What is the impact of working on criminal trials?
Airdate: 
Tuesday, October 3, 2017 - 08:30
Channel: 
SBS

Chief Counsel of Victoria Legal Aid, Tim Marsh, says defending the seemingly indefensible is just part of the job. He recently represented notorious pedophile priest Gerald Ridsdale on 20 counts of child sexual assault.

“I was called all manner of names and had accusations levelled at me,” Tim says. “I’ve been spat at, I’ve been abused by a family of victims outside court.”

Bill Hosking, former public defender and judge, represented one of the five men charged with the gruesome murder and sexual assault of Anita Cobby.

It was a brief he wished he never received, but it was his duty.

It was then up to Bill to try and convince a judge and jury that his client deserved some leniency for his crimes.

The question of a client’s guilt is not for their lawyer to decide, according to experienced criminal solicitor Mark Klees. 

“If you can’t go in and fight as hard as possible, and take every objection, and try and win that case, you should not be a criminal lawyer.”

Lawyers also face the risk of vicarious trauma after being exposed to confronting stories, clients and evidence. The effects of a criminal trial can go far beyond the courtroom.

“I went through a phase when I also wouldn’t want the children to have sleepovers unless I’d met the family members,” says NSW Deputy Director of Public Prosecutions, Kara Shead.

“I would often introduce myself and say what I did, and that I prosecuted paedophiles.”

The incredible stress and pressure during a trial leads many lawyers to reach for a drink at the end of the day.

“I’m probably not alone, because my good friends in the profession are big drinkers like myself, but I would easily drink a bottle of wine a night,” admits solo practitioner Karen Weeks.

Recently retired County Court Judge Geoff Chettle says talking to colleagues is really important, and lawyers need to know when to offer support or ask for help.

“You’re brought up as a lawyer to be big and brave and pretend that you don’t need any of this stuff, but you do.”

This week, Insight looks at the impact of working on a criminal trial, and how top lawyers do their best while defending the worst. 

Credits

 

Transcript

JENNY BROCKIE:  Welcome to you all.  Thanks for joining us tonight. Bill, you're a retired District Court Judge. Just before you went to the bench you were a public defender. Describe for me the types of people that you acted for? 

BILL:  Well, there were evil people, there were unlucky people, there were people who had had unfortunate lives virtually from birth.

JENNY BROCKIE:  So what kind of crimes had they committed? 

BILL:  Murders and ones involving very serious assaults and of course in many cases, from a point of view of guilt or otherwise, there was no doubt that the client was guilty.

JENNY BROCKIE:  Put bluntly how did see your job?  What was your job to do? 

BILL:  My job, I saw no problem in answering that at all to do my very, very best for my client within the law.

JENNY BROCKIE:  And when those people that you met, that you were representing were evil or you felt ethically compromised, how did you deal with that? 

BILL:  Well if you're ethically compromised it's very simple, you must return the brief. But on the other hand if you think the story which the client says is correct, you're bound to pursue that with the best ability you have because it's not for to you make a moral judgment of the guilt or otherwise, that is for the system to take over and ultimately a jury. 

JENNY BROCKIE:  And what about if they're evil, as you say, how did you deal with that? 

BILL:  Well again, that wasn't a matter for me to make judgments about. If the person were evil, and in particular I can think of one case in particular which I had the misfortune to defend, it was a terrible crime, but then the question was -  was my client, the accused, was he guilty? On one version of events he was not guilty of any. On the other he was a wicked man indeed. Neither of those matters did I have the right or should have even been tempted to consider to make a moral judgment myself. 

JENNY BROCKIE:  So it's not about working out the truth, it's actually about defending your client based on what they say? 

BILL:  Well Jenny, if I may say so, that's a very good question because in relation to a criminal trial, if the Crown is unable to prove guilt beyond reasonable doubt, the accused person goes free, walks out into the sunshine. Now that is not a miscarriage of justice if the Crown has failed to prove guilt beyond reasonable doubt. 

JENNY BROCKIE:  And have you had people walk out into the sunshine that you've thought mmm, I wonder if they should be walking out into the sunshine? 

BILL:  Yes, one, two, perhaps three occasions, perhaps more than that, I have you thought well, that particular person was lucky, but that didn't make me an accessory to that particular crime.  The Crown bears a very heavy onus, proof of guilt beyond all reasonable doubt and that is the defence counsel's role to make certain the jury realise how terribly much is at stake.  

JENNY BROCKIE:  Now in 1986 you were assigned to represent Michael Murphy who was one of the five men who were charged with the brutal rape and murder of Anita Cobby in Sydney. Now this was a particular gruesome crime and it attracted huge media attention. 

 

VIDEO PLAYED. 

REPORTER:  This is Anita Cobby, a beautiful entrant in the 1979 Miss New South Wales quest. Yesterday her naked and mutilated body was found in a paddock in the western suburban of Prospect. She'd been raped a number of times, her throat was slashed, she’d suffered numerous other cuts and injuries and a post mortem last night revealed she'd been tortured for some time before her death. 

END OF VIDEO.

 

JENNY BROCKIE:  How did you react Bil,l when you were given the job of defending one of Anita Cobby's alleged killers? 

BILL:   I’d wished that somebody else had been selected to take that brief. But there's an overriding consideration about that crime, if I may say so, right at the outset that that, the longer it went, the more difficult it became to remain objective when one saw every day the absolute calm, dignity of that poor lady's parents, Mr and Mrs Lynch. 

JENNY BROCKIE:  What was that like for you? 

BILL:  Oh, it's embarrassing to, but I was reminding myself all the time you are there to do your duty.

JENNY BROCKIE:  To what extent are you weighing up your client during this process? 

