PUBLISHER'S NOTE: One of the most fascinating sections of the Court of Criminal Appeal decision (available through the link below) speculates as to how the "landscape" of the of the trial conducted in 1994 would have been changed if the parties and the court had been aware of the evidence which is now available. (The entire decision is a Must Read! HL); This section is of particular interest to the readers of this Blog because it illustrates how the then prestigious chief pathologist Dr. Colin Mannock's bungled autopsy (fortified by his confident, unwavering evidence from the witness stand and back-up from Dr. James) tainted every aspect of the trial. Only forensic evidence could determine whether the death was natural or assisted - and without Mannock's sorely flawed intervention Keogh would have most likely been spared his horrible ordeal. While reading the decision, I could not help but think about the bungled autopsies conducted by the former Ontario pathologist Charles Smith, the unwarranted criminal charges laid because of them to the horror of grieving parents and caregivers - and the supreme confidence in the witness box with which he won over judges and jurors in court. An independent inquiry into Smith's cases led to the overturning of numerous wrongful convictions. Rather than putting Henry Keogh through a retrial in a bid to postpone the inevitable, the South Australian government would do well to put its energy into taking a similar approach.
Harold Levy: Publisher; The Charles Smith Blog.
DECISION: R V Keogh (2): Supreme Court of South Australia: Court of Criminal Appeal: Justices Gray, Sulan and Nicholson. Released December 19, 2014. The momentous decision that affirmed once and for all the substantial miscarriage of Justice suffered by Henry Keogh and led to his release from prison after 20 years. Now all that remains is for the prosecution to announce that it will not be seeking a retrial (to do otherwise would be futile and vindictive), for Henry Keogh to receive the rich compensation he deserves for his two decade ordeal - and for a thorough, independent review of Dr. Colin Mannock's cases, to weed out others that may have been similarly tainted.
GIST:
- "In our view, it is also relevant to reflect on how the landscape of the trial conducted in 1994 would have changed, had the parties and the court been aware of the evidence now available to this Court.
- A review of the prosecutor’s opening and final addresses demonstrates the substantial reliance placed on Dr Manock’s observations and opinions as circumstantial evidence probative of guilt. Reliance was also placed on Dr James in his support of Dr Manock in this respect.
- The prosecutor could not have presented the case in the way that he did. For example, he could not have led evidence from Dr Manock of his opinion that Ms Cheney was necessarily conscious when her head was submerged underwater. It may be expected that evidence would have been led from Dr Manock that there was no evidence to support his suggested macroscopic observation of a bruise to the medial aspect of the lower left leg. It may also be expected that evidence would have been led from Dr Manock that the histology did not support the presence of a bruise.
- The prosecution would, in all probability, have led evidence from Dr James that, on examining the autopsy photographs, he could see no bruise to the medial aspect of the left leg. The prosecutor would have been confronted by the evidence of all other experts that they could not see any evidence of such a bruise in the photographs. The prosecutor would have also been confronted with the evidence of Professor Pounder that Polilight examination failed to reveal any evidence of such a bruise. It may have been expected that the prosecutor would have led evidence that the histology from the medial aspect of the left leg disclosed the presence of haemosiderin and that a bruise or lesion at that location had been sustained well prior to death and had no part to play in the death.
- The prosecution would have faced the difficulty that Dr Manock’s opinion of the left leg being gripped was no more than mere speculation and not probative. Further, Dr Manock’s suggested mechanism of murder would have been clearly understood to be no more than unsupported speculation.
- The prosecution would have been confronted with a substantial body of expert material pointing to significant inadequacies in the autopsy process conducted by Dr Manock as earlier discussed in these reasons.
- The position that would have confronted the prosecution, having regard to the agreement of Dr Lynch with the views of Professor Pounder, was that there was nothing in the medical evidence to support the suggestion that the death was homicidal, or to discount the death being accidental.
- It is self evident that defence counsel would have faced a materially different, if not fundamentally different, prosecution case. Different issues would have arisen for consideration. Different forensic choices would have been available. The reliability, if not the credibility, of Dr Manock would have been open to challenge. The questions of proof beyond reasonable doubt and the exclusion of a reasonable hypothesis consistent with innocence would have attracted different considerations.
- The trial Judge could not have summed up to the jury in the way that he did. It would not have been open to the Judge to suggest that many of Dr Manock’s observations and opinions, as they stood at the time of the trial, formed part of the circumstantial evidence of the case that could be relied on by the prosecution to establish the guilt of the applicant. Each of these matters that would have confronted the prosecution would have fundamentally changed the nature of the summing up. "
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.ca/2013/12/the-charles-smith-award-presented-to_28.html
I look forward to hearing from readers at:
hlevy15@gmail.com.
Harold Levy: Publisher; The Charles Smith Blog
