August 30, 2025 • 60 mins
A man charged with murder for talking angrily with his neighbour. A baby who died either by accident or at the hands of a parent. A murderer who became friends with a serial killer. Judith Fordham shares some of the most unbelievable cases of her career as a criminal barrister. And as a victim of crime herself, Judith understands more than most that becoming a criminal is sometimes as simple as a sliding door moment.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:01):
The public has had a long held fascination with detectives.
Detective sy aside of life the average person is never
exposed to. I spent thirty four years as a cop.
For twenty five of those years I was catching killers.
That's what I did for a living. I was a
homicide detective. I'm no longer just interviewing bad guys. Instead,
I'm taking the public into the world in which I operated.
(00:23):
The guests I talk to each week have amazing stories
from all sides of the law. The interviews are raw
and honest, just like the people I talk to. Some
of the content and language might be confronting. That's because
no one who comes into contact with crime is left unchanged.
Join me now as I take you into this world.
(00:46):
Today we took a deep dive into the world of
crime and courts. We form a criminal barrister do for them.
Judith gave us good insight in what goes on when
someone finds themselves on the wrong side of the law.
We talked about some of Australis cases, including a man
who is charged with murder for simply speaking angrily with
a neighbor, and getting an acquittal for a client who
(01:08):
stabbed a person. Judith works for both the defense and
the prosecution, so in that regard, she has a unique perspective.
An expert in forensic science and law, you'll see why
she's a good person to have on your side. Now,
I've never sat down with a criminal barrister who hasn't
got a crazy story to tell about the world of crime.
As you'll hear, it was an interesting and fun chat
(01:30):
with someone who has a very quirky view on life.
Judith for them, welcome to I Catch Killers.
Speaker 2 (01:36):
Thanks for having me.
Speaker 1 (01:37):
Well, I'm very excited about sitting down and speaking to
a barrister and there's a former cop that's not always away.
I must admit. Yeah, your type used to terrorize me
in court many a time in the witness box. But
it's all part of the justice system, isn't.
Speaker 2 (01:56):
It's called keeping the bastards honest.
Speaker 1 (02:00):
Well that's the I think that's fair enough. Now, you
worked in both defense and prosecution, so you've got a
good perspective from both sides. I'm going to ask you
the obvious question. I know you're sick of this question.
When you're representing someone that you know or you believe,
I should say believe is guilty of the crime and
(02:21):
you're representing defending them. How do you feel how do
you navigate your way through that.
Speaker 2 (02:26):
I'll give you the long answer. The short answer is,
I'll give you a short answer. First, is that it's
not my business. That's the business of the magistrate of
it's magistrate's court or the jury if it's a jury trial,
that's what they do. I don't do that. That's not
my job. I'm a mouthpiece or a voice for whatever
(02:46):
position there is. The longer answer, though, is that I've
learned by bitter experience that I'm not always right. I
know that may come as a surprise to you, but
actually not.
Speaker 1 (03:00):
That that's a first for former barrister to come and
come out and say.
Speaker 2 (03:06):
At least you didn't say it's first for a woman,
because then I would have reached down here and strangled you.
Speaker 1 (03:12):
I'm stupid, but I'm not brave.
Speaker 2 (03:15):
Yeah. So, I mean, I've had experiences where I believe
my client is as guilty as sin, and you know,
things have unrolled where they're actually not and I was
completely wrong, And that's taught me a big lesson, that
is it really isn't my business. I mean, if someone
if the evidence is stacked against them, I'll say to them, Look,
you know, don't be stupid. You need to plead guilty
(03:37):
because if you put everyone through a trial for no
good reason, you know, you get the books thrown out
you're basically for doing that, or you won't get your
brownie points for putting your hand up basically. But no,
I've learned I'm not always right.
Speaker 1 (03:49):
Okay, Well, it's probably a good way to approach it.
And you've certainly you've certainly had some interesting cases in
your time. And before I start talking about them, the responsibility,
whether it be prosecuting or the probably you feel the
pressure even more when you're defending someone. How do you
deal with that because your decisions and your strategies and
(04:13):
the way that you, let's say, defend the case could
determine this person's the future of this person's life. Literally.
Speaker 2 (04:19):
Yeah, look, it's it's not easy. I remember the things,
you know, mistakes I've made, and I'll remember them forever.
I don't sort of, you know, lie back and sort
of go oh god, I'm good, you know, and feel
good about my victories, you know, no matter what side
I'm on. But you know, it's a huge responsibility in
(04:40):
the day. You know, you kick back and relax and
believe that you know everything is the day, you probably
should stop doing it. So, yeah, I still do sleep
at night, but maybe that's just me.
Speaker 1 (04:53):
Yeah, well I suppose. And in talking to you the
other day you said about the preparation, you don't approach
it with a flippant attitude that now I can do this,
it's easy. You put the effort into it.
Speaker 2 (05:05):
Well you have to, and I mean it is all
in the preparation, but there's also those unknowns that you know,
you've got to be able to go with the flow.
You've got to be able to if something changed. You
can't plan it out and say, all right, these are
the questions I'm going to ask, this is what I'm
going to do, this is what the person's going to say.
You're not in control of what they're going to say back,
and so you've got to be able to be, you know,
(05:27):
really flexible. And that's something you've got to trust your gut.
And it must have been the same in your job.
You have to trust your gut, but you've got to
also be able to abandon what you're going to do
and go huh, this has taken a new turn, right,
I'm just going to have to go with it. I mean,
I've had that experience in I remember a particular trial
(05:52):
which I know we're going to talk about about at
some point, which is a shaken baby case where something
happened completely out of the blue, and you know, I
just sort of waltzed in and asked random questions not
knowing the answer and saw what developed. And that's frightening there.
Speaker 1 (06:10):
But part of the job, you said, I might have
an understanding of I suppose it's like the interview room.
And I was taught and I try. I learned from
people that mentored me that you've got to be flexible
in your thinking. Like if you're going with a strategy
for an interview and then it could take a left
hand turn that you didn't expect, You've got to think
(06:31):
on your feet and be flexible in where you take
the conversation.
Speaker 2 (06:35):
Well, you can miss important stuff if you're stuck to
a particular line, and if you miss it, it could
do a really some real damage to finding out the truth.
And I know that that can sometimes be a flexible concept.
I suppose, and you know the justice system sadly, isn't
(06:57):
really about finding out the truth. It's about two sides.
It a battle, and you know somebody wins on the day.
But is that the same as getting to the truth?
And I think that's the same in police interviews. I
mean I spent a fair bit of time training at
people at DTS Detective Training School, and you know, I'd
be saying to them, look, just because you believe, you
(07:19):
know this person did it or this is how it happened,
you've got to keep your mind open because you could
miss something. And that was sometimes hard for people to swallow,
because you know, we know he did it or we
know that this is how it unfolded. And sometimes the
only way I could make that palatable for them would
(07:40):
be to say, well, some smart ALEC defense lawyer might
come up with some other idea and you better be prepared.
So isn't it better to be able to say in
the witness box? Yeah, yeah, we thought of that. We
thought of that, but you know we checked it out
and it didn't pan out, rather than oh I didn't
think of that, because you know, having that sprung on
you in court probably isn't very pleasant, and it might get.
Speaker 1 (08:03):
Right, Yeah, well, I think from a police officer's point
of view, and I've seen it. I've probably done it
myself if you get stuck into a narrative in the
witness box and you're not flexible in your thinking in
under cross examination. And I've seen some detectives dig holes
for themselves by just sticking to their narrative and not
you know, you, as a defense barrister could say, well,
(08:23):
is it possible such and such could happen, and the
detective no, well, it is possible, And you've got to
got to be a little bit considerate of the way
that you answer and not lock yourself in and just
be so stubborn that yeh, you're right, they're wrong. And
it is a theater the court too. I've got to
say that you've got a jury. The jury are forming,
(08:44):
and I can't wait till we have the chat in
this in the podcast about your experiences examining juries. But
the juries are forming opinions, and they're forming very human
opinions about the way the witness is holding themselves, how
they're responding to the answers. So there's a whole range
of things that come into the mix, isn't it.
Speaker 2 (09:02):
Oh, well, you lose your credibility. You sit there like
a buffhead and don't accept something which is obviously a
perfectly resent proposition. But you need to take it back
too and consider those alternatives in the interview process and
the investigation process so that you don't end up in
court going you know, no, that's not possible, when it
clearly is, because nothing else that comes out of your
(09:24):
mouth will be believed.
Speaker 1 (09:25):
Then I like your facial expressions there.
Speaker 2 (09:30):
I used to get into trouble and court from judges.
They used to tell me to stop pulling faces.
Speaker 1 (09:34):
Like I'm just I'm picturing being in the witness box
and they answering the question. I can see the impact
it would have. I want to ask about. There's a
lot of cases I want to talk about. I want
to talk about the person that was charged with murder
for basically talking in an angry, angry tone to his neighbor.
(09:54):
Can you just talk us through that case. I think
that's an interesting case in it again, it's a lesson
forever one, isn't it.
Speaker 2 (10:01):
Well, yeah, because you know you think it can't happen
to me or your friend or your mate, or your
son or your daughter or whatever. You can find yourself
tied up in the criminal justice system and charged with
the crime. For example, even though you know you didn't
think it possibly happened to you. It only happens to
other people. And this particular case was a guy who
(10:23):
had a a pretty good party at his place, you know,
barbie out the back and bit of noise and some
loud music, and it went on and on and on,
and the neighbor got very upset about it. Understandably, by
about four am, the neighbor was pretty unimpressed. I think
he had worked the next day, and he complained, and
(10:46):
he called the cops a couple of times, and you know,
the music will go down the cops or ive and
go back up as soon as they left. You may
have attended jobs like that back in the far distant past,
I don't know. And in the end, seven point thirty
in the morning, it's still going and the neighbor came
over and you know, had an argument with this guy
(11:08):
and it came down to it came down to a
bit of push and shove. Actually that went both ways.
And basically after some time of this, you know, argie, bargie,
that's those are lawyer words. By the way, I hope
you can follow.
Speaker 1 (11:27):
Me legal terminology.
Speaker 2 (11:29):
Yeah, the guy had a heart attack, as in, the
neighbor had a heart attack. My client, because he became
my client, found himself charged with murder. How can that
be murder? How could that be? And the prosecution theory
was that the stress had caused this guy to have
a heart attack, and my client was therefore somehow responsible.
(11:56):
Now you might sit back and possibly even put your
own defense hat on there and think, well, hang on
a minute, how you know, aren't you supposed to actually
mean to kill somebody if you charged with murder? Isn't
that sort of basic one?
Speaker 1 (12:13):
Well, definitely that you need that and the proofs of murder.
Speaker 2 (12:16):
Yeah, but they said their attitude was the other side,
that he should have known and therefore that becomes a murder.
He should have known this could happen. My argument from
the defense point of view is, firstly, he couldn't have known.
The guy wasn't walking under the sign in his chest
saying if you argue with me, I will have a
(12:37):
heart attack. And what's more than the important thing for
me was the medicine aspect of it, and that is,
did he in fact cause this guy to have a
heart attack, or was a guy going to have a
heart attack anyway, even if he'd just woken up in
the morning and just had his wheaties. And I don't
mean to make light of someone's death, but you know,
we're in a situation where the stakes are very high,
(13:00):
and this chap could be in jail for a very
very long time. He's got to be, in a sense
morally guilty as well. In the end, they called a
cardiologist and to give evidence to say that my chap
had mediically, scientifically caused the heart attack. And this cardiologist
(13:23):
did give that evidence, and he'd given this written opinion
which said, no, without doubt, you know, this chap caused
the heart attack. And reason he caused it is that
stress can cause heart attacks. And this guy, the cardiologists
professor or whatever he was, had cited a whole lot
(13:44):
of studies. He'd said, look, you know, in New Zealand,
after the earthquake, a whole lot of people died of
heart attacks, or after bombings in Iran, a whole lot
of people died of heart attacks, and that proves that
stress causes heart attacks. So I started asking him what
I thought were pretty obvious questions, like in New Zealand
after the earthquake, somebody comes in dead and they don't
(14:07):
have a mark on them. Do they actually do a
post mortem and check if the heart attack or do
they just tick the box saying heart attack or technically
myocard you'll infection. I can say the words too, and
of course they don't. They're too busy saving the living,
they're not you know, so it's a ticker box thing.
