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JAMES v KEOGH [2008] SASC 156 (13 June 2008)

SUPREME COURT OF SOUTH AUSTRALIA - (Miscellaneous Appeal)

13 June 2008

Expert witnesses – duties and responsibilities – relevant principles – whether expert in breach of those duties.

DEBELLE J

This is an appeal from a decision of the Medical Board of South Australia finding the appellant guilty of unprofessional conduct.

The appellant, Dr James, is an experienced forensic pathologist. For many years he has given evidence in courts concerning deceased persons and the causes of death.

Ms Cheney was found dead in a bath on 18 March 1994. It appeared that she had drowned. She was then engaged to be married to the respondent, Mr Keogh. Mr Keogh was charged with the murder of Ms Cheney. He was committed for trial. He was tried for murder in 1995. There were two trials. The first trial began in February 1995. The jury was unable to reach a verdict. The second trial commenced on 8 August 1995. The jury in that trial found Mr Keogh guilty of the murder of Ms Cheney. An appeal against the conviction was dismissed: R v Keogh (Supreme Court of SA, Full Court, 22 December 1995, Judgment No S5397).

At both trials evidence was given by four pathologists described by the Court of Criminal Appeal as “four very experienced forensic pathologists”. The prosecution called Dr Manock and Dr James. The defence called Professor Ansford and Professor Cordner. Dr Manock had performed the post-mortem. Dr James had been asked to review his post-mortem report. The evidence of the pathologists dealt with a number of issues relating to the death of Ms Cheney and its cause. Their evidence included evidence as to bruising observed on the legs of Ms Cheney. It was common ground at both trials that the immediate cause of death was fresh water drowning. Dr James gave evidence at both trials that he agreed with Dr Manock’s opinion that the immediate cause of death was fresh water drowning.

As a result of events that I will mention later, Mr Keogh lodged two complaints with the Medical Board charging Dr James with unprofessional conduct in relation to the evidence given by him at the second trial. Those complaints alleged that Dr James had been guilty of unprofessional conduct on two grounds. The first ground was that Dr James had given evidence that haemolytic staining in the aorta was a classical sign of fresh water drowning. The Board dismissed that complaint. The second ground was that Dr James had failed to disclose his belief that a slide of a tissue sample taken from a mark on the left leg of Ms Cheney did not confirm that the mark was a bruise. The Board found him guilty of that charge. When determining the disciplinary sanction to be imposed, the Board had regard to what it called “the exceptional public service Dr James has provided throughout his career”. The Board decided that the appropriate sanction was to censure Dr James.

Dr James has appealed against the finding that he was guilty of unprofessional conduct. Mr Keogh has filed a cross-appeal in which he complains of alleged errors of the Board in dismissing his complaint concerning the evidence of Dr James on the topic of haemolytic staining. The cross-appeal also asserts that the Board erred in findings of fact relating to the finding of unprofessional conduct.

In these reasons, I set out the circumstances leading to the complaint against Dr James. That includes a summary of the evidence of the forensic pathologists at the trial of Mr Keogh relating to bruising on the legs of Ms Cheney. After noting the legislation to be applied and the definition of “unprofessional conduct”, I review the legal principles relating to the conduct of experts. Those principles establish that it is necessary to examine the forensic context in which the evidence of Dr James as to bruising on Ms Cheney’s legs was given. I conclude that the Board erred in finding that Dr James was guilty of unprofessional conduct and I dismiss the cross-appeal.

I will refer to Dr James and Mr Keogh as well as other persons by their respective surnames and mean no disrespect in doing so.

The Issues on This Appeal

There are two issues on this appeal. They are:

Was the Board correct in deciding that James was guilty of unprofessional conduct in that he failed to disclose relevant information to the Court concerning the histology of the mark on the medial side of the left ankle of the deceased?

Was the Board correct in dismissing the complaint that James had been guilty of unprofessional conduct when giving his evidence that haemolytic staining of the aorta was a symptom consistent with freshwater drowning?

This appeal is not concerned with the question whether Keogh is guilty or innocent of the charge of murder.

James Reviews an Autopsy Report

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.

In the course of the post-mortem, Manock had observed 14 areas on the body of the deceased which he believed to be bruises. Eleven of those marks were on the legs of the deceased. He photographed the marks that he believed were bruises. One of those photographs depicted a mark on the medial or inner side of the left leg. That photograph became Exhibit P53 at the second trial.

During the post-mortem, Manock had excised samples of tissue for analysis from different parts of the body of the deceased. Sections were made of the tissue samples and placed on 10 slides for examination under a microscope. Four of those 10 slides were of tissue taken from areas that Manock believed were bruises. One of those four slides was from three bruises on the head, another was from seven bruises on the right shin, a third was from three bruises on the left calf, and a fourth was from what Manock said was a bruise on the medial side of the left ankle. The issues in this appeal concern that fourth slide.

Keogh was charged with the murder of Ms Cheney. He was committed for trial in the Supreme Court. Manock gave evidence during the committal.

After the committal hearing, both the prosecution and the defence had questions concerning the post-mortem report. As Manock was overseas, the Director of Public Prosecutions, Mr Rofe QC, in December 1994 asked James to review Manock’s post-mortem report as well as the material Manock had collected in the course of the post-mortem. In response to that request, James prepared a statement dated 22 December 1994. The statement reports that he had reviewed the post-mortem report prepared by Manock, the 10 slides of tissue samples, three bags of photographs and a toxicology report prepared by a Mr Felgate. He confirmed that the immediate cause of death was fresh water drowning. His report concluded with two paragraphs concerning bruising on the body of the deceased:

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.

Opinions concerning the bruises. A bruise on the head would certainly raise the possibility of a fall in the bath with complicated 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.

t will be noticed that, in that report James referred to only three bruises on the left leg. He did not refer to a bruise on the medial side of the left leg. In his statement James did not say why he did not refer to that mark.

The Issues at the Trials

As already noted, Keogh was tried twice for the murder of Ms Cheney. He was convicted at the second trial. With the consent of the parties I have read the judgment of the Court of Criminal Appeal. The main judgment was given by Matheson J with whom Mullighan J agreed. Millhouse J agreed with the conclusions of Matheson J and added some reasons of his own. The reasons for judgment provide a convenient summary of the issues at the second trial. It is reasonable to infer that the issues at the first trial were very similar. I refer to the reasons for judgment for the purpose only of putting the evidence of the forensic pathologists into context. It shows that there was quite a deal more evidence than just the evidence of the forensic pathologists. It must at all times be remembered that the issues on this appeal concern only the propriety of the conduct of James as an expert witness at the second trial of Keogh. This appeal is not concerned with the question whether Keogh was properly convicted of the crime of murder.

The prosecution case against Keogh was circumstantial. The prosecution alleged that Keogh had killed Ms Cheney by deliberately drowning her in the bath in the house in which they both were then living. As Matheson J noted, the defence case was that the bath was very slippery, the deceased was tired and affected by alcohol, that she slipped or fainted and had accidentally drowned.

Keogh had been employed at the State Bank of South Australia until 11 January 1994. He then took employment with a firm of stockbrokers where he was employed at the time of Ms Cheney’s death.

Keogh had been married and had three children. He had met Ms Cheney in 1989 and had begun a relationship with her. He had left his wife in June 1991 and he and his wife were divorced in May 1992. In late 1991, Keogh began living with Ms Cheney. There was a break in their relationship in about March 1992.

A Ms A gave evidence that she had had a relationship with Keogh in 1992. They had first met in the early part of 1991 and saw each other every few months. They had a meeting on 18 March 1992. At that meeting Keogh had told her about Ms Cheney. He said that they had been living together and that he was going to break off the relationship gradually. She subsequently saw Keogh more often. They had sexual relations from about mid-July 1992 until mid-December 1992 when she broke off the relationship. In August 1992 Keogh had resumed living with Ms Cheney and on 14 November 1992 they had become engaged to be married. They were to be married on 24 April 1994.

Between February and April 1993, Keogh took out five insurance policies on the life of Ms Cheney. On her death, he was the sole beneficiary of those policies and stood to benefit by more than $1,125,000. He had forged her signature on the proposals and on the cheques and debit authorities used to pay premiums. In April 1993 Keogh and Ms Cheney had taken a holiday together in Hong Kong. They had both executed wills before leaving on that holiday. In his will Keogh referred to four insurance policies which he bequeathed to his three daughters in equal shares. He left his residuary estate to Ms Cheney. Ms Cheney made no mention of insurance policies in her will. She left $30,000 to her father and bequeathed her residuary estate to Keogh.

Each of the insurers required the disclosure of other insurance policies. On the proposals for the last four policies, Keogh failed to disclose any of the other policies. The prosecution alleged that the evidence of these policies provided a financial motive for the death of Ms Cheney. Keogh’s evidence was that he had agencies with the insurers and that he was anxious to write business to keep those agencies alive in case he was retrenched from his employment at the State Bank. He said that the policies, including two policies on his own life, were devices and that he did not mean to make a claim on them. He maintained that Ms Cheney had full knowledge of the scheme. The prosecution did not dispute that Ms Cheney must have known about some of the insurance. She had told her brother that she was insured for $400,000 so that, if she died, the mortgage on her house and her debt to her father could be repaid and there would be something left over for Keogh. However, the prosecution case was that Ms Cheney had never told anyone that she had cover for as much as $1.125 million. Keogh’s evidence was that, when he and Ms Cheney went to Hong Kong, he had told her that he had forged her signature on the proposals. He said that she was very angry and he promised not to do it again.

A Ms B gave evidence that she had met the appellant in mid 1992. They first went out together to a restaurant on 21 October 1992. Ms B’s evidence was that the relationship developed both in frequency of meetings and in intimacy. She said the relationship had continued until the week in which Ms Cheney had died. Some of her evidence was denied by Keogh. Ms B was unaware of the relationship between Keogh and Ms Cheney until early February 1994. Ms B had asked Keogh who Ms Cheney was and he had replied, “She is an ex-girlfriend who is obsessed with me and wants to marry me”. Keogh told her that he would never marry Ms Cheney. On the Thursday before St Valentine’s Day 1994 Keogh had visited her and said that his children wanted him to return home and that his ex-wife had approached him saying she wanted to give their relationship another try. Keogh said to Ms B that he was confused because he was falling in love with her and did not want to lose her. Ms B said that she had encouraged him to have a meeting with his ex-wife. Keogh subsequently told her on St Valentine’s Day that the meeting had not taken place. They had exchanged cards and Keogh had given her a rose. He said to her “I’m all yours and you are all mine”, which was followed by hugging and kissing. Ms B said that Keogh continued to visit her almost everyday until 18 March 1994. On one of those visits, he had told her again that he had decided that he would go back to his ex-wife because he thought it was best for everyone.

