Petition of David Joe Szach

To Her Excellency Marjorie Jackson-Nelson
Governor of South Australia

This Petition of David Joe Szach [the Petitioner] in the State of South Australia shows the following procedures have been completed in respect of the Petitioner’s circumstances:

This is Part One of the Petition.

Link to Part Two of the Petition

Antecedents

1. In June 1979, the body of Derrance Redford Stevenson [the deceased] was found in a freezer at his home with a gunshot wound to the head. The Petitioner was eighteen years old at the time. The deceased was 44 years old. They were involved in a personal relationship with each other at that time. According to the post-mortem report the deceased was said to have died around 4 - 5 June 1979.

2. The Petitioner was charged with the murder of the deceased. The particulars alleged were that on 4 June 1979 at 189 Greenhill Road the Petitioner murdered the deceased.

3. Following a jury trial before His Honour Justice Wells the Petitioner was found guilty and convicted of the murder of the deceased on 19 December 1979. A sentence of life imprisonment was imposed by His Honour Justice Wells on that date.

4. The Petitioner appealed to the Court of Criminal Appeal. The appeal was heard before King CJ, Legoe and Mohr JJ. The appeal was dismissed unanimously on 21 April 1980.

5. The Petitioner sought leave to appeal to the High Court. Leave was refused.

6. In 1991, Michael David QC inquired into the matter on behalf of the Legal Services Commission to determine if the Commission should fund a further appeal. Mr David advised against it. His opinion was dated 29 May 1991.

Background Facts

[This statement of facts is taken from the Opinion of Michael David QC 29 May 1991].

7. The deceased Derrance Stevenson and David Szach were homosexual lovers. Stevenson was a prominent criminal lawyer in Adelaide in his forties and Szach was eighteen years old. In early 1979 Stevenson arranged for Szach to spend some time in Coober Pedy. In May of 1979 Szach returned from Coober Pedy and lived with Stevenson. It was arranged on 3 June 1979 that Szach return to Coober Pedy. A bus ticket was purchased for Szach to travel to Coober Pedy from the Stateliner Bus Depot in Franklin Street, Adelaide. The bus was to leave for Coober Pedy at 7.15 pm on 4 June 1979.

8. On the alleged day of Stevenson’s death (4 June 1979) Stevenson spent much of the day working as a lawyer. The last independent witness he spoke to before his body was discovered the next day at 5.25 pm was a Miss Trust. She had a telephone conversation with him sometime between 5.00 pm and 5.20 pm on 4 June 1979.

9. There was uncontested scientific evidence from Dr Manock that the death occurred on 4 June 1979 between 4.45 pm and 8.45 pm. Dr Manock’s opinion was that the body was placed in the freezer sometime between 5.45 pm and 9.45 pm but that death must have occurred very shortly before the body was placed in the freezer and that would have occurred no more than an hour before. Hence the time span was extended from 4.45 pm to 9.45 pm.

10. The Crown case from then onwards was that from about 5.40 pm onwards there were a series of unanswered telephone calls to Stevenson’s premises, which included both office and living quarters. The Crown further alleged that an independent witness (Mr Short) identified the accused leaving the premises at 6.40 pm and driving away in a motor vehicle.

11. The Crown case proceeded with evidence being given from the Stateliner Bus Depot of Szach obtaining a refund on his ticket for Coober Pedy sometime between 6.50 pm and 7.10 pm. He then went to his home at Surrey Downs arriving about 7.00 pm and leaving about 7.40 pm with his brother Raymond and a person called Julie Harris. He dropped them off at the Fairview Shopping Centre at about 7.45 pm. The Crown case proceeded with the calling of Mr Shields who gave evidence that at about 8.45 pm from a nearby building where he worked he observed Stevenson’s car parked in its normal spot and another vehicle (an XT model Falcon sedan) pull up next to it. This car was similar to a vehicle which was in the possession of Mr Gambardella who was an acquaintance of both Stevenson and Szach. Shields saw both cars there at 11.00 pm.

