Police commissioner rejects critical findings into woman’s bashing death

Legal counsel for NSW Police Commissioner Mal Lanyon has pre-emptively rejected a watchdog’s critique of the police response to a woman’s fatal bashing, arguing officers were subject to “unfair public attack”.

Lindy Lucena was killed by her partner, Robert Huber, less than 600 metres from a police station in Ballina on January 3, 2023. It took police nearly an hour to respond to the Triple Zero call stating a man was “bashing the hell out of his woman”.

The call was incorrectly categorised as a “concern for welfare” report rather than the higher category of assault, and was broadcast only three times in half an hour, instead of in 60 seconds as required.

When officers arrived, they did not exit their vehicles, driving past Lucena as she lay dead or dying. Police in the region were stretched thin on a busy night with inadequate staffing levels.

Her body was discovered five hours later, after Huber handed himself in to police. He has since been convicted of manslaughter.

The police watchdog, the Law Enforcement Conduct Commission, investigated the case following a complaint from Greens MP Sue Higginson. Hearings concluded in December.

In a submission to the watchdog on behalf of Lanyon ahead of the commission’s final report, barrister Tim Smartt argued the commission should “vindicate police”.

He argued that officers did their best under “trying circumstances” and should not be “publicly maligned”.

“There is no public interest in the community being misled about the conduct of police,” he wrote.

Smartt’s submission also said the watchdog should “be more careful” in its language to avoid giving the impression Lucena’s life could have been saved had police acted differently.

At Huber’s manslaughter trial, one expert said Lucena probably died at 7.20pm, about half an hour before police reached the scene, while another testified she died about 9.30pm.

“[The watchdog] should avoid language like ‘a missed opportunity’ to describe the result of the search that was done,” he wrote.

Smartt’s submission dismissed the watchdog’s proposed reforms, arguing police were already aware of resourcing issues; that the incident was already addressed in existing reviews, and there was no value in extra training, guideline revision, database modification or voluntary information for an incident as “idiosyncratic as this one”.

“The cost of implementing the recommendations outweighs any benefit,” he wrote.

Finally, Smartt’s submission argued against a “critical incident” finding, claiming that because such a ruling increases the watchdog’s own powers, it creates an “appearance of a conflict of interest”. A critical incident declaration triggers an independent police investigation.

In a NSW budget estimates hearing on Friday, Higginson questioned police on the engagement of Smartt’s services, describing the submissions as “recklessly indifferent, so cold and so bizarre”.

She said the same barrister had legally represented neo-Nazi Jacob Hersant against accusations he performed the Nazi salute, controversial right-wing American influencer Candace Owens in her fight to be granted an Australian visa, and One Nation’s Pauline Hanson in a racial discrimination case.

The actions or alleged actions of a client should not be used to impugn the character of the barrister representing them, NSW Bar Association President Dominic Toomey, SC, said.

“Barristers are subject to important professional conduct rules, including the cab rank rule, which requires barristers to accept briefs from solicitors in certain circumstances,” Toomey said. “This is because legal representation should be available to all, regardless of the individual or the personal views of the barrister.”

Lanyon said he had not read Smartt’s submission but would endeavour to.

“I am unaware of the circumstances about that engagement, but those submissions would have been made with our Office of General Counsel, and as a barrister and a competent legal provider, he was probably appropriate to make those – I can only assume that this has come through a panel arrangement through Office of General Counsel,” Lanyon said.

Anyone needing support can contact 1800 RESPECT (1800 737 732), National Sexual Abuse and Redress Support Service 1800 211 028, Lifeline 13 11 14, and Kids Helpline 1800 55 1800.

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