AFTERMATH: PART TEN: CRITICAL COMMENT: GOUDGE REPORT SEEN FROM AN AUSTRALIAN PERSPECTIVE; PROF. ROBERT MOLES;

WE TOO HAD ROYAL COMMISSIONS.

THE LINDY CHAMBERLAIN ROYAL COMMISSION MADE IT CLEAR THAT SCIENTIFIC EVIDENCE WAS THOROUGHLY UNRELIABLE, DESPITE IT BEING SAID TO HAVE BEEN CHECKED BY SEVERAL LEVELS OF SUPERVISION.

IT ALSO MADE CLEAR THAT EVIDENCE GIVEN BY THE EMINENT PROFESSOR CAMERON FROM THE UK WAS BEYOND HIS EXPERTISE, AND WOULD NOT HAVE BEEN ADMITTED IF IT HAD BEEN CHALLENGED.

THE EDWARD SPLATT ROYAL COMMISSION SAID THAT NOT ONE OF THE 27 ITEMS OF FORENSIC AND SCIENTIFIC EVIDENCE WAS WITHOUT ERROR.

YET AS WE CAN SEE, THERE HAVE BEEN NUMEROUS CASES SINCE THEN WHERE BOTH SCIENTIFIC AND PATHOLOGY ERRORS HAVE BEEN MADE.


PROF. ROBERT MOLES;

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From time to time I have referred to Australian cases which raise very troubling issues involving forensic pathologists and the evidence they deliver.

I have been inspired to do so by Doctor Robert Moles who has tackled head on serious deficiencies in forensic pathology systems in Australia, played a key role in exposing miscarriages of justice - and has done a stellar job of educating the public as to the weaknesses in their justice system.

I am grateful to Prof. Moles for preparing this Australian perspective on the Goudge report for the readers of the Charles Smith Blog.

"It is clear that the Goudge report is an extremely important event in the jurisprudence of Ontario, and internationally in terms of miscarriages of justice," Prof. Moles begins.

"Many of the recommendations made by in the Report are important, but, I suggest, they do not necessarily change anything from the previously existing order of things" he continues.

"Justice Goudge emphasises that pathologists as scientists should not give evidence which goes beyond their expertise.

However, this has been the case for at least the last 30 years.

He emphasises that they should clearly document what happens at the autopsy and the exchanges with police and others.

He states that they should not speculate, that they should base their findings on clearly established facts, and that they should clearly articulate the principles which enable them to derive conclusions from those facts.

The fact is that such principles have been part of the established regulatory framework for some considerable time now, and in truth, represent nothing more than the plain deliverance of common sense.

One only has to look to the wide range of professional standards and codes of conduct which have been set forth by the various professional bodies in Canada, the UK, Australia and elsewhere over many years.

Indeed, if one was to look to the decided legal cases, one would realise that it was not just professional standards, but the law itself which required that things be so.

In Australia, for example, in the case of Straker v The Queen 1977 [http://netk.net.au/ExpertEvidence/Expert3.asp] the Australian High Court made it clear that speculation by a pathologist was unacceptable:

“In particular, the doctor performing the examination ought not to be allowed to speculate on possible inferences from the state of the deceased's body.

If no inferred fact is probable, the opinion as to what might possibly be inferred is, at least in the circumstances of the case, inadmissible.” Per Barwick CJ.

“But he is not entitled to speculate on a possibility directly relevant to the issue or to a fact in issue when the speculation is adverse to the accused person and when there is no evidence which would support a conclusion that the fact was established.” Per Jacobs J.

Justice Goudge has been particularly critical of the Coroner’s Office in Ontario for not examining more critically the work of Dr Smith.

However, that is only the tip of the problematic iceberg.

Before a criminal prosecution can go to court, the office of the public prosecutor has to examine the file to establish that the evidence is in order.

Why did they not pick up on the cases where Smith had been putting forward speculations unsupported by any evidential basis?

Then, of course, comes the role of defence counsel.

If they had been doing their job properly, they would have objected to the admissibility of such speculations.

If they had objected to them, then the criticism must be carried through to the judge who allowed the speculations to be admitted.

In Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 [http://netk.net.au/ExpertEvidence/Expert3.asp]

The Court of Appeal stated that the duty of the expert is “to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence.

The scientific opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole other evidence in the case, but the decision is for the Judge or jury.

In particular the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert."

There are two points to note about this case.

The first is that whilst it is a civil case, it also states that the principles put forward apply with even more vigour to criminal cases.

We note that many experts (like Smith) will have given opinions in many civil cases involving claims for damages and which might have resulted in wrong conclusions.

The other point is that the judge in this case is now sitting on the Australian High Court (the equivalent of the Canadian Supreme Court).

It is to be noted that Straker and Makita did not purport to be changing the law, but merely declaring what the law was in 1977 and 2001, and what it had been understood to be for a long time before that.

I have do doubt at all that the situation in Canada, and other common law countries will be similar in all essential respects.

In making these comments, I am mindful that the ignoring of these simple and basic rules of evidence and procedure have continued up to the present day.

We too had Royal Commissions.

The Lindy Chamberlain Royal Commission made it clear that scientific evidence was thoroughly unreliable, despite it being said to have been checked by several levels of supervision.

It also made clear that evidence given by the eminent Professor Cameron from the UK was beyond his expertise, and would not have been admitted if it had been challenged.

The Edward Splatt Royal Commission said that not one of the 27 items of forensic and scientific evidence was without error.

Yet as we can see, there have been numerous cases since then where both scientific and pathology errors have been made.

The full text of the books setting out the South Australian cases is available online –

“A state of injustice” deals with over a dozen cases very similar to those of Dr Smith - http://netk.net.au/soi/soi.asp

“Losing Their Grip – the case of Henry Keogh” focuses on the Keogh case - http://netk.net.au/ltg/toc.asp

As we have shown, the Medical Board seems unable to deal with the issues; the College of Pathology cannot deal with them; the appellate system is woefully inadequate.

It seems that Ontario, Canada and South Australia have much in common.

It must be borne in mind in the context of the Goudge Report, that the declaration of standards by professional bodies, the courts (and Commissions of Inquiry) is one thing – their implementation is clearly another.

Unless the lawyers and judges, as well as the professional scientific and pathology organisations, are willing to seriously examine the cause of past failures, they we cannot expect them to seriously reform their conduct in the future."

The recent history of Dr Smith’s undoing can be found here: http://netk.net.au/SmithHome.asp

The details of other Canadian cases can be found here: http://netk.net.au/CanadaHome.asp

Harold Levy...hlevy15@gmail.com