Emergency Episode: Lindsay Clancy's Mistrial, Prison Overcrowding and Character References

0:03Speaker 1:Welcome to Law The Podcast. I'm Lex Lasry.

0:05Speaker 2:I'm Greg Barnes.

0:06Speaker 1:This is probably what you would call an emergency episode, Greg. No guest?

0:10Speaker 2:No guest. On the phone from Hobart, dealing with technology.

0:15Speaker 1:Well, it's the exigencies of being media stars, Greg.

0:18Speaker 2:Well, you know, it's like being out in the trenches, you know, you radio in. But anyway, we will grin and bear it. We will.

0:27Speaker 1:Now, I thought we'd start the murdered file of Lindsay Clancy in Massachusetts. Only topical because after some weeks of deliberations or trial and then deliberations, the jury announced that they were unable to reach a verdict and were split 11 to 1. The intelligence seems to be that the 11 were for acquittal and the 1 was for conviction. And the big issue in the trial was the fact of postpartum psychosis on the part of Lindsay Clancy, which means a psychiatric condition as a result of childbirth. or the aftermath of childbirth. And it seems to have divided everyone who's followed the trial between those who think the mental health of Lindsay Clancy is a try-on and those who think this isn't a murder that occurred because she was never properly looked after in the first place.

1:19Speaker 3:Is Lindsay Clancy criminally responsible for the deaths of her three young children? Lindsay Clancy doesn't dispute carrying out the killings of five-year-old Cora, three-year-old Dawson and eight-month-old Callan. before she jumped out of a second window floor. Prosecutors say she acted deliberately, but she's pleaded not guilty to murder charges. Her defence team argues that she was suffering from a severe postpartum mental illness, including psychosis, and was unable to understand the consequences of her actions.

1:49Speaker 1:We've been down this road before, Greg, with these sort of cases.

1:52Speaker 2:These cases are very difficult and tragic all round, but it's a good example of where the law... and science, particularly in the area of neuropsych and psychiatry, and the issue of whether or not somebody has free agency or free will are an issue. And I think as we develop forensic medicine and as we develop a greater understanding of the impact of what is often called, I think, antenatal depression, we are, I hope, getting to the view that some otherwise really decent people do something that's terrible. Yeah.

2:33Speaker 1:There's a lady who was quoted in today's age, Anita Link, who had also been diagnosed with postpartum psychosis. It's not just depression, it's psychosis. So it's a loss of contact with reality. And she's making the point in today's paper that really it could have been her, and it could be anyone who's suffering from this condition, who is not being properly looked after. And I think part of the trouble is that a lot of people simply don't recognise the condition. And in turn, a lot of people see it claimed and think, as we discussed in our earlier episode with Tim Marsh, that these sort of things are just an excuse to commit violent crime.

3:10Speaker 2:Well, it's the same with PTSD. In the 70s and 80s and 90s, I don't think anyone had heard of PTSD. But of course, it is now recognised, as it should be, its impact on so many members of our community, particularly, for example, the military. who suffer on the battlefield, but also women who are subject to terrible violence over the years. And I don't think anyone should downplay it because you and I have acted for, and you would have seen from the bench, people whose lives are just broken as a result of PTSD.

3:45Speaker 1:Yeah, well, it made me think back over the number of cases I've done, which are cases of filicide, that is, cases where parents have killed their children. There's at least four that I did, including Robert Farquharson, which is probably the most famous of them, and Akon Gwode, who drowned her children in a lake.

4:04Speaker 2:It's horrifying.

4:05Speaker 1:And, I mean, they're traumatic cases. And I think the thing about these cases is that when people get involved in them, particularly the onlookers, I think the jury were probably doing the best they could, but the onlookers suddenly become very vocal and very judgmental about people in this rather rare and dangerous situation.

4:20Speaker 2:Well, I think it raises a broader issue the way the law treats people as I said, free will and agency. Just to segue a little bit, I mean, it's said, as I understand it in the law, that if you have a drug-induced psychosis, that it's no defense to say that you're acting in a way inconsistent with the free will. But the more you know about, and we know about neuropsychology and psychiatry, the more I think there is a need for the law to look at the issue of agency and free will. Because of course, it's based on a rational actor theory. It's a very, very complex issue.

