The Chief Justice of England, Lord Igor Judge said recently in Sydney, “the prospect of an innocent person being convicted of a serious crime represents a catastrophic failure of the legal system.” It is clear to any objective and well-informed person that the case of Sue Neill-Fraser in Tasmania is such a “catastrophic” failure. The normal response to any other type of catastrophe would be to direct significant resources to it as part of a harm minimisation and harm prevention strategy. However, with fundamental failures of the legal system, responsible officials sometimes adopt the “Nelson touch” and turn a blind eye to it.
An exceptional and public acknowledgment of this occurred in the UK, when significant concerns were being raised about the IRA bombing cases. The well-respected and highly regarded Lord Denning, head of the Court of Appeal, said that the application for leave to appeal in the Birmingham Six case must be refused. He said that if the appeal were allowed to proceed – and if it were to be successful:
… it would mean that the police were guilty of perjury; that they were guilty of violence and threats; that the confessions were involuntary and improperly admitted in evidence; and that the convictions were erroneous… This is such an appalling vista that every sensible person in the land would say: It cannot be right that these actions should go any further. … This case shows what a civilized country we are. (Emphasis added) Mcllkenny v Chief Constable of the West Midlands (1980) – see see IRA bombings homepage.
How can it be an “appalling vista” that a wrongful conviction would be identified? As we now know the convictions were subsequently overturned in R v McIlkenny and others (1991) on the basis of the misleading ‘presumptive’ scientific tests which had been used to test for explosives. The outstanding reputation of one of the nation’s leading jurists was blighted for all time by the suggestion that a “civilised country” would prefer the incarceration of innocent people rather than suffer the embarrassment of owning up to error. The ultimate humiliation on the part of the system led to the Runciman Royal Commission and the establishment of the Criminal Cases Review Commission – the most significant institutional reform to the criminal justice system in modern times.
Could a similar thing be happening in Australia now? We know for example that similarly misleading presumptive tests (for the presence of blood) were used in the Neill-Fraser case. We know that the case was built on the basis of impermissible speculation and by ignoring the most fundamental rule of circumstantial cases:
A verdict of guilty cannot be returned unless the proven facts are such as to be inconsistent with any reasonable hypothesis other than that the accused is guilty. Guilt must not only be a rational inference, but it must be the only rational inference that the proven facts enable me to draw. The drawing of inferences from proven facts is different from speculation. There is no room in the criminal court for speculation or speculative theories. The State of Western Australia v Rayney [No 3] [2012].
(Emphasis added)
Everybody knows (or ought to know) that the supposed guilt of Ms Neill-Fraser is an “irrational and speculative inference”. Certainly the trial judge and the appeal judge admitted that speculation was involved – and we know from the Lloyd Rayney and Gordon Wood cases that speculation is not allowed. That alone is quite sufficient to have the conviction overturned.
Amongst a great many other things the speculation involved a scenario whereby Ms Neill-Fraser was in an inflatable dinghy, and pushing the dead body of her partner, together with a significant heavy fire extinguisher (to weigh it down) over the side. That would mean that the full weight of two adults plus the heavy extinguisher would be at or over the side of the small and inflatable dinghy – in the dark. A procedure which would be certain to de-stabilise or overturn the dinghy.
Brad Selway QC (former Solicitor-General of South Australia) has said that:
To say that a State government is subject to the “rule of law” does not merely mean that the government is required to comply with court orders, important as that principle is. It also means that the government has a positive obligation to ascertain for itself what the law is, and then to apply that law fairly and consistently. As the Privy Council put it:
It is the duty of the Crown and of every branch of the Executive to abide by and obey the law … it is the duty of the Executive in cases of doubt to ascertain the law, in order to abide the law, not to disregard it. The Constitution of South Australia (emphasis added).
Recently, a number of people, seeing the sense in the concerns which are being expressed about the safety of this conviction have written to the Attorney-General to request that he do something about it. He has replied to them to say that he could only act in such a matter where there is “fresh and compelling evidence” of a wrongful conviction. As a matter of law that is not correct – see the Moles / Sangha article which discusses this point in detail.
In Martens v Commonwealth of Australia (2009) the Federal Attorney-General had rejected an application on the grounds that there was no fresh and compelling evidence. The Federal Court spelled out very clearly that the Attorney had fallen into error. When an appeal is heard the court is not limited to acting on such a narrow basis. If it finds any error at trial (legal error at trial might have nothing to do with fresh evidence) the question is whether there is a significant possibility that the error would have affected the verdict of the jury. If there is such a possibility then the conviction must be set aside.
In Martens, the court said that the “fresh and compelling evidence” test was the wrong test, and that one cannot use a test for leave to appeal which is more demanding than the test to be applied on the hearing of the appeal. Mr Selway not only said that it is the duty of the Crown to abide by and obey the law, but he also said that it was their duty to find out what the law is.
In the Tasmanian Times on 2 December 2013 ( Australia Needs a National Response to Miscarriages of Justice ) I set out some reasons for being concerned about the responses to serious miscarriages of justice in Australia. In the article I said that we needed a national approach to the establishment of a Criminal Cases Review Commission (CCRC) in Australia. In passing, I made mention of the fact that we have done significant research on the deficient cases in South Australia, and that has led, in part, to the establishment of a new statutory right of appeal. I would like to explain a little further how that arose, and the severe limitations which have been placed upon it.