In his reasons in the Court of Criminal Appeal, Matheson J referred to the summing up by the trial judge in relation to the insurance polices. The trial judge said to the jury that the Crown case was that the liaisons with Ms A and Ms B indicated that Keogh was not devoted to Ms Cheney and was not genuinely preparing for marriage. In those circumstances, the Crown asserted, Keogh might more readily succumb to the substantial financial enrichment from the insurance policies which, the Crown alleged, was the main motive.

On the night before her death Ms Cheney and Keogh had attended the house of a wedding celebrant and had signed a notice of intention to marry.

On the evening of Ms Cheney’s death Keogh and Ms Cheney had met at the Norwood Hotel after work. They had each had about four glasses of white wine and had returned to Ms Cheney’s house. Ms Cheney then rang her sister-in-law about a prior engagement to exercise their dogs. She drove to her sister-in-law’s house and they exercised their dogs for 20 to 30 minutes. Ms Cheney’s sister-in-law said that Ms Cheney was happy and not affected by alcohol and that they had discussed the wedding. Ms Cheney then returned home. It was the prosecution case that she was not seen alive again.

The prosecution called Keogh’s mother, who lived about two kilometres from Ms Cheney’s house. Her evidence was that Keogh had come to her house between 8.15 pm and 8.25 pm and had left at about 9.15 pm or a little later.

At 9.32 pm Keogh rang the St John Ambulance and said, “My fiancé has had an accident in the bath. I think she has drowned”. In his evidence, Keogh said that he had attempted to resuscitate the deceased before the ambulance had arrived. The ambulance officers arrived at Ms Cheney’s house at 9.38 pm. There was no sign of forced entry or of any struggle. The bath was about three quarters full. Ms Cheney was lying on the floor between the bedroom and the bathroom with her head on the bedroom carpet and her feet in the bathroom. The ambulance officers said that the area of the carpet around the head was dry. The body was dry, although the hair was wet. The bathroom floor was dry. The ambulance officers commenced resuscitation. They immediately expelled water from Ms Cheney’s mouth and subsequently gastric contents. The prosecution alleged there had been no attempt by Keogh to resuscitate his fiancée before the ambulance officers had arrived. Ms Cheney had a blood alcohol content of 0.08 per cent at the time of her death.

Police officers attended the house. A police officer took a short statement from Keogh. He told her that he had returned home from his mother’s house and had found Ms Cheney completely submerged in the bath. He said that he had pulled her out of the bath and had commenced resuscitation. He was unable to get her to breathe. He then called the ambulance and recommenced resuscitation.

The Evidence of the Forensic Pathologists

Mr David QC appeared for Keogh in both trials. Before the first trial Mr David QC had spent some time with James. James assisted him in the presentation of Keogh’s case. That was a service provided by pathologists at the Forensic Science Centre on request from counsel for the defence.

Manock and James were both called as witnesses for the prosecution in each trial. Keogh’s legal representatives had consulted three pathologists, Professor Cordner, Dr Collins and Professor Ansford but Mr David QC called only Professor Cordner and Professor Ansford. They gave evidence in each trial.

As might be expected, the evidence given by the forensic pathologists at each trial was to similar effect. In a moment I will summarise the evidence of each. At both trials, there was no issue between the pathologists that the immediate cause of death was fresh water drowning. The issue was whether the drowning was accidental or had been deliberately caused. In the summary that follows I will not refer to all of the evidence on that issue. I will refer mainly to the evidence concerning the bruising found on the legs of Ms Cheney.

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, 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.

The Evidence of the Pathologists

In the following summary of the evidence of the pathologists, the references consisting of the expression “TX” and a page number are references to the transcript at each trial.

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.

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 518-519):

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.

There was no evidence before the Board of Professor Ansford’s evidence at the first trial. However, it did have the transcript of the evidence of Professor Cordner. Before the first trial, Professor Cordner had reviewed the same material as James including the 10 slides of tissue samples. Before he gave his evidence, Cordner had read Manock’s reports and his evidence at the committal hearing, the statement of James dated 22 December 1994, and the evidence of both Manock and James at the first trial. In his evidence at both the first trial and the second trial, Cordner said that he had studied the slides of tissue samples.

Manock and James had stated that the immediate cause of death was fresh water drowning. Cordner assented to that conclusion and did not comment on it. It is clear that there was no issue that the immediate cause of death was fresh water drowning.

Mr David QC asked Cordner to comment on the cause of the bruising seen on the legs of the deceased. Cordner agreed that the bruising was consistent with grip marks but added that it was consistent with other causes, stating that the bruise could have occurred in the ordinary course of events. In his view, the pattern of the bruising “is not so distinctive as to only allow a grip as the explanation”. He expressed the view that, as there were only four bruises around the area of the left ankle, it was “not really asking a lot of the ordinary life of a person walking around to think that they might get bruises in those places from ordinary events” (TX 1013). In his view, the pattern of bruising was not so distinctive that a grip was the only explanation. He said that the bruising could have occurred in any period up to 24 hours before death. Later, he said that the question of how the drowning had been caused could not be resolved by the pathological evidence. He said (at TX 1015) that the pathological evidence could not resolve the question whether the drowning was accidental or deliberate. In cross-examination he adhered to those views.

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.

The material before the Board included the transcript of the evidence of James and Cordner at that trial. I have had regard to that. It is not necessary to repeat all of that evidence. I will do no more than refer to the evidence of the forensic pathologists concerning the bruises on the legs of the deceased.

At the second trial, Manock repeated his view that the bruises on the left leg were consistent with a grip mark. His evidence is summarised by the Court of Criminal Appeal. After giving evidence as to the immediate cause of death, he gave evidence concerning the bruising he had seen on the legs of Ms Cheney at the post-mortem. On the shin of the left leg towards the lateral side, he noted three faint bruises on the calf and a single bruise on the medial or inner side of the left calf. On the shin of the right leg he noted seven small circular bruises in a vertical line along the anterior border of the sub-cutaneous part of the right tibia. His evidence was that the bruises on the legs were sustained at or about the time of death or, at the earliest, four hours prior to death. He was asked if it was possible that the bruises on the left leg appeared to be consistent with a particular cause. He answered:

Yes. It was possible to cover the bruises by putting a hand over the leg and a thumb approximating to the bruise on the inner aspects of the left leg and the three forefingers would encompass the bruises on the right aspect. That is if the right hand is placed beneath the calf and the thumb then comes on the inside of the calf...The little one may have been there, but it usually hasn’t sufficient force to leave a bruise.

He said that if the leg were held in that position, that would be a cradling of the back of the leg in the hand.

Manock also gave evidence of bruising to the scalp which appeared to have occurred shortly before death. He also found two further bruises on the back of the neck of the deceased where the neck muscles join the base of the skull. In his view, those two bruises had been sustained at about the time of death. He said they were consistent with her head striking a flat surface or a flat surface striking the head and that the amount of force required would be very slight. On the basis of this evidence 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 would slide under the water. At this time, the edge of the bath would 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 at 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 said that the fact that Ms Cheney had a blood alcohol content of 0.08 per cent was not the sort of blood alcohol level that he would expect to cause a person to lapse into unconsciousness and not be able to revive if water struck the vocal cords, resulting in coughing or spluttering. Manock agreed that a person standing up suddenly in a warm bath could suffer a loss of consciousness but he expected some injury to be sustained perhaps to the head which would render the person unconscious. He saw nothing in the physical examination to indicate a pre-disposition to fainting. He said he found insufficient evidence to support a loss of consciousness caused by trauma to the head.

In his evidence at the second trial, James stated his view that the immediate cause of death was fresh water drowning. He was questioned about the bruises. He said that he had seen photographs of three bruises on the lateral side of the left ankle. He repeated the effect of the evidence he had given at the first trial that he had not seen any photograph of the bruise on the medial side of the left ankle. His evidence was given in this way (TX 207).

Q. The bruising on the left lower leg – perhaps if you look at P52, the body chart – Dr Manock has given an opinion that in his view that bruising on the left lower leg, the three bruises on the outer aspect and the one on the inner aspect, is consistent with a grip being applied to the leg.

A. Yes, he did do that.

Q. Can you comment on that view.

A. Oh, yes. I’ve seen photographs of the three bruises on the lateral side of the left ankle. I haven’t seen a photograph of the bruise on the media side. But if it was present as he suggests, then a grip mark is the obvious explanation. I think the point about discrete bruises is that they can be accommodated by the pulp of the end of the fingers applying pressure and if there is a bruise on the opposite side of the arm or leg or whatever, that is the signature of the opposing thumb. The four bruises that he describes – three on the outside and one on the inside – collectively would suggest a grip mark. I think that you can express that as the likeliest explanation until it’s shown to be something else.

It will be noticed that James again said that he had not seen a bruise on the medial side of the left leg. In his view, the bruises had been caused up to four hours before death. In cross-examination, while he acknowledged that the logical presumption was that the bruising was consistent with grip marks, he said that the bruising could have been caused in other ways (TX 217).

Professor Ansford was the first forensic pathologist called by the defence. His evidence on the subject of bruising was summarised by the Court of Criminal Appeal in these terms:

He agreed that the explanation of the marks on the left leg given by Dr Manock, and apparently accepted by Dr James, was possible, but he said that his experience of finger bruises was that they all tended to be the same size. In cross-examination, he said the difference in intensity and shape of the three bruises on the outer aspect could be explained by a difference of pressure being exerted by the three fingers. He said he saw no reason to doubt Dr Manock’s observation that the bruises all appear to have been about the same age. As far as the seven bruises on the right leg were concerned, he could not see how they could be produced by one application of force with a flat object, but he had less difficulty with visualising it jerking against the side of the bath.

Professor Ansford also said that medically and forensically speaking he could not exclude accident as a cause of drowning whether or not it resulted from a slip in the bath.

In his evidence, Professor Cordner was not asked to comment on the cause of death. His evidence proceeds on the footing that the immediate cause of death was fresh water drowning. Before giving his evidence, he had not only seen the initial reports of Manock and James, Manock’s evidence at the committal hearing, and the evidence of Manock and James at the first trial but had also read the transcript of the evidence of Manock at the second trial. He had also seen the slides of tissue samples which, he said, he had studied. He was asked to assume a number of facts. Those facts included the fact of four bruises on the left leg of the deceased and seven bruises on the shin of the right leg of the deceased. He was asked if the list of assumed facts was consistent with his reading of the evidence. He said that they were.

