Legislative Council Wednesday 14 November 2001

[This version of the document has been edited by Dr Robert N Moles
Underlining where it occurs is for editorial emphasis]

Trevor Griffin – Attorney-General – ABC 4 Corners

Adjourned debate on motion of Hon. Nick Xenophon:

1. That this Council expresses its deep concern over the material presented and allegations contained in the ABC's Four Corners report entitled `Expert Witness' broadcast on 22 October 2001, involving Dr Colin Manock, Forensic Pathologist, and the evidence he gave from 1968-1995 in numerous criminal law cases;

2. Further, this Council calls on the Attorney-General to request an inquiry by independent senior counsel of a retired Supreme Court judge to report whether there are matters of substance raised by the Four Corners report that warrant further formal investigation; and

3. That the Attorney-General subsequently report, in an appropriate manner, to this Council on the allegations made in the Four Corners report and their impact on the administration of justice in this state.

The Hon. K.T. Griffin (Attorney-General)

What I have already indicated in relation to the issues raised by the ABC in its Four Corners report is that, if new material becomes available and it is presented to me, it will be given serious consideration. That is the appropriate position for me to take and also the appropriate course of action to follow in relation to this matter. I should indicate from the outset that I do not intend to establish a separate inquiry into the matters raised in the Four Corners report. I think that the Four Corners report did not accurately represent the facts and to rely on Four Corners, a television program, as a basis for conducting further investigations is, in the circumstances of this matter, a very shaky basis upon which to pursue these issues.

The law provides, first, if there is material new evidence, that the defendant (the convicted prisoner) can seek to take the matter on appeal to the Court of Criminal Appeal to have the matter reopened at any stage; or there is provision for a petition which might, ultimately, result in a reference back to the Court of Criminal Appeal. There is one matter of that nature presently going before the Court of Criminal Appeal where, on a petition, material was raised with me; I determined that it was an appropriate matter to go back to the Court of Criminal Appeal, and that is happening. It does not matter who is the Attorney-General of the day, there are proper procedures to be followed, and I have no doubt, whether it is in this matter or in other matters, that this will be dealt with apolitically and appropriately. So, I can indicate that I am not prepared to request an inquiry by independent senior counsel or a retired Supreme Court judge to look at the material presented in the Four Corners report.

One should rely very much upon the proper processes to examine any new material that might be presented.

I looked at some material that came from Dr Ross James, who is the Chief Forensic Pathologist. He concluded, after viewing the Four Corners presentation, that he was not aware of any new evidence relating to the death of Miss Cheney revealed in the Four Corners program. The program was clearly an attempt to discredit Dr Manock. He stated:

“With regard to the Cheney case the program was mischievous in the sense that there was no material presented which had not already been available to the defence experts before the trial took place”.

When the petition was received from Mr Keogh by the Governor, it was referred to me. I referred the matter to the Solicitor-General. The Solicitor-General concluded, and his recommendation was, that His Excellency be advised that it is not appropriate to take any action in respect of the petition. The Solicitor-General identified that:

“The Coroner did not find that Manock was incompetent in performing autopsies on mature adults”.

This is in reference to the autopsy in relation to some very young children. I repeat:

The Coroner did not find that Manock was incompetent in performing autopsies on mature adults. What the Coroner did find is that there is a particular skill or specialty in performing an autopsy on very young children and that Manock and other forensic pathologists used by the state did not have this skill. As a result, the autopsies in the three cases were inadequate. This is apparent from pages 84 to 93 of the coroner's reasons. I understand that that finding is also consistent with the evidence that was called before the Coroner, particularly the expert evidence. This has been confirmed to me by Mr Moss, the then Deputy Crown Solicitor, who was counsel assisting. This is to be contrasted with the implication within the petition that the Coroner found that Manock was incompetent and that this in some manner affected the evidence he gave in the Keogh trial. That is not what the Coroner found. Even if the coroner had made such a finding, there is still the question of its relevance. It was a question for the jury in the Keogh case whether Manock's evidence should be accepted and, if it was, to what extent.

Dr Ross James-who, as I said, is the Chief Forensic Pathologist-made some observations about the bruising on each of the lower legs of Miss Cheney. He referred to the views of Professor Cordner, who is the head of the Victorian Institute of Forensic Medicine, and also referred to the views of Professor Cordner being views which are respected. Dr James said that he agreed with Professor Cordner in a number of areas.

Professor Cordner thought that the manner of death (as distinct from the cause of death) could have been accidental and he said that Professor Cordner felt that the warm bath water associated with the blood alcohol level of 0.08 grams per hundred millilitres could have caused her to faint and drown. Dr James said:

“I agree with him that this is, in theory, possible, although I have never heard of such a case in practice and the department records do not indicate any other case. As far as I am aware, Professor Cordner has not had such a case, either. I believe that the post-mortem features listed above are suspicious to the extent that further investigation was warranted by police. It was this further investigation of the circumstances that provided the basis of the Crown case that apparently resulted in the conviction. If Professor Cordner does not think that the post-mortem features needed further police investigation, then I disagree with him. These issues were discussed at the trial and do not represent new evidence”.