In 2010, I (with others) published the book Forensic Investigations and Miscarriages of Justice which set out the reasoning in support of the establishment of a CCRC. Upon publication of the book, Ann Bressington, an Independent Member of the Legislative Council put forward a Bill to establish a CCRC. That Bill was referred to the Legislative Review Committee which sought public submissions.
At the beginning of our submission we pointed out that Mr Martin Hinton QC (the current Solicitor-General of South Australia) had explained in an earlier article:
The resources that are mobilised by the State .. are immense by comparison to those generally available to the accused.
That everybody who comes before the courts is entitled to a fair trial is axiomatic…
.. the right of every citizen to unimpeded access to a court is a basic right…
an accused’s right to fair disclosure is an inseparable part of his right to a fair trial.
(Emphasis added)
The South Australian examples which follow are clearly not consistent with the above principles. However, before I discuss them, there is one important strategic issue which needs to be considered.
Defamation
Whenever we are dealing with potential miscarriages of justice, we need to discuss the possibility that a trial has miscarried for some reason. That is unlikely to have happened if everyone involved in the process has acted impeccably. Therefore discussions of miscarriages of justice are likely to involve criticisms, express or implied, of the conduct of some of those involved. Sometimes, people do not like to be publicly criticised. Those involved in criminal trials might be high profile lawyers or expert witnesses – just the sort of people who might ‘kick-back’ if publicly criticised for doing what they see as their duty.
The law of defamation has to be considered in this context. In relation to factual statements, “justification” (truth) is a defence to an allegation of defamation. In relation to a remark one has to establish that it is “fair comment on a matter of public interest”. It may be so even if the comment contains some error.
There are also special circumstances in which potentially defamatory statements can receive additional protection. If they are raised in the course of legal proceedings, then any accurate report of those proceedings will be subject to a legal or public interest immunity. In the book A State of Injustice, which covered a number of problem cases, I stuck very closely to this principle. Most of the factual statements about the cases were based upon trial transcripts and law reports, and most of the concerns which were raised were based upon those contained within legal submissions.
In this article I am taking advantage of another well-established rule – that of “parliamentary privilege”. This rule provides that any accurate report of parliamentary proceedings will have a good defence to any action in defamation. The following material was contained in my joint submission (with Bibi Sangha) to the Legislative Review Committee inquiry. However, the mere fact of putting in a submission is not sufficient to gain that immunity. What is required is that the submission be formally published by the parliament. Presumably the parliament will not publish material unless it considers it to be fair and reasonable and in the public interest to do so. We requested that they do that and they agreed. Our full submission was published by the Committee. The following is an extract from that submission.
Legislative Review Committee Submission
Dr Manock
Nearly all of the cases reviewed in A State of Injustice concern the work of Dr Manock, the former head of forensic pathology in South Australia. [Dr Manock’s background is explained in A State of Injustice, Chapt 5. He was appointed to the post of Chief Forensic Pathologist in South Australia in 1968 after having completed two six-month placements gaining on-the-job experience in forensic pathology in Leeds in the UK. So, when Dr Manock was appointed, he had no formal qualifications as a forensic pathologist.
The intention was that Dr Manock would study and get his examinations after he was appointed. However, it seems that Dr Manock did not do that. The IMVS [Institute of Medical and Veterinary Science] tried to appoint someone above him in forensic pathology, but Dr Manock took court proceedings claiming that this amounted to a constructive dismissal of him. He won his court action. As was pointed out in the ABC 4 Corners Program “Expert Witness”:
Dr Manock’s lack of qualifications was a growing concern as the head of the IMVS Dr Bonnin would later testify in court: “I tried to encourage Dr Manock – to study – and obtain his membership of the Royal College of Pathologists of Australia – ” “because we had a man who had no specialist qualifications in a specialist’s job, and without that this would have been a severe embarrassment.”
He added, “There are people who would claim that Dr Manock is not competent to do some of the work.”
Dr Bonnin also stated in his evidence, “[Dr Manock] was unable to do certifying the cause of death because his lack in histopathology.”
The question then arises, what was it that enabled Dr Manock to start “certifying the cause of death”? As the ABC reported:
Dr Manock was admitted to the College of Pathologists in 1971. It gave him the qualification he’d lacked, at least on paper. He was exempted from the normal five years of training and two written exams.
Dr David Weedon of the Royal College of Pathology said of Dr Manock’s oral-only examination: “It would probably have been about 20 minutes, and he would’ve been asked questions related to forensic pathology.”
The five years of training referred to was the minimum period of study needed to qualify as a forensic pathologist. To qualify as a histopathologist would take an additional 5 years of study.
Yet, it seems, Dr Manock completed no formal studies, had a 20-minute conversation about pathology, and then commenced “certifying the cause of death”. Looking back on it we can see that he went on to do that in 10,000 cases:
… in fact it’s shameful to think the autopsies of nearly 10,000 South Australian, men, women and children were certified by a man – not scientifically qualified to sign off on one. [ Graham Archer in Channel 7 Today Tonight (Adelaide) “Dr Manock and the Medical Tribunal”” ].