Do you actually know? And of course the answer that
has to be no, we don't know. Well that doesn't
(14:28):
do a lot of good for those studies, does it.
But we actually got to a point of complete ridiculousness,
if there's such a word, because all these studies said, look,
it looks like stress may or cause heart attacks. You know,
we don't know for sure, and we can't do an experiment.
We can't take you know, two thousand people, stress them
all out and find out how many of them die?
Speaker 1 (14:49):
See who dies?
Speaker 2 (14:50):
Yeah, there's certain ethical problems with doing that. So you know,
all these studies say, we don't really know, it looks
like it might. I said, how can you then turn
around and say, in this specif situation, my client caused
this specific person to die, particularly because we found out
he had pinpoint diameters in his arteries, in his heart.
(15:11):
He was basically walking time Bob. Anyway, he could have
died at any point he had undiagnosed coronary artery disease.
And this guy says, oh, no, we do know all
these people who've written these papers. A line said, what
this is where you have to abandon the script because
I had no idea he was going to say that.
I said, In fact, my next question was, you're not serious.
Speaker 1 (15:31):
This was all in front of the jury. It came
down to a jury decision your client.
Speaker 2 (15:36):
Yeah, and they did ac quit him and bluntly, so
they should have. And I think probably most people would
agree that really is a bit rough to charge someone
with murder. They could have charged him with, you know,
thumping the guy, or although that could have gone both ways,
or you know, is there such a crime as public disturbance?
I don't even know, but they could have charged with
(15:58):
something else but murder. Get break.
Speaker 1 (16:01):
Yeah, well, the case you as you were talking through that,
I remember an early case that I did where some
young fellas broke into a house and they weren't very
good crooks. They broke in the house to steal the
dudes to the house. I was sixteen and seventeen so
they could sell the house. They hadn't really thought I
thought it through. I know, it's an elderly man that
(16:22):
lived there on his own, breaking the house. We're going
to steal the dudes to the house, and then we're
going to sell the house. Great plan, guys. They broke
him through a window at night, he woke up, they
disturbed them, They pushed him, and he died. They panicked,
They took his body away, dumped him in a shallow grave.
It was dug up by dogs. Police called in, so
(16:43):
you've got the actions after. We charged those guys with murder,
but it came down to the medical evidence that he
was literally a step away from having a heart attack,
and that was the post more than he died as
a result of a heart attack. We never got them
convicted of murder. It didn't get to get to trial stage.
It was accepted that unlawful disposal of the body, break
(17:07):
an enter or assault, that type of thing. But yeah,
that's a medical evidence. And when you talked about you
shouldn't make assumptions or believe you know the true story,
Like as a detective hole that there's a sign of entry,
the house has been rated through, things have been stolen,
the body's been dumped in a shallow grave. You're thinking murder.
(17:29):
But when it all played out and all the evidence
came out and you look at it, and I wasn't
disgruntled with that decision to go down that path. I
thought it was the right decision. They didn't break in
there with the intent to murder him. They certainly didn't
think he would die as a result of them breaking
into the house.
Speaker 2 (17:46):
Yeah, yeah, I mean you've got to take step back
and say, in the end, that was probably the right result.
You know, do them for burglary, do them for disposing
of a corpse or whatever it is, and that would
feel to be about the right result. I mean I
had one exactly the same way. I was approached by
a chap something like forty years after his convicted and
did his time for murder, and he'd broken in when
(18:08):
he was a young bloke. And again somebody died, and
this chap died about twenty minutes later of bleeding ulcer.
And back then the received wisdom was stress causes ulcers,
but of course we now know it doesn't. In fact,
there's two Western Australians won the Nobel Prize for finding
(18:28):
out that, in fact, it's a bacterium called helic Go
back to pylori. There you go. That's two more big words.
Speaker 1 (18:36):
You're throwing out the big medical term. So I should
have had a dictionary, a medical dictionary here in front
of me. I won't understand what you're saying.
Speaker 2 (18:43):
Oh, I don't worry. I'll explain it to you. The
question is where you know I'm telling you lies or not.
But this guy, no, he died of a bleeding ulcer
and he was convicted of murder, but he wanted to
clear his name. Way way way down the track. He'd
done his the entire sentence, and he wanted to join
(19:03):
the army. For example, they wouldn't let him join the army.
I found him some help and we got an affidavit
from the Nobel Prize winner saying this, and eventually his
name was cleared. I didn't see it all the way through.
I just didn't have the resources to do it personally.
But he was looked after and his name was cleared.
(19:25):
But interestingly, the forman of the jury actually wrote a
letter later saying, we wish we'd had more medical evidence.
We understand there's some word about if you like that
stress doesn't cause ulcers. We would have liked to have
heard about that, but we didn't have it, so we
had to convict on the evidence we had. And that
takes me back to that point I made initially, and
(19:46):
that is it's a battle, and you don't necessarily as
a juror have the evidence you might have wanted to
have because each side decides what they're going to dish up.
Speaker 1 (19:58):
Things that's in my career that we assumed that's a
given that like blood splatter patterns, ballistic evidence, like a
lot of that. Now we're looking at and it's not
as and exact sciences what we believed at the time
or what science believed at the time.
Speaker 2 (20:13):
Well ballistics, does you know if you're talking about angles
and things, Yeah, that works on physics, and bloodstained pattern
analysis or blood splatter as some people want to call it,
that also abides by the rules of physics. But things
like fingerprints, which were you know, I used to tell
(20:35):
my clients, and I feel really bad about this now.
I used to say, look, they've got your fingerprints. They've
got you better plead guilty. You know you're stupid. If
you don't read my lips, you're four letter word, which
I'd probably better not say. But you know the one
I'm talking about.
Speaker 1 (20:49):
As I told you before, I lived over in Western
Australia for a while. I know it's used as a
punctuation mark sometimes.
Speaker 2 (20:56):
Yeah, but I mean when you're communicating with your clients,
you've got to be able to commit in their language.
So yeah, But fingerprints, I now think are pretty much
equivalent to the reading of entrails of goats in ancient
Greece to tell the future someone who's comparing fingerprints. They
have this method, I mean, don't get me started, or
(21:16):
do get me started, whatever you want. They have a
method called ACEV. You probably know about it, and it
just it's an acronym. It stands for what they do.
But they say, if you follow the method, you can't
make a mistake. Now that is ridiculous. And they say
they have a zero percent error rate, And to me,
(21:37):
that loses all credibility because if you're looking at a
fingerprint from a crime scene, it's not going to be perfect.
The baddie. That's another technical word. The baddy won't have
stood there and rolled their fingers on the window carefully
to get perfect fingerprints. It'll be sparched. It'll be open
to interpretation. Interpretation. That's where the human element comes in.
(22:00):
And if you want this to be the person you've
been told, for example, it is the guy we caught,
we just need him identify, We need a result. We
need you to match these. You're going to be internally
motivated to match them, and you're going to explain away
any apparent differences. And I've actually got a transcript of
(22:20):
a fingerprint Chap who actually said to me, if these
don't appear to match, I can probably explain it by
smudging or an artifact or something. If they don't appear
to match, is it possible it's actually not the same person.
Speaker 1 (22:35):
Hey, that is a concerning comment to make in the
witness box.
Speaker 2 (22:40):
If they don't, I can explain it away.
Speaker 1 (22:44):
Were you involved in that court matter? How long was
that person kept in the witness box after making a
comment like that.
Speaker 2 (22:51):
Well, actually had pretty much said all he wanted to say.
And you know that The really sad thing is that
often these guys are believed anyway because people watch crime
shows and fingerprints all they've got you, you know, and
he's the expert. And people are not critical enough, be
(23:13):
it prosecutors, be it jurors, they're just not critical enough.
There was a case in the US where the judge
actually didn't let the finger print evidence in because you know,
to be an expert, you've got to vault over a
certain hurdle. You've got to show that you know what
you're doing. You've got to show that your air of
expertise is reliable, that it's basically worth you know. I mean,
(23:37):
I've had people try to give iridology evidence where you
can tell what's wrong with people by looking at the
iruses in their eyes, and they've actually got in and
judges let that in. So yeah, yeah, I know. But
a judge in the States actually threw this evidence out
and came under an enormous amount of pressure, as in
finger print evidence came under an enormous amount of pressure
(23:58):
from the system and ended up reversing is ruling because
we can't have that, we can't have fingerprint people not
lad in because after all, they've been allowed to give
evidence from time immemorial, so they must be right.
Speaker 1 (24:11):
And I would imagine there's a reluctance there too. I
can see that problems were done because that would open
up a lot of cases that would have to be revisited,
and a lot of costs and all sorts of things.
It would come in the play that would come in
the play.
Speaker 2 (24:27):
Look subconsciously, I'm sure it does.
Speaker 1 (24:28):
Yeah, Well, you talk about from a police point of view.
When we're using the experts, if it's a medical expert
or whatever, we're not informed enough to disagree with them. Now,
be the fingerprint expert or forensic science. When DNA came
into we haven't got the skills to dissect we're getting
we're looking for an answer. We present the information that
(24:50):
comes back with an answer, and that's accepted at court.
Speaker 2 (24:54):
Well, hey on a minute, why haven't you got the
skills to dissect it? Why can't you ask questions? Why
can't you approach it?
Speaker 1 (25:00):
Go?
Speaker 2 (25:01):
Is this gospel or isn't it? I mean, lawyers have
to learn those skills. If you're prosecuting, if you're defending,
you've got to be able to analyze it. Why can't
the investigators learn those skills?
Speaker 1 (25:13):
True? True, But if we're putting ourselves up, we're not
the experts. And if we got into got into the
witness box and said we're an expert when we're not,
that's going to cause a problem. So we go to
the experts. I think mistakes are often made. You've said
with you know, we can make this fingerprint or justify
why this fingerprint's not matching. I think from a policing
(25:35):
point of view, what I tried to do was always
careful with what information was provided to the expert. We
gave all the information so independently they're looking at the evidence.
But look, it's a tough it's a tough thing. And
that's where the court's not perfect in the weight that's
placed on people that present themselves as experts.
Speaker 2 (25:55):
And don't forget the jurors have to understand this and
could it critically. They're told by the judge, oh, you
don't have to accept the expert evidence. But by golly,
it's a brave duror who says, well, I think, you know,
this guy's got a head full of rocks, and you know,
I'm not going to accept what the expert says. So
they carry like an enormous amount of weight. There's a
(26:16):
huge responsibility on them to get.
Speaker 1 (26:18):
It right most definitely, and the.
Speaker 2 (26:21):
Jurors have got to be able to follow that instead
of you know, switching off. I mean it also goes
with all sorts of other complicated evidence, like if you've
got a check fraud, for example, where there are three
hundred or three thousand checks, you're going to sit there
as a juror while they go to every single check.
I'll probably showing my age. Actually there's no checks anymore,
(26:41):
aren't they.
Speaker 1 (26:43):
A dishonored check? Yeah? I forget what cheeven section that
was in the Crimes Act, But yes, I know what
you're talking about. That's how detectives, that's how we learned
our trade. To start with you, the person that had
just come into the detective's office was always the one
that had to chase up the dishonored check. And yeah, yeah,
(27:04):
solve that. But yeah, that's not it's not a current crime,
I'd say, but I understand what cuter fraud? Let's okay,
let's be contemporary. Yeah, yeah, why did you get into law?
Speaker 2 (27:18):
This has a bit embarrassing nothing you know noble at all.
I was a single parent, I had a science degree,
and I had what I call her the ten lost
years where basically having children and having a completely messed
up life split up with Yes, I have an X
(27:40):
or two as well.
Speaker 1 (27:45):
I'm not sitting here in judgment. Trust me. It happens, it.
Speaker 2 (27:49):
Does, doesn't it. Yeah, you make the best decisions you
can And what is it Mary in haste and repent
at leisure. But anyway, that's another podcast too.
Speaker 1 (28:01):
What went wrong with the marriage? It's a long story.
Speaker 2 (28:05):
Yeah, But anyway, so I was there with Yeah, I
broke up when I was pregnant with my fourth child.
So I was there with three children under five and
one not much older than five. What am I going
to do now? Do I sit on supporting parent benefit
as it then was till the youngest one's eighteen? Or
(28:27):
do I try and do something useful? And it was
back in the era when tertie education was free for
a first degree. But I already had a degree. That's
why I say I had science degree. I had a degree.