BILL:  Well, what as a person?  

JENNY BROCKIE:  Well yes, as a person and as somebody who's telling the truth or not? 

BILL:  Oh well it's not for me, there's many a client I have defended who I didn't think was telling the truth.

JENNY BROCKIE:  Did you think he was guilty? 

BILL:  I would seek to be excused from answering that question on the basis of…

JENNY BROCKIE:  I feel like we're in Court? 

BILL:  On the basis though, on the basis that I don't think any real barrister should ever say anything bad about his client.

JENNY BROCKIE:   Mark, you've been a defence solicitor for forty years. 

MARK:  Yes I have. 

JENNY BROCKIE:  What sort of cases have you worked on? 

MARK:  Hi Bill. 

JENNY BROCKIE:  Hi Bill, right you all know one another.  How many of you know one another here? Most of you I guess. 

MARK:  I know a number here, yes. 

JENNY BROCKIE:  Mark, what sort of cases have you worked on? 

MARK:  Well murders, many murders, sexual assaults, armed robberies, but also down to shop stealing in the Local Court, minor assaults, drink driving matters. 

JENNY BROCKIE:  And you've done some high profile cases, can you mention those? 

MARK:  Well, I suppose the case that involved a long running feud in the western part of Sydney, involving drugs and weapons and the like. 

JENNY BROCKIE:  And multiple rounds of ammunition fired into a house that killed two people? 

MARK:  Yes. 

JENNY BROCKIE:  And you represented the defendants in that case? 

MARK:  For a time.

JENNY BROCKIE:   What was that like? 

MARK:  That was, um, very difficult, very difficult. 

JENNY BROCKIE:  Why? 

MARK:  The pressure, a lot of pressure from various people. 

JENNY BROCKIE:  What sort of pressure? 

MARK:  I can probable say some of his, well one of his family who was, he's now deceased, was a very forceful man who would come to the office and put pressure. 

JENNY BROCKIE:  Threats?

MARK:  Oh, well, yeah, it certainly felt threatening.  

JENNY BROCKIE:  Were you scared?  Have you been scared? 

MARK:   I was scared at sometimes in relation to that trial but I knew they had or it was said they had a lot of, well access to firearms, assault rifles, they had rocket launchers. 

JENNY BROCKIE:  Rocket launchers? 

MARK:  That was the allegation, they had rocket launchers. 

JENNY BROCKIE:  So what's it like defending people like that? 

MARK:  Well, I didn't, apart from that sort of pressure.  It was not long after that that they changed legal teams and that was, I must say that was a relief.

JENNY BROCKIE:  Do you form an opinion about whether or not a client is guilty regardless of what they say? Do you form your own opinion? 

MARK:  Look, it's difficult not to. I mean you do have in your mind when you look at the evidence and if it's a very strong case, or an overwhelming case, you do think well, there's a likelihood this client might have committed the offence but it doesn't affect in any way the way you act. I think I should always be honest with your client. So if you've got an extremely strong case and the client is telling you something that is quite obviously or to you obviously incorrect, it might be incorrect because of transcripts of recorded conversations over the telephone or CCTV, I think there is an obligation to tell the client that it is an extremely strong case and you think there's an extremely high likelihood that they will be convicted and if they are convicted after running a long trial or defending it, they will probably receive a greater sentence. 

JENNY BROCKIE:  And do you say that very forcefully with that hand of yours or do you - I mean how do you deliver that? 

MARK:  Well, I remember in a murder trial that I was involved in, a high profile or in fact a politician was murdered, and my QC went out to the gaol and was very, very forceful to our client and right in his face, telling him that he had read all the evidence and he was guilty, and um, extremely forceful, as strong as a counsel I've seen in putting to a client that they're guilty. And it was funny because he said no, I'm still not guilty and we started running the trial. He didn't bend and many years later when I spoke to that client I said you must have felt pressure to tell us you were guilty at that point? He said no, I thought this barrister was so strong, was so forceful and was so good that he would fight for me so hard that I was determined to plead not guilty because I knew this QC would get me off the charge. So it actually worked in reverse.

JENNY BROCKIE:  And if that client says I'm not guilty, even though all the evidence points the other way?  How do you summon the belief to go in and…

MARK:  Absolutely no trouble at all. If you can't go in and fight as hard as possible and take every objection and try and win that case, you should not be a criminal lawyer. You should do something else. You shouldn't be there. 

JENNY BROCKIE:  Do you ever feel conflicted? 

MARK: No, no. 

JENNY BROCKIE:  If that happens do you ever feel conflicted? 

MARK:  No, no, no, no, none at all. I feel more conflicted when I feel has too much pressure been put on a client in an overwhelming case where they've made said I'll plead guilty. That troubles me more than running a case. I remember another public defender, and we had this sexual assault matter that was hopeless and he every day would ring me.  I was working in Legal Aid at the time and he'd say Mark, let's go out the gaol again, let's go out to Long Bay and try and talk sense to this fellow and we would have gone out a dozen, twenty times and he didn't buckle and we ran the trial and it was slightly embarrassing, I suppose, running this trial, it was so overwhelmingly our client was guilty, and it was one where at the end of the day when the jury went out to consider their verdict, I went in to make a cup of tea for the  public defender and the public defender came in about a minute later and said where were you?  I said I'm making you a cup of tea.  He said well the jury's already come back and found our client guilty. The jury had actually walked out of the jury box, down the corridor…

JENNY BROCKIE:   And just walked around in a circle? 

MARK:  Turned around and walked back again and said guilty. And many years later, he was - a Court of Criminal Appeal lawyer said to me hey guess what Mark, we just ran that client's appeal and we lost and during the appeal he said okay, look, I did do it. I said surprise, you know? You know, of course you did it.