Of course, not all of those cases involved crimes. Any sudden death for which a medical practitioner does not issue a death certificate becomes a matter for the coroner. [See chap 3 “Autopsies” in A State of Injustice. ]
Some will no doubt turn out to be natural causes and others will turn out to be accidents. Some, of course, will result from criminal activities. However, if the person undertaking the classification of the cause of death does not understand the relevant procedural and scientific issues involved, then the resulting classifications will be unreliable.
The erroneous classification of accidental or natural-causes deaths as crimes can have devastating consequences as we will see from the case of Henry Keogh.
The erroneous identification of criminal-causes deaths as natural deaths can also be devastating as we will see from the baby-deaths case and the case of Peter Marshall.
The erroneous identification of the timing of deaths, as we can see from the Van Beelen and Szach cases, can result in the conviction of the innocent and the failure to search for the real perpetrators.
Whilst the issue in relation to the CCRC Bill only concerns those who may have been wrongly convicted, it is worth noting this broader dimension to the issue.
The South Australian cases
In South Australia there are approximately a dozen cases which we have researched, each of which comes within the criteria laid down by the High Court as constituting a serious miscarriage of justice. It is important to bear in mind that the appeal court is not seeking to determine guilt or innocence, but merely whether a substantial or significant error has occurred at trial. If it has and there is a possibility that the jury would have been influenced by it, then the conviction must be set aside. [See, Sangha / Moles, “The Law on Non-Disclosure in Australia: All Rights – No Remedies?” (2011) 8(8) DL 86-90].
Frits Van Beelen 1972 [See A State of Injustice chap 5].
In the early 1970s, Mr Van Beelen was convicted of the murder of a young girl on a beach near Adelaide. Timing of death in this case was crucial, because Van Beelen had only been at the beach for 30 minutes around 4pm. On the basis of an examination of the stomach contents of the dead girl, Dr Manock said it was “virtually certain” that the young girl was dead by 4.30pm. A scientific article was published soon after which demonstrated that such claims were not scientifically based. In fact, in another case a few years later the same pathologist was asked:
Counsel: And would you agree that estimates of time of death on the basis of stomach contents are very unreliable.
Dr Manock: I do agree with that.
It is clear that one cannot not be “virtually certain” on the basis of a method which is “very unreliable”.
Another person had confessed to the murder, but the police ruled this person out because the pathologist said that the girl had been raped after she died, and the person who confessed said that he had raped her before she died. As it turned out, the basis upon which this person was excluded from consideration had no proper scientific basis to it. Dr Manock had said that the injury the girl suffered was post-mortem because there was no bleeding associated with it. This means that it must have been at least an hour or two post-mortem (depending upon ambient temperatures) and this fact would also have excluded Van Beelen as a suspect.
There were many other criticisms of the evidence at trial. If the body had been placed where it was found at 4.30pm, then at around 8pm it would have been covered by about 3 feet of water. If that had occurred the radio found with the body would not have been working the following morning – which it was.
In addition, Dr Pocock, who gave evidence for the defence, made the following claims:
With regard to the diatoms, Dr Manock should have checked for their presence in the liver, kidney and bone marrow, not just in the lungs, as they can get there without drowning.
Dr Manock was incorrect when he said that salt water makes the lungs contract. There is no evidence for this in the textbooks.
The protein fluid in the lungs could have been caused by heart failure; therefore Dr Manock should have tested for drugs as a cause of death, which he did not do. If sea water had been there, the protein would not have been.
The body temperature and air and water temperature should always be taken when arriving at the scene and Dr Manock did not do that. The only exception is when the body is decomposed. A thermometer is quite cheap to buy.
The stomach contents had been frozen before detailed examination by Dr Manock, and this would have affected their composition.
While Dr Manock said that rigor mortis was consistent with death having occurred between 3.30 pm and 4.30 pm, he should have explained that it was also consistent with death occurring between 11am and 11pm.
Dr Manock said that hypostasis (lividity) showed that the body had not been moved, but it could have been moved before the hypostasis became established, which can take up to one to two hours after death, not 30 minutes as Dr Manock said.
Dr Manock said he had examined the internal organs microscopically, and had excluded other causes of death, but I don’t see how he could exclude epilepsy, for example.
Mr Van Beelen has always claimed to be innocent. In fact, in those days, a person convicted of murder would normally serve only 8 or 9 years. Mr Van Beelen served over 17 years because he continued to deny having any involvement in the matter. He still does.
Stephen Truscott’s conviction in Ontario in 1959 had been based upon similar evidence. It was overturned in August 2007 because the court accepted that such evidence was not reliable. Truscott was awarded $6.5 million in compensation.
David Szach 1979 [See A State of Injustice chap 6]
In 1979, David Szach had been convicted of the murder of criminal lawyer Derrance Stevenson. After being shot, Stevenson’s body was placed in a freezer where it was found the following day. Dr Manock said that he calculated a time of death. As it turned out this coincided with witness statements which placed Szach at the scene around that time. At the trial, the prosecutor said, “… the objective and scientific evidence means that he was dead by 6.40, and the accused was there.” Professor Bernard Knight, a world-leading authority on the issue of timing death based upon post-mortem cooling, said of the calculations in this case, “… all I can say is that in my opinion his reliance upon very speculative and tenuous calculations is ill-founded and that the degree of accuracy he offers cannot be substantiated.” He said in relation to another aspect of the calculations, “this to me appears to be a figure snatched from the air without any scientific validation.”
