Networked Knowledge - Law Reports

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

Henry Keogh homepage
Article: Australian law on miscarriages of justice
Article: UK law on miscarriages of justice
Article: USA law on miscarriages of justice

Adelaide Review Online edition as of 26 June 2008 - One wrong righted, another done

[Note: this article by Mr Jacobs contains comments regarding Dr Bob Moles which are based upon an erroneous understaing of the Medical Practitioners Act 2004 by Mr Jacobs. Dr Moles has written to the Adelaide Review to inform them of this fact, and to request that they take appropriate action with regard to any further publication or dissemination of this error - see note below].

A wrong was righted in the Supreme Court late in June when Justice Bruce Debelle comprehensively demolished any suggestion that pathologist Dr Ross James had been guilty of unprofessional conduct in giving expert evidence in the murder trial of Henry Keogh 13 years ago.

By Michael Jacobs

But another wrong was then done. Justice Debelle’s exoneration of Dr James was met with total silence from those who had given the most exuberant coverage back in April when the Medical Board, in the decision which Justice Debelle recently overturned, censured Dr James for unprofessional conduct.

Let’s not be coy. We are talking about Channel Seven’s Today Tonight program. Others did middling to good jobs with the Debelle judgment. Our friends up the road, The Independent Weekly, had a good feed from AAP running on their on-line news within a couple of hours or so. The Australian next day ran a story which was reasonably comparable in weight and prominence to what it had done with the adverse Medical Board decision in April.

The Daily Shopper has tended to shy away from the continuing saga of the Keogh case since a couple of arguments about defamation a few years ago. Still, it recorded the outcome - although so briefly that you would not have known what the story was about unless you already knew what it was about. But nothing appeared which might have balanced the toxic ripple that runs through communities after the sort of coverage that Today Tonight gave to the lamentable finding of the Medical Board on April 2 that Dr James be “censured” – the lowest available penalty – for unprofessional conduct.

Nothing appeared which might correct that vague sense, even in people who are not following or did not see the story, that Ross James is the doctor bloke who’s on the nose for having done something wrong in some court case. Nothing appeared, even in the fair and competent reports, which quite conveyed the completeness of Dr James’s vindication in the judgment given by Justice Debelle.

What had the Board censured Ross James for? For not finding an opportunity to tell the jury back in 1995 that a microscope slide - a slide the detail of which he could not remember at the time - did not confirm that a mark which another doctor had seen on the inside of the victim’s left calf was a bruise.

For this he was said to have breached the duty of disclosure that lies on all expert witnesses. It’s worth noting at this point that Dr James had not himself seen the mark, or even a photograph of it. As I wrote in this paper on March 28 this year, you might think that that is an argument about not very much at all, but for those who are maintaining the campaign that Henry Keogh was wrongly convicted of murdering his fiancée by drowning her in her bath in 1994, it has become central.

The existence or not of that bruise is said to be crucial, because they argue that the jury was dudded by the evidence of that bruise into believing that it was a thumb-mark. Along with other nearby bruises, it was said to support the theory that Anna-Jane Cheney had drowned through Henry Keogh grabbing her lower leg and up-ending her in the bath.

No thumb-mark, they say, means fundamentally flawed scientific evidence, means doubt about the grip theory, means the verdict was either obtained improperly or was unsafe, and means the conviction ought to be reviewed. Hence the attack on the integrity and reliability of even a secondary witness like Dr James - who only ever reviewed the report of the autopsy done by the then chief forensic pathologist, Dr Colin Manock. (Dr Manock’s work is the subject of continuing disciplinary proceedings in the Medical Professional Conduct Tribunal, instigated by Henry Keogh.)

That line of reasoning, from no bruise to no grip to no reasonable certainty of murder, has an attractive simplicity. But it has more in common with medico-legal soapies than it does with the untidiness of real life. In the soapies, one dramatic fact solves everything just in time for the ads to run before the next show. In real life we have to remember a few other things.

Here are some. It is perfectly possible to have a good strong hand-grip without the thumb digging in to make a bruise. The jury was told that the evidence of the four pathologists from whom they heard was not decisive. There was lots of other circumstantial evidence. Despite all the controversy bubbling along over all these years, no juror has emerged, as they sometimes do in controversial cases, to speak of uneasiness about the verdict.

