A Judge’s Perspective on Murder Trials

Summary

Australian True Crime – “A Judge’s Perspective on Murder Trials”
Host: Meshel Laurie
Guest: Lex Lasry (Former Supreme Court Judge, Victoria)
Release Date: July 29, 2026

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Episode Overview

This episode features an in-depth conversation with Lex Lasry, a deeply respected former Supreme Court judge, who shares candid reflections from nearly 20 years presiding over Victoria’s most significant murder trials. Now retired and hosting a legal podcast of his own, Lasry offers rare insight into the human, ethical, and political complexities of the justice system. The discussion traverses judicial pressures, high-profile cases, the death penalty, sentencing dilemmas, changes in criminal law, and the realities of crime across Australia and the Northern Territory.

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Key Discussion Points & Insights

Retirement, Career Reflections, and Entering Podcasting

• Lasry recounts retiring three times (“I’ve been a judge for 19 years, 34 years the bar. It’s enough.” [02:08]) and why this retirement is definitive—citing exhaustion from exposure to others’ grief.
• Emphasizes the toll of constantly dealing with tragedy, especially in murder and major crime trials.
• Surprised listeners by saying he wouldn’t repeat his judicial career:
  • “Absolutely not…If I had more talent and more opportunity, probably be a musician.” [06:43]
• Now channels his legal experience into podcasting, seeking to demystify the law for the public:
  • “I’m excited about the idea that I can translate some aspects of the law in a way that people can understand and be interested in.” [07:42]

Judicial Independence and Professional Tensions

• Lasry explains a major low point: a public conflict with the DPP over the Eastern Freeway crash trial and uncommunicated complaints lodged against him (03:40–05:57).
• The fallout led to his resignation (“I just decided this whole process was not one I wanted to be involved in.” [05:46]), highlighting the lack of transparency and professionalism in such proceedings.
• Felt deeply the personal nature of institutional criticism (“Oh, yeah, it felt personal, yeah. That was definitely personal.” [06:16]).

Sentencing: Human Impact and Judicial Dilemmas

• Describes the emotional strain of sentencing, especially young offenders (“It is difficult. And...we have this process in sentencing where the judge looks the offender...in the eye…It’s not that easy.” [08:53])
• Notes profound moments in court—like the tense silence after Erin Patterson’s sentencing:
  • “The only sound in the room was the chinking of her handcuffs as she stepped down the steps and walked away.” [10:12]
• On the performance aspect of sentencing:
  • “It is a performance, although it’s not meant to be…once you’re underway, it gets easier. That’s first. A few sentences can be a bit halting.” [11:12]
• Lauded for sentencing remarks that force all present to confront the micro-level brutality of crimes (“The Farquharson remarks were unbelievable…made everyone consider the point of view of the three children that he…murdered.” [12:41])

Legacy and the Death Penalty

• Identifies anti–death penalty activism as his central legacy (“I fought pretty hard in death penalty cases and fought hard in public against the death penalty in other countries.” [13:12])
• Shares the personal toll and futility in foreign death penalty cases, such as Van Nguyen (“We lost. He was executed.” [13:40])
• Rationale against capital punishment:
  • “If you drop to the level of the criminal by killing the accused, then in many senses you’re no better. We’re better than that kind of revenge.” [15:11]
  • Stresses the fatal consequences of wrongful convictions and risk of executing innocents:
    • “Can you imagine going to the gallows or to the electric chair, knowing you are not guilty and about to be put to death? It’s just unimaginable.” [16:07]

Explaining the Law and Its Politics

• Lasry’s podcast addresses both headline legal issues and major criminal cases; aims to untangle complex intersections of law and politics (“The law is political…and a lot of people don’t want to admit that” [17:47]).
• Critiques mandatory sentencing (“It’s a shame that’s happened because…we don’t trust you [judges] with a sentencing discretion.” [18:09])
• Describes the British roots of Australia’s legal system and why some local adaptations are improvements.

Nuanced Criminal Law and Domestic Violence

• Discusses self-defence in domestic violence cases and evolving legal attitudes (“No, you don’t have to have the knife in the stomach…if you have a belief it's necessary…that’s self defence.” [20:35])
• Highlights the importance of courts in fairly applying self-defence provisions, especially for Indigenous and marginalized women.

Victim Impact Statements and Their Limits

• Differentiates the purpose of victim impact statements in Australia and the US; Australian statements are limited to describing the impact of crime, not advocating punishment or expressing abuse towards the accused (“I think most judges…bent the rules a bit to enable people to have their say…but it’s gotta be constrained.” [22:32–23:39])
• Expresses ambivalence about the “victimology” aspects fueling some courtroom outbursts and media interpretation.

Role and Integrity of Defence Lawyers

• Emphasizes crucial role of criminal defence in maintaining fair trials—ensuring police and system accountability:
  • “If you’ve got a great defence…then the jury can believe everything they hear.” [25:10]
• Recalls the dark era of uncorroborated (and sometimes fabricated) police interviews (“Very often just a complete fabrication.” [25:52]), improved only with mandated recordings post–Coldery reforms.