Professor Cordner was asked to comment on the opinion of Manock that the bruising to the left leg had been caused by a grip. He said that it was “one possible explanation for the bruises on the leg” but added that they were consistent with other explanations. He said (TX 965):

A. I think that one is really only limited by one’s imagination as to how else those bruises might have occurred. I think that the presence of three bruises on one side of the lower part of a calf and one bruise on the other side doesn’t lead you inexorably to the conclusion that the only explanation is a hand around that part of the leg and, for my part, I don’t have any difficulty in thinking that there might be accidental explanations for that number and distribution of bruises.

Q. When you say accidental explanations, normal every day use of one’s legs.

A. I think the exigencies of walking around, standing in crowded rooms, getting on or off buses and trams, standing at a bar, slipping on a step, any one or a combination of those could lead to one or more of those bruises.

He repeated his view that the bruising had occurred within 24 hours of death. He also said that the death might have been caused accidentally. In his view, a death by drowning was consistent with unconsciousness being caused before drowning. In cross-examination he adhered to those views. He was shown in cross-examination Exhibit P53, the photograph of the mark on the medial side of the left lower calf. He said that it was a bruise. James had not seen that photograph nor was it shown to him at either trial.

Thus, at the second trial, the forensic pathologists again agreed that the immediate cause of death was fresh water drowning. As in the first trial, they agreed that the bruising on the left leg of the deceased was consistent with a grip but that it was also consistent with other causes. The prosecution witnesses, Manock and James, were more inclined than the defence witnesses, Cordner and Ansford, to the view that a grip was the most likely explanation. It is relevant to note that there was no dispute that any of the marks were bruises. The pathological evidence did not establish whether the death was deliberate or accidental. In his direction to the jury the trial judge himself confirmed that the evidence of the pathologists did not solve the case. He said:

Well, ladies and gentlemen it is accepted on both sides, that is by the Crown and the defence, that the pathology evidence, by itself, does not solve this case for you. That does not mean that none of this evidence is of any use to you at all. There are some conclusions which you might think are open to you on the evidence, although the findings of fact are matters for you...
There is no pathology evidence from the Crown that the death was clearly or even probably caused by deliberate drowning, and I emphasise that is dealing with the pathology evidence. Deliberate drowning caused in a particular way has been accepted as a possibility on the evidence; that is the lifting of the legs and the pushing under of the head. But there is also evidence before you that accidental drowning was a possibility.

That extract is to be found in R v Keogh (No 2) (Supreme Court of SA, Full Court, 13 May 1997, Judgment No S6152). I will return to the question of the issues as between the forensic pathologists.

The “Four Corners” Program

Some considerable time after Keogh had been convicted, Dr Tony Thomas, a histopathologist, reviewed the slides of the tissue taken from the four areas that Manock believed were bruising. Dr Thomas had been engaged by a new team of legal representatives acting for Keogh. Dr Thomas concluded that the slide of the tissue taken from the mark on the medial side of the left ankle of the deceased did not reveal histology capable of establishing that the mark was a bruise. The conclusion of Dr Thomas was explored in a presentation on the Four Corners program broadcast by the Australian Broadcasting Corporation in October 2001.

On 22 October 2001, James viewed the presentation on the Four Corners program. He reported on that presentation by letter to the Director of Public Prosecutions dated 30 October 2001. In that letter, he repeated the effect of his evidence at the trial.

My views on the case were:

That the deceased had a row of bruises on each lower leg. These bruises required an explanation since she apparently did not have them before entering the bath. In my view they were consistent with grip marks and should be regarded as grip marks till shown to be otherwise.

She had scalp bruising on either side of the scalp and in the midline. This pattern of bruising seemed inconsistent with the suggested explanation of a simple fall in the bath.

She had a blood alcohol level of 0.08gm% implying a social order of intoxication.

Her cause of death on the evidence available appeared to be fresh water drowning.

He also commented on the views expressed by Dr Thomas:

The program also featured views by Associated Professor Tony Thomas of Flinders University. He is a histopathologist and his views are valued particularly on histopathology and cardiac pathology. He is not a forensic pathologist and to my knowledge has never carried out a post-mortem examination on a homicide case in South Australia. His services were used after the retirement of Mr Manock for some years but not on suspicious cases because of his inexperience in those areas.
Professor Thomas essentially disagreed with Dr Manock about the alleged bruise on the inner aspect of the left ankle of Ms Cheney. He claimed that histopathology failed to confirm this was a bruise. I agree with him. Sections of other marks on the front of the legs clearly confirm their nature as bruises. The explanation for the failure to identify bruising on the inner left ankle lies either in that the mark was not a bruise or that the tissue removed from that area by Dr Manock for histology did not contain the bruised area. Professor Thomas feels that this either excludes or throws doubt on the grip explanation in that the bruise would have represented the mark from the opposing thumb.
In this regard I disagree with him. While the opposing (thumb) bruise will corroborate a grip mark the opposite is not true. For instance, if Professor Thomas had a case of manual strangulation and found the expected row of neck bruises on one side of the victim’s neck from finger pressure and failed to confirm a bruise on the opposing side of the neck from the thumb would he therefore exclude manual strangulation as a cause of death. This seems silly to me. I think his views on this problem reflect inexperience, although he may have been selectively quoted.
The histology is not new evidence. The histological slides were viewed by 4 pathologists before the trial including Professor Cordner and Dr Collins for the defence.

Thus, James agreed with Dr Thomas that the slide of tissue did not confirm that the mark on the medial or inner side of the left ankle was a bruise. He disagreed, however, with the assertion of Thomas that the grip mark theory was excluded or open to doubt. His letter clearly expressed his reasons for that conclusion.

A Complaint Concerning Dr Manock

In 2004, Keogh made a complaint to the Board pursuant to s 54 of the Medical Practitioners Act 1983 against Manock, alleging unprofessional conduct by Manock at his trial. Manock defended the charge. His legal representatives tendered at the hearing before the Board an affidavit sworn by James. His affidavit included the following remarks:

In order to prepare the report I looked at all the histological samples which had been retained by the Forensic Science Centre.

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.

I believe from the evidence that I reviewed that the manner of death was unnatural and raised suspicious features which warranted further police investigation after the post-mortem.

In the microscopy department a histology technician will trim samples (already fixed in formalin) taken from a body and then process the sample so that the pathologist can examine the glass slide with a microscope. It is always possible that a technician will trim the sample inappropriately, and the important part of the sample that the pathologist wishes to examine may be discarded with the trimmings of the sample.

I recall speaking with Professor Cordner about the existence of this bruise, or otherwise, and I recall he advised me that he had an open mind about whether the sample from the inside left ankle had been a bruise.

James was examined and cross-examined on that affidavit before the Board on 4 November 2004. James answered questions concerning the mark on the medial side of the left ankle of the deceased as well as other questions on the topic of haemolytic staining. For the moment, I refer only to the evidence concerning the mark on the medial side of the left ankle. I will return to the question of haemolytic staining.

The effect of James’ evidence was that, while he did not think that the slide of tissue taken from the mark on the medial side of the left ankle confirmed that it was a bruise, he nevertheless adhered to his opinion that the bruises he had seen on the lateral side of the left leg were grip marks. I will later refer in more detail to the evidence of James before the Board.

Two Complaints Concerning James

The evidence given by James to the Board caused Keogh to make a complaint to the Board that James had been guilty of unprofessional conduct. The complaint was dated 18 November 2004. That was followed by another complaint dated 21 April 2005. I will refer in a moment to the terms of each complaint. By letters dated 7 December 2004 and 7 March 2005 James responded to each complaint.

In 2005 James instituted an application for judicial review in this court seeking, among other things, a declaration that the prosecution of the complaint constituted an abuse of process or offended the principle of witness immunity. On 30 August 2006, the Full Court dismissed the application: James v Medical Board of South Australia (2006) 95 SASR 445.

In July 2007 the Board heard Keogh’s complaint. Both parties asked the Board to proceed on the basis of agreed documents. Neither party gave oral evidence. The agreed documents comprised

1. the transcript of the evidence of James at the first trial,

2. the transcript of the evidence of James at the second trial,

3. the statement of James dated 22 December 1994,

4. the letter from James to the Director of Public Prosecutions dated 30 October 2001,

5. the affidavit of James sworn on 23 June 2004 and tendered to the Board at the hearing of Keogh’s complaint against Manock,

6. the evidence of James at the hearing of the Board on 4 November 2004 of the complaint against Manock,

7. a letter from James dated 7 December 2004 to the Board and his enclosed response to the first complaint of Keogh,

8. a letter to James from the Board dated 7 February 2005, and

9. the letter by James dated 7 March 2005 responding to the second complaint by Keogh.

The parties made submissions on the basis of those documents as well as on some extracts from medical texts and papers.

The Terms of the Complaints

Keogh’s first complaint to the Board is dated 18 November 2004. The complaint alleges that James had been guilty of improper or unethical conduct in relation to the practice of medicine or had been guilty of incompetence or negligence in relation to the practice of medicine and that he was guilty of unprofessional conduct. The complaint is a lengthy document and contains 12 particulars of the charges. The gist of the complaint is that James had been guilty of unprofessional conduct in that he had failed to disclose to the court at the second trial of Keogh his belief that the sample of tissue taken from the medial side of the left leg of the deceased failed to establish that the mark was a bruise.

Keogh’s second complaint dated 21 April 2005 is supplementary to the first complaint. It alleges two separate grounds on which James is said to have been guilty of unprofessional conduct. The first alleges that the unprofessional conduct consisted of James giving misleading evidence at the trial of Keogh that haemolytic staining in the aorta was a classical sign of fresh water drowning. Later in these reasons, I will refer to the particulars of that complaint. The second ground repeats the complaint that James had been guilty of unprofessional conduct in failing to disclose his belief that the tissue taken from the mark on the medial side of the left leg of the deceased did not confirm that the mark was a bruise.

The two complaints are poorly drawn. It is not clear precisely what is the subject of the complaint. The Board found that the complaints generally centred around the following assertions:

that the respondent did not disclose relevant information (the histology of the mark) during the criminal proceedings,

that the respondent gave false or misleading answers during the Keogh criminal proceedings in regards to the mark and that the non disclosure alone or coupled with the provision of false information created incorrect impressions or assumptions in the mind of the court and that the respondent did not correct those wrong impressions or assumptions, and

that the respondent gave false and misleading information regarding the issue of haemolytic staining.

