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Keogh v James [2009] SASC 258

[This judgment has been edited by Dr Robert N Moles - Underlining where it occurs is for editorial emphasis]

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External link to full text of Keogh v James

28 August 2009 Judgment of The Full Court

[Editor: it is interesting to note that this judgment contains no citations of legal authority for the propositions which it contains. Also, it fails to refer to numerous legal authorities of the High Court of Australia and of the UK and Canada which contradict the approach being taken here]

The Honourable Chief Justice Doyle, The Honourable Justice White and The Honourable Justice Layton

Professions and Trades - Health Care Professionals - Medical Practitioners - Disciplinary Proceedings  - Professional Misconduct and Unprofessional Conduct

Appellant convicted of murder - respondent, a forensic pathologist, gave evidence at trial of appellant - respondent opined that bruises on deceased's left leg indicative of grip marks - respondent did not disclose in evidence that he had examined tissue taken from a mark on the medial side of deceased's left leg and formed the opinion that it did not confirm that the mark was a bruise - appellant filed complaint against respondent in Medical Board alleging that failure to disclose opinion that examination of tissue did not confirm that the mark was a bruise constituted unprofessional conduct - Medical Board found respondent guilty of unprofessional conduct - single Judge allowed appeal against decision of Medical Board - appeal against decision of single Judge.

Held: respondent's opinion that bruises on leg were consistent with grip marks did not rely on the existence of a bruise on the medial side of the deceased's left leg - respondent never said that the mark was a bruise - in evidence, respondent denied seeing the mark or a photo of the mark - counsel at trial did not explore with the respondent the existence or otherwise of a bruise on the medial side of the left leg - failure to disclose opinion not unprofessional conduct when regard had to the forensic context in which the respondent gave evidence - appeal dismissed.

Medical Practitioners Act 1983 (SA); Supreme Court Civil Rules 2006 (SA) r 295, referred to.

James v Keogh (2008) 101 SASR 42; R v Keogh (unreported, Supreme Court of South Australia, Court of Criminal Appeal, 22 December 1995, judgment no. S5397), discussed.

DOYLE CJ:     

Dr James is a forensic pathologist.  In 1995 he gave expert evidence at the trial and re-trial of Mr Keogh for Ms Cheney’s murder.  The jury could not reach a verdict at the first trial.  Mr Keogh was convicted at the second trial.  Dr James commented on aspects of the autopsy carried out by another pathologist, Dr Manock, and commented on conclusions that Dr Manock drew from his findings.  [Editor: in fact he had been asked to conduct a "review" of Dr Manock’s work] Since then Mr Keogh has maintained his innocence.  Various attempts have been made by supporters of Mr Keogh to have the case re-opened.

In November 2004 and in April 2005 Mr Keogh laid complaints against Dr James before the Medical Board under the now repealed Medical Practitioners Act 1983 (SA).  He complained that Dr James had been guilty of unprofessional conduct. The complaints arise from the evidence that Dr James gave at the trials.

The first complaint is that Dr James was guilty of unprofessional conduct because he failed to state or disclose in his evidence that a sample of tissue taken from the medial side of Ms Cheney’s left leg failed to support Dr Manock’s opinion that the mark was a bruise. The second complaint is linked.  It is to the effect that that failure, standing alone or coupled with answers that he gave to questions at the trials, resulted in him giving false or misleading evidence before the jury, and that he failed to correct the false impression that his evidence gave.

Dr James does not dispute that when he reviewed the autopsy findings by Dr Manock, he carried out a histological examination of a particular sample of tissue, was of the opinion that it did not support a conclusion that a particular mark on Ms Cheney’s left leg was a bruise, and that he did not state this fact and opinion in the course of his evidence.

The underlying issue is whether, when the circumstances in which he gave evidence are considered, his failure to disclose this information amounts to unprofessional conduct. Mr Keogh made other complaints against Dr James, but they are no longer relevant.

After a hearing the Medical Board, in April 2008, found Dr James guilty of unprofessional conduct.  The Board was of the opinion that Dr James should have disclosed the histology of the mark in question.  It did not accept Dr James’ explanations for failing to do so.  In all the circumstances the Board considered that a censure was sufficient.

On appeal to this Court, a single Judge set that finding aside, and substituted an order or finding that Dr James was not guilty of unprofessional conduct:  James v Keogh [2008] SASC 156; (2008) 101 SASR 42 at [105].  The Judge said:

As James did not act in breach of any of the duties of an expert, he has not been guilty of either improper or unethical conduct.  It is manifestly clear from the review of the forensic context that James did not act in bad faith and did not intend to mislead the judge or the jury.  He acted honestly.  He neither intended to mislead the judge or jury nor did he.  He disclosed all relevant information.  He had disclosed his view that he had not seen a bruise on the medial side of the left leg.  James did not act incompetently or negligently when giving his evidence.  To the contrary, he clearly expressed his views in his evidence.  I am entirely satisfied that James is not guilty of unprofessional conduct.