JENNY BROCKIE:  Tim, you're a defence barrister too. How do you deal with situations where you don't believe your client? 

TIM:  Well, mercifully I've never been briefed to believe in my client, I've been briefed to represent them. Browbeating your client into giving you particular instructions rarely is successful, but it's vital that they understand what they're getting themselves into. 

JENNY BROCKIE:  Recently you represented former Catholic priest Gerald Ridsdale who is in prison for sex offences against more than sixty children I think? 

TIM:  I think that's right, yes.  He's been prosecuted a number of times since 1993, '94, 2004, 2014 and recently this year. 

JENNY BROCKIE:  What is it like defending someone charged with such dreadful crimes like that? 

TIM:  Um, look, it's a lonely experience because I mean certainly in the case of Mr Ridsdale, his record speaks for itself. I mean he's pleaded guilty to offences which quite rightly shock the public conscience.  Certainly his criminal history is unparalleled but my role was not to pass judgment on him. My role, and I should say he was pleading guilty to new offences, my role was to run legitimate arguments in his favour that would result in the most beneficial sentence for him.

JENNY BROCKIE:  And what happened? 

TIM:  He's received an additional term of imprisonment.

JENNY BROCKIE:  What about interacting with people who've committed, you know, things like murdering children, rape, extreme violence.  What is that like for though? What are those interactions like for you as their barrister? 

TIM:  Oh look, there have been some where I have felt very uneasy in their company and I've been very disturbed by things they said. 

JENNY BROCKIE:  Uneasy in what sort of way? 

TIM:  Look, you meet people who have transgressed the boundaries of normal human behaviour in ways that are quite extraordinary and it's a difficult thing to come face-to-face with that. It can be very confronting to then try and, you know humanise their situation or to advance a good argument on their behalf. 

JENNY BROCKIE:  Have clients said things that have shocked you? 

TIM:  Oh, undoubtedly.  I mean I can recall a case some years ago involving a very serious assault that involved the use of a particular weapon that had a wooden handle and I was sitting in the interview room with my client explaining the results of the DNA analysis.  My client had told me I'm not guilty, I didn't do it, I wasn't there, and I went through all of this with him and said, you know, he was very quiet and I said look, do you have any, do you have any comment about that? And he sort of looked thoughtfully and scratched his head and said yeah, I'm amazed there was any DNA left on there, and I thought ah, we might have a problem here. So yeah, and very unfortunately I ended up not being able to run that trial, it was listed at a time when I wasn't available so I avoided the difficulty of that. 

JENNY BROCKIE:  So that was a relief? 

TIM:  Um, look, it would have been, and look, I don't think I could have proceeded in the matter - certainly not on those instructions. 

JENNY BROCKIE:  So when something like that happens, what do you do? Like what …

TIM:  What you do is explain to your client that their instructions that they weren't present and they nothing to do with the assault, that those instructions aren't compatible with you staying in the case.  You are embarrassed, you've got a conflict. So…

JENNY BROCKIE:  Does that happen often? 

TIM:  Um, it doesn't and I should say that the process of getting instructions from your client is as much about knowing which questions not to ask as it is as about knowing which ones to ask. In retrospect, saying something as open ended as "so what's your reaction to that" was probably setting myself up for an answer that I probably didn't really want to get.

JENNY BROCKIE:  But that's also an important piece of information?

TIM:  But as was said earlier, the trial is not a search for the truth.  

JENNY BROCKIE:  Mmm, well that's what we're coming back to all the time. 

TIM:  What matters is that the prosecution can prove beyond reasonable doubt the accused did what they were charged of. 

JENNY BROCKIE:  Kara, you're a prosecutor as opposed to a defence lawyer. You used to be a public defender.  How does it compare, how does prosecuting compare to defending?  

KARA:  I was a prosecutor for twenty years before I was a public defender and it compared very favourably. I've never had a belief that I'm a prosecutor or a defender, I am but one part of the criminal justice system who for which ever party I'm acting, will do my best for the client. I had no difficulty whatsoever acting for people charged with very serious crimes or a feeling that I was on either side, on the side of right or the side of wrong.

JENNY BROCKIE:  What about you Geoff because you've been a defender and a Judge? 

GEOFF:  I spent ten years I think prosecuting about …

JENNY BROCKIE:  Prosecuting as well? 

GEOFF:  Fifteen or so defending. 

JENNY BROCKIE:  How does it compare? 

GEOFF:  Oh, defending is, in my view, harder. You've always got someone's fate in your hands. My wife used to say to me I thought more of the clients than I did of her, which I would always say well you might be here in three weeks but I don't know if this bloke will be if I don't do some work. It's a big responsibility to represent someone. 

JENNY BROCKIE:  How does the public respond to you when you're defending someone like Gerald Ridsdale? Like how do you, what sort of feedback do you get from people outside the law? 

TIM:  Feedback, that's an interesting way to describe it.  Look, I mean there are certain offences which are clearly very challenging and tap into a, hit a real nerve and look, I made the mistake of looking at some of the comments on several articles that were posted about that hearing recently and you know, I was called all manner of names and accusations levelled at me. I've been spat at, I've been abused.

JENNY BROCKIE:  And they're often expressing frustration with the legal system too?

TIM:  Look, they are, and I think part of the conversation that I think is important to raise is that whilst they might be frustrated with the legal system, that system requires robust defence and I think that's the part that sometimes gets missed in this conversation.  That the quality of the outcome is not going to be improved if we don't have defence counsel. In fact, the quality of the outcome will be terrible and the thing that I'd love to be able to say to people that have criticised me appearing for some of these accused is do you really think this process would be easier if I wasn't there? Would you rather your daughter get cross-examined by the accused himself?

