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Losing Their Grip - the case of Henry Keogh
Appendix Two - Miscarriage of Justice Principles - R v Mallard 2005 HCA

Losing Their Grip - table of contents

Also by Dr Moles - A state of Injustice - Definition and Rule in Legal Theory

Go here for the High Court decision

Principles

1. The approach of the court on a reference of a Petition must include a full review of the admissible relevant evidence available in the case, whether new, fresh or already considered in earlier proceedings, however described.

2. It is elementary that some matters may assume an entirely different complexion in the light of other matters and facts either ignored or previously unknown.

3. In considering the additional material it is irrelevant (except in consideration of the proviso) that the whole of the evidence at trial was sufficient to sustain a verdict of guilty.

4. The prosecution must at common law disclose all relevant evidence to an accused.

5. The Court of Criminal Appeal is not entitled to speculate about the impact of potentially exculpatory evidence which has not been disclosed.  It is not for a Court of Criminal Appeal to seek out possibilities, obvious or otherwise, to explain away troublesome inconsistencies which an accused has been denied an opportunity to explain and exploit forensically.

6. An essential question is whether if the jury had known about the additional material it would have cast doubt on the essential features of the prosecution case, or to put that another way, was the body of unpresented (to the jury) evidence potentially significant.

7. The non presentation (to the jury) of evidence which has significant forensic value is sufficient to exclude the application of the proviso.

8. The Court of Criminal Appeal is obliged to consider the cumulative effect of non disclosed relevant evidence that was in the hands of the police (or forensic experts) and thus available to the prosecution.

9. The object of judicial scrutiny is not to discover whether there was misconduct by the prosecution.  Nor is an accused required to fossick for information which is in the hands of the Crown.

10. The Court of Criminal Appeal must also consider whether the non disclosed material was relevant to the credibility and reliability of prosecution witnesses.

11. The central question is whether, in the absence of material evidence, the accused received a fair trial, understood as a trial resulting in a verdict worthy of confidence.

12. The fruits of investigation are the property of the public to be used to ensure that justice is done.

13. The fundamental issue is whether exculpatory evidence was not presented to the jury leading to a conclusion that the trial cannot enjoy public confidence.

14. In this case the specific issue was non disclosure to the defence. However the judgments clearly show that the fundamental question is whether non disclosure to the jury, for whatever reason, including facts ignored by the defence, undermine public confidence in the safety of the verdict.

Summary of evidence not disclosed in Keogh’s case

1. The full and complete results of the histological analysis of tissue said to be taken from the medial side of the left leg.

2. The fact that death by natural causes had not been excluded by the autopsy findings.

3. The fact that the opinion expressed that the cause of death was drowning was based on a theory that had no scientific validity (and had been withdrawn from the scientific/pathology literature more than 20 years ago).

4. The fact that the conduct of the autopsy was incompetent and did not conform to acceptable professional standards.

5. The fact that Dr Manock had been shown to be an unreliable witness in previous proceedings eg the Baby Deaths Inquiry.

6. The fact that the opinions expressed to the jury by Dr Manock and Dr James, that all of the bruises said to be observed on the body of the deceased had all been caused at the scene and at time shortly before death, had no scientific validity.

7. The fact that the level of water in the bath was based on an assumption and not supported by objective scientific validity.

8. The fact that the opinion expressed to the jury by Dr Manock as to the manner of death was one of a number of possibilities that could explain the pattern, if it existed, and none of those other possibilities were the subject of any evidence or consideration by the jury.

9. The fact that the failure of the police (according to Dr Manock) to take Dr Manock to the scene at an appropriate time was in the opinion of Dr Manock an ‘unsatisfactory’ situation.

10. The fact that Dr Manock and Dr James (and presumably also the prosecution) were unaware of the deceased’s full medical history

11. The fact that Keogh’s legal representatives were not informed of the full range of autopsy photos taken and have at no time had access to the negatives of them.

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