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IN THE SUPREME COURT OF SOUTH AUSTRALIA

No. SCCIV- 1465 of 2005

BETWEEN

HENRY VINCENT KEOGH

Appellant

And

ROSS ALEXANDER JAMES

Respondent

NOTICE OF APPEAL

Date of Document: 3 July 2008

Filed on behalf of the Appellant HENRY VINCENT KEOGH

Michael Hegarty & Associates 257 Flinders Street

Adelaide SA 5000

Telephone: 8215 0288

Facsimile: 8215 0188

DX:

E-Mail:

Settled by: Michael Hegarty

Date and time of filing or transmission:

Form 29 Rule 284

NOTICE OF APPEAL

The Appellant Henry Vincent Keogh appeals to the Full Court of the Supreme Court of South Australia against the judgment of a single judge of the Supreme Court dated 13 June 2008.

Date of Judgment: 13 June 2008

Judicial Officer appealed from: Debelle J.

File No. of Court appealed against: No 431/2008 

Judgment of Debelle J: SASC [2008] 156, 13 June 2008

Respondent’s address:

Iles Selley - Lawyers

38 Carrington Street

ADELAIDE SA 5000

Judgment appealed against:

The judgment of Debelle J: SASC [2008] 156 of 13 June 2008, annexed to this document.

The appeal is against the whole of the judgment:

The grounds of appeal are:

1. The judge, having correctly identified the principle and the test to be applied in considering what is the obligation of disclosure on an expert witness, namely, full disclosure to the prosecution, the defence, other witnesses and to the Court of all relevant material no matter whether it assists or is detrimental to the cause of the client (in this case the prosecuting authority), erred in law by failing to apply that principle and that test to the facts before him.

2. The judge, having cited R v Ward which refers to the duty of an expert witness to disclose all material matters as applying in the pre-trial period, erred in law by finding that Dr James did not have an obligation to disclose the relevant material in his initial report when he had full opportunity to do so.

3. The judge, having cited R v Ward which refers to the principle or test that an expert witness has a continuing obligation when giving evidence to disclose all material matters to ensure the Court is not misled, erred in law by failing to apply that principle or test to the circumstances of this case.

4. The judge, having cited R v Ward which refers to the principle that why there was no disclosure is an irrelevant question, erred in law by failing to apply that principle to the circumstances of this case.

5. The judge, having cited Re AB (Child Abuse: Expert Witnesses) which expresses the principle that an expert witness must make all his material available to all of the other experts in the case, erred in law by failing to apply that principle to the circumstances of this case.

Particulars

5.1 Dr James did not make his material available to Dr Manock.

5.2 There is no proof that he made his material available to Professor Cordner.

5.3 He did not make his material available to Professor Ansford.

6. The judge erred in law by drawing the following inferences, the majority of which are based on hearsay or from a conversation which the judge said he did not rely on:

6.1 The inference that Dr James had a conversation with Professor Cordner.

6.2 Based on that inference the inference the conversation occurred before the second trial if not before the first trial.

6.3 Based on those inferences the inference that the conversation included a specific reference to the true result of Dr James’s histological examination of the medial slide.

6.4 Based on those inferences the inference that the existence or non existence of a bruise on the medial side of the left leg was not a matter of consequence for Dr Manock, Dr James, Professor Ansford and Professor Cordner (the pathologists).

6.5 Based on those inferences the inference that Dr James made full disclosure to defence counsel that his histological examination of the medial slide did not confirm the relevant mark was a bruise.

6.6 Based on that combination of inferences a significant finding that full disclosure was made to the defence and accordingly to the Court.

7. The judge erred in law by finding that Dr James complied with the obligation of disclosure to the Court by an inferred disclosure of the relevant material (the fact that his histological examination of tissue taken from a mark on the medial side of the left leg of the deceased did not confirm the mark was a bruise) to Professor Cordner who was another expert who gave evidence in the case.

8. The judge erred in law in finding that in a criminal trial expert witnesses are entitled to define the issues relevant to their expertise, by agreement between them. In any event, there was no such agreement, informal or otherwise, in this case.

Particulars

With regard to the medial mark it is impossible to assert that the four pathologists who gave evidence were agreed that the medial mark was irrelevant to the issues of age and causation.

8.1 Dr Manock said the mark was a bruise and his histological examination not only confirmed that fact but also enabled him to age the bruise. Far from being irrelevant, this was pivotal to his speculation as to manner of death.