Mr Keogh now appeals against that decision.  He argues that the Board’s finding should be restored. I would dismiss the appeal.

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.  The circumstances of the case are out of the ordinary, and it is only when they are properly understood that Dr James’ evidence can be assessed.

A procedural issue

By r 295 of the Supreme Court Civil Rules 2006 (SA) an appeal lapses unless it is set down for hearing within six months after the appeal is instituted. Mr Keogh’s solicitors did not set the appeal down within that time.  Accordingly, the appeal lapsed in January 2009.  The precise date on which it lapsed depends on the allowance made for public holidays, but there is no need to calculate the precise date. On 5 May 2009 Mr Keogh applied for an order extending the time within which to set down the appeal.

At the commencement of the hearing of the proposed appeal, the Court heard submissions on this application, and considered affidavits filed by the solicitors for Mr Keogh.  The Court made an order dispensing with the setting down of the appeal, intending thereby to reinstate the appeal.  The Court said that it would give its reasons in due course.

I joined in that order for these reasons.  The appeal was duly instituted.  Dr James was aware of its institution.  Mr Keogh’s solicitors failed to set down the appeal because they and counsel were distracted by the pursuit of further enquiries about the slides prepared as part of the post mortem and viewed by the experts.  The explanation is not an adequate one, but at least provides the reason for the failure.  Dr James’ solicitors were aware of Mr Keogh’s wish to pursue the appeal.  They were not led into thinking that the appeal had been abandoned.  Mr Keogh’s solicitors indicated, within a reasonable time, their intention to apply for an order extending the time.  There is no prejudice to Dr James if the order is made, other than the prejudice that flows from the fact of the delay.

Background

The prosecution case against Mr Keogh was circumstantial.  There was evidence capable of supporting a conclusion that Mr Keogh had a motive to kill Ms Cheney, and had the opportunity to do so.  There was no doubt that Ms Cheney died from freshwater drowning in the bath at her home.  [Editor: In fact there is considerable doubt about this. The autopsy report states that the airway of the deceased was “packed with gastric contents” and many would take the view that this was inconsistent with a diagnosis of drowning].

The issue was whether the drowning was accidental or deliberate.

Dr Manock carried out an autopsy on 20 March 1994.  He wrote a post-mortem report dated 29 April 1994.  He gave evidence at both trials, as did Dr James.  The defence called two expert pathologists.  Professor Cordner gave evidence at both trials.  Dr Ansford gave evidence at the second trial only. 

The evidence of Dr James and Professor Cordner at each trial was tendered before the Board.  It appears that some, but not all, of Dr Manock’s evidence was also before the Board, although exactly what the Board had before it in this respect is not clear.

In brief, Dr Manock said that at the autopsy he found marks on Ms Cheney’s left leg which he described as bruising.  He gave the opinion that those marks were consistent with grip marks, and that they supported a hypothesis of deliberate drowning as the cause of death.  There were other areas of bruising (for example, on Ms Cheney’s head) that he said were consistent with or supported his hypothesis.  This part of his evidence, and the hypothesis that he advanced, is conveniently summarised in the reasons of Matheson J in R v Keogh (unreported, Supreme Court of South Australia, Court of Criminal Appeal, 22 December 1995, judgment no. S5397) at 16-17.  Matheson J there said:

On the basis of the external injuries he observed and his opinion that the cause of death was fresh water drowning, Dr Manock said:

"If the person is sitting at the plug end of the bath and an arm is put underneath both legs to grip the left calf, either by simply lifting or lifting the leg and pushing the head, then the head could slide under the water.  At this time, the edge of the bath could cause bruising to the back of the neck or the muscles attached to the base of the skull.  If the movement is then continued and the legs are folded over entirely, this would have the effect of trapping the arms by the sides of the bath and the top of the head would then be against the top of the bath and that would give a flat surface that could cause the bruising to the top of the head.  The left leg has been gripped.  However, the right leg is merely encompassed by the arc of the arm and can move.  If it thrashes around, it will bang itself against the edge of the bath and may produce bruising along the border."

He went on to say that action such as that just described would produce rapid unconsciousness.  He said that during drowning there is a quiescent period before death, and then there is a further muscular spasm.  A person may lose consciousness and remain relatively quiescent for a period, and then have a final struggle.  He said the deceased would have had little chance to shout.  This was significant because a near neighbour did not hear any noise, although she did have the television on.  Dr Manock said there may have been a little bit of banging on the sides of the bath by the arms or the hands.  He did not think that would produce any visible bruising because the presence of the water would restrict the speed at which the limbs would move and so reduce the violence by which they could strike the side of the bath.

Referring to this aspect of the case, the Judge below said:

[10] The post-mortem on the body of Ms Cheney was conducted by Dr Manock, then head of the Forensic Science Centre in Adelaide.  Dr Manock produced a written report of his findings dated 29 April 1994.  James took no part in the post-mortem.  Manock concluded that the immediate cause of death was fresh water drowning.    

