Channel 7 Today Tonight (Adelaide)

Medical Board Monday 3 July 2006

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

The documents referred to in the program are:

Professor Maddocks' Report 8 November 2004

Professor Maddocks' Report 21 December 2004

Professor McDonald's Report 10 March 2005

Dr Coleman's Report 16 March 2005

Medical Board Complaints, Affidavits, Decision

In order of appearance

Rosanna Mangiarelli, Presenter
Robin Napper, Forensic and Police expert, University of Western Australia
Graham Archer, Producer and interviewer
Professor Rex Ferris, International Forensic Pathologist, New Zealand
Kalucy, Coleman, Maddocks, McDonald, Evans, from Medical Board Reports.

Program

Rosanna Mangiarelli

Tonight the startling new evidence which should finally trigger a judicial review of the conviction of Henry Keogh.

As you'd know, the number of doubts surrounding the case have grown year by year. But now Supreme Court judge Justice John Perry has released confidential memo's from a Medical Board Inquiry which are scathing about the quality of the autopsy of Keogh's fiancée Anna-Jane Cheney - and the competence of former Chief Forensic Pathologist Dr Colin Manock. These extraordinary opinions surfaced last week as Keogh sought a review of the Medical Board decision published 12 months ago - which found Dr Manock's work in the case to be “satisfactory”. So tonight, we ask how could the opinions of those experts involved in the enquiry change so dramatically. And why does the Board's report contain almost no reference to the contents of these documents - which also call into question the standards that operated in our entire forensic science system for decades. Here's Graham Archer.

Robin Napper

On the evidence of the Keogh case there has to be - there has to be a cloud over all the homicide cases in South Australia if that was the level and standard of pathology at the time.

Graham Archer

Is it any wonder then that there might be some vigorous attempt to keep the lid on this?

Professor Rex Ferris

Clearly its an embarrassing situation.

Graham Archer

We've dug for years in search of the answer in the Henry Keogh case – now, suddenly they've surfaced.  

Robin Napper

But it's very rare that you get a turn up in pathology where the entire pathology evidence is now clouded and in doubt.

Graham Archer

Extraordinary confidential memos have been raised in court - which are the work of the three government pathologists who sat on the Medical Board Inquiry into the autopsy of Anna-Jane Cheney. What they reveal about aspects of our justice system is potentially scandalous. Ex Scotland-Yard forensic expert Robin Napper:

Robin Napper

It’s a complete Pandora's Box Graham. I mean if they lift the lid any higher how many more might pop out? How many more Henry Keoghs are out there?

Graham Archer

You see, the Medical Board's final report on former Chief Pathologist Dr Colin Manock’s work in the autopsy gave him the “all clear”. But now these opinions submitted by the experts on the Inquiry panel reveal they were in fact scathing about his performance.

Professor Ferris

I presume - attached to the official report would be the details of the opinions of the pathologists that they received?

Graham Archer

There was no reference to these notes anywhere

Professor Ferris

Well I would ask why not

Could it be because they are too explosive?

All three experts actually believed Dr Manock's autopsy of Anna-Jane Cheney to be incompetent. First, pathologist and sometimes Board President, Dr Mark Coleman.

Voice over with image of Dr Coleman

“ .... the conduct of the autopsy and the quality of the resulting evidence was markedly sub-standard to the point of incompetence."

Graham Archer

“Incompetence”. That was his candid opinion.

Robin Napper

It's almost frightening to hear words like that in murder case - in a murder case.

Graham Archer

But until now this has all remained confidential. And is it any wonder Dr Manock's lawyers attempted unsuccessfully to have them suppressed? Compare the verdict of "incompetence" to the findings made public in Board's final report.

Voice over from Final Report

"The Board cannot say that the way in which Dr Manock conducted the autopsy and in which he arrived at a murder hypothesis constituted a departure from observed or approved professional standards to a substantial degree..."

Robin Napper

Totally opposite. The notes are totally opposite to that finding of the Medical Board.

Graham Archer

And that's just the start. What was published in the Board's Report about Dr Manock’s work is contradicted at almost every turn by these notes from very men who appear amongst the reports authors. Things like:

Voice over - Dr Coleman’s Report

The documentation in the autopsy in question was manifestly inadequate, even by the lowest standards.

