Speaker 1: Welcome to laud the podcast. I'm Lex Lasry, I'm Greg
Speaker 1: Barnes and Greg We last weekend did the first podcast
Speaker 1: in front of an audience at the tell Type Winery
Speaker 1: at Mansfield and I don't know about you, well, I
Speaker 1: do know about you, but for myself, I had a
Speaker 1: great time.
Speaker 2: I thought it was fantastic. It's firstly, it's fantastic winery,
Speaker 2: great building and magnificent wines. Secondly, and equally, it was
Speaker 2: a terrific crowd, I mean, interesting bunch of people and
Speaker 2: enthusiastic and of course Australian's True crime podcast. Michelle is
Speaker 2: also an extraordinary stand up comedian.
Speaker 1: That's right, And as musicians would say, she opened for us,
Speaker 1: and she opened for it was a great privilege because
Speaker 1: she was fantastic, she was brilliant.
Speaker 2: But we will go anywhere, anytime, any day, and now
Speaker 2: we've got.
Speaker 1: To be careful what we wish for. Yes, that's right.
Speaker 1: But there's an email address in the link to this podcast,
Speaker 1: so if you're interested in having us in your region
Speaker 1: to do a podcast in front of an audience, we're
Speaker 1: happy to take part.
Speaker 2: The first one we'll get us from Port Headlin Western Australia.
Speaker 1: Well, we could do that, we could do that. We
Speaker 1: don't mut No, we can go back to Darwin. I
Speaker 1: could go back to Darwen. Well, I wash all the
Speaker 1: juges I used to. No, we're not doing one at
Speaker 1: Hobart on board with it? Yeah, okay, I didn't say that. No,
Speaker 1: this is what might be described by Alistair Campbell and
Speaker 1: RORYS Stewart as an emergency episode. Normally our episodes come
Speaker 1: out on a Wednesday, first thing in the morning. It's
Speaker 1: at about four am I've noticed, by the way. But
Speaker 1: we're doing this one because there are some issues that
Speaker 1: we want to talk about which are particularly topical. So
Speaker 1: let's get into it.
Speaker 2: So, just for the listeners, that proposed Royal Commission into
Speaker 2: the Big Build is into allegations of corruption which have
Speaker 2: been primarily driven by a huge number of news stories
Speaker 2: in the Age or the nine newspapers, but elsewhere as well,
Speaker 2: over probably more than twelve months now, and so that
Speaker 2: is the purpose of the Royal Commission, not into you know,
Speaker 2: should we have built this or built that?
Speaker 1: But I know one thing that irritates you and irritates
Speaker 1: me a bit as well, is that the opposition have
Speaker 1: said if in government and controlling the Royal Commission. There's
Speaker 1: a list of what they describe as twenty five non
Speaker 1: negotiable witnesses that have to be called. So it seems
Speaker 1: to me, just putting it in relatively neutral terms, that
Speaker 1: they're getting way ahead of themselves, because in a royal commission,
Speaker 1: you don't decide who you're going to call, at least
Speaker 1: until you've got settle terms of reference and know what
Speaker 1: you're investigating well.
Speaker 2: And also you know lexis being very modest, but you have,
Speaker 2: of course extensive experience with royal commissions. You ran one
Speaker 2: yourself in Victoria in relation to an ambulance contract I
Speaker 2: think twenty odd years ago. You're involved in the famous
Speaker 2: Costic and Royal Commission. We've talked about this in the past.
Speaker 2: My understanding is it's a matter for the Royal Commissioner
Speaker 2: and his or her or their council assisting to determine
Speaker 2: who's going to be called.
Speaker 1: Correct, Yes, and there's a I mean, when you start
Speaker 1: a Royal commission, the first thing you do is issues
Speaker 1: su poenis and get documents work out by reference to
Speaker 1: the terms of reference, what the issues are that you're
Speaker 1: going to have to investigate, and then as you analyze
Speaker 1: the material, you decide who you're going to need to
Speaker 1: hear from in the witness box. Yeah, that's how the
Speaker 1: witness list is developed. This sort of smacks of it's
Speaker 1: sort of a bit like manatory sentencing. It's saying, we
Speaker 1: don't really trust the commissioner to make his own or
Speaker 1: her own decisions about witnesses, so we're going to have
Speaker 1: a list we want, you know, Jess Wilson saying we
Speaker 1: want these particular people publicly flogged for our own political advantage. Yes,
Speaker 1: I mean that's what she's saying. I mean, it's really outrageous,
Speaker 1: but it's fairly typical.
