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The Medical Board of South Australia - Affidavit of Associate Professor Anthony Charles Thomas (part one)

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On the second day of February 2004,

I, Associate Professor Anthony Charles Thomas, MB.BS., B.Sc., M.Sc., Ph.D., FRCPath, FRCPA, FFOP, make oath and say as follows:

Qualifications and experience

1. I have been an anatomical pathologist for thirty years. I have been a specialist for twenty three years.

2. I am the Associate Chief Examiner in Anatomical Pathology for the Royal College of Pathologists of Australasia, having recently been the Chief Examiner in that capacity.

3. I am a Senior Specialist in Anatomical Pathology at Flinders Medical Centre.

4. I am an Associate Professor in Pathology at the Flinders University of South Australia.

5. I am an Associate Consultant in cardiac pathology at the Forensic Science Centre in Adelaide and I have been previously employed as a consulting forensic pathologist there.

6. I have been a diagnostic surgical pathologist (histopathologist) in the United Kingdom and Australia, and have performed numerous coronial autopsies in the United Kingdom, New Zealand and Australia. Since qualifying, in addition to diagnostic surgical pathology my work has focussed on autopsy pathology, coronial pathology and cardiac pathology. 

7. I have performed several thousand autopsies covering all aspects of hospital and coronial examinations. These have included unexpected natural deaths, trauma related deaths, suicides, drownings, gunshot wounds and homicides. I have examined living victims of assault and trauma to determine the cause of bruising and other injuries.

8. I have undertaken special studies in the field of cardiac pathology especially as it relates to sudden unexpected death. I have published widely in the field of cardiac pathology as it relates to sudden death and forensic autopsies.

9. I have and have had significant responsibilities for the training of pathologists and for their subsequent assessment through examination. I have been engaged in the setting and marking of written examinations, practical examinations and oral examinations in forensic pathology.
Now produced and shown to me and marked ACT1 is a copy of my curriculum vitae containing details of my qualifications and experience.

My independent reviews of other cases

10. Under instructions from appropriate authorities, I have been required to make assessments of - and to report upon - the work of other pathologists. In particular, I have been required to make two reviews of Dr Manock’s previous cases.

Baby Deaths – Dr Manock, South Australia 1995

11. In 1994, I was asked by the Coroner of South Australia to assess the work of Dr Manock in relation to the deaths of three infants. They were:
Storm Don Ernie Deane aged 3 months, who died on 16 October 1992, at the Adelaide Children’s Hospital.
William (Billy) Barnard aged 9 months, who died on 31 July 1993, at the Adelaide Children’s Hospital.
Joshua Clive Nottle aged 9 months, who died on 17 August 1993, at the Modbury Hospital, Adelaide.

12. In all three cases, the autopsy had been conducted by Dr Manock. The cause of death for each was given as bronchopneumonia, a basic lung infection, associated with other features.
Now produced and shown to me and marked ACT2 is a copy of the three autopsy reports referred to.

13. After reviewing Dr Manock’s work in those three cases, I formed the view that in all three of them it had been inadequate. I formed the view that his conclusions in all three of them were erroneous. My Report on the matter was submitted to the Coroner of South Australia in February 1994.
Now produced and shown to me and marked ACT3 is a copy of the report referred to.

14. In August 1995 the Coroner published his Findings. , accepting the conclusions contained in my Report.
Now produced and shown to me and marked ACT4 is a copy of the report referred to.

Coronial Inquiry – Dr Manock, Northern Territory 1999

15. In 1999 I was asked by the Coroner of the Northern Territory to review Dr Manock’s autopsy findings in the case of a schoolboy who had died suddenly on a rugby field. Dr Manock had determined that the cause of death was heat stroke. However, my microscopical examination of the heart tissues showed the existence of a viral-type myocarditis of at least several days duration.
In my opinion, Dr Manock’s post mortem examination, investigation and report in this case was grossly inadequate. My report detailed my specific criticisms of the work completed by Dr Manock.
Now produced and shown to me and marked ACT5 is a de-identified copy of my Anatomical Pathology Report to the Coroner.

The case of Mr Henry Vincent Keogh

Materials examined by me

16. I have been requested by the legal advisers of Mr Henry Keogh to examine the work of Dr Manock in relation to the autopsy of Ms Anna-Jane Cheney.

17. In November 1999 I examined the histology sections said to arise from that autopsy.

18. In July 2000, at the Forensic Science Centre in Adelaide, I examined the original histology file slides, a bundle of twenty-two black-and-white photographs and containers of residual wet tissue said to arise from Ms Cheney’s autopsy. I was provided with further duplicate histological sections prepared from the residual wet tissue soon after.

