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- [00:00]
A
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]
B
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]
A
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]
B
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.
- [02:36]
C
For the majority of cases there are things to discuss. It isn't black and white from a pathology point of view. 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, 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.
- [03:51]
A
No, we don't even have guns or leather jackets.
- [03:54]
C
And I don't arrive before the police. No, that, that would be odd and I should probably spend my time better.
- [04:01]
A
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.
- [04:18]
B
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 forens 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 know, 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.
- [05:49]
A
You're just performing it for the benefit of the jury.
- [05:52]
B
Yeah. And it may be that there is other information that's come to light 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.
- [06:05]
A
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?
- [06:30]
B
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. I make no point, make no bones about that.
- [07:26]
A
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. 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.
- [07:47]
B
Sure. But I mean, I don't know that ensuring that a person is sentenced to. 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 going to 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.
- [08:39]
A
There must be defendants, though, who would hate the idea that you two would be friends. Like, if. 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?
- [08:58]
B
It's never been an issue. And I think the.
- [09:00]
A
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
- [09:19]
C
ever come up from a pathologist's point of view, you'll get a better outcome.
- [09:22]
B
Well, that's what I.
- [09:23]
C
If the lawyer and the pathologist get on, because it means we will have talked about it.
- [09:27]
A
Right?
- [09:28]
C
It means that we will have had A discussion about the case that whatever
- [09:32]
A
you're going to say, he knows, he knows.
- [09:35]
C
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.
- [09:48]
A
Yep.
- [09:49]
C
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.
- [10:06]
A
Yep.
- [10:07]
C
Then, you know, I'm not going to necessarily go out of my way to be helpful. I'm not gonna be obstructive.
- [10:13]
A
No.
- [10:14]
C
But it works better when we can talk about the case and realise what works and what doesn't.
- [10:20]
A
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.
- [10:32]
B
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.
- [11:33]
A
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.
- [11:46]
C
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. 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.
- [12:22]
A
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 familiarize yourself with every aspect of the deceased person's life, accused offender's life, their families, everything. Is that right?
- [12:42]
B
Yeah, it is. And I think the context for me is unavoidable. The context is, in fact, the entire case.
- [12:48]
A
Yeah.
- [12:50]
B
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 happens. So 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.
- [13:38]
C
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. 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?
- [14:25]
A
Well, you're 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?
- [14:36]
C
Yeah, for me, running, reading, playing with the cat.
- [14:40]
A
Yeah.
- [14:40]
C
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. Yeah, 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, so it doesn't feel like work.
- [15:04]
A
Yeah.
- [15:04]
C
So that helps a lot.
- [15:05]
A
What about you, Tim? I think you love your work, right?
- [15:09]
B
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 Jo, I mean, it's about maintaining appropriate boundaries between work and
- [15:43]
C
not work, being part of events. You notice in 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.
- [16:12]
A
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 the 13 Yarn on 139276 or 13yarn.org AU.
- [16:43]
C
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.