Speaker 2: Of politicians these days, the lack of respect for the
Speaker 2: independence of the judiciary and Royal commissioners are independent.
Speaker 1: Royal commissioner will almost certainly be either a serving or
Speaker 1: acting or retired judge.
Speaker 2: Yeah what about you, Lex, No, I'm not available, and
Speaker 2: we've got to put the podcast first.
Speaker 1: I've just got a feeling I wouldn't be high on
Speaker 1: anyone's list.
Speaker 2: Well, that could be a compliment, Yeah it is, I
Speaker 2: mean it should have been. I don't know why Jacinda
Speaker 2: Allen didn't say, let's do it months ago because I
Speaker 2: didn't think it was that big an issue for a while.
Speaker 2: I know you and I have talked about this. I
Speaker 2: mean it was in the age and Nick McKenzie, who's
Speaker 2: a fantastic journalist, was running at hard but I didn't
Speaker 2: think it was really resonating.
Speaker 1: But I think over time.
Speaker 2: What happens with those stories is that people started They
Speaker 2: might know the details, but they just think something's wrong.
Speaker 2: And there was a lot of momentum around it, and
Speaker 2: Ben Carroll did the right thing in my view.
Speaker 1: I mean, I'm a.
Speaker 2: Huge fan of royal commissions, but I think he.
Speaker 1: Had to do it, and look, it might well be worthwhile,
Speaker 1: but I just think you've got to let the process
Speaker 1: develop according to the direction of the Royal Commissioner. And
Speaker 1: as you say, I've counseled assisting.
Speaker 2: I thought that or well, now, what a week since
Speaker 2: he announced it, I thought he might have moved to
Speaker 2: had some names in mind and got it set up.
Speaker 1: How long.
Speaker 2: Normally after the announcement of a royal commission, is a
Speaker 2: commissioner appointed and what's the process for appointment lex I mean,
Speaker 2: does the Attorney General ring around or yeah.
Speaker 1: There'd be a list of names I mean, I hear gossip,
Speaker 1: you probably do tell I'm not going to say, am
Speaker 1: I on the list. I've got bad news for you.
Speaker 1: If it's bad news, it's good news because I want
Speaker 1: to keep doing the podcast. I was thinking about how
Speaker 1: I was going to do the podcast and be a
Speaker 1: Royal Commissioner at the same time. I've heard two or
Speaker 1: three names that I presume are on the A Teeney General.
Speaker 2: When we next, when we get out of this studio,
Speaker 2: I'll tell you, and you can tell Matthew. Yeah, but
Speaker 2: don't just keep it between you.
Speaker 1: Don't wear a while while I'm talking to you. I look,
Speaker 1: the sooner someone is appointed, the better because that person,
Speaker 1: once they've got their letters patent in terms of reference,
Speaker 1: then they can so how much does it usually take
Speaker 1: to Oh, I can take only a few days. Yeah,
Speaker 1: I mean the government could decide now if they've got
Speaker 1: someone they favor for the job, and I gather they have, and.
Speaker 2: Then as I understand that the council assisting role, it's
Speaker 2: generally the Royal Commissioner says, I want excess council assisting.
Speaker 1: Yes, that's what happens. Yeah, sometimes this listen to General
Speaker 1: insist that someone that they favor be placed in that role.
Speaker 1: But interesting, Yes, that's interesting, isn't it. And what happens
Speaker 1: wind doesn't always work out, but normally the Commissioner will
Speaker 1: get to choose council assisting and bring them on board
Speaker 1: quickly because plans have to be made. I mean, this
Speaker 1: is a Royal commission Again, we talked about this recently,
Speaker 1: but they really are gained to need to get on
Speaker 1: with it. I mean a big bill is huge. It's huge,
Speaker 1: massive amount.
Speaker 2: Of years of years of material one assumes. Yeah, I
Speaker 2: mean a gig of the subpoenas going to the department,
Speaker 2: to the government, to the union, to the builders politicians.
Speaker 1: Yeah, and you.