[34] At both trials Manock was the first pathologist to give evidence.  The transcript of his evidence at the first trial was not before the Board.  Aspects of his evidence were put to James and to Professor Cordner in the course of their evidence, the transcript of which was before the Board.  Manock had described the bruising on the left and right legs of Ms Cheney.  He said that there were three bruises above the left ankle, a bruise on the medial or inner side of the left ankle, and a line of seven bruises along the shin of the right leg.  He had expressed the opinion that the bruising on the left leg was consistent with grip marks.

At each trial, Dr James and Professor Cordner gave evidence commenting on aspects of Dr Manock’s findings and on his hypothesis.  Dr Ansford gave evidence on the same issues at the second trial.  In broad terms, Dr James supported Dr Manock’s hypothesis (on the basis of the findings made at autopsy).  The other two experts cast doubt on the hypothesis, raising doubts as to whether the bruises were caused at about the time of death, and as to whether the pattern of bruising supported what I will call Dr Manock’s grip theory. 

The manner in which Dr James became involved is significant.  As I said earlier, Dr Manock performed the autopsy, and provided a written report dated 29 April 1994.

After Mr Keogh was committed for trial, the Director of Public Prosecutions wanted some information about the post-mortem findings.  Dr Manock was overseas.  In December 1994, the Director, according to an affidavit from Dr James that was before the Board, orally asked Dr James:

… If I would read through the depositions and give him my opinion on various matters that were highlighted in the depositions.

This evidence is not disputed.  The highlighted parts of the depositions were not available to the Board or on appeal.  In the affidavit Dr James added that he was told that there were “some issues” about which the prosecution and defence counsel were concerned, but again there is no evidence as to what those issues were. 

I am prepared to assume that Dr Manock’s finding of bruising, and his grip hypothesis, were part of the subject of this enquiry.  But I emphasise, because it is of some relevance, that the precise basis upon which Dr James was asked to express an opinion is not clear.

Dr James reviewed Dr Manock’s report, the histology slides that were prepared as part of the post-mortem process, three bags of photographs that were taken as part of the process, and he also reviewed a toxicology report.  As I understand it, he reviewed everything left by Dr Manock arising from the post-mortem.

A short statement in the form of a deposition for the purposes of a preliminary examination was prepared and signed by Dr James on 22 December 1994.  It consists of only six paragraphs, referring to particular matters.  I set out only the two paragraphs that are of direct relevance to the present case.  In these Dr James said:

5. Bruises.  There appears to be a line of 7 bruises along the right shin, 3 bruises above the left ankle, 2 bruises to the back of the head above the neck and one large bruise to the right of the top of the head (vertex).  The bruises appear to be recent in that the histology (microscopy) of 3 bruises shows no obvious reactive changes.  Colour photographs may, or may not, have been helpful.  The photographs using the Polylight do not appear to me to have been helpful.  I am not sure if the soft tissues below the knees were exposed to see if any other bruises were present.

6. Opinions concerning the bruises.  A bruise on the head would certainly raise the possibility of a fall in the bath with complicating drowning.  The 3 bruises to the head, all widely separated are not consistent with a simple fall in the bath.

The bruises to the legs raise the possibility of grip marks and assisted drowning.

Of some significance is the fact that Dr James in para 5 refers only to three bruises above the left ankle.  If the relevant mark on the medial side of Ms Cheney’s left leg is treated as a bruise, then there is a fourth bruise.  At least with the benefit of hindsight, it is apparent that Dr James says nothing about that mark and possible fourth bruise.

Dr James makes no comment in his report on that aspect.  As I noted earlier, neither the Board nor the Court were told the terms of the request to Dr James, but it also has to be said that Dr James has not suggested that the terms of the request deflected him from making any comment on the apparent difference between his finding and that of Dr Manock. 

Mr Keogh was tried in February 1995 and in August 1995.  There was no evidence before the Board, or before the Court on appeal, so far as I am aware, about discussions between the Director of Public Prosecutions and Dr James about the issues on which he would be asked to express an opinion at trial, or about what were thought to be the contentious issues at trial.  There might or might not have been such a discussion. 

The Board was told that Dr James was made available to defence counsel, and that defence counsel took advantage of the opportunity to discuss aspects of the autopsy with him.  The Board was also told that Dr James had discussions with Professor Cordner before he gave evidence.  Before the first trial Professor Cordner also reviewed the autopsy findings, and had access to the same material as Dr James.  Professor Cordner also read a copy of Dr Manock’s report, Dr Manock’s evidence at the preliminary hearing and Dr James’ report:  James v Keogh at [36].  He studied the slides containing the tissue samples.

The issue and its context

The present case arises from the circumstance that in his report, and in his evidence at the two trials, Dr James says nothing about the fact that in the course of his review he examined a slide containing tissue said to be taken from what Dr Manock said was a bruise on the medial side of Ms Cheney’s left leg. 