JENNY BROCKIE:  Bill, let's have a look at some of the public reaction when the five men charged with Anita Cobby's rape and murder. 

 

VIDEO PLAYED. 

Later at Blacktown Court astounding scenes of public hatred as the Murphy brothers appeared on murder, abduction and sexual assault charges.  As the two emerged from the Courthouse the crowd of 400 thumped police cars abusing the brothers. 

END OF VIDEO. 

 

JENNY BROCKIE:  How did people respond to you personally defending one of those men? 

BILL:  Well, initially critically. People would say, and fair enough, why on earth would you appear for rascals like that, although they wouldn't use the noun rascal. My son at school, is that your dad appearing for those fellows, or one of them?  Yes, and the fact of the matter was, and has Kara of course personifies it, she has been both a prosecutor and a defender.

JENNY BROCKIE:  Kara, when you told people you were going to be a public defender how did they react? 

KARA:  I was shocked at the reaction. A number of friends, particularly not so much amongst lawyers that I knew but people from my private life said I don't know that I can ever speak to you again. And I thought they were joking at first, I really laughed and a number of people really said that they were struggling with the idea of me as a prosecutor defending people and they really saw me as a person who, as a prosecutor, was on the right side of the law.

JENNY BROCKIE:  For quite a lot of you, you know, part of your job involves looking in detail at crimes and injuries inflicted that are often horrific. Do those things stay in your mind, Tim?

TIM:  Yeah, look they do and I think the first of anything that you did I think is often the most memorable. I remember as a very junior solicitor having carriage of a, a child homicide matter and without really knowing what I was looking at I opened a booklet of photos and that contained photographs of the deceased child post autopsy and you know, nearly twenty years later I can remember exactly, I can remember every detail in that photograph. And it doesn't, it doesn't go. 

JENNY BROCKIE:  And how do you deal with that? 

TIM:  Um, look, I mean I think it's something that you need to acknowledge as being part of the burden of the work. Um, you know, and it's not just photographs either, it could be a single line in a witness statement or you know, a really small detail but it's often just the most sort of poignant and minor details that really do stick with you.  And look, I don't think there's any, I can't unthink those things, I can't, I can't unremember them. I try not to obsess about it. 

JENNY BROCKIE:  What about you Bill?

BILL:  Well I appeared for a man in 1974, I appeared for him and I think, to this day, he was an innocent man and he was convicted and went to gaol for a very long time. I think of that case and that particular result every day of my life. 

JENNY BROCKIE:  So did you feel you failed him?

BILL:  Well obviously because I was his counsel and it was not a strong case and you could, could win cases which were a lot, win and get acquittals a lot stronger cases than that.

JENNY BROCKIE:   Mark, have you had to deal with evidence situations that have stayed with you? Things like photographs and so on? 

MARK: If it's a murder and you know there are going to be autopsy photos, unless I have to look at them, and generally I don't. 

JENNY BROCKIE:  But isn't it important to look at them? 

MARK: No, well sometimes not because other experts look at them and they'll grade the photographs. 

JENNY BROCKIE:  Is it easier to defend someone if you haven't looked at them? 

MARK: Well if you have to look at them, you look at them I would but it's not something I would go out of my way to do. 

JENNY BROCKIE:  Karen, you've worked in suburban law firms for 23 years.  Have you had cases that have really disturbed you, things that have stayed with you? 

KAREN:  I think I often say I think I've seen everything and then I see, you know, another matter will hit my desk and it's like wow, now I've seen everything and I mean everything. Like Tim, I had early on in my career in a murder case the crime scene photos literally just fall out of a brief and that was of a deceased female in her early 20s who had gone missing. She was found, it was a hot summer, found two days later and her face had been partially eaten by rodents. Now that photo comes back in my mind from time to time, it will always be there. 

JENNY BROCKIE:  How long ago was it? 

KAREN:  1995 so quite some time ago. More recently I acted in a matter that was an investigation by the HCCC and it was a matter involving bestiality. There are things that I saw in the course of looking through that brief that will never leave me and…

JENNY BROCKIE:  How do you deal with that? 

KAREN:  Now and then I, I've, you know, fallen in a heap and had a bawl, but you've got to pick yourself back up and keep going because generally you're running a busy practice, you've got many matters on the go at any given time, many clients, and your duty is to do the best possible job you can for each and every one of them. 

JENNY BROCKIE:  Kara, as a prosecutor, is there evidence that you've been exposed to that you've struggled to forget? 

KARA:  I've seen some terrible photographs, child homicides in particular where I've been exposed to very difficult images of children who, in my view, had struggled for their lives and the crime scene photographs demonstrated that and the unspeakable horror of what had happened in that moment, none of us could fail to be moved by and traumatised by. I think it is a traumatic experience and I think vicarious trauma is a real issue for criminal lawyers who are exposed again and again.

JENNY BROCKIE:  Alex, you were part of the team defending Andrew Chan and Myuran Sukumaran in Bali? 

ALEX:  Yes. 

JENNY BROCKIE:  How did that case affect you as a lawyer? 

ALEX:  It was devastating and it was devastating for everyone involved.  And the thing that I think makes it so hard to deal with was that the justice system in Indonesia is not that, it is not just. That they became a political football and it's just devastating that that outcome occurred. 

JENNY BROCKIE:  Where were you on the day of the executions? 

ALEX:  I was in Jakarta, trying desperately to find any avenue that might prevent the executions. Yeah, we were in Indonesia right until that day and I came down to breakfast on the day that the execution was due to happen, we in a hotel in Jakarta, and on the front page of the Jakarta Post was the amazing picture of the Sydney Harbour Bridge with the floral tribute that Amnesty International had arranged in front of the bridge and it really struck home what was about to happen to these two truly reformed boys. 