Dr Byron Collins, an independent pathologist from Victoria put it this way:
… it became obvious that the solution was more fundamental and could be produced by asking two simple and basic questions, they being –
i) Was the formula used by Dr. Manock appropriate and reliable? and
ii) Were all the variables (factors) employed in the equation accurately known?The answer has to be a resounding and disturbing NO to both questions!
He added:
Fundamental to the reliability of any formula is the accuracy of its individual factors. Quite simply none (apart from the liver value obtained by Dr. Manock) are known with any degree of comfortable certainty.
He concluded:
<
… it is my belief that Dr. Manock has unwittingly succumbed to the very real temptation of furnishing the Police with a piece of evidence (time of death) which cannot, in reality, be provided.
It was of course very significant in the conviction of Mr Szach.
At the present time, Mr Szach is suffering from motor neurone disease, and has publicly stated his desire to have his conviction reviewed before he passes away.
By letter dated 16 November 2011 Mr Szach has been informed by the Governor that the Attorney-General has advised as follows, “The Attorney-General has noted that you have not provided any new evidential material nor outlined the impact of any claimed error in the evidence of Dr Manock in the context of the issues in dispute at the trial.”
One can only say that the evidence of Professor Bernard Knight and that of Dr Byron Collins is new – meaning that it was evidence that was not available at the time of the trial. The impact of the claimed errors of Dr Manock are indeed made manifest in the Petition.
Gerald Warren 1992 [See A State of Injustice chap 6]
In the case of Gerald Warren, a young aboriginal boy found dead on a dirt track just outside Port Augusta, Dr Manock had initially stated that he died after having fallen from a moving vehicle whilst intoxicated. In other words, the death was as the result of an accident.
Subsequently two men were convicted of his murder on the basis that they had beaten him with a metal rod, and driven their vehicle backwards and forwards over his body whilst it lay on the ground. During the trial, when questioned about whether Warren had fallen from the vehicle or had the vehicle driven over him, Dr Manock stated, “the forces involved in either scenario are very similar.” He also stated that certain injuries may have been caused by being beaten with a metal rod with a thread on the end (as it appeared at trial) or perhaps by the corduroy fabric of his trousers coming into contact with his hand and face (as was initially stated in the autopsy report). It was his view that either scenario would leave similar injuries.
That of course was not correct.
As we pointed out in A State of Injustice, “An examination of the trial transcript in this case reveals a series of unscientific or unsubstantiated statements by Dr Manock.”
Mrs Emily Perry 1981 [See A State of Injustice chap 7]
Mrs Emily Perry had been convicted of the attempted murder of her husband by poisoning him with arsenic. In overturning the conviction in the High Court, Murphy J said that the prosecution’s evidence fell far short of the proper standard. He said that the investigation and interpretation of data should be presented to the court by people who are substantially and not merely nominally experts. He went on to say that some of the evidence in the case “revealed an appalling departure from acceptable standards of forensic science..” adding, “the evidence was not fit to be taken into consideration”.
Even after comments such as these by a justice of the High Court of Australia, nothing appears to have been done to the serious systemic errors which had occurred. As we pointed out in the Forensic Investigations book, where faulty scientific evidence is being put forward it represents, at least, systemic error in the forensic centre which should check and peer review its work and findings. It represents error by the prosecution, defence lawyers and the judge, because it is clear that in law such evidence is inadmissible.
Derek Bromley 1984 [See Petition of Derek Bromley 2010]
Derek Bromley was convicted of the murder of Stephen Docoza in 1984. It was alleged that Bromley had assaulted the deceased and had thrown his body into the water. It was said that he had died from drowning.
It was accepted that the body of the deceased had been immersed in water for five days. At trial, Dr Manock gave evidence concerning a number of injuries to the body which he variously described as resulting from blows, kicks, fists, contact with rough ground and possible karate chops. The injuries were said to have occurred shortly before death. Professor Plueckhahn an expert forensic pathologist, with special expertise of drowning cases stated, after having reviewed the evidence in this case, “It is my firm opinion that there is no scientific basis in the post-mortem findings for an unequivocal diagnosis of death from drowning.”
In addition, it is clear that where a body has been immersed in water for two days or more, it is not possible to distinguish between post mortem and ante mortem injuries and to identify particular causes of injuries.
Terry Akritidis 1990 [See A State of Injustice chap 9]
The body of Mr Akritidis was found at a remote location near Yankalilla in August 1987. It was said that he had fallen from a radio communications tower, collided with the roof of an adjacent building and bounced off that and landed on the ground nearby. It was said that the collision with the body had knocked a hole in the roof of the building about one foot square. It was also said that the roof of this building was made of concrete about 2.5 inches thick. It had ¾-inch reinforcing bars running through it in a 3-inch mesh. Yet it was also reported by Dr Manock that there were no substantial external injuries to the body of the deceased. Dr Manock said that the clothing might have been sufficient to reduce the severity of the injuries – Akritidis had been wearing a shirt and a pair of jeans. Dr Manock had calculated that the body would have struck the roof at about 100 kms per hour whilst falling “partially inverted” which means that the head would have been the first part of the body to strike the roof.
When asked if he had “read up” on the nature of injuries sustained after a fall from a significant height Dr Manock stated that he had read some of his own previous autopsy reports. As we said in A State of Injustice, “when bodies and concrete collide, the normal expectation is that the body will come off worst”.
