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A state of Injustice - Dr Robert N Moles
Chapter Five - Time and tide

A state of Injustice: table of contents

Also by Dr Moles - Losing Their Grip - The Case of Henry Keogh - Definition and Rule in Legal Theory

Frits Van Beelen 1972

Part One describes some aspects of the way in which police officers, lawyers, judges, scientists and pathologists should go about their work and how the criminal justice system should operate. This then gives us an appreciation of how factors such as faulty expert evidence, for example, or the failure of defence counsel to properly conduct the defence, or the failure by the judge to properly instruct the jury, or the failure of the prosecutor and the courts to act on new evidence about the reliability of a witness, could lead to miscarriages of justice. It might be thought that if any of these things happened they would be picked up during the process of the trials and appeals of the cases.

But they may not have been. By looking at a number of cases, this section we will show that problems like these could have been going undetected in South Australia for years and miscarriages of justice may well have resulted.

We look first at a number of cases involving pathology evidence. These cases reveal that there were problems with the investigations. They also serve to demonstrate the pivotal role of the forensic pathologist in the delivery of justice. A common factor in these cases is that they involve the work and evidence of Dr Colin Manock, who was in charge of forensic pathology in South Australia for nearly 30 years. He claims to have completed some 9000 autopsies during his career, so it is obviously beyond our capabilities to examine more than a small number of his cases.

The issues involved in these cases have given rise to such widespread concern that they have become the subject of parliamentary questions [1] and television programs. [2] We do not suggest that Dr Manock alone is responsible for what has happened in the cases he was involved in. Because jury deliberations take place in secret, the extent to which his or any other evidence might have influenced an investigation or a trial, and the effect of this on the outcome in the courts, cannot be known. However, we will be suggesting that, from our examination of the cases, there may have been serious deficiencies with the way in which the verdicts and conclusions were arrived at.

We will start by providing some background information about Dr Manock. We will then take a look at some cases, starting with the case of Frits Van Beelen.

Dr Manock

Dr Colin Henry Manock came from England to South Australia in 1968. Documents explaining Dr Manock’s background were lodged with the court in South Australia during an action he took against his employer in the early 1970s. As a result they have become part of the public record and the following information is taken from them.

In March 1968, Dr Manock applied for the position as the head of forensic pathology in South Australia. His covering letter, addressed from Morley, near Leeds in Yorkshire, stated that he wished to apply for the post of director of forensic pathology in the Institute of Medical and Veterinary Science (IMVS).

He enclosed a list of postgraduate positions he had held and of his experience of medico-legal work. This list showed that he graduated from the Leeds Medical School with the degrees MB, ChB (that is, Bachelor of Medicine, Bachelor of Surgery) in 1962. Following that, he had several six-monthly placements:medical officer to a clinical toxicologist and to a cardiologist at St James Hospital, Leeds senior house officer to a group of neurosurgeons at Leeds General Infirmary and senior house officer to a consultant obstetrician at Leeds Maternity Hospital.

In February 1964 he was appointed assistant lecturer in the Department of Forensic Medicine, Leeds University, and appointed to the permanent staff of the university as lecturer in October 1966.

Concerning the details of his experience, he stated that he had been in the department for four years and had carried out 1,200 coroner’s autopsies ‘of which 30 were murder cases for which I was personally responsible’. It also included 150 suicides and 90 accidental deaths.  He said that he had also attended the autopsies of a further 30 murder cases.

He noted his special interests as firearms and firearm injuries and stated that he was granted a firearm dealers certificate in 1966.

He listed the papers he had given to the British Association of Forensic Medicine as ‘Peripheral carbon monoxide due to shotgun injury’ and ‘The use of papain for extracting bullets from bone’.

Dr Manock was appointed Director of Forensic Pathology at the IMVS in December 1968. This was some years before the new Forensic Science Centre was built. He was instrumental in starting the South Australian Branch of The Forensic Science Society of the United Kingdom. Dr Manock retired from his position of Senior Director of Forensic Pathology at the Forensic Science Centre in 1995, just before he gave evidence at the Keogh trial.

A few years after his appointment, Dr Manock applied to be registered as a Fellow of the Royal College of Pathologists of Australasia. His application showed that he had provisional medical registration in England and Wales from July 1962, full registration from July 1963, and British Commonwealth registration from 1970. He was granted a provisional certificate by the South Australian Medical Board from 2 December 1968. He obtained a registration Certificate in the Northern Territory from February 1970 and a South Australian practicing certificate from September 1970.

To gain admission to the college, Dr Manock was given only an oral examination and, as stated in an interview given by Dr David Weedon of the Royal College of Pathologists to Sally Neighbour on the ABC 4 Corners program, he wasexempted from the normal requirements:

Sally Neighbour: Dr Manock was admitted to the College of Pathologistsin 1971. It gave him the qualification he'd lacked, at least on paper. He was exempted from the normal five years of training and two written exams.

