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A Barrister’s Eye: Breaking Down the Mushroom Case | Philip Dunn KC · Real Crime with Adam Shand

0:05
Speaker 1: Appoche production.
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Speaker 2: Welcome to Real Crime with Adam Shann I'm your host
0:16
Speaker 2: Adam Shand Last week one of the most sensational criminal
0:20
Speaker 2: trials in Australian history came to a verdict.
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Speaker 3: Three people have now died and another is fighting for
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Speaker 3: life after being poisoned by wild mushrooms at a lunch
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Speaker 3: with friends in Gippsland.
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Speaker 2: Erin Patterson has been found guilty of murdering her former
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Speaker 2: parents in law, Don and Gail Patterson, and Gail's sister
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Speaker 2: Heather Wilkinson, the.
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Speaker 4: Jury finding her guilty of deliberately serving her relatives at
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Speaker 4: beef Wellington Lace with deadly death Cap mushrooms.
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Speaker 2: And also of the attempted murder of Gail's husband, Ian Wilkinson,
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Speaker 2: the sole survivor of that deadly lunch. On July twenty ninth,
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Speaker 2: twenty twenty three.
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Speaker 4: Aaron Patterson a convicted triple murderer.
1:03
Speaker 2: It's a case that's captured the world's attention because of
1:05
Speaker 2: its central plot. Erin serves up a lunch of homemade
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Speaker 2: beef Wellington's laced with death cap mushrooms and then claimed
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Speaker 2: the fatal consequences were just a tragic accident.
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Speaker 1: Yeah, I didn't do anything. I love them, but I'm devastated.
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Speaker 1: I just can't tell them what has happened.
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Speaker 2: The fifty year old has captured the attention of the media,
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Speaker 2: but let's not forget the victims, good people, pillars of
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Speaker 2: their community, who did not deserve to die. Having been
1:35
Speaker 2: caught up in the breakdown of the marriage between Erin
1:38
Speaker 2: and her husband, Simon Patterson, the son of Don and Gale.
1:42
Speaker 2: Simon skipped a lunch because he felt uncomfortable, but Erin
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Speaker 2: did put aside a portion of the deadly meal in
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Speaker 2: case he changed his mind, a wise decision to skip
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Speaker 2: that meal. When first charged with the murders, Erin Patterson
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Speaker 2: turned to one of Australia's most distinguished barristers, Philip DUNNKC,
2:00
Speaker 2: to defend her. Later, she turned to Colin Mandy sc
2:04
Speaker 2: to represent at the trial. But Philip done had a
2:07
Speaker 2: chance to assess the police case and her likely defense
2:10
Speaker 2: to the charges, and he's kindly agreed to have a
2:12
Speaker 2: chat today. That's my pleasure to welcome Philip to the
2:15
Speaker 2: Real Crime studio.
2:16
Speaker 1: Can I phil thank you very much?
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Speaker 4: Adam that I should say I can't really discuss I
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Speaker 4: discussed with there in Patterson, But I'm more than happy
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Speaker 4: to talk about generalities of the case.
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Speaker 2: Of course, Yeah, that's right, there's client confidentiality here. But
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Speaker 2: what was your reaction to the verdict?
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Speaker 4: I was intrigued by the fact that the jury didn't
2:37
Speaker 4: ask a question, and a number of colleagues and number
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Speaker 4: of friends who knew that I did have some connection
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Speaker 4: with the case. Rangmon kept asking me, and I said,
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Speaker 4: the thing that surprises me is that there has not
2:51
Speaker 4: been one question, and that would rather indicate than in
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Speaker 4: a trial that went over two months, that the jury
2:57
Speaker 4: will methodically going through the evidence witness by witness, as
3:01
Speaker 4: the judge had directed them to. And so at the
3:04
Speaker 4: end of the day, the Crown put their jigsaw together
3:07
Speaker 4: to the satisfaction of the twelve good people and.
3:10
Speaker 2: True because when you're the defense barrister and the jury
3:13
Speaker 2: doesn't ask a question, is that a good or a
3:15
Speaker 2: bad sign?
3:16
Speaker 4: That's a worrying sign. The best possible question you can get, Adam,
3:20
Speaker 4: is would you please redefine reasonable doubt for us? Or
3:24
Speaker 4: what happens if we've got some doubts. They're the sort
3:27
Speaker 4: of questions you want, but juries these days they're given
3:31
Speaker 4: a transcript which tends to slow things down a bit.
3:35
Speaker 4: You'll notice that most jurors will take notes and so
3:38
Speaker 4: it's a bit of a jury trial as a raffle.
3:42
Speaker 4: Defense lawyers in circumstantial evidence cases would often prefer to
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Speaker 4: have judge alone. For example, in the case of Lloyd
3:49
Speaker 4: Rainey over in wa charged with murdering the proformatory of
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Speaker 4: the Supreme Court, you'd rather have a judge alone because
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Speaker 4: they'll put a motion to one side and be very technical.
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Speaker 4: Juries are swayed by other factors. It's pretty hard to
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Speaker 4: get twelve people who can agree, but it's also very
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Speaker 4: hard to get to twelve people will apply themselves.
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Speaker 2: Indeed, in the case of Lloyd Rainey, he was acquitted
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Speaker 2: of the murder of his wife Koren, and that case
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Speaker 2: is still a mystery to many people.
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Speaker 4: Especially after the Western Australian Police publicized on the front
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Speaker 4: news of the Perth newspaper that he was there suspect
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Speaker 4: and only suspect prior to his arrest.
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Speaker 1: Yeah don't know.
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Speaker 2: So as you watched this case go through, you had
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Speaker 2: some knowledge of the case the background to it, but
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Speaker 2: you're seeing it play out on the court and you've
4:33
Speaker 2: got how many years from twenty years fifty or more
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Speaker 2: than that. It's ninety sixty nine you've begun this, so
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Speaker 2: that's the thirty one plus fifty six years at the bar.
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Speaker 1: How did you assess the conduct of this trial?
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Speaker 4: That's impossible for me to say because I wasn't there
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Speaker 4: on a day to day basis, and that defense council
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Speaker 4: and prosecuting council will make different decisions based upon the
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Speaker 4: mood or, as they say in the Castle, the vibe.
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Speaker 1: You will change and shift where you're going.
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Speaker 4: I mean, I just finished a trial other day, and
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Speaker 4: we're going to call four or five defense witnesses. We
5:08
Speaker 4: called our first witness, who went like a train, so
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Speaker 4: we didn't call the others. And I can't really comment
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Speaker 4: on the running of the trial except circumstantial evidence. Trials
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Speaker 4: are difficult because you have a matrix of evidence, and
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Speaker 4: here you had conduct, did certain things. Here, You've got lies. Here,
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Speaker 4: you've got possible movements towards outrom or lock with the
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Speaker 4: car or the phone. Now all of them on their
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Speaker 4: own don't amount to anything much and are all explainable.
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Speaker 4: Particularly conduct, either conduct which the Crown was assuming was
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Speaker 4: sort of consciousness of guilt, conduct or post offense, conduct
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Speaker 4: or lies. These things are all explainable by one hundred
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Speaker 4: and one different reasons, and it's the combination. So you'll
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Speaker 4: find that the cases that cause the greatest controversy if
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Speaker 4: you look back over our time, Adam, yours and mine
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Speaker 4: in the criminal law, their circumstantial evidence cases Lindy Chamberlain,
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Speaker 4: the spear throw over the Rocks in Sydney tied up
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Speaker 4: with all sorts of fits and pieces. These cases where
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Speaker 4: the prosecution of putting their case together and they convince
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Speaker 4: a jury often leave in the minds of reasonable people
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Speaker 4: considerable doubts as to the hell is another circumstantial evidence case.
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Speaker 2: Indeed, and George pell was initially found guilty but ultimately
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Speaker 2: exonerated because of the I guess the reasonable doubt that existed.
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Speaker 4: And he hadn't given evidence. He hadn't given evidence. Once
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Speaker 4: you give evidence, then the court of appeal will say,
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Speaker 4: but the jury had the chance to assess and way
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Speaker 4: the accused. So the calling of your client in a
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Speaker 4: circumstantial evidence case for a defense lawyer is a question
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Speaker 4: which any lawyer, and I'm sure the very skilled legal
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Speaker 4: team that were down more or would have really tossed
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Speaker 4: and turned on as to which way are they going
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Speaker 4: to go, because the minute you call your client in
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Speaker 4: a circumstanced levians case is you're going to shut out
7:14
Speaker 4: the court weighing the crown case and only the crown case,
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Speaker 4: because they will then say the three wise men. The
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Speaker 4: jury evaluated the accused and formed.