8.2 Dr James said he had not seen the bruise, nor a photograph of it, but if the bruise did exist then Dr Manock was entitled to express the opinions that he did as to the age and causation.

8.3 Professor Cordner was asked to assume the medial mark was a bruise. He did so.

8.4 Professor Ansford was told to assume Dr Manock gave evidence that there was a bruise on the inside of the left leg. He never saw the slides and most importantly he was never told of the true results of the histological examinations conducted by Dr Manock and by Dr James, nor was he told that Professor Cordner had, according to Dr James, expressed reservations about the medial mark.

9. The judge, having cited Meadow [2007] which expresses the principle that in the consideration of the proper discharge of the duties of an expert it is of great importance to take account of the circumstances in which the expert came to give the evidence, erred in law by failing to apply that principle to the circumstances of this case.

Particulars

The relevant circumstances in this case are:

9.1 Dr James was asked by the Director of Public Prosecutions to review the work of Dr Manock because of concerns both the prosecution and the defence had about some aspects of Dr Manock’s evidence following the Committal proceedings and to give the Director his opinion on various matters.

9.2 To provide those opinions Dr James wrote a report (statement).

9.3 Dr James was called as a witness for the prosecution based on the contents of that report.

9.4 Dr James also assisted defence counsel in the preparation of the defence case.

10. The judge erred in law by finding that the Medical Board did not correctly apply the relevant principles or tests as to whether or not the non-disclosure of relevant material constituted unprofessional conduct.

11. The judge erred in law by finding that the non-disclosure of relevant material did not constitute unprofessional conduct within the meaning of unprofessional conduct pursuant to Section 5 of the Medical Practitioners Act 1983.

12. The judge erred in law by failing to draw the distinction between first, whether Dr James’s failure to disclose relevant material to the prosecution, the defence, other witnesses and to the Court was a breach of his obligations and second, whether that breach constituted unprofessional conduct within the meaning of unprofessional conduct pursuant to Section 5 of the Medical Practitioners Act 1983.

13. The judge erred in law by finding that the relevant non-disclosure had to be related to what the judge perceived to be the trial issues instead of being related to the hypothesis being advanced by the prosecution experts that the presence of bruises on the left leg of the deceased were consistent with a grip pattern given the fact that the histological examination contradicted that hypothesis.

14. The judge erred in law by (1) finding that Dr James, as an expert witness, was entitled to decide that the fact that his histological examination contradicted the hypothesis he was advancing was not relevant to the trial issues as the judge perceived them, and (2) failing to take into account the other explanations made by Dr James which were inconsistent with his explanation that he did not think it was relevant.

15. The judge erred in law by finding that the fact of the non-disclosure by Dr James did not have the potential to affect the outcome of the trial and further that it could not or would not affect that outcome.

16. The judge erred in law by failing to identify a cogent reason to enable him to depart from the decision of the Board.

17. The judge erred in law by finding that Dr James had no opportunity to make disclosure of the relevant facts.

18. The judge erred in law by accepting that an expert witness can speculate on an issue, based on a possibility or a suggestion, without reference to the fact that an hypothesis which was allegedly advanced dependent on that speculation was directly contradicted by a non-disclosed fact.

19. The judge erred in law by accepting Dr James’s assertion that the “likeliest explanation” is that the bruises represented grip marks from the fingers when Dr James gave no scientific basis for that assertion and as a result the assertion represented inadmissible speculation.

20. The judge erred in law in accepting the opinions expressed by Dr James as to the cause of a physical condition which he himself had not observed.

21. The judge erred in law in refusing the application to call Associate Professor Thomas concerning the nature and identity of the histology slides.

22. The judge erred in law in refusing the application to provide evidence of Professor Cordner’s movements prior to the first trial.

23. The judge erred in law in refusing to admit the affidavit of Associate Professor Thomas concerning his analysis of the case and examination of the histology slides.

24. The judge erred in law in refusing to hear an application to call for Dr James’s notes to be produced.

25. The judge erred in law in refusing to admit the photograph Trial Exhibit P53.

26. The judge erred in law in refusing to admit the affidavit of Robert Douglas Sheehan concerning the presence of the Trial Exhibit P53 photograph in the autopsy photographs examined by Dr James.

27. The judge erred in law in failing to have regard or sufficient regard to relevant evidence, namely the replies by Dr James of 7 December 2004 and 7 March 2005 to the Medical Board.

