a former Associate Professor of Law at Adelaide University, Phd from the University of Edinburgh, taught at Queen’s Belfast and at the ANU in Canberra. He is the author of five books in the miscarriage of justice and rule of law area. Dr. Moles is the publisher of an extraordinary web-site containing a treasure chest of millions of materials on miscarriages of justice, and along with Prof. Bibi Sangha, one of the moving forces behind establishment of a Criminal Case Review Commission for South Australia.
"At the age of 37 life seemed to be going well for Jonathon and his
family. The children were Harry, one year old, and April, 4 years old.
Jonathon worked as a product manager for a large manufacturing company
and Mary, his wife, was a full time casual social science teacher at a
local High School in Sydney. One morning they found their young son appeared unwell, and within 24
hours he had died. In the middle of their grief they were shocked to
find that Jonathon was accused of causing Harry’s death. It was said
that he had died from a blow to the abdomen which caused internal
injuries, leading to peritonitis and death. It was also alleged that
Jonathon had put his hand across the face of his young child to prevent
him from crying and this had led to asphyxiation. Jonathon had said in a police interview that he had been with Harry
when he was restless early one morning some 36 hours before he died. It
subsequently transpired that expert medical witnesses would state with
some degree of certainty that the assault had occurred at 36-48 hours
before death. The same experts would say that there were marks on the
face consistent with an adult handprint. (The Court of Appeal would
later say that without this admission by Jonathon, there would have been
no case against him). The defence case was that the medical experts for the prosecution had
ventured beyond their area of expertise and that it was not acceptable
to interpret marks to the face on the basis of photographs instead of
the more direct evidence of histology (tissue slides from areas of
alleged bruising). The alternative explanation for discolouration of the
face was that it was post mortem lividity. The prosecution case was
said to have been based upon ‘speculation’. The trial lasted 5 weeks and the summing up 2 hours which was
relatively short. The jury found Jonathon guilty of murder. It was said
that they were confused by the medical evidence and probably thought at
the end of the day that someone had done it so Jonathan was most likely.
Not quite ‘beyond reasonable doubt’ but perhaps, they might have
thought – a reasonable compromise.........The
appeal was heard in 1994 and the discussion of the
unpredictability of the process and potential outcome is quite
harrowing, especially for anyone who likes to believe in the
predictability and clarity of the law and its processes. It is ironic
that an obviously innocent person such as Jonathon was quite shocked
when told that he had been acquitted, it being said that the jury’s
verdict was ‘unsafe and unsatisfactory’ (which is actually the British
rather than the Australian test). The appeal court found that the
experts ought not to have relied upon
the photographic evidence rather than more direct evidence (histology)
which the court said was inherently more reliable (p216). The appeal
court said, citing Chamberlain, that a fact inconsistent with the Crown
hypothesis will bring the case down. The prosecution said (on the basis
of tape recorded conversations
from bugs placed in the family home) that an absence of discussion about
how the death was caused might be consistent with a guilty mind. The
court thought it was more likely the thought processes of people who
were confused and traumatised, and unquestioning about medical reports
and medical experts. Clearly Jonathon thought that the case was based
upon the ‘gut
instinct’ of investigating police who then ‘shopped around’ for an
expert who was willing to support their hypothesis.........Reading this account has a special poignancy in the light of more recent experience of baby deaths in Australia and the UK
and the controversies which have arisen over the diagnostic issues
involved. Kathleen Folbigg is one case which has attracted special
attention in NSW and the tragic case of Sally Clark in the UK is also
well known."
The entire review can be found at:http://www.cla.asn.au/News/gut-instinct-leads-to-justice-pain/
PUBLISHER'S NOTE:
Dear Reader. Keep your eye on the Charles Smith Blog. We are following this case.
I have added a search box for content in this blog which now encompasses several thousand posts. The search box is located near the bottom of the screen just above the list of links. I am confident that this powerful search tool provided by "Blogger" will help our readers and myself get more out of the site.
The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at:
http://www.thestar.com/topic/
Information on "The Charles Smith Blog Award"- and its nomination process - can be found at:
http://smithforensic.blogspot.
Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com
Harold Levy: Publisher; The Charles Smith Blog.
