this case,
Speaker 1: he has had a number of episodes and in fact,
Speaker 1: at least one serious conviction of a violent act an
Speaker 1: assault on a police officer. So where does that come
Speaker 1: into it then, or is that just left alone because
Speaker 1: it's after the incident that we're talking about here where
Speaker 1: Amy died.
Speaker 3: No, I don't think it's left alone because of the timing.
Speaker 3: But it's a big picture, isn't it. Sure it shows
Speaker 3: he's got perhaps a propensity to act in a violent
Speaker 3: way in certain circumstances. Hard though to say therefore it's
Speaker 3: more likely he murdered his wife. That there are plenty
Speaker 3: of flolks who get in the grog and want to
Speaker 3: punch on with coppers who would never harm their wife,
Speaker 3: And so to make the connection between the two is.
Speaker 4: Something you have to be careful about it.
Speaker 1: In terms of character. Does the coroner tease that out
Speaker 1: or is that something that you would have done? Or
Speaker 1: is that just up to individual coronercy.
Speaker 3: I think that's very difficult because where does it take you.
Speaker 3: You know, you can be a complete rat bag, a thief,
Speaker 3: a liar, but does that mean you're more.
Speaker 4: Likely to murder a class associate? I think that. I
Speaker 4: think it's too uncertain.
Speaker 2: So isn't there also a responsibility to ensure that. I mean,
Speaker 2: I guess it's better for everyone, including him, that you
Speaker 2: either rule in or out the possibility of him killing Amy.
Speaker 3: Yep, in the longer term that would be and everyone's interesting,
Speaker 3: including him, he thinks it's occurred.
Speaker 4: I suppose.
Speaker 2: I guess what I'm getting at is, for example, at
Speaker 2: Marion Barter's in quest that I covered for The Lady
Speaker 2: Banish's podcast, we did the council assisting the coroner was
Speaker 2: a lot more, you know, really putting it to the
Speaker 2: person who was in the frame, right, whereas in this
Speaker 2: one they were really tiptoeing around. I mean, you can
Speaker 2: ask questions nicely, right exactly.
Speaker 3: I was just going to say that, I mean, closely
Speaker 3: questioning someone doesn't mean you've got to shout and screen
Speaker 3: and make accusations, but you can require them to answer,
Speaker 3: you can put to them inconsistencies. It's a difficult skill
Speaker 3: and lots of counsel don't have it, but it can
Speaker 3: be done.
Speaker 2: So I guess that didn't seem to be done. In fact,
Speaker 2: some of the questions actually had the answers in there,
Speaker 2: and it was more trying to rule him out than
Speaker 2: rule him in. That's just opinion. It's all subjective, right,
Speaker 2: But I guess how do you treat those cases when
Speaker 2: you're in there where there is somebody who could possibly
Speaker 2: be a killer.
Speaker 3: Well, hopefully i'd do it the way you were suggesting before,
Speaker 3: and that we would closely question them. But thought is
Speaker 3: to stop, take a step back from publicly accusing them
Speaker 3: when if the evidence didn't support that. You've heard of
Speaker 3: the term therapeutic jurisprudence, and coroners have been beaten around
Speaker 3: their head a bit on that score in the last
Speaker 3: decord or so. That you know, you've got research that
Speaker 3: suggests in some cases, unfortunately significant number of cases in
Speaker 3: quest have made things worse for the bereaved, and of
Speaker 3: course that's not what coroners are inclined to do. There's
Speaker 3: also lack of consistent practice among corners as to their
Speaker 3: role in suspected homicides. Some will say, we are not
Speaker 3: there to investigate crimes. We're only there to find the
Speaker 3: manner and cause of death, and that's the police and
Speaker 3: the DPP who've got to do crime. Therefore, we don't
Speaker 3: want to get involved in that. There are very significant
Speaker 3: differences in views about what the role of the coroner
Speaker 3: in a suspected homicide is. Under the modern coronal system.
Speaker 3: It used to be a major part of their role
Speaker 3: and no one could go to trial in New South
Speaker 3: Wales unless they'd been committed for trial by the coroner.
