GOOD NEWS: Channel 9's " episode Under Investigation with Liz Hayes: For thirty years, and in over 400 criminal cases, Dr. Colin Manock, - who unfortunately played a central role in Derek Bromley's case -and all to many other wrongful convictions - was (South) Australia's Chief Pathologist, without a single specialist qualification to put him there. How did it happen and why was he allowed to operate for so long?" watch
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PASSAGE ONE OF THE DAY: (Henry Keogh case): "Dr Mark Coleman was particularly critical. His view was: “The autopsy was sub-standard. … The conclusions drawn by Dr Manock … went beyond the available evidence … This [diagnosis of drowning] is not achieved in the absence of a more complete set of recorded data and saved tissue samples … The documentation in the autopsy in question was manifestly inadequate, even by the lowest of standards. In my opinion the standard of the conduct of the autopsy and the quality of the resulting evidence was markedly sub-standard to the point of incompetence.” Professor Ian Maddocks concluded that “… the procedure by which Dr Manock conducted that autopsy was unsatisfactory “according to the standards of 1994” and that the autopsy “did not fill the standards of such an examination in 1994”. He even went as far as to state “the Board should require that he now agree not to undertake any role in forensic pathology other than as an assistant to a qualified pathologist, and under that pathologist’s supervision.”
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PASSAGE TWO OF THE DAY:
“Many of the facts about Dr Manock’s evidence in the Keogh case which are fully established, emerged during the hearings before the Medical Board of South Australia. I (Borick) conducted the cross-examination of Dr Manock before the Board and I remember during an adjournment him making a comment to one of his lawyers that I was his “bête noire”. In cross-examination in this Court he denied making that comment, but if I can be his “bête noire” I would be, to say the least, content.”
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PASSAGE THREE OF THE DAY:
"The State of South Australia has steadfastly refused to initiate a full review of the cases touched by Dr Colin Manock."
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POST: 'Malpractice, Incompetence And Lies: the Manock curse – Part 2," by published by The Wrongful Convictions Report, on February 2 2023.
INTRODUCTION: "Journalist Andrew L. Urban and retired barrister Kevin Borrick KC reveal how South Australia’s legal fraternity contributed to the ongoing scandal that began with the unqualified forensic pathologist Dr Colin Manock and spread like cancer, infecting the entire system. The Manock curse has corrupted justice for decades. But his were not the only crimes against forensic science … and South Australia not the only state."
GIST: In Part 1, we showed a number of examples of the damage caused by Dr Manock’s incompetence. But he was not the only one responsible for miscarriages of justice delivered by the state’s legal fraternity.
Dr Bonnin gave sworn evidence to the Supreme Court in 1975 that Dr Manock was not qualified to certify cause of death (conduct autopsies) and that he had no expert qualifications – which meant that he could not give expert evidence in court – even if the prosecutors later disagreed with that assessment (it is hard to know how they could do so), the fact that it was made would have to be disclosed to the defence and to the court in any subsequent legal proceedings in which Manock was proposed to be called as a witness.
Four years earlier, the Forensic Science Centre in collaboration with the Royal Australasian College of Forensic Pathology ‘fitted’ Manock up with a misleading certificate stating that he was a Fellow of the College of Pathology.
If Manock were to state in court that he had that certificate, it would give the impression that he had completed the five years of study and two demanding rounds of examinations. That was not so.
Therefore Manock and the Crown lawyers would have to disclose to the court and to the defence lawyers that the certificate had been ‘gifted’ to him without requiring him to do any study or exams.
The failure to do so would amount to a fraudulent misrepresentation. The cases make it clear that the judgment of any court cannot stand in the face of fraud – It was said in a leading UK judgment – Lazarus Estates v Beasley [1956] “no judgment of a court … can be allowed to stand if it has been obtained by fraud. Fraud unravels everything.”