So am I going to get funding to learn anything else?
Only if you do law, that's the only second degree.
The government would basically support you through and let you
(28:49):
let you do. I think most of the big people
often did you know arts law or commerce law? Or whatever.
So that's why I did law because it was the
only one that the government would pay me to do.
Speaker 1 (28:58):
It was they or learn Mkarami and who says solicitors
are only motivated by money and.
Speaker 2 (29:03):
Plus crime doesn't pay either, So I got into crime
and it doesn't pay for the lawyers.
Speaker 1 (29:08):
Are exactly where'd you grow up your childhood?
Speaker 2 (29:12):
Canber, but don't hold that against me.
Speaker 1 (29:15):
Explained that he just did. Explain explains a lot. So
you did your science degree? Is that where you managed
to with the information you got from that? When you
you've got those experts in the witness boxes, a solicitor
and barrister, Is that where you could match them when
they were talking?
Speaker 2 (29:34):
It helps. It helps a lot. And the thing about
science is that science always admits that it's uncertain, So
you know, with the science attitude, you have to always
be trying to prove yourself wrong. That's that's how science works,
which is a bit different from you know, we know
(29:58):
he did it, so let's gather the evidence to if
he did it. Scientists will never do that, So it
helps to be able to understand that mindset, and to
be quite honest, I think it's a more healthy mindset,
then let's gather the evidence prove he didn't. Let's ignore
or explain away whatever doesn't fit our worldview. So it
helped me be able to deal with the science and
(30:19):
particularly help me know when the wool was being pulled
over my eyes, because just because someone's a scientist doesn't
mean that they're necessary, right, or you motivated by things
other than the truth. So yeah, it did help a lot.
Speaker 1 (30:34):
Yeah, I would imagine that under those precious situations in
those trials, when the scientists or the expert evidence comes
in and talks at the level he or she believes,
no one understands, so they're not going to be questioned,
then you hit them with the hard questions. But like
a scientific approach, I know, doing external studies a degree
(30:56):
for criminal investigation. That was one of the one of
the things that they promoted, a scientific approach to criminal
investigations in that you've got to fact check the information
all the line that you're going down. And I was
taught that by good detectives too. You don't just follow
this lead and not explore other options. So it's the
best practices in the way to approach a criminal investigation
(31:19):
as well.
Speaker 2 (31:20):
If you don't you know, you can cause some serious injustice.
And it's been all sorts of celebrated cases where someone's
been cleared later because of the blinked approach and the
way I used to when I was doing detective training,
the way as in training detectives, I used to get
(31:40):
it pass because a lot of them would take the
other attitude, no, no, no, we know he did it.
We already know he did it. We've just got to
prove it, and that can lead you down the wrong path.
I used to say to them, look, check this out anyway,
because you might you know, I didn't say to them,
you might accidentally get it right, but at least you'll
have the answer. And I think i've you know, I've
(32:01):
said that before, and that was the way to sneak
it past the people who were inclined to have a
blanket approach. But also it's one of the few places
the law actually takes a science approach, because if you've
got a situation like a circumstantial case where no one
actually saw the deed happen, and you gather all the
evidence and if the defense I'm saying this now from
(32:23):
a prosecutor's point of view, if the defense comes up
with another explanation for all that evidence that's reasonable. You know,
it's not a little green man from Mars came down
and did it. You know, it's something that's not fanciful.
The judge has to say to the jury, if there's
a reasonal possibility, is there's a reasonable explanation for these
facts other than the guy did it? And I say
(32:44):
guy advisedly, I'll tell you why in a minute, but
other than the guy did it. You have to prefer
that because that's basically called reasonable doubt. So the law
takes the science approached it. And look, the reason I
say guy, and I often call the criminals men is
that far more men are convicted of crimes than women,
(33:06):
which either means men are inherently more evil or worse
people than women, or it means women are smarter and
get away with it a lot more. You can choose
which explanation you prefer.
Speaker 1 (33:20):
Was that a question or are you making a statement?
Because that was my place in the witness box. If
someone big statement like that, I'll sit there and go
But you haven't asked a question.
Speaker 2 (33:30):
Yeah, and that jury will think you're being a little
smart alec then.
Speaker 1 (33:33):
And you've got to be delicate, but exploring another hypothesis
for a crime. Some of my I'd say the proudest
moments in the witness box where I really felt I've
done my job is when am barrister like yourself is gone.
Have you considered this? And as you get more experience,
you let them. You look slightly nervous, yes, and you
(33:56):
do your little roll your eyes and all that, and
then well what did you do? And then well, there
was twenty statements taken in regards to that line of inquiry,
and we came to this conclusion based on the line
of inquiry and the evidence. So you've got to do
that because otherwise it's too easy to exploit the police
case or the prosecution case if you haven't pursued alternative
(34:19):
possibilities of what happened in the crime.
Speaker 2 (34:21):
A good prosecutor will ask you, because the good prosecutor
will consider those possibilities because they know or should know
they're going to be raised, and they will ask you
before court did you look at this? And they'll even
say to you or ought to if it's well before
court and the preparations happening in a timely manner, why
don't you go and check this out because you know
(34:44):
this needs checking out, and they'll send you off as
a copper to find out the answer to XYZZ if
you haven't. But you know, if you've done your job well,
you will have checked it out already and you'll have
the answers. But yes, you'll take advantage of the theatrical
aspect of the court room. Let the defense lawyer hang
themselves a little bit first, won't you.
Speaker 1 (35:03):
And when the defense lawyer is telling me what a
good experience detective I am, I know that I'm about
to get belted over the head with something like you're
very experienced, detective. Yes, and you've worked for a very
long time. Yes, and you've had some success. I try
to tone it down as the compliments keep coming, because
I know sooner or later you're going to hit me
(35:25):
over the head with something, and that's of court. And
I look, I spent a lot of time in the
witness box, but I got nervous before I got in
the witness box. When I'm in, their preparation was crucial.
And I think people that say that they're not nervous
or when they're going the witness box, this will be fine,
the couple of times I've let my guard down, haven't
(35:46):
done the preparation. I've got out of the witness box,
and I look at myself and think, you let yourself
down and the whole case down there where you haven't
done the preparation you need to prepare before you go
in the witness box, don't you.
Speaker 2 (35:57):
Oh yeah, yeah. That applies to every player, applies to
the lawyers too. And you know the minute you think
you know everything is the time you really should stop
doing it.
Speaker 1 (36:09):
Can I spoke to yesterday and I've said I could
raise this but with back to your your life and
gives you a perspective on crime because you've been a
victim of crime as well. What sort of do you
care to talk about that or your experiences there and
did you have to go through court based on what
(36:30):
happened to you?
Speaker 2 (36:32):
My experience and it's only been I guess, relatively recent
in my life I've been prepared to talk about this.
I've been a victim of crime, yes, more than once,
but in particular, let's call it survivor of domestic violence.
And I mean, you know, relatively serious. I mean hospital type,
(36:55):
hospital mission type domestic violence and that I think gives
me a perspective that well makes me human. It makes
me understand a victim's perspective. I just don't like that word,
but it makes me understand a victim's perspective. Also makes
(37:15):
me understand from some of my clients as a defense
lawyer that there, but for the grace of God, go
I because you know, you can look at certain well.
I can look at certain decisions I've made or parts
I've taken, where, for example, I could have turned to
drugs or alcohol and could have ended up committing crimes.
You know, I'm one bad decision away from being a crook.
(37:37):
But going back to the domestic violence thing, it certainly
taught me an awful lot about life. And I guess
in a way it's when I was eventually willing to
talk about it. I think it helped a lot of
people who heard about it because they can look at
(37:58):
me and go, she looks like a tough lawyer, and
she looks like a successful woman, and you know she
would not. I just have clients sit in front of
me saying you wouldn't understand because you're a lawyer. It's like, well,
actually I do. I don't necessarily say that, but I
do understand. I do get it. I think it's a
hell of a good base to be coming from. But
I wouldn't wish to do on anybody either. Did I
have to go in the witness box, No I didn't.
(38:20):
I have given evidence in court more than once, but
back in those days I rang police more than once.
And you probably won't like hearing this, but it was
basically that she was it's only a domestic you know,
we're not going to put resources into this. She'll probably
change her mind and not be willing to give evidence
later on. Anyway, that was the attitude.
Speaker 1 (38:42):
Yeah, I look at it. I don't mind hearing that
because we've got to reflect on that attitude. And yeah,
the problems I know here in New South Wales, I
think it's across the country with domestic violence and the
shocking end results where at least who partner's being murdered.
But yeah, we just it was society. We didn't. Yeah,
(39:03):
it was society's values as much as the police. Police
were representing society's values. And there's not a police officer
I know that one that has genuine empathy and feelings
for victims. We don't look back at those times when
we're all in uniform, where you go to a domestic
and you knock on the door, is everything right? And
(39:23):
the man that answered the door and aggressively, yeah, there's
no problems here, and we just look around the corner
and the partner would be seeing there. No, it's all fine,
it's all fine, he won't there's nothing to worry about,
and you go away knowing it's going to happen. But
that was the accepted practice, and I know here in
New South Wales we've changed, and other states where I'm
(39:45):
speaking to police, they have become very much aware of it.
It was something that we really had to get our
act together on coercive controls. It's coming in a few
states here, and I think that's a good thing, and
if police learn to use it properly, I think it'll
be a very powerful tool.
Speaker 2 (40:02):
But from a prosecution perspective, how are you're going to
prove coersive control. It's a wrong thing, and it's a
bad thing, and it's something that I think should be
a crime, But how on earth are you going to
practically prove that.
Speaker 1 (40:17):
I've spoken to a lot of people who have advocated
for it coming in and the legislation changes. And I
think that's why I preface it with educating police that
it's going to be like an investigation. Now that the
charge is being created, we're going to learn how to
use it, to use it appropriately. What I say from
a police officer's point of view, a former police officer's
(40:39):
point of view, is that we would turn up to
a domestic situation and we're looking at is there a
physical assault. If there's not a physical assault, but we're
looking at the person that's clearly terrified for whatever reason,
or under the control of this domineering person, and we
had no recourse on that. You know, we can okay,
we'll just settle it down coercive control. At least you
(41:01):
can start following up some lines of inquiry and I'll
be interested to see how it plays out when they
start charging people with it the news in and in
the courts.
Speaker 2 (41:09):
Yeah, me too. And look, going back to what you're
saying earlier about it, it's a thing about the attitude
of society. Yeah. Back when I was, you know, dealing
with that, I remember ring up a priest in the
middle of the night, you know, because I just needed
some help somewhere from somebody and he told me off,
(41:30):
you know, how dare you ring me in the middle
of the night. And that was sort of the level
of empathy that society gave me there where I was
living in a country area at the time, there were
no women's shelters. It was nowhere I could go. So,
you know, society as a whole is changing and changing,
I've got to say for the better in areas like
that anyway.
Speaker 1 (41:51):
Yeah, I think so. I think so too. It's definitely
definitely changing. You talked about the sliding door moment that
you could have gone there anyway when life wasn't going
too good. You feel in the pressure and you looked
at people that no doubt you've represented, or even people
that you've prosecuted, that life could take a twist turn
over your career, you've seen many people that fall and
(42:14):
foul of the law and criminals, and you would have
seen the worst, and you would have seen people that
have just made a genuine mistake, good people. What's your
sense of it? What in your mind makes a criminal?
Speaker 2 (42:25):
Look? This is pure amateur psychology from me, and I
got no idea whether you know I'm right or not.
But I think there's like two types. I mean, let's
look at murderers as you have. I think, honestly think
there are two breeds of murderers. There are the psychopathic
(42:46):
killers who kill for the sake of the thrill. They're
a particular type of murderer. And then there's the murderer
who and again I'm we're back to the relationship situation
where it's what used to be called a crime of passion.
I remember a particular client who he was breaking up
(43:10):
with his wife. You know, everything was very fraud and
very precious, and she had a boyfriend. And he never
had so much as a parking ticket in his life.
You know, oh, maybe he had a parking ticket, you
know what I mean. He's basically a good guy. He
was working, he you know, in his probably mid forties
or something, and you know, contribute a lot to society.
