Latest / Real Crime with Adam Shand / BEST OF 2025: A Barrister's View on the Mushroom Killer | Philip Dunn KC

Transcript

BEST OF 2025: A Barrister's View on the Mushroom Killer | Philip Dunn KC · Real Crime with Adam Shand

• 0:05
  Speaker 1: Appoche Production.
• 0:13
  Speaker 2: Hello listeners to Real Crime with Adam Shanner.
• 0:15
  Speaker 3: I want to wish you a very safe and happy
• 0:17
  Speaker 3: festive season. We're going to be taking off over the
• 0:20
  Speaker 3: Christmas break, so I wanted to leave you with a
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  Speaker 3: couple of excerpts from my favorite podcasts of twenty twenty five.
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  Speaker 3: I hope you enjoy them, and I look forward to
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  Speaker 3: giving you some new and excellent crime experiences on our
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  Speaker 3: podcast in the new year.
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  Speaker 2: I'll talk to you then. Enjoy.
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  Speaker 1: Because when I saw that she was going to give evidence,
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  Speaker 1: and she gave evidence, I thought that it reflected the
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  Speaker 1: fact that defense felt that the prosecution was struggling with
• 0:49
  Speaker 1: actors raya mensraya guilty mind guilty act Where was the motive?
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  Speaker 1: Was this actually a tragic accident? Is that what you felt?
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  Speaker 2: No, I think that they the first thing. I don't
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  Speaker 2: know what the EVNCH thought, and I didn't do the trial,
• 1:03
  Speaker 2: and they were very skilled, in experienced operators. But in
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  Speaker 2: a trial, if we can talk about a circumstantial evidence case,
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  Speaker 2: and in a trial where your clients told porky pies
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  Speaker 2: in this case, no foraging for mushrooms or whatever it
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  Speaker 2: might be, you've really got to weigh it up, and
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  Speaker 2: sometimes you'll think the jury really wore to hear her
• 1:24
  Speaker 2: side of it or his side of it. But this
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  Speaker 2: is a critical decision and it all goes back. Probably
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  Speaker 2: there are two or three steps when you read the
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  Speaker 2: brief and you will map out the chronology, the timeline.
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  Speaker 2: You'll map out what is the objective or real evidence
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  Speaker 2: that implicates the client in the crime. Then what are
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  Speaker 2: the circumstantial evidences, what are the bits? And in this
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  Speaker 2: case they relied on lies or post offense conduct. Now
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  Speaker 2: what explanations are there for this conduct? So sometimes you
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  Speaker 2: feel that you've got to do it. But the calling
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  Speaker 2: of the client's always a big, big decision, And these
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  Speaker 2: days barristers in Victoria have been trained in the Australian
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  Speaker 2: School of Advocacy and they're trained to be cautious, so
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  Speaker 2: it's uncommon to call your client in Victoria.
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  Speaker 1: I felt it showed a certain confidence to things. But
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  Speaker 1: I guess also could be interpreted as a moment where
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  Speaker 1: they were trying to what you call look.
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  Speaker 2: For the rat rather alternative theory.
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  Speaker 1: Exactly that could explain these facts in a different way
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  Speaker 1: rather than just leading to the inevitable conclusion that if
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  Speaker 1: somebody lies and their post defense conduct is so revealing,
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  Speaker 1: they can only be guilt.
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  Speaker 2: That's right. So that in any case, the calling of
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  Speaker 2: your client is a very weighty decision because the jury
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  Speaker 2: will judge the client and the client's story. And as
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  Speaker 2: Rumpol very wisely said, nothing sinks faster than a cast
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  Speaker 2: iron alibi. You run your defense and they don't like it,
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  Speaker 2: though the judge will tell them put that to one
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  Speaker 2: side and look at the evidence. You're up against it.
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  Speaker 2: You're up against it. So these are This trial will
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  Speaker 2: be one that will be like the Lindy Chamberlain trial,
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  Speaker 2: will be one that will be analyzed backwards and forwards.