He also referred to the histology introduced by Associate Professor Tony Thomas of Flinders University and he observes that the histology is not new evidence. He states:

“The histological slides were viewed by 4 pathologists before the trial including Professor Cordner and Dr Collins for the defence”.

So, it is clear that, from the viewing by Dr James of the Four Corners presentation, there is nothing new there which he believes ought to be cause for sufficient concern to warrant any further inquiry.

I raised the issue with the DPP. I referred to him the Hansard record of the contribution by the mover, the Hon. Mr Xenophon, and he states, among other things:

“As you are aware, I appeared on the 4 Corners program in relation to Dr Manock, although only brief excerpts of a 20 minute interview were included. At the outset, may I say I regarded the program as lacking balance and verging on dishonesty in an attempt to totally discredit Dr Manock and sensationalize the story. Admittedly, Dr Kobus and Dr James from the Forensic Science Centre declined to participate in the program on the advice of DAIS, advice with which I concurred at the time. My involvement with Dr Manock's cases mentioned was primarily the Keogh case. In relation to that case, I attach a copy of a report I received from Dr Ross James whose expertise in the area is universally accepted in the medical and legal professions”.

He later states:

“I agree with his conclusion that the program produced no new evidence. I am completely satisfied there was no miscarriage of justice in the Keogh case, as has been the conclusion of the Court of Criminal Appeal, the High Court and the Solicitor-General in his advice on Keogh's petition”.

He goes on to refer to the deaths of the three infants, as follows:

“The deaths of the three infants were the subject of an in depth coronial inquiry which found that Dr Manock was in error in his post-mortem findings. There may have been a miscarriage in so far as there was no prosecution, but the matter cannot now be taken further, although I did review the file after the coronial findings but concluded there was no reasonable prospect of conviction for a number of reasons apart from the Manock findings. In relation to the Keogh case, even though there were questions about the forensic evidence of Dr Manock, quite legitimately the question can be raised that, although the DPP called Dr Manock, it may well have been the subject of adverse comment if in fact he had not called Dr Manock because, after all, Dr Manock had conducted the autopsy. The point needs to be recognised also that, in respect of the Keogh case, the evidence of Dr Manock was only one part of much more comprehensive evidence which ultimately led the jury to find the case proved beyond reasonable doubt”.

On that material, it is clear that the Four Corners program did not raise any new evidence and that, on all the information that I have, including the review by the Solicitor-General independently of the DPP, there is not any new evidence upon which one could grant the prayer of a petition either for a pardon or for the matter to be further considered by the Court of Criminal Appeal. I repeat what I said at the outset: if there is new evidence sufficient to throw doubt upon the verdict, there are means by which that can be reviewed and acted upon, not only by petition but certainly by petition, and I have given a public commitment that, in accordance with my responsibilities as Attorney- General, if there is that new material, it will be objectively and appropriately examined. If I am of the view that it is of sufficient weight to throw doubt upon the verdict, one of the options open is to refer the matter to the Court of Criminal Appeal.

I will not be averse to doing that if there is such weighty new evidence, and the fact that I have already done that more recently in another case to enable the Court of Criminal Appeal to examine a particular matter I think demonstrates clearly that I have an open mind on all of these matters if material is presented and presented appropriately. But if I am not satisfied, and there is still a view that it is new evidence and of sufficient weight to cast doubt upon the verdict, then it is open to a defendant, in this case a convicted prisoner, to raise that matter directly with the Court of Criminal Appeal and to face the judgment of the court.

The Hon. T.G. Roberts

Wasn't the program about the subjective interpretation of the original evidence rather than any new evidence?

The Hon. K.T. Griffin

It is not a question of subjective assessment. The defence had the opportunity to challenge the evidence during the course of the trial, and that was challenged. They had a number of independent expert witnesses, and all that material went to the jury. The DPP, as a matter of prosecution policy, is obliged to call evidence even though it might be adverse to the interests of the prosecution. That is a public responsibility and duty, and I raised the question earlier that, if Dr Manock, who conducted the autopsy, had not been called, there would have been an adverse reflection upon the prosecution.

The Director of Public Prosecutions called Manock but did not rely on Manock as the sole evidence, but called a whole range of other evidence, all of which was as compelling, if not more so, including issues about the insurance policy out of which Mr Keogh would have benefited, than perhaps the evidence of Dr Manock. All of those matters go to the heart of the issue as to whether or not this motion should be carried.

It is not improper for the honourable member to endeavour to have the Council make a request of the Attorney- General, but I think it is inappropriate. That is the better way to explain it. I think it is inappropriate. There are legal processes available and I am disappointed that he has appeared to rely only on what was publicly promoted through the Four Corners program. There is a lot more behind the scene. There is a lot more information. There is the transcript of proceedings in the court. Let us not react superficially to something that is obviously being promoted for a particular purpose, and that is to discredit Dr Manock.

It is all very well for that to be pursued, and people have a right to do it, but, if they are going to do it, they should do so in a balanced way, looking at all the material that is available and not just the material that happens to suit the program and the objective of the program. I oppose the motion. I do not believe it is appropriate to go down this path for the reasons that I have indicated. I urge members to oppose the motion.

The Hon. T.G. Roberts secured the adjournment of the debate.

Top of Page