Channel 7 Today Tonight (Adelaide)

Kapunda Road Royal Commission 23 May 2005

This version of the transcript has been edited by Dr Robert N Moles

In order of appearance

Leigh McClusky, Presenter Bob Moles, Author, A state of injustice
Graham Archer, Producer and Interviewer
Derrick Pounder, Professor of Pathology, Dundee University, Scotland. [File tape]
Greg James QC, Royal Commissioner, Kapunda Road Royal Commission
Terry O’Gorman, Solicitor, Queensland, Council for Civil Liberties
Rohan Wenn, Reporter [File tape]
David Szach, Imprisoned for murder [File tape]
Paul Rofe, Former Director of Public Prosecutions [File tape]
Kevin Borick QC, Lawyer for Henry Keogh
Michael Atkinson, Attorney-General for South Australia

Program

Leigh McClusky

First tonight, the Royal Commission into the McGee trial has already raised some alarming questions. Not the least of which is the role of expert evidence, such as the expert opinion that Mr McGee was disassociated when he left his dead victim by the roadside. Now there are concerns about defence or prosecution cases being effectively ambushed by unexpected witnesses and also concerns about how a jury can really make sense of the complex scientific data coming from these “guns for hire”. Now, the McGee Royal Commissioner, Greg James QC, has now agreed to accept submissions on the topic of expert witnesses, which will inevitably refer to some of our most controversial examples - particularly where forensic pathology is involved.

Now, while the Commissioner has made it very clear he won't be reviewing other cases, as Graham Archer reports, at last some aspects of the standards of our justice system are finally being called into question. 

Bob Moles

[File tape] Our system, instead of serving the public, has begun to serve itself - and has become distanced from the public and their needs; and we need to correct that.

Prof Derrick Pounder

[File tape] I think the thing we have to remember is we can all be accused persons. And it's in everyone's interest that we have a justice system which is fair and in which we have strong confidence.

Graham Archer

At last it appears we have a legal mind in Adelaide devoid of the locally acquired smugness and secrecy.

Bob Moles

But I think it's a very important opportunity for somebody from outside of the legal system in South Australia to come and have a look at what's been happening here and to view it with a pair of fresh eyes.

Graham Archer

Each day’s evidence of the Kapunda Road Royal Commission is now on the net for the real patrons of the law - ordinary tax payers - to assess for themselves.

Bob Moles

I think it's terribly important. It means that the public are now being treated as sensible people who can read and understand these things.

Greg James QC

[File tape] I would ask all persons to assist the Commission in its function –

Graham Archer

The Commissioner Greg James QC has taken another even bolder and more crucial step, following the controversy over psychiatrist Sandy McFarlane's role in the Eugene McGee defence - to accept submissions on the role of expert witnesses in other cases.

Prof Derrick Pounder

[File tape] Objectively, we can say we don't know, because we never measured the quality. No one ever measured it. If you don't audit it, how do you know?

Graham Archer

As internationally respected pathologist Derrick Pounder is well aware, expert evidence has been under a cloud overseas for years. The most spectacular examples involved discredited world experts like Professor Sir Roy Meadow, knighted for his work on infant deaths, but now disgraced and de-registered having sent innocent mothers to gaol for murder.

Terry O'Gorman

The UK Attorney General has ordered a review of almost 300 cases where women have been sent to gaol in respect of murdering their children, where the evidence now suggests that the so-called eminent expert medical evidence given could well have been fundamentally flawed.

Graham Archer

Until now, those who defend the South Australian criminal justice system have scorned any suggestions - many raised by this program over the past four years - that it could happen here.

Prof Derrick Pounder

[File tape] I can guarantee you that your justice system will have miscarriages of justice. It's a system which is built around human beings and human beings fail.

Graham Archer

So let's take just a sample of our record of flawed expert evidence. The Edward Splatt Royal Commission in the '80s found paint particles which convicted Splatt of murder, in fact, came from the spray painters' nearby.

Terry O'Gorman

Faulty forensic evidence simply means, as it did in Lindy Chamberlain's case, that an innocent person gets sent to gaol.

Graham Archer

Splatt was eventually acquitted and released.

Rohan Wenn

[File tape] But it was a bitter man who walked to freedom at noon. Edward Splatt has spent an agonising six and a half years in Adelaide Gaol for a crime he's always maintained he didn't commit.

Graham Archer

The blunder cost tax payers millions of dollars. But we have a far more serious situation sitting in the system's lap. Dr Colin Manock, the state's Senior Forensic Pathologist for 30 years, though never properly qualified for the job, made breathtaking errors in scores of cases demanding review. Emily Perry was convicted on Manock's evidence of attempting to murder her husband.

Bob Moles

[File tape] She was convicted, the matter was appealed to the Court of Appeal, and then it went up to the High Court of Australia. In the High Court, Justice Murphy said that the forensic science in this case represented an appalling departure from accepted standards of forensic science. You'd have to say that that's no minor criticism.

Graham Archer

Bob Moles, author of A state of injustice has examined Manock's cases, including that of Fritz Van Beelen, gaoled for 17 years.