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  Speaker 2: And the prosecution led their evidence. The order in which
• 3:21
  Speaker 2: they lead their evidence is up to them. They did
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  Speaker 2: it in a way that they would thought would be effective,
• 3:26
  Speaker 2: and the way that a fence cross examined and what
• 3:29
  Speaker 2: they cross examined on, and what decisions they made. Young
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  Speaker 2: lawyers and older lawyers and academics and people like Adam
• 3:36
  Speaker 2: Shand will be examining it for quite some time to
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  Speaker 2: come and then being wow, maybe we should have done this,
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  Speaker 2: or maybe they should have done that. Because a circumstantial
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  Speaker 2: evidence case and one of the very first of them
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  Speaker 2: you learn in law school is the first conviction of
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  Speaker 2: a murder trial where there was no body the body
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  Speaker 2: that would overboard the boat, and so they had to
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  Speaker 2: convince the jury and they didn't have a body. And
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  Speaker 2: murder trials usually don't have the added complication that this
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  Speaker 2: trial had, And this trial, when you attempted murders and
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  Speaker 2: rapes are much more complicated for a defense council to
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  Speaker 2: run his case, to think of his rival alternate theory.
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  Speaker 2: But in a murder trial, you're usually missing the eye witness,
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  Speaker 2: so the road is open for a lot of interpretation.
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  Speaker 2: But in this case you had a survivor, Ian Werkinson,
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  Speaker 2: somebody who sat at the table as each person cutting
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  Speaker 2: to their beef Wellington and took a spoonful and chatted.
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  Speaker 2: And the demeanor of the people around the table. And
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  Speaker 2: if you picture that table, and I've seen that table,
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  Speaker 2: I've sat at that table. But as the meal is
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  Speaker 2: being consumed, as pleasantries are being exchanged, trifle colty are
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  Speaker 2: bit warm today? How's Auntie Nelly? Oh, what do you
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  Speaker 2: think of the vief Wellington. It's a picture which I'm
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  Speaker 2: sure the prosecution would probably have painted in the minds
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  Speaker 2: of the jurors, which paints once you found that she
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  Speaker 2: put the mushrooms in. There a fairly chilling portrait of
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  Speaker 2: the accused, it.
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  Speaker 1: Really is, and the circumstantial evidence certainly weighed against her.
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  Speaker 1: Things like on that table she served the deadly beef
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  Speaker 1: Wellington's to her guests on the white plates, and her
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  Speaker 1: own plate was a tan colored plate. Could just be
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  Speaker 1: mismatching crockery. But in the hands of the prosecution, it
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  Speaker 1: looks like somebody who's avoiding eating the deadly beef wellington.
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  Speaker 2: That came from the survivor. And I would think that
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  Speaker 2: the problem always was here, what's the motive to kill,
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  Speaker 2: Not the motive to hurt, not the motive to annoy them,
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  Speaker 2: not the motive to literally give them the shits right,
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  Speaker 2: but what is the motive to bump them off? And
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  Speaker 2: anybody with half a brain would say that if you
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  Speaker 2: sit down with five guests and yourself minus the children,
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  Speaker 2: and one person walks away, there's going to be questions asked,
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  Speaker 2: And any half logical person would say, well, how come
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  Speaker 2: you didn't perish as well? And this is the problem
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  Speaker 2: for the crown case. The Crown case picked its skirts
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  Speaker 2: up and skipped lightly along. When they had a survivor
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  Speaker 2: who could talk about mismatched plates, I'd have thought it
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  Speaker 2: was unlikely that she would have mismatched the plates to
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  Speaker 2: give herself, because it's not the plate that's the problem,
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  Speaker 2: it's what's on the plate, right, So I think that
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  Speaker 2: was color and movement, and I think that's been misportrayed.
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  Speaker 2: She made individual beef Wellington's, and she wouldn't have had
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  Speaker 2: tis or crosses on them, but you would have been
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  Speaker 2: able to distinguish. You wouldn't need to have a plate.
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  Speaker 2: It's what's on the plate, not the plate.