Robin Napper

Words fail me to read criticism like that of a pathology report.

Graham Archer

Would you agree with that?

Professor Ferris

Yes I would - by any interpretation this report falls below those standards.

Graham Archer

Professor Rex Ferris is an internationally respected forensic pathologist who is shocked by what these documents appear to say about how our system has operated.

Professor Ferris

But standards did exist. Well, perhaps not as well defined as they are today, but everybody knew what the basic standards for competence were. Any system of peer review, no matter how informal, would probably have identified the weaknesses in this report.

Graham Archer

But the magnitude of this scandal of goes well beyond just one autopsy.

Voice over - Dr Coleman Report

Dr Manock was not just a senior pathologist, he was the chief forensic pathologist for the State He had the opportunity and indeed the responsibility over many years to raise the standards , to introduce up-to-date systems, guidelines and protocols. On the evidence of the Cheney autopsy, he did not.

Graham Archer

Have you every heard this sort of criticism before?

Robin Napper

Never. Never, never of pathology.  I've heard of it of forensic labs in America where they messed up a whole heap of DNA evidence and DNA profiling - but never from a pathology lab anywhere else in the world.

Graham Archer

Next is Emeritus Professor Ian Maddocks who goes even further - concluding the practices of the entire Forensic Science Department were not conducted at an acceptable level.

Voice over – Professor Maddocks Report

I cannot determine whether the apparently unsatisfactory nature of the service was due mainly to poor funding, poor support and staffing levels, or can be laid firmly at Dr Manock's feet as an indication of his incompetence or failure in management and direction.

Robin Napper

We haven't yet, in South Australia, looked at all these other cases - so it remains to be seen how many may be as suspect as the pathology findings that are now coming out of the Henry Keogh case.  

Graham Archer

Every autopsy for the past 30 to 40 years is now potentially under question. And to top things off, Professor Maddocks declares that Dr Manock should never again undertake:

Voice over Professor Maddocks Report

... any role in forensic pathology other than as an assistant to a qualified pathologist and under that pathologist's supervision.

Graham Archer

Let's not forget - they are talking about the State's Chief Forensic Pathologist for almost 30 years - who'd conducted thousands of autopsies.

Its pretty damning stuff isn't ?

Professor Ferris

Yes it is

Graham Archer

Is that what you would expect of a Chief Forensic Pathologist?

Professor Ferris

A Chief Forensic Pathologist should be doing the supervising. You can't have a Chief Forensic Pathologist who is only allowed to work under supervision.

Graham Archer

Over 9000 autopsies - and the only review he's got is he's not fit to work on his own? It is pretty serious stuff?

Professor Ferris

It is certainly a damning indictment of the system.

None of this appears in the Board's Report - even though our criminal justice system relied upon Dr Manock's so-called expert opinion in hundreds of major prosecutions - of which Henry Keogh's was just one.

Robin Napper

You would think - if the background checks had not been done - the courts themselves, you know - the judges, the barristers, the legal system generally - the Attorney-General would make sure the court system would highlight any deficiencies in the system and it didn't - it simply did not.

Graham Archer

And here's what we mean. When quizzed by Today Tonight about this very issue of competency four years ago - former DPP Paul Rofe QC seemed to embody the prevailing attitude.  

Paul Rofe QC

He had a great deal of experience.

Rohan Wenn

But just because you do a job often doesn't mean you do it well?

Paul Rofe QC.

Yes I suppose that's possibly true but I had confidence in Dr Manock from previous cases.

Rohan  Wenn

Do you still have confidence in Dr Manock now?

Paul Rofe QC

Yes

Graham Archer

After this - what confidence can remain in any of what's gone on?

Professor Ferris

I also think it important that that incompetence and substandard performance was not exploited by the prosecution, as I think it may have been.

Graham Archer

The third pathologist on the Inquiry panel - Emeritus Professor Peter McDonald has a similar view about the autopsy.

Voice over Professor McDonald Report

The conduct of the autopsy under consideration did not conform with contemporary standards as specified in text books for the conduct of autopsies.

