Conversations 9: King’s Counsellor

With a legal career spanning more than four decades, Tom Percy gives his unvarnished opinion of life on the coal face. He bluntly discusses the very realistic hurdles which remain for Amy’s family wanting the truth of her death to come out and what he considers the primary contributor to increasing violence affecting every part of our society.

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Episode Transcript

Speaker 1 (00:00):
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.

Speaker 2 (00:28):
Hello, welcome to Conversations nine The Truth about Amy. With
this week Tim Clark is back from his trial.

Speaker 3 (00:36):
Good a, Tim, gooday.

Speaker 4 (00:38):
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.

Speaker 3 (00:52):
So I'm very glad.

Speaker 2 (00:53):
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

(01:14):
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

(01:36):
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

(01:59):
a resume, Tom.

Speaker 3 (02:00):
And that's not behalf of it.

Speaker 4 (02:01):
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.

Speaker 5 (02:16):
I don't know where to go from there.

Speaker 4 (02:18):
I might leave now, Yes, it can only go downhill
from here.

Speaker 2 (02:23):
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

(02:46):
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.

Speaker 4 (03:02):
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.

Speaker 3 (03:19):
But so, I mean, what do you make.

Speaker 4 (03:21):
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.

Speaker 5 (03:35):
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

(03:55):
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

(04:18):
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.

Speaker 4 (04:40):
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

(05:03):
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

(05:25):
just sort of corral everyone to convince them that there
was something there that.

Speaker 5 (05:30):
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

(05:51):
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

(06:14):
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

(06:36):
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

(06:57):
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.

Speaker 4 (07:15):
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

(07:36):
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

(07:58):
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

(08:20):
did right at the start, he is like pulling teeth.

Speaker 2 (08:22):
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

(08:46):
think I'd be very surprised if those particular officers changed
their minds, and they were some of them quite senior ranking.

Speaker 5 (08:54):
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

(09:17):
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.

Speaker 4 (09:31):
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

(09:55):
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

(10:18):
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.

Speaker 5 (10:30):
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

(10:53):
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

(11:14):
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.

Speaker 4 (11:32):
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

(11:52):
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

(12:13):
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.

Speaker 5 (12:34):
Might make, so you don't get to see them.

Speaker 4 (12:36):
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.

Speaker 5 (12:52):
I'm all for transparency in the justice system, but I
don't think you can revisit every last decision as to
what happened.

Speaker 4 (12:59):
They would make a lot of those decisions, hundreds of
those decisions every month.

Speaker 5 (13:03):
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

(13:24):
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

(13:46):
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

(14:08):
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.

Speaker 2 (14:27):
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.

Speaker 5 (14:42):
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

(15:02):
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.

Speaker 4 (15:11):
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

(15:31):
the alleged crime, whatever it might be, I wouldn't think
that those interests are weighed in their favor.

Speaker 5 (15:37):
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.

Speaker 4 (15:48):
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.

Speaker 5 (15:58):
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.

Speaker 2 (16:11):
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

(16:32):
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.

Speaker 5 (16:39):
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

(17:00):
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

(17:22):
cases all go to court.

Speaker 2 (17:23):
What about homicide homicides.

Speaker 5 (17:25):
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

(17:46):
that in.

Speaker 4 (17:46):
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

(18:12):
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.

Speaker 5 (18:28):
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,

(18:50):
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.

Speaker 4 (19:01):
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?

Speaker 2 (19:13):
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.

(19:34):
What do you think of that time?

Speaker 5 (19:35):
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.

(19:55):
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.

Speaker 4 (20:11):
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

(20:36):
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.

(21:00):
So different horses for different courses. To borrow a phraseology
that Tom's much more averse too than me.

Speaker 5 (21:09):
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

(21:31):
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.

(21:51):
But if they have the option, they see you can
do this on TVA, it's no wonder that they do it.

Speaker 2 (21:57):
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.

Speaker 5 (22:14):
Rest assured the trial. You have to be present physically
for your trial. Yeah, you can't participate in a criminal
trial of video.

