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[This edited version of the report has been prepared by Dr Robert N Moles]

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Monday 16 July 2007 - Channel 7 Today Tonight (Adelaide)

The Forensic Science Centre and autopsy investigations in South Australia

In order of appearance

Leigh McCluskey, Presenter
Professor Kent Roach, Research Director Goudge Commission of Inquiry and Professor of Law, University of Ontario
Graham Archer, Producer and interviewer
Dr Bob Moles, legal researcher and author

Program

Canadian News Report

Reporter: Now, some shocking revelations expected this afternoon following a lengthy review of autopsies involving Ontario children dating back 15 years. Lets go to Queen’s Park now where CTV’s Paul Bliss has been working on this story.
Paul Bliss: Tim, all of the autopsies involve a man named Dr Charles Smith and reports say he made mistakes in at least 20 autopsies involving children and in some cases it led to people being charged and in some cases sent to jail.
William Mullins Johnson: I’m still dealing with the stigma of the conviction – the stigma of the assumptions made…

Leigh McCluskey

Now that’s the kind of introduction to a show this program ought to be able to present to you based on the results of our investigations into miscarriages of justice in this State, but tonight you’ll see why this hasn’t happened. You’ll see just how far short our government falls from delivering accountability in this State. And you’ll also see why we need an Independent Commission Against Corruption, now more than ever. And on top of that, we’ll show you how original documents which helped prove that Henry Keogh was wrongly convicted have been destroyed. Here is Graham Archer with this special report.

Professor Kent Roach

On a personal level, as a parent, about the worst thing that can happen is to have a baby die, but to have that aggravated by errors in the pathology, which may in some cases lead to charges or even wrongful convictions – that is just about the worst thing anyone can imagine

Graham Archer

And even more tragic if you as a parent are the person wrongly accused?

Professor Kent Roach

Absolutely.

Film Footage Canadian CTV

Mother: Only Joshua knows at this point that I never harmed him; that I never hurt him - that I was a loving and caring mum.

Graham Archer

The one thing miscarriages of justice cases have in common is that they happen everywhere. What is different is the way that various authorities respond.

Professor Kent Roach

I think that in my country, Canada, we've now had about 7 or 8 public inquiries into wrongful convictions so I think that people are starting to understand the point and to accept that they do happen. What we've got to do is to put more effort into preventing them and finding remedies when they do happen.

Graham Archer

Visiting Adelaide is Kent Roach a Canadian lawyer working on a Government Inquiry analysing what happened in a series of wrongful convictions recently exposed in his State of Ontario.

Professor Kent Roach

Part of the mandate is to make systemic recommendations to help restore public confidence in paediatric pathology.

Graham Archer

It centres on the appalling case of Ontario's former Chief Paediatric Forensic Pathologist Dr Charles Smith - and as you'll see it has some disturbing similarities to our experiences in Adelaide.

Canadian News Report

Reporter: And so it goes with case after case linked to Dr Charles Smith ...

Graham Archer

Forty four of Dr Smith's autopsies dating back to the early 1990's have been reviewed by the State's Chief Coroner revealing he made shocking errors in almost half of them.

Canadian News Report CTV

Mother: My innocence…  

Reporter: Louise Reynolds spent two years in jail charged with murdering her child. Dr Charles Smith concluded the little girl was stabbed - but after two years in prison the charges were dropped when it was concluded the girl was mauled by a dog.

Graham Archer

The bungles are made more poignant by the fact the deceased were babies and small children. The errors have had the most devastating consequences for family members and parents wrongly accused of murdering their own children. Or allowing the real killers to go free.

Canadian News Report CTV

James Lockyer, lawyer with AIDWYC [Association in Defence of the Wrongly Convicted]: She spent a year in jail for something that never happened. She lived with the aura of being a killer of her own child, for all those years.

Graham Archer

Having accepted there's a problem, the Ontario Government has acted decisively. Setting up a commission to enquire if similar things have occurred elsewhere and if so what can be learnt from how other jurisdictions have responded.

Professor Kent Roach

We hope to learn something from other countries, including Australia.

