GRAHAM ARCHER: (REPORTER) "PERHAPS OLD HABITS ARE HARD TO SHAKE. NONE OF THIS WOULD EVER HAVE COME TO LIGHT IF NOT FOR THE INTERVENTION OF AN EXPERT FROM OUTSIDE THE FORENSIC SCIENCE CENTRE AND AN ENQUIRING MEDIA":
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Over the past few days, Canadians have been exposed to national media coverage of three public inquiries relating to pathologists: The Goudge Inquiry probing cases involving Dr. Charles Smith and inquiries in Newfoundland and New Brunswick.
There has also been highly visible coverage of the workings of a pathologist in Australia in the last several days - in the aftermath of a decision by the South Australian Medical Board's finding a pathologist named Dr. Ross James guilty of professional misconduct for with-holding crucial evidence during Henry Keogh's two murder trials.
Here is a transcript of Channel 7's "Today Tonight" coverage on "Dr Ross James and the case of Henry Keogh."
It contains an interview with a rather thin-skinned Attorney-General - Michael Atkinson - who seems to be intent on punishing the reporter for revealing the bad news for the government that an independent body has found serious errors that have been alleged to have helped lead to the conviction of an innocent man.
Read on:
Rosanna Mangiarelli: Thank you Jane and John - good evening and welcome to the program which we'll begin tonight with a Henry Keogh murder trial bombshell - with a second senior state pathologist involved in the case now also in disgrace. This morning, the South Australian Medical Board found forensic pathologist Doctor Ross James guilty of unprofessional conduct for with-holding crucial evidence during both the Keogh trials. The question now is how many other South Australian cases have been based on flawed evidence. Graham Archer investigates.
Bob Moles: This is actually the first finding that there has been improper conduct in the giving of evidence in the Keogh case.
Dr Tony Thomas: It is our duty to correct those potential errors and if appropriate to rectify them rather than sweep them under the carpet.
Graham Archer: the State's Medical Board rightly has dropped another bombshell - finding a second Senior State Forensic Pathologist to have withheld crucial evidence during the two Henry Keogh trials.
So that's now two former Chief State Forensic pathologists now under a cloud?
Bob Moles: Under a very dark cloud because one had been found guilty of unprofessional conduct and with regard to the other the Medical Board has formed the view that he is guilty of unprofessional conduct because that's the reason they are pursuing it before the medical tribunal.
Graham Archer: The latest casualty is Dr Ross James - Dr Colin Manock's deputy and successor as the State’s Chief Forensic Pathologist in 1995. Now found guilty of unprofessional conduct for what he did in the Keogh case.
Graphic of Medical Board ruling showing words "unprofessional conduct"
Bob Moles: Well, it’s the most serious finding you could have against a professional medical expert witness.
Graham Archer: It's what we have been raising for years. Official confirmation of the failure of due process in the case, and raises question about countless other criminal cases.
Bob Moles: By my calculation they have done 17,000 autopsies between the two of them. In the case of Dr Manock over 30 years – and with Dr James 25 years.
Graham Archer: Here's what happened. In December 1994 the DPP asked Dr James to review Dr Manock's autopsy of Anna Jane Cheney prior to the first Keogh trial. Though Dr Manock took minimal notes, photos or body tissue - Dr James did have three tissue samples - or histology as its called - of the important bruises to the deceased's legs, including that so-called crucial thumb bruise on the inside of the left leg, which we assume he examined. Author Dr Bob Moles.
Bob Moles: In relation to the bruise on the inside of the left leg, the slide was the only evidence he had of the possibility of there being a bruise and when he looked at it there wasn't a bruise.
Graham Archer: And yet, mysteriously, Dr James chose to tell the court all three tissue slides revealed almost identical bruising?
Graphic: trial transcript "there were histological sections of the three bruises and they all appear very similar”.
Graham Archer: And yet, seven year after the conviction, Dr James wrote to the DPP admitting he'd seen no proof of the key thumb bruise.