Speaker 4 (22:20):
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.

Speaker 3 (22:34):
And there are.

Speaker 4 (22:35):
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

(22:57):
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.

Speaker 3 (23:10):
But all all the family members, for instance.

Speaker 4 (23:13):
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.

Speaker 5 (23:26):
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.

Speaker 2 (23:41):
Now.

Speaker 5 (23:41):
Those witnesses team's talking about are only witnesses for the
prosecution of the defense. They're not the person.

Speaker 4 (23:50):
And we think Rob Owen, the DPP of Western Australia,
might get an updated brief at some point.

Speaker 3 (23:57):
But there's a third option it's very very.

Speaker 4 (24:00):
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.

Speaker 5 (24:20):
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

(24:43):
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.

Speaker 2 (25:05):
Why is that? Is it problematic?

Speaker 5 (25:06):
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

(25:28):
that's probably the difference.

Speaker 2 (25:30):
Yeah, got it, that makes sense.

Speaker 4 (25:32):
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,

(25:56):
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

(26:18):
was deceased.

Speaker 5 (26:18):
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,

(26:40):
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

(27:02):
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.

Speaker 2 (27:13):
Mental health compensation, that sort.

Speaker 5 (27:15):
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

(27:38):
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,

(28:01):
then the point would be almost an exercise and futility
other than the gratification of knowing that in some way
you'd nail them.

Speaker 2 (28:11):
Well, it's like the defamation with Bruce Lehman, right, Well, that.

Speaker 4 (28:14):
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

(28:34):
on going costs because he still hasn't paid the costs
from the trial.

Speaker 3 (28:39):
But the judge took.

Speaker 4 (28:42):
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.

Speaker 5 (28:59):
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

(29:19):
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.

Speaker 3 (29:30):
Interesting scoop.

Speaker 2 (29:39):
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

(30:01):
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.

(30:22):
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

(30:45):
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

(31:06):
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.

Speaker 5 (31:24):
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

(31:45):
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

(32:10):
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.

Speaker 4 (32:30):
By because we've been over this a few times, and
as you say, Tom, the coroner is in an invidious position.

Speaker 3 (32:35):
Sometimes because their sole purpose.

Speaker 4 (32:39):
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.

(33:00):
So do you think there needs to be a bit
more clarity about what a coroner is there to do.

Speaker 5 (33:06):
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

(33:28):
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.

Speaker 4 (33:49):
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

(34:14):
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

(34:37):
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,

(35:00):
but whether they get acted on or not, that's basically
up to the person at the other end of the line.

Speaker 5 (35:06):
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

(35:28):
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.

Speaker 2 (35:36):
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

(35:57):
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?

Speaker 5 (36:09):
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

(36:30):
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.

Speaker 4 (36:51):
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,

(37:14):
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

(37:38):
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

(37:58):
happened to her lasted for I want to say forty
years before the inquest was actually called for and when
it did.

Speaker 3 (38:06):
I mean, gosh, that was that was an absolute parade of.

Speaker 6 (38:12):
Wild accusations against politicians and dead are alive and various
police officers were implicated by sort of all manner of
witnesses and the coroner.

Speaker 4 (38:25):
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.

Speaker 5 (38:46):
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.

Speaker 2 (39:05):
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

(39:27):
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

(39:48):
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?

Speaker 5 (40:05):
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,

(40:27):
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

(40:50):
as you're going to get. And you get to that position,
then the reverse proposition opens itself up, doesn't it.

Speaker 4 (40:58):
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

(41:21):
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.

Speaker 5 (41:29):
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

(41:51):
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.

Speaker 4 (42:02):
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.

Speaker 5 (42:21):
Weeks, and that's that's the problem that the director ultimately
will have to grapple with.

Speaker 2 (42:26):
Michael barn suggested that a suicideologist provide expert advice as well.

Speaker 5 (42:31):
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

(42:53):
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

(43:14):
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.

Speaker 2 (43:22):
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.