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Speaker 2: A view because when I saw that she was going
7:26
Speaker 2: to give evidence, and she gave evidence, I thought that
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Speaker 2: it reflected the fact that defense felt that the prosecution
7:33
Speaker 2: was struggling with actus raya mensraya guilty mind guilty act?
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Speaker 2: Where was the motive? Was this actually a tragic accident?
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Speaker 2: Is that what you felt?
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Speaker 1: No, I think that they the first thing.
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Speaker 4: I don't know what the events thought, and I didn't
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Speaker 4: do the trial, and they were very skilled and experienced operators.
7:52
Speaker 4: But in a trial, if we can talk about a
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Speaker 4: circumstanced levance case, and in a trial where your clients
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Speaker 4: told porky pies in this case, no foraging for mushrooms
8:02
Speaker 4: or whatever it might be, you've really got a weigh
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Speaker 4: it up.
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Speaker 1: And sometimes you'll think the jury really.
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Speaker 4: Wore to hear her side of it or his side
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Speaker 4: of it. But this is a critical decision and it
8:14
Speaker 4: all goes back. Probably there are two or three steps
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Speaker 4: when you read the brief and you will map out
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Speaker 4: the chronology, the timeline. You'll map out what is the
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Speaker 4: objective or real evidence that implicates the client in the crime.
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Speaker 4: Then what are the circumstantial evidences, what are the bits?
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Speaker 4: And in this case they relied on lies or post
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Speaker 4: offense conduct. Now what explanations are there for this conduct?
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Speaker 4: So sometimes you feel that you've got to do it.
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Speaker 4: But the calling of the client's always a big, big decision.
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Speaker 4: And these days barristers in Victoria have been trained in
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Speaker 4: the Australian School of advocacy and they're trained to be cautious,
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Speaker 4: so it's uncommon to call your client in Victoria.
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Speaker 2: I felt it showed a certain confidence to things. But
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Speaker 2: I guess also could be interpreted as a moment where
9:09
Speaker 2: they were trying to what you call look for.
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Speaker 1: The rat the rather alternative theory.
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Speaker 2: Exactly that could explain these facts in a different way,
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Speaker 2: rather than just leading to the inevitable conclusion that if
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Speaker 2: somebody lies and their post defense conduct is so revealing,
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Speaker 2: they can only be guilt.
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Speaker 4: That's right, So that in any case, the calling of
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Speaker 4: your client is a very weighty decision because the jury
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Speaker 4: will judge the client and the client's story, and as
9:38
Speaker 4: Rumphol very wisely said, nothing sinks faster than a cast
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Speaker 4: iron alibi. You run your defense and they don't like it,
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Speaker 4: though the judge will tell them put that to one
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Speaker 4: side and look at the evidence. You're up against it.
9:52
Speaker 4: You're up against it. So these are This trial will
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Speaker 4: be one that will be like the Lindy Chamberlain trial,
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Speaker 4: will be one that will be analyzed backwards and forwards,
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Speaker 4: and the prosecution their evidence.
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Speaker 1: The order in which they lead their evidence is up
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Speaker 1: to them.
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Speaker 4: They did it in a way that they would thought
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Speaker 4: would be effective, and the way that defense cross examined
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Speaker 4: and what they cross examined on, and what decisions they made.
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Speaker 4: Young lawyers and older lawyers and academics and people like
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Speaker 4: Adam Shand will be examining it for quite some time
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Speaker 4: to come and then being wow, maybe we should have
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Speaker 4: done this, or maybe they should have done that. Because
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Speaker 4: a circumstantial evidence case, and one of the very first
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Speaker 4: of them you learn in law school is the first
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Speaker 4: conviction of a murder trial where there was no body
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Speaker 4: the body that would overboard the boat. And so they
10:42
Speaker 4: had to convince the jury when they didn't have a body,
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Speaker 4: and murder trials usually don't have the added complication that
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Speaker 4: this trial had. And this trial when you attempted murders
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Speaker 4: and rapes are much more complicated for a defense council
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Speaker 4: to run his case, to think of his rival alternate theory.
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Speaker 4: But in a murder trial, you're usually missing the eye witness,
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Speaker 4: so the road is open for a lot of interpretation, right,
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Speaker 4: But in this case you had a survivor, Ian Wilkinson,
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Speaker 4: somebody who sat at the table as each person cutting
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Speaker 4: to their beef Wellington and took a spoonful and chatted.
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Speaker 4: And the demeanor of the people around the table. And
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Speaker 4: if you picture that table, and I've seen that table,
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Speaker 4: I've sat at that table. But as the meal is
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Speaker 4: being consumed, as pleasantries are being exchanged, trifle Colty are
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Speaker 4: fit warm today? How's Auntie Nelly?
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Speaker 1: Oh?
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Speaker 4: What do you think of the vief Wellington? It's a
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Speaker 4: picture which I'm sure the prosecution would probably have painted
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Speaker 4: in the minds of the jurors, which paints once you
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Speaker 4: find that she put the mushrooms in there, a fairly
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Speaker 4: chilling portrait of the accused.
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Speaker 2: It really is, and the circumstantial evidence certainly weighed against her.
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Speaker 2: Things like on that table he served the deadly beef
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Speaker 2: Wellington's to her guests on the white plates, and her
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Speaker 2: own plate was a tan colored plate. Could just be
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Speaker 2: mismatching crockery. But in the hands of the prosecution, it
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Speaker 2: looks like somebody who's avoiding eating the deadly beef Wellington that.
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Speaker 4: Came from the survivor. And I would think that the
12:25
Speaker 4: problem always was here, what's the motive to kill, Not
12:29
Speaker 4: the motive to hurt, not the motive to annoy them,
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Speaker 4: not the motive to literally give them the shits right,
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Speaker 4: but what is the motive to bump them off? And
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Speaker 4: anybody with half a brain would say that if you
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Speaker 4: sit down with five guests and yourself minus the children,
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Speaker 4: and one person walks away, there's going to be questions asked,
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Speaker 4: And any half logical person would say, well, how come
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Speaker 4: you didn't perish as well? And this is the problem
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Speaker 4: for the Crown case. The Crown case picked its skirts
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Speaker 4: up and skipped lightly along. When they had a survivor
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Speaker 4: who could talk about mismatched plates, I'd have thought it
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Speaker 4: was unlikely that she would have mismatched the plates to
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Speaker 4: give herself, because it's not the plate that's the problem,
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Speaker 4: it's what's on the plate, right, So I think that
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Speaker 4: was color and movement, and I think that's been misportrayed.
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Speaker 4: She made individual beef Wellington's and she wouldn't have had
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Speaker 4: ticks or crosses on them, but you would have been
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Speaker 4: able to distinguish. You wouldn't need to have a plate.
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Speaker 4: It's what's on the plate, not the plate.
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Speaker 2: Very interesting, good point, but I'll be checking carefully if
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Speaker 2: I having get served beef Wellington and the plate's different,
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Speaker 2: that's for sure. But most of us are trying to
13:46
Speaker 2: work out did she do it or did she not
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Speaker 2: do it? But the barris for the defense barrister's job
13:51
Speaker 2: is very different. It's about whether there's any doubt. Explain
13:54
Speaker 2: that difference.
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Speaker 4: In any criminal trial, the judge will tell the jury
13:59
Speaker 4: right at the outset that the fundamental difference between our
14:01
Speaker 4: system and say North Korea Iran is that the accused
14:07
Speaker 4: person is presumed to be innocent. They don't have to
14:11
Speaker 4: prove the innocent. The prosecution has to prove their guilt.
14:15
Speaker 4: The jury actually is the safety valve in the legal system.
14:19
Speaker 4: Police come at it with police think, please commit these
14:23
Speaker 4: cases with police think. So a police officer will conduct
14:26
Speaker 4: they conduct interviews in very much the same way, and
14:29
Speaker 4: they will conduct things in the same way, and they
14:31
Speaker 4: have their They're like a one eyed football supporter.
14:35
Speaker 1: I know.
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Speaker 4: They are very very good and industrious and terrific investigators
14:40
Speaker 4: in Victorian police, and there's some pretty average ones. But
14:44
Speaker 4: police have a police view about the case. So what
14:49
Speaker 4: they will do is they will be interpreting through that lens.