THE CASE AGAINST DR COLIN MANOCK
Unqualified and incompetent, South Australia’s chief Forensic Pathologist was able to perform his official duties for almost 30 years, unchecked by his employers. The result is a trail of autopsy reports that have been shown to be tragically unreliable or plain wrong. Of course, such a trail leads inevitably to catastrophic miscarriages of justice.
“Many of the facts about Dr Manock’s evidence in the Keogh case which are fully established, emerged during the hearings before the Medical Board of South Australia. I (Borick) conducted the cross-examination of Dr Manock before the Board and I remember during an adjournment him making a comment to one of his lawyers that I was his “bête noire”. In cross-examination in this Court he denied making that comment, but if I can be his “bête noire” I would be, to say the least, content.”
The established facts:
- Dr Manock no longer says the lungs were waterlogged, as he had told the jury.
- Dr Manock no longer maintains that differential staining is a “classical sign” of fresh water drowning, which is what he told the jury.
- Dr Manock has now accepted his opinion at trial concerning consciousness and the brain was “erroneous”. His evidence of consciousness is now based on his never before reported autopsy observation of emphysema aquosum in the lungs.
- Other possible causes of death which may have been eliminated now depend on whether Dr Manock’s originally reported autopsy observations of the lungs are believed, or whether his never before reported autopsy observation of emphysema aquosum in the lungs is believed, or none of these. In fact, the cause of death can not now be established.
- Research since the trial has demonstrated that sudden unexpected death in young Australians is not uncommon — it happens to about 400 individuals each year. This fact alone demonstrates the trial court was misled on this issue.
- Dr Manock told the jury he saw 4 bruises on the lower left leg of the deceased at the autopsy on the Sunday. This conflicts with his draft report and the records of others who were either there or involved, which show the bruises were not seen until the Monday. This fact alone establishes the bruises on the left leg may have been caused post mortem (that is, after death).
- At the trial, Dr Manock claimed the pattern of the bruises on the left leg was consistent with a grip by a hand, the bruise on the inner side of the leg being the ‘thumb’ bruise. There is no proof that the ‘thumb’ bruise existed; there is no proof that the bruises were all caused at exactly the same time as they would have to be if they resulted from a grip; thus there is no proof of a grip. The grip pattern, which was an essential feature of the prosecution address to the jury and the one positive indication of murder, no longer exists.
- There is no histological proof of the existence of a bruise on the medial (inner) side of the left leg of the deceased, and there never was. Both Dr Manock and his colleague Dr James have admitted that this is the correct histology result. It was therefore never possible to assess by histology the age of what Dr Manock called a bruise at that site, as he told the jury he did. Further, Dr Manock now agrees that his evidence at the trial that the bruises were less than 4 hours old was “not accurate”. He now agrees he misled the jury on this critical issue.
- Dr Manock has now changed his murder scenario so much he has effectively destroyed it. He has changed which hand he says caused the grip mark (now the left hand – he told the jury it was the right hand) and he has changed the role ascribed to the right hand. The scenario is speculation based on assumptions. Dr Manock now agrees he misled the jury on this critical issue.
- At the trial Dr Manock made an assumption about the level of water in the bath. The facts establish that he misled the jury. His assumption was wrong.
- Some of the insurance policies on Anna-Jane Cheney’s life have been paid out, indicating they were considered to be genuine, valid and enforceable, contrary to the case put by the prosecution at the trial. This fact alone undermines the prosecution case.
In November 2004, Dr Manock’s conduct of the autopsy of Anna-Jane Cheney was reviewed by pathologist members of the Medical Board of South Australia.
Professor Peter McDonald found that “… the conduct of the autopsy under consideration did not conform with contemporary standards as specified in text books for the conduct of autopsies”.
Dr Mark Coleman was particularly critical. His view was: “The autopsy was sub-standard. … The conclusions drawn by Dr Manock … went beyond the available evidence … This [diagnosis of drowning] is not achieved in the absence of a more complete set of recorded data and saved tissue samples … The documentation in the autopsy in question was manifestly inadequate, even by the lowest of standards. In my opinion the standard of the conduct of the autopsy and the quality of the resulting evidence was markedly sub-standard to the point of incompetence.”