4:57Speaker 2:And of course, the law takes personal responsibility very seriously and I think is loathe to diminish it without very, very good reason. And we've seen that happen a bit with PTSD and we're seeing it hopefully happen in relation to not just this case, but other cases, tragic cases.

5:16Speaker 1:It was interesting that when the jury came in and said, we've tried and tried and we can't reach a verdict. And I think the judge was told what the numbers were. which is not what happens in Victoria. That's not allowed to happen in Victoria. He was on the verge of declaring a mistrial and counsel for the defendant, the accused, then went off to an appeal court to try and stop the mistrial being declared. And sadly for him, the appeal court declined to intervene and the judge declared the mistrial.

5:45Speaker 1:And so presumably it's all going to be done again. It's an interesting procedure.

5:50Speaker 2:Yeah, I did read, I think, in the New York Times over the weekend that there may be deal done so that people don't have to go through what has apparently been an extraordinarily traumatic trial. So look, let's see what happens. I mean, the American justice system is not particularly robust in some circumstances, and these cases get politicised far too easily. Yes.

6:12Speaker 1:Now, speaking of justice systems, it's quite political, but I just can't resist it. There's a fellow by the name of Warren Pickering, who apparently is now the leader of One Nation in Victoria. saying that justice and accountability, and this is a week or so ago, justice and accountability were key themes in a policy manifesto. And what he said he was going to do if he were in some way elected would be to establish a panel of everyday citizens and legal experts, Greg, to determine whether sentences handed down by the courts fit the crime committed on a case-by-case basis. And if judges weren't towing the line and imposing heavy enough sentences, then.

6:51Speaker 2:They would be disciplined. Why doesn't Warren just move to the US system? And be honest, Warren, what you want is elected judges. Do you want them to run around Victoria, putting their placards up in front yards, boasting about how many convictions they've engineered? But I'll tell you the serious point about this, of course, is that if Jess Wilson and the Liberals get elected, they'll have to do a deal with One Nation, I think most people are saying.

7:14Speaker 2:And I wouldn't be surprised because of James Newberry's who's the shadow attorney general and completely lacking, it seems, in any knowledge about the rule of law and prepared to spout One Nation-style rhetoric, and that's all it is, rhetoric, I wouldn't be surprised to see the Liberals move down this path. In other words, come to some compromise where they say, oh, well, we'll have a panel picking judges now and let it include members of the public. I've got to say, any lawyer who joins such a panel, you'd have to say to them, You do know that you're ripping up the rule of law and the separation of powers, don't you?

7:49Speaker 1:I think these politicians and the One Nation leader, Warren Pickering and James Newbery, I'll perhaps come to him in a moment, these people have a responsibility, don't they, to put forward sensible policies. I mean, if you're going to have a group of everyday citizens and legal experts reviewing sentences, what do they think the Court of Appeal is doing where the prosecution can appeal if the sentence is said to be manifestly inadequate? or the accused can appeal if it's manifestly excessive. That's the process. That's a fair, independent judicial process. And what are they talking about?

8:23Speaker 2:Well, what they want to do is undermine the judiciary and attorneys general and shadow attorneys general do it all the time. And they've been doing it since the 1980s. But I'll tell you, James and his mate Warren might be careful what they wish for because Kate Warner from the University of Tasmania, who was also a former governor, she did a whole lot of work with jurors And the majority of jurors who'd sat on cases would, in fact, once they had all the knowledge, have imposed a lesser sentence.

8:52Speaker 2:But the problem is, of course, that what you'll have is you'll have somebody from the police association, somebody from the victim's lobby. There'll be no one from the criminal bar association. It'll be heavily skewed. But the fundamental point is Newbery is irresponsible. He seems to forget that the role of an attorney general is to be the first law officer and and to push back against ridiculous policies, if you can call them policies, dreamt up in the leader's office or by himself. He's your local member, isn't he, Lex?