14:53
Speaker 4: What the defense counsel has to do is to say,
14:56
Speaker 4: I don't have to prove black is white. I don't
14:59
Speaker 4: have to prove my client is innocent. What I've got
15:02
Speaker 4: to show is there is a reasonable doubt about the
15:05
Speaker 4: prosecution view. And so the standard line of attack will
15:09
Speaker 4: be the police have been a bit one eyed and
15:12
Speaker 4: how they've gone about their investigation. They started out thinking
15:15
Speaker 4: she was guilty in it. They've tried to fit Cinderella's
15:18
Speaker 4: slipper on the ugly sister. What they've done. But here
15:22
Speaker 4: in a circumstantial case. And I can think of a
15:25
Speaker 4: ripper actually that I was involved in. A fellow called
15:28
Speaker 4: Peter Beatos, the silver gun rapist. He charged with eighteen rapes.
15:33
Speaker 4: The man was attired in a balaklava and had a
15:38
Speaker 4: silver gun and nothing much else, and he raped women.
15:43
Speaker 4: And in those days they didn't have DNA, so they
15:46
Speaker 4: had eighteen different rape cases, and nowhere were saying the
15:50
Speaker 4: coincidence is that the one person did the same, and
15:54
Speaker 4: they pointed to various things in a circumstantial case. In
15:58
Speaker 4: the offense case, all he had to do is find
16:00
Speaker 4: have a reasonable doubt about one of them, because then
16:04
Speaker 4: if you had a doubt about that, a doubt about
16:05
Speaker 4: the lot. So in a circumstantial case where you're relying
16:09
Speaker 4: on post defense conduct, wearing white trousers, which is part
16:14
Speaker 4: of the theory, why would you get.
16:16
Speaker 1: Diary would you wear white trousers.
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Speaker 2: That they're in Patterson who claimed she was ill, also
16:22
Speaker 2: having eaten some of the beef. Wellington also and that
16:24
Speaker 2: she claimed that she'd had gastro and wore white pants.
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Speaker 1: But these are arguments.
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Speaker 4: They're arguments, and their arguments made by people who have
16:33
Speaker 4: seen that through the lens that she's guilty. The fact
16:36
Speaker 4: is there is no real definable motive, right, There is
16:40
Speaker 4: no motive.
16:41
Speaker 1: These are good people. I mean, there's no personal beef whatsoever.
16:44
Speaker 4: Is the most no motive. There's no motive, and if
16:47
Speaker 4: you apply ordinary common sense and the plate thing are furfy.
16:51
Speaker 4: Therefore panicking afterwards when people have died. I mean all
16:56
Speaker 4: of us have got children, in my case grandchildren. You know,
16:59
Speaker 4: you'll see how quickly people who took the chocolate biscuits
17:02
Speaker 4: are not me. This is little Johnny wiping the RUMs
17:05
Speaker 4: from you think, because their first reaction is to avoid
17:08
Speaker 4: the conflict. So I'm not so hypnotized by post defense
17:13
Speaker 4: livest and I think an intelligent jury and you need
17:17
Speaker 4: a Monday morning jury.
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Speaker 1: What's the difference.
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Speaker 4: Well, you need a Monday morning jury. That is, you
17:21
Speaker 4: need the brightest of the bright to run a case
17:24
Speaker 4: like this. You don't need a Wednesday jury. We've got
17:26
Speaker 4: the dregs of all the ones and the others that
17:28
Speaker 4: knock back right, So you need an astute jury.
17:32
Speaker 1: You need a trial by a judge alone.
17:34
Speaker 2: I was going to say, was that a potential risk
17:37
Speaker 2: choosing a jury trial, or was that.
17:39
Speaker 4: They had no choice way because in Victoria, unlike other
17:42
Speaker 4: states in Australia, we don't have that possibility of having
17:45
Speaker 4: a trial by a judge alone. And a trial by
17:48
Speaker 4: judge alone works excellently. When you have a person who's
17:53
Speaker 4: been subject to a lot of bad publicity, so people
17:56
Speaker 4: have preconceived views on the photos. Aaron Patterson was always
18:00
Speaker 4: portrayed as an overweight, fat, mean looking woman. You don't
18:06
Speaker 4: know Aaron Patterson, whether she's a charming woman or not.
18:08
Speaker 4: But you see those photos and the photos that are
18:11
Speaker 4: constantly played, I mean, are they kindly far from it?
18:15
Speaker 4: This woman was blackguarded right from the start, right from
18:19
Speaker 4: the start, and it's.
18:20
Speaker 2: Really a feature of Australian trials involving women where their
18:24
Speaker 2: demeanor is disproportionately held up as evidence of guilt.
18:29
Speaker 4: Why were the Northern Territory Police so focused on Lindy
18:32
Speaker 4: Chamberlain And if you go back and analyze that case,
18:36
Speaker 4: they thought that she didn't react in a way that
18:38
Speaker 4: a mother would because she sat down and prayed quietly,
18:43
Speaker 4: and therefore they did there's something dodgy about that, just
18:46
Speaker 4: like the doctor in this case who thought there was
18:49
Speaker 4: something dodgy about her reaction.
18:51
Speaker 1: Well, doctor Chris Webster.
18:53
Speaker 4: Yeah, at the hest of light embarrassment and upset and
18:55
Speaker 4: all the rest of it, and somebody jumping to conclusions
18:59
Speaker 4: Lindy Chamberlain was prejudged, and the photos of her and
19:03
Speaker 4: the way she was portrayed and Aaron Patterson was blackguarded
19:08
Speaker 4: in the press.
19:08
Speaker 1: If you look at the photos now, they're horrible. They
19:11
Speaker 1: are horrible, And.
19:12
Speaker 4: The reality is there's always a real chance here at
19:16
Speaker 4: them that a real misjustice has happened.
19:18
Speaker 2: Because we've also seen the normal body language experts come
19:22
Speaker 2: out and they're analyzing her medio appearances and the police
19:25
Speaker 2: interview and so forth.
19:26
Speaker 1: And they don't know, they don't they don't know. It's
19:29
Speaker 1: pseudo science, isn't it real? Pseudo science? It's crap.
19:32
Speaker 4: And somebody jump into conclusion, you know, and I know
19:36
Speaker 4: that when you jump to conclusion that doesn't mean you're right.
19:40
Speaker 4: You're often wrong when you jump to them like somebody
19:44
Speaker 4: who forms an impression. The reality is that one of
19:47
Speaker 4: the people survived, and the elderly person survived, a much
19:50
Speaker 4: younger person would have a greater chance of survival. And
19:55
Speaker 4: if you start thinking in those ways rather than saying, well,
19:58
Speaker 4: how comes you wore white pants?
20:01
Speaker 1: Oh, that's a bit more. Ah, that's very dodgy. Well
20:05
Speaker 1: that's right.
20:06
Speaker 2: And I think the August five police interview really forms
20:10
Speaker 2: the bulk of the Crown case where they tied her
20:13
Speaker 2: to a story which was riven with lies. And I
20:16
Speaker 2: take your point about how people panic, and she was
20:18
Speaker 2: certainly panic and is that about that? But you see
20:20
Speaker 2: it in the movies where people say, oh, we should
20:22
Speaker 2: go to the police.
20:23
Speaker 1: Oh, they won't believe us.
20:24
Speaker 2: So they make up a silly story which actually brings
20:26
Speaker 2: them undone. So the police were very very good in
20:30
Speaker 2: the interviewer in tying her to a story which had
20:32
Speaker 2: these falsehoods. They began with what she said to doctor
20:35
Speaker 2: Chris Webster at the hospital that she bought the mushrooms
20:37
Speaker 2: at Woolworths. It continued with do you own a dehydrator?
20:42
Speaker 1: No.
20:43
Speaker 2: There was also lies about foraging for mushrooms and really
20:46
Speaker 2: in her relationship with Simon's family. There's a bunch of
20:49
Speaker 2: things there, but they're all circumstantial.
20:51
Speaker 4: I don't really want to comment on the case because
20:54
Speaker 4: I did have some involved in It would be wrong
20:55
Speaker 4: of me. Sure, I do say this, I said to
20:57
Speaker 4: you a moment ago. Police approach things in a police
21:00
Speaker 4: interview and skilled interviewers start, they will have in their
21:04
Speaker 4: mind the reasons why they're suspicious, so they will ask
21:08
Speaker 4: the accused person to give them a version. Then they
21:12
Speaker 4: will go through that version and pick it to pieces,
21:15
Speaker 4: and then they'll put their version. Now that's how they
21:18
Speaker 4: do it, but they're doing it as a skeptic, as
21:22
Speaker 4: a skeptic, and what they're doing is then they're latching
21:26
Speaker 4: onto something, whereas people's reactions and in your ordinary everyday life.