Professor Ian Maddocks concluded that “… the procedure by which Dr Manock conducted that autopsy was unsatisfactory “according to the standards of 1994” and that the autopsy “did not fill the standards of such an examination in 1994”.
He even went as far as to state “the Board should require that he now agree not to undertake any role in forensic pathology other than as an assistant to a qualified pathologist, and under that pathologist’s supervision.”
THE CASE AGAINST (then) SOLICITOR GENERAL CHRIS KOURAKIS
Henry Keogh was convicted of murder and lost the first and only appeal available to him under then existing laws. Accordingly, the only option left for Keogh was to lodge a Petition of Mercy to the Governor, via the Attorney General, requesting that on the basis of all of the available evidence, including fresh evidence relating to Dr Manock and to Dr James, his case be referred back to the Court of Criminal Appeal.
This is Borick’s ‘case against Kourakis’:
Henry Keogh’s Petition, known as the Third Petition, was lodged by me (Borick) in August 2003. He had had two previous Petitions rejected.
The Attorney-General of the day referred the Third Petition to the then Solicitor-General, Chris Kourakis KC for advice.
We know that on 3 February 2004, Mr Kourakis wrote to Professor Barrie Vernon-Roberts seeking a medical opinion concerning the issues raised in the Third Petition.
Professor Barrie Vernon-Roberts, AO, MD, BSc, PhD, FRCPath, FRCPA, FAOrthA (Hon), FRS.SA, was at that time Director of the Institute of Medical and Veterinary Science in Adelaide and was recognised internationally as an outstanding diagnostic pathologist, medical researcher and administrator.
He was originally appointed to the Institute in 1976 as the Head of the Division of Tissue Pathology and simultaneously appointed to the post of the George Richard Marks Professor of Pathology at the University of Adelaide Medical School.
On 7 October 2004, Mr Kourakis again wrote to Professor Vernon-Roberts apparently seeking a further opinion. We do not have those letters.
As the lawyer acting for Henry Keogh, I met with Mr Kourakis at his office on 18 November 2004 from 9.30 am to 10.20 am.
Also present at that meeting was Mr Kourakis’s research assistant, Aditi Rao.
At that meeting I explained to Mr Kourakis our position that since the three basic elements of Dr Manock’s theories as to cause and manner of death had collapsed the case should be referred back to the Court of Criminal Appeal.
I made specific reference to the “one positive indication of murder” – the grip marks as identified by Dr Manock. Mr Kourakis made it clear that he would not express any opinion to me because his duty was to report to the Attorney-General and it was entirely up to the Attorney-General to decide whether or not the case should be referred back to the Court.
We agreed the next meeting should take place on 30 November.
Present at that meeting on the morning of 30 November were myself, Professor Tony Thomas, Professor Maceij Henneberg, Dr Harry Harding, and solicitor Michael Sykes. It was a long and complicated meeting.
Without going into all the details reference was made to the heart, the lungs, the issue of sudden death, differential staining, and the level of water in the bath.
At that meeting, Mr Kourakis agreed that it was his task to advise the Government whether or not there was any basis to doubt that the conviction was the result of a fair trial and in particular if there was any failure to comply with the basic principles of a fair trial. In particular, was there any reason to believe the trial Court had been misled.
No mention was made of the report by Professor Vernon Roberts which Mr Kourakis had already received.
On 3 March 2005, a further meeting took place. Present were Mr Kourakis, myself, Aditi Rao, and Bibi Sangha (as junior counsel).
The significant features of that meeting were:
ONE – There was still no mention of the report by Professor Vernon-Roberts.
TWO – Mr Kourakis advised that in effect it did not matter that it was not established that the medial mark was a bruise; i.e. the grip mark was not important to the prosecution case. (Contrary to my assertion earlier that it was the “one positive indication of murder”.)