Dr David Weedon: Well, it was the practice in those days for members who held very senior positions in Australia, and who had British qualifications, to be given a viva examination -- that is, an oral examination only.

Sally Neighbour: But Dr Manock didn't even have British qualifications.

Dr David Weedon: So I believe.

Sally Neighbour: So why would he have been given this oral-only examination?

Dr David Weedon: Because of the seniority of the position he held. It would probably have been about 20 minutes, and he would've been asked questions related to forensic pathology.

Dr Manock was admitted to fellowship by the council of the RCPA on 7 September 1971. No date of ‘completion of training’ is stated on the records, but there is a note to say that ‘Dr Manock had completed up to five years’. The effect of granting Dr Manock his FRCPA was to give him an important qualification. It indicated that he was a person of high standing within the profession of pathology. Yet he had undertaken no formal postgraduate training in pathology, and had never sat a formal written examination in the subject, since his graduation as a doctor.

In the early 1970s, an attempt was made by the IMVS to appoint a Senior Director of Forensic Pathology. Dr Manock took action in the courts, arguing that this was tantamount to a constructive dismissal of him as he had been appointed as the head of the department. The IMVS responded by saying that his title as Director was more of a courtesy title, and was not meant to convey that he was the department head. Dr Bonnin, the Director of the institute, pointed out during the court proceedings that the IMVS was in an awkward situation; they had a person (Dr Manock) in a specialist’s job, but without the necessary specialist qualifications.

Dr Bonnin said: ‘We had to make other arrangements for the work, particularly the histopathology which he was unable to do certifying the cause of death because of his lack in histopathology …’ [5]

The court upheld Dr Manock’s claim, and his position as the head of the department of forensic pathology was confirmed. [6]

Some time later, Dr Manock was again back in court. He said that as he could be called out at any time, he was ‘on call’ 24 hours per day, seven days a week, and hence was entitled to an allowance for this. The matter was settled. [7]

The Van Beelen case

This case is significant because it was the first criminal case in South Australia to rely entirely on scientific circumstantial evidence and, at the time, it was the longest criminal trial in the state’s history. [8] The time of death was pivotal, and the case is notable from the pathology point of view because the precise determination Dr Manock made of the time of death was, and still is, controversial.

Deborah Leach murdered

On Thursday, 15 July 1971 at about 3.30 pm, 15 year old Deborah Leach left Taperoo High School, in Adelaide, with a girlfriend. They walked home together as far as Deborah’s home, which was about 300 metres from the school. Deborah went into her house, dropped off her school bag and a cake she had baked at school that day, and got changed into a pair of tartan slacks and a brown jumper. At about 4pm, a witness saw Deborah and her dog running across the paddock opposite her home and down towards the beach. At 4.40 pm, Deborah’s mother came home from work and found the cake on the kitchen table. She looked out through the front window and saw the dog playing alone on the seagrass covering the beach. Deborah’s mother crossed the road and retrieved the dog. She called out Deborah’s name several times but got no reply. By 6 pm she was beginning to worry and rang her husband, who was at work. He came home and, together with a neighbour and Deborah’s dog, they went to the beach to look for Deborah. It was dark by this time and they had to use torches in their search. The seagrass was piled up all over the beach, in places up to about 2 metres. During the search, they found tyre marks and boot prints (of the type Deborah had been wearing) but there was no sign of the teenager. They went home and called the police several times. By midnight the police had launched a full-scale search.

There was intermittent rain throughout the night. At 4 am a police officer found some of Deborah’s belongings lying close together on the edge of a bank of seagrass. They were her right boot, her small transistor radio and a dog leash. At 4.20 am, one of the senior detectives found Deborah’s partially clothed body buried in the seaweed about 3 metres from where her belongings were found.

Dr Manock arrived at the scene soon after. He examined the body but did not take the body temperature. He later conducted the autopsy and concluded that Deborah had died by drowning in seawater. There were no signs of bruising to the body. Dr Manock concluded that she had been murdered. He also determined that she had been sexually assaulted after her death (rather than before her death) as there was a small triangular tear in her vagina but no bleeding or bruising associated with it. In his evidence-in-chief, he was asked about the bruising and tearing by the prosecution:

Prosecutor: You told the jury that in relation to the laceration that there was, I think I quote you, ‘No evidence of bruising’.

Dr Manock: That is correct.

Prosecutor: Was there any evidence of bleeding externally or internally near the site of the laceration.

Dr Manock: No, there was not.

Prosecutor: Is there any significance in the absence of bruising and the absence of bleeding, both externally and internally.