Technology, Evidence, and Jury Duty

• Shares how technological advances like compulsory recording and phone data have changed trials (~[26:30])
• Encourages public to serve on juries—stating it’s “the most important civic duty you can perform in peacetime.” [28:07]
• Praises the conscientiousness and commitment of jurors, often underestimated before their service (“People are committed to doing the job properly.” [28:31])

Security, Courtroom Drama, and the Changing Underworld

• Most courtroom outbursts are rare; recounts being threatened by notorious hitman Chris Flannery (“He kept screaming from the dock, ‘You’re off, you’re off’.” [30:01])
• Observes modern organized crime’s increased ethnic diversity; less “professionalization” among hitmen, and emergence of online “Crime Taskers” [31:26]

Northern Territory Justice and Indigenous Incarceration

• Most Northern Territory murder trials involve Indigenous defendants; Lasry laments how the system fails Aboriginal people (“Instead of treating them with respect, we've filled them with booze…and they’re suffering the consequences.” [32:55])
• Notes efforts by some judges to show cultural awareness and learn Indigenous languages.
• Stark statistics: “85% of the prison population in the Northern Territory is Indigenous.” [33:20]

Role of the Victim in Proceedings

• Clarifies that the criminal process exists primarily to try the accused—not as a platform for victim healing or vengeance:
  • “The victim is a witness, they’re important witnesses and they’re important people. But…the system is there to deal with…the person charged with the crime.” [34:32]

Prison Realities

• Lasry has personally visited several major prisons (Pentridge, Barwon) and notes the wide disparity in conditions.
• Adds that sentencing carries a profound awareness of these environments and their impact on those convicted [36:31].

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Notable Quotes & Memorable Moments

• “I just got to the stage where I thought, I just don’t want to do this anymore. I’ve been a judge for 19 years, 34 years the bar. It’s enough.” (Lex Lasry, [02:08])
• “To kill someone is just to reduce the community to that level. So that’s the main reason [to oppose the death penalty].” ([15:11])
• “I’m excited about the idea that I can translate some aspects of the law in a way that people can understand and be interested in.” ([07:42])
• On sentencing: “Deep breaths, really, just before you walk through the door onto the bench. And then the inevitability of the situation takes you over. You know, I have to do this.” ([11:12])
• “Can you imagine going to the gallows or to the electric chair, knowing you are not guilty and about to be put to death? It’s just unimaginable.” ([16:07])
• “If you drop to the level of the criminal by killing the accused, then in many senses you’re no better. We’re better than that kind of revenge.” ([15:11])
• “Mandatory sentencing…is a shame that’s happened because…we don’t trust you with a sentencing discretion.” ([18:09])
• On juries: “Perhaps you now understand why I said...this is the most important civic duty you can perform in peacetime.” ([28:07])
• On Indigenous incarceration: “85% of the prison population in the Northern Territory is Indigenous…and they’re suffering the consequences of that.” ([33:20])

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Important Segment Timestamps

• 02:08 – Lasry on his final retirement and the toll of judicial work
• 03:40–05:57 – DPP complaint and judicial conflict details
• 06:43 – Would not choose a legal career again; might pursue music
• 08:53 – The challenge and emotional cost of sentencing offenders
• 09:47–10:12 – Tension and atmosphere in sentencing hearings
• 11:12–12:08 – Sentencing remarks as performance and ritual
• 13:12–15:42 – Death penalty activism, rationale, and its ethical import
• 18:09–19:13 – Mandatory sentencing and its impact on justice
• 20:35–21:20 – Self-defence in domestic violence context
• 22:32–23:39 – Limits and controversies in victim impact statements
• 25:10–26:11 – The crucial role of defence lawyers and records of interview
• 28:07–29:02 – Jury duty as paramount civic duty and juror experiences
• 32:55–33:20 – Indigenous incarceration in the Northern Territory
• 34:32–34:54 – The legal system’s focus on the accused, not the victim

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Conclusion

This episode stands out for its raw honesty and the unique window it provides into the mind of a judge faced daily with moral burden, organisational politics, and the complex interface between law and lived reality. Lex Lasry demonstrates why public understanding of the legal system—and its human elements—is crucial, inviting listeners to see beyond headlines into the nuanced machinery of justice, its triumphs, and its failures.

Transcript

[A]

If you love digging deeper into the stories behind the headlines, there's a new podcast I think you'll love. It's called Law the Podcast from the team behind Australian True Crime, hosted by former Supreme Court judge lex lasry.am Peter

[B]

Dutton described me as a left wing

[A]

ideologue and leading barrister. Greg Barnes.

[B]

SC leave aside, you know, the issues of human rights, et cetera, it doesn't decrease your crime rates.

[A]

Going beyond the headlines. To explain what the law means, why it matters and how it affects us all, get Law the Podcast on the free Iheart app or wherever you're listening now. This is Australian True Crime with Michelle Laurie. Our guest today is Lex Lasry, one of Australia's most respected lawyers and a former justice of the Supreme Court of Victoria who spent nearly two decades presiding over some of the state's most significant murder trials. Now retired, Lex has launched a podcast. It's called the Podcast with Greg Barnes, where they unpack the legal issues behind the biggest stories making headlines. This is Australian True Crime. We acknowledge the traditional owners of the land on which this podcast is created, the Wurundjeri Woi Wurrung People of the Kulin Nation. And a warning. This episode of the podcast contains graphic descriptions of violence. Lex Lasry, formerly of the legal profession. Yes, Newly. Of show business.

[B]

What a great description. How do you put that on a business card?

[A]

Just exactly that. I am so excited to have you in showbiz. Cause you've finally retired.

[B]

I have, Michelle. Yes. It's a great feeling of relief, I must say.

[A]

But did you feel that relief the other two times when you came back?