Graham Archer

An enlightened approach - and Adelaide is now on their radar. The misdiagnosis of baby deaths has a tragic resonance here. This State’s former Chief Forensic Pathologist Dr Colin Manock is our version of Dr Smith.

Professor Kent Roach

Well there's obviously interesting parallels to the Dr Smith cases in Ontario

News footage Adelaide baby death case

Mother: He was such a happy baby. He didn’t deserve to die the way he died.

Reporter: He was on this earth for 9 months and he suffered. But what actually happened in the early hours of Tuesday morning that resulted in her infant suffering 15 fractured ribs and a broken spinal column?   

Graham Archer

Dr Manock's findings that the deaths of three battered infants in the early 1990's were due to natural causes derailed any chance that the possible culprits would ever be brought to justice.

Professor Kent Roach

Part of making recommendations about institutional fixes for the future is to understand why institutions didn’t seem to be able to respond when there were warning signs about individual pathologists.  

Graham Archer

The trouble is our authorities did worse than nothing. The coroner withheld the findings of Dr Manock's incompetence until after he'd given evidence leading to the conviction of Henry Keogh. Evidence we now know also to have been flawed. The ongoing determination to deny these errors is in many ways more alarming than the errors themselves.

Dr Bob Moles

We risk a significant slide into chaos within the legal system itself.

Graham Archer

It also ensures we learn nothing. Without remedying the past we can’t protect the future and public confidence continues to ebb away.

Professor Kent Roach

A lot of the expectations that the public has about science and the administration of justice are shattered.

Graham Archer

Sadly there are numerous examples of our system failing but never being held to account. Consider the Canadian case of William Mullins-Johnson - wrongly imprisoned for 12 years.

Canadian News Report CTV

Reporter: Convicted in 1994 in the rape and murder of his four year old niece, partly on the evidence of Dr Smith. He was eventually released after a review of evidence found the toddler died of natural causes.

Mullins-Johnson: I hope you understand nothing was done to my niece, not by me and not by anybody else.

Graham Archer

The cause was that Dr Charles Smith lost crucial evidence. The results were tragic.

Canadian News Report CTV

Mullins-Johnson: Something was made out of nothing and my whole life was taken from me.

Graham Archer

Now consider this local example that's been buried since 1974. An inquiry was ordered into the circumstances of death of a woman in a public hospital. Dr Manock was asked to review the medical evidence. However, this letter from the Crown Solicitors to the family explains why the inquiry would never be held.

Extract from letter from Crown Solicitor

The entire medical file has been lost. Between them, a Government Investigator and Dr Manock left the files on the edge of his waste paper basket. “Assuming .. that Dr Manock would return them to the cupboard.”

Graham Archer

Well he didn't. They were in fact picked up – but by the office cleaners, and the whole file was “… destroyed in the furnace in accordance with the cleaner's usual practices the following day."

Graham Archer

End of inquiry. End of case. No questions asked. What's your view about losing evidence?

Professor Kent Roach

I think it is important to remember that forensic pathologists act as part of the criminal justice system and they have to be concerned about issues relating to the preservation of evidence.

Graham Archer

There have been countless other examples of course, many hidden away. But examples too as the Keogh case demonstrates of our experts excusing errors rather than rectifying them. Despite unanimous world opinion that the diagnosis used for drowning in the case was unscientific - experiments have been conducted recently by the same department regarding Dr Manocks conclusions. Author and law academic Dr Bob Moles.

Dr Bob Moles

In my view it is totally inappropriate - and it couldn’t be regarded as serious research.  

Graham Archer

But here's something even more worrying which has just come to our attention. Original documents dumped by Forensic Science SA bearing the names of deceased persons. How ethical does that appear to you?

Dr Bob Moles

Its totally unethical in my view. First of all I see the name of an individual on the form whom I assume is a deceased individual.

Graham Archer

Bad enough. But there's something particularly troubling about these documents. They appear to be a part of a survey into whether bruising can occur after death - caused for instance by ambulance staff or mortuary technicians lifting up bodies by the wrists and ankles.