Graphic: extract from letter - ".... histology failed to confirm this was a bruise ."
Graham Archer: So, the juries in two trials had been led to believe there was physical evidence for the prosecution' s murder scenario when in fact no such thing existed. Now, at last, as they say, the jig is up with the Medical Board finding Dr James:
Graphic: Board’s determination "The Board determined by his conduct he misled the court"
Graham Archer: Dr James failed to inform the court. Is not all that relevant? It's now official his trials were conducted on the basis of evidence which was wrong; though the Board found Dr James did not intend to mislead the court. However Keogh's complaint was that was the result.
Bob Moles: If the court has been misled on a significant issue - and this is a very significant issue - then it means the conviction is unsafe and should be set aside.
Graham Archer: But as a society we need to know how such things can happen and why our authorities denied anything was wrong, One irony is that barrister Michael Abbott QC who first came to Dr James defence had once been scathing of the states forensic science credo.
Graphic: Michael Abbott article - "The Forensic Science Centre has a rule that one scientist from the Centre will not give evidence against another."
Graham Archer: Perhaps old habits are hard to shake. None of this would ever have come to light if not for the intervention of an expert from outside the Forensic Science Centre and an enquiring media:
Extract from ABC 4 Corners Program, Sally Neighbour: Dr Manock’s slides from the bruising have recently been examined by Professor Tony Thomas and the results are startling and appear to cast serious doubt on the Crown case.
Graham Archer: In 2001 expert histopathologist Professor Tony Thomas, having studied the tissue samples, revealed his alarming discovery on the ABC Four Corners program.
Extract from ABC 4 Corners Program, Dr Tony Thomas: This is the slide labelled as coming from the medial side of the left leg which was said to be the thumb prints. I see no evidence of a bruise whatsoever - I don't see how you could diagnose this as a bruise.
Graham Archer: His finding meant that without the key ‘thumb bruise’ the grip theory had been pure speculation.
Dr Tony Thomas: The then DPP said or implied that this was ‘the one indication of murder’. Now, if that is so, it makes the pathology of that mark of vital importance.
Graham Archer: Prof Thomas's expertise was such that no one doubted his diagnosis. It caused an instant flurry. A week after the broadcast Dr James made his startling admission in a letter to the DPP.
Graphic of letter from Dr James to Paul Rofe QC: 30th October 2001 "Professor Thomas .. claimed that histology (of the thumb bruise) failed to confirm this was a bruise. I agreed with him"
Graham Archer: What's more troubling is that, months earlier, Dr James had written to the DPP backing the claims made by his colleague Dr Manock in court.
Graphic: Letter from Dr James to Paul Rofe QC December 28 2000 "….examination has confirmed that the apparent bruises from the three areas (on the legs) were, in fact, bruises."
Graham Archer: It would appear Dr James did a backflip?
Bob Moles: He's supposed to be interpreting the same evidence. The evidence hasn't changed but his opinion appears to have changed.
Graham Archer: For the next 7 years our authorities have tried to sweep all this away. But now, this travesty has at last been officially acknowledged. The Medical Board finding Dr James to have had:
Graphic from Medical Board finding: "a flawed and untenable understanding of his role as an expert witness".
Bob Moles: It's quite a shocking finding because the Chief Forensic Pathologist for the State must have a clear and detailed understanding of the role of an expert witness because that's the principal task they have to undertake.
Graham Archer: Dr James added to the seriousness of his failings by telling the Board he didn't consider the truth about the bruise "particularly relevant". An attitude the board considered "remarkable".
Dr Tony Thomas: It is not his job to determine what is relevant or what is not relevant. That is for the court to decide - that is not the role of an expert witness.
Graham Archer: If the jury knew what we know now, what might they think?
Dr Tony Thomas: Well, I'd be very interested to find out, because I think that information whereby Dr Manock and Dr James both agree there is no evidence of bruising, that might be very influential to a jury. The Board in their decision go on to say: "….. it was (Dr James') ignorance or disregard of his responsibilities rather than a deliberate desire on his part to mislead the court which led to his conduct."
