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- [00:00]
Michelle Laurie
This is Australian True Crime with Michelle Laurie. Have you ever wondered what kind of person could defend a murderer? Have you ever wondered what kind of person does autopsies for a living? Well, you're about to meet one of each. Our guests today are Joanna Glengarry, head of forensic pathology services at the Victorian Institute of Forensic Medicine, and Timothy Marsh, a senior criminal lawyer who has spent his career working on some of Victoria's most serious cases. Their work sits at different points within the justice system, but regularly intersects in courtrooms and investigations, where medical evidence and legal argument have to be interpreted together under intense scrutiny. Together they explore what it means to work in that space and how two very different professions are brought together by the same question at the centre of so many cases. What actually happened? 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.
- [01:11]
Timothy Marsh
I suppose the thing that'd be more surprising to listeners is there's more that brings us together than drives us apart in this sense. And I think one of the things that both Jo and I are very sort of animated about is trying to dispel the myths around the nature of what we do. CSI has obviously done a lot to create an entire mythology around forensic pathology and you needn't look very far to find umpteen examples of the law being portrayed in ways that are probably pretty inaccurate.
- [01:40]
Michelle Laurie
Certainly culture would have it that you guys would be combative, you would have a combative relationship. Because, Tim, it's in terms of TV and movies and books and all that, it's your job to break her down, to get Joanna on the stand. And if she wants to say something about the circumstances of someone's death, you as a defence lawyer need to destroy her evidence.
- [02:04]
Timothy Marsh
I mean, fortunately, that's not the case. And, you know, I think that's not the case for a couple of reasons. One of them is that the quality and the independence of forensic pathologists in Victoria is unparalleled. So you're not going to be cross examining to discredit somebody. So at no stage are you going to be suggesting that this person doesn't know what they're doing, that they're incompetent, that they're biased, that they're in the pocket of the party who's commissioned them. So I think probably the first thing to point out is that forensic pathologists are to assist the court they don't appear on behalf of either party in the sense that they're not even a witness for the prosecution, although they are called within the prosecution case.
- [02:41]
Michelle Laurie
In our imagination, you've got one each. In our imagination, the defence and the prosecution have an expert each to deliver.
- [02:48]
Timothy Marsh
And that can happen. It's not particularly common. It can happen in cases where there is a highly sort of contestable issue between the parties. But I think the other reason why it tends not to be combative is that there can often be a very collaborative process of exploring the evidence together and it's done well. And I think of a case a couple of, oh, probably 18 months ago, two years ago, where I cross examined a colleague of Jo's for, I think probably a couple of days in the Supreme Court. And at the end of it, we'd had a break in the proceedings and we were sitting outside court and we both sat down on the same bench and she turned to me and said, I know I probably shouldn't say this, but that was so much fun. Wow, this was the best. It was, it was a fantastic experience.
- [03:36]
Michelle Laurie
Why was that, Jo, maybe you can speak to that. Why would it be fun to be cross examined on a report that you've written for days? Is it just you don't get to talk that much about it?
- [03:47]
Joanna Glengarry
No. See, I would agree. I've. I've had the same experience where I've talked with the person cross examining me afterwards and said, thank you, that, that was fun. And I think it's part of the passion for the job that from our point of view, particularly here in Victoria, we see ourselves as staunchly independent. Yes. So I'm there to let the jury know and to explain to them and to teach. I see it almost as a teaching session to let them know because they're making that decision. What I found from a pathology point of view, what did the body tell me? What's the story that I gleaned from my examination? And when you can then have a debate about the issues for a case and for the majority of cases, there are things to discuss. It isn't black and white from a pathology point of view and to then have a really good discussion about the issues where you can get down to the nitty gritty of what might be contentious, what is straightforward, and explore that in the context of the case. And as Tim said, we don't get that context and we shouldn't, we don't need to, because I just need to say what the injuries can and can't tell you.
- [04:58]
Michelle Laurie
But with that said, sometimes you do visit the scene, don't you? Yes, I know that we spoke about the Eurydice Dixon murder.
- [05:04]
Justice Stephen Kay
Pure and unmitigated evil is how Justice Stephen Kay described the killer's actions. 20 year old James Todd pleaded guilty to Eurydice Dixon's murder, rape, attempted rape and sexual assault. The court heard how the 20, a 20 year old stalked Eurydice Dixon for more than four kilometres through Central Melbourne at night. Her body was later found dumped on a soccer pitch at Princes park on the northern edge of the city.
- [05:31]
Michelle Laurie
You did visit the scene and I remember you said something to me that I've repeated so many times since then, which was that you thought to yourself, people are gonna be writing and talking about my work on this case for a very long time to come. And it made me really conscious of the way I talk about people's work in cases, you know, and to make sure we're respectful about that. So sometimes you do look for a bit of context to the actual death scene.
- [05:59]
Joanna Glengarry
And when we go to the scene, it has multiple roles. So it is putting the death in context, but not in a terms of who the police are looking for in relation to who might have been involved in that death. That's a complete aside. It's the scene and how it relates to the deceased person. So are there factors at the scene that are going to alter how the body appears, how the injuries might appear? Is there a specific object? Is the person up against a bar heater? And that explains why they've got multiple parallel red lines on the body, that that's actually an artefact from the heater, not because someone's hit them with an unusual weapon with that pattern on. So that can be really important in interpreting it. And in many other cases it's actually going to other scenes where the death is thought to be suspicious and it turns out not to be. And we can interpret those post mortem artifacts that might look really concerning to a layperson, but we can say, no, that's not a pool of blood, it's related to processes that occur after death. So we don't go in order to, to figure out who done it, like the clever TV pathologist I know you
- [07:10]
Michelle Laurie
don't even have guns or leather jackets.
- [07:11]
Joanna Glengarry
I've always found very. And I don't arrive before the police. No, that would be odd and I should probably spend my time better.
- [07:19]
Michelle Laurie
Yes, absolutely. And where does it fit in a trial? Tim, you've said that you normally start your prep, your work with looking at the report from the pathologist. Where do you usually get to speak to them in the context of a trial? Are they early witnesses or.