21:32
Speaker 4: Just last night, my wife said to me to put
21:36
Speaker 4: the bins out, and I knew she was in a
21:38
Speaker 4: bad mood, and I said, of course, they thought bugger.
21:44
Speaker 4: I had to wait until she went to bed to
21:45
Speaker 4: sneak out and put the bins out right, because sometimes
21:49
Speaker 4: it's easier to avoid a problem. And I think, Adam,
21:56
Speaker 4: what will happen in this case, has happened in Lindy Chamberlain,
21:59
Speaker 4: has happened in these other circumstantial evidence cases, as will
22:02
Speaker 4: happen in Dawson and so on, is that people will
22:06
Speaker 4: go over and over, they will chew the bone on this.
22:09
Speaker 4: And I think you'll find that once the kind of
22:13
Speaker 4: mass mob hysteria of the evil erin Patterson with the
22:18
Speaker 4: horrible photos and the liar and she was nasty to
22:21
Speaker 4: a mother, but all these terrible things they're saying about it,
22:24
Speaker 4: Once that dies down, Lawyers and people like yourself will
22:28
Speaker 4: start revisiting the carcass of the crime, and I think
22:32
Speaker 4: there's going to be more questions and answers.
22:35
Speaker 2: Personally, I always felt on the way through the evidence
22:37
Speaker 2: that the motivation was weak, although I've seen people get
22:41
Speaker 2: murdered for less, but in this case, he was a
22:44
Speaker 2: person with no history of this sort of stuff with.
22:46
Speaker 2: She doesn't have prior convictions, none, none, And here were
22:50
Speaker 2: these nice, decent people coming for lunch and this event
22:54
Speaker 2: takes place. But where was the moment where you go Aha,
22:57
Speaker 2: that's the reason why. And I felt this way all
23:00
Speaker 2: the way through until the jury then retired for its verdict.
23:05
Speaker 2: I thought, I reckon, they're going to find her guilty.
23:07
Speaker 2: How did you feel?
23:08
Speaker 1: Well?
23:08
Speaker 4: I hadn't followed the trial in that sort of detail.
23:10
Speaker 4: But the thing that I was extremely curious about. In fact,
23:13
Speaker 4: I made an inquiry as to the occupations of the jurors.
23:18
Speaker 4: I wondered what they were, because I was intrigued by
23:22
Speaker 4: the fact that they weren't asking questions. And you don't
23:26
Speaker 4: know what goes on inside the jury room, and the
23:29
Speaker 4: only way you'll find out, I mean, the judge has
23:31
Speaker 4: a bit more intelligence because his staff will report on
23:35
Speaker 4: the vibe. But it's the questions that give you the answers.
23:39
Speaker 4: But there was stony silence from the jury room as
23:42
Speaker 4: they are apparently were methodically going through their task. Had
23:46
Speaker 4: there been division within the ranks or worrying about an
23:49
Speaker 4: aspect of proof, that have asked a question, and the
23:53
Speaker 4: longer it went without the question. And I had a
23:57
Speaker 4: number of my colleagues, because I did have some preliminary
24:00
Speaker 4: involvement in the matter, ringing up and saying what do
24:02
Speaker 4: you think? And I said, hmmin, this jury's very methodically
24:06
Speaker 4: going about things. It looks dangerous for the defense. I
24:11
Speaker 4: didn't know, but that's was my hunch.
24:13
Speaker 2: It's your experience tells you that. But it was also
24:16
Speaker 2: noted that the judge spent a long time directing the
24:20
Speaker 2: jury on what was admissible, what was not, and how
24:23
Speaker 2: they should regard evidence. And it could be said that
24:25
Speaker 2: he did his job very very well. Therefore there weren't
24:28
Speaker 2: those critical questions left.
24:31
Speaker 4: Adam, most people you have a lifelong not only history
24:36
Speaker 4: involved in the criminal lord, but a lifelong interest in this.
24:39
Speaker 4: Most people find it very difficult, whether they're a university
24:43
Speaker 4: professor or a tram driver to sit in one seat
24:48
Speaker 4: for day after day and listen to people talking. Now,
24:50
Speaker 4: when the witnesses are giving evidence, there's a certain theater
24:53
Speaker 4: about that. But when the barristers are talking, or when
24:56
Speaker 4: the judge is methodically going through the jury charge book,
25:00
Speaker 4: in going through each post offense conduct edward's lies, whatever
25:04
Speaker 4: it might be, explaining all these things, it's hard work
25:09
Speaker 4: and most people, untrained people don't pick that stuff up
25:13
Speaker 4: at first. Go what's normal to you is not normal
25:17
Speaker 4: to the jurors. That's why their occupations are kind of
25:20
Speaker 4: important to me, to any defense lawyer, rather to understand
25:24
Speaker 4: what their capacities are. If you pick an average jury,
25:27
Speaker 4: not this jury. I mean, I just finished a rape
25:30
Speaker 4: trial on Monday.
25:32
Speaker 1: How's it go? Hung? Jury?
25:34
Speaker 4: Believe it that it was an interesting case. But on
25:37
Speaker 4: that jury, like many jurors, there were three or four
25:40
Speaker 4: jurors who after one or two days sort of weren't
25:43
Speaker 4: that interested. That's what it did over and done with.
25:46
Speaker 4: They didn't make notes. They had a jury book with
25:50
Speaker 4: the exhibits and things. They didn't bring that in when
25:52
Speaker 4: they said please look at exhibit five, just looking up
25:56
Speaker 4: at the ceiling. So you start with a number of
25:58
Speaker 4: passengers in your average jury, there were some passengers then
26:03
Speaker 4: you're going to have.
26:05
Speaker 1: And you don't know who they are.
26:06
Speaker 4: The dominance usually red faced men or something like that,
26:10
Speaker 4: but they could be red faced women. The dominance. They
26:14
Speaker 4: can easily annoy the others because they'll jump to conclusions.
26:18
Speaker 4: And then you have the studious note takers, so you
26:21
Speaker 4: want to know what the occupations aren't and you will
26:22
Speaker 4: actually tailor your presentation of the defense to your jurors
26:30
Speaker 4: because you will talk to the jurors. So if this
26:32
Speaker 4: one's a school teacher, or this one is a social
26:36
Speaker 4: worker in aged care, you might say to them, well,
26:39
Speaker 4: you know how people may get a little bit funny
26:41
Speaker 4: when they get old and they don't always remember things
26:44
Speaker 4: and they misinterpret things. Oh, you know, you'll tailor your
26:47
Speaker 4: case a bit how you present it. These are all acquired, teachable,
26:53
Speaker 4: learnable skills that defense and prosecution lawyers have, as the
26:56
Speaker 4: prosecution will tailor their case.
26:59
Speaker 2: Yes, and do you find in a high profile case
27:03
Speaker 2: like this, where there has been a lot of meeting,
27:05
Speaker 2: almost impossible to find a jury that has not had
27:07
Speaker 2: some exposure to the facts. Do you find that they
27:10
Speaker 2: walk in there with preconceived ideas, and you've got to
27:13
Speaker 2: change them.
27:13
Speaker 4: Of course they do, each and every one of us,
27:16
Speaker 4: no matter how fair minded you are. We have conscious
27:22
Speaker 4: and subconscious preconceptions and biases. And if you are a
27:29
Speaker 4: union psychologist, you'd go back to the archetypes, the evil,
27:33
Speaker 4: which the vestal virgin, the wise old man. These are
27:39
Speaker 4: common archetypes which come from ancient Rome Esop's fables to
27:43
Speaker 4: modern psychology. And these are all inherent and they are
27:47
Speaker 4: inherent no matter what culture you come from. So the
27:51
Speaker 4: archetypes and these are all light, lurk and lie in
27:55
Speaker 4: our preconceived, sometimes unconscious bises. So how do you deal
28:00
Speaker 4: with that as defence council too, Well, that's why you're
28:02
Speaker 4: looking at the type of makeup of your jury becomes
28:04
Speaker 4: very important. But also you have to deal with it.
28:08
Speaker 4: Sometimes you've got to embarrass the jury into being independent.
28:14
Speaker 1: How do you do that without risking losing them?
