Losing Their Grip - the case of Henry Keogh

Author: Dr Robert N Moles

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Losing Their Grip - table of contents

Chapter Eleven - Getting Closer To The Truth

The second day of the Medical Board hearing was taken up with the cross-examination of Dr James and then Dr Manock. This was in fact allowed to extend over to a short period on the following morning. This chapter is based upon the transcript of what Dr James and Dr Manock had to say at the hearing and in their affidavits and other written submissions.

The principle duty of an expert witness is to assist the court. It is important that the expert should not be seen as acting for one side against another, even though they will have been called by one side. The expert has to be objective and impartial. It follows then that all pathologists have a duty to consider and investigate explanations consistent with the innocence of an accused person. [1] We will examine each of the factors involved in this case to see if they meet the standards expected of impartial and expert witnesses.

The questioning at the Medical Board hearing closely examined the elements of Dr Manock’s hypothesis, namely, that Anna Cheney had died as a result of forced drowning in fresh water in the bath. The answers produced some rather alarming and extraordinary revelations.

Coronial Responsibility

Early in his evidence at the Medical Board, Dr James told the Board:

“These are coroner’s cases, and the present Coroner, who was the coroner of this case as I recall, is absolutely adamant that the body can’t even be moved without his permission, and in the event of a suspicious death the body remains under his control in terms of its being moved to the city mortuary and no pathologist is allowed to carry out a post-mortem examination unless the Coroner has specifically nominated that person, when and where they can conduct that post-mortem examination.” [Emphasis added]

If that is the case, then the question that needs to be asked, is why the Coroner ‘specifically nominated’ Dr Manock to do this autopsy, when he was well aware of the serious allegations about Dr Manock’s lack of proper standards, which he was about to uphold in his Findings after the Baby Deaths Inquiry. Dr James went on to say:

“Every sample, be it blood or a piece of tissue or toxicology samples, or a brain for examination, or whatever, has to be approved by the State Coroner. You’re not allowed to do anything with any part of that body unless the Coroner gives you permission to do so. That information, the pieces and fluids are collected, are all faxed immediately after the post-mortem to the Coroner, so that he can rule on whether he gives permission to do those tests or not.”

He went on to say that there had been occasions when he had collected a brain, for example, for specialist examination, but the Coroner had said, ‘No, I don’t give permission. Put it back in the body.’

If Dr James is correct, this means that at the time of the disposal of the body, the Coroner knew (or ought to have known) that there was inadequate histology and that the heart and brain had not been sent for specialist examination. Again, these were exactly the problems which the Coroner had identified in the Baby Deaths Inquiry. Yet the Coroner still allowed the body of Anna Cheney to be cremated just twelve days after her death.

Visit to the scene

Dr Manock said that he had requested the police a number of times to take him to the scene. He said that despite such requests, they were unable to do this until some three months later. This is strange, because during the first two to three weeks, the police were visiting the premises frequently to conduct searches, and to take photographs and statements. If they had in any way been responsible for the delay in the pathologist attending at the scene, this would have been inexcusable conduct on their part.

Dr Manock said that he asked the police to facilitate his visit to the scene on 20 March, although he then added ‘I did not have the power to insist that I attend the scene.’

But Dr Manock was conducting the autopsy on the instructions of the Coroner. He could have made a request to the Coroner to attend anywhere as part of his investigations.

Dr Manock said that, ‘someone was still living at the house where Anna Cheney died,’ which, of course, was correct. That someone was Henry Keogh. The police searched the house and attended to take photographs at the house on a number of occasions. Surely there would not have been any difficulty in allowing Dr Manock to attend at the scene on any of those occasions.

Dr Manock claimed that despite further requests to attend the scene nothing happened. He said, ‘maybe his request to visit the scene was not passed on to the officers of Major Crime.’ That again seems strange. Dr Manock was in direct contact with the officers of major crime, as he was busy explaining to them the ‘mechanism of death’ - the mechanism which he initially said he could discuss with them right away, but that he couldn’t write it down until after his visit to the scene. As we have seen, he then said at the Medical Board that he had never written down the complete explanation of that scenario.