In October 2001 a Four Corners television program, broadcast by the Australian Broadcasting Corporation, examined aspects of the trial and conviction of Mr Keogh.  Dr Thomas, a histopathologist, apparently said that in his opinion the slide of tissue taken from the mark on the medial side of the left ankle of Ms Cheney did not reveal histology capable of establishing that the mark was a bruise: Keogh v James at [48].  In response to this Dr James wrote on 30 October 2001 to the Director of Public Prosecutions, saying that on this point he agreed with Dr Thomas.  I mention this incident because the Judge referred to it, although it appears of itself to have had no consequence. [Editor: in fact, this was of very great consequence, because it was the first time that those advising Mr Keogh learned of Dr James opinion on this matter]

In 2004 Mr Keogh laid a complaint before the Board against Dr Manock, alleging unprofessional conduct by Dr Manock in giving evidence at Mr Keogh’s trial.  In connection with that hearing, Dr James swore an affidavit that was tendered by the legal representatives of Dr Manock.  In that affidavit, Dr James referred to the fact that he had prepared a report for the Director of Public Prosecutions, and had reviewed the “histological samples”.  In his affidavit he said:

I recall that one area that Dr Manock and I differed was that the body chart he had drawn showed that there was [a] bruise on the inside left ankle.  When I looked at the histological section purported to have been taken from this area, I would not have described what I saw in the sample as a bruise.

It appears to be this disclosure that later led to Mr Keogh laying a complaint against Dr James. 

It is important to add immediately that, as he has consistently pointed out, the explanation for that finding could be that the tissue that was removed did not contain the bruised area, or was not from the bruised area, or could be that the relevant mark was not a bruise. [Editor: This possible answer would have been of considerable value to those advising Mr Keogh at his trial if they had known of that possibility]

Dr James has also consistently maintained that the absence of a bruise on the medial side of the left leg did not negative the grip theory, and meant no more than that further support for the theory was not present.

The Judge made a significant finding about the forensic context in which Dr James gave evidence at each trial.  The Judge said at [39]:

[39] It is apparent from this review of the evidence of the forensic pathologists that the issues at the first trial in relation to bruises on the left leg of the deceased were the age of the bruises and what was the cause of those bruises.  There was no issue whether any of the bruises, including the mark on the inner side of the left leg, were in fact bruises.  It is also to be noted that there was no dispute that the immediate cause of death was fresh water drowning and that was also the position at the second trial.

Later in his reasons the Judge said at [81]-[82]:

[81] At the outset, it is apparent from the summary earlier in these reasons of the evidence of the pathologists at the two trials that the issues at the second trial concerning the bruising on the left leg were not whether any of the marks on the left leg was or was not a bruise but, instead, the age of the bruises and what had caused them.  That was the issue at the first trial and remained the issue at the second trial notwithstanding that it was clear that James had said in the first trial that he had not seen a bruise on the medial side of the left leg. 

[82] Another aspect of the forensic context is that James had disclosed that he did not see a bruise on the medial side of the left leg of the deceased and that his opinion that the marks on the left leg were grip marks did not depend on the existence of a bruise at that point.  An examination of the forensic context demonstrates that, notwithstanding the disclosure by James of that fact, the other experts proceeded on the footing that there was a bruise on the medial side of the left leg.  It will be relevant also to examine how the evidence unfolded and what was known by those advising Keogh before the second trial.  It also demonstrates that James disclosed to Cordner his belief that the slide of tissue sample from the left leg of the deceased did not confirm that it was a bruise but, despite that disclosure, Cordner said that he had an open mind on the issue.  Cordner’s response leads to the clear inference that the forensic pathologists were not concerned with the question whether or not such a bruise existed.  Had the defence pathologists believed that the existence or non-existence of a bruise on the medial side of the left leg had any relevance to their opinions as to the causes of the bruising on that leg, they would have said so and the issue would have been pursued.  It was not.  Instead, the issues were the age of the bruises found on the legs of the deceased and how those bruises had been caused.

After considering the Judge’s reasons, the submissions by counsel and the relevant passages of transcript, I agree with the Judge.  There was no dispute at trial, and as far as I am aware there has been no dispute since, [Editor: in fact the affidavit of Dr Tony Thomas doubts whether any of the so called bruises to the left leg are in fact bruises]

that with the exception of the mark on the medial side of Ms Cheney’s left leg, the marks described by Dr Manock as bruises were bruises. 

All along the issue was whether they were caused about the time of death, and whether the configuration of the bruises and their location supported Dr Manock’s grip hypothesis. 

I do not propose to go through the evidence yet again.  The Judge has done this in his reasons.  I agree with his conclusion. 