Peter Marshall 1992 [See A State of Injustice chap 9]
The police found Peter Marshall, 35, lying dead in his home unit. He was next to his bed with blood pooling around his head. Dr Manock attended at the scene and concluded that Mr Marshall had died by falling out of bed and hitting his head. ‘There being nothing suspicious’ everyone went home and Marshall’s body was taken to the mortuary where nothing further was done until the following day.
During the autopsy, however, a bullet hole was found in Marshall’s head, and a bullet was found lodged in his brain. The Forensic Science Centre said that the standard practice in South Australia was that unless a late afternoon death was suspicious the autopsy was done the next day. If a crime was suspected, they said, a pathologist would start immediately.
The press reports said that the police ‘smarted’ over the delay. The crime-scene tape was put back up.
Baby Deaths 1994 [See A State of Injustice Chap 10]
Prior to the Keogh trial the Coroner of South Australia had conducted an inquiry into three baby deaths. The babies had each died in separate incidents. The autopsies had been completed by Dr Manock who was to give evidence in the Keogh trial. At the conclusion of the baby deaths inquiry the Coroner made some fundamental criticisms of the work done by Dr Manock. The Coroner said the pathologist must have seen things which could not have been seen (such as signs of bronchopneumonia) because it was subsequently found not to exist. The Coroner also said that the autopsies had achieved the opposite of their intended purpose – they had closed off inquiries rather than opening them up. He even said that the answers given to some questions at the inquiry, by the pathologist, were “spurious”.
However, the Coroner then decided that because the trial of Henry Keogh was under way, he would withhold his findings, until the matters in the Keogh trial had been resolved. He subsequently published his findings two days after Keogh had been found guilty. Michael Sykes (solicitor) produced an affidavit in court at Keogh’s second appeal which stated,
The Coroner said he was sensitive to the fact that Mr Keogh’s trial was proceeding at the time he was ready to publish his Findings. He knew that Dr Manock was a principal Crown witness. So as to avoid a mistrial he decided, of his own volition, to delay publishing the Findings until after the trial had concluded.
It was Kirby J who stated that the fruits of an investigation are the “property of the public to be used to ensure that justice is done”. Clearly that view was not taken in this case. The failure to disclose the Coronial Findings in this case, prior to the conclusion of the Keogh trial, amounts to a serious prosecutorial non-disclosure. That alone would totally justify the verdict in the Keogh case being set aside.
Henry Keogh 1995 [See A State of Injustice chap 11 and chap 12 and Losing Their Grip].
It was alleged that Henry Keogh had drowned his fiancée in a bath at their home. At first the police determined that the death was not suspicious. However, during the autopsy, Dr Manock said that he had found signs of homicidal drowning.
Henry Keogh’s conviction for murder involved a significant range of non-disclosure issues.
Normally in an appeal there will be various claims and counter-claims about the evidence given at trial and what subsequently becomes known about that evidence. The competing claims will then have to be settled by the appeal court. In the Keogh case the key contentions about the unsatisfactory nature of the evidence at trial have already been resolved by sworn evidence in other proceedings. Various complaints were brought before the Medical Board and the Medical Tribunal in South Australia, and it was there that the various medical witnesses who had given evidence at trial provided new insights into the state of their knowledge, at trial and since. The results of the various proceedings and appeals is that neither pathologist was found to have engaged in unprofessional conduct. However, this is not the same issue as determining whether their non-disclosures might have caused a miscarriage of justice.
This submission is based upon subsequent disclosures about the evidence at trial which are non-contentious. They are based mainly upon sworn admissions by the prosecution witnesses at trial. To be effective in any appeal, the defence does not have to rely upon them as statements of truth. Their existence as sworn statements which contradict the sworn evidence at trial by the same witnesses, is sufficient to establish the unreliability of the evidence of those witnesses at trial.
Although in Keogh’s case, major deficiencies in the Crown case have been revealed since the trial and the appeal, no court has yet considered them in terms of the safety of the conviction. All the court proceedings to date have focussed upon procedural matters – whether and in what circumstances the court might be entitled to hear an appeal.
The grip
At trial the chief pathologist said that someone (presumably Keogh) approached the woman (Keogh’s fiancée) whilst she was in the bath and suddenly grabbed her left leg with his right hand, pulling the legs up, and pushing her head under the water with the left hand. Dr Manock said that he could infer this to be the case because he had seen marks on the left leg of the deceased which he thought to be grip-marks. When he was asked about this later at the Medical Board proceedings he said that it had always been his opinion that the marks to the leg had been caused by a left hand. [Losing Their Grip chap 11]. This might well have affected the jury?s assessment of the situation at trial, because they had been told that the left hand was holding the head under the water.
Consciousness
It was important to the scenario put forward by the pathologist to show that the deceased had been conscious when her head entered the water, so as to rule out a slip-and-fall scenario leading to unconsciousness and accidental drowning. At trial, the pathologist stated that he could infer that the woman was conscious when she went into the water because he had seen no damage to the outer surface of the brain at autopsy. Later, at the Medical Tribunal, he said he then accepted that the principle he had relied upon at trial had not been a valid one.