[B]

No, no, no. The first time I retired, I knew straight away I'd done the wrong thing and I said, I want to come back. And they took me back. The second time was under much more difficult circumstances and I resigned because of the conflict with the dpp. This time I just got to the stage where I thought, I just don't want to do this anymore. I've been a judge for 19 years, 34 years, the bar. It's enough.

[A]

It's a lot.

[B]

It's enough. And as I've. I did a podcast recently and I did say to Michael Green in the course of the Lives in the Law podcast, I'm just tired of dealing with other people's tragedies and conflicts. So it's good not having to do that.

[A]

Yeah, that is a lot, isn't it? That is every day at work is pretty much every day is someone else's tragedy.

[B]

Yeah, well, I mean, in the Supreme Court. For me, it was mostly somebody else's death in one form or another, and it is for the other. I mean, it's not just me, it's all judges are the same. And I'd had enough.

[A]

Yep. The last time, the second time that you retired and the issue with the dpp. So from that moment on, you stayed a Supreme Court judge in the territory?

[B]

No, I had a. I resigned from the Victorian Court and then I had a year not doing anything right. And then the Northern Territory Court offered me a position as an acting judge, which I did for since the start of last year, which was great. It gave me a chance, actually. It gave me a chance to sort of feel what it was like to be a judge again and to feel that I could still do the job properly. And I smiled at my protagonists back in Melbourne, when they appointed me in the Supreme Court in the Northern Territory. It was a bit of getting even, I think.

[A]

Yeah, absolutely. Can you tell us about what was the. What was going on in Melbourne, in Victoria?

[B]

Oh, yeah, I've talked about it before. So I had been the trial judge in the case arising from the Eastern Freeway crash that killed four police.

[A]

Oh, hideous.

[B]

Yeah. I didn't sentence the driver of the truck, but I had the guy who was, in effect, the manager of the driver, who supervised his driving, and he was charged with heavy vehicle offences. But also the Crown decided to charge him with four counts of manslaughter on a sort of distant basis. Anyhow, during the course of a directions hearing, the prosecutor announced to me that those four manslaughter charges were not to be proceeded with. And I said, why? And I said, we're not telling you, we're just not proceeding with them. And then I said, well, surely the community, families of the police, everybody involved is entitled to some explanation. No, not giving it. So that was that. So I was very critical of that and I was critical of the way the other aspect of the case had been handled. That led to an argument before me on behalf of the fellow who was still before the court for a stay of the proceedings. And in the end, I granted the stay, stopped the case, basically. Crown appeal to the Court of Appeal, The Court of Appeal resoundingly overturned my ruling, quite, quite expressively, you'd have to say they were very critical of my ruling. Yeah, that's life. That's what happens.

[A]

Yeah.

[B]

So the case went, obviously went to another judge. I continued on hearing cases and was in the middle of a quite a large murder trial in February of 24 when I was told that in August of the year before that, the DPP had made a complaint to the Judicial Commission about me, which everybody knew about except me. I took the view that that was unacceptable. I was the subject of a complaint by the dpp. I was hearing cases being prosecuted by the dpp. No one told me I was the subject of complaint. And I just decided this whole process was not one I wanted to be involved in. So I resigned. Which effectively deprived the Judicial Commission of any jurisdiction to deal with the complaint.

[A]

Yeah. It seemed like a real breach of trust and sort of professional respect at the time to me. It seemed like there had to be better ways of resolving an issue, and

[B]

there was no issue to be resolved. The Court of Appeal had dealt with my ruling. They had made their views clear.

[A]

Well, yeah, I guess that's what I mean. I mean, there are processes.

[B]

Yeah. And they. I just seemed. To me it was. Well, I think I know what it was, but I'm not willing to say what I think it was.

[A]

And personal. Did it feel personal?

[B]

Oh, yeah, it felt personal, yeah. That was definitely personal.

[A]

Yeah. And there really is no room for that. And shouldn't be room for that.

[B]

No, no.

[A]

So now retired on your own terms?

[B]

Retired on my own terms, yeah. And wouldn't do it again, but I'm happy it's over.

[A]

You wouldn't do what again? Not the whole career, yeah. Really?

[B]

Yeah. Absolutely not.

[A]

That is crazy, Lex. You've had a storied career.

[B]

No, no, I wouldn't do it again.

[A]

Would you not?

[B]

No.

[A]

What would you do?

[B]

Well, if I had more talent and more opportunity, probably be a musician.

[A]

Yeah.

[B]

I don't think racing driver was ever gonna make me a living. I just didn't have the courage in the corners. But music. I would love to have done something like. Something creative.

[A]

Yeah. Right. Interesting. More of a passion, perhaps, is why

[B]

I'm now doing what I'm doing with you.

[A]

Now you're podcasting.

[B]

That's right.

[A]

Which is so weirdly. No, greatly weird. Wonderfully weird. Like, so unexpected that you've developed a passion for it. I'm so excited about that.

[B]

It'll be interesting to see the reaction it gets.

[A]

Yep.

[B]

It will be interesting to see the criticism that I particularly get for doing it.

[A]

Where are you expecting criticism from?

[B]

Oh, I can hear rumblings of people saying it's just not appropriate for a retired judge. He should just go off and enjoy his retirement.

[A]

Well, you are.

[B]

I am.

[A]

This is how you're doing it.

[B]

That's how they deal with people. People who are troublemakers.

[A]

Yep.

[B]

They tell them to stick to their knitting. I'm excited about the idea that I can translate some aspects of the law to, in a way that people can understand and be interested in.

[A]

We do need it. We've contacted you a couple of times to say, Justice Lasry, what does this mean? What does that mean? How do these things happen? So we do need it.