Dr James agreed that he had never had a police officer refuse to take him to a scene of death. He added, ‘if Dr Manock said the police refused to take him, I’d be surprised by that.’

Dr Manock said that it was his recollection that the visit to the scene was precipitated by the forthcoming committal proceedings. That suggests that the visit was not seen to be an essential part of the diagnosis, but merely part of preparation for court proceedings.

Diagnosis of Exclusion

Dr Manock said that on the day he completed the autopsy he had determined that the death was due to drowning. But this conclusion could not have been in accordance with proper procedures. There are no signs which can be found to positively indicate that a person has died from drowning. The textbooks express this as ‘there are no signs which are pathognomic of drowning.’ Drowning is a diagnosis of exclusion. What this means is that it cannot be determined that a person has drowned until other reasonable possibilities - a brain aneurism, or cardiac failure, for example - have been examined and excluded. Logically, such possibilities can not be excluded until the scientific testing on major organs is completed and the results known.

If the brain and heart had been properly examined by specialists, this would have taken several weeks. In the case of the toxicology, Dr Manock did not obtain the results until months later. Until he got those results, he could not have known if Anna had died from epilepsy, been poisoned or had committed suicide by the ingestion of drugs, for example. As Dr Manock never undertook any proper examination of the heart and brain, he could not, at any time, have excluded death resulting from defects of those organs.

At the Medical Board hearing, Mr Borick asked Dr Manock:

“Do you agree with what I put to you, that it is the view of all of your professional colleagues over three decades that drowning is a diagnosis of exclusion? Do you agree with that proposition?”

Dr Manock replied, ‘No, I don’t.’ He was then shown a list of some 40 major text books on pathology, published between 1955 and 2004, which described it as such. Mr Borick said, ‘It covers the field doesn’t it?’ 

Dr Manock: Yes, some of which I’ve made contribution to, as well.

Mr Borick: Which ones?

Dr Manock: Polson and Gee, their second edition; and I see that you don’t have Polson and Tattersall’s Toxicology, where I also made a contribution.

Mr Borick: In what year?

Dr Manock: That would have been in the mid-60s. [Dr Manock completed his medical degree in 1962]

Mr Borick: Anything since then?

Dr Manock: No.

Dr Manock was asked, ‘Do you accept now that a diagnosis of drowning is a diagnosis of exclusion and that your view differs from the view expressed by all of the major texts of your profession over three decades?’ He replied: 

“The 42 days [the time between the autopsy and the signing of his report] was spent looking at other possibilities, but none of them disturbed the original diagnosis.
I wasn’t considering other causes because nothing upset the original diagnosis.
I was waiting for the toxicology results to come through.”

It seems inconsistent to say that, ‘the 42 days was spent looking at other possibilities’ and then to add, ‘I wasn’t considering other causes’.

The following quotation from one of the texts was put to Dr Manock:

“A diagnosis of drowning cannot be made without a complete autopsy and full toxicological screening, histologic analysis of all organs including the lungs and the diatom test. The diagnosis of drowning cannot be based solely on the circumstances of the death, non-specific anatomic findings and the results of the biological analysis.” [2]

He was then asked: ‘Your autopsy did not accord with that basic principle?’
He replied, ‘No, it didn’t.’

Differential Staining

Both Dr James and Dr Manock said that they had a diagnostic test for fresh water drowning. It was described by Dr Manock at the trial as, ‘a classical sign of fresh water drowning’. [3] This test, which came to be referred to as differential staining was based on a positive and a negative finding; the positive finding was the presence of haemolytic staining in the aorta, the major vessel leaving the heart to pump blood around the body; the negative finding was the absence of such staining in the pulmonary artery, the last vessel in the system delivering the de-oxygenated blood back to the lungs. Each of those vessels represents, as it were, the beginning and end of the journey for the circulation of blood from the lungs and back again.

Dr Manock’s explanation for the differential staining was that when water gets into the blood stream via the lungs, it causes the red cells to burst (haemolyse) and in so doing, they release the red haemoglobin, which causes red or pink staining to the lining of the blood vessels. At the same time, according to Dr Manock, potassium is released from the red cells into the blood stream. The effect of this potassium, he said, is that it stops the heart suddenly, and the haemolysed blood does not then travel through the rest of the circulatory system as far as the pulmonary artery. He said that if CPR had been used, then it may not have been effective enough to force the flow of haemolysed blood through the vessels.