12. There was further evidence from a taxi driver who says that he picked up a young man at 11.07 pm from near Stevenson’s house. That person was wearing spectacles with brown plastic frames which were similar to Stevenson’s spectacles. He was carrying an attaché case and a green garbage bag. He let him off in Pulteney Street, Adelaide at the east end of Rundle Mall. On the following morning a green plastic garbage bag was recovered from a rubbish bin.

13. Two witnesses were called from a roadhouse at Port Wakefield giving evidence that Szach arrived in a red Datsun at about 12.15 am on the morning of 5 June 1979 and purchased petrol and continued his journey.

14. He arrived, on the independent evidence called by the Crown, at Coober Pedy by about 10.00 am . There is evidence that he pulled in at Kingoonya around 4.30 am. There was evidence that the distance from Adelaide to Coober Pedy is 940 kilometres and the distance from Adelaide to Port Wakefield is 99 kilometres.

15. At Coober Pedy Szach was wearing Stevenson’s jacket which contained various personal items in the pockets. Mr Szach in his unsworn statement at trial said that he left the premises at 6.00 pm not 6.40 pm for the purposes of going to Coober Pedy having been instructed to do so by Stevenson. In his unsworn statement he said that Stevenson gave him no reason but just told him to take the Datsun and drive to Coober Pedy. He says he was at the Stateliner Bus Service to cancel the ticket and collect the refund at 6.15 pm. He then he went to his family home at Surrey Downs.

16. After dropping off his brother and Julie Harris, consistent with their evidence, he then says he drove back to Stevenson’s home because he (Szach) had phoned Stevenson earlier and there was no answer and he was worried about him. He said in his unsworn statement that he arrived there at 8.00 pm and left about 8.30 pm setting out for Coober Pedy. He denied killing Stevenson. When he was spoken to by police in Coober Pedy his statements to them were reasonably consistent with his unsworn statement except that he varied the times by about half an hour and did not mention the trip back to Greenhill Road at 8.00 pm. He said also in his unsworn statement that he arrived at Port Wakefield a great deal earlier than 12.15 am.

17. One matter which caused Mr David QC some concern in his report was stated by him as follows:

18. A Mrs Shea was called by the defence at trial. Her evidence was basically unchallenged and there was no doubt that she was an honest and reliable witness. She gave evidence that on the morning of 5 June 1979 she was a receptionist at the Legal Services Commission. On that morning shortly after she arrived at about 8.05 am she noticed a man knocking on the front window. She spoke to that person and said, ‘can I help you?’ He said, ‘is Justin in?’ The Justin referred to was Justin O’Halloran, one of the Legal Services Commission’s solicitors. She said, ‘have you got an appointment?’ and he replied, ‘no’. She said, ‘are you a client of Justin’s or is it about an application?’ He said, ‘not yet but I need help’. She said, ‘what type of matter is it?’ He said, ‘a crime’. She said, ‘have you seen a solicitor or is a solicitor willing to act for you?’ He said, ‘only Derrance Stevenson but when I left him last night he was in no condition to act for anyone’. He then went on and said, ‘I have to see Justin because he is the only lawyer in Adelaide that will help me’. She said, ‘you might ring later in the day and arrange an appointment’. She had never seen this man before. No one has been able to contact him since.

19. Mr David QC explained that her evidence as to that conversation was basically unchallenged. He pointed out that the police did not find Mr Stevenson’s body until the afternoon of 5 June 1979; therefore, bearing in mind what this person said to Mrs Shea some hours prior to that it was quite startling. He said that it would be an enormous coincidence if he happened to be talking nonsense or just making up what he said exactly at the same time as Stevenson’s as yet undiscovered body was in his own freezer.

20. Mr David said that if his words could be taken to mean that he saw Stevenson’s body then that may affect the case considerably. However, the evidence as set out here was before the jury and they were entitled to make what weight of it they could.

21. Mr David QC then went on to consider concerns as to Dr Manock’s opinion as to the cause of death. He said that there might be some material forthcoming of a scientific nature concerning studies that have been done since the trial which show that Dr Manock must be wrong and that it is impossible to estimate the time of death of a frozen body. However, he said that he had not at that time got such material and therefore could not form an opinion of it. He continued:

I have therefore given my opinion on the basis that the unchallenged evidence of Dr Manock stands.