[B]

Yeah. And I think a lot of the criticism of lawyers and judges is because people don't really understand.

[A]

Yes.

[B]

And I think the media take advantage of that. They know people don't understand. So you get the one line criticisms, soft on crime and not in accordance with community expectations and all that sort of stuff.

[A]

Yep.

[B]

That only happens because people let it happen, because they don't really understand how the system works.

[A]

We've talked sentencing. I've asked you questions about sentencing before because there's a constant push and pull about too much, too little. I'm always complaining about the length of sentencing for sex crimes and I have learnt a lot just from talking to you about, you know, the legislation, the way that your hands are tied to a certain degree and all those things.

[B]

Yeah.

[A]

But most, I guess, informative for me was just thinking about having an offender in front of you, particularly a young person, and considering putting them in jail for a really long time and the difficulty of that.

[B]

Yeah. Or worse, knowing you have to. Knowing that there isn't a great deal of choice. Yeah. It is difficult. And as I think I've probably discussed with you before, we have this process in sentencing where the judge looks the offender or the accused in the eye, who's sitting in the dock and speaks to them directly. It's not that easy.

[A]

I was at Erin Patterson sentencing. It's the first time I've been in the room and I'll never forget it. The tension in that room, the shame.

[B]

Yeah. Some judges, I remember a couple of judges a long time ago, used to come onto the bench and announce what the sentence was and then give the reasons because they wanted to get it out of the way.

[A]

Right.

[B]

You'll be sentenced to 15 years with a minimum of 10. Now, let me tell you why that's. Whereas, I mean, no one does that now and I don't think they should. But when you are doing it the way it's done now, say you start by announcing what the case is about and work your way through the material and all the reasons you can feel the build up.

[A]

Oh, yeah. To the result, all the reasons why you're about to give the sentence you're giving and we're all sitting in the room going, oh, God.

[B]

It is very stressful.

[A]

I mean, the quietness. It's silent in the room. And then I remember after Erin Patterson's sentencing, the only sound in the room was the chinking of her handcuffs as she stepped down the steps and walked away.

[B]

Yeah.

[A]

You couldn't recreate that on television or in a movie, I don't think.

[B]

No, you do sometimes get screams of outrage or other things. Other things going on. Family of the victim might get agitated, whatever. But, yes, that silence is deafening.

[A]

And how's the performance pressure, by the way? I often think about this as athletes, you know, you're playing footy or tennis, not only are you focusing on what you're doing, but you've got an audience of thousands or potentially millions. But in your case, you've got an audience in that room of your peers, of family, of media. And sometimes your sentencing remarks are long.

[B]

Yes.

[A]

You're sitting down and a bit turgid at times. Torrid, I would say.

[B]

Torrid.

[A]

And so when you sit down, everyone's standing up, you sit down, everyone sits down. And you're about to launch into what you know is going to be quite a performance.

[B]

Yes.

[A]

How do you psych yourself up for that?

[B]

Well, I've never found that easy. I've always struggled with that sort of stuff. And you just have to. Deep breaths, really, just before you walk through the door onto the bench. And then the sort of inevitability of the situation takes you over. You know, I have to do this. I'm part of the process, so I'm gonna do it. And once you're underway, it gets easier. That's first. A few sentences can be a bit halting.

[A]

But it's like any performance, isn't it, once you're in the zone.

[B]

Yeah.

[A]

And you've rehearsed it many times before, I'm assuming.

[B]

Well, not spoken out loud.

[A]

No. Really.

[B]

And it is a performance, although it's not meant to be. It is meant to simply be a judge reciting the reasons. And often that's just what it sounds like in a monotone. Not much character in the voice. Sometimes. Some judges put more character into their sentences than others. A lot of them sometimes give the impression they just want it to be over and get through it as quickly as possible.

[A]

But I find with yours, I've read many, many of yours either. A lot of them been reprinted in the newspaper. They've been so profound. So sort of gut wrenching, because a lot of the time you will really remind an offender and remind everyone in the room of what happened at quite a micro level, if that makes sense. I mean, the Farquharson remarks were unbelievable. Lex, when you really made everyone. I'm getting shivers thinking about it now. Made everyone consider the point of view of the three children that he. His three children that he murdered. Strapped them in the back of the car seat, drove them into the dam, and you really made us. Yeah, I'm sort of lost for words about that. When you know you're gonna deliver something like that.

[B]

No, that was hurt. That was a hard one.

[A]

What do you think your legacy will be? What will we be saying about, you know, when in years to come, he became a podcaster. Yes, that's true. And then he became a podcaster, and he's a superstar. What do you think your legacy will be in legal circles?

[B]

If I had to guess without being egotistical about it, I probably. I would guess that it is that I fought pretty hard in death penalty cases and fought hard in public against the death penalty in other countries.

[A]

Yeah.

[B]

I think. And there are other people who've done that and more. But probably that's. If anyone remembers me for anything, it'll probably be for that.

[A]

I think it is.

[B]

Van Nguyen and so on.

[A]

Yeah. It is pretty memorable because obviously you had a day job, you were busy. It's not like you were looking for a hobby.

[B]

No. And it wasn't much of a hobby.

[A]

No.

[B]

We lost. He was executed.

[A]

So it was tough when you implanted yourself or put yourself into people's cases overseas in other jurisdictions. So you didn't actually have any authority in these jurisdictions. You went as a lawyer. And for people who didn't have a lot of money or didn't have. Who weren't famous or, you know, people who needed help.

