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