House of Assembly - Monday 22 September 2003

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

Professor Tony Thomas

REDMOND (Heysen)

I rise to express to the house my very deep concern about a response to a question I raised with the Attorney-General during question time last week. Members might recall that I asked the Attorney why he had not corrected statements he had made to this parliament on 1 April 2003 concerning the professionalism of Professor Tony Thomas. I pointed out to the Attorney that, in fact, the inaccuracy of what he had said was raised in another place on 16 July and again on Monday last week, and yet the Attorney had still not corrected what he had indicated to this house.

By way of explanation, I want to go back to what the Attorney actually said. It concerns the Henry Keogh case, and I want to say at the outset that I am absolutely at one with the Attorney in supporting the conviction of Henry Keogh. I have no doubt about that man's guilt. I am not part of any conspiracy theorists group or any group trying to get Henry Keogh released. Indeed, I would like to get another truck to put around the place to put a big `Why?' wherever they put a `Release Keogh' banner on a truck around the place.

On 1 April, in the course of a long explanation about the nature of the allegations raised in various TV programs, the Attorney went through a lot of the evidence presented to the court. In particular, in relation to Professor Thomas, he made these statements:

Professor Thomas was not a forensic pathologist when he appeared on Four Corners and, I am told, had not carried out a post mortem investigation on a homicide case in South Australia. I am not sure of his current expertise in forensic pathology.

He then went on to talk about the findings of Magistrate Baldino in relation to the veracity of the forensic evidence by Professor Thomas in the Cheney case. I quote from the Hansard in relation to Magistrate Baldino findings, as follows:

I formed the distinct impression that the professor's views, opinions and hypothesis were not entirely impartial and independent. In this regard I am compelled to agree with the prosecution. . . that Professor Thomas was `obviously not an unbiased witness'.

Magistrate Baldino went on to make further adverse comments about the professor's views. What happened subsequently to that was, after Magistrate Baldino dealt with this matter, it went on appeal. That was back in 1999, so it is something about which the Attorney-General should have been aware. What happened at the appeal was, having reviewed the evidence, Justice Mullighan found as follows:

There are very serious findings so far as Professor Thomas is concerned. He is a specialist in his profession and holds senior and important positions at the Flinders Medical Centre and the Forensic Science Centre where he is a senior consultant. He has a long history of working in forensic pathology overseas and in this state.

Most specifically, in relation to the findings of the magistrate, Justice Mullighan said:

The finding of the learned magistrate reflects poorly upon him that is, upon the magistrate

He [the magistrate] gave no reasons for his conclusion. He found that no suggestion of a lack of impartiality or independence or bias was put to Professor Thomas in his evidence and he further found that the opinions of the professor appeared to have been recounted in an entirely appropriate manner.

Justice Mullighan significantly goes on to say:

In my view, the learned magistrate erred in his dismissal of Professor Thomas's evidence. . .

It is a very serious thing, then, for an attorney-general to come into this place, some four years after those findings of the magistrate (which were specifically overturned) concerning this person whose reputation was, no doubt, quite badly damaged by an attack by the Attorney in this place under parliamentary privilege.

Not only is it bad enough that that was done, but on 16 July this year and again on 15 September (just last Monday) in another place it was brought to the Attorney's attention that he had erred in not telling this place the full story. The point I want to make is that, as a practitioner, if I went into any other court in this state and failed to tell the court what I knew in its entirety about a case - if I simply quoted what a magistrate had said without letting the court know that the magistrate's findings had been specifically found to be in error on appeal in another court a higher court that would be the subject of disciplinary action against me. My concern is that the first law officer of this state is, in this court, misleading us.

The SPEAKER

Order! The honourable member's time has expired. I point out to the honourable member for Heysen that remarks about the good standing or otherwise of any member of parliament cannot be the subject of grievance debate, and the last sentence of the remarks the honourable member made in that grievance debate was highly disorderly. It must be the subject of a substantive motion.

Mrs REDMOND

I withdraw my last comment, Mr Speaker.