[B]

Yeah, well, we. Julian and I did that case. And likewise the Bailey case, which Julian did through to the end. That was all for nothing. But, you know, I was committed to it. I was committed to it. I believed in it. I still do. And I thank Barry Jones for that, because Barry Jones was a man who led a campaign against capital punishment at a time when capital punishment was quite a popular outcome.

[A]

Yeah. And it's still a hard battle to fight when people are facing drug charges, isn't it?

[B]

Pauline Hanson wants to reintroduce the death penalty in Australia. In Australia. So people who are thinking about one nation and what they represent, that's something they should think about.

[A]

And also talk to us as someone who has seen, frankly, some of the worst of Humanity. Why do you still say. Let's say you've seen Farquharson, you've seen people who a lot of us would say shoot them. A lot of us would say, I hate this person. He's a malfunctioning human being. Why should he be allowed to live when he's murdered his three children, for example? That's one example. But you've seen hundreds of them. So why are you, of all people, so passionately saying it is never appropriate to kill someone on behalf of the state?

[B]

Because I'm concerned about the civilisation of our community. And if you drop to the level of the criminal by killing the accused, then in many senses you know better. We're better than that. We're better than that kind of revenge. Sentencing has to occur. Community is entitled to be protected against dangerous people. But there are all sorts of other things about sentencing that can have a beneficial effect. But to kill someone is just to reduce the community to that level. So that's the main reason.

[A]

And not to mention, even really smart guys like you can sometimes get it wrong.

[B]

Absolutely. And juries can get it wrong. There are innocence projects around the world that are finding people, the United States in particular, people who've been sentenced to death, some people who've been executed who are innocent. Yeah. Can you imagine going to the gallows or to the electric chair, knowing you are not guilty and about to be put to death? It's just unimaginable.

[A]

So many times those people will say, or have said, I didn't think I had anything to worry about. Cause I knew I didn't do it.

[B]

Yeah, yeah.

[A]

But it can happen.

[B]

It can happen and does happen. Has happened. We need to be careful

[A]

what's happening on your podcast, though, because I am, like, all about the crime. I'm all about the, you know. And then what happened, Lex? And who was that bloke? And I love that, talking about your career. But firstly, you're very forward focused.

[B]

Yep.

[A]

And secondly, this is about. There's a lot of politics in this show.

[B]

Well, because I'm doing it with Greg Barnes, who's a very energetic young man.

[A]

Yes.

[B]

If young man is the correct description.

[A]

I would describe you both as energetic young men, actually.

[B]

Yes. So it's called law, the podcast. It's intended to be about the law. We started, for example, in the first episode, talking about the legality of the attack on Iran by the United States and Israel.

[A]

Yes.

[B]

So that's an example of the sort of thing that we're wanting to talk. We do talk about criminal cases. We had Rob Starry on recently and we talked about crime with him.

[A]

Yep.

[B]

Tim Marsh about mental illness and its intersection with the criminal law.

[A]

We loved him.

[B]

You had Tim on.

[A]

Yeah, Defence counselor.

[B]

We do those things. But we've just had Gabrielle Shipton, Julian Assange's brother, on talking about the Assange campaign and the resultant organisation that's developed from that campaign. So we're. And we've been talking about judges and particularly the controversial judges. I love controversial judges. So we'll always talk about them when they get into the media. So I hope it's pretty broad ranging. Yeah, there's going to be some politics involved.

[A]

Well, it sort of reminds me of how political the law is.

[B]

It is, yeah. And a lot of people don't want to admit that, but it is political.

[A]

Are we still very closely related to the British system?

[B]

Well, our system basically still mirrors the British system. There's a lot of differences. But we are obviously much more British than we are American in the way that we. Particularly the way we prosecute the criminal law.

[A]

But have we developed our own?

[B]

Yeah, we have.

[A]

Okay.

[B]

Yeah. And I think in many ways ours is better. But in both systems things have changed, which I don't like. Mandatory sentencing is probably the best example of it. It's a shame that's happened because what mandatory sentencing does is tell the the courts, we don't trust you with a sentencing discretion.

[A]

Describe mandatory sentencing for us. What does it mean?

[B]

It means there's an act of Parliament that says if you commit a particular offence, then you get a minimum of 10 years imprisonment or whatever. Some of the provisions have a get out clause by saying unless there are exceptional circumstances, but others don't. So in the Northern Territory, for example, where I've recently been, the mandatory sentence for murder is life imprisonment. The mandatory minimum period for someone who murders their domestic partner is 25 years. I think there's an exceptional circumstances provision there as well. But if no one pleads guilty anymore because there's no benefit, the sentence is the sentence.

[A]

There's a lot in there, isn't there? There's a lot, yeah. Because crimes are nuanced. Every crime has its own situation, its own details.

[B]

Yeah.

[A]

And of course I am thinking about, okay, what if a woman murders her partner because he's been violent to her for 30 years and. But in that scenario she still gets this very heavy sentence. She's committed a domestic murder.

[B]

Well, yes, but I've had a couple of those cases and women in that situation are almost certainly able to run Self defence.

[A]

Okay.

[B]

On the basis that I had an honest belief that if I didn't kill him, he was going to kill me.

[A]

Yeah.

[B]

I had a famous example of that where the woman who was charged and was acquitted said. I've never forgotten the phrase. She said. I looked at him and I know that look.

[A]

Yeah.

[B]

And I'm sure that resonates with a lot of female victims of domestic violence. I knew that look.

[A]

Yeah.