Speaker 2: Know Nick mackenzie and the age will get drawn in
Speaker 2: no doubt, not because they've done anything wrong. Nick is
Speaker 2: a friend of mine and I think without them you
Speaker 2: wouldn't have these revelations. But sometimes journalists get dragged in
Speaker 2: about where they you know, sources, etc. And you know
Speaker 2: it's going to be very complex. But I really hope,
Speaker 2: for the sake of responsible politics and responsible administration of
Speaker 2: the justice system that the opposition, once the Royal Commissioner
Speaker 2: is appointed, just shut up.
Speaker 1: Well, the thing is, we're not that far away from
Speaker 1: the election. So yeah, the question is will the government
Speaker 1: feel free to go ahead and make the arrangements for
Speaker 1: the Royal Commission now or do they see the caretaker
Speaker 1: period approaching and think, well, we really need the agreement
Speaker 1: of the opposition that because they could be the government.
Speaker 2: But what's the opposition going to do?
Speaker 1: Let's say they.
Speaker 2: Will have said what going to do? They've said, we've
Speaker 2: got a set of terms of reference that we want implemented,
Speaker 2: and we've got a list of want if you're running
Speaker 2: a Royal commission. Let's say you're running a Royal Commission,
Speaker 2: Lex and there's a change of government. A new attorney says, right, Lex,
Speaker 2: we've changed the terms of reference and we've got a
Speaker 2: bunch of people. We're going to tell you you've got a call.
Speaker 1: Can they do that? Well, they can? I mean a
Speaker 1: Royal commission. I might just say, I'm not copying that.
Speaker 1: A Royal Commission is the executive it is the exercise
Speaker 1: of the Royal prerogative. It's an instrument of executive government.
Speaker 1: So the new government, as I understand it, would be
Speaker 1: within their rights to do that.
Speaker 2: There was pressure on you. You you did the Costigan
Speaker 2: Royal Commission, which unless you're of a certain age, and
Speaker 2: I just assumed that most people who listened to this
Speaker 2: podcast are younger than me and certainly younger than you
Speaker 2: Lex yes lifetime, not as young as Matthew. My memory
Speaker 2: of that was that there was pressure on Costigan from
Speaker 2: the Hawk government to wind it up.
Speaker 1: Yes, while there was, and that was in the context
Speaker 1: of the inquiries that we were conducting in relation to
Speaker 1: Kerry Packer Goanna. Yes. The Costick and Royal Commission was
Speaker 1: a Royal commission established by the Fraser government in nineteen eighty.
Speaker 1: Frank Costigan was the Royal Commissioner and he was assisted
Speaker 1: by Douglas Maher later Douglas Mark you see Rex Wild
Speaker 1: and myself. I was only there for a part of
Speaker 1: the time. The Royal Commission was an inquiry into generally
Speaker 1: the activities of the Federated chip Painters and Dockers, who,
Speaker 1: apart from being a waterside union, were also a criminal organization.
Speaker 1: But it had in fairness, I mean Frank Costigan, who
Speaker 1: I was a lovely man whom I admired, he felt
Speaker 1: the pressure from the Hawk government and I think to
Speaker 1: some degree his relationship with Bob Hawk diminished as a
Speaker 1: result of the po he told me about it. I
Speaker 1: didn't know that well and he told me about it.
Speaker 1: It was really difficult, but we had been going for
Speaker 1: three years. I think that.
Speaker 2: But I think that, you know, just come back to
Speaker 2: your point. You talked to used a couple of technical
Speaker 2: terms we might need to explain. But a royal commission
Speaker 2: is not like it's not like a course, not like
Speaker 2: a court.
Speaker 1: That's what people see.
Speaker 2: I think a lot of people think. They think you
Speaker 2: go to a royal commission and the Royal Commission says,
Speaker 2: you know that you've been a naughty boy naughty girl.
Speaker 2: That's equivalent to it being you know, you've found guilty
Speaker 2: and you should go to jail.
Speaker 1: I mean, and that's the way. That's what I've that's the.
Speaker 2: Problem with what Jess Wilson is doing. She's basically saying,
Speaker 2: this is a sort of star chamber stuff. You know,
Speaker 2: this is the inquisition. These are the people that you've
Speaker 2: got to go after their for their acts of you know,
Speaker 2: henas acts. I mean, it's appalling behavior I've never seen.
Speaker 2: I've never seen.
Speaker 1: I mean, there's been a lot.
Speaker 2: There are royal commissions every five minutes in this country,
Speaker 2: but I've never seen one where a political party's done that.