Graphic of document which shows

Scene

Bruises of ankles No

Bruises of wrists No

Lifted by wrist Yes No

Lifted by ankles Yes No

Dr Bob Moles

This seems to me an unorthodox procedure and experimentation with a deceased body

Graham Archer

And would you need ethics clearance for that kind of activity?

Dr Bob Moles

Absolutely. And I would be very surprised if you would get ethical clearance for it to be conducted in this way.

Graham Archer

Post mortem bruising as its known is highly relevant to the Keogh case, as Dr Manock failed to consider it as a possible cause for the bruising on Anna Jane-Cheney’s lower legs.

Dr Bob Moles

The “bruising” on the leg of the deceased was always attributed to Henry Keogh - and we know a number of ambulance officers handled the body post-mortem - and they could have well caused that bruising.  

Graphic of document

Mortuary

Bruises of wrists Yes No

Bruises of ankles Yes No

Graham Archer

What's fascinating is that these discarded records reveal an ankle bruise on one body was caused exactly that way. After death - by mortuary or ambulance officers grasping the ankles to lift the deceased. The document states the bruise was found “under the thumb position”

Dr Bob Moles

According to these forms, they have conclusive evidence it seems that, of course, it happens.  

Graham Archer

And they threw them away?

Dr Bob Moles

Absolutely

Graham Archer

It directly challenges Dr Manock's evidence. And provides an innocent explanation for the bruising. But the original evidence has been thrown in the bin.

Professor Kent Roach

It's just not in the public interest because you don't know what the evidence may or may not have established.

Graham Archer

The difference between our approach and the Canadian one couldn't be more starkly drawn. In fact they have in addition to the Commission of Inquiry a truly independent body called The Association in Defence of the Wrongly Convicted. Made up of expert volunteers which also helps keep their systems accountable - as in the Dr Smith case of -  

News Report CTV AIDWYC Press Conference

Marlys Edwardh: Read these lips Mr Attorney. Hold a transparent public Inquiry. Ee are participants in the administration of criminal justice. We daily have seen the damage done by bad science and now we deal with bad pathology.

Professor Kent Roach

I do think it is an essential element. Personally, I would also argue that a Criminal Cases Review Commission is also an essential element so there are public resources as well as private and charitable resources devoted to these issues.

Graham Archer

On the other hand we have nothing. Last week after calling the Salvos “liars” - the Premier Mike Rann went on the record rejecting the need for an Independent Commission Against Corruption in this State, because:

News footage Mike Rann

We've got the Auditor General and we've got the Solicitor General and when these matters have come up before, as you know, I refer them to the two watchdogs who are independent, totally independent.

Graham Archer

It's the exact opposite to his stance in opposition regarding the independence of the Solicitor-General.

News file  footage Mike Rann in Opposition

He's the Solicitor-General for the government of the day and that why he shouldn't be doing this enquiry.  

Graham Archer

His protest back in 1998 - that the Motorola Inquiry couldn't possibly be independent if conducted by the Solicitor-General - because he was the Attorney-General's lawyer - was supported by Mr Rann’s entire party:  ...

P. Holloway: The Attorney-General would be aware that the Solicitor-General is not independent of Government.

Carolyn Pickles: The Solicitor-General is not independent of Government.

Dr Bob Moles

If he full fills his legal duty to the Attorney-General he has to act in the best interest of the Attorney General. Plainly that is not the same as acting in the interests of the general public.

Graham Archer

And when you learn that the current Solicitor-General's Report on the Keogh case remains a secret document and is out of reach of Freedom Of Information, its a sign we need a truly independent body now more than ever before.

Dr Bob Moles

Well look, if we can’t have a body looking at cases of ongoing corruption, then what hope do we have of looking at past cases?

Graham Archer

Meanwhile, in the state of Ontario, they can be reasonably confident their Dr Smith tragedies will not easily re-occur. We have no such guarantee.

Professor Kent Roach

We should acknowledge our mistakes, try to repair the harm from our mistakes and most importantly learn from our mistakes

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