[B]

And so self defense is, I think, often available.

[A]

So even that's interesting. Again, it's so nuanced, but I think the law is reflecting that more now. I mean, certainly with coercive control laws and things like that, isn't it? Because I would have thought to claim self defence, you would have to be in an absolute moment of threat. He would have to be in the process of trying to kill you rather than. I know that look.

[B]

But in this particular case, one that I remember being involved in, he'd come into the house and was sort of yelling her name and demanding she do whatever he wanted her to do, probably sex, but not always, or perform some domestic task. And was enraged. And she knew if she put her foot wrong, she was gonna be. She wasn't gonna be shot, but she was gonna be beaten to death, potentially. That was her belief and it was reasonable. So, no, you don't have to be. You don't have to have the knife in the stomach. You don't have to have got to that stage. If you have a belief that it's necessary to do what you did to defend yourself and save your own life or the life of someone else, a child, for example, then that's self defense.

[A]

Okay. That's interesting. And positive. Positive development.

[B]

Yeah. And I think, look, I think the law. I think courts particularly take this sort of stuff very seriously and are very keen to make sure that those sort of rules are applied fairly to people who need some protection.

[A]

I don't know if you've noticed at all, but the Bryan Kohberger case in the States, he was the man who killed the four students in Idaho and he recently plead guilty. And so. But he's never ever talked about why he chose these people or anything. So it's very frustrating for the families.

[B]

Sure.

[A]

When it came to victim impacts, one of the victim's sister in particular, Olivia Gonsalves is her name. Her victim impact statement was blistering. She turned this lecture turn towards him. She just gave it to him. Everything under the sun, up to and including alluding to hoping he's raped in prison and I thought, I get it. But I've never heard anything like that. And I've met people who've talked about giving their own victim impact statements and how they were edited, how they were. I think their lawyers or somebody would say to them, you can't really say that. You can't really say that. So what are the rules in Australia around those?

[B]

Well, in the simplest of terms, a victim impact statement is meant to describe the impact of the crime on the victim. So anything else, including abuse, is outside the realm of a victim impact statement. So that's why they're edited, because they're supposed to talk about how the crime affected them. They're not supposed to talk about what they think the sentence should be or that they hope they suffer in jail or whatever it is. I think most judges certainly, I thought I was pretty flexible about these things and sort of bent the rules a bit to enable people to have their say. I've had plenty of victims who've wanted to deliver their own victim impact statement, who've done what you described, come to the bar table, read the statement, looked at the accused and given it to them. Not quite to that degree, but certainly angry. I'm ambivalent about the whole process. But it's what people, if they get a benefit from it, I suppose that's okay. It's obviously appropriate that courts take into account the impact on the victim. Often it's obvious.

[A]

Yeah. Because that's part of your job is to.

[B]

It is, yeah.

[A]

Have done that already.

[B]

Yeah. But I think it's gotta be constrained and sometimes I think there's a. There's a bit of a victimology about all this. And I think there are people who professionally get involved with victims to not only get them to have the aggressive victim impact statement, then there's the doorstop outside the court afterwards and the system has let us down again and there's no justice and he's lost the right to live and all that sort of stuff. But anyhow, it goes with the territory.

[A]

To the best of your knowledge, do they have the same rules in the states? Like, do you think this was a case of the judge being like be giving some leeway or do they. Is it more of a free for all?

[B]

Well, the judge might have been confronted with a victim addressing the accused and saying things that weren't in the document.

[A]

Oh, well, there's that.

[B]

And didn't know it was coming.

[A]

Yes, that's possible.

[B]

Yeah.

[A]

I've realised in watching a few trials lately, a few things. One, the judge is really Policing the police. There's a big part of that, isn't there? A big part of I don't like the way you got that evidence. Yep.

[B]

Well, there are rules about that.

[A]

Yeah. And then that made me think, this age old question, how can people defend monsters? Let's just use that, you know, that language. We know it's more nuanced, but how can, how can people like Tim Marsh defend these guys? And watching the process, I realized, oh, it's really important so the jury can believe everything they hear. If you've got a great defence. Because if you don't have that, then the jury can hear anything, the police can tell them anything if there's no one there to police them.

[B]

And that's what used to happen.

[A]

Yeah.

[B]

I mean in the old days, things called records of interview. You know what a record of interview is? A conversation, typewritten conversation between a police officer and an accused or a suspect. And in the old days, a policeman could produce a record of interview which contained a confession and tell the court, this represents a true account of the conversation I had with Joe Bloggs. I showed it to him, I read it to him aloud and asked him if he would accept it as being true and correct. He said it was absolutely true, Sergeant. But I'm not signing it cause me lawyer told me not to sign anything. And in it went in circumstances where it was very often just a complete fabrication.

[A]

And you had to allow that, not even a signature?

[B]

Well, I was at the bar in those days.

[A]

Right.

[B]

So unsigned records of interview regularly were tendered to magistrates and criminal courts and often were the basis for findings of guilt in circumstances where there'd been no independent adoption of what was in it by the person charged.

[A]

God, it's amazing, isn't it? That's not very long ago.

[B]

No. 70s I forget when the rules changed. And then courtesy of the great John Coldery, who chaired the Coldery Committee, and the rules in relation to section 464 of the Crimes act, we got compulsory recording. Which really has made a huge difference, hasn't it?

[A]

Yeah. Technology in general has made a huge difference throughout the course of your career.