Dr Manock: The significance is that had the injury been caused during life then bleedi lang=EN-GB>ng would have been apparent. I therefore come to the conclusion that this was a post-mortem injury. [9]

Frits Van Beelen

Frits Van Beelen was an unemployed carpenter who often went to the beach for a walk, or to do some jogging. He had two previous convictions, one for indecent exposure and the other for attempted rape. He did not come forward in response to the police requests, but was traced through his car registration number which had been noticed by other visitors to the beach that day. Two weeks after the discovery of Deborah’s body, police interviewed Van Beelen. He said that on the day of Deborah’s disappearance, he had driven to the beach at about 4 pm and walked along the beach for about half an hour. He said that he could not recall having seen anyone else on the beach at that time. He said he left the beach and drove into the centre of Adelaide to pick up his wife from work at 5 pm. It was estimated that it would have taken him about 30 minutes to get into the centre of town from the beach. Almost three months after Deborah’s death, Van Beelen was arrested for her murder, and subsequently brought to trial in July 1972.

Much of the evidence against Van Beelen during the trial was scientific. The clothing he was said to have been wearing on the day of Deborah’s death had been vacuumed in the police forensic laboratory for possible traces of evidence – microscopic fragments of paint, fibres, hairs or anything else. In all, 27 different areas of expert scientific evidence were presented by the prosecution. All areas were contested by the defence. At the end of a trial which lasted three and a half months, the jury found Van Beelen guilty of murder. He was sentenced to death. His appeal against the conviction was upheld by the Court of Criminal Appeal on several grounds, one of which was that the trial judge had misdirected the jury in the way they were to regard the scientific evidence. The head note in the law report of this case reads as follows:

In a criminal trial, the judge is required to direct the jury that they cannot convict unless they are satisfied of the guilt of the accused beyond reasonable doubt, and it is usual, in a case of circumstantial evidence, for the judge to tell the jury also that they cannot convict if there is any rational hypothesis or reasonable probability consistent with the innocence of the accused. [Emphasis added]

This is a point that we will make a number of times. The appeal judges also said:

… if we had been members of the jury … we think we might have been tempted to abandon in despair the task of trying to make sense of the scientific evidence and to concentrate on the other evidence ... [10]

A new trial took place one year and nine months after Deborah’s death.

At the second trial the prosecution again relied largely on scientific evidence, but the original 27 categories were now reduced to four. For example, the evidence of Dr Manock and a police expert witness concerning human and dog hairs, which had been the subject of much dispute in the first trial, was not presented at this trial. The defence had been able to show that both Dr Manock and the detective sergeant had mistaken an effect that had been caused in the mounting of the hairs on slides for microscopical examination for ‘pigment’ and ‘fluorescence’ and had mistakenly used this as a basis for comparison. The jury themselves picked up that the experts gave the diameter of the hairs as ten times too big. It was further revealed in cross-examination that the police expert, who had been giving this sort of evidence for years, wrongly believed that hair grew from the tip end.

The prosecution, however, presented three types of evidence derived from the application of the Locard transference principle. These were: minute paint particles, details of which were heard only in the voir dire and which the judge subsequently ruled were not admissible as evidence as they proved nothing one way or the other; red and black fibres found on the upper part of Deborah’s singlet that were said to have come from Van Beelen’s red and black jumper; and fragments of shell and sand embedded in Van Beelen’s jumper although this was objected to and subsequently ruled out.

The defence was again critical of the quality of the scientific work and its interpretation. [11] Indeed, during the second trial, Dr Bevan, a professor of chemistry at the School of Physical Sciences at Flinders University, was moved to remark during his evidence that he saw ‘no reason why, if the legal processes were going to use science, it should not use proper science’. [12]

The prosecution argued that the red and black fibres found on Deborah’s singlet were the same as those from Van Beelen’s red and black jumper taken by the police from his home. Initially Van Beelen said he was unsure whether he had been wearing his red and black jumper or his blue one. He then said he remembered that he had been thinking of going for job interviews that day and so he wore his best jumper – his blue one.

The defence argued that the fibres were not uncommon and had not been tested adequately and could even have come from the tartan slacks Deborah had been wearing that day. The most that can be said about fibres of this sort is that they are similar to other fibres. The value of fibres as evidence is based on an estimation of how commonly they are found in the community.