Speaker 1: Now, as far as I know, it's never happened. The
Speaker 1: terms of reference are not intended to include a to witnesses. Yeah,
Speaker 1: I think it's the opposition trying to ensure that a
Speaker 1: commissioner who's not in favor of a public realification of
Speaker 1: politicians can't avoid it because they'll be compelled to call
Speaker 1: the witnesses. Yeah. But I mean it's one thing to
Speaker 1: say these witnesses are got to be called, but when
Speaker 1: they get into the witness box and take the oath
Speaker 1: or affirmation, the question is what happens next. Yeah, you've
Speaker 1: got to have material to put to them, this stuff
Speaker 1: that they've got to be asked about which is relevant
Speaker 1: to the terms of reference, and if there's not, then
Speaker 1: they shouldn't be in the witness box.
Speaker 2: I gave evidence in the Royal Commission months. It was
Speaker 2: in Tasmania in ninety ninety four. I was chief of
Speaker 2: staff to Ray Groomer, great Melbourne football and former premier,
Speaker 2: and we were going to and in fact they did
Speaker 2: after I left, reduce the size of Parliament. Was a
Speaker 2: guy called Trevor Morling, who was a former Federal Court judge, judge,
Speaker 2: and so my evidence was pretty benign. He was asking
Speaker 2: what you know about the government's attitude and why would
Speaker 2: you reduce numbers? But even that, which was a pretty
Speaker 2: tame exercise, and you know, being a lawyer, I understood
Speaker 2: the witness box. But it's it's not an it's not
Speaker 2: a pleasant experience. And that was very benign, but just
Speaker 2: not a pleasant experience or anyone.
Speaker 1: The witness box is a very lonely, drafty place.
Speaker 2: And there's no anesthetic, not like owing to the dentists.
Speaker 2: And you can go to the dentist right and think,
Speaker 2: I wish I wasn't here like a witness box, but
Speaker 2: at least you get an anesthetic.
Speaker 1: There should be.
Speaker 2: There should be, like I think, I think there should
Speaker 2: be just a little packet of half valium, just a
Speaker 2: little cut in hard not just tissues, not just tissues,
Speaker 2: little valium. But a psychiatrist who said to me once
Speaker 2: this is off topic, that in her opinion, valium should
Speaker 2: be available in supermarkets. What did the boys light up?
Speaker 2: What did Australian crawl call it? A mother's little helper
Speaker 2: is coming out.
Speaker 1: It's coming out for more. As you know, the Iback
Speaker 1: report on Operation Richmond dropped yesterday.
Speaker 3: One of Victoria's most secretive and prolonged corruption investigations has
Speaker 3: finally revealed damning claims of serious and concerning conduct by
Speaker 3: former Premier Daniel Andrews and his government. Operation Richmond detailed
Speaker 3: extraordinary abuses of power from union leader Peter Marshall that
Speaker 3: was not only allowed but fostered by the Labor government.
Speaker 1: Just to deal with both sides of politics. I would
Speaker 1: have thought, my opinion is the conclusions they came to
Speaker 1: about particular the relationship between the Andrews government and the UFU,
Speaker 1: the United Firefighters Union and Peter Marshall was pretty concerning
Speaker 1: and a lot of people are saying, you now have
Speaker 1: an insight into what life under the Andrews government was
Speaker 1: really like because that's the way they did business.
Speaker 2: Well, I mean, they wouldn't be the first government in
Speaker 2: Australia that's done business in that way, including governments that
Speaker 2: do business with corporates.
Speaker 1: But it's.
Speaker 2: You know, I think I think what was interesting about
Speaker 2: that was the extent to which was it. Peter Marshall,
Speaker 2: who was the Secretary of the Union, fought to keep
Speaker 2: it under wraps. Yes, for a long long time and
Speaker 2: it's probably not served them well because it's now comes
Speaker 2: out in the context of coming up to an election.
Speaker 2: But it does say something about how this this well
Speaker 2: the Andrews government did business. But as I say, I
Speaker 2: think that's one of the issues in Australia as a
Speaker 2: lack of transparency amongst governments in particularly. I mean we
Speaker 2: talk about it in the past, but it happens now.
Speaker 2: I mean, you know, I said, you know in Tasmania
Speaker 2: with this football stadium they want to build, and they're
Speaker 2: certainly not making any accusations of any nature, but you know,
Speaker 2: the process is hardly transparent. No, you know, I mean
Speaker 2: you've got a government that got told by every independent
Speaker 2: expert don't build it.