[B]

Yeah, it has. Oh yeah. There was no computers when I started, nothing. But since then I had a calculator. I did a crash and bash in the Magistrates court and I think I was the first barrister I'd know, I knew to have a calculator.

[A]

What's a crash and bash?

[B]

It's a motor car accident damages case. Right, ok. Car A runs into car B and the owner sues the Other driver for damages for the bent fender or whatever it was.

[A]

Fancy having Lex Lasry represent you in

[B]

a car accident that wasn't significant in 1973, I can tell you. I just say, who the bloody hell is Lex Lasry? And can't we get someone with a better name?

[A]

But you had a calculator to help you figure out.

[B]

Yeah. So no one else. So at the end of the case, the magistrate would say, I find for the complainant, there'll be an order for $200 of damages. Now, what are the costs? And then you'd have to add up

[A]

the costs, how many hours you spent on it.

[B]

And I remember magistrates saying to me, well, Mr. Lasry, you've got a calculator. You do it. I got performance anxieties. I was trying to press the buttons.

[A]

I've heard Lex Lasri's got a calculator.

[B]

He must be very successful.

[A]

So now you must be an expert instrument. Now you must be an expert in DNA science, phone ping, phone tower science.

[B]

I mean, some of the most boring evidence you ever hear, isn't it? Phone tower evidence.

[A]

I feel sorry for juries. You know, I've never been on a jury and I run into people who'll say, oh, God, I really want to be on one. And I say, I used to think that, but now that I've watched a few, I think I do encourage people

[B]

to go onto juries if they can.

[A]

Yes, you're right. I shouldn't try and discourage them. But it's a big job.

[B]

Oh, it's hard, yeah.

[A]

Three days of learning how a phone tower works before you can hear why we're learning this.

[B]

The thing I'm convinced about with juries is that by the time the trial is over, particularly in a really serious. Like a murder trial or a rape trial or whatever, I often said to them at the end of the trial, Perhaps you now understand why I said to you at the start, this is the most important civic duty you can perform in peacetime. Which is what I regularly said to juries, and it's amazing how many times they've nodded, saying, yeah, we get that now. Yeah, yeah, it is really important.

[A]

Well, because most of us have never

[B]

been in a courtroom before, but they're amazingly conscientious. They've gone from 0 to 10 in applying themselves to the case, perhaps in the space of 10 days, two weeks. I have great faith in them. I think basically, people are committed to doing the job properly.

[A]

Yeah, and I understand what you mean about, you know, that sort of crash course and maybe they don't even realise how committed they are or how important they're going to find our legal system until they've been part of it.

[B]

That's right.

[A]

And then they realise, okay, this is pretty special.

[B]

Yeah. So I do encourage people to. They get the chance to serve on a jury to do it. It's really important.

[A]

Tell me about some days where people have gone off in the court because I'm always astounded at how well behaved people are. I think when you've got in Australia, it's not like an offender's behind a glass barrier or anything like that. It's a fairly small room really. And we're all sitting in there and there's a person who's accused of murdering somebody.

[B]

Yeah.

[A]

I mean there's security but I'm always surprised that no one ever tries to get up there and give him a slap or.

[B]

It hasn't happened very often. The first time it happened to me was Chris Flannery. I was the prosecutor. I was one of two prosecutors.

[A]

Christopher Dale Flannery, we like to use his whole name. Yes. Mr. Rent a Kill.

[B]

Yes. Multi headed trial star studded bar table. John Hassett and I were the prosecution and we'd made some remark or I'd said something to the judge about Flannery's wife who was also to be dealt with for this.

[A]

And he was very protective of his wife.

[B]

He went nuts.

[A]

Yep.

[B]

And he kept screaming from the dock, you're off, you're off. And as you probably know, when someone tells you you're off, it means you're going to be killed.

[A]

Especially when they're a professional killer.

[B]

Yes. Anyhow, that was in 1981. It's now 2026, so.

[A]

And we haven't heard from Christopher Dale Flannery in some decades. Yes. So, okay, that one worked out in your favor.

[B]

But no, there have been a few. There have been a few, but not very few. Surprisingly few.

[A]

That's quite some balls, isn't it, to be threatening from the dock.

[B]

From the dock, yeah. Yeah. And I remember thinking I was sort of sitting. So we're up the left hand end of the bar table. I remember thinking how far away it was to the defence end. Everyone seemed to have moved away from it.

[A]

Yeah. Because he was a very scary individual.

[B]

He was.

[A]

And I've been thinking a lot about him lately with these couple of cases we've had of attempted abductions or abductions gone wrong. And it seems to me like that level of. I don't mean to be sort of making light of it. But that level of professionalism in terms of your hitman doesn't seem to be around today. We've seen a number of people arrested, for example, in that terrible mistaken identity abduction. But people now talk to us, particularly journos are talking to us about this thing they're calling Crime Tasker, where basically they're saying that these days you can hire people online to commit violent crimes. Is that true, do you think?

[B]

It's horrifying if it is, yeah.

[A]

How has the underworld changed since you've been dealing with it?

[B]

It's a lot more ethnically diverse now than it was. So I think that, you know, there are groups, there are sort of ethnic groups of people who have various parts to play in the underworld. I mean, in the early days it was Aussie boys, you know, members of the Federated Chip Painters and Dockers Union, and they did the armed robberies and they did the contract killings and that was basically that. But now there's a whole different attitude and a whole different mix of people.

[A]

That's making me think of your time in the Northern Territory.

[B]

Yeah.

[A]

When you're. How different is that to the Victorian, to our world? I feel like they're two very different worlds in many ways.