There are two further observations by the Judge which are important.  They deal with what Dr James said and did not say in his evidence, as distinct from the forensic context.  At [32] the Judge said:

[32] In order to have a proper appreciation of the issues and the submissions in this appeal, it is important to bear in mind that James did not in his evidence in either the first or the second trials say that there was a bruise on the medial or inner side of the left leg on Ms Cheney.  The effect of his evidence was that he had not seen any mark on that part of her left leg but, if there was a bruise at that point, [Editor: Straker makes it clear that expert witnesses are not allowed to speculate on matters which have not been proved to exist by admissible evidence]

it confirmed his opinion that the three bruises he had seen on the left leg were consistent with grip marks.  The relevant parts of his evidence will be quoted later in these reasons. 

He made the same point at [91]-[92] and at [97].

Once again, I agree with the Judge’s finding or observation, and I agree that the Judge’s finding or observation is supported by his analysis of the transcript of the evidence given at trial.  This point is significant for two reasons. 

First, Dr James never said that in his opinion the mark on the medial side of Ms Cheney’s left leg was a bruise.  Second, on a number of occasions, by implication, at the least he raised a doubt, or indicated that he had a doubt about this.  Sometimes the doubt was expressed as relating to a photograph, said to show the bruise, which he said he did not recall seeing.  Sometimes the qualification was unrelated to the photograph.  One example of this is found in the extract from his statement of 22 December 1994 set out above.  Another example of such evidence is given by the Judge at [35]:

[35] In his evidence, James said that the immediate cause of death was fresh water drowning.  In his view, there was not much doubt about that.  He was asked to comment on the bruising that Manock had seen on the legs of the deceased.  He said that he had seen photographs of all of them save for the bruise on the medial side of the left ankle.  He was asked if the bruises were consistent with a grip.  The evidence was as follows (TX - 519):

Q. I think you noted Dr Manock had observed some bruising along the legs.

A. Yes.  He described that in his report and I did see photographs of those bruises with one exception.

Q. The exception being.

A. Well, what he described was a collection of three bruises more or less in a row above the left ankle, a bruise on the medial side of that left ankle and a line of seven bruises along the shaft of the right shin.  I’ve seen photographs of all of those bruises except for the one on the medial side of the left ankle.  I don’t recall seeing a photograph of that.

Q. From what you observed in the photographs, the bruising on the left leg, the three that you did see – did they appear consistent with being caused by a grip, by fingermarks.

A. Particularly if there was in fact a bruise on the medial side of the ankle, then a grip is the obvious interpretation.

He was then asked when the bruising had occurred.  He answered that in his view the bruising had occurred within several hours of death.  In cross-examination he said that the “likeliest explanation” is that the bruises represented grip marks from fingers but agreed that they are consistent with other causes.  He agreed that the bruises could have occurred up to four hours before death.

Hindsight is always helpful.  But I find it difficult to accept that when Dr James gave evidence that qualification went unnoticed by all involved.  Of itself, this is not an answer to the criticism that Dr James said nothing about his examination of the relevant slide.  But it is significant that he qualified his evidence in the manner in which he did, because he flagged the fact that he had a reservation about the mark on the medial side of the left leg.

The passage just set out reflects a further significant point.  The absence of a bruise on the medial side of the left leg did not undermine Dr Manock’s grip hypothesis. [Editor: of course it did]  I have already made that point.

Nevertheless, it is the case that Dr James said nothing in his evidence about the opinion he formed after viewing the slide with tissue said to be taken from the area of bruising on the medial side of the left leg.

The criticisms of Dr James

Mr Borick QC, counsel for Mr Keogh, submitted before the Judge, and submits on appeal, that Dr James gave misleading evidence relating to whether he saw the photograph of the mark on the medial side of the left leg (Exhibit P53), and as to the slides that he examined and what they described.

The Judge rejected this submission.  Once again, I agree with the Judge.  I do so taking into account my agreement with the Judge, already indicated, in relation to the forensic context and in relation to the qualification expressed by Dr James in giving evidence about the mark in question.  The Judge deals with this submission in his reasons at [97]-[98], [105], [119]-[125].  There is nothing to be achieved by me setting out yet again the relevant passages of evidence, and making my own summation of them.  It suffices to say that I agree with the Judge.

I content myself with these further observations.  When examining the transcript of Dr James’ evidence it is necessary to pay careful attention to the circumstances in which that evidence was given.  The forensic context is highly significant.  I accept that that context deflected attention from the question of whether the mark in question was a bruise.  The presence of the qualification in Dr James’ evidence is also relevant when considering Mr Borick’s submission that by omission Dr James in effect concealed material information, namely, the opinion he formed after the histological examination of the slide.  Mr Borick submits that this was concealment by omission.

As I have already said, the forensic focus was on the age and cause of the bruises, there being no contest that the marks were bruises, and on whether the pattern of bruising supported the grip hypothesis.  A doubt about one of the bruises (that is, the doubt in Dr James’ mind) could easily be thought to be unimportant in that context.  [Editor: Keogh’s counsel at the trial could have made a great deal of such a doubt at trial – if he had known of it]

Again, I make the point that the absence of a bruise on the medial side of the left leg did not negative the grip hypothesis.  [Editor: yes it does]

Dr James regularly qualified his evidence by saying that if the fourth bruise was there, it added support to the grip hypothesis. 