On the hearing of this appeal both Mr Edwardson QC and Mr Borick QC did not question that summary and presented their arguments on the footing that they were the substance of the complaints. The Board has, in my view, fairly distilled the essence of the charges made in the two complaints.

The Board found that James was guilty of unprofessional conduct in that he had failed to disclose relevant information to the court concerning the histology of the mark on the medial side of the left leg of the deceased. However, the Board dismissed the complaint that James had been guilty of unprofessional conduct in relation to his evidence concerning haemolytic staining.

The Relevant Legislation

Both complaints had been lodged pursuant to the Medical Practitioners Act 1983 (“the 1983 Act”). The Medical Practice Act 2004 (“the 2004 Act”) has repealed the 1983 Act. A few provisions in the 2004 Act came into force on 21 April 2005 but the balance of the Act, including the provisions relating to disciplinary proceedings, did not come into operation until 26 August 2005. Although Schedule 1 of the 2004 Act contains some transitional provisions, including a provision that the Medical Board of South Australia is the same body corporate as the Medical Board established under the 1983 Act, the 2004 Act contains no transitional provisions relating to the conduct of complaints of unprofessional conduct instituted before the 2004 Act came into operation. However, Regulation 14 of the Medical Practice (General) Regulations 2005 deals with such complaints. It is in these terms:

Transitional matter
Schedule 1 clause 2(2) of the Act does not affect the operation of section 16 of the Acts Interpretation Act 1915 and, consequently, the Board as constituted before the commencement of that clause, and the Tribunal as constituted before the commencement of that clause, may continue to hear and determine proceedings under the repealed Act.

Thus, the complaints were to be heard and determined according to the 1983 Act: see s 16(1)(e) and s16(2) of the Acts Interpretation Act 1915.

The Board applied the reasoning of the Medical Professional Conduct Tribunal in The Medical Board of South Australia v Mauro [2006] SAMPCT 1 and held that, although the proceedings had been commenced pursuant to s 58 of the 1983 Act, they continued as if commenced under the 2004 Act. With respect, the reasoning of the Tribunal in The Medical Board of South Australia v Mauro is incorrect. It fails to give effect to the clear intention of Regulation 14 of the Regulations and to s 16 of the Acts Interpretation Act. I note that in Keogh v Medical Board of South Australia (2007) 99 SASR 327 at [35], Doyle CJ held that a complaint made under the 1983 Act was to be determined under that Act notwithstanding that the 2004 Act had come into force. See also Medical Board of SA v N, JRP (2006) 93 SASR 546. The Board ought to have proceeded to hear and determine the complaints against Dr James according to the provisions of the 1983 Act.

For the reasons that follow, although there are differences between the 1983 Act and the 2004 Act, those differences do not affect the meaning of “unprofessional conduct” so far as it applies to the issues in this appeal.

The Nature of the Appeal

Section 66 of the 1983 Act provides a right of appeal from a reprimand or order administered or made by the Board or the Tribunal in disciplinary proceedings. The nature of an appeal against an order of the Tribunal was examined in T v Medical Board of SA (1992) 58 SASR 382 by Matheson J at 389-391 and by Olsson J at 406-407. It is unnecessary to repeat that discussion. It is sufficient to note that an appeal against a decision of the Tribunal is a re-hearing. On that re-hearing the court may make orders of the kind noted in Taylor v Hayes (1990) 53 SASR 282 at 291. Those principles apply with equal force to an appeal against a reprimand or order administered or made by the Board. As the Board comprises a majority of medical practitioners, the court will, as it does in the case of an appeal from a specialist tribunal, accord due deference to the Board’s decision on matters that fall within the expertise of the members of the Board, for example, where the charge relates to conduct in clinical practice. However, where the charge concerns evidence given in legal proceedings, the court will itself evaluate whether and to what extent the conduct of an expert witness fell below the duties and responsibilities of an expert witness: Meadow v General Medical Council [2007] QB 462 per Thorpe LJ at [280].

Unprofessional Conduct

Section 5 of the 1983 Act defines “unprofessional conduct” in these terms:

“unprofessional conduct” includes –
(a) improper or unethical conduct in relation to the practice of medicine; and
(b) incompetence or negligence in relation to the practice of medicine; and
(c) a contravention or of failure to comply with –
(i) a provision of this Act; or
(ii) a condition imposed by or under this Act in relation to the registration of a medical practitioner under this Act.
(2) A reference in this Act to unprofessional conduct extends to –
(a) unprofessional conduct committed before the commencement of this Act; and
(b) unprofessional conduct committed within or outside South Australia or the Commonwealth.

The expression “the practice of medicine” has a wide meaning. It extends to and includes the conduct of a medical practitioner giving evidence before a court or other tribunal. It is not an uncommon aspect of medical practice for medical practitioners to give evidence before courts and tribunals. That evidence often relates to such issues as treatment provided to a patient, the medical history of a patient, and any prognosis as to the future health of that patient or the effect of any disability. When a forensic pathologist conducts an autopsy, he or she is conducting one aspect of the practice of medicine. Giving evidence as to the findings made at an autopsy and opinions drawn as a result of those findings is conduct in relation to the practice of medicine.

That conclusion is confirmed by authority. The practice of medicine extends beyond clinical misconduct: cf Roylance v General Medical Council [2000] 1 AC 311 at 331. In Meadow (supra), it was implicit in the reasons of the Court of Appeal that the expression “serious professional misconduct” could apply to the conduct of a medical practitioner when giving expert evidence. In Keogh v Medical Board of South Australia (2007) 99 SASR 327 at [60] to [71], it was implicit that the conduct of a forensic pathologist giving expert evidence was conduct in relation to the practice of medicine. No point was taken on the hearing of this appeal that the practice of medicine did not include the conduct of a medical practitioner giving evidence before a court or tribunal.

The definition of “unprofessional conduct” in the 1983 Act is an inclusive one. It will include conduct that falls within the test articulated by this court in re R (A Practitioner of the Supreme Court) [1927] SASR 58 at 60-61 as well as other conduct: Keogh v Medical Board of SA (supra) at [63]. The expression “unprofessional conduct” has a wider meaning than “professional misconduct”, an expression used in English legislation relating to the conduct of medical practitioners: Keogh v Medical Board of SA (supra) at [60].

Keogh’s complaint to the Board concerns the conduct of James as an expert witness at the second trial of Keogh. That is conduct in relation to medical practice. The question whether he has been guilty of unprofessional conduct is to be determined by reference to the duties and responsibilities of an expert witness. I turn to consider the duties and responsibilities of an expert witness and how those duties and responsibilities must be discharged.

The Duties of An Expert Witness

As will be apparent from the examination that follows, the duties of an expert witness are the same in criminal and in civil trials. The question whether the expert witness has discharged those duties will be determined by reference to the context of the forensic issues at the trial as well as by reference to the obligation of the expert to disclose all relevant material. I will now examine the relevant principles and then consider whether, by reference to those principles, James failed to comply with them.

The duties and responsibilities of an expert witness in civil trials were identified by Cresswell J in National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) 1993] 2 Lloyd’s Rep 68 at 81-82. He said:

The duties and responsibilities of expert witnesses in civil cases include the following:

1. Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation ([Whitehouse v Jordan [1981] 1 All ER 267 at 276, [1981] 1 WLR 246 at 256], per Lord Wilberforce).

An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise (see [Polivitte Ltd v Commercial Union Assurance Co plc [1987] 1 Lloyd’s Rep 379 at 386 per Garland J] and [Re J (child abuse: expert evidence) [1991] FCR 193 per Cazalet J]). An expert witness in the High Court should never assume the role of an advocate.

An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion ([Re J]).

An expert witness should make it clear when a particular question or issue falls outside his expertise.

If an expert’s opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one ([Re J]). In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report ([Derby & Co Ltd v Weldon (No 9) (1990) Times, 9 November per Staughton LJ]).

If, after exchange of reports, an expert witness changes his view on a material matter having read the other side’s expert’s report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the Court.

Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or other similar documents, these must be provided to the opposite party at the same time as the exchange of reports (see 15.5 of the Guide to Commercial Court Practice).

Those principles were followed and applied by Collins J at first instance in Meadow v General Medical Council [2006] 2 All ER 329 at [20] and by the Court of Appeal in Meadow v General Medical Council (supra) at [21], [70] and [204]. At first instance Collins J had added to the list of Cresswell J the observation that the expert witness will know that he must give evidence honestly and in good faith and must not deliberately mislead the court. He will not expect to receive protection if he is dishonest or malicious or deliberately misleading. In Meadow at [204] and at [250], the Court of Appeal held that these principles also applied in criminal trials, a conclusion affirmed later by the Court of Appeal in R v Harris [2006] 1 Cr App R 5.

These principles have been followed by courts in this country including appellate courts: see for example Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [78]; FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33 at [3]; Auto Masters Australia Pty Ltd v Bruness Pty Ltd [2004] WASCA 229 at [28]; R v Mill [2007] QCA 150 at [49]; Australian Securities and Investments Commission v Rich (2005) 218 ALR 764 at [127]. They have been applied by this court in Southern Equities Corporation Ltd (in liq) v Arthur Andersen & Co (No 9) [2002] SASC 118 at [133].

In Meadow at [17] and at [201], it was stressed that it is of the utmost importance that an expert should only give evidence of an opinion which is within the expert’s particular expertise and, if the expressed opinion is outside his expertise, the expert should expressly say so. That principle was of particular importance in that case. It has no application in the circumstances of this appeal.

The Court of Appeal also held that, when reviewing an expert’s conduct, it is not appropriate to judge an experienced and eminent expert more harshly because of that experience and eminence: Meadow at [72], [213] and [275].

For present purposes, the most relevant of these duties is that an expert witness must give evidence honestly and in good faith and must not deliberately mislead the court. An expert giving evidence to the court has an obligation to the court to assist it by giving evidence objectively. That obligation includes making full disclosure of all relevant material no matter whether it assists or is detrimental to the cause of the client of the expert. That is because the obligation of the expert to the court overrides the obligation of the expert to the client.