19. In November 2001 I discussed the histological appearances of some of those slides with Professor Stephen Cordner who is the Head of the Victorian Institute of Forensic Medicine.

Attendance at the scene

20. In the case of a suspicious, sudden, unexpected and unexplained death of an adult, I would expect a pathologist to attend at the scene at the time the body was found. According to his records, Dr Manock did not examine the scene until some months after the death of Ms Cheney. I regard that as inappropriate.
Now produced and shown to me and marked ACT6 is a copy of Dr Manock’s report on his visit to the scene.

Consideration of all reasonable possibilities

21. Proper procedures required Dr Manock to consider all possible causes of death before making a determination. In my opinion, it appears from what Dr Manock said and did that he did not comply with this basic requirement.

22. Dr Manock stated in his evidence at the committal proceedings:
A … I was at no time looking or thinking that the death was accidental because I could find no explanation as to why she would drown. [Transcript p26:5]
Now produced and shown to me and marked ACT7 is a copy of the page referred to.

At the second trial of Mr Keogh, Dr Manock stated in his examination in chief as follows:
Q. In your internal examination did you detect any underlying medical condition that could have been responsible either for loss of consciousness or death.
A. No, I did not. [Transcript p 151:31]
Now produced and shown to me and marked ACT8 is a copy of the page referred to.

Later in the second trial Dr Manock said in his examination in chief:

There may be natural disease which may predispose to fainting. Anaemia for instance. The blood can carry less oxygen so a person is more susceptible to faints. There may be cardiac abnormalities which interfere with the normal circulation, valvular disease of the heart can produce fainting. There may be a wide range of vasomotor tone amongst the community so some people have a more dramatic response to circumstances than others.
Q. Did you see anything in your physical examination of Miss Cheney that she was predisposed in any of those medical conditions you described.
A. No, I did not. [Transcript p 176:20-31]
Now produced and shown to me and marked ACT9 is a copy of the page referred to.

Medical History of deceased

23. However, in January 2000 I examined the Medicare claims history of Ms Cheney from 1989 to 1994. In my report to Mr Keogh’s then legal adviser, dated 20 September 2000, I referred to some thirty seven medical consultations or procedures involving the deceased over a period of five years prior to her death. There is no reference in Dr Manock’s notes or autopsy report to any of the details of this previous medical history or to any explanations of those consultations or procedures. I would have expected to find an explanation of that material in Dr Manock’s autopsy report.  In the absence of that explanation, I can only conclude that the material referred to was not properly considered prior to Dr Manock reaching the conclusion that there were no natural disease processes relevant to the cause of death. 
Now produced and shown to me and marked ACT10 is a copy of my report to which I have referred.

24. Dr Manock’s finding that there was no natural disease processes that might assist his determination of a possible cause of death was in my opinion based on an inadequate examination of the available records relating to the deceased.

25. In my opinion it would have been of paramount importance to obtain as much clinical information as possible in the investigation of this sudden and unexpected death. For example, an electrocardiogram, if available, might have provided some insight into any cardiac conduction problems that may have existed. Some such cardiac conduction problems are known to carry a high risk of sudden death and may not give rise to any detectable abnormality at autopsy even after extensive macroscopic and microscopic examination.

Requirement for full documentation of decisions and procedures

26. I respectfully agree with the view expressed by Mr Justice Shannon in his Royal Commission Report Concerning the Conviction of Edward Charles Splatt (1984) at p51 when he said:

“Every operation must be documented on the case notes and documented in such a manner that it will still be comprehensible perhaps years later.”
Now produced and shown to me and marked ACT11 is a copy of the page to which I have referred.

27. From my examination of the available records, I ascertained that there is not a proper case-file for this case. There are a number of different autopsy reports, body charts and hand written notes. As they have not been properly collated or reconciled, it is not possible for me to arrive at a proper understanding of what has occurred in this case.

28. There is no proper documentation of the organ weights in any of the autopsy reports. This is an essential part of any autopsy. Without that information it is not possible for me to make a competent assessment as to the cause of death in this case.
Now produced and shown to me and marked ACT12 is a copy of Dr Manock’s autopsy report dated 29/4/94.

29. Whilst Dr Manock has stated that he had not weighed the lungs in this case, I found an informal notation on one of the documents of what appears to be those weights.
Now produced and shown to me and marked ACT13 is a copy of the page referred to.