Graham Archer

That's three out of three - and there's no excuse as the pathologists quote texts going back to 1908 which clearly establish acceptable standards.

Wouldn't every credible pathologist know what the standards of the profession were?

Robin Napper

Absolutely ... that's their job.

Graham Archer

While the facts of the case obliged the three pathologists to make the scathing criticisms they did - they also seem to twist themselves in knots looking for something positive to say about the autopsy. Unwisely, they go into bat for Dr Manock's “grip theory” of murder. And though they concede no other pathologist has ever found any evidence of the crucial so-called “thumb bruise” the Board members come up with this extraordinarily unscientific excuse - that "the absence of proof is not the proof of absence".

Professor Ferris

I think in essence that is a nonsense.

Graham Archer

So, it just not a credible thing to say?

Professor Ferris

I don't think so.  

Robin Napper

I just think that's a lot of gobbledegook. The first four words "the absence of proof". If there's nothing there you just don't go on and speculate.  

Graham Archer

As to the views of the remaining two panel members in the Inquiry - one was Medical Board stalwart Professor Ross Kalucy - who, aside from his dislike of Today Tonight's inquiries into the Board's own appalling past performances:

File tape of interview with Kalucy

No, no, no - stop the cameras or else I’ll walk out

Graham Archer

Kalucy is a psychiatrist who you'd expect would be guided by the advice of the three expert pathologists on the panel. Which just leaves the fifth member - lawyer Richard Evans who clearly has no medical expertise in pathology.

Now in compiling the final report would you expect the other 2 panel members to be guided by the three pathologists?

Professor Ferris

Well you would hope that they would.

Graham Archer

According to his email, the draft at least was prepared by Evans and circulated to the panel members for checking. That draft has not been disclosed.

When contacted, Richard Evans said the notes were part of the deliberation process, but would not explain how members of the panel came to sign off on a final version which so dramatically contradicted the original opinions they'd provided for the purpose.

Robin Napper

One has to be completely wrong. One is false - because the two are light years away from each other. So, which one is it? Are those sets of documents false - or is the Final Report wrong? Or are there a whole lot of notes Henry Keogh’s lawyers have not yet seen?

Graham Archer

If your views were the same as these pathologists, would you have been happy with that report?

Professor Ferris

Probably not – no.

Clearly this extraordinary situation is multi-layered. After all a recent parliamentary review found the Medical Board itself to have failed in its some of its most basic functions, as we'd earlier warned. The review committee revealed:

Voice over Legislative Review Committee Report

..it is deeply disturbed as to the manner in which the Medical Board processes complaints and investigations.

Graham Archer

That "old" board has now been replaced - but surely the new Board has an obligation to investigate what could have possibly happened between the writing of these notes and the publication of the Final Report.

Robin Napper

I cannot believe that three eminent pathologists and their notes - I can't believe that's all there is because the findings are totally different. Something is not right here Graham and its up to the South Australian Government to put it right in that aspect.

Graham Archer

But let's not lose sight of the much bigger picture here. What we now have is clear evidence - not from Keogh's lawyers - not from concerned onlookers - not even from the investigations by Today Tonight - but from the State's own pathologists themselves - which highlights deeply flawed processes which have fundamentally contaminated the conviction of Henry Keogh and countless cases before his.

Robin Napper

Key to Henry Keogh's conviction was that Anna-Jane Cheney was unlawfully killed. Well, of course, if she hadn't been unlawfully killed and it had been a tragic case of “natural causes” Henry Keogh is in prison for a crime that never ever happened.  

Graham Archer

For the past four years the Attorney-General Michael Atkinson has attempted to defend this shameful state of affairs. The matter must now rest firmly in Premier Mike Rann's court. The whole criminal forensic system has been called into question. A potential scandal of this magnitude simply can't be ignored.  

Graham Archer

What do these submissions cry out for?

Professor Ferris

Well they cry out for a review of the case.

Robin Napper

Personally, I think it cries out for an Independent Case Review - but from outside the State. People who are known experts in their field, investigators, pathologists, forensic medical people - so the people of South Australia can have some confidence the system has got it right.

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