The Approach in Disciplinary Proceedings

When a professional disciplinary body is considering whether the expert has properly discharged his duties as an expert, regard must be had to the forensic context in which the expert provided his report or gave his evidence: Meadow at [89] and [205]. Due regard must be had to the adversarial nature of the trial and the overall forensic context. However, while the expert’s conduct is to be judged in the context of the particular circumstances in which he is placed, that context does not absolve the expert from professional or forensic impropriety in the presentation and form of his evidence. Auld LJ expressed those principles in these terms at [205] to [207]:

Where the conduct of an expert alleged to amount to a professional offence under scrutiny by his professional disciplinary body arises out of evidence he has given to a court or other tribunal, it is, therefore, important that that body should fully understand, and assess his conduct in the forensic context in which it arose. Of great importance are the circumstances in which he came to give the evidence, the way in which he gave it, and the potential effect, if any, it had on the proceedings and their outcome. If the disciplinary body lacks information to the proceedings and their outcome. If the disciplinary body lacks information to enable it properly to assess the expert’s conduct in that forensic context, or fails properly to take it into account, a court reviewing its determination is likely to bring important insights of its own to the matter. Not least among those should be an appreciation of the isolation of an expert witness, however seasoned in that role, in the alien confines of the witness box in an adversarial contest over which the judge and the lawyers hold away.

In criminal or civil proceedings, it is for the parties’ legal representatives and ultimately the judge, to identify before and at trial what evidence, lay or expert, is admissible and what is not. In the case of expert evidence, involving, as it often does, opinion evidence as to causation, it is critical that the legal representatives of the party proposing to rely on such evidence should ensure that the witness’s written and oral evidence is confined to his expertise and is relevant and admissible to the important issues in the case on which he has been asked to assist. Equally, it is incumbent on the legal representatives on the other side not to encourage, in the form of cross-examination or otherwise, an expert to give opinion evidence which is irrelevant to those issues and/or outside his expertise, and, therefore, inadmissible. And, throughout, it is for the judge, as the final arbiter of relevance and admissibility, to ensure that an expert is assisted or encouraged to keep within the limits of his expertise and does so relevantly to the issues in the case on which he is there to assist.

All of this is not to absolve the expert of responsibility from professional or forensic impropriety in the presentation and form of his evidence. As a medical expert, he should know his limits. In most instances, his knowledge and instincts in his particular field should alert him to confining his evidence to those limits and the true issues identified for the court by the legal representatives of the parties. However, the forensic process, in preparation and in action at trial, is not always as ordered and considered as it should be. The issues may not always be sufficiently carefully defined, or the evidence, lay and expert, adequately prepared and tailored in advance, to deal with them. The trial process itself can be unpredictable in direction. From time to time the questioners and the questioned can lose sight of the essential issues in exploring or ‘trying out for size’ areas of evidence that, on careful examination, have no bearing on the case. The line and pace of the questioning may leave little time for calm analysis by an expert witness called to deal with a variety of issues on one or more of which he is required to express an opinion that is, or he knows is, to be, challenged. The same may be said for those questioning him and, indeed for the judge who is trying to keep up with the evidence as it is given. In that, sometimes, fevered process, mistakes can be made, ill-considered assertions volunteered or analogies drawn by the most seasoned court performers, whatever their role.

Sir Anthony Clarke MR expressed his agreement with Auld LJ in these terms at [89] and [90]:

It is important to have in mind that the way a case is developed at and before trial is essentially a matter for the parties and their lawyers and that an expert must not be blamed for the shortcomings of the lawyers or indeed the judge. Equally, proper account must be taken of what Auld LJ describes as the alien confines of the witness box, where the witness is giving evidence in an adversarial contest in which the judge and the lawyers hold sway. All questions of legal relevance and admissibility are for the parties and the judge and not for the expert. As Auld LJ puts it (at [205], below), it is important to assess the expert’s conduct in the forensic context in which the allegations arise and it is of great importance to take account of the circumstances in which he came to give the evidence and of the potential effect on the outcome. I do not think, however, that it is relevant in deciding the question whether he is guilty of serious professional misconduct (as opposed to the question of penalty) to take account of the actual outcome.

On the other hand, I agree with Auld LJ that none of this absolves the expert from what he calls (at [207], below) professional or forensic impropriety in the presentation and form of his evidence, although his conduct must be judged in the context of the particular circumstances in which he or she is placed.

It will have been noticed that, while the Master of the Rolls agreed with Auld LJ that it is important to assess the expert’s conduct in the forensic context in which the allegations arise and it is of great importance to take account of the circumstances in which he came to give evidence and of the potential effect on the outcome, it is not relevant to take account of the actual outcome. Thorpe LJ did not express a view on these questions. I respectfully agree with the Master of Rolls that, while it is necessary to have regard to the potential effect of the evidence on the outcome, the actual outcome is not a relevant fact. Plainly, if a medical practitioner gives expert evidence incompetently or dishonestly but, in the result, the evidence does not affect the outcome, he will not necessarily be absolved from a charge of unprofessional conduct.

When considering whether James had properly discharged his duties as an expert, the Board was, therefore, obliged to consider his conduct in the forensic context in which it was given. The Board had to consider the circumstances in which James came to give evidence, the way in which he gave it, and the potential effect of that evidence on the outcome. It had to consider also the forensic process and the circumstances in which James was placed at the trial. The question whether James failed to disclose relevant information to the court at the second trial of Keogh must, therefore, be considered, among other things, in the light of the issues at that trial. If the Board failed to have regard to the forensic context, this court is at liberty to bring its own insights to the matter. In Meadow at [280] Thorpe LJ said that while, as a general rule, an appellate court must accord due deference to the evaluation of a panel substantially composed of medical practitioners for the obvious reason that they are better placed to make a peer judgment, that principle only applies where the charge relates to clinical work. It did not apply when the charge concerns the standards expected of expert witnesses where judges are best placed to evaluate whether and to what extent an expert witness fell below the standards spelled out in such decisions as The Ikarian Reefer.

I will examine the forensic context in which James gave his evidence in a moment. Before doing so, it is necessary to consider also some aspects of the duty of disclosure since in the circumstance of this case they are germane to the duty not to mislead the court.

The Duty of Disclosure

It is axiomatic that the duty of an expert to make full disclosure is related to the duty of an expert not to mislead the court. Full disclosure will reduce the likelihood that the expert will mislead the court. In a criminal trial the expert’s duty of disclosure is akin to the duty of prosecuting counsel to present the case for the prosecution fairly to the jury. One aspect of the prosecution’s duty is to disclose to the accused and to the legal advisors of the accused at a reasonable time before the trial the admissible evidence which it proposes to lead: JH Phillips, “The Responsibilities of the Prosecution” in Preparation of Criminal Trials in Victoria cited with approval in R v TSR (2002) 5 VR 627 at [72]-[73]. That latter duty includes an obligation to disclose to the defence material that would assist the defence case: R v Higgins (Supreme Court of Victoria, Court of Criminal Appeal, 2 March 1994), R v TSR (ibid). See also Cannon v Tahche (2002) 5 VR 317 at [56]-[58]; R v Reardon (No 2) (2004) 60 NSWLR 454 at [46]-[51]; Ismail-Zai v Western Australia (2007) 34 WAR 379 at [36]-[40].

There are, therefore, two routes which lead to the principle that an expert instructed by the prosecution is subject to an obligation to act fairly and in the course of justice. An incident of the right of an accused to a fair trial is a right to timely disclosure by the prosecution of all material matters which affect the scientific case relied on by the prosecution, that is, whether such matters strengthen or weaken the prosecution case or assist the case for the accused: R v Ward (1993) 96 Crim App R 1 at 28.

In R v Harris the Court of Appeal not only held that the principles identified by Cresswell J in The Ikarian Reefer applied to criminal proceedings but also adopted with approval remarks made by Wall J in Re AB (Child Abuse: Expert Witnesses) [1995] 1 FLR 181 at 192.

Where that occurs, the jury will have to resolve the issue which is raised. Two points must be made. In my view, the expert who advances such a hypothesis owes a very heavy duty to explain to the court that what he is advancing is a hypothesis, that it is controversial (if it is) and placed before the court all material which contradicts the hypothesis. Secondly, he must make all his material available to the other experts in the case. It is the common experience of the courts that the better the experts the more limited their areas of disagreement, and in the forensic context of a contested case relating to children, the objective of the lawyers and the experts should always be to limit the ambit of disagreement on medical issues to the minimum.

The Court of Appeal had substituted the word “jury” for “judge” in that passage. While those remarks were made in the context of forensic issues concerning children, they apply with equal force to all kinds of expert evidence.

Shortly after in R v B (T) [2006] 2 Crim App R 3 at [174], the Court of Appeal re-affirmed the principles in R v Harris, stating that they applied with equal force to both the prosecution and the defence. At [176] and [177] the court added other duties to be observed by an expert, emphasising that they are duties to the court that override any obligation to the person from whom the expert has received instructions or by whom the expert is paid. The court added the following as matters to be included in an expert’s report:

Details of the expert’s academic and professional qualifications, experience and accreditation relevant to the opinions expressed in the report and the range and extent of the expertise and any limitations upon the expertise.

A statement setting out the substance of all the instructions received (with written or oral), questions upon which an opinion is sought, the materials provided and considered, and the documents, statements, evidence, information or assumptions which are material to the opinions expressed or upon which those opinions are based.

Information relating to who has carried out measurements, examinations, tests etc and the methodology used, and whether or not such measurements etc were carried out under the expert’s supervision.

Where there is a range of opinion in the matters dealt with in the report a summary of the range of opinion and the reasons for the opinion given. In this connection any material facts or matters which detract from the expert’s opinions and any points which should fairly be made against any opinions expressed should be set out.

Relevant extracts of literature or any other material which might assist the court.

A statement to the effect that the expert has complied with his/her duty to the court to provide independent assistance by way of objective unbiased opinion in relation to matters within his or her expertise and an acknowledgment that the expert will inform all parties and where appropriate the court in the event that his/her opinion changes on any material issues.

Where on an exchange of experts’ reports matters arise which require a further or supplemental report the above guidelines should, of course, be complied with.

The clear instruction in these decisions is that an expert should provide the court with an objective and unbiased opinion uninfluenced by the interests of the client or the exigencies of the litigation. The expert is also under an obligation to disclose the facts or assumptions on which his evidence is based including material facts that could detract from his concluded opinion.

The Forensic Context

I turn to examine the forensic context in which James gave his evidence. The Board did not have adequate regard to it when assessing James’ conduct.

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.

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.