But Dr James' sin was not just failing in his duty to the court as the Board found, it in fact went further. He continued to back Dr Manock's speculation about a grip mark despite effectively conceding there was no proof. And it's not the only time Dr James has been criticised for indulging in unprofessional speculation.
Dr Tony Thomas: I think that was born out in the Straker v The Queen case where its stated quite convincingly that an expert witness should not speculate in this way.
Graham Archer: And that case involved Dr James as well didn't it?
Dr Tony Thomas: I gather it did - yes.
Graham Archer: Trouble is, who can we now trust to clean up this mess. Remember, it was partly Dr James whom our Attorney-General Michael Atkinson relied on when he addressed Parliament on April the first 2003 in his attempt to deny the very facts now confirmed by the Medical Board. Atkinson told the Parliament:
Graphic: "Today Tonight claims ... that important pieces of evidence were withheld from court. This is wrong. I deny it."
Bob Moles: It's a foolish and ignorant statement.
Graham Archer: Though we warned him, the Attorney-General chose to attach his name to this monumental disaster. His choice now is to resign - or repent.
Bob Moles: He must refer the Keogh case back to the Supreme Court as we have asked him to do in a number of petitions and let the court sort this out.
Graham Archer: And let's not forget how many warning signs there've been that a storm was brewing. It's well documented that the past cases of Dr Manock's that have come under scrutiny were found flawed - but nothing was ever done. Now Dr James who worked under him and took his place has also been found to not understand his role.
Graphic: Frits Van Beelen, David Szach, Emily Perry, Gerald Warren, Derek Bromley, John Highfold, Terry Akritidis, Kingsley Dixon, Joshua Nottle, Storm Deane, William Barnard, Henry Keogh.
Bob Moles: … and now we are seeing the price that might have to be paid for ignoring those warning signs .
Graham Archer: Of course we've also seen Dr James’ successor Dr Allan Cala quietly slip out of the State recently, after he too was found to have acted unprofessionally in the double murder of Pam And Bill Weightman in NSW, prior to his appointment here.
Alan from file tape: For 2 years we were told by Dr Cala, the forensic pathologist who's worked on some very high profile cases, a scenario of what happened to Pam and Bill that was totally bogus. It wasn't even in the ball park. How could we have a forensic pathologist get it so wrong?
Graham Archer: And as with Dr James, the Attorney-General used Dr Cala in his continued desperation to defend Dr Manock's flawed forensics.
more recently we've had a Government report into the Keogh case that's been kept secret, and 2 years ago the former Medical Board gave Dr Manock the all clear even though the notes prepared by it's own experts described his work as incompetent.
Graham Archer: There has to be an end to this soon before it sucks more people into this scandal doesn't there?
Bob Moles: There should have been an official investigation into this when it was first raised six or seven year ago, but unfortunately in the meantime, people have purported to have a look at it and say everything is okay.
Dr Tony Thomas: I very firmly believe now we have a moral obligation to the society and to the public to put an end to this and the only way I can see is to have a full judicial review into the case. I cannot see any other resolution.
Graham Archer: And while we should compliment the current Board, after a shaky start, for recognising what professional conduct demands, It's now time to face up to the whole truth.
Graham Archer: It's all on the record .This is not going to go away is it?
Bob Moles: No it's not going to go away. And if the officials in South Australia don't get on the right side of this they'll be subject to the enquiry the same as the rest of the people will be.
Rosanna Mangiarelli: And Dr James, who’s seeking leave to appeal the decision has been censured over his conduct. And whilst the Medical Board is responsible for maintaining professional medical standards, it’s our Chief Law Officer’s duty to ensure the criminal justice process is not perverted by flawed evidence. This afternoon, Graham Archer put this proposition to the Attorney-General, Michael Atkinson.