The pathology evidence

Pathology evidence was the fourth category introduced by the prosecution. When Deborah’s body was found, twelve hours after she was last seen alive, rigor mortis was present, as was lividity. The skin did not blanch under pressure, showing that the lividity had become fixed. This meant that she had probably been dead for at least six hours. The prosecution claimed that this evidence was consistent with death occurring between 3.30 pm and 4.30 pm the previous day. However, Dr Derek Pocock, a forensic pathologist who gave evidence for the defence, explained that the evidence about rigor was also consistent with death having occurred up until around 11 pm that night. [13]

Time of death

Throughout the trial, the timing of the death was a crucial factor. Deborah had last been seen alive by a witness at 4 pm and Van Beelen had an alibi from just after 4.30 pm. If he was to be found guilty of murder, then it would be essential to the prosecution’s case to establish that Deborah was dead by 4.30 pm. An accepted way for a pathologist to calculate a time of death is by taking body temperatures, but Dr Manock did not take the body temperature when he arrived at the scene. He later said at the trial that in view of the seaweed and cold wind, this was not a reliable indicator in this case. Other pathologists say that this explanation does not excuse or properly explain his failure to record the temperatures.

The most contentious of the evidence was the way Dr Manock fixed the time of Deborah’s death as between 3.30 pm and 4.30 pm. He said he was able to fix the time of death as having occurred between 3.30 pm and 4.30 pm. He did this by relying on an analysis of Deborah’s stomach contents. Dr Manock gave evidence to say that it was ‘virtually certain’ that Deborah was dead by 4.30 pm, and most probably around 4.15 pm. His calculation was based on the rate at which a stomach is emptied of its contents. According to Deborah’s school friends she had apparently eaten a pie or pasty, some chips and a carton of milk around midday. Dr Manock then ‘calculated’ how long the stomach would take to process the food, and to pass it through the system. He asserted that by examining the contents of the girl’s stomach, he could be certain that her death had occurred by 4.30 pm, and no later.

As Kevin Borick, who had been Van Beelen’s counsel at the trial, later said in an interview with Sally Neighbour for 4 Corners:

Kevin Borick: He [Dr Manock] was dogmatic about the time of death and we believe he was wrong about that.

Sally Neighbour: The time of death was crucial.The dead girl had last been seen alive heading to the beach at 4 pm. Van Beelen had an alibi from 4:30. To get a conviction, the Crown had to show she’d died within that half-hour.

In a scientific article subsequently published by Dr Derrick Pounder, now Professor of Forensic Pathology at Dundee University, the method used by Dr Manock in the Van Beelen case was reviewed and evaluated. Professor Pounder concluded that the most that could be said about this approach to the timing of death was that it could narrow the possibilities down to ‘a range of some hours’. He stated that any suggestion that this method could be exact to ‘ … within a half an hour as given in … the Van Beelen case in Australia would seem to be scientifically unsound’. [15] This is important, because Dr Manock’s testimony in this case was said to be both expert and scientific. Dr Manock was not called upon to detail the basis of his expertise in this respect. In 1984, under cross-examination in another case, however, Dr Manock was questioned on Professor Pounder’s statement about the Van Beelen case. ‘I did see that comment, yes,’ he replied. Defence counsel went on:

Counsel: And would you agree that estimates of time of death on the basis of stomach contents are very unreliable.

Dr Manock: I do agree with that. [16]

Unfortunately, this concession by Dr Manock was of no assistance to Van Beelen. There are many important factors in making an estimate of time of death from stomach contents. Dr Manock had no way of knowing Deborah’s standard rate of digesting food. He had no test results to see how her rate of digestion of different food types progressed. He had no test results to compare how her rate of digestion varied with differing physical and psychological states. He had no knowledge of how long she was in each of those states. Even if Dr Manock’s assertions about Deborah being killed about four hours or so after her last meal were to be accepted, there is no way to be sure that the meal she had at midday was in fact her last meal.

No bleeding

Dr Manock’s evidence that the lack of bleeding in the tear in Deborah’s vagina meant that the injury occurred after death was one factor used to rule out another person who had actually confessed to the murder, as we will see in a moment. The surprising thing is that the same evidence should also have ruled out Van Beelen. On the facts, Deborah went to the beach around 4 pm, and Van Beelen left the beach around 4.30 pm at the latest. Therefore, if he had been the perpetrator, and if he had killed Deborah and then had sexual intercourse with her body, there could only have been an interval of a few minutes between her death and the intercourse, at the very most. This is insufficient time to prevent bleeding in the manner Dr Manock described. Dr Manock’s statement that bleeding does not occur after death is imprecise. Bleeding occurs as a matter of course at autopsies where they are conducted expeditiously after a death has occurred. Bleeding will occur while the blood remains fluid in the part of the body tissues which are torn, cut or damaged.

The only way bleeding will not occur in such a circumstance is when the interval between death and damage to the tissues is sufficiently extended that there is no longer fluid blood in the vessels. This can be for one of two reasons: either it has drained from those vessels, as it may do with the process of lividity; or it has become fixed and is no longer fluid. This fixing process takes at least one or two hours, depending on the temperature and the position of the body. It doesn’t occur either instantaneously or within a few minutes. As a result, Dr Manock’s observations about the damage to the tissues and the lack of bleeding, properly interpreted, should have been sufficient to clear Van Beelen of suspicion.