Wednesday, April 2, 2008

Part Three: Important Development: Henry Keogh; Why Dr. James' Evidence On The "Bruise" - (Professional Misconduct) - Was So Significant;

This Blog has been running a series of postings which raise the dumbfounding question - Why is Henry Keogh still in jail?

As previous postings have indicated, Henry Keogh remains behind bars - after fourteen years- even though the forensic evidence in the case is disturbingly suspect.

See earlier postings: (Part One: The Henry Keogh Case: A disturbing research paper from Australia; Why is this man still in jail? March 24, 2008; Part Two: Why is this man still in jail? March 25, 2008);

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.

Dr. Robert Moles has very kindly provided me with an explanation as to the significance of Dr. James' impugned evidence in the case:

(Dr. Moles is currently engaged full time with the "Networked Knowledge project" which he establshed 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. His extremely comprehensive Web-site can be found at;

I first became familiar with his work through an extremely informative paper he prepared for the Goudge Inquiry entitled, "Comparative Experience with Pediatric Pathology and Miscarriages of Justice in Australia";

"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," Dr. Moles wrote for the readers of this Blog.

"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," he continued.

"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.

Dr Manock is now being prosecuted before the Medical Tribunal by the medical board in relation to this point and a number of others.

Dr James was the subject of an inquiry by the medical board which found as follows.

In the context of a slide of bruising which was said to be part of a “hand-grip”, the Board said “the slide was the only direct information that the respondent had in regards to the mark.

He did not see the body, he did not see a photograph of the mark or have any other direct information in relation to the mark.

The histology of the mark was realistically the only information that the respondent had, so to speak, first hand to directly assist the Court.

That the respondent did not think that this information could potentially impact on an assessment of the bruises or that the Court should be informed of it appeared to the Board remarkable”.

It added “the respondent’s final reason for not disclosing the histology of the mark was that he didn’t think it was particularly relevant.

The Board struggled with the possible rationale behind the respondent’s comment especially given the circumstances of the case.

Much was made in the transcript of potential grip marks and prominence and significance was given to the bruises on Ms Cheney’s legs.

That the respondent therefore considered that the histology of the mark was not relevant is [to] the Board’s mind very surprising”.

“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.”

“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.

In any further appeal by Dr James he cannot change the fact that he agreed in his evidence to the Medical Board that he failed to do this because he did not think it to be particularly relevant.

It is also the case that the Medical Board is prosecuting Dr Manock, the former Chief Forensic Pathologist, before the Medical Tribunal, for giving similar evidence in relation to the same issue in the same case.

The Attorney-General would be aware that the appropriate forum for determining the significance of that evidence for the trial of Mr Keogh is in fact the Supreme Court and not the Medical Board or the Medical Tribunal.

Given that this issue goes directly to the conviction of a person who has already spent nearly 14 years in prison based upon such flawed evidence, will the Attorney-General agree to make and urgent reference of this matter to the Supreme Court for its consideration?