Dr Manock said that information supporting his explanation of potassium stopping the heart in drowning cases would be found in ‘most of the [pathology] standard texts’ – but as we describe below, it is not.

Although Dr Manock asserted that there was staining of the aorta - and no such staining of the pulmonary artery - there is no photograph of either of those apparently fundamental observations, in spite of the view put by Professor Tilstone that a primary goal of the pathologist is to obtain evidence.

In relation to the differential staining, Dr James stated:

“I know of no condition in which you will see that double-finding - the positive staining in the aorta and the negative staining in the pulmonary trunk - other than fresh water drowning.”

What Dr James didn’t go on to alert the Board to, however, was that several years earlier he had co-authored with Dr Byard and others from the Forensic Science Centre in Adelaide a published scientific paper, in which they said that in the diagnosis of drowning, ‘there are no specific diagnostic features’. [4]

Mr Borick later questioned Dr Manock further on his diagnosis of fresh water drowning:

Mr Borick: But fundamentally and as Dr James has said, the two features were the staining of the aorta and the weight and appearance of the lungs?

Dr Manock: Yes.

Mr Borick: Without those you could not have arrived at a diagnosis of drowning?

Dr Manock: No, I wouldn’t.

Mr Borick: You’ve heard me put to Dr James the list of textbooks written over the last three decades and you’ve heard me say to Dr James that there is absolutely no reference in any of the texts to staining of the aorta being - whether associated with the pulmonary artery or not - associated with diagnosis of drowning?

Dr Manock: That’s quite correct.

Mr Borick: You were aware of that when you decided to come to your diagnosis?

Dr Manock: Yes.

Mr Borick: That, in other words, the rest of the world thought differently to you?

Dr Manock: No, the rest of the world hadn’t caught up. [5]

Both Dr James and Dr Manock referred to this finding as a product of their experience. But neither of them had carried out any properly validated scientific studies to determine how often it occurred in other (non-drowning) cases.

Dr Manock said that he had not published his theory. He said, however, it was a sign that is certainly recognised by the pathologists at Divett Place (meaning the mortuary and Forensic Science Centre where he worked). 

Mr Borick: Bearing in mind that the rest of the world differs from you on aortic staining, have you ever written anything on it?

Dr Manock: No, I haven’t.

Mr Borick: Have you ever given the world the advantage of your skill?

Dr Manock: I have drawn people’s attention to it, yes.

Mr Borick: Which people?

Dr Manock: People who have trained in forensic pathology at Divett Place.

Mr Borick: Outside Divett Place, have you ever drawn attention to anybody (sic)?

Dr Manock: I can’t recall. [6]

However, Derrick Pounder, who spent part of his early training with Dr Manock at Divett Place and is now Professor of Forensic Medicine at Dundee University, has said that he had never heard of it and such an idea was nonsense.  

As the Appeal Court judges said in relation to Dr Alan Clift, if his test had been such a wonderful test, ‘why didn’t he publish it?’ The same applies to Dr Manock’s differential staining and drowning. Such a positive test to determine that a person had drowned would be very important to pathologists around the world.

Both Dr James and Dr Manock agreed that differential staining was not referred to in the medical literature as a test for drowning. However, it turns out that it was published information, but this was unknown to Keogh’s team until alerted to it by the Solicitor-General (Chris Kourakis QC) in a letter to Kevin Borick in July 2005 (after the Medical Board had delivered its decision). The first edition of Lecture Notes on Forensic Medicine by DJ Gee, published 1968, states under the heading of ‘The appearance of the freshly drowned body’:

“Haemolysis of the blood may be apparent and may produce haemolytic staining of the wall of the aorta, not seen in the pulmonary artery. These classical signs of drowning will disappear in a few days, due to putrefaction.” [7]

The introduction to the book indicates that the subject matter is based on the content of the lectures in forensic medicine originally given by Professor Polson at the University of Leeds, the university where Dr Manock trained in the 1960s. It goes on: ‘To him [Polson] and to Dr C.H. Manock I express my thanks for assistance in the preparation of this book’. It is possible that this gives an indication of the source of Dr Manock’s view of differential staining, and perhaps also his expression ‘classical sign’. It is curious, though, that Dr Manock did not mention during the hearing the existence of the book.