In this context he made specific reference to the High Court of Australia case of Plomp. (In Plomp v R, the defendant’s wife drowned while they were both swimming in the sea. Neither the defendant nor his wife had any significant marks or injuries on their bodies. There were no eyewitnesses. The Crown case was that the defendant somehow drowned his wife but the Crown could not say how. The Crown case was entirely circumstantial, relying amongst other things on evidence that the defendant’s wife was a fairly good swimmer, the conditions were good and the defendant had a motive to kill her. One ground of appeal was that motive could not be taken into account unless it were first proved that the defendant did an act causing his wife’s death. Another ground was that the verdict was unreasonable and could not be supported having regard to the evidence. The High Court upheld the conviction. There is a strongly held view that this decision challenges common sense.)
THREE – Mr Kourakis stated that he was not concerned with the issue of Dr Manock’s competence.
As far as he was concerned, the Coroner’s report about Dr Manock’s conduct in the baby death cases had nothing to do with Henry Keogh’s case.
But of course Dr Manock’s autopsies of the babies were shown to be grossly insufficient, calling into question his qualification to give evidence in the Keogh case – or any other case.
(Furthermore, the Coroner’s findings of the gross insufficiency of the reports were concluded on the eve of the Keogh trial. In other words, ‘the State’ knew.)
On 17 August 2005, Mr Kourakis wrote to me requesting any assistance I could give him whilst he was in the process of finalizing his report to the Attorney-General. He asked a series of questions but in particular he wanted to know if there was any feature of the case which raised a substantial possibility that the jury may have been misled.
In my 6,300 word reply on the same day, I detailed 14 matters that overall “raised a substantial possibility that the jury may have been misled”. One of my key points referred to the case of R v Nicholls, which was directly on point. The UK Court of Appeal in that case observed that once it was accepted that it was a case of homicide, the other circumstantial evidence meant that the case against Nicholls was a strong one.
But, if the pathological evidence from which the jury were entitled to infer that it was an unlawful killing could be excluded, or was shown to be unreliable, then the conviction was unsafe irrespective of the force of any other circumstantial evidence.
It took a further year for the Acting Attorney-General, Mr Kevin Foley, based on Mr Kourakis’s advice, to reject the Third Petition – on 10 August 2006.
On the basis of established facts, Solicitor-General Kourakis had in his possession, at the relevant time, proof of the fact that in the case of Henry Keogh a miscarriage of justice had occurred and failed to properly disclose that proof.
Mr Kourakis: “Although both Professors Cordner and Ansford gave evidence that there were other explanations for the pattern of the bruising, it is my view that, once it is accepted that the medial mark was a bruise, a very strong inference arises that the marks were caused by a handgrip.
Accordingly, if it is arguable* that Dr Manock’s conclusion that the mark was a bruise should be doubted, the case should be referred to the Court of Criminal Appeal. However, in my opinion there is no reason to doubt Dr Manock’s capacity to correctly identify a bruise by visual examination.
“It follows from the preceding paragraph that the evidence against Mr Keogh is much strengthened by the conclusion I have reached concerning the mark on Ms Cheney’s inner left leg. It reinforces the conclusion I express that the incriminating circumstances exclude any possibility that Ms Cheney died of natural causes.”
* if it is arguable – Mr Kourakis advised the Government that there was no question about Dr Manock’s evidence or proof of Keogh’s guilt, but he knew that
1) Dr Manock was incompetent
2) Dr Manock was a liar
3) Dr Manock’s opinion that the medial mark was a bruise had been totally discredited. As he stated in his report, the case should have been referred to the Court of Criminal Appeal, in 2004.
It took a further 10 years for this case to come before that court:
THE COURT OF CRIMINAL APPEAL, December 14, 2014:
“The possible presence of haemosiderin was first identified in the 2004 report of Barrie Vernon-Roberts. The report included a recommendation that particular tissue be tested for the presence of haemosiderin and sought permission to do so.
