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Transcripts of Channel 7 Today Tonight programs
A state of Injustice
Losing Their Grip - The Case of Henry Keogh

28 August 2009 Channel 7 - Today Tonight (Adelaide) Court of Appeal and Dr Ross James

Rosanna Mangiarelli [presenter]: Well, you would think that telling the truth is one of the foundations of our justice system and you’d think that expert witnesses are especially required to volunteer all their findings when giving evidence. Well, today, the Supreme Court appears to have put a spoke in that wheel, finding that forensic pathologist Dr Ross James not guilty of unprofessional conduct in the case of Henry Keogh, despite an admission that he didn’t disclose crucial evidence in court because he didn’t think it was relevant. Graham Archer has the latest.

Dr Bob Moles: Well, I was initially very disappointed because I had expected a different outcome, but when I actually read the judgment I thought that it was one of the worst I’ve ever seen.

Graham Archer [producer and interviewer]: To all those in this State who think that going to court and swearing to tell the truth, the whole truth and nothing but the truth is mandatory, well don’t get too fussed. You can suit yourself according to our Chief Justice John Doyle.

So, you can pick and choose what it is you say in court?

Dr Bob Moles: Yes. But how an expert witness can do that I really don’t know, because the basic principle says that an expert witness must first of all state all of the results of all of the tests and the experiments, that’s the starting point.

Graham Archer: Today’s judgment of the Full Court ruled that expert witness forensic pathologist Dr Ross James did not act unprofessionally by withholding key evidence from juries in the two murder trials of Henry Keogh. Bob Moles, who’s written two books on the case was in court to hear the decision.

Do you think that will sit well with other jurisdictions around the country?

Dr Bob Moles: Well, no, it doesn’t actually sit well with our own jurisdiction, I mean the Australian High Court has been very clear on this. An expert witness and the prosecution must disclose all information that might be of any assistance to the defence.

Graham Archer: The case which is well known to Today Tonight viewers follows an unprofessional conduct ruling by the Medical Board against Dr James last year for failing to disclose that there was no evidence of the existence of a bruise which the prosecution had claimed completed, “the one positive indication of murder, namely the grip mark on the bottom of the leg.”

Because a grip must involve opposing forces, and because there were minor bruises to the outside of the deceased Anna-Jane Cheney’s leg, the existence of a so-called thumb bruise to the inside of the same leg was essential to a grip. Dr James seemed to agree at the time and told the Keogh juries, “if it was present as (Dr Manock) suggests, then a grip is the obvious explanation.”

But was there evidence of a bruise at all? Well, if you’d listened to Dr James testimony you’d have said yes. He told the court all the tissue samples taken from the legs showed bruising.

Q. You could say you have seen four slides of bruising?

A. Yes.

But, he hadn’t and he later admitted this saying, “When (I) gave evidence at the murder trials (I) was aware the tissue slide did NOT confirm the thumb mark to be a bruise.

Despite this, Dr James went even further in his evidence by encouraging the juries to believe that they should treat what couldn’t be proven to exist as if it were a fact. In doing so, he supported the murder scenario put forward by his boss, Dr Colin Manock, telling the court, “The four bruises Dr Manock describes … three on the outside (of the leg) and one on the inside collectively would suggest a grip mark. I think you can express that as the likeliest explanation until its shown to be something else.” Were the juries misled?

Dr Bob Moles: Fundamentally, yes they were.

Graham Archer: Today, the Full Court of Justices White, Doyle and Layton, ruled amazingly, that the forensic context of the evidence in the trials was about the age and cause of the bruises, not whether they actually existed in the first place. You’d be forgiven for being gobsmacked.

If a jury is told the age and cause of something but not told that there’s no evidence that it exists, doesn’t that make a farce of the whole process of giving evidence?

Dr Bob Moles: Well, of course it does, because you can’t even begin to discuss the age and condition of something without it having been established that the thing exists.

Graham Archer: The Full Court also says that Keogh’s defence didn’t raise any doubts about the existence of the bruise, but then how could they if that evidence was not disclosed?

Dr Bob Moles: Well, the whole proposition is back to front. The defence can’t raise a question about the existence of a bruise if they are told clearly that the bruise exists. They would need to know that there is a question, scientifically a question about it, before they can delve into it.

Graham Archer: Today’s decision is just another step in a very long appeal process and is a classic invitation to a High Court challenge, given that not one reference is made to all the High Court authorities about the absolute obligation of expert witnesses like Drs Manock and James.

Dr Bob Moles: The astonishing thing about this particular judgment is that it doesn’t cite any legal authority for what it says, and it doesn’t deal with the vast number of legal cases of the High Court and other jurisdictions which contradict what they say.

Graham Archer: So, it’s a Monty for an appeal?

Dr Bob Moles: Oh, absolutely yes, yes - this would be of extreme importance to law firms and lawyers, right across the country.

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