A fourth edition of the book was published in 1984, still with the same information. [8] Significantly, however, in a joint work Professor Gee undertook in 1985 with Professors Polson and Knight, there is no reference to the differential staining observation, or to ‘classical signs of drowning’. Indeed, the comment which appears in this newer publication (and was one of the texts put to Drs James and Manock at the Medical Board hearing) is only: ‘The aorta may have haemolytic staining of its intima [lining]’. [9] It would appear that Professor Gee had, by 1985, changed his mind or at the very least had accepted that his view lacked any peer support. Rather than the rest of the world hadn’t ‘caught up’ to Dr Manock, perhaps they had moved on.

In final submission to the Medical Board on 17 December 2004, Dr Manock’s lawyers tendered a coloured digital print purporting to show the differential staining effect. Although the print shows a size marker, it has no information to indicate the origin of the heart or the cause of death.

In 2005, Dr Roger Byard, the Chief Forensic Pathologist at the Forensic Science Centre in Adelaide, wrote to the Institute of Medical Science. He said that he wished to conduct research to determine if staining of the lining of the blood vessels, sometimes used as an indicator of fresh water drowning, is an artefact caused by exposure of the aortic intima [lining] to lysed blood during the post mortem examination. He stated that this was a ‘contentious’ indicator of drowning and the literature had ‘little to no’ information regarding its specificity or sensitivity. He stated that it had been observed at Forensic Science South Australia during ‘routine’ post mortem examinations that ‘accidental’ exposure of aortic tissue to lysed blood causes staining. That hardly sounds like the ‘case studies’ that the Medical Board later referred to in their decision.

Dr Byard stated that he wanted to use tissue from pigs to determine the effects of lysed blood on the lining of the aorta. Before the results of such work could be accepted in a court as expert evidence, it would have to comply with the requirements of the Daubert judgment, namely, be tested and the error rate determined and the results subjected to peer review and publication.

Even if positive results eventuated, because the physiology of pigs differs to that of humans, it would obviously take some further time to convince the scientific community that the results could be extrapolated to humans. Clearly, the research is not in the position for claims to be made about this test which could satisfy the criminal standard of proof – and produce findings ‘beyond reasonable doubt’.

Potassium Release

The issue of potassium release was an integral part of Dr Manock’s theory concerning the diagnosis of drowning. Normally, the heart will take about three minutes to pump all the blood around the body. During a struggle, the heart-rate would increase significantly, and so the time required for a full circulation of the blood would be less than three minutes. So, if a heart had been beating for three minutes (more or less) during the process of drowning, then any staining of the blood vessels arising from it would be generally distributed throughout the body.

At the trial, Dr Manock said that it would take about three minutes for someone to drown. He also told the judge that in ‘every case of drowning … there is an unconscious state before death where there is still a circulation.’ [10] But then he said that in this case, the right leg had been thrashing around and banging on the side of the bath. At the Medical Board though, in order to explain his theory of differential staining, he said that released potassium, in elevated levels, would cause the heart to stop beating very quickly (thus stopping the circulation).

But as we have indicated, the texts that Dr Manock nominated as supporting his theory do not do so. Some of the books he referred to mention chloride levels, but do not discuss potassium levels. [1] Of course, research in this area is notoriously difficult. Most people who drown do so in circumstances where it is simply not possible to carry out testing of blood chemistry within minutes of their drowning.

Dr Manock’s proposition about the increased potassium level was, strictly speaking, abut changes whilst a person is alive – but during the process of drowning. Obviously, that cannot be tested. One of the major text books referred to by Dr Manock explains the changes as follows. Note that we have used a version of this book that was published prior to Keogh’s case.

