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