28:17
Speaker 4: Well, you say to the jury, when you sat in
28:20
Speaker 4: court you heard the accused man charged with rape, or
28:24
Speaker 4: when you came to the court and you saw the
28:25
Speaker 4: accused man of the lot, you'd say, I wonder what
28:27
Speaker 4: he did? And then you heard rape, thought, oh, my god,
28:31
Speaker 4: I'm in a rape case and this man's a rapist.
28:36
Speaker 4: You say to the jury, if you were thinking that line,
28:39
Speaker 4: you'd already made your mind up subconsciously. But you were
28:44
Speaker 4: given an option by the judge to excuse yourself at
28:48
Speaker 4: the start of the trial if you couldn't deal with
28:50
Speaker 4: this sort of case. So the court assumes that you
28:55
Speaker 4: were independent, even though you might have a prieve conceived
28:58
Speaker 4: view that you have said, I volunteer by not asking
29:02
Speaker 4: for an exception. It's particularly right. It used to be
29:06
Speaker 4: more in cases you'd have to work harder. I'm an
29:09
Speaker 4: older barrister. When you had my Italian migrants, they all
29:12
Speaker 4: carry knives these day, guys. You know that these preconceived
29:16
Speaker 4: that the old skippies had. So you have to sometimes
29:19
Speaker 4: embarrass durors into being independent, and do you have to
29:22
Speaker 4: remind them? And it starts and begins with the presumption
29:25
Speaker 4: of innocence. The prosecution has to prove its case beyond
29:28
Speaker 4: a reasonable doubt. Forget try to prove your clients innocent.
29:31
Speaker 4: The jurors have to understand what their role is and
29:34
Speaker 4: if you don't tell them, then you've failed in your job.
29:37
Speaker 2: I've seen more than one defendant who's got en off
29:40
Speaker 2: say thank God for the jury system, and that the
29:43
Speaker 2: jury system gets.
29:44
Speaker 1: It right more than it gets it wrong.
29:45
Speaker 4: Would you agree with that, Yes, I do those who
29:48
Speaker 4: work within the system. No, it's not perfect, but it's
29:52
Speaker 4: better than the alternative. And as I described it before,
29:56
Speaker 4: the juris system is the safety valve in the administration
29:59
Speaker 4: of justice that don't always get it right. And I
30:03
Speaker 4: think the jurors in a high profile case, whether it's
30:07
Speaker 4: a biky, whether it's a cardinal or the Catholic Church,
30:11
Speaker 4: whether it's a fat woman who's being poisoned, having the
30:17
Speaker 4: juror's potential jurors poisoned daily by photos of her and
30:20
Speaker 4: pictures of her, these people have a harder road to
30:24
Speaker 4: travel and harder road to get an independent dura. I'm
30:27
Speaker 4: not saying these jurors weren't independent her trial. Of course,
30:30
Speaker 4: there's no evidence that at all. In fact that there's
30:32
Speaker 4: been so much scrutiny that there are a couple of
30:34
Speaker 4: farcical moments where it was discovered that the media was
30:37
Speaker 4: in the same hotel as the jurors. But apart from that,
30:39
Speaker 4: I think they were sequested well and they've done their
30:41
Speaker 4: job beyond approach. Absolutely, absolutely, and nobody would say to
30:46
Speaker 4: the otherwise.
30:47
Speaker 1: But they have a hard job. Their job is harder.
30:50
Speaker 4: I mean if they're acting for the head of the
30:52
Speaker 4: common Sharos or that vers's the cardinal and the Catholic Church.
30:56
Speaker 4: When everybody's saying, well, you will know these priests are pedophiles,
30:59
Speaker 4: and they're all saying we all know, and Patterson's are
31:01
Speaker 4: poisoner and look at it, fat older which woman.
31:06
Speaker 2: Yes, you know what it's like to have unpopular clients.
31:08
Speaker 2: You represented Mick Howie of the Commentary as you mentioned
31:10
Speaker 2: that in the Sydney Airport melee.
31:13
Speaker 1: How is that?
31:14
Speaker 4: Well, you know these cases, aren't I've represented McMurray in
31:18
Speaker 4: the These people aren't. They're not your best friends, you
31:22
Speaker 4: don't want them are your best friends. In fact, it's
31:24
Speaker 4: harder for the barrister if you like the client. It
31:26
Speaker 4: best to keep well neutral of the client. But acting
31:29
Speaker 4: for in a notorious case presents its own special problems
31:33
Speaker 4: and they have to be dealt with.
31:34
Speaker 1: They can't be ignored. I can't be ignored in this case.
31:40
Speaker 2: What would those special You've actually mentioned it, the preconceived
31:43
Speaker 2: ideas about Aaron Patterson and the archetype that's right.
31:47
Speaker 4: And then the constant portrayal of it. And I think
31:50
Speaker 4: the defense did a very good job in trying to
31:53
Speaker 4: limit the damage the press were doing prior to the trial.
31:57
Speaker 4: And obviously wasn't at the trial, so I can't comment
32:00
Speaker 4: on the trial.
32:01
Speaker 2: But we go back to that critical moment where they
32:02
Speaker 2: decided to put Aaron Patterson on the stand to tell
32:05
Speaker 2: her story.
32:06
Speaker 1: Big decision, big.
32:07
Speaker 2: Decision, and I think by all accounts, she did reasonably well.
32:10
Speaker 2: She certainly didn't collapse in the box and provide the
32:13
Speaker 2: coupdigraph of the prosecution.
32:15
Speaker 1: Did she.
32:16
Speaker 4: I'm lucky in the sense that I'm an older barrister
32:19
Speaker 4: and therefore I've seen a bit more and I really
32:23
Speaker 4: when I started, one of the great criminal trial lawyers
32:27
Speaker 4: who had spectacular success was Frank Galbi. He wasn't embarrassed
32:31
Speaker 4: her sister. Mister Frank, as we all called him. We
32:33
Speaker 4: used to go and watch him. Mister Frank said, you
32:36
Speaker 4: should always called your client. That should be a starting
32:39
Speaker 4: point because the jury would like to hear their story.
32:43
Speaker 4: Barristers are trained by the Australian skill of advocacy in
32:46
Speaker 4: barrister training to be far more cautious these days, But
32:50
Speaker 4: mister Frank said, it doesn't matter how they go, as
32:53
Speaker 4: long as they hold the line. They're not actors, they're
32:57
Speaker 4: just ordinary people. And that's why there's a lot of
33:02
Speaker 4: wisdom there.
33:02
Speaker 1: I mean.
33:03
Speaker 4: But mister Frank practiced in a very different day to
33:05
Speaker 4: the days now. I mean, he used to talk about
33:07
Speaker 4: our Lord and Savior Jesus Christ was taken by the
33:10
Speaker 4: police of Jerusalem and interrogated.
33:13
Speaker 2: You also learned at the feet of a great criminal solicitor,
33:17
Speaker 2: Bob Vernon here in Melbourne. A few of his cases
33:20
Speaker 2: were very and he was a guy, that very dashing
33:22
Speaker 2: individual ran with the hounds and the hairs at times.
33:25
Speaker 4: Oh very much, say, with the black leather overcoat and
33:27
Speaker 4: the little Clark gable mustache. But he was an old
33:30
Speaker 4: fashioned blood and thunder barrister. This was in the days
33:34
Speaker 4: when you're doing robbery and murder trials, where every hand
33:36
Speaker 4: was turned against you. There were no signed records of it,
33:39
Speaker 4: of you, no tape records of interview. Police verbals were
33:42
Speaker 4: very common. Police those days were very different to the
33:45
Speaker 4: way they are now. And in those days, when you failed,
33:49
Speaker 4: you went to John for twenty five years, and those days.
33:51
Speaker 4: I mean murder trials lasted four or five days. I
33:54
Speaker 4: did murder trial at the murder trial.
33:55
Speaker 1: In a week, and this lasted weeks and nine weeks
33:58
Speaker 1: I think in total.
33:59
Speaker 4: And the judge was so careful, you know, everything's in
34:02
Speaker 4: those days. It was just up and at them, you know.
34:05
Speaker 1: Yeah.
34:05
Speaker 2: I did hear one story, maybe apocryphal, about Bob Vernon
34:07
Speaker 2: where one of his junior solicitors was being threatened by
34:11
Speaker 2: one of the clients who was unhappy with the service
34:13
Speaker 2: and had assaulted him, and Vernon turned up at this
34:16
Speaker 2: client's door and shot him in the foot.
34:18
Speaker 1: I don't know if it's sure or not, but it's
34:19
Speaker 1: a good story.