JENNY BROCKIE:  Now you left the country, didn't you? 

ALEX:  That afternoon we decided that we would leave. 

JENNY BROCKIE:  This was before the execution? 

ALEX:  Before the executions because there was nothing more that could be done and we flew back to Melbourne. 

JENNY BROCKIE:  And when did you get word that it had happened? 

ALEX:  Actually on the plain, amazingly with internet on the plane I could check my Twitter feed and some of the journalists that were on the ground in Nusakambangan were tweeting and I got word that way. 

JENNY BROCKIE:  What was that like?  The team was there, you had other lawyers with you? 

ALEX:  Yeah, Michael was with me on the plane. We just didn't have any words to say, there was nothing else to really articulate what had happened. 

JENNY BROCKIE:  Did you talk about it? 

ALEX:  No. 

JENNY BROCKIE:  How have you dealt with it? It seems still very close to the surface? 

ALEX:  Oh, it is, I think it always will be, it's like no other case I've ever done, I've had murder cases, terrorism cases. 

JENNY BROCKIE:   Mmm. And given the intensity of that case and all that surrounded it, did you become emotionally connected to your clients do you think? 

ALEX:  I had early on, yeah, yeah. So it's not just the clients, it's also their families that are going through this incredible trauma as well and so you do, you do form a connection with your clients and their families. That can't be helped, it's part of human interaction and just dealing with people. 

JENNY BROCKIE:   Bill, how do you think you would have gone defending a client if the death penalty had been on the table? 

BILL:  I don't think I could possibly practice the criminal law, being an emotional person, I could not possibly do it if at the end of the line there was the death penalty. 

JENNY BROCKIE:  What about the rest of you? 

TIM:  I think a lot of us would give it away. 

MARK:  No, I'd do something else, I couldn't do it. 

FEMALE:  Anything else. 

JENNY BROCKIE:   Anything else? 

FEMALE: Anything else? 

MARK:  Because the main thing you're really worried about in a trial when it comes down to it is not whether your client is innocent or guilty or whatever, it's doing the best job you can, not making a mistake. There's nothing worse, whether your client's found not guilty or guilty, is going home and thinking you've done something that may have affected or you didn't do something, that's the, you have to go home and live with yourself.  You have to make sure that you do the best job, not the result - that you do, you do everything you can for your client. 

JENNY BROCKIE:  How far are you all prepared to go to win a case? 

TIM:  Oh your ethics bind you. 

KARA:  There’s a big line. 

TIM:  I sometimes think that perhaps the public think that, you know, particularly defence counsel are really freewheeling in their approach but we've got very strong ethical boundaries.  You can't put a proposition you know to be false. 

JENNY BROCKIE:  But there are tactics that lawyers use, particularly to cross-examination. 

TIM:  Absolutely. 

JENNY BROCKIE:  Do you ever feel like you've gone too far when you've cross-examined somebody in a case?  Yes, Sarah you do?

SARAH: I found it quite difficult cross-examining young children because they are so easy to read and so you can, not manipulate them but you can, you can lead them down a certain path I guess more easily. 

JENNY BROCKIE:  Do other people feel like that, Geoff? 

GEOFF:  Yeah, I rather appearing for a fellow who had paedophile stamped on his head who was supposedly interfering with the three kids next door. They were about twelve, eight and six and it's not, it's a myth, lawyers don't beat up on children, you just quietly suggest things to them.  You talk to them and by the end of the day the kids are talking about the pink pigs that are flying across the room and your client is discharged because there's, the kids don't square up to what's in their statements. And that's, I did that once and I walked out of Shepparton, which was the Court I was in, and said I'll never do another one of those again and I didn't.

TIM:  But to put that in perspective, I was once briefed to represent somebody who'd been charged with sex offences against two neighbourhood kids, very similar, and the youngest of the two kids was called to give evidence and there was just something really odd about her demeanour and I thought oh, that's a bit unusual and I asked her, I just went back to basics.  I said do you know what it is to tell the truth and she said yes. I said well what does it mean to the tell the truth and she said the truth is that John Smith touched my little sister. John Smith wasn't his name of course but I thought wow, that wasn't the answer I expected. I said has anyone discussed that with you and she said yeah, my mum. I said and what did your mum say would happen if you didn't say that in Court?  She said she'd smack me and I mean that was, I barely landed a blow in that cross-examination, there was nothing unethical and that was a case where this girl had been clearly put up to it.

JENNY BROCKIE:   Geoff, you know, you worked as defence and prosecution for 27 years before you became a Victorian Criminal Court Judge.  You say as a Judge that you find culpable driving cases particularly difficult. Why? 

GEOFF:  They are terribly emotional. Usually the accused person is somebody who's just an ordinary human being, not a criminal, and someone who's behaved in a very stupid way. Either because they drunk too much alcohol or drove too fast or both. So you've got a young people on trial for killing another person who was just someone minding their own business driving down the road or walking down the road and gets mowed down. There’s no winners in those. When you come to sentence them you're sentencing a young man who you have to send to gaol, you've got a family of grieving people. They are very emotionally tough cases.

JENNY BROCKIE:  So who how do you deal with that personally? 

GEOFF:  Our Court, the County Court in Melbourne has realised that this stuff has an on-going and continual effect on you.  We've introduced counselling, we've got peer support because I think realistically there is a post-traumatic stress factor that applies. It's perpetual, it never stops. 

JENNY BROCKIE:  Well half of the cases that your Court deals with…

GEOFF:  Are sex offence cases. 