When considering the submission by Mr Borick it is also pertinent to bear in mind that some parts of the transcript are somewhat obscure.  It is not always clear what Dr James is saying. [Editor: most unfortunate in a murder trial. If the Chief Justice cannot understand it, how could the jury be expected to?]

That is not a criticism of Dr James.  It is a common experience that the written transcript cannot always adequately capture the oral interchange in court.  One also has to bear in mind that in answering questions Dr James was in the position of one who had reviewed Dr Manock’s findings, was at times being referred to the opinions and findings of other pathologists, and was relying on memory and notes for some matters of detail.  In my opinion it is not at all surprising that, at times, there are minor contradictions in the evidence, and uncertainty about the slide to which he is referring.  One also has to acknowledge that by and large the role of the expert witness is to answer the questions put, [Editor: the Code of Ethics makes it clear that if there is something which the expert should bring to the attention of the court, that should be done whether asked about it or not] although I do not suggest that that is a universal and exclusive prescription.

Taking everything into account, I have no hesitation in agreeing with the Judge that a submission that Dr James gave misleading evidence should be rejected.  I emphasise that in reaching this conclusion I have not made my decision by considering the impact on the jury of the evidence of Dr James.  The fact that the evidence was given in a jury trial is part of the context.  But I agree that the primary issue is whether Dr James discharged his duty as an expert, and not whether a failure to do so could be excused on the basis that it would not have misled the jury.  My conclusion is that Dr James did not give misleading evidence, when the context and circumstances are taken into account, and when his evidence is read making due allowance for the circumstances under which it was given. 

Nor do I accept the further submission by Mr Borick that Dr James should have appreciated a need to volunteer the opinion that he formed after the histological examination of the relevant slide, and to explain that on this basis there was no histological confirmation that the mark on the medial side of the left leg was a bruise.  I accept, of course, that an expert witness should disclose the basis of his opinion, the facts found or assumed by the expert, and matters material to any opinion that the expert expresses.  [Editor:what the judge says about the duty of disclosure appears to be inconsistent with his finding in the first sentence]

The expert should disclose material relevant in this sense whether it assists or harms the case being made by the party by whom the expert is called.  Mr Edwardson QC, counsel for Dr James, accepted that that was the duty of Dr James.

But once again, bearing in mind the forensic context and the overall circumstances, my opinion is that Dr James was under no such obligation in the circumstances. 

[Editor: there is no legal authority for saying that “the forensic context” and “the overall circumstances” (whatever those expressions mean) can remove the obligation of disclosure upon an expert witness in this way]

When an expert steps into the witness box the expert is, to some extent, under constraints.  The expert is expected to answer questions.  No doubt a greater latitude is allowed to expert witnesses than to other witnesses, when it comes to volunteering information, or supplementing an answer with material that is not a direct answer to the question.  This is not to say that there was no opportunity for Dr James to volunteer the relevant information.  There probably was.  It might be said, by way of a minor criticism, that he could have done so.  But when I have regard to the same context and circumstances, I do not agree that the failure to volunteer the information in question was a breach of his duty as an expert witness.

In reaching that particular conclusion I am influenced by a further factor.  Dr James had discussed his findings and opinions with the Director of Public Prosecutions, with defence counsel and with Professor Cordner.  The question of what was said about the mark in question, if anything, was unexplored, subject to the Judge’s finding that Dr James communicated his doubt to Professor Cordner.  In my opinion, before one found that a failure to volunteer information was a breach of Dr James’ duty, one would need to be satisfied that having regard to the circumstances in which he became involved, and to his conversations with counsel, the circumstances nevertheless called for disclosure during the course of evidence.

The importance of this latter point can be illustrated by reference to a portion of the cross-examination of Dr James by Mr Borick before the Medical Board during the hearing of the complaint against Dr Manock.  Dr James gave evidence before the Board in proceedings against Dr Manock.  That evidence was before the Board on the hearing of the complaint against Dr James.  Mr Borick referred to the fact that Dr James made no reference to the histological findings.  He reminded Dr James that, in relation to the mark on the medial side of the left ankle, he had “decided that it was not a bruise”.  Dr James had not in fact so decided, rather he had decided that the histological examination did not support the finding that it was a bruise.  The following questions and answers then followed:

Q You were supposed to have had discussions with defence counsel, Mr David, about all matters pertaining to this.

A I did, yes.

Q Did you tell him that.

A I can’t recall.  I don’t have notes of my discussion with Mr David.

Q Presumably you, on such an important issue, would have told him about that.

A The basis of my talking to Mr David was to assist him as far as possible in the preparation of his defence.

Q It would have assisted him to tell him that the most important mark in the case, which was supposed to be a bruise, was not a bruise.  That would have helped him, wouldn’t it.