(43:31):
But he just lost the plot when you know, she
took up with a boyfriend and ended up killing both
her and the boyfriend. It was horrible crime scene because
they had I think white shagpile carpet and there was
lots of blood. But anyway, oh, the old hand next
(43:52):
to the wall phone, the bloodied handprints smudge down the wall,
and we're not doing TV show, so I'll sort of
stop that imagery now. But the point being, he's that
other type of murderer in my view. So in answer
the question what makes the criminals, sometimes, I think circumstance
means that someone will take one bad decision, which is
(44:13):
what I was talking about when I said I could
be a criminal quite easily, and it just sets you
on that path or a bad decision, for example, to
take drugs that are offered to you, and the next
thing you know, you're hooked all those sorts of things.
And then there's a person who's just really evil. And
the weird thing about murder is those two were treated
the same in the prison system, and this particular kiind
(44:36):
of mine who was convicted ended up being locked up
with an evil serial killer and became mates with him. Now,
you tell me how the prison system is actually doing
some rehabilitative good there when you lock up because they've
both been convicted of murder. So that's a very long
answer to what.
Speaker 1 (44:56):
You're right. Because people often often say to me, like
every every been a homicide detective or anyone that's committed
a murder, should be bringing the death penalty, lock them
away for life, do this, do that. I've put away
some people that have been charged and convicted of murder,
but they've made mistakes. Like when I say mistakes, it's
(45:18):
probably diminishing it. It's a big mistake if you're taking
someone's life, but quite often it was a fit of rage.
It wasn't their intent. And I'm not saying they're a
bad person per se. I'm saying what they've done was
horrific in whatever set of circumstances have brought them there.
That doesn't make them inherently a bad person.
Speaker 2 (45:39):
That's right. Yeah, Yeah, we're sitting here, you know, you
realize what we're doing. We're actually sitting here saying murders
aren't necessarily bad.
Speaker 1 (45:48):
Yeah, that'll be good, will be on social media, murder
is a fine, we'll balance it out. But then there's
a really, really bad bad murderers. And I know what
you're talking about with the prison system, and I want
to talk about that a little bit later in the podcast,
about the way prisons are approached, because I yeah, not
(46:10):
a cop now, but I think it's better to prevent
crime than to arrest people after the event. And I
think the best way to do that for the people
that we got in prison is make sure that they
come out, if possible, in a better place to fit
in to society than just bring them out there like
cage animals and let them loose in society. Again, I
(46:33):
really think we can do some good.
Speaker 2 (46:35):
There, having been to a university for crime in the
interim as in prison, which is a very good place
to learn how to do a better burglary, for example,
or be less likely you get caught next time. But
that's if you're a career criminal. And again not so
much the murder situation. And you know who we've forgot before,
I forget again, we forgot the insane murderers. Insanity is
(46:57):
another thing that does happen mental health, Yeah, the mental
health side of things. But then normally those people, if
the system works properly, will not be convicted of murder.
They'll be found insane and they'll actually be put in
a psychic psychiatric institution rather than a prison. That's if
(47:19):
the system works. And that's a big if. Of course.
Speaker 1 (47:25):
Baby deaths, shaken baby the type of scenario I talk
about here, and I always found these hardest homicides to
investigate for a whole range of reasons where you get
called to a home because there's a young infant that's
died in the place, and yeah, you look at it.
(47:46):
You've got to treat it. There's an investigation because you've
got to try and find out how this baby, this
infant has died. But it's a difficult investigation to gather
the evidence against because of people that invariably it's the
parents that have discovered their child deceased. You've got to
look at them as potential suspects. You've got to ask
(48:09):
the hard questions, and you've got to do the investigation
that gets to court. Have you had a lot of
experience in matters like that.
Speaker 2 (48:18):
Yeah, I've had some significant I mean, I guess more
experience than I'd want to have because it's in particular
with babies. It's an emotional thing and it's a hard
job to do, both from investigating and defending. You know
how emotional it can be. Yeah, you always have to,
(48:38):
from an investigative point of view, treat the last person
to see the deceased as a potential suspect. I've had
that in situations where, for example, the father's come home
to find his daughter deceased, clearly murdered, and he's immediately
(48:59):
treated a suspect and has to be initially, So he's
both grieving the death of his daughter and being treated
as a potential perpetrator. A husband coming home to find
you all, coming to the wife's place of work, for example,
and finding her deceased. He's treated as a suspect and
he has to be. You can't. You can't argue with that.
(49:20):
As a matter of logic, he has to be. But
by golly, can you imagine the experience of that person
having to be treated as a potential murderer. But yeah,
the baby death, so particularly the shaken baby, is a
really big deal.
Speaker 1 (49:35):
Still is Have you defended or prosecuted matters like that
in the courts?
Speaker 2 (49:42):
I've defended matters like that. My prosecuting's mainly been restricted
to police prosecuting, which means the lower courts for the prosecuting.
There's another story in that too, about why I didn't
do the more serious ones in it. Well, I'd be defamatory,
so I'm not going to go there. You know, I
(50:04):
like it when the cops come out of court and
shake my hands. So mate, if I'm ever in trouble,
I'm coming to you. That's what I like. But look,
going back to the there is one particular case that's
stuck with me forever and always will And even now
I'm listening to a podcast, not yours. But it's okay,
I've listened to all the yours.
Speaker 1 (50:25):
Yeah, I was just going to clarify that. That's you're
just waiting for the next one to drop a ye,
catch kills. That's okay. You have to listen to others.
Speaker 2 (50:31):
Yeah, you know, I am faithful, so it's good. Let's
not go there anyhow. Anyhow, Yeah, I was listening to
a podcast. And this topic is still like up for
debate and has been for years and years and years.
It used to be that doctors are taught in medical
(50:54):
school during say a particular election, that's probably the extent
of their training. That if if you have a child,
a baby present with what they call a triad of symptoms,
and that's retinal hemorrhaging as in bleeding in the back
of the eyeball, subdural hematoma that means bleeding under the
(51:19):
lining of the brain or bleeding on it out surface
of the brain, if you like, and basically brain swelling.
That that was had to be non accidental injury. It
had to be baby shaking now, and they would go
into court, like a forensic pathologist will go into court
(51:41):
and testify this child has been shaken, a whole array
I was going to say, gang, that's probably not the
right word. A whole array of experts. An ophthalmologist will
testify that there's this particular pattern of retinal hemorrhaging that
means it's shaken baby. The forensic neuropathologist will testify that
(52:08):
there are injuries within the brain which show that force
has been applied in a certain way. So they'll all
get up there, and then the forensic pathologists will say,
and yeah, these three symptoms mean the child's being shaken.
And they would routinely give evidence, for example, that the
force used would be the equivalent to a sixty kilometer
(52:30):
an our car accident, or throwing the child from a
second story window. Then someone started asking questions. It turns out,
for example, that no human being can actually exert that
sort of force of a sixty kilometer in our car accident.
They've been testifying because it's received wisdom, because what they
are taught in medical school, and it's not necessarily true. Now,
(52:53):
what you end up with is two sets of experts,
some who passionately believe that this has to be that
the show deliberately shaken, and some who equally passionately believe
that sometimes this can occur by accident. Then you've got
the investigator saying, how do we determine which it was?
How do we know who to charge? Do we let
all the child killers go because the science is in
(53:17):
a state of debate, or you know, we can't do that.
We can't let child killers go free. But how do
we know which is which? We have to rely on
these experts, and the experts can't agree. And I've been
at conferences, like I was a member of the American
Academy of Forensic Sciences and they have lectures about this
sort of thing, and you get two sets of doctors
(53:44):
becoming extremely passionate and calling each other, you know, whores
and sluts. And I've seen it happen because they're wedded
to a particular idea. And guess what, They're not being
objective anyway.
Speaker 1 (54:00):
Where it becomes problematic, isn't it?
Speaker 2 (54:02):
Yeah, Because experts are supposed to be objective aren't they.
But they think they are being objective, are they? Aren't they?
Speaker 1 (54:11):
It's the difficult one, and you have identified the hard
part of investigating it. And yeah, if you put your
hand up as a homicide detective, you've got to go
in there and aresos hard questions and you find out, well,
who was a child last with that type of thing,
who had access to the child. But yeah, they're difficult investigations.
(54:33):
And you talk about the science and the medical experts
and that, and I know there was people that were
very much in the camp, oh, this is definitely a
shaken baby syndrome. And it was demonstrated how hard the
baby would have to be shaken as shaken, and it
was extreme. And then there were others, well that might
not be the reason.
Speaker 2 (54:53):
So yeah, is this child? Has this child been ill?
Has this child? For example, and the one I was
involved in, we found out that after three days in hospital,
the child had something called the coagulopity, In other words,
its blood wasn't clotting properly. And when you think that
two of these signs are bleeding signs, two of those three,
you know, receive wisdom. Try it of symptoms, what significance
(55:16):
did the fact that the child had a clotting problem
have But they didn't do the test when the child
was admitted to hospital. They did it after child had
been in hospital for three days. Does that show the
child had a clotting disorder at the time of mission
to hospital? Will never know? And I asked the particular doctor, well,
could this test have been done when the child was admitted? Yes,
(55:39):
why wasn't it done? The doctor actually said, with a
straight face, Well, our jobs to gather prosecution evidence, not
defense evidence.
Speaker 1 (55:46):
Yeah. You identifying a lot of problems in the in
the so called justice system. That. Yeah, it's not an
exact science. There's problems left, right and center in that
one that you're referring to. How did that matter play out?
Speaker 2 (56:04):
The father was acquitted And this is one where every
time I think about it, I get a really sick
feeling in my gut because, and I'm so not big
noting myself, but if I hadn't known enough to know
there were questions to be asked, and hadn't known what
(56:24):
questions to ask, and I hadn't known how to know
how to investigate it from a defense perspective, I think
this guy would have been convicted without doubt, and I
just wonder to myself how many other people are being
convicted out there like that because someone hasn't wrapped their
(56:46):
head around the science. I reckon all lawyers should be
taught science, particularly in these days of forensic science. I
reckon all investigators should be taught forensic science. Some of
my most awarding teaching times have been when I've been
teaching lawyers and police about science, because they've got to
(57:06):
wrap the head around not the actual science, you know.
I mean, I had to come up to speed on neuropathology, radiology, hematology, ophthalmology,
forensic pathology, toxicology, you name it. I had to get
my head around in ology and I didn't know any
of those ologies. But you've got to know how to
(57:30):
learn it, or how to learn enough to at least
ask the right questions. So, yeah, I think I finally
got myself off track and need you to bring me
back now.
Speaker 1 (57:44):
No, I'm fascinated because you're opening up many, so many
questions about as you're talking. It makes me reflect on
the cases that I've seen before the courts and been
involved in murder trials where it comes down to the
medical evidence and you know the legal side of things.
They're trying to get their heads around the medical evidence
(58:05):
because quite often a murder trial is based yeah, not solely,
but relies very heavily on the medical evidence. And then
I've had an opportunity to at least study, speak to
the people that have provided the reports, and read the
reports in details. And then I look at the jurist
city there thinking how are they taking this in? And Yeah,
(58:28):
I'm watching people that have got the skill set, the barrasses,
the medical medical people dissecting the type of thing that
you're talking about. And I'm looking at durors that we
don't know anything about their background. They could have no
knowledge in this field, and they're trying to take that
all in. You left me in control. I'm going to
make that a nice segue to bring Part one to
(58:50):
a conclusion. When we get back for part two, I
want to talk about the case that when you turned
up at court you thought it was unwinnable to give
you a heads up on that that was defending someone
that was in a fight with someone that the only
two people in the room and the person was stabbed
in the back. I'll let you explain that in part two.
(59:11):
You told me not to ask the question, but I'm
stupid and I'm going to ask the question about what
happened to the what happened at the police Christmas party
in the eighties. So there might be a lot of yeah,
I'm not sure, but yeah, don't ask the question you
don't know the answer to.
Speaker 2 (59:26):
They say, you know the answer to that one.
Speaker 1 (59:29):
Yeah, I've got a pretty good idea. But I think
our listeners would like to like to get an insight
into that, and let's really break down the jury system
because you were given a rare opportunity, weren't you, as
a part of an academic study, to have access to
jurors what was going through their minds.
Speaker 2 (59:44):
Absolutely, yeah, I interview real jurors after real trials, which
is in Australia, in our justice system, pretty much unheard
of it.