The stark contrast to the evidence led at the trial and this new evidence is succinctly summarized in the reasons of the Medical Tribunal which read:
445 The evidence establishes, and Dr Manock now accepts, that a person can suffer a loss of consciousness without any sign of injury on examination of the exterior of the body or the brain. The opinion which Dr Manock formerly held and gave to the jury was wrong.
However, since then, Dr Manock has stated that this finding can be supported by other evidence or findings not mentioned at trial. [See discussion of this, 26 January 2010, Channel 7 Today Tonight (Adelaide)]. Even if this were to be the case, it could not be taken into consideration in any appeal, as a conviction cannot be maintained on the basis of evidence not put to the jury at the trial. [Osland v The Queen].
Diagnosis of drowning
Similarly with the principle essential to the diagnosis of drowning. Variously referred to as the “aortic staining” or “differential staining” principle. At trial it was said to be a “classical” sign of drowning. Later, in the Medical Board, it was acknowledged by Dr Manock that he was not aware of any support for the principle in the scientific literature in the context of the diagnosis of drowning:
Mr Borick: You’ve heard me put to Dr James the list of textbooks written over the last three decades and you’ve heard me say to Dr James that there is absolutely no reference in any of the texts to staining of the aorta being – whether associated with the pulmonary artery or not – associated with diagnosis of drowning?
Dr Manock: That’s quite correct.
Mr Borick: You were aware of that when you decided to come to your diagnosis?
Dr Manock: Yes.
Mr Borick: That, in other words, the rest of the world thought differently to you?
Dr Manock: No, the rest of the world hadn’t caught up.
Existence of bruising
In addition, both the chief and the deputy pathologist admitted at the Medical Board that they had not disclosed the potentially exculpatory result of a forensic test; a slide taken from one of the marks on the leg which did not show any evidence of bruising. At trial the jury had been told that all of the slides showed evidence of bruising. Dr Manock said that the issue did not “come up in conversation” with the prosecutor. Dr Ross James said that he did not think the test result was relevant. [This was the principal issue in Keogh v James and see Losing Their Grip chap 11].
Timing of bruising
It is to be noted that this issue was addressed by Dr Manock in the recent Channel 9 60 Minutes program. His evidence at trial was that they were ‘recent’ and ‘within 3-4 hours of death’ to ‘within 24 hours’. [Losing Their Grip chap 10]. It now seems that he accepts that even this outer limit may have been too narrowly drawn:
Karl Stefanovic: You’ve got photos of a bruise, but you don’t know how long it had been there for.
Dr Manock: No. It doesn’t mean to say…
Karl Stefanovic: So it could have been there three days before or four days before.
Dr Manock: We couldn’t say …
Karl Stefanovic: It may not have been caused during …
Dr Manock: That’s quite right.
Karl Stefanovic: Your theory about how she died …
Dr Manock: That’s quite right.
Karl Stefanovic: That’s astonishing.
Dr Manock: It is.
Karl Stefanovic: Shouldn’t the jury have known that?
He accepted that they may have been caused even days before the death. This is not what he said at the trial. There, he stated that the bruises were caused close to the time of death. Certainly within 4 hours of death.
Causal connection of bruises to the leg
Dr Manock admitted that the bruises (if they existed) may well have occurred in circumstances unconnected with any homicidal assault. Yet, at the trial it was made clear that they were part of a grip. Dr Manock said that he couldn’t think of anything else they could be. The prosecutor made it clear that if they were a grip mark, then that was virtually conclusive of a homicidal assault:
In his summing up to the jury, the prosecutor, Mr Rofe QC, had said that: “the bruising on the lower left leg, if that is a grip mark, is almost in itself conclusive … if her lower left leg was gripped by someone just before she died, then that must indicate murder’”
Mr Rofe also referred to ‘the one positive indication of murder, namely the grip mark on the bottom left leg.’
He summed up in this way: “If those four bruises on her lower left leg were inflicted at the same time, and that time was just before she died in the bath, there is no other explanation for them, other than a grip. If it was a grip, it must have been the grip of the accused. If it was the grip of the accused, it must have been part of the act of murder.”
It appears that this compelling (to the jury) evidence of homicidal assault is now not compelling at all.
At trial, the pathologist said that the deceased had died as a result of drowning after her head was pushed backwards beneath the water. At the Medical Board he gave evidence to the effect that he had merely assumed that the water was sufficiently deep to enable drowning in this manner. He had not checked the depth of water in the bath at the time, and neither then nor since had be ascertained what the depth of water in the bath was. This means that his evidence with regard to drowning in this manner should not have been admitted at trial.
Ramsay v. Watson concerned a patient’s medical history. The court said that if the history is not supported by admissible evidence, then the opinion may have little or no value, for part of the basis of it is gone. In fact, the evidence in Ramsay was not merely of little or no value, but inadmissible. The court there took the view that the total failure to seek to prove the factual basis which was said to have informed the opinion, justified total rejection of the evidence.
Dr Manock agreed that his scenario depended on the depth of the water, and as he said in his evidence to the Medical Board, “and we don’t know what it is”. As Dr Manock said at the Medical Board proceedings, if the bath was only half-full it would have meant that the scenario which he propounded would not have been possible. Significant expert evidence has been provided to show that the bath could not have been more than half-full.
The Baby Deaths
As we have seen, the serious non-disclosure of the Baby Deaths Coronial Findings would, on its own, justify the setting aside of the verdict in the Keogh trial. It is true that the Findings were available to Mr Keogh’s lawyers prior to the appeal in this case. Regrettably, Mr David QC failed to mention them in the course of the appeal.