9:25Speaker 2:Isn't he down the beachside somewhere in Melbourne?

9:27Speaker 1:Yeah, beachside, yeah. Well, he's a member for Brighton, and I don't live in Brighton, but he's not far away.

9:32Speaker 2:Yeah, yeah.

9:34Speaker 1:He doesn't understand. He says what we're going to do. In fact, in response to our podcast, he was quoted as saying that we're going to follow the New South Wales model and we're going to have a court of criminal appeal. And he speaks as though the Court of Criminal Appeal in New South Wales is some kind of specialist court staffed by hardline criminal judges. It's not. It's just like happens in Victoria. The judges of the Court of Criminal Appeal in New South Wales are selected by from the Chief Justice, the President of the Court of Appeal, and judges from the Common Law Division. The system is really no different apart from in designation from what we have down here.

10:08Speaker 2:Yeah, correct. You would think he would be able to work that out. Well, either James is not that bright, or he's intellectually lazy, or worse still, he's intellectually dishonest, and he knows what the truth of the matter is, but how could anyone possibly say who's a shadow attorney general, this is a person who is offering themselves up to be the next first law officer of Victoria. Think that a court of criminal appeal, whether it's in Queensland or Tasmania or New South Wales, simply because it's got that designation, that's the place where you go for hardline judges to up sentences. I mean, honestly, it's more than misleading. It's dangerous talk. And, um, it's, as you say, irresponsible.

10:59Speaker 1:To demonstrate that a lot of these problems are not problems that can be sorted out by increasing sentences, I was having a look at the Bureau of Statistics figures recently. Do you know there are almost 50,000 people in custody in Australia?

11:12Speaker 2:I know.

11:12Speaker 1:Up 4% since the last quarter. The imprisonment rate is 225 people per 100,000, except in the case of Aboriginal and Torres Strait Islander, where the rate is 2,701 people per 100,000. It's a pretty interesting snapshot of the sort of community we now have.

11:31Speaker 2:And interestingly, James might want to talk to his friends at the Institute of Public Affairs because they have said there are too many people in jail. And they say that people who have committed non-violent offences basically shouldn't be in jail. Now, I would also say some lower level violent offences shouldn't be the subject of jail. But what James wants to do and what Jess Wilson will want to do is waste taxpayers' money. If these policies were so good, in other words, if every time politicians increase sentences, they think, we fixed it. Why is it that you've got to keep building jails because you want to put more people inside if these policies are so fantastic? It's fiscally irresponsible. It's a policy that's a failure and known to be a failure, but we're prepared to spend billions on infrastructure that could go into health and education and planning and other areas where you can get some bang for your buck. Yeah.

12:26Speaker 1:Well, one of the reasons that they're building more jails is to make room in police cells because apparently the police cells chock-a-block with prisoners to the point where the chief commissioner has directed that police who have At the bottom end of the scale, the power to grant bail in certain circumstances should ignore the overcrowded conditions in police cells when deciding whether to give someone bail.

12:49Speaker 2:I think that was an extraordinary comment. Irresponsible again, but also reflects a very troubling mindset on the part of the Commissioner and Victoria Police. In other words... not doing what judges and magistrates do every day, which is to take account of the conditions in which someone would be kept as a factor in considering bail. I thought it was a very dangerous comment. Not the first one from this commissioner. He's weighed into the political realm previously, and it's something he shouldn't be doing. And he shouldn't be giving that sort of directive. I wonder whether it passed through the in-house legal department, but it's also a breach of the Human Rights Charter in Victoria. Yeah. But he strikes me, this police commissioner, I think he comes from New Zealand, he strikes me as quite political, which, of course, commissioners should not be.

13:39Speaker 1:No, indeed. Now, Greg, did you want to say some more about character references along the way? Because I know we've talked about it already, but.

13:46Speaker 2:So there's a move around Australia now to curtail the use of character references. So many of our listeners and watchers would have given a character reference for a person, or they may have been the recipient of a character reference if they've had the misfortune to be in court. And they're very useful to courts, depending on, as Lex will tell you, as someone who sat on the bench for many years, depending on the content, depending on the crime, and depending on who wrote them and whether they had knowledge of the offending. And they're a useful tool for courts to take into account in terms of mitigating the offence.