One aspect of the forensic context is whether a failure by James to state that he believed that the slide of the tissue sample did not confirm that the mark on the medial side of the left leg was a bruise had a potential to affect the outcome of the trial: Meadow at [89]. For the reasons that follow, it did not. James had reached his opinion that they were grip marks despite his belief that the slide of tissue sample taken from the medial side of the left leg did not confirm that the mark was a bruise. It was clearly apparent from his evidence at both trials that his opinion that the three bruises on the left leg of the deceased were grip marks did not depend on the existence of a bruise on the medial side of the left leg. That was very clearly stated to the court. It is to be noted also that he did not confine his attention to the bruises on the left leg. He had regard also to the bruises on the right leg. It should also be noted that, despite having studied the slides, Cordner did not take issue with him nor did he suggest there was no bruise on the medial side of the left leg. To the contrary, he and Ansford were prepared to concede that the marks on the left leg could be grip marks although they preferred another explanation. The existence or otherwise of a bruise on the medial side of the left was not relevant to their opinion. The question whether there was or was not a bruise could not affect the outcome. It follows that any failure of James to disclose his belief that the slide of the tissue sample did not confirm that it was a bruise would not affect the outcome and, in addition, means that James did not mislead the court. It is apparent also that the issues at the trial would not have been different had James said in his report and in his evidence that the slide of tissue sample taken from the mark on the medial side of the left leg did not confirm that the mark was a bruise. It is quite apparent that it would have made no difference at all. I repeat, the opinions of the pathologists as to the cause of the marks did not depend on the mark on the medial side of the left leg being a bruise.

The conclusion can be tested in this way. Had there been any relevance or significance in the failure of James to disclose his belief that the slide of tissue sample did not confirm that the mark was a bruise, it is reasonable to expect that Keogh’s legal representatives would have led evidence to that effect before the Board from either Cordner or Ansford or another expert pathologist. This is a topic on which it would have been legitimate to have led evidence of that kind. There is a complete absence of such evidence. Given that the pathologists other than James said that the mark was a bruise and given that the issues as between the pathologists were confined to the age and cause of bruising, the fact that no such evidence was led is not surprising. Cordner has not given evidence refuting the terms of paragraph 10 of James’ affidavit. In addition, there is no evidence from Ansford to the effect that, had he known that James did not believe that the slide of tissue sample did not confirm the mark was a bruise, he would have given different evidence. Nor is there any evidence from Cordner or Ansford that, on reconsideration, they now have doubts whether the mark on the medial side of the left leg was a bruise. It is reasonable, therefore, to infer from the absence of evidence on any of these topics that there is no relevance or significance in the fact that James did not disclose his belief. It follows that it had no potential to affect the outcome and importantly that the court was in no respect misled. If it is suggested that James was in some way guilty of non-disclosure, it was of no consequence.

It is important to note also how the evidence as to the bruises was presented to the court. Manock had prepared a chart of the bruises. It became Exhibit P52. Manock expressed his view that the slides confirmed his view that the marks on the legs of the deceased were bruises. All of the other pathologists were asked whether they agreed with Manock’s conclusions that the marks were bruises. James was the only person who said that there was no bruise on the medial side of the left leg. None of the pathologists (including Manock) were asked to explain why they believed that the marks were bruises and James was not asked why he said he did not see a bruise at that point. Importantly, neither of the two pathologists who gave evidence in the course of Keogh’s defence challenged Manock’s conclusion that they were bruises. In addition, there was no focus on any individual bruise on the legs of the deceased.

I turn to spell out how the fact that James had not seen a bruise on the medial side of the left leg was disclosed.

The prosecution had disclosed to Keogh’s legal representatives the statement of James dated 22 December 1994. As has already been noted, James had referred in that report to only three bruises on the left leg of the deceased. He did not refer to a bruise on the medial side of that leg.

The prosecution had also disclosed Manock’s report, Manock’s evidence at the committal, and the slides and photographs. It ought to have been apparent to those advising Keogh that, while Manock had identified four bruises on the left leg, three on the lateral side and one on the medial side, James had identified only the three on the lateral side.

In addition, as has already been noted, before the first trial Mr David QC had spent some time with James who assisted him in the presentation of Keogh’s case. When James gave evidence to the Board on 4 November 2004, he said that he could not recall what he had said to Mr David. That is not at all surprising given that he was being asked to recall a conversation or conversations some 10 years earlier in which time he would have conducted many autopsies and been involved in giving evidence in a number of trials.

Thus, before the first trial, the prosecution had disclosed to Keogh’s legal advisors all of the materials which had been produced by Manock or at Manock’s directions at the post-mortem, that is to say, the same materials that were available to James when he prepared his statement. Importantly, it had all the slides of the tissue samples taken from the body of the deceased, slides which Cordner said he had studied.

At the first trial James clearly and quite unequivocally stated that he had seen evidence of only three bruises on the left leg. It is necessary to repeat his evidence (TX 518-519).

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 finger marks.

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

Keogh’s legal advisors had the transcript of that evidence of James as well as the transcript of Manock’s evidence. They made it available to Cordner before he gave his evidence at the first trial. Thus, when he gave his evidence, Cordner had been provided with the reports of Manock, the photographs and slides prepared at that post-mortem, the statement of James, the evidence of Manock at both the committal hearing and the trial and the evidence of James at the trial.

Notwithstanding that James had clearly stated in his evidence that he had not seen photographs of the bruise that Manock said existed on the medial side of the left leg and notwithstanding that Cordner had himself studied the slides of tissue sample, Cordner gave his evidence on the footing that there was a bruise on the medial side of the left leg.

Obviously, all of this information was in the possession of Keogh’s legal representatives before the second trial. They had ample opportunity to examine it. Before that trial, Keogh’s legal representatives and the pathologists he had instructed would have been able to examine what had been disclosed before the first trial with the additional benefit of the knowledge of the evidence that had been given by both Manock and James at the first trial.

In his evidence at the second trial James again stated quite clearly and unequivocally that he had not seen a bruise on the medial side of the left leg. It is necessary to repeat it (TX 101).

Q. The bruising on the left lower leg – perhaps if you look at P52, the body chart – Dr Manock has given an opinion that in his view that bruising on the left lower leg, the three bruises on the outer aspect and the one on the inner aspect, is consistent with a grip being applied to the leg.

A. Yes, he did do that.

Q. Can you comment on that view.

A. Oh, yes. I’ve seen photographs of the three bruises on the lateral side of the left ankle. I haven’t seen a photograph of the bruise on the medial side. But if it was present as he suggests, then a grip mark is the obvious explanation. I think the point about discrete bruises is that they can be accommodated by the pulp of the end of the fingers applying pressure and if there is a bruise on the opposite side of the arm or leg or whatever, that is the signature of the opposing thumb. The four bruises that he describes – three on the outside and one on the inside – collectively would suggest a grip mark. I think that you can express that as the likeliest explanation until it’s shown to be something else.

In its reasons, the Board said that this exchange between Mr Rofe QC and James was “confused and confusing” and “indicative of the difficulties” under which James gave his evidence. I could not disagree more strongly with the observation that the exchange is “confused and confusing”. James had stated his opinion in terms which are very clear. He unequivocally stated that he believes the three bruises on the lateral side are grip marks. He added that he had not seen a photograph of the asserted bruise on the medial side but if there was a bruise it re-inforced his opinion. There could be no doubt as to the effect of his evidence.

Cordner’s evidence was to much the same effect as his evidence at the first trial. It is important to note one passage of his evidence where he says that his reading of the evidence confirmed the existence of four bruises to the left leg, three laterally and one medially. I have emphasised the passages that are especially relevant (TX 964).

Q. I want you to assume certain facts for the purposes of your evidence in this trial and I indicate they are the facts contained in that evidence itself. Assume that there are a number of bruises in the area of the top of the head of the deceased. You can remember reading about that.

A. Yes.

Q. There were two bruises to the back of the neck of the deceased.

A. Yes.

Q. There were four bruises to the left leg, three laterally and one medially.

A. Yes.

Q. Seven bruises down the shin of the right leg and the alcohol reading from blood taken from the deceased was 0.08.

A. Yes.

Q. I take it all of those assumed facts are consistent with your reading of the evidence in this case.

A. Yes.

Q. I firstly want to go to the topic of bruises and read to you some evidence from Dr Manock which I ask you to assume, p.155. Dr Manock was giving evidence-in-chief on the bruises on the left leg and the question was: ‘Those bruises on the left leg – did they appear to you to be consistent with a particular cause. A. Yes, it was possible to cover the bruises by putting a hand over the leg and a thumb approximating to the bruise on the inner aspect of the left leg and the three forefingers would encompass the bruises on the right aspect. That is if the right hand is placed beneath the calf and the thumb then comes on the inside of the calf. Q. The right hand under the left leg and three fingers excluding the little one. - A. The little one may have been there, but it usually hasn’t sufficient force to leave a bruise. Q. And the thumb on the bruises of the inner aspect of the leg, which can’t be seen in the photograph. A. That’s correct’. Then his Honour asked ‘If that were so, if the leg were held in that position, that would be a cradling of the back of the leg in the hand. A. Yes’. You have heard that opinion of Dr Manock that I have read out and you have read previously about the bruising to the left leg. Would you comment on that.

A. I think that is one possible explanation for the bruises on the leg.

Q. Medically and forensically, are the bruises as you saw them consistent with any other explanation.

A. I think that one is really only limited by one’s imagination as to how else those bruises might have occurred. I think that the presence of three bruises on one side of the lower part of the calf and one bruise on the other side doesn’t lead you inexorably to the conclusion that the only explanation is a hand around that part of the leg and, for my part, I don’t have any difficulty in thinking that there might be accidental explanations for that number and distribution of bruises.

Cordner clearly said that his reading of the evidence confirmed that there were four bruises on the left leg, three laterally and one medially. In cross-examination Mr Rofe QC showed Cordner Exhibit P53. Cordner agreed that that photograph was a photograph of a bruise on the medial side of the left leg of the deceased. That evidence was given after studying the slide of the tissue sample taken from the mark on the medial side of the left leg and in light of his knowledge that James had not seen a bruise on the medial side of the left leg.

At no stage in the evidence of James or Cordner at the first trial was any question raised whether a bruise did in fact exist on the medial side of the left ankle. When James said that he had not seen the photograph of the mark on the medial side of the left leg, neither Mr Rofe QC nor Mr David QC produced the photograph Exhibit P53 to him and asked him to comment on it.

In this case, the forensic context of the second trial included what had been disclosed in the reports of Manock and James and in their evidence at the first trial as well as the slides and photographs prepared at the post-mortem. The forensic context also included the fact that the experts were not concerned with the question whether the mark on the medial side of the left leg was a bruise. They were concerned only with the age and causes of the bruising. It is apparent that both before the second trial and in his evidence at that trial, James made full disclosure of the fact that he had not seen a bruise on the medial side of the left leg. Keogh’s legal representatives and the pathologists that had been retained to act for Keogh must have been aware of the fact that he had not seen a bruise. When regard is had to the forensic context, it is clear that in no respect did James mislead the court or act in breach of his duties as an expert.