22. Mr David QC stated that if such evidence were to be forthcoming then it could well be of significance. Such evidence has now been obtained and it is set out in the following paragraphs. 

Dr Manock’s autopsy report

23. In his autopsy report, Dr Manock said that the deceased had post-mortem lividity (hypostatic staining) along his back. Dr Manock did not explain how he could have seen this. He did say that the deceased was wearing a shirt, which was unbuttoned at the front. However, this alone does not explain how Dr Manock could have seen the back of the deceased given the frozen condition in which his body was found. Dr Manock also stated that the presence of the post-mortem lividity along the back of the deceased, and around his hands and ankles, was consistent with the position of the deceased in the freezer. This observation is not correct. The deceased’s body was bent round with his back uppermost and his arms and feet downwards. Lividity is just the pooling of the blood in the body at the lowest part of the body. Whilst the observations about lividity could have been correct for the observation regarding the hands and feet, it could not have been correct for the back, as the back was uppermost.

24. If there had been lividity along the back of the deceased, then this would have indicated that his body had been moved some time after death, and where his body had been on its back in the immediate post mortem period.

25. In his autopsy report Dr Manock stated:

It was not possible to measure the rate of fall of body temperature with the body in the freezer as the appliance had been switched off so changing the conditions under which the body had cooled.
[Emphasis added]

Once the body was removed the freezer was turned on again to determine its normal running temperature. Overnight the temperature fell to a range -19.9°C to -20.9°C.

The thermal capacity of the body would tend to raise the temperature within the freezer, but by what amount cannot be estimated.
[Emphasis added]

26. Dr Manock also said that the body was in a curled up position and would therefore have a small effective surface area compared with a body lying prone. Also sealed inside a freezer there would be minimal air movement, both factors tending to reduce the rate of cooling.

A body will cool 85% of the temperature differential within 28 hours. However, where the effective surface area is reduced, the time is lengthened and in the above circumstances it is my opinion that the lengthening of cooling time would be about 40%.

The initial temperature differential was 57°C and the body core temperature had fallen 30°C.  I therefore calculate that the body cooling would have taken
28 hrs x 140% x 30°C fall
57°C differential x 85%
approximately = 24.27 hours

27. Dr Manock said that he was not able to estimate the room temperature the previous evening but it would appear that the body was placed in the freezer about 24 hours before it was switched off on 5 June at 1745 hours. Dr Manock said that cooling of the body would have been insignificant between death and being placed in the freezer when compared with the fall measured to 2000 hours on 5 June.

28. Dr Manock said that the room temperature at the mortuary was 18°C, but despite this there was no measurable warming of the surface of the skin.

29. Finally, he concluded that:

The factors I have selected in making these calculations are my own estimates based on previous experience and on the literature, but the result could be as much as 2 hours out in either direction. It is my opinion that these calculations indicate the most likely time.

Relevance of Dr Manock’s evidence at Trial

30. The timing of death is important in any case of murder, because it helps to narrow down the range of people who could be regarded as suspects.

31. In the summing up for the Crown, Mr Brian Martin QC stated:

Let us start with the time of death. Ladies and gentlemen, as Dr Manock told you, scientifically it has been made somewhat difficult by the fact that the body was frozen. In his opinion it was in the freezer between 5.45 and 9.45. They are his outer limits – 5 45 and 9.45. But remember, ladies and gentlemen, that he told you that is the freezer; the time of death, in effect, would be an hour at the most before being put in the freezer. That brings you back to the time of death between 4.45, scientifically I am talking at the moment 4.45 and 8.45. That is Monday evening.
[Emphasis added]

32. Mr Martin QC stated that the scientific evidence meant that the death occurred:

Any time from 5.20 onwards, while the accused was there.
[Trial Transcript p 1533 emphasis added].

