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STATEMENT CONCERNING THE FORENSIC PATHOLOGY INVESTIGATION OF THE DEATH OF ANNA CHENEY BY DR MANOCK

I have been requested to provide this statement by representatives of Mr Henry Keogh. This statement is based mainly on a further opinion in the case of Anna Cheney (Deceased) provided to Sykes Bidstrup (Solicitors) on 16 December 1996. That further opinion was in turn based on:

(1) Inquest Findings into the deaths of three infants: Storm Deane, William Barnard and Joshua Nottle.

(2) Transcripts of my evidence and that of Dr Manock at both trials.

Inquest Findings

Included in the Coroner’s conclusion in each of these cases are the following comments:

1. Storm Deane.

"Having acknowledged the scenario outlined by Mr Moss as a possibility, it is extraordinary that Dr Manock did not conduct further inquiries in order to either verify or exclude it .. Dr Manock made no inquiries in order to try and ascertain what Storm Deane’s condition was on admission to hospital nor did he suggest that Detective Fidler should do so.

Further Dr Manock did not examine the eyes or the spinal chord in order to verify or exclude shaking having occurred.

.....Dr Manock explained that in his view a pathologist should be careful not to influence the investigation and suggest suspicion which is unwarranted… In these circumstances it seems to me that the post mortem examination achieved the opposite of what should have been its purpose – it closed off lines of investigation rather than opening them up."

2. William Barnard

“I am quite unable to accept Dr Manock’s explanation as to why he did not offer this further information to the investigators immediately after the post mortem examination concluded. It is spurious, in my opinion, to suggest that he did not offer these alternative explanations because he was waiting for further information to be supplied from the detectives … The detectives should have received all the assistance possible so that their investigations could focus on particular issues…

….Dr Manock’s conclusion basically caused the death to be written off as “natural” and the investigation of the death was basically cut off before it began. … the post mortem examination basically achieved the opposite of its proper purpose, in that it closed off lines of investigation rather than opening them up."

3. Joshua Nottle

“However Dr Manock's diagnosis as a cause of death as ‘bronchopneumonia associated with multiple rib fractures’ clearly prevented the establishment of a causative link between any non-accidental injury and death. Accordingly, in my opinion, what should have been a homicide investigation became the investigation of an admittedly serious assault. Dr Manock’s investigation and his subsequent report, provided innocent explanations for the most serious injuries found on Joshua’s body, explanations which I am now satisfied were incorrect.

In those circumstances, and in common with the other two cases, the post mortem examination basically achieved the opposite of its proper purpose in that it closed off lines of investigation rather than opening them up.

… I consider Dr Manock’s explanation that he was waiting for further information from the police to be spurious. In my view, it was incumbent upon him to provide the detectives with information so that they would know what to look for. The diagnosis of bronchopneumonia together with the suggested explanation for the fractured spine and the failure to explain the context in which the bruising and the fractured ribs might have occurred, had the opposite effect."

The Coroner referred to the “aims of the forensic autopsy” as follows:

“1. To discover, describe and record the pathological processes present in the deceased;

2. To relate these processes to the known medical history, to make conclusions about the cause of symptoms and signs observed in life and then to make conclusions about the medical cause of death and factors contributing to death;

3. To contribute to the reconstruction of the circumstances surrounding the death. Where these circumstances are important or likely to be in dispute then this will require the consideration of the scene of the death as well as the relevant autopsy observations, many of which may be of trivial medical consequence;

4. To record all of the relevant observations and negative findings in such a way as to put other pathologists in the same position as the pathologist performing the autopsy.

Without repeating my earlier findings, I consider that the post mortem examinations and reports prepared by Dr Manock in these three cases fell a long way short of achieving these aims, and I am very concerned that serious crimes may have gone unpunished as a result.”

I include these excerpts because they relate in part to what follows.

Opinion

1. It seems that in the three cases subject to inquest, Dr Manock made the wrong “call” or at least, allowed a wrong “call” to eventuate. Deaths which were (it has to be said) obviously suspicious were regarded, or came to be regarded, by the police as natural causes deaths because of Dr Manock’s handling of them. I do not believe the same result would have occurred in the hands of any other full time forensic pathologist in Australia, including the two other forensic pathologists (as there then were)in Adelaide.

So it is, it seems, with the case of Anna Cheney. Again I think that most, if not all, forensic pathologists in Australia would have been decidedly uncomfortable proposing / initiating / advocating a murder scenario in court on the basis of the injuries present in this case.