Speaker 1: It's a dud.
Speaker 2: You know, it's a suburban ru loop of Tasmania and
Speaker 2: the government just dismisses it all and you you know, again,
Speaker 2: it's just a complete lack of transparency around process and
Speaker 2: that seems to have happened here.
Speaker 1: Yeah. I think one of the difficulties was that Jane Garrett,
Speaker 1: who I think had the respect of most people.
Speaker 2: She was a former minister, she was the response.
Speaker 1: She died, Yes, she was sidelined by Andrews in these negotiations,
Speaker 1: and I think that's a really people are really upset
Speaker 1: about that. And I understand why. The thing about the
Speaker 1: whole Iback issue, which no doubt we'll talk to Robert
Speaker 1: Redlick about next week, is this definition of corrupt conduct.
Speaker 1: If you look at the Iback Act and look at
Speaker 1: the definition, you see a list of pieces of conduct
Speaker 1: that can amount to corrupt conduct, but only if they
Speaker 1: can be the basis of a criminal offense. And a
Speaker 1: lot of people say, Tony Wheeley says, Anthony Wheeley says,
Speaker 1: the level is too high. It can be lass different.
Speaker 1: You said, well, it's the KAC Act, the I Act.
Speaker 2: In New South they got my old political boss, Nick Grana,
Speaker 2: I think, unfairly.
Speaker 1: But that's a.
Speaker 2: Very as I understand it, a very broad definition doesn't
Speaker 2: require the establishment of a criminal offense before you can
Speaker 2: conclude that conduct was corrupt.
Speaker 1: I think that's the right approach. Yeah.
Speaker 2: I mean, there's an interesting and it's it's a podcast
Speaker 2: for another day. That's interesting to look at all of
Speaker 2: these anti corruption commissions. I mean, the criticism of some
Speaker 2: of them. Tasmania is one, and I think South Australia.
Speaker 2: The other is that they're too secret. But on the
Speaker 2: other hand, people's reputations are trashed. I acted for a
Speaker 2: guy once once aware or in relation to what, but
Speaker 2: he had a very minor role, as he had a
Speaker 2: contract with a government entity and he had a minor
Speaker 2: role in this matter in the sense that and in
Speaker 2: fact he wasn't in any trouble at all. But you know,
Speaker 2: he was in the newspaper the next day because you'd
Speaker 2: given evidence and the government entity ring instead of were
Speaker 2: canceling your contract. I felt very sorry for him. It
Speaker 2: was just absolutely classic guilt by association. And I'm a
Speaker 2: bit troubled by anti corruption commissions and.
Speaker 1: Yeah, and I think it's I think that issue has
Speaker 1: got to be well supervised by the commissioner whoever is
Speaker 1: hearing the evidence, to say, well, it's one thing to
Speaker 1: get someone into the witness box and make allegations where
Speaker 1: the allegation has become the story. It's another thing again
Speaker 1: to have assembled a lot of evidence that demonstrate that
Speaker 1: someone is corrupt or has committed an offense and have
Speaker 1: that put to them. I mean, I think the public
Speaker 1: are entitled to know when that's happened, but I agree
Speaker 1: with you. You do need to be very careful about trashing
Speaker 1: someone's reputation, and publicity of that kind can destroy a
Speaker 1: reputation incredibly quickly. You never recover from it. No, no,
Speaker 1: you never recover from it.
Speaker 2: I had a guy ring me a few years ago.
Speaker 1: I'd acted for him in a criminal matter. He had
Speaker 1: been convicted.
Speaker 2: He was then quitted on appeal, but if you googled
Speaker 2: him seven or eight years later, came up and he
Speaker 2: couldn't get government. It was after a couple of government
Speaker 2: contracts for his trade. And oh no, sorry, we saw
Speaker 2: this didn't matter that I wrote a letter saying, hang on,
Speaker 2: he was quitted.
Speaker 1: The damage was done. And following on from that you
Speaker 1: see the effect of the publicity in the Ralph Carr case. So,
Speaker 1: Ralph Carr is the man who has been found guilty
Speaker 1: of rape in a by a county court jury and
Speaker 1: had a suppression order on that trial for victoria. After
Speaker 1: his conviction, the judge has lifted that suppression order. And
Speaker 1: apart from talking about the merits of that will come
Speaker 1: to in a minute, but the volume of material that
Speaker 1: has been in the herald Stone of the age since
Speaker 1: that happened about him, and about things that had nothing
Speaker 1: to do with the rape, including that he wears a
Speaker 1: two pa yes and bearing the nickname the Rug.