- [07:36]
Timothy Marsh
Well, the first thing I'd say is certainly in most murders you'll have an opportunity to cross examine key witnesses at a preliminary hearing. And it's very common. I won't say it's universal, but it's very, very common to have forensic pathologists as being one of the witnesses who you would want to cross examine at that early stage, precisely because their evidence is so pivotal in establishing things like causation, intent. So that's often where I will get a chance to lay the groundwork. And typically most of my preparation, most of the heavy lifting is going to be done in the lead up to that preliminary cross examination, because ideally I want to know everything that the forensic pathologist is going to say that's going to be useful to my case at that early stage. In terms of the trial itself. Yeah, generally speaking, a forensic pathologist would be one of the earlier witnesses and that's a matter for the prosecution in terms of how they want to structure their case. But it's usually quite natural to begin with the crime scene itself and to sort of work your way out towards witnesses that impact directly on the death. So often forensic pathologists are called quite early in that process. But in an ideal world, I will know the answer to every single question that I'm going to be asking in a trial. Anyone who thinks that you're going into a trial with sort of loose ends, loose threads dangling, and that you're going to tug on one of those in the hope that you're going to get the aha moment. That's not how it works, certainly not with witnesses like that. You want everything locked down pretty tightly.
- [09:07]
Michelle Laurie
You're just performing it for the benefit of the jury.
- [09:10]
Timothy Marsh
Yeah. And it may be that there is other information that's come to light that you, that you can put forward, but the idea that you've locked the witness into a version of events at a preliminary hearing is a pretty common expectation.
- [09:23]
Michelle Laurie
It's also a common expectation that people, by the time someone gets to trial for murder, that the DPP is very confident that they'll get a conviction, otherwise they don't pursue it. Is that how it feels from your perspective? Cause that when I say that to you, I feel like I'm saying to you, give up, mate. Like it's. They don't bother going to trial unless they're confident they're going to get a conviction. But what does it look like from
- [09:45]
Timothy Marsh
your perspective, look, every case is different, but juries can return surprising verdicts. And when you're prosecuting, I think one of the most difficult things is to see things from the perspective of that's outside your own case. And when you're defending, you have the instructions of your client, who may well be the only other person who was there when the thing happened, and they may be able to tell you things which the prosecution not only can't account for, but can't necessarily anticipate, which can enliven a reasonable doubt. So, you know, the idea that the prosecution are necessarily holding all the cards, I don't think is accurate. But also it represents a view of things. And, you know, you can have reasonable, you know, reasonable minds can differ about, for example, what inferences you're able to draw about from the injuries, about what the intention of a person was in committing the act. And so people can and do get acquitted. So it's certainly not a case that we're just engaging in a, you know, futile exercise.
- [10:52]
Michelle Laurie
What do you do when the person that you're taking instructions from, your client is disagreeing with evidence such as Joe's, like, there's scientific evidence, he's going, that's not possible. Cause I didn't. What position does that put you in?
- [11:06]
Timothy Marsh
Depending on the nature of the case, it can be a very difficult position to be in. I mean, I was involved in a case where an accused had pleaded guilty to a murder, but disputed that he had caused all of the injuries, so acknowledged that he was responsible for the death of the victim. But he maintained that the vast majority of the injuries had been inflicted by broken glass where she had fallen. In the end, he insisted on. It proceeded in a very strange way where he withdrew his instructions. So that's our fancy way of saying, we got sacked. So we got sacked. So that he could then cross examine the forensic pathologist himself. And then once he had performed that exercise to no useful end, he then reinstated us as his legal team because the advice or the position had been that, look, you're not going to get the concessions you think you're going to get through this process. And that was that resulted in him withdrawing his instructions. But that's a very unusual case. And I think typically it would be unusual for an accused person to necessarily be in a position to engage with that level of granularity about what they do and don't dispute it's really the conclusions that they might have an issue with.
- [12:24]
Michelle Laurie
And introducing possibilities is very important, isn't it, if you can do that, successfully introduce the possibility that it happened a different way, that can be the difference.
- [12:33]
Timothy Marsh
Yeah. So imagine a case where you've got four or five accused who are all alleged to have assaulted a person simultaneously. There would be a lot of effort going towards trying to establish how you might attribute those injuries to an individual actor within that context.
- [12:50]
Michelle Laurie
Joanna, have you ever been cross examined by an accused person?
- [12:54]
Joanna Glengarry
No, but I've been cross examined in cases where it was obvious that their legal representative did not agree perhaps with their clients view on matters. I can think of a case where the person had sustained multiple, multiple separate injuries to the head, clearly with something hard enough to lacerate or split the skin. And so you could see that there were at least 20 separate impacts probably. I had a conservative estimate and the argument was that this was self defence and the accused had no injuries whatsoever and had been advised that he was unlikely to be successful in an argument that this was self defence. But he had insisted on continuing with that argument and it just made for a very unsatisfying cross examination. We talked about it being fun before and that's good where you know, there are genuine issues to, to discuss. But when you're just really having to keep saying no, that's just really not plausible. No, that's not plausible. No, that's not plausible. There's only so many ways you can say no, that really isn't plausible.
- [14:18]
Michelle Laurie
No.
- [14:19]
Joanna Glengarry
And look, we're happy and we're open to consider things, but sometimes things just really are what they are. And again, we don't have skin in the game. We don't know if it's the right person, the right charges. We just figure out different ways to say yes or no in different words so we don't sound like a broken record.
- [14:36]
Michelle Laurie
And explain how you came to that conclusion.
- [14:38]
Joanna Glengarry
How we came to that conclusion last
- [14:40]
Michelle Laurie
time we spoke, which was years ago. Now I asked you this question, but it comes up again often whenever we talk about defence counsel, people say how can they do it? How can you get up and defend these terrible people? We won't, I won't pick a specific, but you know what I mean. I mean you must get the question personally. This guy's killed his baby, this guy's killed his wife. After years of whatever the story, what makes you want to work in defence?