[B]

Well, I mean, I don't know how many cases I did up there. I did quite a few over the short time I was there. There might have been one case involving non indigenous person, maybe one, two.

[A]

I've met people in Melbourne now, I grew up in Queensland, so maybe it's a bit different, but I've met people who've said to me, I don't think I've ever met an Aboriginal person.

[B]

No. And I'm absolutely no expert on indigenous affairs, but I look at it and look at the crime statistics in the Northern Territory and the number of indigenous people in custody, and it's just more evidence of the fact that we have failed indigenous people in the way we've related to them, the way we've dealt with them in the community and the way we deal with them in the criminal justice system, instead of treating them with respect, we've filled them with booze.

[A]

Yeah.

[B]

And so they're suffering the consequences of that. I mean, the incidence of Fetal alcohol syndrome disorder up there is very high.

[A]

Yeah.

[B]

I just think it's a complete tragedy. I don't know what the answer is.

[A]

No. But I can't imagine sentencing indigenous people day after day after day when you feel that this. It's not working, the system's not working. It's not fair.

[B]

No, but you have to.

[A]

Yeah.

[B]

So 85, I think it's 85% of the prison population in the Northern Territory is indigenous.

[A]

Yeah.

[B]

And they're. I don't know what they are 3 or 4%, I was going to say

[A]

10% of the population, 2% nationally.

[B]

So probably larger, probably closer to 10%

[A]

of Northern Territory, maybe more, but still way over presented.

[B]

But there are people up there who do fantastic work. There's the Northern Australia Aboriginal Justice Group. Naja. I've seen judges of the Northern Territory Supreme Court in the way they've dealt with Aboriginal people. Some of them have taken the trouble to learn the language.

[A]

Yeah, really.

[B]

And they speak to them respectfully. They make sure they are understanding what's happening in court. They treat them like an equal human being which is I think not their usual experience.

[A]

We're always on about the victims not getting enough recognition in court or you know, these feelings that we have and they are feelings, they're feelpinions we used to call them a couple of years ago where it's like, I understand it's not logical and there are processes and they're there for a reason but sometimes we can feel like the victims are forgotten in court.

[B]

Well, they're just not. I mean they're clearly not. But the fact is that the criminal proceeding is there to deal with the criminal. The victim is a witness, they're important witnesses and they're important people. But the system is there to deal with. It's a criminal justice system meting out justice to the person charged with the crime. That's its primary purpose. That has to be borne in mind, I think.

[A]

And we don't want it to be wishy washy and we don't want it to be overly emotional and we don't want it.

[B]

Well, it always will be.

[A]

But we need some bloke like you and I'm not saying that judges need to be robots but we do at the end of the day need someone in charge who's not going to let the emotion of the oh, that is the judges too get to them. Yeah, yeah, I've noticed the way judges, I don't know if it wouldn't be everyone but the way you do shepherd the jury some really nice like you care about them. It feels like there's real understanding of how hard this is even if they don't get it yet. Trust me guys, this is going to be hard. It's going to be long. It's going to be. I'll help you, I'll Help you constantly. Members of the jury.

[B]

Don't worry. Yeah, It'll be over soon.

[A]

Yeah. It will end. That's part of it as well.

[B]

It is.

[A]

You got to care about people.

[B]

You do. And a bond forms between the judge and the jury.

[A]

Yes.

[B]

So I've always said to barristers, you know, if you're going to have a blue with the judge and plenty of people do have blues with a judge, don't do it with the jury. Prison, because they see the judge as an ally and they won't see you as an ally if you're getting stuck into the judge.

[A]

Have you ever been inside a prison? I suppose when you were a lawyer, you had to go in.

[B]

Went to Pentridge plenty of times. Been to Barwon a few times.

[A]

Yep.

[B]

Been to the MRC a few times. But there's a whole lot of new prisons now that I don't even know the names of.

[A]

Yeah, yeah. Build new prisons. That's the policy these days.

[B]

Yeah. Well, that's right. It wins votes, unfortunately.

[A]

Yeah. What do you think when you go into a job, I mean, or you can visualise where you're sending someone, which most of us can't. And what environment is that in Australia?

[B]

Well, it depends where they go. I mean, after they've been sentenced, they have to be classified and then the authorities work out what kind of risk they are and where they should at least start off.

[A]

Is there a big disparity? Like in the States, we hear there are some jails that are just absolute nightmare hellholes and others that are reselled.

[B]

Yeah, I think there's a disparity like that here. I mean, I. I find Barwon a really intimidating place. I've had clients at Barwon Prison and I found it very harsh, very impersonal, the slight contact I had with it. Pentridge was the same. Pentridge was a terrible place.

[A]

Well, it's an 18th century. Yeah. I mean, ridiculous.

[B]

But we have prison farms and low security prisons, most of which I haven't seen, but obviously good for people who can be appropriately placed into those environments.

[A]

Thank you to our guest, the one and only Lex Lasri. You must join in with Lex's new podcast, Law the podcast. You can get it wherever you get your podcasts. Yes, that's saying podcasts lots of times, but it's worth it, trust me. Do subscribe if you need support after listening to this podcast, you can call Lifeline on 13, 1114 or contact 1-800-Respect on 1-800-737-732 or 1-800respect.org au Indigenous Australians can contact 13 YARN on 139276 or 13 yarn.org au.

[B]

The producers of Bismarck Podcast recognise the traditional owners of the land on which it's recorded. They pay respect to the Aboriginal elders past, present and those emerging.