Of course, even if expert evidence, or a failure to give it, is not crucial to the outcome of a case, it is still possible for a professional expert witness to be in trouble for giving bad evidence, or for withholding good evidence that should have been offered. But Justice Debelle deals fully with that point, as with every other. After carefully reviewing the evidence in Henry Keogh’s trial, and setting out the rules about the duties of expert witnesses, he deals with the case against Ross James. And one by one, every accusation against James, every finding of the Medical Board on this subject, topples to the ground: if Dr James was in some way guilty of non-disclosure, it had no effect on the outcome; but Dr James was not guilty of that; he had disclosed his view to the defence before the trial; there was no point in the trial at which his view on the point was sought or should have been proffered; he did nothing that could have been a breach of his duties as an expert, and nothing that could have misled the court; he did nothing unethical or improper; and – again and again – the Medical Board got it wrong more or less from start to finish. The Board mis-stated matters of fact; at one point it misrepresented the opinion of Dr James; it failed to consider this; it failed to consider that; another finding “has no foundation in the evidence”.

It is a dramatic judgment. It is not often that an appeal in the courts succeeds so comprehensively. For that alone, it should have been news. It is also, as it happens, a good read. Justice Debelle is someone who has a rare skill among judges in telling a story. Try http://www.austlii.edu.au/au/cases/sa/SASC/2008/156.html.

But what happened? Not much, and nothing at all where it mattered. The contrast with last April, when the Board’s obviously flawed reasons were published could not have been more stark.
Then, we had Today Tonight rabbitting excitedly about Dr James being “in disgrace” for having been censured – the lowest available penalty – for a supposed lapse in a courtroom 13 years ago. We had the assertion that the evidence was “crucial”, which was on any fair view no better than contestable.

We had Dr Bob Moles telling viewers it was “the most serious finding you could have against a professional medical expert witness”. This hardly squares with the lightest available penalty, and it sits oddly against the Board’s power to suspend someone from practice, or even to find them unfit to practice at all. And so it went on. Anyone who had any familiarity with this case, as many journalists do, could have seen on the quickest read of the Medical Board’s findings that day that there might be a problem here and there. That was a reason for moderation. There were other reasons too. But even moderation in the reporting in April would have required some sort of balancing account of Justice Debelle’s over-ruling of the April decision by the board. Most people understood that, and acted on it.

The professional conduct complaint against Dr James was made by Henry Keogh. Mr Keogh has the right still to appeal against Justice Debelle’s decision.

Note by Dr Bob Moles

Unfortunaely, Mr Jacobs has got it wrong again. The power of the Medical Board on a complaint is to censor the practitioner, with or without a fine. The Medical Practice Act 2004, states:
S51 (6) If, after conducting an inquiry under this section, the Board is satisfied on the balance of probabilities that there is proper cause for taking disciplinary action against the respondent, the Board may, by order, do one or more of the following:
(a) censure the respondent;
(b) require the respondent to pay to the Board a fine not exceeding $5 000; [Mr Keogh did not submit that it would be appropriate to invoke the "fine" provision.

Mr Jacobs states: it sits oddly against the Board’s power to suspend someone from practice, or even to find them unfit to practice at all

As you can see, the Board has no such power under the disciplinary provisions of this Act

In his farewell speech, Justice Debelle stated: "I am especially delighted that Sam Jacobs is here today.  I owe so much to him."

Sam Jacobs, is, I understand the father of Michael Jacobs, the author of this article.

When Michael Jacobs published a somewhat misleading review of my book, "A state of injustice", in the Adelaide Review, I pointed out in the following edition, that he should have disclosed that his father had been the Chair of the Forensic Advisory Group in South Australia, and that this might have constituted an interest in the subject matter on which he was reporting which he ought to have disclosed. Now that Justice Debelle has disclosed that his friendship with Sam Jacobs has been of such importance to him, I fear that Mr Michael Jacobs, ought to have mentioned [in his uncritical report of Debelle's judgment] this aspect of the Debelle farewell speech. There are or course, a great many errors in the judgment of Justice Debelle which will be agitated before the Full Court when the appeal from his judgment is heard

Top of Page