Press Conference
Graham Archer: Graham Archer from Today Tonight. Can I ask you for a comment on the Medical Board decision, announced today, that found the former Chief Forensic Pathologist, Dr Ross James, to be guilty of unprofessional conduct for misinforming the jury in the Keogh trials?
Michael Atkinson: My understanding of the Medical Board decision was that it found Dr James was wrong not to volunteer certain evidence. In fact, he wasn’t asked the question by Keogh’s defence counsel. I am also advised that Dr James who is now retired will be appealing against that decision and any comment from me will be most appropriate once that appeal is resolved and we have a final decision.
Graham Archer: But we now have two senior former Chief Forensic Pathologists under a cloud over this case. The fact that Dr James was an expert witness and was described by the Board as having an untenable understanding of the role of an expert witness means that he should have produced that evidence to the jury - and the Medical Board said that that was ‘remarkable’ and that it actually affected the outcome of the jury’s deliberations, now how much more do we need for justice to prevail and for due process to operate in this state?
Michael Atkinson: Due process is operating and the matter will be determined finally when Dr James’ appeal is heard and then you and I and everyone else can comment on that as a final decision.
Graham Archer: But due process is about providing evidence to the jury, scientific evidence, and Dr James is not denying that he didn’t do that. He claims that he wasn’t, asked but it is the duty of the expert witness to provide expert evidence.
Michael Atkinson: I understand what is at stake, but what I’m telling you is that I am not going to give a temporary comment while an appeal is in train and when an appeal is decided and the matter is finalised then I will be open for questioning as the Attorney –General at that time and I will not refrain from comment, but it would be highly inappropriate for me to canvass a decision which is subject to appeal.
Graham Archer: But in 2003 you told the Parliament that you denied – you personally denied that evidence had been withheld from the court.
Michael Atkinson: Well, I’ll have to have a look at that, you’ve misquoted me in the past, ..
Graham Archer: No I haven’t
Michael Atkinson: you’ve misquoted me …
Graham Archer: .. no we haven’t, no we haven’t …
Michael Atkinson: … you’ve misquoted me repeatedly and you have obscured from the public of South Australia, the evidence regarding Henry Keogh lying in the aftermath of the death of Anna-Jane Cheney, and you’ve obscured deliberately from the public of South Australia the evidence regarding the insurance policies and for the last few years you’ve refused to run in your program that Henry Keogh falsified and admitted falsifying the signature of the deceased on life insurance policies running into millions of dollars.
Graham Archer: Why would he make that admission if he was trying to hide something, why would he volunteer that information?
Michael Atkinson: Why won’t you let the people of South Australia know that information, Mr Archer?
Graham Archer: I’ve said it many times. We’ve actually …
Michael Atkinson: … not in recent years.
Graham Archer: Yes we have, but the key thing here is that two senior forensic pathologists …
Michael Atkinson: Yes I know …
Graham Archer: … misinformed the juries in this state, is that OK by you?
Michael Atkinson: No, it isn’t
Graham Archer: and you denied that it happened in Parliament in 2003.
Michael Atkinson: I will check the quote because you have misquoted me before and you have ….
Graham Archer: Well, you’re on a mission of misinformation about this and you have not done the public or the justice system …
Michael Atkinson: … any you’ve lost two defamation actions just recently … and your program fails to tell the public what happened in the High Court and what happened in the Supreme Court, you cover up …
Graham Archer: … what rubbish, that was merely an argument …
Another reporter asks a question:
Rosanna Mangiarelli: Well, as you saw there, Graham’s questioning was interrupted by another reporter, but after the break see the Attorney-General get even nastier when asked about another controversial issue in which he backs the wrong side.
Atkinson and Archer speaking at the same time
Michael Atkinson: Graham Archer, you are so dishonest ….
Graham Archer: I was asking the question, so how do you know ….
Break
Rosanna Mangiarelli: Well, now for another real eye opener, following on from questions about Henry Keogh, Graham Archer quizzed the Attorney-General Michael Atkinson about his dismissive attitude towards an inquiry into child abuse when it was first proposed five years ago. As you will see, the Attorney-General completely lost his cool, showing that playing dirty comes so naturally to our Chief Law Officer. Here’s the whole exchange.