34:20
Speaker 4: Bob Vernon deserves a book. Bob Vernon was a very
34:23
Speaker 4: complicated and unusual character. And somebody was talking to me
34:30
Speaker 4: about a case that I was in with Bob Vernon
34:32
Speaker 4: only yesterday, which involved the fixing of race meetings at
34:36
Speaker 4: Mornington and Flemington, and Vernon ran with the hairs and
34:41
Speaker 4: hunted with the hounds. He was a very different and
34:43
Speaker 4: complicated man.
34:44
Speaker 2: Do you find you have to do that as a
34:46
Speaker 2: barrister where you're where it's not your role to either
34:51
Speaker 2: be a friend of the client, or determine their guilty
34:53
Speaker 2: or innocence, but to represent them, how do you approach
34:56
Speaker 2: that whole question.
34:57
Speaker 4: Well, these days it's a little bit more complicated than
35:01
Speaker 4: it was. Nowadays, the idea is always to keep the
35:03
Speaker 4: desk between you and the client. Keep the desk between
35:06
Speaker 4: you and your client. That's it. They're not my friends.
35:10
Speaker 4: I don't have to go to dinner with them. I
35:11
Speaker 4: don't have to like them. They don't have to like me.
35:14
Speaker 4: These days, clients expect a bit more client management, a
35:18
Speaker 4: bit more hand holding. But you've got to be very
35:21
Speaker 4: careful because clients are treacherous their charge with the criminal offense.
35:25
Speaker 4: This dominates their life. They're not going to the dentist
35:27
Speaker 4: to get a filling. They might be going to job
35:29
Speaker 4: for the next eight years or ten years, or twenty
35:31
Speaker 4: years or thirty five in this case, or thirty five
35:33
Speaker 4: in this case. So you can't say, oh, the clients
35:37
Speaker 4: are friend of mine. You've got to treat them very professionally.
35:40
Speaker 4: You've always got to keep the desk between yourself and them.
35:43
Speaker 4: And I always get my clients to write their instructions.
35:47
Speaker 4: I asked them to read the record of video and
35:49
Speaker 4: comment or ask them to tell their side of the
35:50
Speaker 4: story and under theatic legal instructions to Philip Dunnan's on,
35:54
Speaker 4: so you get their version, so you're always sort of covered.
35:58
Speaker 4: Nine out of ten people changed, or more than nine
36:00
Speaker 4: out of ten people charge at criminal offenses plead guilty
36:04
Speaker 4: more than nine more than ninety percent of the less
36:08
Speaker 4: than ten percent who pleaded not guilty. A number of
36:11
Speaker 4: them clearly have real problems, but for all sorts of reasons,
36:16
Speaker 4: they won't even contemplate a plea a guilty, and the
36:20
Speaker 4: Crown can be realistic in plea bargaining and negotiation, so
36:24
Speaker 4: that's always something that should be explored. But there are people,
36:29
Speaker 4: particularly grandparents charged with sexually enlisting their granddaughters. They'll never
36:34
Speaker 4: plead guilty. They'd burn on the cross rather than say
36:37
Speaker 4: they did it. So you've got to manage your client.
36:41
Speaker 4: You had to point out the pitfalls and then act
36:44
Speaker 4: on their instructions.
36:45
Speaker 2: It certainly is a high stakes moment because running to
36:49
Speaker 2: trial is expensive and if you take up the court's time,
36:54
Speaker 2: they're not going to look so kindly upon you when
36:56
Speaker 2: it comes to sentencing. Aaron Patterson is looking at thirty
36:59
Speaker 2: five to forty years at the moment, which is what
37:01
Speaker 2: Carl Williams got for murdering eight or ten people. And
37:05
Speaker 2: I guess there's a moment when you're dealing with your
37:08
Speaker 2: client and you obviously you can't speak for Aaron Patterson.
37:11
Speaker 2: That was a client confidential conversation, but there must be
37:14
Speaker 2: moments when you've got a client where the circumstantial evidence
37:17
Speaker 2: is so great in a murder trial that a manslaughter
37:20
Speaker 2: plea with the crown makes sense.
37:22
Speaker 4: Always, always has to be discussed. I remember one of those.
37:27
Speaker 4: It's what do I call Plan AM Plan B? And
37:29
Speaker 4: I remember when I was acting for Carmen Lawrence, who
37:32
Speaker 4: was then the Minister for Health and the Keating government,
37:35
Speaker 4: and she was charged with perjury and we sat in
37:37
Speaker 4: my chambers and she was full of fight and confidence
37:40
Speaker 4: and she gave her instructions and then I said, well
37:43
Speaker 4: we should also think about plan B. And she said
37:46
Speaker 4: what's out? I said, what happens to if you get
37:47
Speaker 4: fan guilty? Well she just about passed out at the table,
37:52
Speaker 4: and she said, why don'd be fan guilty? And I said,
37:54
Speaker 4: because I can see immediately these problems in what you're
37:57
Speaker 4: telling me. And she was a very clever woman. Carden
38:00
Speaker 4: Lawrence a very clever. It is a very clever one.
38:02
Speaker 4: And I said to her, you formed a view on
38:06
Speaker 4: your recollection, but the human memory is not a tape recorder.
38:11
Speaker 4: The human memory is not a camera. I'd be greatly
38:14
Speaker 4: assisted if you could go away and do a little
38:16
Speaker 4: paper from me on human memory. Because she's an academic.
38:22
Speaker 4: She came back with one hundred and eighty page document
38:25
Speaker 4: and she said, you know, maybe I can't rely on
38:28
Speaker 4: my memory. I said, nay, you're talking. Don't lock yourself
38:33
Speaker 4: into a position where you might think, because you're so
38:37
Speaker 4: horrified by the allegation of telling lies, that you're being
38:40
Speaker 4: adamant on the rest is history. I'm mean, there's a
38:44
Speaker 4: cigarette verdict. The jury went out, had a cigarette three minutes,
38:47
Speaker 4: came back and I quit it. So clients that have
38:51
Speaker 4: to be managed and sometimes but.
38:54
Speaker 2: It's a hard discussion, particularly when the police case, as
38:57
Speaker 2: in Aaron Patterson's trial, seems to be very strong. The
39:00
Speaker 2: circumstantial evidence is there. I thought, well, listen to the layman,
39:05
Speaker 2: it was, I mean to you, you're seeing the rational alternative,
39:09
Speaker 2: the rat You see the rat the rival alternative theory.
39:12
Speaker 2: Most of us see the archetype that you're talking about
39:15
Speaker 2: where she looks guilty the post conduct.
39:17
Speaker 4: Therefore she wore a white pad, she must be guilty
39:19
Speaker 4: because she wouldn't wear that if she had diarrhea, or
39:22
Speaker 4: she wouldn't tell a lie about the dehydrator.
39:27
Speaker 1: It's kind of nuts.
39:29
Speaker 4: It's almost proof of innocence, the fact that she'd lied
39:32
Speaker 4: about the dehydrator. How so, because it's such a silly lie,
39:38
Speaker 4: it's a nonsensical lie. It's a panic you eye, and
39:41
Speaker 4: she kept the manual that if she had mixed the
39:44
Speaker 4: death cap mushrooms into the dehydrator, and then she hid
39:50
Speaker 4: the dehydrator, didn't hide the manual. And when did she
39:53
Speaker 4: hide the dehydrator when the balloon went up? Right, It's
39:56
Speaker 4: something you could turn to your advantage rather than it's
40:01
Speaker 4: such a silly lie. It shows in a way she's innocent,
40:05
Speaker 4: because if she is the evil, conniving person, she'd got
40:08
Speaker 4: rid of all of this stuff a long time ago,
40:11
Speaker 4: and it would be very simple thing to say, Actually,
40:15
Speaker 4: I'm a forager, and I went out in my forage
40:18
Speaker 4: just around those oak trees over there, and I found
40:21
Speaker 4: these mushrooms, and I thought they'll be just wonderful, natural,
40:26
Speaker 4: not polluted not made with chemicals, not made in a
40:29
Speaker 4: factory somewhere, because I wanted my guests to have a
40:32
Speaker 4: wonderful dinner, and I gave the natural mushrooms. The fact
40:36
Speaker 4: that she told her live about the dehydrator, I would
40:38
Speaker 4: say as an indicator of innocence.
40:40
Speaker 1: Very interesting.
40:41
Speaker 2: I think good way putting it, because really, when you
40:42
Speaker 2: look at it, it would have to be one of
40:44
Speaker 2: the dumber murder plots if you were to put one together,
40:47
Speaker 2: because there's only one possible coproate.