- [15:09]
Timothy Marsh
So it's important to say I've sat on both sides of the bar table, I've prosecuted as well. And although I don't have any issue about prosecuting, I don't do it anymore. So I think in order to answer that question fairly, you have to understand the nature of everybody's role in court. And so in the examples that you gave, you know this person has done something. Well, if it's a trial, we don't know the answer to that question. In fact, that's the entire point of the trial, is to determine that, determine that to the requisite standard that we as a society require an offence to be proven to. That's beyond reasonable doubt. If it's a plea of guilty and the person is admitted that they did the thing, then my role is not to say that they didn't do it, but to ensure that they are sentenced on a basis that takes into account all of the relevant factors. And that can include, you know, ventilating things like childhood trauma, disadvantage the person's psychological or psychiatric diagnoses. Absolutely. That process can. It can be me trying to humanise the accused in a way that generates empathy for their situation, and I make no bones about that.
- [16:15]
Michelle Laurie
And that makes people furious a lot of the time. That's the sort of thing that. Not a lot of the time, but there are famous examples. I'm sure a lot of our listeners can think of one in their own memory, where they go, I don't care what happened to this guy when he was a kid. Plenty of kids are disadvantaged, plenty of kids, and they don't grow up and kill people. So that's even just a controversial aspect of your job.
- [16:36]
Timothy Marsh
Sure. But I mean, I don't know that ensuring that a person is sentenced on the basis of who they are as a complete person necessarily has an agenda. It's not something that necessarily means a person's gonna get a lighter sentence. And so, you know, when you're advancing arguments about childhood trauma or about mental illness, those are often arguments that carry negative consequences as well. And a judge may well be satisfied that a person's moral culpability is reduced because of factors personal to themselves, but may simultaneously be satisfied that there is an elevated need to protect the community because this person remains a risk. And so I don't know why it's so confrontational to people to think that a person will be sentenced as the complete person, taking into account all of the factors that are relevant to their life, because it doesn't presuppose a more lenient outcome. And I think that's often lost.
- [17:28]
Joanna Glengarry
Well.
- [17:28]
Michelle Laurie
Cause I think it's such a popular narrative in certain parts of the media that offenders, violent offenders, are getting off or, you know, getting lighter sentences, because Blokes like you are convincing the judge. I mean, it's nonsensical as I'm saying it, it doesn't make sense. But don't you think that's a popular media narrative?
- [17:46]
Timothy Marsh
I do, yeah. But, you know, I. Courts are open to the public. I mean, people can come and watch proceedings and absolutely should. Yeah, people used to. You know, I think that there's a public gallery in every court in the Supreme Court and people can come in and watch a trial.
- [17:59]
Michelle Laurie
What about this question? What do you think about televising some trials? I'm all for it. Cause I think we should be able to see the legal process more, we should participate in it more. This might help people do that.
- [18:10]
Timothy Marsh
I think one risk in that process would be that in our increasingly media connected world, it's becoming, it's a real challenge to quarantine juries from doing independent research. There have been examples of trials that have miscarried because jurors have gone and looked things up in Google or using ChatGPT or whatever it might be. And I think it's a tricky thing to. The more information that is put into the media universe contemporaneous with a trial, the more commentary that generates, the more opinion that generates and the more likely it is that jurors will be tempted to ignore the injunctions against them. Looking at media and so on, and to ignore experts.
- [18:55]
Michelle Laurie
That's what I found in my research for the book that I was writing and I spoke to you about Jo, the CSI effect, where they'll go, ah, this one doesn't even know what time the death occurred, she's hopeless, or whatever. They make decisions about expert witnesses and might go and do their own research, make up their own mind.
- [19:11]
Timothy Marsh
It's not inconceivable that if Joe evidence was televised in a trial, that a media outlet would run that evidence and approach a third party who is a doctor to comment on that evidence.
- [19:25]
Michelle Laurie
So true. Yep.
- [19:26]
Timothy Marsh
For the purposes of a story, and I'm not saying that they shouldn't do that, you'd think that'd be a pretty natural way to structure a media piece. But if a jury were then to get a hold of that and say, well, Dr. Joe Bloggs says otherwise, well, Dr. Joe Bluggs isn't in the trial. Dr. Joe Bloggs doesn't have all the information that Joe had. And so the danger is that a jury would then be placing weight on things like that. I mean, you know, there are aspects of the court process that are televised and quite famously, I think some Fairly high profile sentences recently have been televised. And I think that is a useful thing because it demystifies the process and gets the public more connected with all of the factors that go into sentencing. And I think it's. I mean, neither Joe or I would be here if we didn't think it was important that. That the process of law and the process of expert evidence in law wasn't better understood by the public.
- [20:21]
Michelle Laurie
Let me ask you a question. Controversial. It's controversial because we have one friend of the show who's an advocate of this and another friend of the show who thinks it's the dumbest idea they've ever heard in their lives. And the idea is having photographs of the victims in the courtroom during the trial. And the idea is that the whole trial is about the accused. And this person feels that that's unfair for the jury not to be constantly reminded of who it's actually about. What are your thoughts on that, Tim?
- [20:52]
Timothy Marsh
I don't think what I'm about to say is going to take you by surprise. I mean, I don't think that's appropriate. It's not what the.
- [20:58]
Michelle Laurie
Yeah. Why? Because I find our listeners all go, yeah, bloody good idea. Why not? But our legal professionals tend to go, no, that's ridiculous.
- [21:07]
Timothy Marsh
Well, the trial is a trial into determining the elements of the offence. And I don't know how a picture of a deceased person taken at some point, remote from the crime, is going to assist the jury in doing that. It's an emotive move and I think it's something that would distract the jury from their task. I don't think juries lack empathy. I don't think they lack the ability to place themselves in the shoes of the victim. I don't think that's something that they need to be reminded of. And I don't think it's fair to say that a trial is all about the accused. To the extent that it's about the accused, it's because it's the responsibility of the prosecution to prove all of the elements of the offence beyond reasonable doubt in order to establish the offence against the accused. And I just don't see how pictures of a victim in court are going to assist the jury in that task, and certainly not in a way that doesn't introduce the potential for really unacceptable prejudice. And I would be confident that that would be a view that would be shared by the vast preponderance of legal practitioners. And did many prosecutors.
- [22:16]
Michelle Laurie
There must be defendants, though, who would hate the idea that you two would be Friends, like, if you're defending me and I think you're chummy with a lady giving evidence that's not good for me. That might freak me out. That might make me feel like you're not. Tim, you're not in my best interest and all. Do you get much of that?