Speaker 3: But the eighties and nineties there's a big move away
Speaker 3: from that. Coroners are saying to have focus more on prevention.
Speaker 3: Was suggested that coron is unfairly damaging people's reputation and
Speaker 3: a significant proportion of coroners are not interested in reviewing
Speaker 3: their role in that regard. They see themselves as something
Speaker 3: different from the criminal justice system.
Speaker 1: Yeah.
Speaker 2: The only last thing I'll say, and Lee might have
Speaker 2: some more questions, is the scenes to be a tendency
Speaker 2: of victim blaming, because obviously, you know what we found
Speaker 2: there is even though they were tiptoeing around, Amy was
Speaker 2: fair game, right, you know, she was volatile, looking at
Speaker 2: her propensity to be violent as well, and you know,
Speaker 2: being suicidal. So I guess that trauma is then extended
Speaker 2: to the family, if not the potential perpetrator.
Speaker 4: Yeah, yeah, that's regrettable.
Speaker 1: That's an interesting point out because that's exactly what Michael's saying,
Speaker 1: except in reverse. The only problem is that in this case,
Speaker 1: the victim's not there to defend herself, so in fact,
Speaker 1: you're transferring the trauma onto the family members who were
Speaker 1: present and yet in this case, David Simmons didn't have
Speaker 1: to be present. In fact, he wasn't present at all,
Speaker 1: and when it came time for him to be present,
Speaker 1: they even gave him a leave pass so he didn't
Speaker 1: turn up on the day, So the next day they
Speaker 1: allowed him to do the video evidence.
Speaker 3: You're right in that it is very difficult for the
Speaker 3: coroner to remain independent. That's their challenge, and irrespective of
Speaker 3: what the investigators say, the coroner has to make up
Speaker 3: his or her own mind, with the assistance of good
Speaker 3: counsel assisting. If in this case she had been persuaded
Speaker 3: by those other opinions that it was more likely of suicide,
Speaker 3: you can understand why she might then go easy on
Speaker 3: the husband. He's a man who found his wife. Sure
Speaker 3: they'd had a volatile relationship, but you know they are
Speaker 3: a loving family. Found her with a horrendous wound to
Speaker 3: her head. How traumatic would that be. She would equally
Speaker 3: be criticized if it was suggested that she failed to
Speaker 3: have regard to his situation when requiring him to give evidence.
Speaker 1: Just on a positive note, there had been some excellent
Speaker 1: coroners a couple in wa that have been fantastic. You know,
Speaker 1: in the last twenty thirty years.
Speaker 4: My mate Alista Hope, he was. Were you there when
Speaker 4: he was doing his work? He was a good current.
Speaker 1: Absolutely, I've been to a couple of those. That's exactly
Speaker 1: one of the names. And I'll tell you what he
Speaker 1: in some of his inquests. He has made the difference
Speaker 1: between getting justice and not getting justice.
Speaker 4: See he was a former prosecutor.
Speaker 3: Well he knew that look there, and so he embraced
Speaker 3: the role of getting contributing to prosecutions.
Speaker 1: Yeah and yeah, did a fantastic job. He was a legend.
Speaker 2: Quick question. I just thought of this when we're talking
Speaker 2: about have you ever issued a bench warrant if someone
Speaker 2: hasn't turned up, a key witness hasn't turned up or
Speaker 2: would you?
Speaker 4: Yep, just so you should have Warren the cops go
Speaker 4: and find him and bring him in.
Speaker 2: So there wouldn't be any hesitation if they're the key witness.
Speaker 3: Oh, you'd make inquiries as to why the witness wasn't there.
Speaker 3: And more often than not, they ring and they say
Speaker 3: and the car's broken down them on the way, and
Speaker 3: we say, okay, we'll take the problem away from me.
Speaker 4: We'll give you a lift.
Speaker 3: There'll be a blue car outside your house in ten
Speaker 3: minutes and they'll convey you here. So you really need
Speaker 3: to rely on or war on. You've just got to
Speaker 3: make it clear that a tendency is required.
Speaker 2: And how important is it to have them in the
Speaker 2: courtroom as opposed to buy a video link?