Mr Sykes had taken over the conduct of the Keogh case after the appeal. He completed an affidavit in the following terms:
I asked Judge David [Mr David QC had been promoted to be a District Court judge in the meantime] if he would make an affidavit deposing to reasons as to why he did not raise in the appeal any issue relating to the Baby Deaths Coronial Findings by the Coroner in relation to Dr Manock. Judge David declined. He informed me that once they were published he had considered them, but could not see how they could assist Keogh. As the Findings only came out after the trial he did not have time to consider them in more than an embryonic level and was without the opportunity for an in-depth analysis prior to the appeal being heard.
The Findings were 90 pages and there was three months between the trial and the hearing of the appeal. Mr Sykes also stated in his affidavit:
The Coroner said he was sensitive to the fact that Mr Keogh’s trial was proceeding at the time he was ready to publish his Findings. He knew that Dr Manock was a principal Crown witness. So as to avoid a mistrial he decided, of his own volition, to delay publishing the Findings until the trial had concluded.
For completeness, Mr Sykes had Henry Keogh complete an affidavit in the following terms:
The question arose whether the defence should raise at trial the issues being reported in the press by the Coroner in relation to Dr Manock’s work in the Baby Deaths cases. Mr David said that it would not be necessary as the expert witnesses he was to call for the defence would be sufficient.
After the trial, I was advised that Mr David was confident in the grounds of appeal which he had filed, and that the Baby Deaths Coronial Findings, handed down after the verdict, were neither here nor there. I was not given a copy of the Findings, but was given to understand that they would not assist my case.
Sworn and signed by Henry Vincent Keogh.
17 December 1996.
As we have seen, the law is quite clear in holding that a non-disclosure of this type warrants the trial verdict being set aside. [Cooley v The State of Western Australia].
The procedural confusions
The problem with getting any review of such cases is that the Attorney-General’s department does not appear to apply the principles laid down by the High Court for the setting aside of such convictions.
In the Bromley case, it was said that it would not be referred back to the court because, “the Attorney-General’s advice is that none of the arguments made in the petition casts any doubt upon the veracity of the verdict.” Yet none of the High Court cases setting out the basis upon which an appeal might be allowed requires the court of appeal to be satisfied that the verdict is “true”. In fact, there are many cases where the High Court disavows any notion of usurping the function of the jury. As we saw earlier, the key issue is whether the evidence “contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force.” [M v The Queen]. We might also ask how an Attorney-General could be satisfied that the verdict of the jury was true, if the evidence upon which it was based was unreliable?
After the ABC 4 Corners program in 2001, the Hon Nick Xenophon suggested the setting up of an inquiry into the issues raised. As we pointed out in Losing Their Grip:
The Attorney-General (Trevor Griffin, Liberal) addressed the motion on 14 November. He said that he did not intend to establish an inquiry into the matters raised because the program did not accurately represent the facts. He said that he had looked at some material that had come from Dr Ross James, the then Chief Forensic Pathologist [and prosecution witness at the Keogh trial], which stated:
“With regard to the Cheney case the program was mischievous in the sense that there was no material presented which had not already been available to the defence experts before the trial took place.”
It rather looked as though Dr James (pathologist) was commenting upon the adequacy of the legal process (clearly not his area of expertise) and one in which he had been involved (possible conflict of interest). In any event, the response was not correct. As we have pointed out, at the time of the trial, no-one knew about the Coronial Findings in relation to the baby deaths, because the Coroner had not disclosed them until after the trial was concluded. In addition, the exculpatory result of the forensic test on the bruise on the inside of the left leg had also not been disclosed. The fact that Dr James and Dr Manock knew of this but had not disclosed it was not revealed until the Medical Board hearing some years after the 4 Corners program. The disclosure of the result itself in the program was clearly new.
A common claim to have been made in relation to this case, and one which was supported by the Attorney-General and the DPP at the time was that, “…the verdict did not depend on Dr Manock’s evidence.”
As we pointed out in Losing Their Grip:
Once Dr Manock’s evidence had been put before the jury, it would be inappropriate for an Attorney-General to suggest that a jury would not have been influenced by it. They would have had a legal duty to take it into account. Neither the Attorney-General, nor anybody else, would know what weight the jury attached to it, as it would be unlawful (in the Australian legal system) for anyone to discuss such things with jury members after the case.
As we explained earlier, whilst the substantive law makes it clear that convictions of the sort we have described should be set aside, there is, at present, no procedure by which that can be achieved.
Some years ago it was suggested that a Royal Commission be established to inquire into the matter. At that time, the then Premier stated, “well, I wouldn’t however think that a Royal Commission would be the way to go, Royal Commissions simply cost money.” [Channel 7 Today Tonight (Adelaide) 23 August 2002].
Perhaps now, “the way to go” would be to establish a Criminal Cases Review Commission.
(End of Submission to the Legislative Review Committee)
The Recommendations of the Legislative Review Committee
It is important to note that the Committee in its report recommended the establishment of a Forensic Review Panel with the power to refer problematic cases to the Court of Appeal for review. This would be similar to a CCRC but restricted to forensic issues. The Committee also recommended a review of the way in which expert witness evidence was used in criminal trials. The South Australian government refused to adopt either of those two recommendations.
