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[This page has been prepared by Dr Robert N Moles
Underlining where it occurs is for editorial emphasis]

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Adelaide Review August 2008:

Keogh - a correction by Michael Jacobs

Attentive readers may remember that last month this paper published a piece by me about a Supreme Court decision: Justice Bruce Debelle overturned Medical Board finding against Dr Ross James of unprofessional conduct. It all concerned an inconclusive microscope slide and arguments about the existence of a much-discussed bruise on the inner calf of the woman of whose murder Henry Keogh was convicted in 1995. Mr Keogh is still serving his sentence. A campaign against his conviction continues.

In that piece, while discussing some of the media treatment at the time of the Medical Board decision, I wrote: ‘Then, we had Today Tonight rabbitting excitedly about Dr James being “in disgrace” for having been censured – the lowest available penalty – for a supposed lapse in a courtroom 13 years ago. We had the assertion that the evidence was “crucial”, which was on any fair view no better than contestable. We had Dr Bob Moles telling viewers it was “the most serious finding you could have against a professional medical expert witness”. This hardly squares with the lightest available penalty, and it sits oddly against the Board’s power to suspend someone from practice, or even to find them unfit to practise at all. And so it went on.’

I was wrong to describe the Board’s powers that way. The Board had the power to fine as well as censure. The other actions could only follow a referral of the complaint to the Medical Professional Conduct Tribunal. In other words, if you take out the word Board’s from the passage quoted, I would have described the position accurately. And the sentence would still reflect my opinion of the grab which Today Tonight chose to use.

Letters – On the Keogh case- Dr Bob Moles, Adelaide

In The Adelaide Review July 2008 Michael Jacobs has put forward his further opinion in relation to the Henry Keogh case. His previous contribution was in November 2004 when his article was entitled “Premise trips over the law – and common sense”. As one might glean from the title of these articles, Jacobs takes the view that fairly basic errors have been made by those who support the claims for a review of the Keogh case. Yet, when one analyses the points being made by Jacobs, one quickly discerns that it is Jacobs who is in error.

The matter of concern in the latest article by Jacobs is the failure of public comment on the recent decision by Justice Debelle in the case involving Dr Ross James. Jacobs said that Justice Debelle had comprehensively demolished any argument that James had been guilty of unprofessional conduct. He then adds in his final sentence in his article that “Mr Keogh has the right still to appeal against Justice Debelle’s decision”. That appeal has now been filed and it states that there are numerous errors in the Debelle judgment of both law and fact. Of course, there is little to be pleased about whichever way the matter is ultimately resolved. If Justice Debelle were found to be correct, it would mean that the Medical Board of South Australia has reached two decisions in this case, and both of them have now been overturned by the courts. If Justice Debelle’s decision is overturned on appeal, then it will constitute just another deplorable delay in facing up to the obvious – that the forensic evidence in the Keogh case was and is, fundamentally flawed.

However, it is Jacob’s reasoning in his articles which should get most people scratching their heads. In his earlier article he stated, “If there really is a deep and systemic tendency to miscarriages of justice in our system, can it be that no-one else has been moved to speak out?” He obviously thinks that because other people have not spoken out about these things - then those who do must be wrong.

In his latest article he states, “no juror has emerged, as they sometimes do in controversial cases, to speak of uneasiness about the verdict.” Are we to understand from this that the failure by jury members to express concern indicates that they are unconcerned about what has happened? Clearly Jacobs thinks that to be the case. Yet this fails to take into account the provisions of the Criminal Law Consolidation Act 1935 - S 246 “Confidentiality of jury deliberations and identities in South Australia”. This provides that jury deliberations are ‘protected information’. It states that a person must not disclose protected information, a person must not solicit or obtain protected information (with the intention of publishing it) and a person must not publish protected information. It follows that even if Jacobs (or others) knew about such jury member disquiet in the Keogh case, neither he nor others would be allowed to publish that fact.

Jacobs then states that the penalty imposed upon Dr James by the Medical Board was “the lightest available penalty” and sits oddly against the Board’s power to “find them unfit to practice at all”. In fact the Board has no such power. The most the Board can do is to censor a person, suspend them for one month or impose a fine. Keogh’s lawyers did not ask the Board to either suspend Dr James for one month or to fine him, because that would have been quite daft given the context that Dr James has retired, and a fine would be trivial in the context of the seriousness of this situation. The fact that the Board had found Dr James guilty of unprofessional conduct was all that Keogh asked the Board to do – and that they did.

[This paragraph was not included in the published version of my letter:

The final matter worth mentioning is one which I referred to in my previous response to the earlier article by Michael Jacobs. I pointed out that he should, in my opinion, have disclosed that he had a personal interest in this matter. His father, Sam Jacobs, was previously a Supreme Court judge and was also Chair of the Forensic Advisory Group in South Australia, when many of the cases we have been critical of were being dealt with. In this more recent article, lauding Justice Debelle, the Jacobs connection should also have been acknowledged as a potential conflict of interest. As the Chief Justice stated in his speech on the occasion of Justice Debelle’s recent retirement, Debelle had been “a member of the firm of Stevens, Jacobs, Mellor and Bollen from 1965 until 1974. Justice Debelle, in his speech on his retirement from the Supreme Court, stated, “I am especially delighted that Sam Jacobs is here today. I owe so much to him”. It would in my opinion be much better for your readers, and for the State of South Australia, if you were able to reflect upon the merits of the issues involved in these important cases, rather than to use your pages to advance and promote the ‘we’re all in this together mates’ scenario, which Jacobs junior seems to favour. ]

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