Bob Moles

He has served one of the longest sentences in South Australia in a murder case. Normally he would have been allowed out on parole after about eight and a half or nine years. In fact he served 17 and a half. The reason for that was that when he went to the Parole Board and asked to be allowed out on parole, they basically said to him look, how do you feel about what you have done? And he had said well I didn't do it. And they basically said well look, I think you are a very sick person. I think you should perhaps stay in here and have a little think about it.

Graham Archer

Manock's evidence was extraordinary, claiming he could tell the victim's time of death based on her stomach contents.

Bob Moles

Even now people would say that it's not possible to do that. Well if it's not possible to do it now, it certainly wasn't possible to do it then.

Graham Archer

This bizarre calculation fitted exactly the half hour for which Van Beelen had no alibi. But ignored the fact that it coincided with high tide at Taperoo Beach where the victim's body was found besides her transistor radio, still in perfect working order.

Bob Moles

If the radio had been there at that time it would have been covered by water. One wouldn't have expected it to work particularly well the following morning.

Graham Archer

Then there's the case of Gerald Warren, who Manock said died of natural causes, despite terrible injuries which included strange parallel cuts to his head and hands. Manock's diagnosis was nothing short of absurd.

Bob Moles

When asked to explain the injuries to his hands and face, he said that these were caused by “the fabric of corduroy” - his trousers - coming into contact with his hands and face.

Graham Archer

Corduroy?

Bob Moles

Corduroy trousers.

Graham Archer

His killers later confessed they'd run him over several times and the parallel lines were the result of beatings with the threaded end of a scaffolding bar.

Bob Moles

On the autopsy report produced by Manock - there would never have been a conviction.

Graham Archer

Terry Akritidis is another case where Dr Manock's evidence was accepted despite the absurdity of his conclusions. Akritidis was supposed to have suicided by jumping 150 feet off the Police communications tower at Yankalilla, punching a hole in five centimetres of reinforced concrete, but sustaining no serious external injuries, because according to Dr Manock - he was wearing clothes.

Bob Moles

Well look, common sense would dictate that if you have fallen 150 feet and you land on solid concrete, then you would have quite a number of very serious external injuries. And of course that gives rise to the possibility that that was not an accurate account of what had happened. His injuries seemed to be more consistent with either being hit by a vehicle or maybe being attacked - and that would then mean that his body had been left at the scene.

Graham Archer

So it may not have been a suicide at all?

Bob Moles

I don't think there is any proper evidence to indicate that it was a suicide.

Graham Archer

There are many cases - but Henry Keogh's is the most contested by the advocates for the legal system, and yet the most compelling as it involves failures by police, the prosecution, and pathologists. 

Kevin Borick QC

[File tape] There's a strong body of evidence to show that he is not guilty of the charge.

Graham Archer

Kevin Borick QC who now acts for Keogh is considered a heretic by the legal community - but has been permitted by the Royal Commissioner in the McGee inquiry to make a submission on expert witnesses.

Kevin Borick QC

The evidence given by Dr Manock in the Keogh case was wrong - and in lots of other cases was wrong.

Graham Archer

It's interesting that former DPP Paul Rofe has also been asked to provide a submission on the topic. Rofe has stood firmly behind Dr Manock as a key to many of his prosecutions, including that of Keogh - and has ambushed his fair share of defences with unexpected expert witnesses himself.

Paul Rofe QC

[File tape] He was the senior forensic pathologist in this state.

Rohan Wenn

[File tape] Yet he had no training in pathology or histopathology, and you were still confident enough to use him as an expert witness?

Paul Rofe QC

[File tape] Yes, he had vast experience.

Rohan Wenn

[File tape] But just because you do a job often doesn't mean you do it well?

Paul Rofe QC

[File tape] No, that's possibly true.

Graham Archer

There are a host of failures of due process in the Keogh case, including Manock's apparent betrayal of the fundamental rule of the expert. That is - to have an open mind.

Dr Manock

[Voice over – committal proceedings in Keogh] “I was at no time looking or thinking that the death was accidental because I could find no explanation as to why she would drown.”

Graham Archer

The fact that the Coroner held on to a report on the deaths of three infants, which found Dr Manock to have been incompetent while he gave crucial evidence, which helped convict Henry Keogh, raises the question of the court and the jury being fully informed about the quality of evidence being given.

Michael Atkinson

[excerpt of Radio 5AA interview with Bob Francis] “If there is new evidence, evidence that was not before the court and would tend to raise a reasonable doubt as to Keogh's conviction, then of course I'm willing to have lawyers look at that.”

Graham Archer

Yes, but which lawyers? And that was almost three years ago. Just how long does it take? Let's hope the Commissioner will finally lift the veil, which has kept the public in the dark about our system all these years.

Professor Derrick Pounder

[File tape] By facing up to those mistakes we strengthen the system, we don't weaken it.

Bob Moles

Well, clearly the Commissioner can't review or investigate other cases, because they're outside his terms of reference. However what he has to do is to consider the proper role of expert evidence in the McGee case - and in order to determine that he would have to look at other relevant cases to see the correct principles that can be applied from those.

Graham Archer

And you will accept his call on those things?

Bob Moles

Oh absolutely, of course.

Leigh McClusky

And anyone who would like to express an opinion one way or the other in relation to the Henry Keogh case might like to attend a public meeting being held this week at the Irish Club - that's at 13 Carrington Street in the city that starts at six o'clock on Wednesday night.

Top of Page