Speaker 3: Do you think I think it's very important, and I
Speaker 3: don't know why this should be we're communicating. Fine, have
Speaker 3: a video, but maybe we've got you know, we've got
Speaker 3: post COVID expertise that we didn't have ten years ago.
Speaker 3: But the proof is inevitably if it's going to be
Speaker 3: over audio visual link, the question is shorter. Wouldn't you
Speaker 3: just know if you've got audio visual witnesses, they'll go
Speaker 3: for no more than a half hour each, whereas if
Speaker 3: they're they're in person, that will go for two hours.
Speaker 3: It just seems to make everything more perfunctory. It's difficult
Speaker 3: to communicate. I said, we've got better at it, but
Speaker 3: when I was doing courtwork, ao visual witnesses were not
Speaker 3: ever examined as effectively as when they're in person.
Speaker 1: I'm glad to hear you say that, because that's my experience.
Speaker 1: You cannot do the same interview over zoom or teams
Speaker 1: or whatever it is. You cannot do the same interview
Speaker 1: that you can do in person.
Speaker 4: Humans communicate with more than dot our voices.
Speaker 1: Don't we exactly exactly the bodily signals? You know that
Speaker 1: the whole reading of the face, the way you move
Speaker 1: in a whole stack of different ways and interact. And
Speaker 1: also you can't interrupt, if you know what I mean,
Speaker 1: in the same way it can be you know, sort of. No,
Speaker 1: there's no sequential chat. You have to stop and start,
Speaker 1: and it's just it's not natural and it's not as
Speaker 1: not as effective.
Speaker 2: If you were doing a case like this, Michael, and
Speaker 2: it was a key witness, would you make sure that
Speaker 2: they were in the courtroom.
Speaker 3: Yeah, the people who were at the scene when the
Speaker 3: death was discovered, you'd want to hear from them in person.
Speaker 2: I agree. But anyway, this is one of the many
Speaker 2: flaws with the way this has gone. But hopefully we're
Speaker 2: on track now and having you talk to us and
Speaker 2: give us your spertise. Is there anything that you would
Speaker 2: like to say in relation? I know you maybe mentioned
Speaker 2: a disclaimer too.
Speaker 3: I think I think we've coupled pretty well. Thank you.
Speaker 4: Or partty you folks. I think you're doing a great job.
Speaker 2: Thank you, Michael. That means so much.
Speaker 1: Thanks Michael, thanks very much for being part of it.
Speaker 1: As Al says, yeah, it does. It means a lot,
Speaker 1: and yeah, it's just it's it's great to have people
Speaker 1: with your expertise being able to speak so openly and transparently.
Speaker 1: It's it's a breath of fresh air.
Speaker 4: Thank you. Yeah.
Speaker 3: Look, I'm the only danger. I've got his head of
Speaker 3: Thomas as are made of mine. If he finds out
Speaker 3: I've been conviving with the enemy and it might be
Speaker 3: a bit awkward, but I.
Speaker 2: Hope it doesn't. See it's the enemy. We're allies, right, we're.
Speaker 4: Both doing competitors.
Speaker 2: Yeah, competitors, yes, but we're trying to do the right thing.
Speaker 2: We're all on the same side, though, aren't we. I
Speaker 2: mean this is about justice, and you know, I mean
Speaker 2: there is a place do you think that for podcasts
Speaker 2: in helping justice?
Speaker 3: Sure, although a lot of lawyers don't. And you will
Speaker 3: have known in the Dawshon case, Headley was dragged in
Speaker 3: and castigated by a Supreme Court judge for you know
Speaker 3: what she claimed was derailing justice and the cops of course,
Speaker 3: were saying, oh, we're going to we're just about to
Speaker 3: charge that podcast had nothing to do with it.
Speaker 4: It's absolute crap.
Speaker 3: It's no doubt that that caused the prosecution to be mounted,
Speaker 3: but they never really admitted that.
Speaker 1: Right, Why does that not surprise me?
Speaker 2: No, well, I think it's imperative and I think it's
Speaker 2: really making a difference. Thank you, Michael, Thank you so much.
Speaker 2: Appreciate it. By