JENNY BROCKIE:  Are sex offence cases? 

GEOFF:  And mainly involving kids. 

JENNY BROCKIE:  So what is it like as a Judge day in and day out…

GEOFF:  Doing that. 

JENNY BROCKIE:  Hearing that for half of your time as a Judge? 

GEOFF:  In fact sometimes it worse that than.  Some people will draw four or five or six of those in a row and they'll beg can I please just have an armed robbery, you know, or something that doesn't have that sort of raw emotion in it.

JENNY BROCKIE:  Does it affect the way you relate to your children? 

GEOFF:  Yes. 

JENNY BROCKIE:  Do you become hyper vigilant about kids? 

GEOFF:  Oh yea, when I was younger. Look more as a barrister, when I was a younger barrister, my kids have all grown up now but when they were young I was very aware of the dangers that might exist out there for my children. Probably hyper vigilance is a good word.

JENNY BROCKIE:  And you have daughters? 

GEOFF: I have two daughters. 

JENNY BROCKIE:  Does it affect the way that you've related to them? 

GEOFF:  Yes.  My eldest daughter would say it certainly did and my youngest one told me under no circumstances am I to mention her tonight. 

JENNY BROCKIE:  Okay, but fair enough. But how has it affected the way that you behave towards them? 

GEOFF:  I'm protective of them. I mean I've all got stories, for example, my daughter used to jump in the shower with me when I was younger and of course now I would no longer let, I would be, child protection would be around to get her or just a reaction to being seen to be doing the right thing the whole time. 

JENNY BROCKIE:  Tanya, you worked as a Court transcriber in Queensland for six years.  Can you relate to any of the things the lawyers are saying about what they're exposed to, what did you go through? 

TANYA:  Yeah, it's the child abuse cases that have stayed with me as well. 

JENNY BROCKIE:  How did it affect you? 

TANYA:  I left the job because of it. I'm hypervigilant, I did leave in time, I think, I knew that I was doing too much. I'd gone to a regional office so it was all day long one…

JENNY BROCKIE:  With earphones on, just you? 

TANYA:  Yeah, yeah, just listening and having to get every single word so you'd have to go over and over and even if it's something that you couldn't stomach the first time, you had to listen again and again to get every word exact.

JENNY BROCKIE:  Can you remember details of the cases you transcribed still?   

TANYA:   Yeah, I felt like I knew this victim really well by the end. And just, she was actually an adult but it was what she'd been through as a child for four years of her childhood and it was just things that you couldn't dream up. Like you wouldn't think people could do that and I remember driving home upset. I remember going home and having a drink which I don't ever do just to try to sort of forget about it.  And I remember another time it was a toddler and it really affected me and I had to actually take my headphones off and walk away to have a cry and I was told that maybe I wasn't cut out for the job, so, but that there was no counselling or anything like that. 

JENNY BROCKIE:  When you say it affected you, you know, being hypervigilant how in relation to your family? 

TANYA:  Um, well I do let my daughter go for sleepovers but I'm just really nervous of the whole time she's gone.  Even at parties and barbecues, I'm, even though I trust everyone there, it's more the situation. I know what happens at those sort of events and I'm worried if she's goes upstairs or…

JENNY BROCKIE:  Karen, you were nodding your head? 

KAREN:  I've banned sleepovers for my children for a long, long time, they're all in high school now and my twelve year old daughter has only recently been allowed to go on sleepovers.

JENNY BROCKIE:  Have you all been affected like that if you've been exposed to these sort of things, yes Kara? 

KARA:  Definitely, for instance, I went through a phase when I also wouldn't let the children have sleepovers unless I'd met the family members and I would often introduce myself and say what I did and that I prosecuted…

JENNY BROCKIE:  I'm a prosecutor?

KARA:  That I prosecuted paedophiles. 

JENNY BROCKIE:  Prosecuted paedophiles, is that what you say to families at school? 

KARA:  Yes, people didn't blink. Nobody ever said what a peculiar thing to say but I felt …

TIM:  That's because they only had one sleepover. 

KARA:  That's right. But definitely hypervigilance but around all sorts of things, around drugs, like the age of consent for sexual assault, the definition of sexual intercourse that it includes lots of other acts rather than, you know, what most people would think it is and I think they're used to it now but it's challenging I think in some ways. 

GEOFF:  Can I think I say we recognise as a Court a number of people, not just the Judges and not just the barristers but the staff, the associates, the tipstaff, we offer counselling to the jurors.   I mean we've got twelve people we pull out of the street and sit them up there to listen to this stuff and some of them are traumatised by it.

JENNY BROCKIE:  And Geoff, as a Judge, are you using those counsellors yourself? 

GEOFF:  I did, it didn't work for me, I was uncounsellable apparently. 

JENNY BROCKIE:  Why were you uncounsellable? 

GEOFF:  Oh, look, I think counselling is something, you're brought up as a lawyer to be big and brave and pretend that you don't need any of this stuff but you do, and I didn't have a good match with my counsellor, it's as simple as that.

JENNY BROCKIE:  Karen, after 23 years, how are you coping with the job do you think? 

KAREN:  Well, I was telling someone earlier every year when the Law Society sends out practicing certificate renewals there's a little survey there and there's a question which says:  Are you thinking of leaving the profession in the next twelve months.  Well I've been ticking that box for years now but I'm still here.  Despite all of that, I do love my job and I do love the nature of the work I do and…

JENNY BROCKIE:  How do you think you're coping with it? 

KAREN:  Well I moved myself out of Sydney eighteen months ago. In the mornings now I walk my dog on the beach before I start work. I'm still drinking way too much but I am getting more exercise. More sunshine, I spend more time in my garden and I do my best to sort of, you know, stay sane that way. I definitely need to reduce the consumption of alcohol. 