Speaker 5 (43:42):
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

(44:04):
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.

(44:26):
That's not the slightest interest to the court.

Speaker 2 (44:27):
Why do they get rid of the committal process?

Speaker 5 (44:30):
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.

Speaker 4 (44:52):
Do you think commit all hearings should be renstall for
certain crimes or.

Speaker 5 (44:58):
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

(45:19):
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.

Speaker 2 (45:26):
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.

Speaker 5 (45:38):
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

(46:01):
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.

Speaker 2 (46:12):
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

(46:35):
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.

Speaker 5 (46:43):
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.

Speaker 2 (46:53):
Have you agreed with every decision a DPP has made
in relation.

Speaker 5 (46:56):
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.

Speaker 2 (47:09):
It's subjective, that's the problem. Law is subjective too, right?
Is a Naiven thinking that.

Speaker 5 (47:15):
At some levels at some levels.

Speaker 2 (47:25):
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

(47:46):
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

(48:08):
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.

Speaker 5 (48:19):
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.

(48:40):
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,

(49:01):
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

(49:22):
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

(49:47):
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

(50:11):
with education, It starts at home, and it starts with drugs.

Speaker 2 (50:14):
More resources.

Speaker 5 (50:15):
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,

(50:36):
you're in the remember the chance of doing something about it.

Speaker 4 (50:39):
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

(51:01):
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

(51:23):
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

(51:44):
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.

(52:07):
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.

Speaker 5 (52:25):
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.

Speaker 4 (52:47):
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,

(53:08):
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.

Speaker 3 (53:22):
Not just football players, but all of society.

Speaker 4 (53:25):
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.

(53:48):
So hopefully that is just a tiny microcosm of a
wider change that is definitely needed.

Speaker 5 (53:57):
Better or worse.

Speaker 3 (53:57):
Attitudes much better. Much about a melon. We're at seventeen,
he teaches me, He teaches me.

Speaker 2 (54:05):
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.

(54:25):
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.

Speaker 5 (54:39):
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

(55:01):
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

(55:22):
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,

(55:43):
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

(56:05):
deep so than intrenched, and I think it's getting much worse.
It's not just under report.

Speaker 4 (56:09):
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

(56:30):
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

(56:54):
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

(57:17):
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,

(57:39):
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

(58:00):
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

(58:22):
more to try and not only educate but somehow eradicate the.

Speaker 3 (58:26):
Worst effects of those drugs. But as Tom says, that's
been a generational problem.

Speaker 4 (58:34):
And it's just unfortunate this generation is using a drug
that is particularly damaging.

Speaker 5 (58:40):
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

(59:01):
get drugs under control. Particularly myth and Fatamain. Stick around
and watch this space because it's going to give us.

Speaker 2 (59:07):
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

(59:32):
or sexual assault or indeed homicide.

Speaker 4 (59:36):
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

(59:57):
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.

Speaker 3 (01:00:13):
Led off or treated differently.

Speaker 4 (01:00:16):
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.

Speaker 5 (01:00:31):
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

(01:00:53):
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.

Speaker 4 (01:01:08):
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

(01:01:31):
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,

(01:01:55):
but not ones that are that are induced by drug intoxication.

Speaker 5 (01:02:00):
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.

Speaker 4 (01:02:10):
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,

(01:02:33):
or make more serious your mental health condition. Even that
that can't be taken into account during sentencing in terms
of a reduction.

Speaker 3 (01:02:41):
Now, so yeah, to answer a question.

Speaker 4 (01:02:43):
Now, I mean it's it's it's definitely a factor in
in cases, all violent cases, including domestic violence ones.

Speaker 2 (01:02:55):
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.

Speaker 4 (01:03:03):
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.

(01:03:24):
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.

Speaker 5 (01:03:31):
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

(01:03:54):
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.

(01:04:16):
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.

Speaker 2 (01:04:35):
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.

Speaker 5 (01:04:49):
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.

Speaker 2 (01:04:58):
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.

(01:05:21):
So thank you so much no pleas things Tom