The third recommendation from the Committee was taken up. That was the recommendation to establish a statutory right to a second or further appeal. As we have noted, the new legislation came into force in South Australia on 5 May 2013. However, it should be noted that an important role for the CCRC is its powers of investigation and inquiry. It is entitled to access any documents held by a public authority – in particular, those held by the police and prosecutions departments. A significant number of convictions in the UK have been overturned on the basis of information found on such files which had not been disclosed to the defence.
Also, the CCRC can retain its own independent experts to review the forensic evidence given at trials with a view to assessing its adequacy. A number of convictions have been overturned in the UK on the basis of incorrect or unreliable forensic evidence having been given at trial.
A bare right of appeal without any assistance to investigate possible errors at trial is, of course, very limited, and most people who have been wrongly convicted will be unable to progress their cases without such assistance.
There is also one further impediment to progressing appeals under this new right of appeal. The Legal Services Commission has determined that where people have been convicted and served their sentences, they will not be entitled to any legal aid funding to assist them with their appeal. David Szach had applied for such assistance and been refused by the Legal Aid Commission. The Commission said that it must prioritise funding for those who face the prospect of imprisonment. As Mr Szach had served his sentence and was not at risk of being returned to prison, he therefore did not come within the funding criteria.
He subsequently wrote to the Ombudsman complaining that such a blanket refusal of legal aid was inappropriate. The Ombudsman subsequently stated that such refusal was reasonable. The following is the substance of Mr Szach’s submission to the Ombudsman.
The principle of prioritising people who face potential periods of imprisonment above those who do not may have been suitable for the circumstances in which the principle was formed. However, because of the Statute Amendment Appeals Act 2013 (SA) a new situation has arisen and will require the application of a new principle designed specifically for the new circumstances.
The Act was passed, no doubt, because the Australian Human Rights Commission (AHRC), in their submission to the Legislative Review Committee (LRC) stated that the current appeal arrangements, throughout Australia, failed to comply with international human rights obligations. Obviously the LRC agreed which is why it recommended in the final report the establishment of a new statutory right of appeal. In turn, the Attorney-General and the Parliament of South Australia agreed which is why the new statutory right of appeal was enacted without a single dissenting voice being raised. This, of course, was not something which would have been done lightly.
The first right of appeal in criminal cases was established in South Australia shortly after the enactment of the Criminal Appeal Act 1907 (UK) and was based upon it. The recent South Australian amendment is the first substantive change to those appeal rights in 100 years. As the appeal rights throughout Australia have been in ‘common form’ throughout that time, one might reasonably expect that other states will enact similar legislation in the near future. At least, that was the view expressed by Michael Kirby in his recent article in the Financial Review.
However, if the ability to pursue this right of appeal is prevented by the inability to brief counsel because of the lack of legal aid, then there is still a failure to conform to international human rights obligations. It has just been shifted from the parliament to the Legal Services Commission. It should be noted that in the submission to the AHRC, and to the LRC, it was pointed out that the obligation in the ICCPR [International Covenant on Civil and Political Rights] to comply with its provisions apply to “all citizens” which obviously includes the officials of the LSC and the Ombudsman. In addition, the ICCPR states:
Part II Article 2. 3.1. To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, and that [3.1.2.] competent authorities shall enforce such remedies when granted.
(emphasis added)
It was also noted there that:
The Australian Human Rights Commission makes it clear that Australian law has held that: It has been accepted that a statute of the Commonwealth or of a State is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law.
It adds, “the content of Australia’s international obligations will therefore be relevant in determining the meaning of these provisions”.
A principle which states that legal aid will not be provided for any such cases under the new statutory right of appeal would be in breach of those international obligations and of the Australian authorities which require recognition and implementation of them.
Significance of the right to appeal
The comments of the LSC appear to suggest that where a person has served their sentence, the matter is no longer of any great urgency or moment.
it appears that the only purpose for an appeal would be to have the conviction quashed, with no other practical benefit to be claimed by your client. While this may be of some significance to your client, the fact that any appeal will have no affect at all on his liberty, which he regained sometime ago, means that it would be inappropriate to spend limited public legal aid funds on this case.
(Emphasis added)
One practical benefit might be the ability to make a claim for compensation for the wrongful conviction which has occurred. Another might be to the wider community which might be put on notice that a person who has murdered a prominent member of the legal community is still at large and not being sought by the police. There appears to be no consideration of the fact that Mr Szach’s children might obtain considerable benefit from knowing that their father is not a murderer.
In the UK since 1997 the CCRC has been responsible for the overturning of some 350 convictions. A significant number of those appeals have involved what are referred to as “historical” cases – those where the person has long since finished their sentence. In none of those cases has it been suggested that because a person has served their sentence there is any less public interest in having an authoritative determination of their case. Indeed, in 4 cases in the UK, appeals were brought on behalf of those who were deceased – because they were hanged after their conviction.
R v Derek Bentley (Hanged 1952) conviction overturned 1998.
R. v. Mahmoud Mattan (Hanged 1952) conviction overturned 1998.
R v George Kelly (Hanged 1949) conviction overturned 2003.
Keep reading: HERE
• Court of Criminal Appeals decision in Sue Neill-Fraser case, HERE
• Evan Whitton: The investigative system is better in every respect