- [22:35]
Timothy Marsh
It's never been an issue. And I think the.
- [22:37]
Michelle Laurie
I don't even just mean you and the pathologist. I mean, sometimes in court when I'm there, and I'll see the two opposing lawyers have a bit of a chuckle about something and I think they won't give me the shits, actually, if I was the. I want you to hate each other. I want you to be furious with that guy who's tried to send me to jail. And I want, you know, does that
- [22:56]
Joanna Glengarry
ever come up from a pathologist's point of view? You'll get a better outcome.
- [22:59]
Timothy Marsh
Well, that's what I get if the
- [23:00]
Joanna Glengarry
lawyer and the pathologist get on. Because it means we will have talked about it.
- [23:04]
Michelle Laurie
Right.
- [23:05]
Joanna Glengarry
It means that we will have had a discussion about the case.
- [23:08]
Michelle Laurie
That whatever you're going to say, he knows.
- [23:10]
Joanna Glengarry
He knows. And the thing is, we, as forensic pathologists, I also provide opinions for the defence. Not within the state of Victoria, but I frequently do. Defence opinions paid for by defence lawyers interstate and internationally.
- [23:25]
Michelle Laurie
Yep.
- [23:26]
Joanna Glengarry
So we have a sense of both parties and what. What people are looking for. So you. You want the pathologist and the legal team to have a good working relationship? You'll get them best outcome if you do that. Whereas if. If I can't stand him.
- [23:43]
Michelle Laurie
Yep.
- [23:44]
Joanna Glengarry
Then, you know, I'm not going to necessarily go out of my way to be helpful. I'm not gonna be obstructive.
- [23:50]
Michelle Laurie
No.
- [23:51]
Joanna Glengarry
But it works better when we can talk about the case and realise what works and what doesn't.
- [23:57]
Michelle Laurie
I'm assuming all of it works better when everyone's civil and works like colleagues and all of that. But I often wonder from an emotional perspective if a defendant and their families might be a bit like, go harder, Tim, get her.
- [24:09]
Timothy Marsh
Well, I mean, one thing that Jo's just touched on is that we talk. And that's. It's something that is perhaps not done as often or as much as it should be done, but defence practitioners can and do call the Victorian Institute of Forensic Medicine and ask to speak to the pathologist who wrote the report. And it is a. It ought to be routine. So I will always do it. I'll always speak to the pathologist, at the very least, to introduce myself and say hey, we've got this thing coming up. I will tell them what the issues are. This is what I want to be asking you about. If there are areas where I think there might be the possibility of a bit of wiggle room in the opinion, I will ask them, is that something that you're absolutely certain about? And the answer I will often get is, well, look, you know, maybe not absolutely certain. There's probably, you know, I consider these other alternatives and that's gold. I mean, they will help me do better cross examination and establishing, I think
- [25:11]
Michelle Laurie
independence is what's hard to get our heads around. I don't know if it's just me or if it's the CSI effect, too much TV and stuff, but it's the idea that both of you, both sides can approach you. Joanna.
- [25:25]
Joanna Glengarry
Because on TV the forensic pathologist is always there working with the police and seems to be helping the police and doing everything they can to crack the case on this particular person. And they celebrate when they find that John Smith, he did it, we found the evidence. And then when it comes to court, Tim's there and he's trying to get me to crack. So we get that aha moment where I'll have this epiphany on the stand that he's right all along and I crack and I break down and I tearfully admit that I got it all wrong and that it was all a terrible mistake and his client's innocent or
- [26:07]
Michelle Laurie
that you deliberately not you obviously, but the character in this drama may have deliberately left out a bit of information, deliberately sort of created an impression and
- [26:16]
Joanna Glengarry
the reality is that doesn't happen. No, I have no idea who the police have arrested or if it's the right person. Often we don't get that information at all between the time of the incident and court and I don't know if they've got the right person. I don't need to know.
- [26:35]
Michelle Laurie
Well, you're not in the crime solving business. I think that's the, the phrase that has been said to me a number of times. I'm not solving crime, I'm a scientist. I'm looking at a situation. I'm trying to assess what happened, maybe when, maybe I can't tell that. That's the other thing that's frustrating, isn't it? Increasingly for juries because of the CSI effect is that you can't always give the details, you can't always be sure.
- [27:01]
Joanna Glengarry
No, no, science doesn't work like that, medicine doesn't work like that, that there are very much shades of Grey or perhaps shades of red for forensic pathology, where things like time of death. I can't get that down to the 15 minute interval that the clever TV pathologist can. In fact, the more we study it, the more we realise it is incredibly difficult to determine time of death because each person will have different changes after death purely based on their own innate factors. The environment will play a big role. And those are things that we can't determine, not because we don't want to, but how do you actually study those things? And places like the Body Farm in New South Wales are doing really good work on getting closer answers. But a lot historically was based on data from overseas. So the time it takes for bodies to surface when they're in a moving body of water is based on bodies dumped into the Thames.
- [28:06]
Michelle Laurie
Right. Which is very different to being dumped into Port Phillip Bay.
- [28:10]
Joanna Glengarry
Exactly. Sydney Harbour, the yarra might be the same colour, but the temperature in Australia is very different from the temperature in London.
- [28:17]
Michelle Laurie
The Body Farm, for example, had that breakthrough, didn't they, where they realised they discovered that our limbs can move as we're.
- [28:26]
Joanna Glengarry
But there can be some movement after death.
- [28:28]
Michelle Laurie
Yeah. And that made me wonder, Tim, if, like I thought, I wonder if people have been convicted because the evidence seemed to suggest that a person's limbs were in a certain position when they died. But actually now we know they might not have been in that position when they died. I could be overthinking it.
- [28:44]
Timothy Marsh
As with all these things, it's going to depend on the circumstances of the individual case. But I mean, sadly, most of the cases I'm involved in sort of don't turn on fairly small movements of limbs. They're usually far more sort of gross issues to deal with.
- [28:58]
Joanna Glengarry
Well, I think it's the difference between the now and historic cases where now you'd really think that a case was going to be determined on more than a subtle finding of limb movement, that there'd be a lot more to it than just that. Whereas back in the day, back when all police, pathologists and everybody were elderly white men who walked around with pipes and white coats and didn't wear gloves, which was just. I shudder. But anyway, you know, things have changed. We've evolved since then and it's a lot more sophisticated as a science and as a field of medicine, just like the law has evolved, that's what I was wondering.