In reaching the conclusion that James did not mislead the court, I have not relied on the affidavit evidence of James that he had informed Cordner of his doubts as to the existence of a bruise on the medial side of the left leg of the deceased. When viewed in conjunction with all of the facts so far mentioned, that evidence confirms my conclusion. It is convenient to repeat that evidence:

I recall speaking with Professor Cordner about the existence of this bruise, or otherwise, and I recall he advised me that he had an open mind about whether the sample from the inside left ankle had been a bruise.

That affidavit evidence had been tendered to the Board at its inquiry into the conduct of Manock. Although James was cross-examined on that affidavit, he was not cross-examined as to the context of paragraph 10. In that paragraph, James does not state when the conversation with Cordner occurred. The context in which that paragraph occurs in the affidavit has already been quoted. It is one of a series of paragraphs describing steps taken by James before the trial. It is reasonable, therefore, to infer, as I do, that the conversation occurred before the second trial, if not before the first trial. Even if, contrary to my finding, this conversation occurred after Keogh had been convicted, it confirms that the existence or non-existence of a bruise on the medial side of the left leg was not a matter of consequence for the pathologists.

When I pointed out to Mr Borick QC at the hearing of this appeal that this was uncontroverted evidence, Mr Borick replied that the Board had permitted him only two days in which to examine both Manock and James. He said that he had to spend most of that time cross-examining Manock and so did not have an opportunity to go into all matters in his cross-examination of James. The explanation is disingenuous and I reject it. Mr Borick is senior counsel of long experience. If there was a dispute about this evidence, he could have planned his cross-examination to allow an opportunity to challenge this evidence at least briefly.

There is another reason for rejecting Mr Borick’s explanation. When preparing these reasons, I read the reasons for judgment of Doyle CJ in Keogh v Medical Board of SA. At [109] the Chief Justice said:

I accept that counsel for Mr Keogh before the Board wanted more time, in particular more time to cross-examine Dr Manock. However, having been referred to the transcript in some detail by the parties, and having had an opportunity to reflect on the course of the proceedings, I am not satisfied that the Board erred in the manner suggested by Mr Game. In particular, I do not agree that the Board made an arbitrary or irrational decision. During the course of the hearing there are indications that the Board was willing to allow a modest extension to the time, should a particular need to do so be identified. None was. It is also pertinent to bear in mind that the parties provided written submissions at the conclusion of the hearing, in addition to oral submissions.

It is apparent that, if Mr Borick had required more time in which to cross-examine James, he could have applied to the Board for an extension of time.

The account given by James of his conversation with Cordner is an important piece of evidence. While it might have been better expressed, there can be no doubt that James is stating that he had informed Cordner that he doubted that the slide of the tissue sample taken from the mark on the medial side of the left leg confirmed that it was a bruise but that Cordner had an open mind on the question. While it might have been more desirable for James to have stated in his report of 22 December 1994 that he disagreed with Manock that that tissue sample confirmed that the mark was a bruise, any failure to do so is mitigated by that conversation. In this way, full disclosure was made to Cordner and, I infer, to Keogh’s advisors of James’ belief that the slide of the tissue sample did not confirm that the mark on the medial side of the left leg was a bruise. Despite that fact, Cordner was not concerned whether the mark was or was not a bruise.

The fact that Cordner was not concerned whether the mark was or was not a bruise must be considered in the knowledge that Cordner had been supplied with all the slides of tissue samples taken from the deceased. He had had an opportunity to examine them. As he said at each trial, he had studied the slides. He had also reviewed the work of Manock. He had also been informed by James of his (James’) belief that the slide of tissue from the medial side of the left ankle did not confirm that the mark was a bruise. Cordner must also have been aware from his reading of the autopsy report of Manock, the statement of James, the evidence of Manock at the committal and at the trial, and the evidence of James at the trial that, while Manock believed that the mark on the medial side of the left ankle was a bruise, James did not refer to a bruise at that point. If Cordner had any doubt on the question whether the tissue established that that mark was a bruise, he could have voiced that doubt in his evidence. He did not do so. If Cordner had believed that the slide of tissue sample taken from the mark on the medial side of the left leg was not a bruise and that it was a relevant issue, he had ample opportunity in the course of his evidence to say so. He did not do so. He was prepared to proceed on the footing that the mark was a bruise. Nor is there any hint in any of the questions asked by Mr David QC in cross-examination to suggest that it was part of the defence case that the tissue did not confirm that the mark was a bruise. There was not even any issue as to whether the mark was a bruise. It is reasonable to infer, as I do, that Cordner did not believe that there was any significance in whether the mark was or was not a bruise. If he did believe there was any significance in it, he would have mentioned it in his evidence at the trials of Keogh. Whatever is the correct conclusion the plain fact remains that Cordner treated the mark as a bruise as did Ansford. If it is suggested that Cordner was not aware of it before the trials, it is reasonable to infer that, if it had any significance, Keogh would have adduced evidence to establish its significance at the hearing before the Board either at the inquiry into Manock’s conduct or at the inquiry into James’ conduct.

It cannot be emphasised too much that the evidence at the trials shows that the opinions of the pathologists as to the causes of the bruising on the legs of the deceased did not depend on the existence of a bruise on the medial side of the left leg. James had made that clear in his evidence and that opinion was not in any respect challenged by either of the pathologists called by the defence in either the first or second trial.

When the Board considered whether James should have disclosed his belief that the histology did not confirm that the mark was a bruise, it failed to consider that question in its forensic context. When the conduct of James is put in its forensic context, it is quite apparent that he did not act in breach of the duties and responsibilities imposed on him as an expert and that he did not act in any way that could have misled the court. Even if the Board was correct in believing that the proper discharge by James of his duties as an expert required him to disclose his view, his failure to do so when viewed in the context in which the issues as to bruising were examined at the trial and the manner in which the pathologist dealt with them clearly indicates that any failure on his part did not in any respect mislead the court.

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.

Evidence Before the Board

The Board was critical of aspects of the evidence given by James at the inquiry into the conduct of Manock. That evidence was given in answer to questions put by Mr Borick in cross-examination. In that evidence James explained why he had not disclosed his belief as to the histology of the slide of the tissue sample taken from the mark on the medial side of the left leg. I disagree with the Board’s conclusion that the explanations were not satisfactory. When placed in context, they are entirely credible.

The first passage includes an answer by James to the effect that he did not think it was relevant to disclose his belief as to the histology of the tissue sample of the mark (TX 305).

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.

I interpolate at this stage that the first question misrepresented the evidence of James. At no stage in either trial did he tell the jury that there were four bruises on the left leg. His consistent position was that there were only three bruises. The cross-examination continued:

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.

Q. On the question of causation you said that obviously they had the same causation. That’s what you said a little while ago.

A. I think that’s the only reasonable assessment.

Q. Why.

A. Because the marks are all aligned in a row and they ---

Q. There are only three of them.

A. I’m sorry. There are seven on the right.

Q. The seven on the right leg have got nothing to do with this. Do you understand that.

A. I don’t accept that either.

Q. What have they got to do with it.

A. Well, I think what we’re trying to do is say what are these marks on the legs and what is their significance, and I think we’ve done that. The marks on the legs are bruises and their significance remains uncertain, but I think the likeliest explanation is that they are grip marks.

It is clear from that passage that in the perception of James the question whether the mark on the medial side of the left leg was or was not a bruise did not affect his conclusion. He had clearly said so at the trial. For that reason, he perceived that it was not relevant to state his belief that the slide of tissue sample did not confirm that the mark was a bruise. For the reasons already given, it did not affect the outcome of the trial. No doubt he was encouraged to hold that view by Cordner’s response that he had an open mind on the question whether the mark on the medial side of the left leg was a bruise. Cordner’s response to James suggests that Cordner also held the view that it was not relevant.

Mr Borick QC submitted that it was not the function of James to determine what was or was not relevant evidence. That, he said, was the function of the trial judge. That is an attractive submission. However, it fails to have regard to the role and function of experts at a trial, be it a criminal trial or civil trial. In those cases where scientific or technical issues exist, it is not uncommon for the experts in their relevant field to confer. As experts, they are in the best position to determine what are the real areas of difference between them. In doing so, they do not in any sense usurp the function of the trial judge. To the contrary, the reports or opinions of the expert assist the trial judge in determining what are the issues and thereby what is relevant. It is not at all uncommon for the trial judge to invite experts to inform the court as to what is common ground and what is in dispute. If the differences are identified in that way, it is possible to address those differences in a clear and coherent manner. It seems that in neither trial there was any kind of formal conference between the experts. Whatever occurred, it is quite apparent that in respect of the bruises on the legs of the deceased, there was no issue whether the marks on the medial side of the left leg was a bruise. The reasoning of the expert pathologists did not depend on the existence or otherwise of one mark. The issues had a broader focus, that is to say, the age and cause of the bruises. It is apparent that the presence or absence of one mark did not affect that question. In an informal way, the experts in effect defined the issues.

The evidence of James to the Board provides two other explanations why he did not think that there was any relevance in his belief that the slide of tissue sample did not confirm that the mark was a bruise. The first is his view that the absence of a bruise on the medial side of the left leg did not affect his opinion that the other bruises on the left leg were consistent with grip marks. He had expressed a like view in his evidence at the second trial, when he was asked by Mr David QC in cross-examination whether the absence of bruises at particular points could affect his opinion that the bruises that did exist were consistent with grip marks. The questions and answers related to the bruises on both the right and the left legs of the deceased. In order to understand fully the effect of the answers concerning the bruises on the left leg, it is necessary to review all the questions and answers on that topic (TX 217).

Q. You are of the opinion that the bruises down the right shin are consistent with grip marks.

A. Obviously they are consistent with the application of finger pressure. If the bruises on the left ankle resulted from grip marks, then the similarity of those to the interrupted pattern of bruises down the right shin might have the same causation. That’s simply a logical presumption.

Q. I am more concerned about a medical opinion. Is there something other than their disposition that leads you to the conclusion that they are consistent with finger pressure. That’s the one down the right leg.

A. There is no reason per say to say that they were due to finger pressure. They don’t have a signature on them.

Q. Is that similar to the ones on the left leg, other than their disposition.

A. In general, yes. We don’t have a bruise that is a continuous bruise, 8 centimetres in length, for instance. These are interrupted circumscribed bruises, parallel to each other, the sort of things you get by gripping repeatedly.

Q. Other than what I might call the disposition, there appeared to be very little difference between the bruises on the left leg and the bruises on the right leg, is that right.

A. Yes, I would be more comfortable with that suggestion. If, for instance, there was a nice big bruise on the back of the right calf, then we would have good reason to think that they were due to gripping.

