Loading summary
Transcript86 lines
- [00:00]
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
- [00:14]
B
Dutton described me as a left wing
- [00:15]
A
ideologue and leading barrister. Greg Barnes.
- [00:18]
B
SC leave aside, you know, the issues of human rights, et cetera, it doesn't decrease your crime rates.
- [00:23]
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.
- [01:28]
B
What a great description. 34 years, the bar. It's enough.
- [01:32]
A
It's a lot.
- [01:33]
B
It's enough. And I'm just tired of dealing with other people's tragedies and conflicts. So it's good not having to do that.
- [01:41]
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.
- [01:46]
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.
- [01:58]
A
What do you think your legacy will be?
- [01:59]
B
What?
- [02:00]
A
What will you be saying about, you know, when in years 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?
- [02:11]
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. Yeah, 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. I think it is Van Nguyen and so on.
- [02:32]
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.
- [02:37]
B
No. And it wasn't much of a hobby.
- [02:39]
A
No.
- [02:39]
B
We lost. He was executed. So it was tough.
- [02:43]
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 him. 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?
- [03:14]
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.
- [03:43]
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 learned 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. 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.
- [04:16]
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.
- [04:36]
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.
- [04:44]
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. Right. 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. So 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.
- [05:10]
A
Oh, yeah.
- [05:11]
B
To the result.
- [05:12]
A
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.
- [05:19]
B
It is very stressful.
- [05:20]
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.
- [05:35]
B
Yeah.
- [05:36]
A
You couldn't recreate that on television or in a movie, I don't think.
- [05:39]
B
No, no. You do sometimes get screams of outrage or.
- [05:43]
A
Yeah.
- [05:44]
B
Or other things. Other things going on. Family of the victim might get agitated, whatever. But, yes, that silence is deafening.
- [05:56]
A
Are we still very closely related to the British system?
- [06:00]
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.
- [06:12]
A
But have we developed our own.
- [06:13]
B
Yeah, we have.
- [06:14]
A
Okay.
- [06:14]
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 the sentencing discretion.
- [06:37]
A
Describe mandatory sentencing for us. What does it mean?
- [06:39]
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.
- [07:19]
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.
- [07:26]
B
Yeah.
- [07:27]
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.
- [07:40]
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.
- [07:52]
A
Okay.
- [07:52]
B
On the basis that I had an honest belief that if I didn't kill him, he was going to kill me.
- [07:57]
A
Yeah.
- [07:58]
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.
- [08:09]
A
Yeah.
- [08:09]
B
And I'm sure that resonates with a lot of female victims of domestic violence. I knew that look.
- [08:15]
A
Yeah.
- [08:16]
B
And so self defense is, I think, often available.
- [08:20]
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.
- [08:40]
B
Yeah. 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.
- [09:25]
A
Okay, that's interesting. And positive, positive development.
- [09:28]
B
Yeah.
- [09:29]
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 feel pinions, we used to call them a couple of years ago, where it's like, I understand it, 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. And it's a.
- [09:50]
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 the criminal justice system meeting out justice to the person charged with the crime. That's its primary purpose. That has to be borne in mind, I think.
- [10:12]
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 to.
- [10:16]
B
Well, it always will be a bit emotional.
- [10:18]
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.
- [10:27]
B
Oh, that is the judge's job to get to them.
- [10:29]
A
Yeah. What's happening on your podcast, though? Because I am like all about the crime. I'm all about the. 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.
- [10:43]
B
Yep.
- [10:44]
A
And secondly, this is about. There's a lot of politics in this show.
- [10:48]
B
Well, because I'm doing it with Greg Barnes, who's a very energetic young man.
- [10:52]
A
Yes.
- [10:52]
B
If young man is the correct description.
- [10:54]
A
I would describe you both as energetic young men, actually.
- [10:57]
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.
- [11:09]
A
Yes.
- [11:10]
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.
- [11:19]
A
Yep.
- [11:19]
B
Tim Marsh about mental illness and its intersection with the criminal law.
- [11:24]
A
We loved him.
- [11:25]
B
Marsh. He had Tim on.
- [11:26]
A
Yeah, definitely.
- [11:27]
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 gonna be some politics involved.
- [11:50]
A
Well, it sort of reminds me of how political the law is.
- [11:54]
B
It is.
- [11:54]
A
Yeah.
- [11:55]
B
And a lot of people don't want to admit that, but it is political.
- [11:59]
A
Thank you to our guest, the one and only Lex Lasry. You must join in with Lex's new podcast law. The Podcast. You can get it wherever you get your podcasts. Yes, that same podcast 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 1-800-Respect. Org. Au. Indigenous Australians can contact 13Yarn on 139276 or 13yarn.org au.
- [12:43]
B
The producers of this podcast recognize the traditional owners of the land on which it's recorded. They pay respect to the Aboriginal elders past, present, and those emerging.