- [29:41]
Michelle Laurie
Is it harder to him to convict someone now of a serious crime like murder?
- [29:45]
Timothy Marsh
It's an interesting question. I mean, I think so. DNA evidence has been around now for you know, a fairly long time. And I think that's reasonably robust, certainly in terms of what it's able to do in terms of placing an accused in connection with a homicide. But I think probably the thing that has made the biggest difference is the prevalence and availability of CCTV footage.
- [30:10]
Michelle Laurie
Yeah, of course, yeah.
- [30:11]
Timothy Marsh
That's become a massive part of homicide cases and the ability of the police to. In fact, I was talking to a homicide detective recently who said that it's now the first step in any investigation is canvassing for cctv. And in many cases, that's the last step in the investigation.
- [30:32]
Michelle Laurie
Yeah, of course.
- [30:33]
Timothy Marsh
And so, you know, whether people realise it or not, we've got safe city cameras in the city, we've got CCTV in shop fronts, outside licensed premises.
- [30:42]
Michelle Laurie
Most of our houses have got some
- [30:43]
Timothy Marsh
kind of ring cameras on people's doorbells, CCTV dash cams, you name it. And the ability of the police, I mean, hats off to the people that are actually editing all this stuff together, but to put together into a chronological format all of that, stitching all that together, it's an extraordinary body of evidence. And that is a very, very powerful tool in the arsenal of the police.
- [31:09]
Michelle Laurie
So once they have all of that, I mean, does your job become negotiating? You know, say you've got a defendant and the police have all that. They got all that. Joanna's on the stand saying, yep, it all adds up to the fact that this person has taken someone else's life. Does your job become that of negotiator in terms of sentencing and things like that?
- [31:28]
Timothy Marsh
Not necessarily. The fact that an accused person can be identified as being connected with the homicide isn't necessarily the end of the inquiry. So a crucial question is, what was the intention of the person at the time that the acts were committed? And in some cases, it may not be controversial that the accused was the person who was responsible for the death of the victim. But what is controversial is what was their intention at the time? And so the law refers to this as specific intent. And the specific intent for murder is the intention to kill or cause really serious injury. And in many cases, we are working backwards from the forensic evidence to try and understand what that was. You know, it'd be a rare case where somebody, you know, issues a death threat and then carries it out. More often than not, you're looking at the injuries themselves and asking yourself the question, what must have been in this person's mind when they did these things? And that can really vary. I mean, some. I could give you examples that Sort of lie at the outer bounds of intention. I mean, if you put a gun to somebody's head and pull the trigger and they died as a consequence, I don't think we'd be wasting too much breath arguing about what the intention of the shooter was. We would say that they were intending to kill that person.
- [32:47]
Michelle Laurie
But surely most cases, I mean, most of us don't own guns. And it seems to me most homicides happen in a second, an instant, someone snaps.
- [32:56]
Timothy Marsh
Yeah. But I mean, to go to the other end at the extreme, I mean, if you were in a scuffle with somebody and you stabbed them in the leg and the knife transected the femoral artery and the person bled out as a consequence and died, well, you might query, legitimately query, what that person's intention was. Did they really intend to kill this person or cause a really serious injury, or is it a lesser state of mind that would be consistent with an offence like manslaughter? Those are examples of the sort of outer boundaries. But, I mean, there's an awful lot of stuff in the gray area between where we are looking at the injuries and saying, well, you know, how obvious would it have been to this person that that was gonna be the effect of what they did?
- [33:39]
Michelle Laurie
And the other issue is you have oftentimes a young person's life in your hands in terms of their future and where. What's gonna happen to them? I guess I'm thinking specifically because last time you and I chatted, you had just defended the murderers of Aya Masawi and Euridice Dixon, in both cases, young men from disadvantaged backgrounds. And I felt as though the impression I got when I We walked away was that it weighed heavily on you, the responsibility of sort of shepherding these young men through these periods of their lives.
- [34:09]
Timothy Marsh
Yeah. Although, I mean, the. I don't know that that burden ever lessens, given the likely sentences for homicide offences. It's a. It's a solemn responsibility, no matter whom you're. You're representing. And, you know, an outcome that sees somebody being convicted of murder or even manslaughter will represent a substantial portion of that person's life incarcerated. And so that's not something to be dealt with lightly. Again, something that people I don't think would necessarily think of it can be a bit of a double act in the sense that you've got the expert witness, they're the expert. I'm not the expert. I might be able to pronounce the word, but it doesn't mean I'm the Expert in what it means and then you've got the jury watching it. And so often what I'm doing is, is trying to serve as an intermediary between the expert and the jury.
- [34:58]
Michelle Laurie
Yeah.
- [34:58]
Timothy Marsh
So I've got the expert in the witness box, they'll give an answer, I will then reflect that back to them, adapting it into language that I think is going to resonate with the jury.
- [35:08]
Michelle Laurie
Well, yeah, because by virtue of being an expert, oftentimes they're talking about something that's hard for us as the public or a jury to understand.
- [35:14]
Timothy Marsh
Yeah.
- [35:15]
Michelle Laurie
So, yeah.
- [35:15]
Timothy Marsh
So on the fly, I'm trying to digest what they've just said and then say, so is it a bit like blah. And I'll give a simplified example. And if the witness says, yes, that's exactly right. Or, I mean, there's no better moment when a forensic pathologist says, that's a really good way of explaining it.
- [35:34]
Michelle Laurie
Yeah.
- [35:35]
Timothy Marsh
You think, yes, got it.
- [35:38]
Michelle Laurie
It's like when someone says to me, that's a really good question. I just get a buzz out of that. And I know there's a lot of work at vifm, a lot of training and a lot of thought around delivering evidence, trying to make evidence understandable.