Speaker 1 (59:54):
I think people will be surprised and shocked by some
of the things you're going to say there. So we'll
come back for our part two and just work out
what parts you're going to describe about the police Christmas Party. Okay,
stop loving, Okay,
The public has had a long held fascination with detectives.
Detective sy aside of life the average person is never
exposed to. I spent thirty four years as a cop.
For twenty five of those years I was catching killers.
That's what I did for a living. I was a
homicide detective. I'm no longer just interviewing bad guys. Instead,
I'm taking the public into the world in which I operated.
(00:23):
The guests I talk to each week have amazing stories
from all sides of the law. The interviews are raw
and honest, just like the people I talk to. Some
of the content and language might be confronting. That's because
no one who comes into contact with crime is left unchanged.
Join me now as I take you into this world.
(00:46):
Today we took a deep dive into the world of
crime and courts. We form a criminal barrister do for them.
Judith gave us good insight in what goes on when
someone finds themselves on the wrong side of the law.
We talked about some of Australis cases, including a man
who is charged with murder for simply speaking angrily with
a neighbor, and getting an acquittal for a client who
(01:08):
stabbed a person. Judith works for both the defense and
the prosecution, so in that regard, she has a unique perspective.
An expert in forensic science and law, you'll see why
she's a good person to have on your side. Now,
I've never sat down with a criminal barrister who hasn't
got a crazy story to tell about the world of crime.
As you'll hear, it was an interesting and fun chat
(01:30):
with someone who has a very quirky view on life.
Judith for them, welcome to I Catch Killers.
Speaker 2 (01:36):
Thanks for having me.
Speaker 1 (01:37):
Well, I'm very excited about sitting down and speaking to
a barrister and there's a former cop that's not always away.
I must admit. Yeah, your type used to terrorize me
in court many a time in the witness box. But
it's all part of the justice system, isn't.
Speaker 2 (01:56):
It's called keeping the bastards honest.
Speaker 1 (02:00):
Well that's the I think that's fair enough. Now, you
worked in both defense and prosecution, so you've got a
good perspective from both sides. I'm going to ask you
the obvious question. I know you're sick of this question.
When you're representing someone that you know or you believe,
I should say believe is guilty of the crime and
(02:21):
you're representing defending them. How do you feel how do
you navigate your way through that.
Speaker 2 (02:26):
I'll give you the long answer. The short answer is,
I'll give you a short answer. First, is that it's
not my business. That's the business of the magistrate of
it's magistrate's court or the jury if it's a jury trial,
that's what they do. I don't do that. That's not
my job. I'm a mouthpiece or a voice for whatever
(02:46):
position there is. The longer answer, though, is that I've
learned by bitter experience that I'm not always right. I
know that may come as a surprise to you, but
actually not.
Speaker 1 (03:00):
That that's a first for former barrister to come and
come out and say.
Speaker 2 (03:06):
At least you didn't say it's first for a woman,
because then I would have reached down here and strangled you.
Speaker 1 (03:12):
I'm stupid, but I'm not brave.
Speaker 2 (03:15):
Yeah. So, I mean, I've had experiences where I believe
my client is as guilty as sin, and you know,
things have unrolled where they're actually not and I was
completely wrong, And that's taught me a big lesson, that
is it really isn't my business. I mean, if someone
if the evidence is stacked against them, I'll say to them, Look,
you know, don't be stupid. You need to plead guilty
(03:37):
because if you put everyone through a trial for no
good reason, you know, you get the books thrown out
you're basically for doing that, or you won't get your
brownie points for putting your hand up basically. But no,
I've learned I'm not always right.
Speaker 1 (03:49):
Okay, Well, it's probably a good way to approach it.
And you've certainly you've certainly had some interesting cases in
your time. And before I start talking about them, the responsibility,
whether it be prosecuting or the probably you feel the
pressure even more when you're defending someone. How do you
deal with that because your decisions and your strategies and
(04:13):
the way that you, let's say, defend the case could
determine this person's the future of this person's life. Literally.
Speaker 2 (04:19):
Yeah, look, it's it's not easy. I remember the things,
you know, mistakes I've made, and I'll remember them forever.
I don't sort of, you know, lie back and sort
of go oh god, I'm good, you know, and feel
good about my victories, you know, no matter what side
I'm on. But you know, it's a huge responsibility in
(04:40):
the day. You know, you kick back and relax and
believe that you know everything is the day, you probably
should stop doing it. So, yeah, I still do sleep
at night, but maybe that's just me.
Speaker 1 (04:53):
Yeah, well I suppose. And in talking to you the
other day you said about the preparation, you don't approach
it with a flippant attitude that now I can do this,
it's easy. You put the effort into it.
Speaker 2 (05:05):
Well you have to, and I mean it is all
in the preparation, but there's also those unknowns that you know,
you've got to be able to go with the flow.
You've got to be able to if something changed. You
can't plan it out and say, all right, these are
the questions I'm going to ask, this is what I'm
going to do, this is what the person's going to say.
You're not in control of what they're going to say back,
and so you've got to be able to be, you know,
(05:27):
really flexible. And that's something you've got to trust your gut.
And it must have been the same in your job.
You have to trust your gut, but you've got to
also be able to abandon what you're going to do
and go huh, this has taken a new turn, right,
I'm just going to have to go with it. I mean,
I've had that experience in I remember a particular trial
(05:52):
which I know we're going to talk about about at
some point, which is a shaken baby case where something
happened completely out of the blue, and you know, I
just sort of waltzed in and asked random questions not
knowing the answer and saw what developed. And that's frightening there.
Speaker 1 (06:10):
But part of the job, you said, I might have
an understanding of I suppose it's like the interview room.
And I was taught and I try. I learned from
people that mentored me that you've got to be flexible
in your thinking. Like if you're going with a strategy
for an interview and then it could take a left
hand turn that you didn't expect, You've got to think
(06:31):
on your feet and be flexible in where you take
the conversation.
Speaker 2 (06:35):
Well, you can miss important stuff if you're stuck to
a particular line, and if you miss it, it could
do a really some real damage to finding out the truth.
And I know that that can sometimes be a flexible concept.
I suppose, and you know the justice system sadly, isn't
(06:57):
really about finding out the truth. It's about two sides.
It a battle, and you know somebody wins on the day.
But is that the same as getting to the truth?
And I think that's the same in police interviews. I
mean I spent a fair bit of time training at
people at DTS Detective Training School, and you know, I'd
be saying to them, look, just because you believe, you
(07:19):
know this person did it or this is how it happened,
you've got to keep your mind open because you could
miss something. And that was sometimes hard for people to swallow,
because you know, we know he did it or we
know that this is how it unfolded. And sometimes the
only way I could make that palatable for them would
(07:40):
be to say, well, some smart ALEC defense lawyer might
come up with some other idea and you better be prepared.
So isn't it better to be able to say in
the witness box? Yeah, yeah, we thought of that. We
thought of that, but you know we checked it out
and it didn't pan out, rather than oh I didn't
think of that, because you know, having that sprung on
you in court probably isn't very pleasant, and it might get.
Speaker 1 (08:03):
Right, Yeah, well, I think from a police officer's point
of view, and I've seen it. I've probably done it
myself if you get stuck into a narrative in the
witness box and you're not flexible in your thinking in
under cross examination. And I've seen some detectives dig holes
for themselves by just sticking to their narrative and not
you know, you, as a defense barrister could say, well,
(08:23):
is it possible such and such could happen, and the
detective no, well, it is possible, And you've got to
got to be a little bit considerate of the way
that you answer and not lock yourself in and just
be so stubborn that yeh, you're right, they're wrong. And
it is a theater the court too. I've got to
say that you've got a jury. The jury are forming,
(08:44):
and I can't wait till we have the chat in
this in the podcast about your experiences examining juries. But
the juries are forming opinions, and they're forming very human
opinions about the way the witness is holding themselves, how
they're responding to the answers. So there's a whole range
of things that come into the mix, isn't it.
Speaker 2 (09:02):
Oh, well, you lose your credibility. You sit there like
a buffhead and don't accept something which is obviously a
perfectly resent proposition. But you need to take it back
too and consider those alternatives in the interview process and
the investigation process so that you don't end up in
court going you know, no, that's not possible, when it
clearly is, because nothing else that comes out of your
(09:24):
mouth will be believed.
Speaker 1 (09:25):
Then I like your facial expressions there.
Speaker 2 (09:30):
I used to get into trouble and court from judges.
They used to tell me to stop pulling faces.
Speaker 1 (09:34):
Like I'm just I'm picturing being in the witness box
and they answering the question. I can see the impact
it would have. I want to ask about. There's a
lot of cases I want to talk about. I want
to talk about the person that was charged with murder
for basically talking in an angry, angry tone to his neighbor.
(09:54):
Can you just talk us through that case. I think
that's an interesting case in it again, it's a lesson
forever one, isn't it.
Speaker 2 (10:01):
Well, yeah, because you know you think it can't happen
to me or your friend or your mate, or your
son or your daughter or whatever. You can find yourself
tied up in the criminal justice system and charged with
the crime. For example, even though you know you didn't
think it possibly happened to you. It only happens to
other people. And this particular case was a guy who
(10:23):
had a a pretty good party at his place, you know,
barbie out the back and bit of noise and some
loud music, and it went on and on and on,
and the neighbor got very upset about it. Understandably, by
about four am, the neighbor was pretty unimpressed. I think
he had worked the next day, and he complained, and
(10:46):
he called the cops a couple of times, and you know,
the music will go down the cops or ive and
go back up as soon as they left. You may
have attended jobs like that back in the far distant past,
I don't know. And in the end, seven point thirty
in the morning, it's still going and the neighbor came
over and you know, had an argument with this guy
(11:08):
and it came down to it came down to a
bit of push and shove. Actually that went both ways.
And basically after some time of this, you know, argie, bargie,
that's those are lawyer words. By the way, I hope
you can follow.
Speaker 1 (11:27):
Me legal terminology.
Speaker 2 (11:29):
Yeah, the guy had a heart attack, as in, the
neighbor had a heart attack. My client, because he became
my client, found himself charged with murder. How can that
be murder? How could that be? And the prosecution theory
was that the stress had caused this guy to have
a heart attack, and my client was therefore somehow responsible.
(11:56):
Now you might sit back and possibly even put your
own defense hat on there and think, well, hang on
a minute, how you know, aren't you supposed to actually
mean to kill somebody if you charged with murder? Isn't
that sort of basic one?
Speaker 1 (12:13):
Well, definitely that you need that and the proofs of murder.
Speaker 2 (12:16):
Yeah, but they said their attitude was the other side,
that he should have known and therefore that becomes a murder.
He should have known this could happen. My argument from
the defense point of view is, firstly, he couldn't have known.
The guy wasn't walking under the sign in his chest
saying if you argue with me, I will have a
(12:37):
heart attack. And what's more than the important thing for
me was the medicine aspect of it, and that is,
did he in fact cause this guy to have a
heart attack, or was a guy going to have a
heart attack anyway, even if he'd just woken up in
the morning and just had his wheaties. And I don't
mean to make light of someone's death, but you know,
we're in a situation where the stakes are very high,
(13:00):
and this chap could be in jail for a very
very long time. He's got to be, in a sense
morally guilty as well. In the end, they called a
cardiologist and to give evidence to say that my chap
had mediically, scientifically caused the heart attack. And this cardiologist
(13:23):
did give that evidence, and he'd given this written opinion
which said, no, without doubt, you know, this chap caused
the heart attack. And reason he caused it is that
stress can cause heart attacks. And this guy, the cardiologists
professor or whatever he was, had cited a whole lot
(13:44):
of studies. He'd said, look, you know, in New Zealand,
after the earthquake, a whole lot of people died of
heart attacks, or after bombings in Iran, a whole lot
of people died of heart attacks, and that proves that
stress causes heart attacks. So I started asking him what
I thought were pretty obvious questions, like in New Zealand
after the earthquake, somebody comes in dead and they don't
(14:07):
have a mark on them. Do they actually do a
post mortem and check if the heart attack or do
they just tick the box saying heart attack or technically
myocard you'll infection. I can say the words too, and
of course they don't. They're too busy saving the living,
they're not you know, so it's a ticker box thing.
Do you actually know? And of course the answer that
has to be no, we don't know. Well that doesn't
(14:28):
do a lot of good for those studies, does it.