Chain of custody considerations

30. In my opinion, the histological block-key is inadequate and as a result, it is not possible for me to determine with any degree of certainty the origin of some of the tissue blocks. Examination of the wet tissue containers at the Forensic Science Centre in July 2000 showed the following notations:

“residual wet tissue from an alleged bruise on the right leg”
(container labelled “Right leg Cheney 21/3/94 1” “14859”, corresponding tissue slide labelled ‘1’)

“residual wet tissue from an alleged bruise on the lateral aspect of the left leg”
(container labelled “Left leg CHENEY 21/3/94 2 Lateral” “14859”, corresponding tissue slide labelled ‘2’)

“residual wet tissue from an alleged bruise on the head”
(container labelled “Head CHENEY 21/3/94 4” “14859”, corresponding tissue slide labelled ‘4’ ‘Head’)”

“residual wet tissue from the heart, one lung and one kidney”
(container labelled “940710 CHENEY K0888 20-3-94 14859”, corresponding tissue slides not separately labelled)

31. It appears that the notation on the items does not indicate the chain of custody of those items. There is no other documentation which I have been able to ascertain which does describe the chain of custody of the various items. As a result, it appears to me that any interpretation involving these items would be a matter for concern, as their origin and processing cannot be positively affirmed.

32. There appeared to be no residual wet tissue, or tissue container, from what was alleged to be a bruise on the medial (inner) aspect of the left leg. This means that the source of the corresponding tissue section cannot now be verified or confirmed. The tissue slides said to have been prepared from the alleged bruise on the medial (inner) aspect of the left leg were labelled ‘14859’ and ‘3 Level 1’, ‘3 Level 2’ and ‘re-imbed 3 through 180 degrees’

33. The tissue sections were not otherwise labelled as to their origin and no block-key was included in Dr Manock’s autopsy report. The only other indication of the origin of these tissues appears to be recorded in the daily workload diary where the entry states, under the column of Monday 21 March 1994:

14859 CHM 4 heart x2 kidney lung.

34. There is a further entry under the column of Tuesday 22nd March but linked to the above entry by an arrow and ruled lines:

1 R leg, 2 L Leg (lateral), 3 L Leg (Medial), 4 Head
with a note indicating that block 3 had been re-embedded through 180 degrees as requested by Dr Byron Collins on 21 October 1998.
Now produced and shown to me and marked ACT14 is a copy of the page referred to.

35. A body-chart does appear to indicate that histology was taken from:
The alleged bruise on the medial aspect of the left leg.
The most distal of the three alleged bruises on the lateral aspect of the left leg.
The second most proximal of the seven alleged bruises on the right leg.
One of the four alleged bruises on the head.

36. However, no block-key is provided on the body-chart report which is dated 21 March 1994. 
Now produced and shown to me and marked ACT15 is a copy of the body chart to which I have referred.

Contradictions within available evidence

37. The dates on the available containers and the entries in the work diary, together with various statements in evidence by Dr Manock, appear to imply that the wet tissue from the alleged bruises was excised from the body by Monday 21 March 1994. Yet I note that in a statement made by the mortuary officer Ms Amanda Caryana on 4 October 1994 that she states:
”There were several small circular bruises on the ankle. They were only light in colour and not bruises that stood out and readily noticed. During that week it would have been probably three times that I saw her body. On these occasions Dr Manock and Mr Billett were present. I noticed that the bruising on the ankle consistently got darker as the week progressed.” (statement p2)
Now produced and shown to me and marked ACT16 is a copy of the statement to which I have referred.

38. If the tissue samples had been taken as described then this observation could not have been possible. It would not for example have been possible in relation to the site of the alleged bruise from which the sample was taken for histology. Ms Caryana does not refer in her statement to “the remaining bruises”. It is not possible for me to resolve the factual conflict underlying these observations. However, it does give rise to questions about the accuracy and lack of detail of the records.

Further information required

39. For any sound conclusion the following questions need to be addressed:
39.1 - Who excised the wet tissue portions from the body and on what date were they excised?
39.2 - Who labelled the containers into which these tissue portions were placed?
39.3 - Where precisely were the wet tissue portions taken from?
39.4 - When were the block-key entries made in the work diary and by whom?
39.5 - Who selected and trimmed the wet tissue to be processed for the histological slide production?
39.6 - When were the histology sections cut and by whom?
Without definite answers to these questions, I am unable to properly determine the significance of these items. 