A I disagree with your proposition.  I don’t think the most important part of the whole case is that. [Editor: it is difficult to know how a forensic pathologist could possibly determine what was or was not important parts of the case the accused has to answer. Of course, this is not part of their duty]

The cross-examination then moved to another aspect of the evidence about the particular mark, in the course of which Dr James emphasised that he did not say the mark was not a bruise.

It is significant that Mr Borick did not put to Dr James that he had not discussed the histological findings with Mr David, and as can be seen, Dr James could not recall whether he had or not.

[Editor: one might take the view that such an important issue should not be left to recall, but should be committed to writing as stated by the Splatt Royal Commission. Professor Tilstone, who had been the boss at the Forensic Science Centre, said investigators should never act on any opinion of a forensic scientist until it has been committed to writing]

On this point I am also of the opinion that Dr James is entitled to point to the qualification that he regularly expressed in relation to the mark in question, beginning with his written report to the Director of Public Prosecutions.  I do not consider that the qualification was so subtle that it would have gone unnoticed, and Dr James was entitled to think that if counsel wished to explore the qualification with him, counsel would do so.

For those reasons, I reject the submission that Dr James gave misleading evidence, and the submission that in his evidence he should have volunteered information about the histological examination of the mark.  That leaves the broad question of whether, nevertheless, the failure to disclose the fact of the histological examination, and the opinion that he formed, is a breach of his duty as an expert.  My conclusion that there is no such breach flows from what I have already said.  In short, the forensic focus was on the age of the bruises and the significance of the patterns.  The presence or absence of a bruise on the medial side of the leg was not crucial, [Editor: it is not possible for an appellate judge to determine whether or not such an issue was “crucial” in the context of the criminal trial – for that would be to usurp the function of the jury. Also, it was not "crucial", but if they lawyers had known the true state of affairs it would very quickly have become "crucial"]

Dr James qualified his evidence about the mark in question.  In my opinion, under all those circumstances, he discharged his duty to the Court. 

I should emphasise that I am not suggesting that an expert is entitled to take the passive approach that it is the job of the Court or of the questioner to extract from him or her appropriate concessions or information.  To take that approach would not be consistent with established principle.  My conclusion is that Dr James was entitled to take the view that there was no need to volunteer the information in question in all the circumstances.  [Editor: these propositions appear to be contradictory of each other]

To the extent that one might say that he erred, [Editor: at least admitting the possibility of error]

the circumstances provide sufficient justification for one to say that the error should not be categorised as unprofessional conduct.

 The reasons of the Board

I mean no discourtesy to the Board in leaving a consideration of its reasons until last.  I have found it convenient to focus first on the matters already considered, and to go directly to my conclusions.  It is appropriate that I should now explain why I have differed from the Board.

The Board identified the relevant aspects of the complaints laid before it as follows.  First, a complaint that Dr James did not disclose the histology of the mark in question during the criminal proceedings.  Second, a complaint that Dr James gave false or misleading answers during the course of his evidence in relation to the mark, and a complaint that the failure to disclose the histology of the mark alone, or coupled with the provision of false information, had the potential to give rise to incorrect impressions of the evidence that he gave, which incorrect impressions he did not correct.

In the evidence that Dr James gave before the Board on the hearing of the complaint against Dr Manock Dr James was asked to explain his failure to disclose the fact of his histological examination of the particular slide, and the opinion that he formed after doing so.  He gave three reasons.  They were, in effect, as follows. 

First, he was not asked [Editor: The passive response?] about the histological examination. 

Second, the topic was not something that would alter the conclusion that the marks in question were bruises. [Editor: This seems absurd – how could the negative result from a scientific examination not be relevant to the presumptive conclusion reached prior to that examination? This is precisely the error considered in the Linday Chamberlain Royal Commission and in the IRA bombing cases where presumptive tests were masquerading as final results]

And third, he did not think that the topic was particularly relevant.  [Editor: there are an abundance of cases which explain that it is not for the expert witness to determine the relevance of scientific findings to the case]

The Board examined these explanations.

The Board rejected these explanations.

As to the first explanation, the Board said that as an expert witness Dr James should not have required “… a specific direct question as a trigger for disclosure about the histology of the mark”.  As a general proposition, I respectfully agree.  However, taking into account the forensic context, and the overall circumstances, I have already explained why in my opinion it was not incumbent upon Dr James to volunteer the information, having not been asked directly about it. [Editor: again, the basic duty of the expert is being removed on the basis of “the forensic context” and “the overall circumstances” without any legal authority being cited – and without any specific meaning being attributed to those vague expressions]

As to the second explanation, the Board said that it reflected “… a flawed and untenable understanding of his role as an expert witness”.  The Board said that the slide was “the only direct information” relating to the mark, and that to think that the information could not “potentially impact on an assessment of the bruises…” was “remarkable”. [Editor: hard to disagree with that]

Taken in isolation, the second explanation is inadequate.  If it is taken as referring to the mark in question, it is plainly wrong.  The slide does not demonstrate that the mark in question was not a bruise, for the reasons that Dr James has given.  [Editor: the judge has already accepted that one possible explanation for the slide is that it means that there was not a bruise at that location]

But the opinion that he formed was clearly relevant in deciding whether that mark was a bruise. [In fact, the slide was the only information James had as to the possible existence of a bruise. He had not seen the body and he had not seen any photograph of it, so what else could he go on?]