MINISTERIAL CODE OF CONDUCT

Mrs REDMOND (Heysen)

Will the Attorney-General explain to the house why, despite advice from the opposition, he has continued to act in direct contravention of the ministerial code of conduct? The ministerial code of conduct states that it is a minister's personal responsibility to ensure that any inadvertent error or misconception in relation to a matter is corrected or clarified as soon as possible. On 1 April the Attorney-General made incorrect statements concerning the professionalism of Professor Tony Thomas. These inaccuracies were highlighted in another place on 16 July and again on 15 September. On 18 September I asked the Attorney to correct his statements only to be informed that it was still in the process of preparing a ministerial statement. It took until 22 September that is nearly five months

The SPEAKER

Order! The honourable member now engages in debate of the implicit allegation in the substance of the question in a fashion which I have tried to make the house understand is both outside standing orders and undesirable. It is the kind of thing which results in members on either side, but perhaps more particularly government ministers in responding to questions, to attempt to lay down points that are made engaging in debate and, in doing so, getting involved in invective which leads to the sort of belief that it is fair to have a kick at somebody else because they have had a kick at you.

Question time is about seeking and obtaining information. The standing orders perhaps need modification in such fashion as will enable the kind of debate in which all members increasingly indicate a desire to participate. Such debate would then be fair and even-handed and be in the public interest, in that it would lead to the points which members, ministers or not, wish to put on the public record in support of the point of view they have got, which has nothing whatever to do may I return to the subject of my remark with seeking and obtaining information, which is the purpose of question time, regardless of what some journalists and/or academics may like to describe it as being, and who see it as being part and parcel of gladiatorial entertainment in political terms.

That was never intended to be the purpose of question time and it would cause great distress to those people who framed the need for question time following the Bill of Rights of 1688, and developed the practices which we adopted in 1856 and have never sought to change in the manner in which I now suggest members want to change, by de facto activity rather than de jure resolution.

The Hon. M.J. ATKINSON (Attorney-General)

Some months ago, Professor Tony Thomas, who is an anatomical pathologist, appeared on one of Graham Archer's exposes on Today Tonight about the Henry Keogh case. Professor Thomas's purpose was to raise doubts about Henry Keogh’s conviction with a view to his being released from gaol. At the request of the Cheney family, I made a long ministerial statement about the Keogh case, and the member for Heysen indicated her agreement with that long ministerial statement.

Some time later, Graham Archer and Professor Tony Thomas took objection to one paragraph in that very long statement in which a harsh judgment about Professor Tony Thomas's credibility as a witness was made by Magistrate Baldino. I had quoted Magistrate Baldino's adverse remarks about Professor Tony Thomas. They were supplied to me by the Forensic Science Centre.

As soon as I became aware that the case in which Professor Thomas had been a witness before Magistrate Baldino had been appealed to the Supreme Court and that Justice Mullighan had taken a different view of Professor Thomas's credibility as a witness, I came to the house and I withdrew and apologised, and explained the circumstances.

There was in that paragraph of the ministerial statement an assessment of whether Professor Thomas could be described as a forensic pathologist. People of goodwill disagree about that. Forensic pathologists and the Forensic Science Centre take one view and Professor Tony Thomas takes a different view of his qualifications. So, I have arranged to send Professor Thomas the ministerial statement. I have undertaken to give him the assessment that the Forensic Science Centre and other forensic pathologists make of his claims to be described as a forensic pathologist, and I will read them into the Hansard in a subsequent ministerial statement. And I have offered to Professor Thomas to read into Hansard his response to their assessment of his qualifications as a forensic pathologist. There is no provision in the standing orders of the House of Assembly for a person aggrieved by remarks made under parliamentary privilege to respond, as there is in another place. I moved a motion to allow that right but it was defeated in the last parliament. And who was it defeated by? The Liberal party. To overcome that, I am arranging with Professor Tony Thomas to read in his response to what other forensic pathologists in the Forensic Science Centre say about him, and how they dispute his qualifications to be regarded as a forensic scientist.[Professor Thomas has never claimed to be a forensic scientist. He is a forensic pathologist] That is taking a little time to arrange, but as soon as it is done I will be back here and I will do it.

Mrs REDMOND

I seek to ask a supplementary question. Could the Attorney-General please advise at what point prior to 22 September 2003 he became aware that the findings of Magistrate Baldino had been overturned by Justice Mullighan in 1999?

The Hon. M.J. ATKINSON

My recollection is that it happened when I was restored as Attorney-General, in the days and weeks after that. It was drawn to my attention by the victims of crime coordinator, or it may have been correspondence from Today Tonight or Professor Thomas. I will find out which it was and I will tell the member. But at a very early stage I came here and corrected it.

Top of Page