JENNY BROCKIE:  How many alcohol to you drink? 

KAREN:  Way in excess of the national health and medical…

JENNY BROCKIE:  Would you like to share that with us? 

KAREN:  Well I'm probably not alone because my good friends in the profession are big drinkers like myself but I would easily drink a bottle of wine a night. 

JENNY BROCKIE:  A bottle a night? 

KAREN:  Yeah. 

JENNY BROCKIE:  Wow.  Other people? Yes, Geoff? 

GEOFF:  Yes, it's easy to use as an anaesthetic I think, it's a way of just wiping the day out. You come home, you have a drink just to wash the case taste of that case out of the mouth. 

KAREN:  I don't think I know a lot who doesn't drink. 

MALE:  Criminal lawyers especially. 

JENNY BROCKIE:  Criminal lawyers especially. 

KAREN: Friday afternoon, yes, Friday lunch. 

BILL:  That's why they're called criminal lawyers. 

ALEX:  But that's also why, it's part of the process, it's how you deal with the day or the week that you've had is to have those social interactions with your colleagues who are really the only people that can understand what you've gone through or what's been happening. You can't share those same things perhaps with someone who's not in the profession because they're just sitting there going I can't believe you do what you do. So it's an ability to sit and have a drink and have a good chat, a debrief. 

JENNY BROCKIE:  And how possible is it to admit vulnerability as a, you know, a barrister, as a lawyer? 

KAREN: I'm concerned about seeing a professional and having information recorded on notes that I know can end up being subpoenaed somewhere, somewhere for insurance purposes. Mind you I've got full private health insurance ready for the day when I'm ready to detox but that's just not yet. But yeah, there's a lot of lawyers concerned about effects on reputation, effects on income protection insurance, life insurance, from these issues.

JENNY BROCKIE:   If they say they're not coping?

KAREN:  Well, seeking the assistance of a health professional because that health processional is going to sit down and making notes about what you're telling them. Suddenly those notes can, well obviously it is a very low risk but you know, and I think…

JENNY BROCKIE:  So you keep on going? 

KAREN:  We do believe that we're big and tough enough to deal with it and you know, it might be those occasions where finally, again cumulative, something just pushes you over the edge and that's when you seek help perhaps. 

JENNY BROCKIE:  What about humour, what about black humour, how much is that a part of coping? 

FEMALE: Huge. 

TIM:  Yeah, absolutely and honestly, I mean if the sorts of the things that get said regularly in my chambers were recorded, we'd all be out of jobs. It's horrendous, I mean the things you say to… 

JENNY BROCKIE:  Can you give me an example? 

TIM:  No, absolutely not. 

JENNY BROCKIE:  Worth a try.  Sarah, you stopped working for Legal Aid as a criminal solicitor in April this year. Why? 

SARAH: Um, well, I originally worked for Aboriginal Legal Service in Dubbo and then I moved to Legal Aid. Last year I ended up with clinical depression and had to take some time off work and, yeah, one of those weeks was spent in hospital and I came back to work after that and I just got to the point where I didn't think it was sustainable for me. 

JENNY BROCKIE:  Why? 

SARAH: Um, I'm pretty emotional, I guess, I get emotionally involved. The types of things that affected me weren't so much the evidence but the situations my clients have gone through, particularly on-going abuse and sexual assaults that they'd experienced and so experiencing those things with them and I had such a huge volume as well. 

JENNY BROCKIE:  How many matters a day? 

SARAH: Um, it varied up to, you know, twenty, twenty five. And you're often seeing them at the most stressful time for them because anyone who's been arrested overnight you see them in the cells. They're coming down from different types of drugs, they're having psychosis episodes, and because of, you know, because of the nature of crime, you're dealing with people who are most socially disadvantaged in society and have just experienced horrible things or suffer from very traumatic mental illness. 

JENNY BROCKIE:  Was there a particular case that got to you? 

SARAH:   I'd dealt with lots of child sexual assault and that sort of thing but that was two clients that had at once, they were unrelated, both mothers who had been quite seriously assaulting the children over a long period of time and one of them in particular, the children had made audio recordings of several of the incidents and I had to listen to that repeatedly with that client, extremely strong case against her. I knew that if this ran, she would most likely be found guilty. Can't always say 100 percent that she would end up in gaol and even if she pled guilty that I could keep her out of gaol. At least that was my view at the time. And the other thing is you're dealing with these things with not much experience so you're kind of hoping that you're giving the right advice. 

JENNY BROCKIE:  And you're trying to work out what to do? 

SARAH: Yeah, and then you've got the confrontation of well, if we are running it I have to cross-examine her children, who I kind of don't know but you feel that something horrible has happened to them already. 

JENNY BROCKIE:  How did all that affect you? 

SARAH:  I didn't take it too seriously to start with because you're constantly dealing with people who have what you consider far more serious problems than you and far more serious mental illnesses so yeah, I guess I ended up with insomnia. 

JENNY BROCKIE:  Did you tell anyone? 

SARAH: Yeah, yes, I've got a really supportive family, I told my mum I guess and my sister's a doctor and I finally took her advice to go and see a doctor. 

JENNY BROCKIE:  And how are you now?  What are you doing now? 

SARAH:  Now I'm working in, well I'm not actually working at the moment, between jobs but I've got back to advertising which is something I did prior to law. 

JENNY BROCKIE:  Very different job? 

SARAH: Yes, yeah, it's actually been a really difficult transition because it's hard to go from doing something that's very real to something that is trivial. 