40:50
Speaker 1: Nay, you're cooking.
40:52
Speaker 2: You should have been on the juror because all the
40:55
Speaker 2: evidence pointed towards her, the lies seemed to point towards her,
40:59
Speaker 2: And I think it was a very difficult assignment for
41:02
Speaker 2: the defense in this case.
41:04
Speaker 1: And therefore they were very careful.
41:06
Speaker 4: Analysis was and would have been made by a highly
41:09
Speaker 4: skilled and competent legal team.
41:11
Speaker 2: And she spent a fortune on this. I mean was
41:13
Speaker 2: she inherited something like three million dollars? I think you
41:16
Speaker 2: wouldn't get much change in this sort of a murder
41:18
Speaker 2: trials say.
41:19
Speaker 1: Is that was that right?
41:19
Speaker 4: I'll tell you what, in a case like this, money
41:22
Speaker 4: doesn't matter. You'd do it anyway. Barristers would climb over
41:25
Speaker 4: broken rocks to do this case right.
41:28
Speaker 2: I remember I did a story and a guy called
41:30
Speaker 2: rober John Adams, who'd murdered a woman called Mary Louise
41:32
Speaker 2: Wallace back in only eighty three. He posed as a
41:35
Speaker 2: police officer, met her in a nightclub, took her out,
41:38
Speaker 2: raped her, murder, to dispose of the body, and he
41:42
Speaker 2: for many, many years maintains his innocence. He was finally
41:46
Speaker 2: convicted and got a last sentence, and the question now
41:49
Speaker 2: came up of where is the body?
41:51
Speaker 1: Can you show us where the body is? You can
41:52
Speaker 1: get parole. You aren't that old.
41:53
Speaker 2: I went to visit him at Sessnock Jail and I
41:56
Speaker 2: sat for two or three hours with him, trying to
41:57
Speaker 2: get this question out of him. The answer out, where
41:59
Speaker 2: is Mary's body? Because her family wants to bury her.
42:02
Speaker 2: And you know you'll get out of here if you'll
42:04
Speaker 2: say where the body is. And he said to me, listen,
42:07
Speaker 2: I'm not going to change my story, but look at
42:08
Speaker 2: it this way. I met a woman shortly after Mary disappeared.
42:12
Speaker 2: I married her, I had children with her. They've spent
42:15
Speaker 2: their whole lives in the knowledge of my innocence. I
42:19
Speaker 2: spent their entire inheritance on the defense. Do you think
42:21
Speaker 2: I'm going to turn around now and say yes, I
42:23
Speaker 2: did it.
42:24
Speaker 4: It's like when that fellow who was alleged to have
42:28
Speaker 4: kill Dol Mackay was on his deathbed. It was I
42:32
Speaker 4: think Rondol's or Charlie Bisin. One of those bokes went
42:34
Speaker 4: to scene and they said, the grandchildren of Mackay and
42:39
Speaker 4: the family need to know. Tell us now who We
42:42
Speaker 4: won't say anything till after you're gone. And he said
42:45
Speaker 4: it wasn't me that that little job was now the
42:47
Speaker 4: side of town.
42:49
Speaker 1: James Baisley, I believe Jimmy machine Gun Baisley. Yeah, we
42:52
Speaker 1: went over the wall with Ryan and Walker. That's right.
42:55
Speaker 2: And we've got the same situation with Bradley John Murdock
42:58
Speaker 2: with the murder of Peter Falconio.
42:59
Speaker 1: It's interesting too.
43:00
Speaker 2: He's on his deathbed now palliative care and he's not
43:03
Speaker 2: opening up either.
43:04
Speaker 4: There's some pretty unusual stuff in that case. Don't worry
43:07
Speaker 4: about that. There's some big question marks there really is.
43:10
Speaker 4: There is about Murdock and the drug running and the
43:13
Speaker 4: connection with falconions on.
43:14
Speaker 1: But anyway, there you go.
43:15
Speaker 2: And Derek Ernest Percy he killed numerous children. He went
43:19
Speaker 2: to his grave not admitting to what he did. Why
43:21
Speaker 2: don't defendants make these deathbed confessions?
43:26
Speaker 1: What's in it for them? What's in it for them?
43:30
Speaker 4: And when you talk about Percy or duw passing, these people,
43:32
Speaker 4: they're psychopaths so anyway, so you can't You can't evaluate
43:35
Speaker 4: them by any common sense reasoning or russianing nationale. You
43:40
Speaker 4: know these guys, well, I've only met a few, but
43:44
Speaker 4: you've probably met a few more. But you can't apply
43:46
Speaker 4: ordinary logic to them.
43:48
Speaker 2: You can't. And with Aaron Patterson, this lack of motive
43:52
Speaker 2: was troubling for the media as much as it was
43:54
Speaker 2: for the prosecution, because there was a lot of time
43:56
Speaker 2: spent now going back through her history to show.
44:00
Speaker 1: Make Cinderella's slippet fit on the ugly.
44:02
Speaker 2: Says correct, the irrational behavior, the nonsense call, the lying,
44:05
Speaker 2: and so on and so forth.
44:06
Speaker 4: But if you stop and talk about it and you
44:08
Speaker 4: say it like that, Adam, don't you see the problem
44:10
Speaker 4: and all of that? Of course you see that she's guilty.
44:13
Speaker 4: She's the archetypal, fat, ugly ole witch. Huh over the caldron,
44:19
Speaker 4: She's the evil witch. Oh, she was nasty to a mother.
44:22
Speaker 4: H Oh, she swore at somebody at the air traffic control.
44:26
Speaker 4: Oh really, well, I adam shand and I feel it done.
44:29
Speaker 4: I'd never sworn anybody at work, not.
44:32
Speaker 1: This week anyway. So the archetype comes to play.
44:36
Speaker 2: Yeah, it's like my grandfather Jack Shan Casey. He defended
44:39
Speaker 2: a woman called Shirley Beeger back in the fifties who
44:42
Speaker 2: had a cheating, nasty boyfriend, Arthur Griffiths. She went up
44:45
Speaker 2: to the Checker's nightclub and sat there in a cab
44:48
Speaker 2: outside with her mother with a twenty two rifle. He
44:50
Speaker 2: walks out shoots him between the eyes. And my grandfather
44:54
Speaker 2: saw her as that she was the vestal virgin. She
44:56
Speaker 2: was a model. She was the one that people couldn't convict,
44:59
Speaker 2: And over time he was able to introduce this little
45:02
Speaker 2: bit of element of doubt that perhaps Arthur reached in,
45:06
Speaker 2: grabbed the gun and caused his own demise and she walked.
45:10
Speaker 4: What about Gloria cropeh When mister Frank went on the
45:15
Speaker 4: view of Miss Australia's household where her mother and another
45:21
Speaker 4: move family were charged with murdering the father and delisted
45:25
Speaker 4: his daughters and they're walking around looking at the house.
45:29
Speaker 4: The locus and quo was pointed out from the peepholes
45:33
Speaker 4: that he bored. The father had bored into the girl's
45:35
Speaker 4: bathroom so he'd watch his daughter's showering and masturbate. And
45:39
Speaker 4: mister Frank said Terrence to Terry forest Nast, judge the jury.
45:44
Speaker 4: When the jury see this, our client will be acquitted.
45:47
Speaker 1: And he was.
45:49
Speaker 2: And what about one of the early cases, Margaret Francis
45:52
Speaker 2: Glashen Do you remember that one.
45:54
Speaker 4: Oh, Margaret Francis Glasheen, that's a long time ago that
45:58
Speaker 4: you've done your homework.
45:59
Speaker 1: I have, yes. That was actually the very first criminal
46:03
Speaker 1: trial I.
46:04
Speaker 2: Did, because she was a prostitute who was accused of
46:06
Speaker 2: luring a punter in a situation where her mind could
46:08
Speaker 2: rob him.
46:09
Speaker 4: The badger game it's called, and the defense was identity.
46:14
Speaker 4: And I was a young barrister and I asked far
46:17
Speaker 4: to him and equipped. But the victim had been to
46:19
Speaker 4: the factory breakup and drunk an enormous amount of beer
46:23
Speaker 4: and cognac and whiskey, and he drunk as a lord,
46:26
Speaker 4: and on his way he thought, just killed her to
46:28
Speaker 4: get a woman what he wanted a woman for.
46:30
Speaker 1: In that state.