But we actually got to a point of complete ridiculousness,
if there's such a word, because all these studies said, look,
it looks like stress may or cause heart attacks. You know,
we don't know for sure, and we can't do an experiment.
We can't take you know, two thousand people, stress them
all out and find out how many of them die?
Speaker 1 (14:49):
See who dies?
Speaker 2 (14:50):
Yeah, there's certain ethical problems with doing that. So you know,
all these studies say, we don't really know, it looks
like it might. I said, how can you then turn
around and say, in this specif situation, my client caused
this specific person to die, particularly because we found out
he had pinpoint diameters in his arteries, in his heart.
(15:11):
He was basically walking time Bob. Anyway, he could have
died at any point he had undiagnosed coronary artery disease.
And this guy says, oh, no, we do know all
these people who've written these papers. A line said, what
this is where you have to abandon the script because
I had no idea he was going to say that.
I said, In fact, my next question was, you're not serious.
Speaker 1 (15:31):
This was all in front of the jury. It came
down to a jury decision your client.
Speaker 2 (15:36):
Yeah, and they did ac quit him and bluntly, so
they should have. And I think probably most people would
agree that really is a bit rough to charge someone
with murder. They could have charged him with, you know,
thumping the guy, or although that could have gone both ways,
or you know, is there such a crime as public disturbance?
I don't even know, but they could have charged with
(15:58):
something else but murder. Get break.
Speaker 1 (16:01):
Yeah, well, the case you as you were talking through that,
I remember an early case that I did where some
young fellas broke into a house and they weren't very
good crooks. They broke in the house to steal the
dudes to the house. I was sixteen and seventeen so
they could sell the house. They hadn't really thought I
thought it through. I know, it's an elderly man that
(16:22):
lived there on his own, breaking the house. We're going
to steal the dudes to the house, and then we're
going to sell the house. Great plan, guys. They broke
him through a window at night, he woke up, they
disturbed them, They pushed him, and he died. They panicked,
They took his body away, dumped him in a shallow grave.
It was dug up by dogs. Police called in, so
(16:43):
you've got the actions after. We charged those guys with murder,
but it came down to the medical evidence that he
was literally a step away from having a heart attack,
and that was the post more than he died as
a result of a heart attack. We never got them
convicted of murder. It didn't get to get to trial stage.
It was accepted that unlawful disposal of the body, break
(17:07):
an enter or assault, that type of thing. But yeah,
that's a medical evidence. And when you talked about you
shouldn't make assumptions or believe you know the true story,
Like as a detective hole that there's a sign of entry,
the house has been rated through, things have been stolen,
the body's been dumped in a shallow grave. You're thinking murder.
(17:29):
But when it all played out and all the evidence
came out and you look at it, and I wasn't
disgruntled with that decision to go down that path. I
thought it was the right decision. They didn't break in
there with the intent to murder him. They certainly didn't
think he would die as a result of them breaking
into the house.
Speaker 2 (17:46):
Yeah, yeah, I mean you've got to take step back
and say, in the end, that was probably the right result.
You know, do them for burglary, do them for disposing
of a corpse or whatever it is, and that would
feel to be about the right result. I mean I
had one exactly the same way. I was approached by
a chap something like forty years after his convicted and
did his time for murder, and he'd broken in when
(18:08):
he was a young bloke. And again somebody died, and
this chap died about twenty minutes later of bleeding ulcer.
And back then the received wisdom was stress causes ulcers,
but of course we now know it doesn't. In fact,
there's two Western Australians won the Nobel Prize for finding
(18:28):
out that, in fact, it's a bacterium called helic Go
back to pylori. There you go. That's two more big words.
Speaker 1 (18:36):
You're throwing out the big medical term. So I should
have had a dictionary, a medical dictionary here in front
of me. I won't understand what you're saying.
Speaker 2 (18:43):
Oh, I don't worry. I'll explain it to you. The
question is where you know I'm telling you lies or not.
But this guy, no, he died of a bleeding ulcer
and he was convicted of murder, but he wanted to
clear his name. Way way way down the track. He'd
done his the entire sentence, and he wanted to join
(19:03):
the army. For example, they wouldn't let him join the army.
I found him some help and we got an affidavit
from the Nobel Prize winner saying this, and eventually his
name was cleared. I didn't see it all the way through.
I just didn't have the resources to do it personally.
But he was looked after and his name was cleared.
(19:25):
But interestingly, the forman of the jury actually wrote a
letter later saying, we wish we'd had more medical evidence.
We understand there's some word about if you like that
stress doesn't cause ulcers. We would have liked to have
heard about that, but we didn't have it, so we
had to convict on the evidence we had. And that
takes me back to that point I made initially, and
(19:46):
that is it's a battle, and you don't necessarily as
a juror have the evidence you might have wanted to
have because each side decides what they're going to dish up.
Speaker 1 (19:58):
Things that's in my career that we assumed that's a
given that like blood splatter patterns, ballistic evidence, like a
lot of that. Now we're looking at and it's not
as and exact sciences what we believed at the time
or what science believed at the time.
Speaker 2 (20:13):
Well ballistics, does you know if you're talking about angles
and things, Yeah, that works on physics, and bloodstained pattern
analysis or blood splatter as some people want to call it,
that also abides by the rules of physics. But things
like fingerprints, which were you know, I used to tell
(20:35):
my clients, and I feel really bad about this now.
I used to say, look, they've got your fingerprints. They've
got you better plead guilty. You know you're stupid. If
you don't read my lips, you're four letter word, which
I'd probably better not say. But you know the one
I'm talking about.
Speaker 1 (20:49):
As I told you before, I lived over in Western
Australia for a while. I know it's used as a
punctuation mark sometimes.
Speaker 2 (20:56):
Yeah, but I mean when you're communicating with your clients,
you've got to be able to commit in their language.
So yeah, But fingerprints, I now think are pretty much
equivalent to the reading of entrails of goats in ancient
Greece to tell the future someone who's comparing fingerprints. They
have this method, I mean, don't get me started, or
(21:16):
do get me started, whatever you want. They have a
method called ACEV. You probably know about it, and it
just it's an acronym. It stands for what they do.
But they say, if you follow the method, you can't
make a mistake. Now that is ridiculous. And they say
they have a zero percent error rate, And to me,
(21:37):
that loses all credibility because if you're looking at a
fingerprint from a crime scene, it's not going to be perfect.
The baddie. That's another technical word. The baddy won't have
stood there and rolled their fingers on the window carefully
to get perfect fingerprints. It'll be sparched. It'll be open
to interpretation. Interpretation. That's where the human element comes in.
(22:00):
And if you want this to be the person you've
been told, for example, it is the guy we caught,
we just need him identify, We need a result. We
need you to match these. You're going to be internally
motivated to match them, and you're going to explain away
any apparent differences. And I've actually got a transcript of
(22:20):
a fingerprint Chap who actually said to me, if these
don't appear to match, I can probably explain it by
smudging or an artifact or something. If they don't appear
to match, is it possible it's actually not the same person.
Speaker 1 (22:35):
Hey, that is a concerning comment to make in the
witness box.
Speaker 2 (22:40):
If they don't, I can explain it away.
Speaker 1 (22:44):
Were you involved in that court matter? How long was
that person kept in the witness box after making a
comment like that.
Speaker 2 (22:51):
Well, actually had pretty much said all he wanted to say.
And you know that The really sad thing is that
often these guys are believed anyway because people watch crime
shows and fingerprints all they've got you, you know, and
he's the expert. And people are not critical enough, be
(23:13):
it prosecutors, be it jurors, they're just not critical enough.
There was a case in the US where the judge
actually didn't let the finger print evidence in because you know,
to be an expert, you've got to vault over a
certain hurdle. You've got to show that you know what
you're doing. You've got to show that your air of
expertise is reliable, that it's basically worth you know. I mean,
(23:37):
I've had people try to give iridology evidence where you
can tell what's wrong with people by looking at the
iruses in their eyes, and they've actually got in and
judges let that in. So yeah, yeah, I know. But
a judge in the States actually threw this evidence out
and came under an enormous amount of pressure, as in
finger print evidence came under an enormous amount of pressure
(23:58):
from the system and ended up reversing is ruling because
we can't have that, we can't have fingerprint people not
lad in because after all, they've been allowed to give
evidence from time immemorial, so they must be right.
Speaker 1 (24:11):
And I would imagine there's a reluctance there too. I
can see that problems were done because that would open
up a lot of cases that would have to be revisited,
and a lot of costs and all sorts of things.
It would come in the play that would come in
the play.
Speaker 2 (24:27):
Look subconsciously, I'm sure it does.
Speaker 1 (24:28):
Yeah, Well, you talk about from a police point of view.
When we're using the experts, if it's a medical expert
or whatever, we're not informed enough to disagree with them. Now,
be the fingerprint expert or forensic science. When DNA came
into we haven't got the skills to dissect we're getting
we're looking for an answer. We present the information that
(24:50):
comes back with an answer, and that's accepted at court.
Speaker 2 (24:54):
Well, hey on a minute, why haven't you got the
skills to dissect it? Why can't you ask questions? Why
can't you approach it?
Speaker 1 (25:00):
Go?
Speaker 2 (25:01):
Is this gospel or isn't it? I mean, lawyers have
to learn those skills. If you're prosecuting, if you're defending,
you've got to be able to analyze it. Why can't
the investigators learn those skills?
Speaker 1 (25:13):
True? True, But if we're putting ourselves up, we're not
the experts. And if we got into got into the
witness box and said we're an expert when we're not,
that's going to cause a problem. So we go to
the experts. I think mistakes are often made. You've said
with you know, we can make this fingerprint or justify
why this fingerprint's not matching. I think from a policing
(25:35):
point of view, what I tried to do was always
careful with what information was provided to the expert. We
gave all the information so independently they're looking at the evidence.
But look, it's a tough it's a tough thing. And
that's where the court's not perfect in the weight that's
placed on people that present themselves as experts.
Speaker 2 (25:55):
And don't forget the jurors have to understand this and
could it critically. They're told by the judge, oh, you
don't have to accept the expert evidence. But by golly,
it's a brave duror who says, well, I think, you know,
this guy's got a head full of rocks, and you know,
I'm not going to accept what the expert says. So
they carry like an enormous amount of weight. There's a
(26:16):
huge responsibility on them to get.
Speaker 1 (26:18):
It right most definitely, and the.
Speaker 2 (26:21):
Jurors have got to be able to follow that instead
of you know, switching off. I mean it also goes
with all sorts of other complicated evidence, like if you've
got a check fraud, for example, where there are three
hundred or three thousand checks, you're going to sit there
as a juror while they go to every single check.
I'll probably showing my age. Actually there's no checks anymore,
(26:41):
aren't they.
Speaker 1 (26:43):
A dishonored check? Yeah? I forget what cheeven section that
was in the Crimes Act, But yes, I know what
you're talking about. That's how detectives, that's how we learned
our trade. To start with you, the person that had
just come into the detective's office was always the one
that had to chase up the dishonored check. And yeah, yeah,
(27:04):
solve that. But yeah, that's not it's not a current crime,
I'd say, but I understand what cuter fraud? Let's okay,
let's be contemporary. Yeah, yeah, why did you get into law?
Speaker 2 (27:18):
This has a bit embarrassing nothing you know noble at all.
I was a single parent, I had a science degree,
and I had what I call her the ten lost
years where basically having children and having a completely messed
up life split up with Yes, I have an X
(27:40):
or two as well.
Speaker 1 (27:45):
I'm not sitting here in judgment. Trust me. It happens, it.
Speaker 2 (27:49):
Does, doesn't it. Yeah, you make the best decisions you
can And what is it Mary in haste and repent
at leisure. But anyway, that's another podcast too.
Speaker 1 (28:01):
What went wrong with the marriage? It's a long story.
Speaker 2 (28:05):
Yeah, But anyway, so I was there with Yeah, I
broke up when I was pregnant with my fourth child.
So I was there with three children under five and
one not much older than five. What am I going
to do now? Do I sit on supporting parent benefit
as it then was till the youngest one's eighteen? Or
(28:27):
do I try and do something useful? And it was
back in the era when tertie education was free for
a first degree. But I already had a degree. That's
why I say I had science degree. I had a degree.
So am I going to get funding to learn anything else?
Only if you do law, that's the only second degree.