- [35:50]
Joanna Glengarry
Absolutely. That's what we're there for. It's to explain complex medical and scientific ideas so that the jury understand. Because actually it doesn't matter if I understand, doesn't matter if Tim understands it. What really matters is that the jury understand it because ultimately they're the ones making that decision. And look, you talk about the confrontation that does happen sometimes, so I certainly have people that I enjoy knowing that they are going to be cross examining me, because I know it's going to be a much more satisfying endeavour than someone where you just sigh and think, oh, no, here we go. Because it's frustrating because for me, because it doesn't feel that I'm getting my evidence to the jury in the best way possible. And you want to do a good job in terms of conveying what, what your evidence is. So look, there are certain practitioners around who prefer a more confrontational approach. In the early days of your career, when you're young, it is very easy to take that personally. Nowadays, I, I know it's not personal, it's. It's part of how they run things and you just roll with that and you just, you just go with it.
- [37:07]
Michelle Laurie
Yeah. Between, you know, seeing your first autopsy that freaked you out, was not what you're expecting, and then going into court and having a bad, a frightening Experience, an awful experience. There's something in you that's kept you going, you know, obviously, it's your passion. It's your passion.
- [37:23]
Joanna Glengarry
You love it. And look, I think with everything in life, wisdom comes with age.
- [37:26]
Michelle Laurie
Yep. Just gotta hang in there.
- [37:28]
Joanna Glengarry
You just gotta hang in there. And I've, I've clearly reached an age now where sadly, no one looks at me and thinks, you know, I'm too young to be doing that. I've reached the grey hair threshold or the whatever, the wrinkle threshold.
- [37:41]
Michelle Laurie
I'm right there with you.
- [37:42]
Joanna Glengarry
But I remember you telling me, I
- [37:43]
Michelle Laurie
remember you telling me once that when you were younger, you used to roll up to crime scenes and they'd go, oh, sorry, love, no one's allowed in here.
- [37:48]
Joanna Glengarry
Yeah, I did. Miss, miss, you can't be here.
- [37:52]
Michelle Laurie
But Tim, you know, when you're a man and you're a lawyer, age is. I mean, you're actually a bit of a baby face. Like probably when you get older, did you feel like automatic respect comes in your industry from being around longer?
- [38:06]
Timothy Marsh
I guess the question is respect from whom? I think with expert witnesses you get respect by demonstrating that you've done the work.
- [38:15]
Michelle Laurie
Yeah.
- [38:16]
Timothy Marsh
And that's really important. And there can be an interesting sort of, particularly with experts that you haven't cross examined before. There can be an interesting little dance that occurs in the early stages of cross examination where you're trying to flag to this witness, I know what I'm doing here, like, don't bullshit me, I'll call you on it if you do. And it's not about ego, it's not about. And again, the expert's the expert. Doesn't matter how convincing I sound, about how convincing the question sounds, or whether it looks like I've looked up Wikipedia and understand what that term means. I'm not giving the evidence, but I need the witness to know that I've done the work. And I think once that's been established, once there's an element of sort of mutual respect and that, look, we all know why we're here. I get the best answers from expert witnesses when I'm asking reason, when I'm putting reasonable propositions. And so a really common formula is, can you exclude that as a reasonable possibility? And the answer will be, if you put in the work, the answer will be, no, I can't exclude that. And that's what you need.
- [39:31]
Michelle Laurie
And as you said, you already know what the answer should be by the time you ask it.
- [39:35]
Timothy Marsh
That's right, yeah. But, you know, I think that element of respect is something that has to be earned. I don't know that, you know, gray hair or wrinkles are necessarily going to get you to that point. And you know, I know Joe's being very polite and circumspect, but I mean, if the person cross examining you is a clown who clearly hasn't done the work, I don't think that's particularly edifying. And look, court time is precious. The time of the 12 people in a jury is precious. And I don't think that forensic pathologists should be spending their time, you know, defining basic medical terms that you could have actually done the work and looked up yourself.
- [40:10]
Joanna Glengarry
And as Tim says, it's about respect and that mutual professional respect. Because at the end of the day, this isn't, this isn't for my ego or Tim's ego. It's. There's someone who has died and there's someone whose life will be potentially, irrevocably altered by the outcomes of this trial.
- [40:34]
Michelle Laurie
And probably both their families are sitting.
- [40:36]
Joanna Glengarry
Exactly. So it's actually not about us.
- [40:39]
Michelle Laurie
Yeah.
- [40:40]
Joanna Glengarry
So playing games around that, it isn't helpful.
- [40:44]
Michelle Laurie
Part of it seems to me, from speaking to you and other pathologists, that part of coping from a mental health perspective is that compartmentalisation is just focusing on your bit of the job.
- [40:57]
Joanna Glengarry
Yeah. Look, medical training teaches you to compartmentalise because nobody ever goes to the doctor when they're feeling wonderful and wants to just have a chat. So even from medical school you learn to focus on your role and what you need to do for that person. That doesn't change in forensic pathology and probably it makes you, it self selects people who are better at compartmentalising because even within medical specialties we are a fairly niche field.
- [41:26]
Michelle Laurie
Yes.
- [41:27]
Joanna Glengarry
But you do learn to say, okay, what's my role? What do I have to do? I can't think about the loved ones that have been left behind for each death I deal with, because I've looked at about 5,000 or so deaths over my career and I think that would be crippling if you took on board the emotional impact of that. So I think, well, my job involves getting answers, so I'll focus on that instead.
- [41:51]
Michelle Laurie
To the science. You guys are very good at just focusing on the science. Tim, by contrast, it seems to me that you are Mr. Context. You have to know and familiarise yourself with every aspect of the deceased person's life, accused offender's life, their families, everything. Is that right?
- [42:11]
Timothy Marsh
Yeah, it is. And I think the context for me is unavoidable. The context is in fact, the entire case.
- [42:17]
Michelle Laurie
Yeah.