2. In regard to factual and opinion related evidence given by Dr Manock I have the following comments:

2.1 Second Trial p149. In relation to rapid loss of consciousness in immersion.

Q. "Are there particular circumstances in which it is lost more quickly than others?
A. Yes, if a person is submerged unexpectedly and very rapidly feet first, this forces water up the nose and into the upper airway, consciousness may be lost very rapidly indeed. That is what I was referring to when I say it may be only a few seconds.”

I agree with the answer as stated. The category of victims mainly, but not solely, consists of those who are drunk and become accidentally submerged. Anecdotally, these subjects are often seen to show no sign of struggle – they simply disappear. A number of these subjects show, at autopsy, “dry” drowning; i.e. they do not appear to have inhaled water. This then, is the general category of cases where consciousness is regarded as being lost very quickly. It is postulated that the rapid entry of water into the nasopharyngeal area either causes vagal inhibition, which stops the heart causing more or less immediate unconsciousness or causes spasm of the vocal cords which prevents the passage of water into the lungs.
(ii) The importance of this issue is that any relevance that the answer purportedly has for showing murder by the means proposed also goes to increase the likelihood of death associated with an accidental fall. This escaped Dr Manock. It removes the need Dr Manock seemed to have to rely upon an effect on consciousness of the injuries to the head. Thus a fall into water following fainting (a well recognised phenomenon) while standing in the bath (eg slipping down and along the bath feet first) could force “water up the nose and into the upper airway (and) consciousness may be lost very rapidly indeed”.

2.2 Second Trial p155, line 1.

Q. Those bruises on the left leg – did they appear to you to be consistent with a particular cause?
A. Yes. It was possible to cover the bruises by putting a hand over the leg and a thumb approximating to the bruise on the inner aspects of the left leg and the three forefingers would encompass the bruises on the right aspect. That is if the right hand is placed beneath the calf and the thumb then comes on the inside of the calf.

This exchange brings to mind the Chamberlain case. The answer has the same quality to it as Professor Cameron's discredited view that a smudge (of whatever) on Azaria’s jump suit was a handprint in blood.

”Professor Cameron told the jury that, upon examination of the jump suit and Mr. Ruddick’s photographs, he saw patterns in these areas of diffuse staining which he described as impressions of the bloodstained hands of a small adult. On the left side of the chest of the jump suit, he saw marks, which suggested thumb prints, and on the left back, over the shoulder blade area he saw marks, which gave the impression to him of the heel of a hand with four extended fingers. He described a mark, which suggested the thumbprint (etc…). No other witness saw the hand imprints…"
[Royal Commission of Inquiry into Chamberlain Convictions report of the Commissioner The Honourable Mr Justice T.R. Morling page 200]

Forensic pathologists are always looking for patterns. The essential question is, for the forensic pathologist, how much of a pattern needs to be present before it is sufficiently definitive of a particular cause to put forward in the witness box as that particular cause. If the pattern is not definitive, more speculative propositions can be shared with investigators, as inquiries or other tests may help in assessing the validity or otherwise of one of the propositions. Propositions which of their very nature simply cannot be disproved should not be put forward unless accompanied with appropriate cautions or unless the pattern is so clear that the conclusion is virtually obvious.

No doubt Dr Manock would say the pattern was clear and the conclusion obvious. I think, as mentioned above, most if not all forensic pathologists in Australia would not be comfortable making such a proposition in circumstances such as this. However, if the prosecutor put the proposition, (i.e. are the bruises in this case consistent with the lower leg being gripped firmly by a hand?) the answer would have to be a qualified "yes" or possibly. In my view, I think it is too speculative for the pathologist to raise this on his or her own initiative.

2.3 Second Trial p156, line 25. Relating to the ageing of bruises.

Q. Did you form an opinion as to when the bruising on the legs may have occurred?
A. I could find no evidence of white blood-cell migration into the areas and therefore, I felt they were peri-mortem. In other words, they’d occurred close to the time of death. I felt that was probably within 4 hours.
(This view is later confirmed on p157, line 3 and p163, line 24).

‘Peri-mortem’ means around the time of death. Strictly it includes the period before and after death. Dr Manock does not believe these bruises occurred after death. Up to four hours before death may not be construed by some people as close to the time of death. This clearly means that other explanations for the bruises may exist.

The main point, however, is that the lack of evidence of white cell migration (a sign of inflammation, the body’s response to injury) means the bruise could have occurred, up to 24 hours or so before death.

2.4 Page 157, line 29. In relation to the ageing of two bruises on the top of the head.

Q. Were they faint or well defined in intensity?
A. Relatively –the edges were not clearly defined, so they were relatively faint, which is one of the reasons I thought they were about the time of death.”