Camps & Cameron say that when fresh water enters the tiny spaces within the lung tissues, it is rapidly taken up into the blood circulating through the lungs. This means that the blood returning to the left side of the heart becomes diluted. The sodium chloride concentration in the left side of the heart is thereby reduced, and the extent of this will be directly related to the amount of diluting water taken up. The influx of fresh water into the circulation causes bursting (haemolysis) of the red cells, leading to a deficiency of oxygen (anoxia). The depletion of oxygen to the heart muscle (myocardial anoxia) means that the heart will fail to beat fully and will quiver (fibrillate) instead. [12]

Where a body has been found in water (as in the Keogh case) it is obviously important to know if the person had been dead or alive at the time of immersion. It was thought at one time that a comparison of the blood between the right and left sides of the heart of a body found in water would indicate this. Theoretically, it is reasonable to expect that chemical analyses of the blood plasma would provide reliable evidence of drowning because of the dilution of the blood in fresh water drowning. However, this has not been realised in practice. [13] Research work, including some on surviving victims of near-drowning, has shown that there are no reliable changes in sodium, potassium and chloride concentrations. The general view now is that it might be of assistance, but only in cases in which an autopsy is carried out very soon after death (which did not occur in this case).

A current view of drowning is described by Professor Pounder in the Encyclopaedia of Forensic and Legal Medicine. [14] He points out that fresh water and salt water damage the alveoli (lung spaces), and destroy the surfactant which lines the alveoli and keeps them extended. At the same time, pulmonary oedema (fluid on the lungs) occurs, which means there is a build-up of protein-rich fluid in the alveolar spaces that remain. This leads to the blood flowing through under-ventilated portions of the lung, causing hypoxia (oxygen starvation). It is, he says, these general effects of the aspiration of water, rather than the fluid and chemical shifts, which appear to dominate the pathophysiology of human drowning.

Whatever the case may be, for any hypothesis concerning the cause of death based upon potassium levels, one would need to measure the potassium levels. That was not done in this case.

Independent review by Dr James

It was said at Keogh’s trial that Dr James had checked the work of Dr Manock. In much of his evidence, however, Dr James agreed that he had to be reliant upon Dr Manock’s observations. The fact that there is no independent evidence to substantiate such observations makes this an exercise fraught with difficulties and of minimal value. The reason that checking of observations is required as part of standard procedure, is because it is accepted that even in the best conditions, people do make mistakes.

Dr Manock had in the past been extensively criticised for his failure to record information; for his failure to comply with ‘time-honoured’ procedures; for the fact that he had said that he had seen things which could not have been seen; and for the fact that some of his answers under oath had been ‘spurious’. [15] In those circumstances, one might well take the view that in any case of suspected murder, Dr Manock would have been most particular in providing independent evidence of his observations, and that his colleagues would have demanded nothing less of hi.

At the Medical Board hearing, Dr James said, ‘I do not think it is essential that the weights of all body organs are recorded in a post-mortem report.’ When it was put to him that Professor Plueckhahn, one of the most senior and respected forensic pathologists in Australia, said that all of the body organs must be weighed, Dr James said, ‘I think it’s desirable. I don’t think it’s essential.’ It was put to him that the United Kingdom autopsy standards stated, ‘All organs must be dissected and accurately and adequately described with weights.’ He again said he did not agree.

It was put to him, as it was to Dr Manock, that a major text book stated:

“A diagnosis of drowning cannot be made without a complete autopsy and full toxicologic screening, histologic analysis of all organs including the lungs, and the diatom test. The diagnosis of drowning cannot be based solely on the circumstances of death, non-specific anatomic findings and the results of the biological analyses.” [16]

When asked if he agreed with it, he replied, ‘In general I do.’ It was then put to Dr James that Dr Manock had arrived at his diagnosis without any of this occurring; he did not have any toxicological analysis; he did not have any histology reports. When he was asked if he realised that’s what had happened here, Dr James replied, ‘Yes, but I think he was right.’

However, as we have explained, an expert can only be ‘right’ if they have arrived at their results by an accepted scientific method.

Dr James went on:

“I think that he might have felt that he had clear and persuasive evidence that the cause of death was fresh water drowning, and reported it as such, and when the other tests came in, he had no reason to change his opinion.”

Mr Borick put it to him:

“If the weight of informed opinion in your profession over the last three decades, indicates that staining of the aorta is a nonspecific diagnosis for drowning, and similarly for weight and appearance of lungs, the second of which you accept, then Dr Manock’s approach was contrary to the approach that should be made according to the informed opinion over three decades of your profession. Do you agree with that?”