28. The judge erred in law in failing to consider the issue of the age determination of the bruises.

29. The judge erred in law in refusing to admit the Code of Ethics of the Australian and New Zealand Forensic Science Society.

30. The judge erred in failing to have regard or sufficient regard to the evidence of Dr James to the Medical Board in 2004 that when he gave his evidence at the second trial it was clear in his mind that he had decided from his histology examination of the tissue from the medial side of the left leg that the mark was not a bruise.

31. The judge erred in making the following findings of fact:

(1) that the histological findings had no relevance to the issue of the age of the bruises on the left leg of the deceased.

(2) that Dr James told the jury at the second trial that the medial mark on the left leg of the deceased was not a bruise.

(3) that Dr James was the “only person” who said there was no bruise on the medial side of the left leg.

(4) that in advancing his hypothesis Dr James placed no reliance on the presence or absence of a medial bruise.

(5) in placing any significance on the fact that Dr James did not see a bruise on the medial side of the left leg.

(6) that Dr James’s statement that he had not seen a photograph (Exhibit P53) which allegedly depicted a bruise on the medial side of the left leg was correct, particularly in the light of his own finding that that photograph was available to Dr James when he prepared his statement.

(7) that Dr James in his initial report and in his evidence placed no reliance on the existence or non-existence of a bruise on the medial side of the left leg was irrelevant to his opinion (if that is what it was) that the appearance of three bruises on the lateral side of the left leg constituted a grip mark “in the absence of any other explanation”.

(8) that Dr James had no opportunity to make disclosure of his actual histological finding either pre-trial or in giving his evidence at both trials.

(9) that when Dr James was asked the question “From that you could say you have seen four slides of bruising” the question meant “had he seen four slides that Manock believed were slides of bruising?”.

(10) that the answer to what he referred to as “the fourth last question” which reads: “Yes. ‘One skin: Bruising into adnexae’ – they are the glands of different sorts – ‘and fat, no organisation, no cells. Levels two and three skin (not scalp) haemorrhage into fat, no organisation, no cells.’” “had no link to the slide taken from the medial side of the left leg”.

(11) that Professor Ansford gave evidence at both trials.

(12) that the tissue slides Dr James had examined were representative of the bruises on the left leg.

(13) that it was Dr James opinion that the slide of tissue taken from the mark on the medial side of the left leg confirmed that it was a bruise given that Dr James had expressed the contrary opinion.  

(14) that none of the questions put to Dr James at the second trial gave him an opportunity to state that in his opinion the slide of tissue taken from the mark on the medial side of the left leg confirmed that it was a bruise.

(15) that not one question put to Dr James at the second trial sought his opinion on the histology of any slide given that Dr James sought and was given permission to refer to notes he had made when he examined the relevant slides.

(16) that it is not possible to determine to which slide Dr James is referring in his answer to the fourth last question put to him at the second trial.

(17) that there is an absence of any explanation as to the meaning of the answer to the fourth last question put to Dr James at the second trial.

Cross Appeal – Grounds of Appeal

32. The judge erred in law by failing to refer to, consider or deal with the ground of the cross appeal which asserted the Board erred in finding that the non-disclosure by Dr James which resulted in the Board’s finding that Dr James was guilty of unprofessional conduct was due to his ignorance or disregard of his professional obligation to make full disclosure to the Court and to the other experts involved in the case.

33. The judge erred in law by finding that Dr James was not obliged to make disclosure to the Court that his opinion relating to haemolytic staining of the aorta combined with the lack of staining in the pulmonary tract (differential staining) had no peer support and accordingly was not a classical sign of fresh water drowning.

ORDERS SOUGHT

The Appellant seeks the following orders:

1. That the appeal be allowed;

2. That the order dismissing the cross appeal be set aside;

3. That the finding by the Medical Board of South Australia on 2 April 2008 that Dr James’s unprofessional conduct was due to ignorance or disregard of his responsibilities as an expert witness be set aside;

4. That the finding by the Medical Board of South Australia on 2 April 2008 that Dr James was guilty of unprofessional conduct be affirmed;

5. Such further and or other orders as the Court deems fit;

6. Costs of and incidental to the appeal;

7. Costs of an incidental the appeal to the single judge of the Supreme Court;

8. Costs of and incidental to the cross appeal.

……………………………

Solicitor for the Appellant

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