For reasons unknown to this Court, that testing was not then undertaken. Professor Vernon-Roberts’ report of 2004 was released to the applicant’s advisors on 5 December 2013. In February 2014, the testing recommended by Professor Vernon-Roberts was undertaken by Professor Thomas.
This testing confirmed the tentative view expressed by Professor Vernon-Roberts that tissue taken from a possible lesion on the medial aspect of Ms Cheney’s left leg contained haemosiderin.
As a consequence, if the possible lesion was in fact a bruise, the conclusion could be safely drawn that it had been sustained at least 24 hours before death. The consequence of such a finding is that Dr Manock’s opinion as to the mechanism of murder is materially undermined.”
One of the consequences of the limited disclosure by the Acting Attorney-General was that Mr Keogh was not aware of criticisms of important aspects of Dr Manock’s evidence. Had he been so aware, he may well have pursued fruitful forensic lines of enquiry casting doubt on the reliability of that evidence and presented them in a subsequent petition for mercy.
It is reasonable to expect that he would have done so at a much earlier date than 5 December 2013 when Professor Vernon-Roberts’ report was released to Mr Keogh’s solicitors.
And the legal carnage caused by the multiple failures in the Keogh case was still not over … see the case against then DPP Adam Kimber.
* Mr Chris Kourakis was appointed Chief Justice of South Australia in 2012. He was Solicitor General 2003 – 2008 and President of the Law Society of South Australia from 2001 to 2003.
THE CASE AGAINST ADAM KIMBER (DPP)
It is rare if not unique for me (Borick) to argue a case against a Director of Public Prosecutions.
But, I can safely assert, this is a unique set of circumstances. Even after Henry Keogh finally walked free, the legal profession presented itself to be a bad actor, far from a model litigant, far from a pillar of justice.
When the [South Australian] Court of Criminal Appeal [on 19 December 2014] set aside Henry Keogh’s conviction on the basis the jury were positively misled by Dr Manock and by Dr James they added the following comment:
We do not accept the submission made by the applicant’s counsel that there should be a direction of acquittal. To the contrary, we consider that the non-expert circumstantial evidence, when considered together with the forensic pathology evidence as it is now understood, is such that it would remain open to a properly directed jury to convict. However, we expressly recognise that a properly directed jury may consider that that evidence would not be sufficient to establish guilt beyond reasonable doubt. These are truly jury questions and this judgment should not be taken to express a view on whether the applicant in fact committed the crime with which he was charged. For our part, our review of the material does not establish a case for an acquittal following this appeal. Accordingly, we would set aside the conviction and order a retrial. It is a matter for the Director to determine how the matter should proceed.
(R v Keogh (No 2) [2014] SASCFC 136 at [355])
The lawyers advising Henry Keogh at that time (I was no longer involved) did not seek leave to appeal the decision to order a re-trial.
Adam Kimber, the Director of Public Prosecutions, said there would be a re-trial and a trial was listed to commence before a Judge alone on 8 March 2016. Keogh’s team then brought an application seeking a stay of proceedings and requested of the Director particulars of the act that allegedly caused Ms Cheney to drown.
At least two hearings were held concerning those matters and the date of 13 November 2015 was set for a further directions hearing.
At that hearing, DPP Adam Kimber announced that the prosecution could not proceed with the re-trial because a key witness for the prosecution was “unwell”.
That witness was Dr Colin Manock.
He was reported well recovered soon after.
Thus it was obvious that Adam Kimber accepted there could not be a re-trial without any evidence as to the cause and manner of death.
The basic issue is that Adam Kimber knew at the time he said there would be a re-trial that Dr Manock would not be permitted to give evidence.
As a matter of procedure if the re-trial had started and Dr Manock was called as a witness for the prosecution, the jury would have been sent out and defence counsel would have cross-examined Dr Manock in order to permit the trial judge to determine if any evidence Dr Manock gave was admissible. If it were me, I certainly would have.
Defence counsel would have put to Dr Manock every one of the judicial statements earlier referred to in the case against Dr Manock and sought his response.