Photographs

General procedures and standards

40. I have already referred to the fact that the Mr Justice Shannon in 1984 stated that all procedures must be fully documented so that they would be capable of being competently interpreted by others, perhaps many years later. (See paragraph 26 of this affidavit). With regard to matters of visual significance this obviously requires the accurate visual recording of those factors. From my understanding of procedures in the United Kingdom, New Zealand and Australia it has been for many years the standard practice to take colour photographs at the scene of an incident involving a dead person and at the autopsy. Whilst I appreciate that it might be sensible to take black and white photographs with special lighting for some purposes, this is clearly a separate and distinct purpose from that which provides the accurate and complete visual record. 

41. I understand that The Police Forensic Procedures Manual is part of the Police General Orders, and establishes the regulatory framework under which the police operate. It states that with regard to an unexplained (suspicious) death: inter alia

5.8.2 Crime scene investigators are to photograph the autopsy examination, preferably using 6 x 7 format, colour film, and electronic flash. Photographs should include:

General photographs of the body bagged
General photographs of the body un-bagged
Mid-range photographs of the body
Detailed photographs of the body
Any other photographs at the request of the pathologist.
Now produced and shown to me and marked ACT17 is a copy of the page of the manual to which I have referred.

42. The Manual states that the standards which it contains are the minimum standards.
Now produced and shown to me and marked ACT18 is a copy of the page to which I have referred.

43. There is a Draft Code of practice and performance standards for forensic pathologists in the United Kingdom. It has been issued by the Home Office Policy Advisory Board for Forensic Pathology and The Royal College of Pathologists in the UK. It emphasises the need for complete documentation including a complete photographic record. It is my understanding that the South Australian Police Manual and the Code, although dated subsequent to the death of Ms Cheney, merely record the previously well-established practice in this respect. It is my understanding that they have not introduced a new standard in this respect since 1994. This is confirmed by the affidavit of Detective Superintendent David Cook, to which I refer. Mr Cook is the Head of Crime Specialist Support, and Senior Investigating Officer at Surrey Police Headquarters in the UK.
Now produced and shown to me and marked ACT19 is a copy of the Draft Code of Practice referred to.

General inadequacies of photographs

44. The photographs which have been made available to me in relation to the autopsy of Ms Cheney are totally inadequate for me to make any competent assessment of the issues in this case.

45. The most important defect of the black and white photographs said to have been taken in relation to the autopsy of Ms Cheney is that none of them enable me to identify the body which is said to be the subject of the autopsy. It is my opinion that this is inappropriate, and that any autopsy photographs should not leave any doubt as to the identity of the body in question.

46. It is my opinion that there should be sufficient photographs to fully and accurately record any injuries, damage, or marking to the body externally. This was not done in this case.

47. It is my opinion that there should be sufficient photographs to record the autopsy procedures and each of the major findings (both positive and negative) especially where the pathologist suspects that the case may be one of homicide. This was not done in this case.

48. The photographs taken at the scene showed marking to the upper left quadrant of the body of the deceased. It is my opinion that there should be autopsy photographs of that area to establish whether those markings were still present at the autopsy. This was not done in this case.

49. The photographs taken at the scene show a mark to the forehead of the deceased and what appear to be raised areas around the left ear. It is my opinion that the photographs taken at the autopsy should record whether those marks were still present at that time. This was not done in this case.

50. The photographs taken at the scene show swelling to the face and nostrils of the deceased. It is my opinion that the autopsy photographs should record whether these macroscopic appearances had changed at the time of the autopsy. This was not done in this case.

51. The photographs taken at the scene show a mark to the outer aspect of the upper left thigh. It is my opinion that this should have been carefully examined so as to exclude possible causes such as an injection mark or insect bite. The autopsy photographs should enable me to determine more precisely what that marking might be. This was not done in this case.

52. Dr Manock referred in his evidence at the second trial of Mr Keogh to the possible development of putrefaction in the body. Dr Manock said:
”The feet were the subject of considerable speculation, because of colour changes that arose about five days after the death, or six days after the death, and it was in fact due to early putrefaction. There was no suggestion eventually that there was any bruising to the feet.” (Transcript p192:15)
Now produced and shown to me and marked ACT20 is the page of the transcript to which I have referred.

53. Because Dr Manock is referring to the significance of “colour changes” it is my opinion that those colour changes should have been recorded by colour photographs. This was not done in this case. Therefore, there is no possibility of making an independent assessment of the adequacy of Dr Manock’s opinion that there was no bruising to the feet.

54. The photographs taken at the autopsy should enable a subsequent pathologist to identify the state of lividity and the dispersal of lividity within the body of the deceased. This factor can be important to an assessment of the time of death. This was not done in this case.

55. The photographic record of the autopsy should enable a subsequent pathologist to identify the sites from which histology was said to have been taken. This would be essential to any confirmation of the written records in relation to this factor. This was not done in this case.