Speaker 3: Right.
Speaker 1: But I mean, it just becomes and it just becomes vilifying,
Speaker 1: doesn't it. Yeah, I mean, I mean this is the problem.
Speaker 1: And newspapers and other forms of media often run these
Speaker 1: stories on the basis of this is what we can
Speaker 1: now tell you about this person. In other words, we
Speaker 1: would have we would have if we could have, yeah,
Speaker 1: which of course they never could have. Of course they couldn't.
Speaker 1: They couldn't have. That would have been a contempt at
Speaker 1: the court. That would have been something that would have
Speaker 1: prejudiced his prospect of a fair trial. So none of
Speaker 1: that material could have could have been led I noticed
Speaker 1: in the age today.
Speaker 2: So where what are we today? Thursday Thursday with psychiatrists
Speaker 2: Some psychiatrists quoted saying that, you know, it's sort of
Speaker 2: iffy science, if you like to, for a psychiatrists to
Speaker 2: opine that a person who's charged with the criminal offense
Speaker 2: would kill themselves if their name was mentioned.
Speaker 1: I noticed that article too, mainly because you're quoted in
Speaker 1: the article. I forgot that I am quoted in the article.
Speaker 1: You should you should read it's.
Speaker 2: By Aaron Pearson, who's to get Aaron on one day
Speaker 2: because she's actually got a great deal of interest in
Speaker 2: suppression orders and she keeps her own data.
Speaker 1: Yes, but what do you think of that, lex?
Speaker 2: I mean, you know you would have granted suppression orders
Speaker 2: and not granted them over the years. If a psychiatrist
Speaker 2: came to court and said this person is a serious
Speaker 2: risk of self harm or suicide, how would that.
Speaker 1: Have I'd take a lot of convincing. I do believe
Speaker 1: in courts being open and I and I do think.
Speaker 1: I think the point that was being made in that
Speaker 1: article today was that estimating the prospects of someone trying
Speaker 1: to kill themselves is a pretty inexact science. You've got
Speaker 1: to have some pretty convincing evidence before you would say
Speaker 1: there is a clear, strong, identifiable risk of this person
Speaker 1: will take their own life if publicity is attracted to
Speaker 1: them because of this trial. I mean it's not I
Speaker 1: don't say it's not possible, but I think it's Did
Speaker 1: you ever have a case I can't think of evidence
Speaker 1: was lit. I think all the suppression orders that I
Speaker 1: can call, we're all aimed at making sure that someone
Speaker 1: got a fair trial, So they're all in advance of
Speaker 1: the jury trial. They were all designed to stop the
Speaker 1: dissemination of material that would prejudice someone's trial. I may
Speaker 1: have made orders in relation to someone's mental health, but
Speaker 1: I just can't recall whether it or not. I'd be
Speaker 1: pretty dubious, I must say. But anyhow, the judge in
Speaker 1: Ralph Carr's case made the order. He was obviously persuaded.
Speaker 1: And under the Open Courts Act, there's a particular section
Speaker 1: which is a pretty broad section, in the section eighteen,
Speaker 1: and it's the section under which all these orders are made,
Speaker 1: which is where the Act provides that the order is
Speaker 1: necessary to protect the safety of any person. So protect
Speaker 1: the safety of any person is pretty broad.
Speaker 2: It's pretty broad. And this is the Victorian.
Speaker 1: This is the Victorian. Yeah, yeah, I noticed in the.
Speaker 2: And again we're not traversing any of the territory. I'm
Speaker 2: just going on what was reported yesterday in the end
Speaker 2: Allan Jones case in New South Wales. I think there
Speaker 2: was a non publication order in relation to evidence questioning questioning, Yes.
Speaker 1: The questioning that the Council for the accused was putting
Speaker 1: to the complainant.
Speaker 2: Yeah, what would be the reason in a court proceeding
Speaker 2: why there might be a non publication order in relation
Speaker 2: to some evidence or a witness.
Speaker 1: Well, ordinarily in a situation like that, such an order
Speaker 1: would be made, probably for the protection of the witness
Speaker 1: or to avoid embarrassing the witness. The sort of approach
Speaker 1: I used to take. I took in the trial of
Speaker 1: Matthew Johnson when he murdered Carl Williams in Barwin prison.