Given that situation Adam Kimber must have known what would have happened.
Why then did he tell the public a re-trial would take place and – second – why did he tell the public a re-trial could not take place because Dr Manock was “unwell”? If he were in the witness box in this court, I would certainly ask him those questions.
exDPP Adam Kimber
(As a matter of record: the government did not re-appoint Adam Kimber as Director of Public Prosecutions at the expiration of his contract in 2019. An advertisement for a new DPP was published in The Adelaide Advertiser on February 2, 2019. On July 26, 2019, in what was described by The Adelaide Advertiser as a ‘shock move’, Supreme Court Justice Martin Hinton was appointed to the role, effective October 2019.
THE CASE AGAINST JUSTICES CLAYTON, DEBELLE, DOYLE
Judges, too, have been embroiled in the violent legal turbulence caused largely by this one unqualified pathologist, Dr Colin Manock. Kevin Borick’s argument:
I will start with the curious case of District Court Judge Dean Clayton in his capacity as the head of the Medical Professional Conduct Tribunal viz Dr Colin Manock.
The Medical Board in 2008 made a complaint to the Medical Professional Conduct Tribunal alleging that there was proper cause for disciplinary action against Dr Manock in that he failed to conduct an adequate autopsy of Ms Cheney and failed to properly consider his opinion as to cause and manner of death.
The Medical Tribunal is a higher level hearing than those held by the Medical Board, with the panel being led by a District Court judge, in this case Judge Dean Clayton.
The Tribunal found that there indeed were “valid criticisms” of the autopsy “which even Dr Manock acknowledged was less than perfect”.
At the Tribunal hearing Dr Manock gave evidence about what he and others did at the autopsy.
This evidence was ‘new’ (in the sense that it had never been heard before) and Dr Manock has not produced any records to support this ‘new’ evidence.
In fact much, if not all of this ‘new’ evidence, is contradicted by Dr Manock’s own records (such as they are) or by the records of others, such as a Coroner’s officer, who was present at the time.
The Tribunal did not investigate any of this ‘new’ evidence.
The Tribunal found that Dr Manock did in fact make the observations he said at the Tribunal of foam in the lungs and of the indentations of the ribs on the lungs but did not record them at the time of the autopsy or report them or mention them in his evidence.
The Tribunal found there was no cause for disciplinary action.
The Tribunal found that the ultimate test was that the jury accepted the evidence of the expert witness, even though Dr Manock himself has refuted his own evidence. That is a remarkable and unique finding. Would anyone now consider this finding of the Tribunal to be in the interests of justice? Rational?
Ref: (Medical Board of South Australia v Manock [2009] SAMPCT 2)
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The case of Justice Debelle viz Dr Ross James…
In its Reasons for decision of 2 April 2008, the Medical Board found that Dr James was guilty of unprofessional conduct for failing to disclose the true result of his microscopical examination of the medial (‘thumb’) bruise.
The Board found that:
“… as an expert witness, [Dr James] could have and should have taken this opportunity to inform the court that the histology of the mark did not confirm it as a bruise.
As an expert [Dr James] had an overriding duty to assist the Court on matters within his area of expertise.”
The Board considered that the evidence that Dr James gave to the Medical Board “clearly articulated his flawed understanding of his role as an expert witness and that it was his ignorance or disregard of his responsibilities … which led to his conduct”.
The Board also considered that Dr James’s failure to inform the Court was more than a “trifling or harmless departure from recognized professional standards”. It went on: “Regardless of what [Dr James’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.”
Dr James appealed the finding of the Medical Board to the Supreme Court the day it was handed down. Justice Debelle heard the appeal and reversed the Board’s finding.
During the hearing he refused my application, made on behalf of my client, Henry Keogh, to release Dr James’ notes of his examination of the tissue slides (“It is too late for that now.”), and also refused an application to allow Professor Tony Thomas to re-examine the tissue slides in order to resolve some confusion which had arisen during the course of the hearing over the use of the terms ‘section’ and ‘slide’.