- [42:19]
Timothy Marsh
And the circumstances that might be relevant could precede the homicide by weeks, months or even years. And all of that could be relevant in understanding what happened. So rather than coming from a position where my sort of default settings are to focus in on the narrowest issue, that's something that I have to be very conscious of trying to do. And in any homicide brief, the thing you'd probably start with is the forensic pathologist report. So that's a type document that'll set out their findings. But that's something which has to be read or understood in the context of the photographs, both of the crime scene and of the autopsy itself. And so that material is in most cases unavoidable and can be incredibly graphic. And something that I've become very careful about doing when I'm looking at that material is just making sure I have a very clear and defined purpose in doing it. You know, I think there are probably a couple of cases that I was involved in in my earlier career where, you know, I didn't really know why I was looking at autopsy photos or what I was expecting to find. And, you know, I think that that maximizes the likely of being the likelihood of being swamped or overwhelmed by. By the trauma of that, particularly when it's allied with the context about what happened. So I've become very deliberate about setting myself a task. One of the things that's certainly become clearer to me over time is that you can't always predict what is going to get under your skin. And it's not necessarily that which is graphic or grisly either. You know, sometimes that can be. Can just. It's not particularly emotionally resonant for whatever reason. And other times, something that might seem quite minor in some ways can in fact be incredibly poignant in terms of. Of what it tells you about the circumstances of an individual. So, you know, I think it's not. You can't readily sort of quarantine the information and say, well, that's gonna be potentially harmful, but that's not. But, you know, I think most careful practitioners in the criminal world in defence will have similar approaches. So, of course, over Covid, many people were working from home, and yet I know that for many people, myself included, the one thing you didn't do from home was look through graphic material. That was something you reserved for being at work. And so actually having some sort of rituals around that. It's all consistent with that idea of making sure you know what your purpose is and doing it you know, I think it's become much more a part of this sort of practice to be really conscious of the impact of the material on the people who are involved and being deliberate about who has to see what I think is a very important part of practice. You know, and if you have somebody who's working with you, whether that's a junior counsel or perhaps you've got a legal assistant who's helping out, you know, I will often be saying, look, there are parts of this brief that you. That you just don't need to be across because, you know, I'm handling that, that's fine. And it's not. I don't want a person just accruing unnecessary trauma. And I think that's become, you know, the sense of us being a team and being responsible for the people within that team, I think has become a much more conscious part of practice. And it's something that I've even seen within the court system itself, where court staff and juries, we are much more careful in terms of how we expose them to material.
- [45:58]
Michelle Laurie
It's an interesting swing around, though, isn't it? Because it feels like however many years ago, maybe 50 years ago, let's say, the attitude would definitely be, no, look at it, you gotta get used to it, you gotta. This is part of the job. And then, you know, in a court system, though, they had photos in black and white and then there was a moment where they said, no, that's ridiculous, we should have colour photos. The black and white photos were supposed to spare the jury in some way, but a decision was made to use colour photos. So now this swing back, though, to protecting. And I'm not talking about a jury specifically, but I'm talking more about practitioners. When you have young practitioners, do you feel a responsibility to introduce them, to manage how. Because they are. If they want to pursue a career like yours, they're going to have to harden up when it comes to looking at images and taking in information like that.
- [46:50]
Timothy Marsh
Yeah, but I mean, I think hardening up can happen in a controlled and careful way. It doesn't need to be. It doesn't need to be a baptism of fire. And I mean, I can think back to probably 25 years ago when I first started practicing. I was a solicitor at the Office of Public Prosecutions and I was handed a brief that involved. It was a committal brief and it involved a child homicide. And photo books used to be compiled by Victoria Police and they were spiral bound on the left hand edge. They had a blue cover with the Victoria Police crest on it and it might say photo book A, photo book B, photobook C, no clue as to the content. And I remember picking up a photo book and opening it up and it was a photograph of the deceased child after the post mortem and the post mortem incisions had been sutured back together. And I had no expectation that's what I was going to look at. And 25 years later, I can picture that image as vividly as when I saw it the first time. And I don't think that's appropriate. I don't think that's how we should be exposing junior practitioners to distressing material because there's no protective scaffolding around that. All of the steps that I put in place now around identifying a purpose and being very clear with myself why I'm looking at something in order to be able to identify that you don't have any of those shields up. And so, you know, I think as a profession we've moved on considerably from that sort of laissez faire attitude.
- [48:25]
Joanna Glengarry
For me, some of the cases that have stuck with me have been the ones that didn't have a high media profile, that weren't sensational, that people may not even remember apart from the loved ones of that person. But there'll be something about it that makes it stick in your head and affects you. And I suspect there might be factors such as how you are at that point in time or what's happening in life or other things that may make you more vulnerable or prone to having that affect you.
- [49:04]
Michelle Laurie
Oh, absolutely. I mean, whether or not you've got kids seems to be the biggest one to me is people will say this stuff didn't bother me that much until I had kids. Then it hit different. But yeah, it'd have to be depend on your time of life on.
- [49:19]
Joanna Glengarry
Yeah, it can be a multitude of factors and you just, you realize that that one stuck with me and it can be. Be the littlest things. I have a letter on, up on my wall in the office from the father of a young girl who had taken her own life from jumping in front of a train. There was nothing specific about the background or the circumstances or the injuries or the examination, but that her death sits with me because it was so poignant. Her dad took the time to handwrite that letter, put it in an envelope, post it to thank me for looking after her while he hadn't, she hadn't been identified, and while he was located and advised that she'd passed away.
- [50:10]
Michelle Laurie
Well, you guys are such an important part of a lot of our lives, and we will never meet you and our families will never meet you.
- [50:20]
Joanna Glengarry
The vast majority of work I do is people who die from natural disease that they haven't known about. And they can be the most satisfying cases where you think, I found that answer, and that has implications for the family in terms of preventing further death. And those aren't the ones that CSI deal with or those aren't the ones that make the media, and those aren't the ones that I go to court for.
- [50:46]
Michelle Laurie
But I also know the care that
- [50:47]
Joanna Glengarry
goes into make a difference for that family. That's why I love my job in
- [50:51]
Michelle Laurie
the lab and in the mortuary. Coppers, retired coppers, will say things like, well, firstly, they're upset that police recruits no longer are expected to attend autopsies. They think that's a backward step and that has a poor effect on their policing. Also, some of them will say that even the detectives don't engage with you during an autopsy the way they used to. They'll say, I've heard the lead detectives don't even show up for an autopsy anymore, whereas I used to get in the scrubs and go in there and be in the room and all that kind of stuff.
- [51:23]
Joanna Glengarry
Look, I think, like with many things, the ideal solution is probably somewhere in the middle. Look, I was trained and certainly there were some confronting things and we were just expected to harden up and do it. Medicine has evolved considerably in that regard. I now do feel a responsibility to look after my team in terms of our forensic technicians. And by doing that, it's similar to what I'm doing. It's providing them with information and clarity around their purpose and the role that they play and how vital they are and what they're doing.