Graham Archer: On the Mullighan Inquiry, you sneered at my program and me personally on the radio …
Michael Atkinson: That’s another one of your lies Mr Archer …
Radio interview 5AA file tape: Mr Atkinson – “Graham Archer from Channel 7’s Today Tonight was calling for a Royal Commission into child abuse in South Australia covering a period of thirty to forty years and barristers were all joking that, tongue in cheek, this was a tremendous idea because it meant that 35 million dollars would be spent on them”
Michael Atkinson: I didn’t sneer, I just commented ..
Graham Archer: Yes you did, you sneered – no let me ask the question
Michael Atkinson: Can I answer the question, because Mr Archer you are so dishonest …
Graham Archer: I haven’t asked the question, so how do you know …
Michael Atkinson: … because I know what its going to be
Graham Archer: … well, no you don’t …
Michael Atkinson: … because what you’ve done …
Graham Archer: … that is unprofessional …
Michael Atkinson: … is you have said that I answered one particular question when in fact that wasn’t the question at all, what you do is ..
Graham Archer: What rubbish, what rubbish,
Michael Atkinson: … you misalign questions with answers to obtain what you want …
Graham Archer: … you were on the radio, you were on the radio …
Michael Atkinson: … yes, 5AA and I was discussing a Royal Commission, the proposal was your proposal that the allegations from wards of the state ought to be before a Royal Commission, that they ought,
Graham Archer: .. a commission of inquiry ..
Michael Atkinson: .. to be able to make these allegations in public before a television camera …
Graham Archer: … no, I didn’t say any of that …
Michael Atkinson: … before television cameras under privilege …
Graham Archer: … what nonsense …
Michael Atkinson: … so that in particular you could broadcast without liability Wendy Utting’s allegations …
Graham Archer: … rubbish, oh shut up …
Michael Atkinson: … well, is that professional?
Graham Archer: … well no, but you were just talking rubbish …
Michael Atkinson: “Oh shut up”, is that professional?
Graham Archer: …and you know you are …
Michael Atkinson: … so, my answer was, what was my response was to a Royal Commission and you know, I was opposed to a Royal Commission then, and I’m opposed …
Graham Archer: … you scoffed - you scoffed over a long period of time …
Michael Atkinson: … to a Royal Commission now, but I was a member of the cabinet which brought in the Mullighan Commission, we achieved it, against you we achieved it …
Graham Archer: … it was forced upon you by public demand …
Michael Atkinson: … not by you …
Graham Archer: … but you scoffed at the notion …
Michael Atkinson: … no, I didn’t scoff at it, but that’s just part of your deliberate campaign of misinterpretation, you are not bound by the journalist’s code of ethics and you behave accordingly ..
Graham Archer: … well, what about the rules of Parliament, what about misleading the Parliament?
Michael Atkinson: Yes, well, I haven’t done that …
Graham Archer: … you are famous for it, and I can give you, if you like I can give you chapter and verse …
Michael Atkinson: … very few journalists threaten politicians with solicitor’s letters, that’s how courageous you are Mr Archer …
Graham Archer: … well now, not so may as I’ve got from you and you get the government to pay for yours …
Michael Atkinson: … no, that’s a lie, a complete lie, …
Graham Archer: … oh you don’t, I thought you …
Michael Atkinson: … another lie from Graham Archer …
Graham Archer: … yes, that’s right, Mr Kourakis used to do it for you for nothing …
Michael Atkinson: … the government hasn’t paid any of my legal bills …
Graham Archer: … Mr Kourakis did do it for nothing, didn’t he, he did do it for nothing?
Michael Atkinson: Any questions from legitimate journalists as distinct from propagandists and Pilgerisers
Rosanna Mangiarelli: Graham Archer there with a flustered Attorney-General.
Harold Levy...hlevy15@gmail.com;
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