14:19Speaker 2:And that's been the case for many, many years. There's a high court authority on it called Ryan. It's standard practice. So The Tasmanian Attorney General, Guy Barnett, who's never short of a populist measure, or hasn't, let's just put it this way, there's not one populist measure he hasn't seen that he didn't like, said last week, and it was passed unanimously by the Parliament, I couldn't believe the Greens supported it, Labor, you've given away on those issues, but that says that in serious offences now, it can only be used, I think, for the purposes of rehabilitation, etc., Now, the judges hate it and magistrates hate it, and for a good reason, because it leads to injustice. If I can't take into account, for example, a 19-year-old kid who's otherwise of very good conduct, who does something really stupid because they can't handle their grog, am I really saying, as one of the victims' lobbyists down here said last week, or if you commit those offences, you're not a person of good character. The world doesn't work like that. People are flawed. We're all flawed. And some people do commit

15:22Speaker 2:serious offences and regret it and live with it for the rest of their lives. Yeah.

15:27Speaker 1:I've always understood that a person's antecedents, including their previous good character, was a relevant sentencing factor. Confident I've sentenced people on that basis over a number of years. And I just can't understand why if you give any credence to doing the best you can to rehabilitate someone, that you don't take into account their good character prior to committing this offence.

15:48Speaker 2:Well, Barnett and other attorneys have said, and the victim's lobbies have said, we shouldn't have to sit here and hear about a person's good character. Well, maybe not. But there seems to be a view now taken by politicians that the justice system is not there as an even-handed process. It's to get the defendant and to strip away the defendant's rights. So it's a weighing up exercise because victims rightly have taken into account victim impact statements, the impact.

16:16Speaker 2:In fact, every judgment you would have written would include and does include, and every judge and magistrate does it every day, about the impact on the victim. But you've got to take into account the defendant's circumstances. And the problem is that this is thin end of the wedge stuff. You get rid of character. What else? We're going to say that our mental illness is no longer going to be taken as a mitigating factor. that disadvantage is not a mitigating factor. That's where it'll head.

16:42Speaker 3:Yes.

16:42Speaker 1:Well, we have talked about it before, but I think it's a very concerning prospect that somehow character just disappears from the field of consideration. And I mean, they'll have to legislate, won't they? They'll have to actually legislate to direct and legislate. But in Tasmania, they've already done that.

16:58Speaker 2:They've done that. And it was passed unanimously. And I spoke to a Labor Party person on Friday and they said, oh, well, you know, the government you know, you can still use them. I said, but you should be opposing these imposts on judicial discretion, yet again, undermining the role of the courts. I got a text message from a judicial officer once about this, just saying, why do they keep doing this? So that, you know, That means I can't deliver justice in a case every time this happens.

17:30Speaker 3:Yeah.

17:31Speaker 2:What else you got for us, Lex?

17:33Speaker 1:Well, I couldn't help but notice that the, we're back in the United States again, but I couldn't help but notice that almost predictably, you'd have to say, the challenge in the US Supreme Court to Donald Trump's ballroom at the White House has failed. And it's failed on the basis that the National Trust for Historic Preservation in the United States didn't have standing to bring the action or bring the application to stop the construction of the ballroom.

18:00Speaker 1:It was a 5-4 majority, and it had the Chief Justice, John Roberts, in the minority, who declared in his dissenting judgment that in all likelihood, the whole construction was likely unlawful. I think it's just another small example, and probably is relatively speaking, a small example of the way in which the US Supreme Court has been utterly compromised over the time of the Trump presidency. I think that's a very concerning fact of life.

18:27Speaker 2:I mean, that was a great court once. I mean, that was a court that started to pull down, dismantle racial discrimination with its famous school busing decisions. It was the court that said that burning the flag, which is topical today, was an exercise in freedom of speech. They pushed environmental and approved environmental legislation. But look at it now. I mean, people like Alito and Thomas, Just extraordinary, the way in which they bank, you know, Trump and the overreach of executive power. But maybe some of these judges have got an eye on getting an invite to the inaugural ball.