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  Speaker 1: Very interesting, good point, but I'll be checking carefully if
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  Speaker 1: I ever get served beef Wellington and the plate's different,
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  Speaker 1: that's for sure. But most of us are trying to
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  Speaker 1: work out did she do it or did she not
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  Speaker 1: do it? But the barrister, the defence barrister's job is
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  Speaker 1: very different. It's about whether there's any doubt. Explain that difference.
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  Speaker 2: In any criminal trial, the judge will tell the jury
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  Speaker 2: right at the outset that the fundamental difference between our
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  Speaker 2: system and say North Korea Iran is that the accused
• 7:22
  Speaker 2: person is presumed to be innocent. They don't have to
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  Speaker 2: prove their innocent. The prosecution has to prove their guilt.
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  Speaker 2: The jury actually is the safety valve in the legal system.
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  Speaker 2: Police come at it with police think, please commit these
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  Speaker 2: cases with police think. So a police officer will conduct
• 7:41
  Speaker 2: they conduct interviews in very much the same way, and
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  Speaker 2: they will conduct things in the same way, and they
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  Speaker 2: have their They're like a one eyed football supporter. I
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  Speaker 2: know they are very very good and industrious and terrific
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  Speaker 2: investigators in Victorian police, and there's some pretty average ones.
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  Speaker 2: But police have a police view about the case. So
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  Speaker 2: what they will do is they will be interpreting through
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  Speaker 2: that lens. What the defense counsel has to do is
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  Speaker 2: to say, I don't have to prove black is white.
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  Speaker 2: I don't have to prove my client is innocent. What
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  Speaker 2: I've got to show is there's a reasonable doubt about
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  Speaker 2: the prosecution view. And so the standard line of attack
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  Speaker 2: will be the police have been a bit one eyed
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  Speaker 2: and how they've gone about their investigation. They started out
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  Speaker 2: thinking she was guilty in it. They've tried to fit
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  Speaker 2: Cinderella's slipper on the ugly sister. What they've done but
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  Speaker 2: here in a circumstantial case. And I can think of
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  Speaker 2: a ripper actually that I was involved in a fellow
• 8:42
  Speaker 2: called Peter Atos, the silver gun rapist. He charged with
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  Speaker 2: eighteen rapes. The man was attired in a balaklava and
• 8:52
  Speaker 2: had a silver gun and nothing much else, and he
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  Speaker 2: raped women. And in those days they didn't have DNA,
• 9:01
  Speaker 2: so they had eighteen different rape cases. And nowhere were
• 9:04
  Speaker 2: saying the coincidence is that the one person did the same,
• 9:09
  Speaker 2: and they pointed to various things in a circumstantial case.
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  Speaker 2: In the defense case she had, all he had to
• 9:15
  Speaker 2: do is find have a reasonable doubt about one of them,
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  Speaker 2: because then if you had a doubt about that, you
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  Speaker 2: had a doubt about the lot. So in a circumstantial
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  Speaker 2: case where you're relying on post defense conduct, wearing white trousers,
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  Speaker 2: which is part of the theory, why would you get
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  Speaker 2: diary would you wear white trousers?
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  Speaker 1: That they're in Patterson who claimed she was ill, also
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  Speaker 1: having eaten some of the beef. Wellington also and that
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  Speaker 1: she claimed that she'd had gastro and wore white pants.
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  Speaker 2: But these are arguments. There are arguments, and their arguments
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  Speaker 2: made by people who are seen that through the lens
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  Speaker 2: that she's guilty. The fact is there is no real,
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  Speaker 2: definable motive, right, there is no motive. These are good people.
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  Speaker 2: I mean, there's no personal beef whatsoever is the most
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  Speaker 2: no motive. There's no motive. And if you apply ordinary
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  Speaker 2: common sense and the plate thing is a furfee. Therefore
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  Speaker 2: panicking afterwards when people have died, I mean all of
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  Speaker 2: us have got children and my case grandchildren. You know,
• 10:14
  Speaker 2: you'll see how quickly people who took the chocolate biscuits
• 10:17
  Speaker 2: are not me, says little Johnny, wiping the crumbs from
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  Speaker 2: his thing, because their first reaction is to avoid the conflict.