The government would basically support you through and let you
(28:49):
let you do. I think most of the big people
often did you know arts law or commerce law? Or whatever.
So that's why I did law because it was the
only one that the government would pay me to do.
Speaker 1 (28:58):
It was they or learn Mkarami and who says solicitors
are only motivated by money and.
Speaker 2 (29:03):
Plus crime doesn't pay either, So I got into crime
and it doesn't pay for the lawyers.
Speaker 1 (29:08):
Are exactly where'd you grow up your childhood?
Speaker 2 (29:12):
Canber, but don't hold that against me.
Speaker 1 (29:15):
Explained that he just did. Explain explains a lot. So
you did your science degree? Is that where you managed
to with the information you got from that? When you
you've got those experts in the witness boxes, a solicitor
and barrister, Is that where you could match them when
they were talking?
Speaker 2 (29:34):
It helps. It helps a lot. And the thing about
science is that science always admits that it's uncertain, So
you know, with the science attitude, you have to always
be trying to prove yourself wrong. That's that's how science works,
which is a bit different from you know, we know
(29:58):
he did it, so let's gather the evidence to if
he did it. Scientists will never do that, So it
helps to be able to understand that mindset, and to
be quite honest, I think it's a more healthy mindset,
then let's gather the evidence prove he didn't. Let's ignore
or explain away whatever doesn't fit our worldview. So it
helped me be able to deal with the science and
(30:19):
particularly help me know when the wool was being pulled
over my eyes, because just because someone's a scientist doesn't
mean that they're necessary, right, or you motivated by things
other than the truth. So yeah, it did help a lot.
Speaker 1 (30:34):
Yeah, I would imagine that under those precious situations in
those trials, when the scientists or the expert evidence comes
in and talks at the level he or she believes,
no one understands, so they're not going to be questioned,
then you hit them with the hard questions. But like
a scientific approach, I know, doing external studies a degree
(30:56):
for criminal investigation. That was one of the one of
the things that they promoted, a scientific approach to criminal
investigations in that you've got to fact check the information
all the line that you're going down. And I was
taught that by good detectives too. You don't just follow
this lead and not explore other options. So it's the
best practices in the way to approach a criminal investigation
(31:19):
as well.
Speaker 2 (31:20):
If you don't you know, you can cause some serious injustice.
And it's been all sorts of celebrated cases where someone's
been cleared later because of the blinked approach and the
way I used to when I was doing detective training,
the way as in training detectives, I used to get
(31:40):
it pass because a lot of them would take the
other attitude, no, no, no, we know he did it.
We already know he did it. We've just got to
prove it, and that can lead you down the wrong path.
I used to say to them, look, check this out anyway,
because you might you know, I didn't say to them,
you might accidentally get it right, but at least you'll
have the answer. And I think i've you know, I've
(32:01):
said that before, and that was the way to sneak
it past the people who were inclined to have a
blanket approach. But also it's one of the few places
the law actually takes a science approach, because if you've
got a situation like a circumstantial case where no one
actually saw the deed happen, and you gather all the
evidence and if the defense I'm saying this now from
(32:23):
a prosecutor's point of view, if the defense comes up
with another explanation for all that evidence that's reasonable. You know,
it's not a little green man from Mars came down
and did it. You know, it's something that's not fanciful.
The judge has to say to the jury, if there's
a reasonal possibility, is there's a reasonable explanation for these
facts other than the guy did it? And I say
(32:44):
guy advisedly, I'll tell you why in a minute, but
other than the guy did it. You have to prefer
that because that's basically called reasonable doubt. So the law
takes the science approached it. And look, the reason I
say guy, and I often call the criminals men is
that far more men are convicted of crimes than women,
(33:06):
which either means men are inherently more evil or worse
people than women, or it means women are smarter and
get away with it a lot more. You can choose
which explanation you prefer.
Speaker 1 (33:20):
Was that a question or are you making a statement?
Because that was my place in the witness box. If
someone big statement like that, I'll sit there and go
But you haven't asked a question.
Speaker 2 (33:30):
Yeah, and that jury will think you're being a little
smart alec then.
Speaker 1 (33:33):
And you've got to be delicate, but exploring another hypothesis
for a crime. Some of my I'd say the proudest
moments in the witness box where I really felt I've
done my job is when am barrister like yourself is gone.
Have you considered this? And as you get more experience,
you let them. You look slightly nervous, yes, and you
(33:56):
do your little roll your eyes and all that, and
then well what did you do? And then well, there
was twenty statements taken in regards to that line of inquiry,
and we came to this conclusion based on the line
of inquiry and the evidence. So you've got to do
that because otherwise it's too easy to exploit the police
case or the prosecution case if you haven't pursued alternative
(34:19):
possibilities of what happened in the crime.
Speaker 2 (34:21):
A good prosecutor will ask you, because the good prosecutor
will consider those possibilities because they know or should know
they're going to be raised, and they will ask you
before court did you look at this? And they'll even
say to you or ought to if it's well before
court and the preparations happening in a timely manner, why
don't you go and check this out because you know
(34:44):
this needs checking out, and they'll send you off as
a copper to find out the answer to XYZZ if
you haven't. But you know, if you've done your job well,
you will have checked it out already and you'll have
the answers. But yes, you'll take advantage of the theatrical
aspect of the court room. Let the defense lawyer hang
themselves a little bit first, won't you.
Speaker 1 (35:03):
And when the defense lawyer is telling me what a
good experience detective I am, I know that I'm about
to get belted over the head with something like you're
very experienced, detective. Yes, and you've worked for a very
long time. Yes, and you've had some success. I try
to tone it down as the compliments keep coming, because
I know sooner or later you're going to hit me
(35:25):
over the head with something, and that's of court. And
I look, I spent a lot of time in the
witness box, but I got nervous before I got in
the witness box. When I'm in, their preparation was crucial.
And I think people that say that they're not nervous
or when they're going the witness box, this will be fine,
the couple of times I've let my guard down, haven't
(35:46):
done the preparation. I've got out of the witness box,
and I look at myself and think, you let yourself
down and the whole case down there where you haven't
done the preparation you need to prepare before you go
in the witness box, don't you.
Speaker 2 (35:57):
Oh yeah, yeah. That applies to every player, applies to
the lawyers too. And you know the minute you think
you know everything is the time you really should stop
doing it.
Speaker 1 (36:09):
Can I spoke to yesterday and I've said I could
raise this but with back to your your life and
gives you a perspective on crime because you've been a
victim of crime as well. What sort of do you
care to talk about that or your experiences there and
did you have to go through court based on what
(36:30):
happened to you?
Speaker 2 (36:32):
My experience and it's only been I guess, relatively recent
in my life I've been prepared to talk about this.
I've been a victim of crime, yes, more than once,
but in particular, let's call it survivor of domestic violence.
And I mean, you know, relatively serious. I mean hospital type,
(36:55):
hospital mission type domestic violence and that I think gives
me a perspective that well makes me human. It makes
me understand a victim's perspective. I just don't like that word,
but it makes me understand a victim's perspective. Also makes
(37:15):
me understand from some of my clients as a defense
lawyer that there, but for the grace of God, go
I because you know, you can look at certain well.
I can look at certain decisions I've made or parts
I've taken, where, for example, I could have turned to
drugs or alcohol and could have ended up committing crimes.
You know, I'm one bad decision away from being a crook.
(37:37):
But going back to the domestic violence thing, it certainly
taught me an awful lot about life. And I guess
in a way it's when I was eventually willing to
talk about it. I think it helped a lot of
people who heard about it because they can look at
(37:58):
me and go, she looks like a tough lawyer, and
she looks like a successful woman, and you know she
would not. I just have clients sit in front of
me saying you wouldn't understand because you're a lawyer. It's like, well,
actually I do. I don't necessarily say that, but I
do understand. I do get it. I think it's a
hell of a good base to be coming from. But
I wouldn't wish to do on anybody either. Did I
have to go in the witness box, No I didn't.
(38:20):
I have given evidence in court more than once, but
back in those days I rang police more than once.
And you probably won't like hearing this, but it was
basically that she was it's only a domestic you know,
we're not going to put resources into this. She'll probably
change her mind and not be willing to give evidence
later on. Anyway, that was the attitude.
Speaker 1 (38:42):
Yeah, I look at it. I don't mind hearing that
because we've got to reflect on that attitude. And yeah,
the problems I know here in New South Wales, I
think it's across the country with domestic violence and the
shocking end results where at least who partner's being murdered.
But yeah, we just it was society. We didn't. Yeah,
(39:03):
it was society's values as much as the police. Police
were representing society's values. And there's not a police officer
I know that one that has genuine empathy and feelings
for victims. We don't look back at those times when
we're all in uniform, where you go to a domestic
and you knock on the door, is everything right? And
(39:23):
the man that answered the door and aggressively, yeah, there's
no problems here, and we just look around the corner
and the partner would be seeing there. No, it's all fine,
it's all fine, he won't there's nothing to worry about,
and you go away knowing it's going to happen. But
that was the accepted practice, and I know here in
New South Wales we've changed, and other states where I'm
(39:45):
speaking to police, they have become very much aware of it.
It was something that we really had to get our
act together on coercive controls. It's coming in a few
states here, and I think that's a good thing, and
if police learn to use it properly, I think it'll
be a very powerful tool.
Speaker 2 (40:02):
But from a prosecution perspective, how are you're going to
prove coersive control. It's a wrong thing, and it's a
bad thing, and it's something that I think should be
a crime, But how on earth are you going to
practically prove that.
Speaker 1 (40:17):
I've spoken to a lot of people who have advocated
for it coming in and the legislation changes. And I
think that's why I preface it with educating police that
it's going to be like an investigation. Now that the
charge is being created, we're going to learn how to
use it, to use it appropriately. What I say from
a police officer's point of view, a former police officer's
(40:39):
point of view, is that we would turn up to
a domestic situation and we're looking at is there a
physical assault. If there's not a physical assault, but we're
looking at the person that's clearly terrified for whatever reason,
or under the control of this domineering person, and we
had no recourse on that. You know, we can okay,
we'll just settle it down coercive control. At least you
(41:01):
can start following up some lines of inquiry and I'll
be interested to see how it plays out when they
start charging people with it the news in and in
the courts.
Speaker 2 (41:09):
Yeah, me too. And look, going back to what you're
saying earlier about it, it's a thing about the attitude
of society. Yeah. Back when I was, you know, dealing
with that, I remember ring up a priest in the
middle of the night, you know, because I just needed
some help somewhere from somebody and he told me off,
(41:30):
you know, how dare you ring me in the middle
of the night. And that was sort of the level
of empathy that society gave me there where I was
living in a country area at the time, there were
no women's shelters. It was nowhere I could go. So,
you know, society as a whole is changing and changing,
I've got to say for the better in areas like
that anyway.
Speaker 1 (41:51):
Yeah, I think so. I think so too. It's definitely
definitely changing. You talked about the sliding door moment that
you could have gone there anyway when life wasn't going
too good. You feel in the pressure and you looked
at people that no doubt you've represented, or even people
that you've prosecuted, that life could take a twist turn
over your career, you've seen many people that fall and
(42:14):
foul of the law and criminals, and you would have
seen the worst, and you would have seen people that
have just made a genuine mistake, good people. What's your
sense of it? What in your mind makes a criminal?
Speaker 2 (42:25):
Look? This is pure amateur psychology from me, and I
got no idea whether you know I'm right or not.
But I think there's like two types. I mean, let's
look at murderers as you have. I think, honestly think
there are two breeds of murderers. There are the psychopathic
(42:46):
killers who kill for the sake of the thrill. They're
a particular type of murderer. And then there's the murderer
who and again I'm we're back to the relationship situation
where it's what used to be called a crime of passion.
I remember a particular client who he was breaking up
(43:10):
with his wife. You know, everything was very fraud and
very precious, and she had a boyfriend. And he never
had so much as a parking ticket in his life.
You know, oh, maybe he had a parking ticket, you
know what I mean. He's basically a good guy. He
was working, he you know, in his probably mid forties
or something, and you know, contribute a lot to society.