33. In speaking about the time interval between death and the placement of the body in the freezer, Mr Martin QC said:

What Doctor Manock was telling you, was at the very most, it was an hour, it could have been any time from a few minutes, right up to the hour.
[Trial Transcript p 1533].

34. Mr Martin QC said that if you combine the evidence relating to some phone calls not being answered with the scientific evidence:

… then you would find Mr Stevenson was dead before the accused left the house in the car, and there'd only be one conclusion as to who killed him.
[Trial Transcript p 1540].

35. As Mr Martin QC said:

… the objective and scientific evidence means that he was dead by 6.40, and the accused was there.
[Trial Transcript p 1557 emphasis added].

36. The claims by Dr Manock to objectivity and scientific accuracy were incorrect and misleading.

37. It was also conceded that the circumstances of this case were ‘unique’, and were stated to be so by His Honour in his summing up to the jury. It is therefore difficult to identify what possible ‘experience’ or ‘reading of the literature’ Dr Manock could have had or engaged in to guide him in his calculations. He did not identify what experiences or items in the literature he was referring to.

The Petitioner’s Post-release review

38. The Petitioner refused to apply for parole on the basis that this would be tantamount to an admission of his guilt. Without an application for parole being lodged, and because the Petitioner was sentenced prior to non-parole periods being set, there was in effect, no procedure in place to allow for his release from prison. As a result, legislation was passed to allow the head of the Parole Board to lodge an application for parole on behalf of a prisoner (Criminal Law Sentencing Act 1988 s32(3)). This was done on 23 March 1993 . In R v David Joe Szach before His Honour Justice Millhouse the Petitioner was granted parole. He subsequently contacted Dr Byron Collins, to assist with a review of the pathology evidence involved in his conviction.

Dr Byron Collins Report

39. On 5 August 1994, Dr Byron Collins, an independent pathologist practicing in Melbourne wrote to Andrew Dudek, a solicitor acting for the Petitioner, in the following terms.

40. Thank you for referring this case to me for my consideration in relation to the circumstances surrounding the death of Mr Derrance Stevenson. I have been involved with the assessment of various aspects of this matter for a considerable period of time during which the transcript of evidence given at the Supreme Court Trial has been reviewed in association with the post-mortem examination report, photocopied photographs and incomplete working notes / reports of a number of the investigating Police / Scientists involved with the collection and evaluation of the trace evidence. A number of areas of concern have been discussed with you during various conferences, however in this report I have concentrated, as instructed, on the evidence given by the Pathologist, Dr Colin Manock as it related particularly to the time of death. The following are my considered comments and opinions.

1. My initial response to the difficulty of establishing the time of death in this case was to attempt, by experimentation using a deep freeze unit and a number of deceased individuals, to determine the time taken for the liver temperature to decline to +7.2°C. There are obvious difficulties with this approach and, during the period of experimentation, it was not possible to obtain a subject of the same physical characteristics as the deceased, thereby limiting the relevance of any results obtained. Other factors to be canvassed in later paragraphs of this report also fettered the ‘scientific value’ of this avenue of endeavour.

2. On further reflection of the dilemma at hand, it became obvious that the solution was more fundamental and could be produced by asking two simple and basic questions, they being –
i) Was the formula used by Dr Manock appropriate and
ii) Were all the variables (factors) employed in the equation accurately known?
The answer has to be a resounding and disturbing NO to both questions!

3. Dr Manock's formula was initially proposed by Fiddes and Patten with their work being published in the Journal of Forensic Medicine, 1958. On review of this paper, it becomes transparently obvious that it was not applicable to the circumstances of Stevenson's death. The body temperature in their experiments was recorded per rectum and they make the very salient point in their article:

The validity of applying the cooling rates shown (in their experiments) by the fall in liver temperature after death would require confirmation.