JENNY BROCKIE:  Good luck with the next job you apply for.  Geoff, you retired from full time work in April this year. What sort of pressures do you feel as a Judge? 

GEOFF:   You've got to try and be balanced. It's, it's and of course you've got to sentence people and sentencing is the hardest thing we do. 

JENNY BROCKIE:  And how did you deal with that, that responsibility? 

GEOFF:  You deal with it. It's part of what the counselling is about, if you wanted to get help with how difficult you were finding it you could talk to a counsellor. But ideally you talk to your brother Judges or sister Judges as the case may be. We all do that. 

JENNY BROCKIE:  Do you do that? 

GEOFF:  Absolutely. 

JENNY BROCKIE:   Bill, what about you, how did you deal with those pressures of, you know, sentencing?

BILL:   Well, I found it difficult but then one is obliged to do one's duty and of course there are guidelines set out by the appellate Courts, it often states a principle of sentencing which, whether you agree with it or not, is binding.

GEOFF:   The hardest thing is writing a sentence that doesn't send somebody to gaol. To make the decision not to gaol someone is often harder than sending them to gaol because you've got to make it watertight, really.

JENNY BROCKIE:  Are and you've got to be sure they're not going to offend again? 

GEOFF:  Well I never had a problem with that. I mean I won't go into particular cases but with young people, with people you know, you don't want to send to gaol. It's been difficult to find a pathway to do that and stay clear of those who make the law in the state. 

JENNY BROCKIE:  Tim, three years ago you sought help from a psychologist, what prompted that? 

TIM:  Yeah, look, I was involved in, I was representing a man who'd commit add double homicide. He'd killed both of his children. The situation was that he was divorced from his former partner and there were some issues around the custody of the kids. He suffocated both his daughters and phoned the police and said can you come to the house please, I've murdered my children. I was briefed to represent him and at the time that brief came in I was separated from my wife of twelve years, pending a divorce. 

I've got two kids who were the same age as his two kids when he killed them and, you know, there's no equivalence between our situation, I have a great relationship with my ex-wife, we're both very committed to raising our kids, but the horror of what people do in those circumstances, and it's not confined to that case. I mean as part of the preparation for that case I had to read a number of comparable cases. I was talking to Geoff earlier about one of them involving a man who threw one of his children off the Westgate Bridge in Melbourne while his other children watched.  There's something from that case that never leaves me which was one of his, one of the children that witnessed it said:  "But daddy she can't swim." You know, and that's a very hard thing to forget. 

JENNY BROCKIE:  And you were defending the man who killed his two children? 

TIM:  Yeah. 

JENNY BROCKIE:  So what was, what particular aspect of your circumstances in that situation was it that upset you the most?

TIM:   Many of the people, most of the people that do this work are extraordinarily resilient and they have ways of rationalising the work and coping with it. But that's continued on you being in a good place, if I can use that term, and I think when your own resources are depleted it's much harder to remain resilient and to bounce back. 

JENNY BROCKIE:  You've been driving a wellbeing project at Legal Aid in Victoria? 

TIM:  Yeah. 

JENNY BROCKIE:  Why? 

TIM:   This a profession which has the capacity to chew people up and spit them out and the thing that really dawned on me after that experience in late 2014 was that if you wait until there's a crisis, then you'll not just be dealing with the crisis itself but you'll be dealing with the fallout from the crisis. So we've put in place a range of measures to try and provide a whole raft of alternatives for people, coaching and counselling around developing better skills for managing stress, being a better peer to your colleagues and how to, how to engage effectively and safely in that debriefing relationship.

JENNY BROCKIE:  Alex, have you thought about quitting? 

ALEX:  Yeah. 

JENNY BROCKIE:  And why haven't you? 

ALEX:  Um, because you actually have a real effect on people's lives. 

JENNY BROCKIE:  Kara, have you thought about doing anything else? 

KARA:  Not for a minute, most of the time in the middle of a big criminal trial I cannot believe that I get paid to do my job.  It is enjoyable, immensely interesting and never boring. Sometimes incredibly stressful but no, I can't imagine doing anything else. 

JENNY BROCKIE:  Has working in criminal law changed you as people, do you think? 

SARAH: Yes. 

JENNY BROCKIE:  Sarah, you definitely think so, yeah? 

SARAH:  Oh, I think it would change anyone. It's a really character building sort of job. 

JENNY BROCKIE:  In a good way after all you've been through? 

SARAH:  In a good way, absolutely, no regrets. I miss it.

JENNY BROCKIE:  Geoff, has it changed you in other ways? 

GEOFF:  I think there is a risk that you can become a little bit cynical. You see so much of bad human behaviour that you start to think that everybody's like that. 

JENNY BROCKIE:  Tim, what about you? 

TIM:  Yeah, look I don't think I have anywhere near the compassion or the regard I have for other people twenty years ago that I do now and I've seen some extraordinary examples of personal redemption and rehabilitation.  So there are amazing stories that do lift you up and sustain you and I think one of the, one of the difficulties is trying to, trying to sort of draw as much as you can from those and not get worn down by the cynicism and by the, you know, by the content of the work. 

JENNY BROCKIE:  Have you ever thought about doing anything else? 

TIM:  Yeah, I have, absolutely, and…

JENNY BROCKIE:  What? 

TIM:  Oh, you know, lots of things but it's still the industry of giving a damn. It's still the industry of actually caring what happens, whichever side of the bar table you're on, and I can't imagine not, not wanting to be a part of that. 

JENNY BROCKIE:  We have to wrap up. Thank you all so much for joining me tonight, it's been really interesting talking to you and that is all we have time for here, but let's keep talking on social media and let us know if you have any thoughts about all of this, we're keen to hear what you have to say.  Thanks everybody, thank you.