- [51:55]
Michelle Laurie
Cause I think there's a feeling, and probably I'm as guilty of it as anyone, that, well, if you want to work at the mortuary, what do you expect is going to happen? Like, I don't. I don't feel any protective sort of feelings around people, not even as much as I do in, you know, people who work for you. Tim, I think, oh, well, if you want to be a lawyer and you've got all these other reasons for wanting to pursue this career path. But if you're working at the mortuary, do we need to protect you so much?
- [52:18]
Joanna Glengarry
But the reality can sometimes be very different. And if people are coming in young, the only person they may have seen that's died might have been Grandma or nicely prepared in a funeral parlour.
- [52:28]
Michelle Laurie
Well, most of us in Australia don't even.
- [52:30]
Joanna Glengarry
Or that. Or they've seen it on CSI where it's all very sanitised. And the reality can be a lot to take in. The first autopsy that I saw, I thought it was the worst thing I'd ever seen and I found it really confronting because it was a lot more than I had expected. And now look what I do. But if I found that confronting and I have a pretty strong stomach, how must that affect some other people? And from the police point of view, look, they do interact with us, but the reality is they don't necessarily have to be there for every incision, every finding in the autopsy room. They are welcome if they want and some certainly do come in, but they are working as part of a fresh, ongoing, active investigation. They're often juggling multiple jobs and if they get the chance to sit in that observation room while we're doing something, they don't need to be looking at specifically at that point and can be doing something else with regards to the investigation, that that's fine. We have that chat, we have that discussion with them around the findings. They're not missing out on anything. And you don't. Last thing I want is actually a whole group of detectives up there.
- [53:48]
Michelle Laurie
Peanut gallery.
- [53:49]
Joanna Glengarry
The peanut gallery. I'm not there to put on a show that's not respectful for the deceased as well. We're not there to, to provide theatre or entertainment. We're there to perform a medical procedure and a medical examination. So actually the fewer people, the better it is in terms of accuracy and ease of the investigation. And if people are there, they need to be getting something out of it.
- [54:11]
Michelle Laurie
But do you feel similarly that during your time in this industry, I'll call it that attitudes have changed about this kind of, I want to say, blooding of people. Like the idea that it's a. Yeah. Rite of passage.
- [54:23]
Joanna Glengarry
They absolutely have, yeah. And I had come into it on the assumption that you just had to put, put your big girl pants on and harden up and be tough. And it blew my mind as a trainee when probably after people had had a few ethanol containing beverages, the pathologists, these people I looked up to, were talking about cases that had affected them and how it was their families that noticed first before they did. And they were quite happy talking about that. They were quite happy talking that some of them had to take time off just to say that got to me a bit. I just had to step away for a while. Nobody thought any less of them. Nobody thought, oh, you can't handle it. In fact, for me, as a trainee at that stage, I thought, this is mind blowing. This is amazing. These are people that I absolutely respect and they're okay with showing that vulnerability.
- [55:19]
Michelle Laurie
Well, thank God.
- [55:20]
Joanna Glengarry
So. Exactly. It's okay to show that vulnerability now and to go, look, I'm human, okay? The vast majority of cases don't affect me, but it's okay to admit that some cases do, and that's okay. It means I'm human.
- [55:34]
Michelle Laurie
In the research I did about the mortuary before the current Victorian Institute of Forensic Medicine, I don't think there was a lot of sharing of feelings and stuff going on in that joint. No, there was a lot of barbecues and drinking, but I don't know. And good on him. I mean, we all have our ways of coping and it was very much of its day.
- [55:51]
Joanna Glengarry
But we do still have barbecues.
- [55:53]
Michelle Laurie
Oh, no, you can't. You can have barbecues. I want you to have barbecues.
- [55:56]
Joanna Glengarry
But you can't take away my barbecue.
- [55:58]
Michelle Laurie
No, I would never. But lots of drinking instead of openness and honesty about, you know, feelings. Not a lot of chat about feelings in those days. Well, you both very good at living lives and looking very well on it in very frustrating, difficult careers. What's the secret? Is it running? Is it puzzles?
- [56:20]
Joanna Glengarry
Yeah, for me, running, reading, playing with the cat.
- [56:23]
Michelle Laurie
Yeah.
- [56:23]
Joanna Glengarry
Just being able to separate work from life. Or actually not necessarily that, but having clear boundaries, but also loving my job to the extent that I don't mind thinking about it.
- [56:36]
Michelle Laurie
Yeah.
- [56:36]
Joanna Glengarry
I'll be out for a run and I'll be thinking on cases and going, ah, actually that'll be a nice way to comment on that. Or. Oh, that's. That's a possibility. I adore my job.
- [56:45]
Michelle Laurie
Yeah.
- [56:45]
Joanna Glengarry
So it doesn't feel like work.
- [56:47]
Michelle Laurie
Yeah.
- [56:47]
Joanna Glengarry
So that helps a lot.
- [56:48]
Michelle Laurie
What about you, Tim? I think you love your work, right?
- [56:52]
Timothy Marsh
I do. I mean, I don't. I can't say I love my work every day, but to play a part in making sense of the things that happen, the terrible things that can happen, you know, whether that's in terms of determining an outcome or to deciding the appropriate penalty, I mean, to play a part in that process is a real privilege. And, you know, to shape the stories that we tell about how and why things happen in society is an amazing position to be in. So that part I absolutely love. And similarly to Joe, I mean, it's about maintaining appropriate boundaries between work and
- [57:27]
Joanna Glengarry
not work, being part of events. You notice when major events happen, people want to help, people want to be part they want to do something because people don't like feeling helpless. People want to do something, and to have the skills and the expertise to do that is immensely satisfying.
- [57:55]
Michelle Laurie
If you need support after listening to this podcast, you can call Lifeline on 131114 or contact 1-800-Respect on 1-800-737-732 or 1-800-Respect. Org AU. Indigenous Australians can contact 13Yarn on 139276 or 13yarn.org AU.
- [58:26]
Joanna Glengarry
The producers of this 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.