This has not been done, and therefore, there is no scientific basis to substitute liver temperature for rectal temperature as Dr Manock has done. Additional disturbing comments are revealed in the summary section of the paper and I quote:

Further investigation is called for in a number of directions, and the suggested cooling rates may require slight modification, in the light of further experience; nevertheless it is considered that these rates are fairly accurate if the circumstances are reasonably normal.
[Emphasis added]

45. Nowhere do they state that this method is definitive and accurate and they carefully retract from this by using words such as ‘fairly’ and ‘reasonably’ - hardly concrete descriptive words in my opinion. Finally, it should be noted the cases used by Fiddes and Patten were selected, in that they did not include circumstances which were known or suspected to be abnormal e.g. ‘pyrexial illness before death, protracted death, marked variation in environmental circumstances after death.’ Therefore it has to be argued that the formula has no universality and they also make the comment that ‘marked change in the environmental circumstances will invalidate any conclusions drawn.’ There is no doubt in this case that the environment within the freezer would have varied considerably between the initial placement of the body and its discovery.

46. Fundamental to the reliability of any formula is the accuracy of its individual factors. Quite simply none (apart from the liver value obtained by Dr. Manock) are known with any degree of comfortable certainty.

a) The running temperature at the time when the deceased was placed in the freezer is unknown.  If it had been functioning at the normal rate prior to placement of the body this would have been approximately -20 °C. However, if the super-chill mode were in operation, for whatever reason, the temperature would be of the order of -28°C.

48. b) The core body temperature at the time of death has been assumed by Dr Manock to be 37 °C. This assumption is unjustified and it is well documented that, for example, after strenuous exercise the rectal temperature may be elevated by up to 3°C. The deceased's temperature may have been higher or lower style='letter-spacing:-.05pt'>than 37°C, it is simply just not known.

49. c) Dr Manock had no scientific evidence upon which to base his hypothesis that the cooling time will be lengthened by 40% due to the apparent foetal position of the deceased in the freezer. The formula proposed by Fiddes and Patten was derived from bodies in the ‘ mummy’ and not the foetal position. Heat loss from a body occurs by the processes of conduction, convection and radiation, with conduction providing the greatest avenue. It is generally accepted that with a body lying in the supine (mummy) position approximately 80% of the total body surface area will be available for heat loss whilst in the true foetal attitude, the proportion declines to 60%.

50. However in this case, if the photographs of the deceased's position in the freezer are carefully examined, it will become obvious that the actual areas of body contact with either the freezer walls or frozen food equates more with the mummy than the foetal position.

51. d) Dr Manock has no accurate way of determining the time interval between the actual shooting incident and subsequent placement of the body in the freezer. Reliance on fluidity of the blood in the major vessels and the blanching of post-mortem lividity are totally unacceptable. The timing of the onset of this latter post-mortem feature is so variable as to be totally unreliable in its use for any scientific purpose. The fluidity of post-mortem blood is related to the activation of the fibrinolytic system and not, as described by Dr Manock, to the effects of cooling induced by the freezer.

52. In summary, it is my belief that Dr. Manock has unwittingly succumbed to the very real temptation of furnishing the police with a piece of evidence (time of death) which cannot, in reality, be provided. The investigating officers should have been informed that in view of the ‘parlous state of the art’ of timing of death, using any available method, he could give only a ‘ball park’ figure which could not be used with any degree of exactitude. The formula quoted by Dr Manock, as with almost all of those employed for this purpose, has not stood the test of time and, indeed, it was not proposed by Fiddes and Patten to be accepted sans reservation. Quite certainly, it would not be relied upon by any practising pathologist at the present time as the definitive method.

53. It is my opinion, in the difficult area of estimation of the time of death, there is no facility for dogmatism and the luxury of inflexibility. If such a course is embarked upon there is the unacceptable possibility of the Court confusing hypothesis with scientific fact.

54. On 30 June 1994, Dr Collins provided further information to the solicitors for the Petitioner. He said that he had contacted Professor Bernard Knight, from Wales , who was at that time a leading expert in the field of body cooling in the post­mortem period. He had agreed to read Dr Manock’s evidence and Dr Collins was at that time waiting for the response from Professor Knight. He outlined the main areas of concern as being:

55. 1. BLOOD
To assess the overall significance of the blood found in the vehicle photographs of the blood stains were required. Dr Collins said he had viewed the relevant type of vehicle trim and it is not smooth, but finely roughened with shallow linear indentations.