Speaker 1: We had a video of the killing. It was all
Speaker 1: one so the whole the jury saw the entire event,
Speaker 1: which was awful. And if you ever remembered seeing publicity
Speaker 1: about this case, you'll remember seeing a photo of Matthew
Speaker 1: Johnson looking like a baseball player holding the bicycle seat
Speaker 1: post in his hands, about to strike Williams. And the
Speaker 1: media wanted the video and I just said, there is
Speaker 1: no public benefit in this is grotesque. There's no public
Speaker 1: benefit in people seeing that, and I just never released it. Yeah,
Speaker 1: so the best they got was that photo. Yeah, Now
Speaker 1: that wasn't being secretive, but there are some things that
Speaker 1: are just well, we had it.
Speaker 2: I appeared in what I think gets known as the
Speaker 2: Melbourne terrorism trial almost twenty years ago now with a
Speaker 2: bunch of people accused of terrorism offenses. I'm convicted, I'm not,
Speaker 2: but in that there was a a and I will
Speaker 2: never forget seeing it, a particular video of a particular
Speaker 2: form of torture which I won't go into. And Justice
Speaker 2: broon Journer, I think rightly said look, that's got to
Speaker 2: be it's got to be edited because it was just
Speaker 2: so horrific. And I think his main concern, I think
Speaker 2: it was right, was the impact on a jury. You know,
Speaker 2: I've trained people like us who can try and put
Speaker 2: it aside. You know, you know you've got a job
Speaker 2: as a school teacher or a social worker, or you're
Speaker 2: a retiree and suddenly you're confronted.
Speaker 1: With these images. I think you're absolutely right about that,
Speaker 1: and I've done it recently, and Darwen I did it
Speaker 1: many times over the murder trials that I sat on
Speaker 1: as a judge. You know there are photos coming. You
Speaker 1: know that there are photographs taken on the post mortem
Speaker 1: of the deceased that the prosecution are going to want
Speaker 1: to produce. I think by and large prosecutors are pretty responsible.
Speaker 1: Only they only choose the ones that they really need
Speaker 1: to rely on. But you know there are times when
Speaker 1: the cause of death is an issue and the jury
Speaker 1: need to see them, and judges give this direction to juries,
Speaker 1: which I've always felt was pretty lame because it can't
Speaker 1: solve the problem, saying to the jury, look later in
Speaker 1: this trial, you are going to see some photographs the
Speaker 1: like of which you probably never before. You need to
Speaker 1: prepare yourselves for the trauma. I've seeing, for example, the
Speaker 1: inside of somebody's head. And I will tell you when
Speaker 1: this material is coming, but be ready for it. I think,
Speaker 1: as I'm saying those things, you know what use is that.
Speaker 1: But at least they know it's going they can sort
Speaker 1: of prepare themselves to some degree. But it's and you
Speaker 1: look at the jury when the photographs are produced and
Speaker 1: the looks on their faces, and it's horrifying. Yeah, and
Speaker 1: the stuff is We've become a newer to it, but
Speaker 1: it is horrifying. Yeah, no doubt. Now I want to
Speaker 1: change tech just to something that has become a bit
Speaker 1: dear to my heart, although I'm not totally across the detail.
Speaker 1: So there's a barrister in the UK whose name is
Speaker 1: Raj I've men on case he was defending I suppose
Speaker 1: a pro Palestinian demonstrator at some installation in the United
Speaker 1: Kingdom of organization that is alleged to be supplying military
Speaker 1: armaments or military materials to Israel. She was one of
Speaker 1: a number of people charged with criminal damage at the premises,
Speaker 1: and Rajiv Menon was her counsel on the trial. Where
Speaker 1: As the trial was coming to a conclusion, the judge
Speaker 1: apparently made all sorts of orders about all directions as
Speaker 1: to what defense counsel could say to the jury and
Speaker 1: their final addresses. And it would seem that the barrister,
Speaker 1: concerned on one view, didn't comply with those directions and
Speaker 1: went to the jury telling them, among other things, about
Speaker 1: the principle of jury equity, for example, the juries are
Speaker 1: entitled to quit regardless of how strong the evidence is,
Speaker 1: and that they can prefer their own views to anything
Speaker 1: that the judge might say in the result. A bit
Speaker 1: like happened in Lewis and Ogden. That's a case that
Speaker 1: you might remember. The judge took the view that the
Speaker 1: barrister had committed a contempt and endeavored to either deal
Speaker 1: with the barrister summarily or refer it off to another
Speaker 1: judge to deal with it. Summarily an appeal is now outstanding.
