Wednesday, April 30, 2008

Henry Keogh Case: Australia; James Appeal Of Professional Misconduct Finding To Be Heard Friday;



Dr. Ross James' appeal of his conviction for professional misconduct in connection with evidence he gave, along with Dr. Colin Manock, in the Henry Keogh case - a flagrant Australian miscarriage of justice which cries out for remedy.

The Henry case has been the subject of several recent posts which raise the question: Why, after fourteen years is this man still who was convicted of the flimsiest forensic pathological evidence still in jail?

The "important development" referred to, is the recent decision of the Medical Board of South Australia to censure Dr. Ross James in connection with the evidence he gave - along with Dr. Colin Manock - at Keogh's murder trial.

At the heart of the professional misconduct allegations levied against Dr. James and Dr. Manock, whose own hearing is scheduled before the Medical Board of South Australia, for his work on the same case, is their evidence relating to so-called "bruising" which they said indicated Mr. Keogh's fiancee had been forcibly drowned.

(Like Dr. Charles Smith, both James and Manock enjoyed giant stature in their jurisdiction: Dr James was Manock's deputy for nearly 25 years and took over as Chief Forensic Pathologist in South Australia on his retirement.)

As Dr. Robert Moles, an authority on the Keogh case who has fought valiantly for Keogh's release and vindication, informed the readers of this Blog:

"In the judgment in relation to Dr Ross James, forensic pathologist, the Medical Board of South Australia stated that Dr James, “appeared to have a flawed and untenable understanding of his role as an expert witness.

The two pathologists who were called for the prosecution in the Keogh case said that they had seen three bruises on the outside of the left leg, and a single bruise on the inside of the left leg.

"The pathologist who did the autopsy, Dr Colin Manock, said that he took a tissue sample from one of those on the outside of the leg and another from the bruise on the inside of the leg.

Both pathologists had told the court that the microscopic examination of the bruises confirmed that they all looked about the same and had been caused shortly before death.

It was their view that the marks represented a hand grip on the leg and were an important part of the explanation as to how she had been forcibly drowned.

In the subsequent medical board proceedings, both Dr Manock and Dr James said that when they looked at a microscopic slide taken from the “bruise” on the inside of the leg, that it did not show any signs of its being a bruise.

However, they both said that they did not bring this finding to the attention of the court.

Dr Manock said that it was because “it did not come up in conversation”.

Dr James said that it was because he did not think it to be particularly relevant."

Moles also stressed that,“the Board did not consider that the failure to inform the Court amounted to either a trifling or harmless departure from recognised professional standards."

"Rather the Board considered that on the balance of probabilities, the respondent’s conduct in withholding the histology of the mark was unprofessional," he continued.”

“Regardless of what the respondent’s opinion was as to the importance, relevance or otherwise of the histology of the mark he should have provided this information to the Court.

The Board determined that the respondent failed in his duty to the Court and that by his conduct left himself open to the assertions put forward by the complainant that by his conduct he misled the court.”

In any further appeal by Dr James he cannot change the fact that he agreed in his evidence to the Medical Board that he did not inform the court of his observation concerning that slide."

Dr. Moles is currently engaged full time with the "Networked Knowledge project" which he established to investigate and report upon alleged serious miscarriages of justice which are said to have taken place in South Australia over the last 30 years.

He is the author of "A State of Injustice" which was published in October 2004, and "Losing Their Grip" – The Case of Henry Keogh published January 2006 - and his comprehensive Web-site can be found at;

Several of the grounds of appeal to be raised by James at Friday's hearing have a bearing on Dr. Charles Smith who argues in his closing submissions to the Goudge Inquiry that his work must be judged in the context of professional standards at the time the work was performed - as far back as 1991.

For example, James' lawyers state in a notice of appeal filed in the Supreme Court of South Australia that: (“the Board”) erred in finding that non-disclosure of relevant material by Dr James was due to “his ignorance or disregard of his responsibilities;”

However, Mr. Keogh takes issue with this contention in a cross-appeal filed with the Court, as follows:

0: His experience as disclosed by his evidence given at both trials and before the Medical Board in November 2004 was not properly taken into account by the Board.

0: His reputation was not properly taken into account by the Board.

0: That Dr James was a former President of the South Australian Branch of the Australian and New Zealand Forensic Science Society and must have been fully aware of the relevant Code of Ethics was not properly taken into account by the Board.

0: His non-compliance with the most basic standards required of an expert witness was not properly taken into account by the Board.

Those standards include:

0: To comply with the oath taken to tell the truth and the whole truth.

0: A doctor must always maintain the highest standards of professional conduct towards both the individual and society. (References omitted);

0: "The vital obligation which lies upon the investigating scientists is that they spell out to the jury, in non-ambiguous and precisely clear terms, the degree of weight and substance and significance which is or ought properly to be attached to the scientific tests and analyses and examinations as to which they depose; and specifically the nature and degree of any limitations or provisos which are properly appended thereto.

…Of course, in the context of question and answer, the primary responsibility must always remain with the scientist; because it is he who should know the nature and scope of his scientific analysis and the limitations and exceptions properly attachable to the results he achieves.

Accordingly, in my view, it is not properly open to a scientist, on a later occasion when his Trial evidence is being re-assessed, to say, for example: “I answered correctly such questions as I was asked. If I had been asked other and more relevant questions I would also have answered them correctly. It is not my fault that the correct questions were not asked of me”. (Royal Commission Report concerning the conviction of Edward Charles Splatt, 1984, p52.]

The Supreme Court's decision will be of crucial importance in Keogh's battle for exoneration in view of the Australian government's abject refusal to remedy the injustice - let alone to listen to the powerful evidence than an innocent man is in prison and a huge, dark cloud hovers over the country's criminal justice system.

The Board had the strength and courage to fearlessly call the shots on the Keogh complaint.

Now it is up to the Courts;