56. He pointed out that Dr Scott's comments concerning smear formation and changing shape, due to surface tension, were not tenable. [Trial Transcript p 862]. Dr Collins said that it was most important to obtain the actual result sheet generated by Dr Scott during his testing of the blood, because the blood from each individual is different only in the ABO system.

57. 2. FINGERPRINTS
Dr Collins said that the photographs of the prints identified on the freezer should be obtained in order to properly assess the evidence.

58. 3. PATHOLOGIST'S EVIDENCE
Dr Collins pointed out that the bodies used for the derivation of the original formula were in the mummy position and subjected to a constant environment. He emphasised that it must be appreciated that no matter how accurate a formula may be, it will be fatally flawed if one or more of the factors are unknown. This concept is of supreme importance and if it is accepted then there is no requirement for experimentation.

59. The unknown variables were:
There was no scientific evidence to support the lengthening of the cooling time by 40%.
The running temperature of the freezer at the time the body was placed in there could have been anywhere between -20°C or -28°C, but it could also have been outside those ranges. According to David Szach photographs taken at the time show that it was running in superchill mode.
The core body temperature at the time of death was unknown. Strenuous exercise may have elevated the temperature by up to 3°C.
There was no scientific basis for Dr Manock’s assertion that the period between the shooting and the placement of the body in freezer being was approximately one hour.
[Trial Transcript p 563].

60. Dr Collins stated that Dr Manock had based this estimate on the fluidity of the blood. Dr Manock had stated that because the post-mortem lividity had blanched therefore the blood had failed to clot. [Trial Transcript p 557]. Dr Collins pointed out that the fluidity of blood in the post-mortem period is related to the fibrinolytic mechanism and recent work by Takeichi and others indicates that such activity may be high in violent deaths.

61. 4. OTHER MATTERS
Dr Collins thought that the significance of the range of the shot should be investigated together with the possibility of suicide and the use of drugs.

Report by Professor Bernard Knight 14 July 1994

62. Professor Bernard Knight subsequently expressed his views on all of this in his report to Dr Collins dated 14 July 1994. He stated that he was Professor of Forensic Pathology at the University of Wales, College of Medicine and the Wales Institute of Forensic Medicine and Home Office Pathologist.

63. Professor Knight said that he had read Dr Manock’s post mortem report on the deceased and all of the extremely long transcript of his evidence and cross-examination:

… all I can say is that in my opinion his reliance upon very speculative and tenuous calculations is ill founded and that the degree of accuracy he offers cannot be substantiated.

64. Professor Knight said that Dr Manock had used some rather old ideas upon body cooling, ‘which have been discarded in recent years’:

The business of an 85% drop of the temperature differential in 28 hours is totally without foundation and seems to be a garbled version of some of the work published by Fiddes and Patten many years ago.

65. He went on to say that the problem with all research and published papers upon estimation of time of death and temperature is that each publication is different and none of them appear to stand the test of time when applied to practical situations.

66. Professor Knight pointed out that the most reliable method in 1994 was probably the nomogram by Henssge of Germany, who was one of the co-authors of the book which Professor Knight was then editing. However, he added that even given the best circumstances, ‘Henssge claims no more than a 2.8 hour margin each side of the 95% probable time of death.’ Professor Knight added:

These are in ‘normal conditions’ where the environment is known, such as a room or outside locus with moderately stable ambient temperature.

I am sure that Henssge would not dare to get within very many hours of a time of death where the body had been put into a freezer in a particular posture.

67. Professor Knight went on to say:

I also cannot agree with the arbitrary assumption of Dr Manock that a body in a foetal position (which is very variable in itself) would slow the cooling rate of the liver by 40%. This to me appears to be a figure snatched from the air without any scientific validation.
[Emphasis added]

68. Professor Knight said that he had been a pathologist since 1955 and a full-time forensic pathologist since 1959. One of his major research interests had been the estimation of the time of death and he said he had been working on the book – The Estimation Of The Time Since Death in the Early Post Mortem Period. The authors in addition to Professor Knight were to be:
Professor Klaus Henssge of the University of Essen, Germany;
Professor Burkhard Madea of the University of Koln, Germany;
Dr Thomas Krompecher of the University of Lausanne, Switzerland:
Dr LDM Nokes of the University of Cardiff. Dr Nokes was said to be a medically qualified bio-engineer who worked closely with the forensic department there.