I know of no reference or recognised basis for this conclusion. In addition the naked eye ageing of bruises allows one to conclude that the bruise is recent or old. The former is up to about 24 hours or so before death.

2.5 Page 158, line 9. In relation to the cause of bruises on the top of the head.

Q. The lack of definition around the edges – was that a symptom of a flat surface rather than a specified object?
A Yes it is.”

I know of no reference or recognised basis for this conclusion.

2.6 Page 161, line 10. Concerning bruises to the top of the head and whether they could occur during a fall.

Q. But is there a complicating factor if there are other objects that you might strike your head with as you fall down.
A.  There may be, yes.
Q. In these circumstances could there be an injury to the top of the head?
A. There could be an injury, but not a circular bruise consistent with striking a flat surface. It would have to be a projection if you were to strike the top of the head in a fall.
Q. What about a wall?
A You would graze along it. You wouldn’t bruise yourself. Gravity would take you parallel with the wall.

This exchange is difficult to make sense of in relation to the issues in this case. The mechanism by which the bruises to the “top” of the head were caused is essentially the same whether one takes the murder or the accident scenarios. Somehow the above exchange purports to establish, spuriously in my view, that the bruises on the head would not have been the result of a fall.

2.7 Page 165, line 34. Concerning the relationship between observable injury to the brain and concussion or effect on consciousness.

Q. If that (ie some loss of conciousness) has happened in any given case, would you expect to find evidence of that on an examination of the brain?
A. Not necessarily by looking at the hypothalamus, but if the brain has been distorted sufficiently to cause that loss of function, then it must have moved within the skull to some extent, and it is my view that it is likely in these circumstances that there will be a surface injury to the brain which may be represented as a bruise or a small surface subarachnoid haemorrhage.
Q Did you find any such damage to the brain in this case?
A No I did not…
Q. Did you see any evidence from your examination, internal or external, that there had been a loss of consciousness by Miss Cheney prior to death?
A. No I did not.”

This exchange purports to establish that had there been loss of consciousness (and by inference even any effect on consciousness) then some sign of this would have been visible. This is simply not the case. I know of no reference or recognised basis for such a conclusion. I do not believe any other forensic pathologist in Australia would support such a conclusion.

2.8 P167 line 6. The detailed murder scenario.

A. If the person is sitting at the plug end of the bath and an arm is put underneath both legs to grip the left calf, either by simply lifting or lifting the leg and pushing the head, then the head could slide under the water. At this time, the edge of the bath could cause bruising to the back of the neck or the muscles attached to the base of the skull. If the movement is then continued and the legs are folded over entirely, this would have the effect of trapping the arms by the sides of the bath and the top of the head would then be against the top of the bath and that would give a flat surface that could cause the bruising [seen] on the top of the head. The left leg has been gripped. However, the right leg is merely encompassed by the arc of the arm and can move. If it thrashes around, it will bang itself against the edge of the bath and may produce bruising along the border.”

It is a surprise to me how this scenario could be proposed on the basis of some bruises to the back of the neck, the head and the legs, without it being made absolutely clear that it could only be one of a number of possible scenarios. Even as a possibility it is flawed.

If the bruising to the back of the neck could be caused as described, it could easily be caused during the course of slipping down into the bath following fainting while standing in the bath.

It is not clear to me how the arms would be trapped by the sides of the bath.

The proposition is put that the right leg can thrash around to cause bruising along its front. If this can occur, then there is consciousness and the capacity for extra resistance to the manoeuvre described. This could include kicking with the left leg and using the arms - even if trapped which I find hard to conceive – to lift her off the bottom of the bath.

2.9 Page 177, line 8. In relation to the possibility of a faint after standing in the bath leading to a fall and then drowning.

A. "Yes. A person loses consciousness when they are in a standing position. The net result of that is that you fall down and if you fall down and are going to remain unconscious I believe it is necessary for there to be some injury which would shake the brain within the head to cause a sustained unconsciousness, otherwise the horizontal position would cause the consciousness to be regained because the blood would again reach the brain, and that would cause revival.
Q. Would you expect for sustained unconsciousness to occur in that situation that there would be physical evidence of a trauma to the head.
A. I would expect that, yes."