Speaker 1: In fact, an appeal has been heard and a stay
Speaker 1: imposed until the Appeal Court confinedly determined how that matters
Speaker 1: to be disposed of. Lewis and Ogden was a case
Speaker 1: decided by the High Court in the early nineteen eighty
Speaker 1: about the Collingwood jump. About the Collingwood jumper, Tony Lewis
Speaker 1: told the jury in the course of his final address
Speaker 1: that you might think that a judge is in the
Speaker 1: nature of a football umpire. Not so. And you know,
Speaker 1: how would you feel if you suddenly saw an umpire
Speaker 1: in the game that you were watching wearing a Collingwood jump. Well,
Speaker 1: he picked the right team to pick up. He did.
Speaker 1: Harry Ogden, who was the trial judge, got very cross
Speaker 1: and dealt with, or attempted to deal with Tony Lewis
Speaker 1: for contempt. It went all the way to the High
Speaker 1: Court and the High Court. Lewis won. He won. He won.
Speaker 1: An important thing about it was that the High Court
Speaker 1: made some observations about when you can deal with someone
Speaker 1: for contempt summarily, that is on the spot and really
Speaker 1: only in circumstances where the security of the court needs
Speaker 1: to be protected. By doing so otherwise, as in this case.
Speaker 1: I think this barrister in England is making the same
Speaker 1: point that if you think I contempted a case, committed
Speaker 1: a contempt, you should you should refer it off to
Speaker 1: be assessed by somebody else. Yeah, the DPP it's a
Speaker 1: disgraceful case and the UK Criminal Barrow Association are very
Speaker 1: upset about it. And I think the whole idea, unless
Speaker 1: it's absolutely clear that a barrister can be dealt with
Speaker 1: the contempt for what he says in a foreignal address
Speaker 1: to a jury in a criminal trial, is horrible.
Speaker 2: I mean, a judge, the judge, anyone who said on
Speaker 2: the dury notes, the judge talks to you last and
Speaker 2: can correct it. You know, mister Smith said this to you. Well,
Speaker 2: I didn't need to tell you that. You know that's
Speaker 2: not right. But I think that's an apport in case.
Speaker 2: It's not the only one over there. Of course, you've
Speaker 2: had those shocking jail sentences handed out to members of
Speaker 2: the Palestinian Action Group, you know, five and six years.
Speaker 1: I mean, we've got to wrap it up.
Speaker 2: But there was this week talking about that issue of
Speaker 2: Palestine and I've just had it sent to me a
Speaker 2: German court, very high German court, so sort of equivalent
Speaker 2: to our Supreme Court ruling that a comparison between Nazi
Speaker 2: Germany and Israel's conduct is not hate speech in Germany,
Speaker 2: which is a very significant decision because the Germans, of
Speaker 2: course are acutely sensitive on this issue for obvious three ofsourse.
Speaker 2: And there's also that's odds with the definition of anti Semitis. Yeah, yeah,
Speaker 2: that's right, so we might come back to that. And
Speaker 2: also this week too, I think an academic at the
Speaker 2: University of Bristol who was expelled or sacked for Propealestine
Speaker 2: in remarks the universe. He won and in the university
Speaker 2: appealed and lost the appeal. So there are a couple
Speaker 2: of good freedom of speech issues coming up. And also
Speaker 2: of course Pauline Hanson losing any chance she had of
Speaker 2: appealing that decision against the Labor senator. Yeah, telling you
Speaker 2: to go back to Pakistan.
Speaker 1: Ye. Well, well, I'm hoping to get reel Camie Jones Casey,
Speaker 1: who's the current president of the Criminal Bar Association in
Speaker 1: the UK, on for a discussion about this case when
Speaker 1: the case has been finalized. So excellent something to look
Speaker 1: forward to all right, Greg le go Okay, see you soon.
Speaker 1: This episode was produced by Bravecasting Media, edited by Michael Tanker.
Speaker 1: Original music by Justin Humphries from Phoenix Sound Studios. This
Speaker 1: podcast is recorded on the lands of the Orangerie people
Speaker 1: of the Coolan Nation. We pay our respects to their elders, past,
Speaker 1: present and emerging. Thank you for listening. See you next week.