56. The photographic record should enable a subsequent pathologist to follow the process of the autopsy, and provide confirmation of the major macroscopic findings in relation to the more important bodily organs. It would appear that no photographs of the internal organs were taken at the autopsy. It is my opinion that this is a serious defect in the photographic record of this autopsy.

57. Dr Manock’s autopsy report stated:
”Larynx, trachea and main bronchi were packed with fluid and gastric contents but it was difficult to ascertain whether this was an antemortem phenomenon or resulted from external cardiac massage and artificial respiration.”
The photographic record should enable a subsequent pathologist to identify this condition and form their own opinion as to its likely or possible cause. This was not done in this case.

58. If it was an antemortem phenomenon as Dr Manock asserts, then it could clearly be a possible causal factor in the death of the deceased. Whilst Dr Manock describes a difficulty in determining the aetiology of this condition, he does not explain what the nature of that difficulty was. Without a visual record of that condition it is not possible for any subsequent pathologist or specialist to assist with the identification of possible causes of it. 

59. In his autopsy report Dr Manock stated:
”Lungs showed massive oedema. Water could be squeezed from the cut surface of the lungs by applying minimal pressure.” (p4) [Emphasis added]

60. It is my opinion and belief that “oedema” and “water” are not the same things. Oedema can result from cardiac problems, and if the lungs of the deceased “showed massive oedema” then this would be consistent with the deceased having died from cardiac failure.

61. When Dr Manock uses the terms “oedema” and “water” interchangeably, it makes it impossible for a subsequent pathologist to determine the factual basis for Dr Manock’s interpretations. I would regard it as essential for colour photographs to have been taken of the lungs which were said to have been heavy with fluid. Whilst it would not enable a subsequent pathologist to determine if the fluid was oedema or water, there may be other factors relating to the lungs which would have enabled a more specific determination to be made, especially in the hands of a specialist.

62. In his autopsy report, Dr Manock stated:
”There was haemolytic staining inner lining (sic) of the aorta from the aortic ring down to the level of the diaphragm… “
This macroscopic observation subsequently proved to be important to Dr Manock’s diagnosis of the cause of death. It is my opinion that as there was no record of any other pathologist or any police officer being present at the autopsy, it would have been essential for colour photographs to have been taken of the aorta and the staining which was said to have been observed. This was not done. Therefore it is not possible for another subsequent pathologist to confirm that observation.

63. It is my opinion that it would have been essential for colour photographs to have been taken of the heart and brain and of the other major organs which were said to have shown no pathology. This was not done. Therefore it is not possible for another subsequent pathologist to confirm the observations which were said to have been made of those organs.

64. In a suspected murder case, it is my opinion that the police should have been present at the autopsy and for the pathologist to invite suggestions from them as to what other photographs might assist from an evidentiary perspective. This was not done in this case.

Colour photographs essential to the identity of marks

65. In my experience, in this context, colour photographs are always taken at an autopsy.

66. The macroscopic differentiation of bruising from certain other lesions, skin blemishes smudges or marks also depends upon colour rendition. Without a record of this information, it is not possible to determine the nature of the marks on the body in question. If we cannot determine from the photographic evidence what the marks are, then it is my opinion that it is not appropriate to try to determine what the causes of the marks might be. Before one could attempt to determine the causes of marks, it would be necessary, as a logical pre-condition, to have some other confirmatory findings (for example, histology) to determine the nature of the marks in question. As will be seen from my subsequent comments, this too has not been done.

67. The significance of this matter was referred to by Dr Manock, when he said in relation to the photograph of the bruising on the left leg of the deceased;

“It is in black and white and obviously the object is naturally in colour.” (Transcript p154.2)
Now produced and shown to me and marked ACT21 is a copy of the page referred to.

68. Dr Ross James referred to the significance of the colour of a bruise when he said: “Generally speaking, the colour changes provide the index of whether a bruise might be recent. In other words, within 24 hours or so. The development of colour changes going through yellow to green before fading might suggest a period of three or four days or more than a week, for instance.” (Transcript 208.9)
Now produced and shown to me and marked ACT22 is a copy of the page referred to.

69. Dr Manock’s macroscopic observation of alleged bruising subsequently proved to be a key factor in his diagnosis of the cause of death. It is my opinion that as there is no record of any other pathologist or any police officer being present at the autopsy, it would have been essential for colour photographs to have been taken of the bruising which was said to have been observed. This was not done. Therefore it is not possible for another subsequent pathologist to confirm that observation.

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