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  Speaker 2: So I'm not so hypnotized by post defense livest and
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  Speaker 2: I think I'm an intelligent jury. And you need a
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  Speaker 2: Monday morning jury. What's the difference, Well, you need a
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  Speaker 2: Monday morning jury. That is, you need the brightest of
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  Speaker 2: the bright to run a case like this. You don't
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  Speaker 2: need a Wednesday jury. You've got the dregs of all
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  Speaker 2: the ones and the others that knocked back, right, So
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  Speaker 2: you need an astute jury. You need a trial by
• 10:47
  Speaker 2: a judge A larnt I was.
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  Speaker 1: Going to say, was that a potential risk choosing a
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  Speaker 1: jury trial, or was.
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  Speaker 2: That they had no choice. Why because in Victoria, unlike
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  Speaker 2: other states, in Australia, we don't have that possibility of
• 10:59
  Speaker 2: having a trial by a judge alone, and a trial
• 11:02
  Speaker 2: judge alone works excellently when you have a person who's
• 11:08
  Speaker 2: been subject to a lot of bad publicity, so people
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  Speaker 2: have preconceived views on the photos. Aaron Patterson was always
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  Speaker 2: portrayed as an overweight, fat, mean looking woman. You don't
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  Speaker 2: know Aaron Patterson, whether she's a charming woman or not,
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  Speaker 2: but you see those photos and the photos that are
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  Speaker 2: constantly played, I mean, are they kindly far from it?
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  Speaker 2: This woman was blackguarded right from the start, right from
• 11:34
  Speaker 2: the start, and it's.
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  Speaker 1: Really a feature of Australian trials involving women where their
• 11:39
  Speaker 1: demeanor is disproportionately held up as evidence of guilt.
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  Speaker 2: Why were the Northern Territory police so focused on Lindy
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  Speaker 2: Chamberlain And if you go back and analyze that case,
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  Speaker 2: they thought that she didn't react in a way that
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  Speaker 2: a mother would because she sat down and prayed quietly,
• 11:57
  Speaker 2: and therefore they did there's something dodgy about that, just
• 12:00
  Speaker 2: like the doctor in this case who thought there was
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  Speaker 2: something dodgy about her reaction, well, Dr Chris Webster, Yeah,
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  Speaker 2: at the host of light, embarrassment and upset and all
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  Speaker 2: the rest of it, and somebody jumping to conclusions Lindy
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  Speaker 2: Chamberlain was prejudged and the photos of her and the
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  Speaker 2: way she is portrayed, and Aaron Patterson was blackguarded in
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  Speaker 2: the press. If you look at the photos now, they're horrible,
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  Speaker 2: they are horrible, And the reality is there's always a
• 12:29
  Speaker 2: real chance here at them that a real misjustice has happened.
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  Speaker 1: Because we've also seen the normal body language experts come
• 12:37
  Speaker 1: out and they're analyzing her medio appearances and the police
• 12:40
  Speaker 1: interview and so forth, and.
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  Speaker 2: They don't know, they don't they don't know. It's pseudo science,
• 12:45
  Speaker 2: isn't it real pseudoscience? It's crap. And somebody jumping to conclusion,
• 12:49
  Speaker 2: you know, and I know that when you jump to conclusion,
• 12:53
  Speaker 2: that doesn't mean you're right. You're often wrong when you
• 12:56
  Speaker 2: jump to am like somebody who forms an impression. The
• 13:00
  Speaker 2: reality is that one of the people survived, and the
• 13:03
  Speaker 2: elderly person survived, how much younger person would have a
• 13:07
  Speaker 2: greater chance of survival. And if you start thinking in
• 13:10
  Speaker 2: those ways rather than saying, well, how comes you wore
• 13:14
  Speaker 2: white pants? Oh? Oh that's a bit more. Ah, that's
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  Speaker 2: very dodgy. Thanks for listening to this episode and supporting
• 13:26
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• 13:27
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