19:05Speaker 1:They have to be a pretty good turn. Has there been an outbreak of flag burning recently?

19:09Speaker 2:Oh, unbelievable. Unbelievable. I was just talking to an old political mate of mine this morning who was on the conservative side. He's in his 80s now, very wise. And he just said, this is just absurd. He said, when's the last time you heard of it? I said, look, I've been involved in protest movements as a legal advisor, and I've not heard it. And it'll get challenged. There'll be an implied freedom argument, which will be interesting because the US Supreme Court, as I said, has ruled on this many, many years ago about desecration of the flag.

19:39Speaker 2:But you had John O'Donohue, who's about to retire, who's a liberal, right-wing liberal senator from Tasmania, said, oh, I wish we were more like America and people really respected the flag. Well, I don't respect it. I'll tell you why I don't respect it, because it's just an imperial flag that bears no relationship to modern Australia and excludes, of course, any recognition of the continuing owners of the land, First Nations Australians. And I mean, just wrapping yourself in a flag... is, you know, what did Johnson say? Patriotism is the last refuge of the scoundrel. I can't stand it.

20:16Speaker 1:I agree, but I'm more concerned, I must say, about the prospect of legislating to entrench the 26th of January.

20:23Speaker 2:As Australia Day. Yeah, all that, all that.

20:25Speaker 1:I think there's a very strong argument as to why it should be a different day. And whether or not there's a strong argument, forget the argument, the harm, the hurt, the feeling that is done to Indigenous people on that day is in itself a reason to change the date, I think.

20:40Speaker 2:By the way, I can't let today go without talking about Nigel Farage and the sting over the weekend. So for those who haven't caught up, Nigel Farage is the leader of reform, as you probably know, the insurgent Trumpian party in the UK. And he and two staffers were set up by Channel 4, I think, in a sting where they're alleged now to have breached electoral laws, worth watching. It goes for about half an hour. But what's incredible about it is the boasting of these two advisors. And as a former political advisor, I just thought, oh my God, I'm very close to Nigel and of course this can all be done. And Farage's defense to all these things is sort of Trumpian. It's usually, I took no notice.

21:25Speaker 2:I didn't know it was happening. Oh, yeah, it doesn't look good, but, you know, I've got rid of it. He tried to call these two senior advisors who are his besties contractors to distance himself. And then you saw all these reformed people get on interviews and even to right-wing commentators say, oh, well, it was a setup. We were entrapped. And every questioner said, yeah, well, let's not worry about that. Let's worry about what you said. Yeah.

21:51Speaker 1:All right, Greg.

21:51Speaker 2:Well, I think we've probably- We've covered the emergency. We've covered the emergency. We've got some great stuff coming up. I must say Robert Redlick's interview was fantastic and I've had a lot of good feedback and well worth listening to if you want to hear someone who really understands the nature of anti-corruption agencies, but also understands the stupidity of this constant law and order campaign. This is from a very, very senior lawyer who spent a lot of his career as a prosecutor. And so in other words, on the side of the state, but well worth listening to.

22:21Speaker 1:And coming up, we've got Jenny Hocking this week, which will be interesting, particularly for those people interested in the dismissal of the Whitlam government and the career of Lionel Murphy. And that'll be followed by the famous, renowned author, Helen Garner. So it's going to be a good few weeks for Law the Podcast, ably supported, Greg, by Australian True Crime, who look after us extremely well.

22:43Speaker 2:They sure do. And Matthew Tenkard, the producer, who does a great job every week. He does.

22:48Speaker 1:He does.

22:49Speaker 2:Thanks, Greg. We'll see you soon. Thanks, guys.

22:54Speaker 1:This episode was produced by Bravecasting Media, edited by Michael Tankard, original music by Justin Humphries from Phoenix Sound Studios. This podcast is recorded on the lands of the Wurundjeri people of the Kulin Nation. We pay our respects to their elders past, present and emerging. Thank you for listening. See you next week.