However, I consider that this part of Dr James’ explanation refers to the other marks, and the fact is that there is no dispute that they were bruises, [Editor: we have already pointed out that this is incorrect] and it is also correct to say that whether or not the mark on the medial side was a bruise threw no light on the question of whether the other marks were bruises.  It was common ground that they were.

As to the third explanation, the Board thought it “very surprising” that the histology of the mark was thought not to be relevant.

In my respectful opinion, that comment fails to make adequate allowance for the forensic context.  I have explained the significance of the forensic context. [Editor: with respect, the judge has continually referred to ‘the forensic context” but has certainly not explained what is meant by it]

To the extent that the Board’s conclusion reflects an opinion that it is not the role of an expert witness to withhold or exclude information merely because the expert regards it as not relevant, I agree.  While in a general sense it is the role of an expert to inform the court about relevant matters only, an expert should not discriminate too finely, and when minds might differ as to whether a particular matter is relevant or not, ordinarily the matter should be disclosed.  But in the present case the forensic context was such that the question, bruise or not, was not materially relevant, and I do not consider that Dr James can be criticised for failing to take the contrary approach. [Editor: again the “forensic context” is used to excuse, but to suggest that the question “bruise or no bruise” was not “materially relevant” seems to be quite wrong. It is hard to imagine anything more materially relevant.]

There is a further point to be made about these explanations.  The context in which they were given is significant.  They were given in the course of cross‑examination by Mr Borick.  The cross-examination was vigorous and, at times, probably a little heated.  Mr Borick referred to evidence given by Dr James at the trial.  Then, after having referred to a particular answer Dr James gave, and a question by the prosecutor he led into the following series of questions and answers: 

Q When you told the jury that there were four bruises, as described by Dr Manock, three on the outside and one on the inside, and collectively they would suggest a grip mark, why didn’t you go on and tell the jury that the one on the inside, in your view, histologically, was not a bruise.  Why didn’t you make that clear to them.

A I don’t think it was asked of me and I don’t think it was something that would alter the assessment that these were indeed bruises.

Q No.  You were absolutely convinced that the one on the inner side was not a bruise, weren’t you.

A No, indeed.  I keep having to restate this.

Q I’ll withdraw the question.  You were absolutely convinced there was no proof that it was a bruise.

A That’s right.

Q Why didn’t you explain that to the jury.

A I didn’t think it was particularly relevant.  It does not ---

Q Well, when you ---

A Do you want me to finish or not?

Q Yes, you can finish.

A I think the two issues here are what were these marks and, quite separately, what was their causation.  I think the histology has shown that the marks were bruises and I think that the causation remains speculative, but the likeliest explanation is that they were grip marks. [Editor: As we have seen, Straker, a decision of the High Court in which Dr James was involved says that speculation of this sort by expert witnesses is not permissible]

It is from this passage that the Board appears to have drawn the explanations that it submitted to scrutiny.

The following comments need to be made about this passage.  First, as can be seen, this was vigorous cross-examination.  Second, there were two errors in Mr Borick’s first question.  Dr Manock did not tell the jury that there were four bruises. [Editor: yes, he did] That was Mr Borick’s construction of his evidence, a construction that the single Judge and I reject. 

Second, Dr James had not said that histologically the mark in question was not a bruise.  He said that the histological examination did not support Dr Manock’s opinion that it was a bruise.  [Editor: this is a distinction without a difference]

Third, as is apparent, the explanation that Dr James gave here was not in answer to a question or questions that asked him to look at the matter as a whole, certainly not in an atmosphere that invited detached reflection on how Dr James had conducted himself, and to my mind should not be treated as fairly summarising all that could be said on the topic.  What I have said about the context of the issue, and the circumstances in which Dr James became involved, are important parts of the picture.

The Board properly scrutinised these answers, but in my opinion, quite apart from the points made earlier about the answers, allowance has to be made for the circumstances under which they were given.

Conclusion

It is for these reasons that I would dismiss the appeal.  The case turns on its own particular facts.  When they are considered, and when due weight is given to the forensic context, my conclusion is that while one can be somewhat surprised that Dr James’ histological examination of the slide in question did not come to light, one cannot say that this is attributable to a failure on his part to observe the standards required of an expert medical witness, and so the Judge’s finding that there was no unprofessional conduct is correct.

WHITE J: I agree that the appeal should be dismissed.  I also agree with the reasons of the Chief Justice.

LAYTON J: I consider that the appeal should be dismissed for the reasons given by the Chief Justice.

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