Q. Does the absence of a fourth finger affect your opinion as to consistency of gripping on the left leg.

A. No. It is not as though when someone is gripped they will, per say, as a result, have an imprint from each of the four fingers. For instance, if someone is manually strangled by using one hand or both hands around the neck, sometimes we see evidence of the two thumbs, sometimes we see variable evidence of the application of the other eight fingers on either side of the neck.

Q. I am not actually talking about strangulation, but the gripping of the left leg with a person’s right hand. Does the absence of a fourth finger concern you at all as far as that theory of consistency is concerned.

A. No. It may be that the nature of the grip is such that the thumb applies pressure, anchoring the pressure from the main three fingers, and the small finger, for instance, might apply minimal pressure, or insufficient to leave a resultant bruise.

Q. So that the actual number doesn’t concern you.

A. No. What is really important there is the presence of discrete bruises arranged more or less in a row next to each other. If you confined (sic) pressure on the other side of the arm or leg or thigh, then that would tend to support the suggestion that it was in fact a gripping.

HIS HONOUR

Q. Discrete in the sense of one separate from the other.

A. Yes.

XXN

Q. Other than the disposition of these bruises, are these bruises of both legs consistent with all sorts of other applications of trauma.

A. Yes. I hoped I made that clear earlier.

This evidence explains why James did not think it necessary to refer to his belief that the slide of tissue sample of the mark on the medial side of the left ankle did not confirm that it was a bruise. He had formed his opinion that the marks on the left leg were grip marks notwithstanding the absence of a bruise on the medial side of that leg. It is relevant to note that he did not ground his opinion only on the bruising on the left leg but had regard also the bruising on the right leg. In other words, he stood back and viewed the evidence as a whole.

The question whether the absence of a bruise on the medial side of the left leg would affect his opinion was taken up again by Mr Borick QC when he cross-examined James before the Medical Board at the inquiry into the conduct of Manock. It followed the questions put by Mr Borick concerning remarks made by James to an employee of the Australian Broadcasting Corporation. I have emphasised the more relevant passages (TX 307-310).

Q. In the course of the discussion that you had, was there mention made of the so-called bruise on the inner side of the left ankle.

A. I haven’t got notes of what I discussed with her. The essence of that discussion was whether I or other people at the Forensic Science Centre would be involved in the program. I discussed that, as I had to as a public servant and subsequently said that we declined to be involved in the program.

Q. I’ll read you her notes and you can comment on what you said.

A. Certainly.

Q. She said to you, “What were they concerned about?” You said, “You’d have to ask them. The issues I’m aware of were the interpretation of the row of bruises down around her shins. Colin Manock felt you could choreograph those and confidently say which hand was there. I wasn’t that confident at all. He was implying this hand went there and that one there et cetera. I think if you see a row of bruises they can be regarded as grip marks, but you wouldn’t go further than that by suggesting a modus operandi as Dr Manock did. If you’d see an opposing mark on the other side of the leg, along with the finger marks, you can interpret that as the thumb mark. If there is no mark on the other side – that is, the thumb mark – then you haven’t got proof of a grip.” That’s her version of what you said. Do you dispute that version.

A. Not at all. It represents pretty much my view today.

Q. That is, if there is no mark on the other side – that’s the thumb mark – then you haven’t got proof of a grip.

A. You haven’t confirmed it. That’s right. I’ll give you a for instance if I may.

Q. Yes. Hang on. We’ve got to the point there that if ---

PRESIDING MEMBER: I’d like to hear what --- MR BORICK: I’m sorry

A. Well, much has been made – and I think we’re in agreement on this, it’s simply the weight to be put in it – but if we have a row of marks that may represent finger marks and we can’t confirm the mark that may be from the opposing thumb, does that in any way exclude that the other marks can be finger marks? That’s what we’re arguing about. Now, another example I can use ---

XXN

Q. Could I interrupt there. That’s not what we’re arguing about, but anyway you go on.

A. If, for instance – another common scenario seen in forensic medicine – we have a young lady who has clear evidence of pressure on her neck: manual strangulation. And you see the characteristic finger pad marks, with or without fingernail abrasions, on the neck and you see the characteristic marks from the bruises left by the individual fingers, but you fail to find a thumb mark on the other side of the neck, but this lady has the features of manual strangulation, does that mean you turn around and say, “No, I haven’t found the thumb mark. This can’t be a case of manual strangulation”? Quite clearly, that’s silly. It simply means that we failed to find evidence of a thumb mark.

Q. Let’s see how is silly, Dr James, because you gave that report to Mr Atkinson, the attorney-general, didn’t you, this concept of the strangulation.

A. Yes. I gave two reports in relation to the attorney-general.

Q. What you said to him was “if you have a case of strangulation” and then you went on with this nonsense you just went on with. “If you have a case of strangulation” were your words.

A. Yes.

Q. If you have a case of strangulation you don’t need to have any marks, do you.

A. No.

Q. What’s the sense of all the rest of what you went on with.

A. Well, what you’re talking about is whether bruises can result from finger pad marks, in one instance on the neck, in the other instance on the leg. Now, what is the inference of the opposing thumb mark? If it’s present on the neck it will obviously corroborate the suggestion that the other marks are finger marks. If it’s not there, it doesn’t exclude it. In this case the fact that we have marks on the leg that may be grip marks are not corroborated because I can’t confirm the identity of the bruise on the inside, but it doesn’t exclude it.

Q. If you’d got into the witness box and said to the jury, “Look, there is no proof of a mark on the inside of the leg and therefore there is no proof of a grip,” the jury would have to say there is no proof of a grip, wouldn’t they.

A. No. Indeed, I think these are grip marks, with or without the mark on the inside of the leg.

Q. What did you mean when you said to Sally Neighbour, “If there is no mark on the other side, then you haven’t got the proof of the grip.” What did you mean.

A. You haven’t corroborated the thumb mark. It doesn’t mean that the other marks are not from fingers.

Q. To have a grip mark of the sort described here, with the sort of pressure that would have to be used, you’d expect to see the five fingers, wouldn’t you.

A. No. If you have five fingers there, you might see marks from three of the fingers but not the little finger. You may or may not see a mark from the thumb. That’s not true.

This evidence is another indication why the pathologists were not concerned with the question whether the mark on the medial side of the left leg was a bruise.

The second explanation is that it is not necessary to take a tissue sample from every instance of bruising. It is sufficient to take a representative sample. I set out the evidence of James on this question. It is evidence before the Board (TX 290-292). Again, I have emphasised the more relevant passages.

Q. ... There has also been some attention given to the question of bruising, and you have referred to that in your affidavit. Indeed, you have suggested that in your view “the bruises documented on Anna Jane Cheney’s leg ought to be regarded as grip marks until proven otherwise”. Indeed you say, “In casework, patterns of linear interrupt the bruising caused by grip marks are something you repeatedly see.” Can you just tell us a bit more about your experience in seeing such grip marks.

A. Yes. The first thing is that these marks on the legs – seven described on the right and three on the left – were all similar, as shown in the photographs; they all looked about the same shape and size and appearance. So the first issue is what were they, and there’s no doubt at all that they’re bruises. So that’s the first thing. I’ve got ---.

Q. Perhaps if I just pause there. Why do you say there’s no doubt at all they’re bruises.

A. Well, the representative collection of tissue samples that Dr Manock took show, with the exception of the inside of the ankle, that they’re bruises. The one on the inside of the left ankle, as I heard Dr Collins saying, is not sufficiently impressive to label that as a bruise. I don’t know what that was. It may have been a bruise where the sample submitted didn’t have the bruised area. It may not have been a bruise. In any event, I wouldn’t call that one a bruise, but the others are bruises. I don’t think it’s necessary to take sections from every one; they are obviously the same causation, and the representative samples allow you to say that these are bruises. They are not anything else. Okay. Quite separately is their causation. Now, I don’t know the cause of them; they don’t have a label on them that you might get from a particular object that’s stamped into the skin, for instance. Repeatedly in medico-legal casework, you do see grip marks on the arms or the shoulders of someone who has been forcibly restrained, for instance, and characteristically you’ll see either the finger pad marks or the pressure marks from the fingers, and particularly you might see the opposing thumb on the opposite side of the arm or the leg, for instance, and in those repetitive cases, in my view, you call these marks “grip marks”. In this case my view is that the marks on the legs should be regarded as grip marks until shown to be otherwise. I’m not saying they are grip marks, but they’re so suggestive of grip marks that it’s reasonable to assume they’re grip marks until a more plausible explanation presents itself.

Q. That opinion as to the appropriate approach, you don’t vary because of what you say in paragraph 7, where you say you differed from Dr Manock in one respect; that was in respect of this bruise on the inside of the left ankle, which you wouldn’t have described as a bruise. That doesn’t change your view as to the appropriate approach.

A. No. The great advantage, as I mentioned before, of seeing the isolated mark form the opposing thumb, is that for practical purposes it seals the issue. But here, while Dr Manock has described it on his body chart and taken a piece of tissue which, according to his body chart, has come from the inside of the left ankle, down the microscope I can’t convince myself that that’s earnt the description of a bruise.

Q. But that, although therefore it doesn’t seal the issue, leaves you with that view that until proved otherwise you would still regard them as grip marks.

A. Yes.

That evidence was not disputed or called into question in any way. It assists in explaining why James did not think it necessary to inform the court that in his view the slide taken from the medial side of the left leg of the deceased did not establish bruising. It is to be noted that James is once more careful to state that the mark on the medial side of the left ankle is not a bruise.

The Board’s Reasons

The Board’s reasoning on the question whether James had asked the court proceeds on a false premise. At page 11 of its reasons, it said:

The Board considered it worth noting that but for the respondent’s assertion in 2001 that he knew the mark was not a bruise; it seemed highly unlikely that the matter would have come before it. In consequence the Board observed that it was the respondent’s own action which had generated the complaints of unprofessional conduct.

The reference to “the respondent” is a reference to James. The reference to “the respondent’s assertion in 2001” is a reference to the letter from James to Mr Rofe QC dated 30 October 2001. The Board’s statement is entirely incorrect. At no time in that letter did James say that he knew that the mark was not a bruise. In his letter, James stated his belief that the slide of the tissue sample taken from the mark did not confirm that the mark was a bruise. In that letter he had said:

Professor Thomas essentially disagreed with Dr Manock about the alleged bruise on the inner aspect of the left ankle of Ms Cheney. He claimed that histopathology failed to confirm this was a bruise. I agree with him. Sections of other marks on the front of the legs cle