It seems at this stage that the phenomenon of rapid loss of consciousness, which seems to be a part of the murder hypothesis, is not considered as a possibility in the accidental hypothesis. Why is it not possible, as a consequence of a faint into the water, for the same rapid influx of water into the mouth and nose to cause the same rapid unconsciousness and drowning. If during the faint, the bruises to the neck and head occur, could not these impacts at least aggravate the fainting and increase the likelihood of a fatal outcome from the influx of water into the mouth and nose.

I regard this as a perfectly acceptable explanation for the death. It is for this reason that I believe most, if not all, forensic pathologists in Australia would not be comfortable being in the position of Dr Manock, proposing on his own initiative a murder scenario based on the findings in this case.

3. The Coroner, following his inquests into the three cases referred to earlier, concluded that Dr Manock fell short of achieving the aims of the forensic autopsy.

3.1 “To discover, describe and record the pathological processes present in the deceased.”

In Dr Manock’s report of his autopsy of Anna Cheney:
The height and weight of the body are not recorded.
The organ weights are not recorded. The weight of the organs is a fundamental indicator of underlying pathology.
There is a paucity of histological material (two slides of the heart, one of kidney, one of lung, and 5 slides of bruising).

The autopsy pathologist who fails to adequately describe and record his or her findings runs the risk that s/he may not be able to substantiate a particular observation if it is queried. Ordinarily it will not be queried – and the discussion will concentrate on the proper inferences and conclusions on the assumption that the observations have been correctly made. If it is queried, the deficiency has to be acknowledged.

Furthermore, in a case such as this, where homicide is alleged, it is vital to exclude any natural disease which might predispose to drowning. In particular, assessment of the heart and brain would be important, the latter preferably by a neuropathologist, supported by histological examination. Natural disease only visible microscopically therefore has not been formally excluded in this case.

My assessment of the lung section does not accord with Dr Manock’s macroscopic description of “massive oedema”. There are no sections of many organs described as healthy to support this conclusion. Without the sections one has no means of independently assessing the correctness of Dr Manock’s observations.

Full histological assessment is an integral part of a complete autopsy. Because there can be significant pathology which is only observable microscopically, such pathology must be sought before it can safely be concluded that no significant natural disease exists.

In addition, in the circumstances of this case, it would have been advisable to conduct more extensive dissection in the subcutaneous plane looking for more bruising. Simply because a bruise cannot be seen from the outside does not mean there could not be bruising beneath the skin. Dissection of the arms, back and legs would have created certainty about the presence or absence of bruises in these areas. Their number and distribution, if any, may have contributed to the resolution of the issues in this case.

These types of deficiencies resonate with some of the criticisms made in the three Coronial inquests referred to earlier.

3.2 “To relate these processes to the known medical history, to make conclusions about the cause of symptoms and signs observed in life and then to make conclusions about the medical cause of death and factors contributing to death.”

This particular case does not, in my view, call for much analysis under this particular heading.

3.3 “To contribute to the reconstruction of the circumstances surrounding the death. Where the circumstances are important or likely to be in dispute then this will require consideration of the scene of the deaths as well as the relevant autopsy observations, may of which may be of trivial medical consequence.”

Dr Manock has done this – but (as is obvious from what I said) in a flawed manner.

3.4 “To record all the relevant observations and negative findings in such a way as to put other pathologists in the same position as the pathologist performing the autopsy.”

Dr Manock has not done this. Many of the macroscopic findings are not supported either by photographs, adequate descriptions or histology. The photographic record is inadequate. There are no photographs of the whole body, front and back. (This conclusion assumes that the photographs that were made available represented all the photographs that in fact were taken)

4. Conclusion

I believe Dr Manock has expressed opinions in this case which are wrong. These wrong views are then combined with other rather speculative propositions to support a reconstruction of this death as a murder. Dr Manock has, in my view, wrongly dismissed an accidental explanation for this death as, at least, a reasonable proposition.

One of my objections to Dr Manock’s putting his proposition is that it was not refutable by enquiry or testing and therefore he should have surrounded it with caution. I believe no other forensic pathologist in Australia would be of the view that murder is the only explanation of the findings in this case.

One effect of the Coroner’s view about Dr Manock is to put his work under much closer scrutiny. Once one approaches the autopsy of Anna Cheney wishing to scrutinize it, one finds this a difficult exercise to do objectively because of the paucity of the record.

These are sad conclusions. From a personal point of view they are a powerful reminder of the importance of peer review, discussion of cases with colleagues and most importantly, the self-discipline required in the proper practice of forensic pathology.

Stephen Cordner MA MB BS BMedSc DipCrim FRCPA FRCPath

Professor of Forensic Medicine, Monash University

Director, Victorian Institute of Forensic Pathology

28 January, 2004

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