(43:31):
But he just lost the plot when you know, she
took up with a boyfriend and ended up killing both
her and the boyfriend. It was horrible crime scene because
they had I think white shagpile carpet and there was
lots of blood. But anyway, oh, the old hand next
(43:52):
to the wall phone, the bloodied handprints smudge down the wall,
and we're not doing TV show, so I'll sort of
stop that imagery now. But the point being, he's that
other type of murderer in my view. So in answer
the question what makes the criminals, sometimes, I think circumstance
means that someone will take one bad decision, which is
(44:13):
what I was talking about when I said I could
be a criminal quite easily, and it just sets you
on that path or a bad decision, for example, to
take drugs that are offered to you, and the next
thing you know, you're hooked all those sorts of things.
And then there's a person who's just really evil. And
the weird thing about murder is those two were treated
the same in the prison system, and this particular kiind
(44:36):
of mine who was convicted ended up being locked up
with an evil serial killer and became mates with him. Now,
you tell me how the prison system is actually doing
some rehabilitative good there when you lock up because they've
both been convicted of murder. So that's a very long
answer to what.
Speaker 1 (44:56):
You're right. Because people often often say to me, like
every every been a homicide detective or anyone that's committed
a murder, should be bringing the death penalty, lock them
away for life, do this, do that. I've put away
some people that have been charged and convicted of murder,
but they've made mistakes. Like when I say mistakes, it's
(45:18):
probably diminishing it. It's a big mistake if you're taking
someone's life, but quite often it was a fit of rage.
It wasn't their intent. And I'm not saying they're a
bad person per se. I'm saying what they've done was
horrific in whatever set of circumstances have brought them there.
That doesn't make them inherently a bad person.
Speaker 2 (45:39):
That's right. Yeah, Yeah, we're sitting here, you know, you
realize what we're doing. We're actually sitting here saying murders
aren't necessarily bad.
Speaker 1 (45:48):
Yeah, that'll be good, will be on social media, murder
is a fine, we'll balance it out. But then there's
a really, really bad bad murderers. And I know what
you're talking about with the prison system, and I want
to talk about that a little bit later in the podcast,
about the way prisons are approached, because I yeah, not
(46:10):
a cop now, but I think it's better to prevent
crime than to arrest people after the event. And I
think the best way to do that for the people
that we got in prison is make sure that they
come out, if possible, in a better place to fit
in to society than just bring them out there like
cage animals and let them loose in society. Again, I
(46:33):
really think we can do some good.
Speaker 2 (46:35):
There, having been to a university for crime in the
interim as in prison, which is a very good place
to learn how to do a better burglary, for example,
or be less likely you get caught next time. But
that's if you're a career criminal. And again not so
much the murder situation. And you know who we've forgot before,
I forget again, we forgot the insane murderers. Insanity is
(46:57):
another thing that does happen mental health, Yeah, the mental
health side of things. But then normally those people, if
the system works properly, will not be convicted of murder.
They'll be found insane and they'll actually be put in
a psychic psychiatric institution rather than a prison. That's if
(47:19):
the system works. And that's a big if. Of course.
Speaker 1 (47:25):
Baby deaths, shaken baby the type of scenario I talk
about here, and I always found these hardest homicides to
investigate for a whole range of reasons where you get
called to a home because there's a young infant that's
died in the place, and yeah, you look at it.
(47:46):
You've got to treat it. There's an investigation because you've
got to try and find out how this baby, this
infant has died. But it's a difficult investigation to gather
the evidence against because of people that invariably it's the
parents that have discovered their child deceased. You've got to
look at them as potential suspects. You've got to ask
(48:09):
the hard questions, and you've got to do the investigation
that gets to court. Have you had a lot of
experience in matters like that.
Speaker 2 (48:18):
Yeah, I've had some significant I mean, I guess more
experience than I'd want to have because it's in particular
with babies. It's an emotional thing and it's a hard
job to do, both from investigating and defending. You know
how emotional it can be. Yeah, you always have to,
(48:38):
from an investigative point of view, treat the last person
to see the deceased as a potential suspect. I've had
that in situations where, for example, the father's come home
to find his daughter deceased, clearly murdered, and he's immediately
(48:59):
treated a suspect and has to be initially, So he's
both grieving the death of his daughter and being treated
as a potential perpetrator. A husband coming home to find
you all, coming to the wife's place of work, for example,
and finding her deceased. He's treated as a suspect and
he has to be. You can't. You can't argue with that.
(49:20):
As a matter of logic, he has to be. But
by golly, can you imagine the experience of that person
having to be treated as a potential murderer. But yeah,
the baby death, so particularly the shaken baby, is a
really big deal.
Speaker 1 (49:35):
Still is Have you defended or prosecuted matters like that
in the courts?
Speaker 2 (49:42):
I've defended matters like that. My prosecuting's mainly been restricted
to police prosecuting, which means the lower courts for the prosecuting.
There's another story in that too, about why I didn't
do the more serious ones in it. Well, I'd be defamatory,
so I'm not going to go there. You know, I
(50:04):
like it when the cops come out of court and
shake my hands. So mate, if I'm ever in trouble,
I'm coming to you. That's what I like. But look,
going back to the there is one particular case that's
stuck with me forever and always will And even now
I'm listening to a podcast, not yours. But it's okay,
I've listened to all the yours.
Speaker 1 (50:25):
Yeah, I was just going to clarify that. That's you're
just waiting for the next one to drop a ye,
catch kills. That's okay. You have to listen to others.
Speaker 2 (50:31):
Yeah, you know, I am faithful, so it's good. Let's
not go there anyhow. Anyhow, Yeah, I was listening to
a podcast. And this topic is still like up for
debate and has been for years and years and years.
It used to be that doctors are taught in medical
(50:54):
school during say a particular election, that's probably the extent
of their training. That if if you have a child,
a baby present with what they call a triad of symptoms,
and that's retinal hemorrhaging as in bleeding in the back
of the eyeball, subdural hematoma that means bleeding under the
(51:19):
lining of the brain or bleeding on it out surface
of the brain, if you like, and basically brain swelling.
That that was had to be non accidental injury. It
had to be baby shaking now, and they would go
into court, like a forensic pathologist will go into court
(51:41):
and testify this child has been shaken, a whole array
I was going to say, gang, that's probably not the
right word. A whole array of experts. An ophthalmologist will
testify that there's this particular pattern of retinal hemorrhaging that
means it's shaken baby. The forensic neuropathologist will testify that
(52:08):
there are injuries within the brain which show that force
has been applied in a certain way. So they'll all
get up there, and then the forensic pathologists will say,
and yeah, these three symptoms mean the child's being shaken.
And they would routinely give evidence, for example, that the
force used would be the equivalent to a sixty kilometer
(52:30):
an our car accident, or throwing the child from a
second story window. Then someone started asking questions. It turns out,
for example, that no human being can actually exert that
sort of force of a sixty kilometer in our car accident.
They've been testifying because it's received wisdom, because what they
are taught in medical school, and it's not necessarily true. Now,
(52:53):
what you end up with is two sets of experts,
some who passionately believe that this has to be that
the show deliberately shaken, and some who equally passionately believe
that sometimes this can occur by accident. Then you've got
the investigator saying, how do we determine which it was?
How do we know who to charge? Do we let
all the child killers go because the science is in
(53:17):
a state of debate, or you know, we can't do that.
We can't let child killers go free. But how do
we know which is which? We have to rely on
these experts, and the experts can't agree. And I've been
at conferences, like I was a member of the American
Academy of Forensic Sciences and they have lectures about this
sort of thing, and you get two sets of doctors
(53:44):
becoming extremely passionate and calling each other, you know, whores
and sluts. And I've seen it happen because they're wedded
to a particular idea. And guess what, They're not being
objective anyway.
Speaker 1 (54:00):
Where it becomes problematic, isn't it?
Speaker 2 (54:02):
Yeah, Because experts are supposed to be objective aren't they.
But they think they are being objective, are they? Aren't they?
Speaker 1 (54:11):
It's the difficult one, and you have identified the hard
part of investigating it. And yeah, if you put your
hand up as a homicide detective, you've got to go
in there and aresos hard questions and you find out, well,
who was a child last with that type of thing,
who had access to the child. But yeah, they're difficult investigations.
(54:33):
And you talk about the science and the medical experts
and that, and I know there was people that were
very much in the camp, oh, this is definitely a
shaken baby syndrome. And it was demonstrated how hard the
baby would have to be shaken as shaken, and it
was extreme. And then there were others, well that might
not be the reason.
Speaker 2 (54:53):
So yeah, is this child? Has this child been ill?
Has this child? For example, and the one I was
involved in, we found out that after three days in hospital,
the child had something called the coagulopity, In other words,
its blood wasn't clotting properly. And when you think that
two of these signs are bleeding signs, two of those three,
you know, receive wisdom. Try it of symptoms, what significance
(55:16):
did the fact that the child had a clotting problem
have But they didn't do the test when the child
was admitted to hospital. They did it after child had
been in hospital for three days. Does that show the
child had a clotting disorder at the time of mission
to hospital? Will never know? And I asked the particular doctor, well,
could this test have been done when the child was admitted? Yes,
(55:39):
why wasn't it done? The doctor actually said, with a
straight face, Well, our jobs to gather prosecution evidence, not
defense evidence.
Speaker 1 (55:46):
Yeah. You identifying a lot of problems in the in
the so called justice system. That. Yeah, it's not an
exact science. There's problems left, right and center in that
one that you're referring to. How did that matter play out?
Speaker 2 (56:04):
The father was acquitted And this is one where every
time I think about it, I get a really sick
feeling in my gut because, and I'm so not big
noting myself, but if I hadn't known enough to know
there were questions to be asked, and hadn't known what
(56:24):
questions to ask, and I hadn't known how to know
how to investigate it from a defense perspective, I think
this guy would have been convicted without doubt, and I
just wonder to myself how many other people are being
convicted out there like that because someone hasn't wrapped their
(56:46):
head around the science. I reckon all lawyers should be
taught science, particularly in these days of forensic science. I
reckon all investigators should be taught forensic science. Some of
my most awarding teaching times have been when I've been
teaching lawyers and police about science, because they've got to
(57:06):
wrap the head around not the actual science, you know.
I mean, I had to come up to speed on neuropathology, radiology, hematology, ophthalmology,
forensic pathology, toxicology, you name it. I had to get
my head around in ology and I didn't know any
of those ologies. But you've got to know how to
(57:30):
learn it, or how to learn enough to at least
ask the right questions. So, yeah, I think I finally
got myself off track and need you to bring me
back now.
Speaker 1 (57:44):
No, I'm fascinated because you're opening up many, so many
questions about as you're talking. It makes me reflect on
the cases that I've seen before the courts and been
involved in murder trials where it comes down to the
medical evidence and you know the legal side of things.
They're trying to get their heads around the medical evidence
(58:05):
because quite often a murder trial is based yeah, not solely,
but relies very heavily on the medical evidence. And then
I've had an opportunity to at least study, speak to
the people that have provided the reports, and read the
reports in details. And then I look at the jurist
city there thinking how are they taking this in? And Yeah,
(58:28):
I'm watching people that have got the skill set, the barrasses,
the medical medical people dissecting the type of thing that
you're talking about. And I'm looking at durors that we
don't know anything about their background. They could have no
knowledge in this field, and they're trying to take that
all in. You left me in control. I'm going to
make that a nice segue to bring Part one to
(58:50):
a conclusion. When we get back for part two, I
want to talk about the case that when you turned
up at court you thought it was unwinnable to give
you a heads up on that that was defending someone
that was in a fight with someone that the only
two people in the room and the person was stabbed
in the back. I'll let you explain that in part two.
(59:11):
You told me not to ask the question, but I'm
stupid and I'm going to ask the question about what
happened to the what happened at the police Christmas party
in the eighties. So there might be a lot of yeah,
I'm not sure, but yeah, don't ask the question you
don't know the answer to.
Speaker 2 (59:26):
They say, you know the answer to that one.
Speaker 1 (59:29):
Yeah, I've got a pretty good idea. But I think
our listeners would like to like to get an insight
into that, and let's really break down the jury system
because you were given a rare opportunity, weren't you, as
a part of an academic study, to have access to
jurors what was going through their minds.
Speaker 2 (59:44):
Absolutely, yeah, I interview real jurors after real trials, which
is in Australia, in our justice system, pretty much unheard
of it.
Speaker 1 (59:54):
I think people will be surprised and shocked by some
of the things you're going to say there. So we'll
come back for our part two and just work out
what parts you're going to describe about the police Christmas Party. Okay,
stop loving, Okay,
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