In his judgment Justice Debelle concluded that the medial mark was of no significance to any of the pathologists (Dr Manock, Dr James, and the two defence pathologists, Professor Cordner and Professor Ansford).
In fact, the existence of the medial bruise (and the opinion expressed by Dr Manock that it was made at the same time as the other three bruises on the left leg of Ms Cheney) was a critical aspect of the opinions expressed by Dr Manock and by Dr James.
It was however of no significance to the defence pathologists, because in their view there was no evidence to support the grip scenario.
Justice Debelle [rather bizarrely I suggest] also concluded that when Dr James told the jury that he saw four slides of bruising he actually meant that he saw four slides that Dr Manock believed were slides showing bruising.
It was of course impossible for Dr James to have held that view, because he has subsequently stated that he always knew that one of the slides Dr Manock was referring to showed no evidence of bruising.
Justice Debelle also concluded that Dr James had fulfilled his obligations as an expert witness in that he had disclosed to the defence his true histology result for the medial slide. He concluded this on the basis of a conversation he inferred took place between Dr James and Professor Cordner prior to the trials.
He based the timing of this ‘conversation’ on the position of a paragraph in an affidavit sworn by Dr James. This ‘conversation’ could not have taken place in the way Justice Debelle concluded – there is clear evidence that neither Dr James nor Professor Cordner knew at the time of the trials which of the slides were from the medial side of the left leg.
Significantly, Justice Debelle further concluded experts can decide for themselves the issue of relevance concerning their evidence.
Analysis of the judgment handed down by Justice Debelle shows that each and every one of the four main findings he used to come to his final conclusion was flawed and was not supported by the evidence.
Ref: (James v Keogh [2008] SASC 156)
Even the Supreme Court’s Chief Justice is prone to error, as evidenced by this decision regarding Dr James. In 2009 Keogh appealed the judgment of Justice Debelle to the Full Court of the Supreme Court.
Chief Justice Doyle (with Justices White and Layton agreeing) agreed with Justice Debelle that the microscopical examination of the tissue slides was irrelevant, and in effect agreed with Justice Debelle that expert witnesses can decide for themselves what scientific test results they will disclose to the Court.
“It is somewhat surprising that Dr James did not state his conclusion about the histological examination of the tissue relating to the mark in question. To that extent I agree with the Board. But when the circumstances in which Dr James gave evidence are considered, I conclude that the failure was not a breach of Dr James’ duty as an expert witness.” – Doyle CJ.
There are, however, serious errors of fact in this judgment, particularly the finding that Dr James in his evidence at the two trials said nothing about the fact that in the course of his review he examined the medial slide, and the finding that he said nothing in his evidence about the opinion he formed after viewing that slide. The trial transcript shows these statements to be incorrect.
Curiously, and unusually, Chief Justice Doyle in his judgment did not provide any legal references to explain how he arrived at his understanding of the duties of an expert. Indeed, this is the only law report that I know of on this important topic which does not have any legal references at all. No attempt was made by the Chief Justice to reconcile or explain his position by reference to the multitude of legal authorities to the contrary.
Ref: (Keogh v James [2009] SASC 258)
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The State of South Australia has steadfastly refused to initiate a full review of the cases touched by Dr Colin Manock.
The entire post can be read at:
PUBLISHER'S NOTE: I am monitoring this case/issue/resource. Keep your eye on the Charles Smith Blog for reports on developments. 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/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html 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;
SEE BREAKDOWN OF SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG, AT THE LINK BELOW: HL:
https://www.blogger.com/blog/post/edit/120008354894645705/4704913685758792985
FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
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FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions. They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they've exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;
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YET ANOTHER FINAL WORD:
David Hammond, one of Broadwater’s attorneys who sought his exoneration, told the Syracuse Post-Standard, “Sprinkle some junk science onto a faulty identification, and it’s the perfect recipe for a wrongful conviction.”
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