46:30
Speaker 4: Nobody was quite sure, but he finished up in Fitzroy
46:32
Speaker 4: with Margaret Francis Klasheen, and I thought, I was cooking
46:36
Speaker 4: with gas. How could you identify this up for all
46:38
Speaker 4: that and you're sek and you're vomiting and the add
46:40
Speaker 4: and you went to the He said, well, I don't
46:42
Speaker 4: know about this, but all when I walked into the room,
46:44
Speaker 4: I saw the black Virgin of Kracker on the mantelpiece,
46:49
Speaker 4: quick fumbling through the papers, and there on the mantelpiece
46:53
Speaker 4: in her room in the boarding house in orphics Roy
46:55
Speaker 4: was the black Madonna. The defense suddenly had to do
46:58
Speaker 4: a bit of a U turn then and went from
47:00
Speaker 4: identification to duress. We were coerced into.
47:03
Speaker 2: Doing this, right because you inadvertently put on the scene
47:06
Speaker 2: and they yet to change.
47:07
Speaker 1: Tack up up good identification. Gage. If I kept asking,
47:12
Speaker 1: are you're sure about that? Yes, I couldn't be. And
47:15
Speaker 1: then so yes, that's a long time ago in a
47:17
Speaker 1: different galaxy, that's right.
47:19
Speaker 2: And she was finally quitted. So you did your job,
47:21
Speaker 2: and you pivoted magnificently. Now I think all eyes are
47:24
Speaker 2: now on the appeal for Aaron Patterson. She's not been
47:28
Speaker 2: sentenced yet, so she'll have twenty eight days from that
47:30
Speaker 2: moment to lodge and appeal. People are already fumbling around
47:34
Speaker 2: to find grounds for appeal. What's the process from here?
47:38
Speaker 5: For Aaron Patterson, the process is that the legal tea
47:42
Speaker 5: will have already had a view as to whether the
47:44
Speaker 5: judge is misdirected or left something out, or overemphasized something
47:49
Speaker 5: or for illegal they need to establish a legal error
47:53
Speaker 5: and they will already have a checklist of things that
47:56
Speaker 5: they These are very.
47:57
Speaker 4: Experienced people and so they'll have a checklist. On the
48:00
Speaker 4: other hand, there's a problem because this judge is a
48:04
Speaker 4: very experience judge and a very thorough judge and a
48:07
Speaker 4: very careful judge. Doesn't mean he won't make a mistake.
48:11
Speaker 4: But his wig is gray, not white. You know, he's
48:14
Speaker 4: been around the block, so he knows what he's doing.
48:17
Speaker 4: But that doesn't mean he didn't make a mistake.
48:19
Speaker 1: But they'll be.
48:19
Speaker 4: Looking for one. But they will go against the weight
48:22
Speaker 4: at the evidence. But with the client having given evidence,
48:27
Speaker 4: when you run that as an argument, you have some
48:29
Speaker 4: problems because the court will said the jury formative view
48:32
Speaker 4: of the witness. So it all plants course.
48:35
Speaker 2: Because in the movies, there's that moment of aha, fresh
48:39
Speaker 2: and compelling new evidence. How often does it actually come
48:41
Speaker 2: up between a trial and an appeal.
48:44
Speaker 1: Hardly ever.
48:45
Speaker 4: Actual dream it's like the dream of every young footballer
48:51
Speaker 4: to kick the winning goal in the last fifteen seconds
48:53
Speaker 4: of the Grand final.
48:54
Speaker 1: It's the dream to find the nugget of gold, the rat.
48:59
Speaker 4: The rat's always there, but you need a compelling piece
49:02
Speaker 4: of evidence. It happens rarely. It always happened for Perry Mason.
49:07
Speaker 4: He was able to pluck it out of the sky.
49:10
Speaker 4: But in real life, in the daily grind of the
49:13
Speaker 4: administration of justice, a sausage machine of the justice system,
49:17
Speaker 4: that's very rare.
49:19
Speaker 2: Sometimes it's about limiting the damage in the sentencing. You
49:22
Speaker 2: make some mitigating argument. It might be around mental health
49:25
Speaker 2: or some aspect of the trial.
49:27
Speaker 1: I don't really know.
49:27
Speaker 4: But when you look at the offense and then the offender,
49:31
Speaker 4: they're the starting points in time.
49:33
Speaker 1: But this is a complicated and difficult plan because right
49:37
Speaker 1: now things look pretty black. She'll need be yes. It
49:40
Speaker 1: is it's they're going to earn their money now.
49:43
Speaker 2: A premeditated case where which has been proven. But she
49:47
Speaker 2: set out, she did the research, she foraged for the mushroom,
49:49
Speaker 2: she got all the gear, she made the beef Wellingtons.
49:52
Speaker 2: She tried to lure her husband there as well, apparently
49:55
Speaker 2: so there could have been another victim as well. And
49:57
Speaker 2: at the end of all this, how on earth do
50:00
Speaker 2: you try.
50:00
Speaker 4: These words to show how conditioned you are? You see,
50:03
Speaker 4: I'm a journalist. Yeah, but lu husband, you know this
50:06
Speaker 4: is the grand case. I mean, why not have your
50:08
Speaker 4: family and friends around?
50:10
Speaker 1: Why not? Why not the dinner?
50:14
Speaker 2: I don't think that beef Wellington will behind on the
50:16
Speaker 2: list of most people's menus from here on in. But overall,
50:21
Speaker 2: do you think this is one of those cases that
50:22
Speaker 2: will make law? Are we going to see something that
50:25
Speaker 2: goes like pell.
50:26
Speaker 4: But it'll make it will make controversy. And what will
50:30
Speaker 4: happen because just like Lindy Chamberlain, just like we'd like
50:34
Speaker 4: the rest of them, people will in a more cold
50:37
Speaker 4: blooded way analyze the disadvantages that this unfortunate woman had
50:44
Speaker 4: in running a trial. She didn't come independently before the
50:47
Speaker 4: court and be judged independently of prejudice or bias. And
50:52
Speaker 4: I often tell juries, if you look at the courts
50:57
Speaker 4: throughout Victoria, they often have the statue of justice. Who's
51:00
Speaker 4: a woman who's blindfolded, so she has no preconceived ideas,
51:05
Speaker 4: and she has the scales of justice mone and the
51:07
Speaker 4: sword of punishment. The other this woman justice wasn't blindfolded.
51:11
Speaker 4: This woman was vilified on day one, very heart verd
51:17
Speaker 4: to get a fair trial. And so you will find,
51:20
Speaker 4: I think, just like a linear Chamblain, time will pass
51:23
Speaker 4: and that's the dust settles. People will look at this
51:25
Speaker 4: a bit more dispassionately, like a couple of things which
51:29
Speaker 4: are independent of any conversation or instructions I had in
51:32
Speaker 4: this trial. But I point out it to you, like
51:34
Speaker 4: it's not the color of the plate, it's what's on
51:36
Speaker 4: the plate. It's like the dehydrator. The timing of that
51:40
Speaker 4: is an indicator of innocence, not an indicator of guild.
51:43
Speaker 2: Fascinating, philm Would you hazard a prediction as to the appeal?
51:48
Speaker 1: I know I can't. I wouldn't think you would. Philip.
51:51
Speaker 1: Thank you so much up your inquiries and your good works.
51:54
Speaker 2: You brought a fascinating viewpoint to this because I think
51:56
Speaker 2: there's barely a person in Australia or internationally who would
51:59
Speaker 2: have thought there was any alternative or that she had
52:01
Speaker 2: been vilified. So I think it's a really valuable point
52:03
Speaker 2: and it really goes to the heart about justice system.
52:06
Speaker 2: That reasonable doubt is a very good It's why the
52:10
Speaker 2: jury is the safety. They sometimes get it wrong though.
52:12
Speaker 2: Fantastic Well, thank you Philip Dunn. That's Philip donecasey fascinating case.
52:17
Speaker 2: I don't know what you thought going through the trial,
52:19
Speaker 2: but I always felt the Crown was struggling for a
52:21
Speaker 2: motive and that the overwhelming circumstantial evidence of Aaron Patterson's
52:26
Speaker 2: guild wert way against her, and particularly when it came
52:29
Speaker 2: down to the final deliberation of the jury, I thought
52:32
Speaker 2: she was cooked.
52:32
Speaker 1: I don't know what you thought.
52:33
Speaker 2: Maybe you'd like to share your thoughts with it you
52:35
Speaker 2: give me an email Adam Shand writer at gmail dot com.
52:40
Speaker 2: This has been Real Crime with Adam Shann. Thank you
52:42
Speaker 2: for listening.
52:53
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