69. Professor Knight said that Dr Nokes and his colleagues could do further work to show that the assumptions of Dr Manock were invalid.

70. However, he said, he was quite happy, almost from first principles, to say that no estimation of the time of death within a wide margin of possibly plus or minus four to six hours could be hoped for in such a case. Indeed, he added, the safest thing for a forensic pathologist to do would be to say that in such circumstances, estimating the time of death in such a body would be so fraught with uncertainty as to be not worth the attempt.

71. Professor Knight stated that if any more detailed critique of Dr Manock’s work were needed, then he and his colleagues would be glad to give it, but at that stage, he thought that a general expression of disbelief in his unwarranted claims to accuracy would be sufficient.

Representations to the Petitioner by the Attorney General

72. In a letter dated 25 May 2005, the Attorney-General, Michael Atkinson MP wrote to the Petitioner. Mr Atkinson pointed out that the unreliability of Dr Manock’s evidence had previously been considered by the former Attorney-General Trevor Griffin, and the Solicitor-General at the time John Doyle QC. The opinion in February 1995 was to the effect that doubts about the reliability of Dr Manock’s evidence as to the time of death in this case did not cast any significant doubts about the reliability of the Petitioner’s conviction. The view was expressed that if the Petition procedure were to be invoked, it would be unlikely that the petition would be referred. Mr Atkinson said that his view in May 2005 would not lead him to form a different view from that of the former Attorney General. The Attorney-General said that proof of guilt was based on evidence other than the scientific evidence given by Dr Manock as to the time of death.

73. That opinion was either incorrect or misleading.

74. It is correct to say that there was other circumstantial evidence from which certain inferences may have been drawn relating to the time of death. However, as outlined above, the jury was told by Mr Martin QC that Dr Manock’s evidence as to the time of death was objective and scientific. He told the jury that it meant that the death occurred during the time that the Petitioner was at the premises.

75. If Dr Manock’s evidence had not been probative of the facts in issue in the case, then it would have been inadmissible. Given that it was admitted in evidence at the trial, it must have least have been probative, especially relating to the issue of time of death.

76. It is clear that the Attorney-General cannot suggest that the jury would not have properly considered Dr Manock’s evidence, as they would have had a legal obligation to consider it. It is also clear that the Attorney-General cannot speculate as to the weight that the jury would have attached to Dr Manock’s evidence.

77. It is clear that the applicable legal principles state that if expert evidence admitted at trial is subsequently proved to be incorrect or unreliable, then the verdict is unsafe. This is so, even if there is other circumstantial evidence which might point to the guilt of the accused.

78. An accused is entitled to a trial by jury and not trial by speculation of an appellate court. It is clear that an appellate court cannot speculate about what verdict the jury might have reached if the case had been put to them on a different basis. It is also clear that it is inappropriate for a prosecutor to claim that evidence admitted at trial and which is subsequently proved to be in error did not affect the minds of the jury when considering the verdict.

79. If the jury had been told that the evidence of Dr Manock relating to the time of death was not reliable then it may well have affected their consideration of the value of the other circumstantial evidence which also pointed to that time of death.

80. The prosecution either knew or should have known that Dr Manock’s opinions did not conform to the requirements of opinions of expert witnesses. The prosecution had a duty to make that information known to the defence. It is clear that the Petitioner’s legal representatives at the time were unable to properly cross-examine Dr Manock in relation to issues concerning his credibility and professional standing and expertise as factors relevant to that assessment were unknown to them at that time. The Petitioner was therefore denied any opportunity of establishing factors which would have ensured his acquittal or which would have given him a fair chance of acquittal.

Link to Part Two of the Petition.

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