Dr Ross James simply replied, ‘No’.

His explanation was that Dr Manock was the most experienced morbid anatomist in South Australia, and that he had seen, in the normal nature of his work, something over 100 such cases. However, it is also clear that even experienced people have to arrive at their conclusions by an approved and accepted route.

Dr James said:

“I’ve already mentioned that in forming my views on this case, I have to be reliant on what he said in the post-mortem report, and what has appeared in the histology, and what he has said in evidence. This wasn’t my case.”

It was put to him:

“You were not entitled, when you were making an independent assessment of this evidence, to rely upon anything that he said. You were supposed to check it out for yourself. Do you agree with that, that it was going to be an independent assessment?”

Dr James replied that the assessment was ‘independent in the sense that in some areas I agree with him and in other areas I disagreed with him’. This is important, because it recognises that on some issues, Dr James found that he had disagreed with Dr Manock. However, without independent corroboration, one area where Dr James could not disagree with Dr Manock was on the issues concerning Dr Manock’s observations. Dr James said at the trial, that he had to take Dr Manock’s observations at face value – and he had to because there was no independent corroboration of them, such as photographs.

Dr James further stated, ‘I have to rely on the post-mortem report, but if that is a factual observation…’ (emphasis added) indicating that he was not capable of checking the observations for himself.

Earlier, referring to Dr Manock’s autopsy report, he had said:

“… and most importantly, he describes haemolytic staining of the aorta. …It’s only found in fresh water drowning, and the important thing in this case is that given the post-mortem was apparently several days after death, you could see the change in the aorta, but not in the adjoining pulmonary trunk.”

But, Dr James could not check the existence of any staining of the aorta, or the lack of staining in the pulmonary artery. There were no photographs of it. There was no histology of it. He was not asked to look at the case until some eight months after the autopsy.

Consideration of other causes

Mr Borick asked Dr Manock about how open he had been about other possible causes of death. ‘Dr Manock … you state that once you had conducted the autopsy, there was never any doubt in your mind about her cause of death?’ He replied, ‘No. I formed the view that drowning was the cause of death and nothing that I did after that disturbed that view.’

Mr Borick: …your approach to the case was that, once you had found the cause of death you would focus on that, rather than to explore other causes which were clearly not relevant.

Dr Manock: The cause of death was quite obvious as drowning. What I focussed on rather than finding another cause was to find evidence that would suggest the manner of death.

In other words, once Dr Manock had settled upon the fact that death had been caused by drowning, his major focus then was to explain how that drowning had occurred. He did say he would be open to re-considering his opinion if further evidence came to light. However, without actively investigating or seeking other possible causes, they were not going to be found. For example, without taking histology of major organs, or sending the heart and brain to a specialist, it would be impossible to determine the presence of defects in those organs.

If Dr Manock had properly considered the photographs taken by the police at the scene, he would have been alerted to a possible cause of death. It can be seen in these photographs that there is swelling to Anna’s face. This could have been the sign of an anaphylactic attack; this could have been tested for if a blood sample had been taken and analysed for the level of the enzyme tryptase.

A case with similar features has been reported by Dr James and his colleagues in an article on bee sting deaths. [17] They noted that there were no pathognomic signs for anaphylaxis and autopsy findings were often non-specific (just as we have seen is the case for drowning). In one of their case examples, the victim showed ‘marked facial swelling’ at the scene, but there was ‘minimal facial oedema’ at the time of the autopsy. The tryptase test for anaphylaxis was conducted and gave a positive result.

Statements

Dr Manock was asked as to why he had not mentioned in his notes or report which of the witness statements he had looked at. He replied:

“To do that, I would have to report hearsay evidence. The Coroner’s file contains statements from people. It is not my normal manner to repeat what is in those statements in my report.”

The rules relating to hearsay evidence are part of the technical rules about the admissibility of evidence in court. They have no bearing upon a person such as a pathologist conducting an inquiry into an unexplained death. Anyone can inform the pathologist of their concerns or suspicions if they think it to be helpful. However, it would be prudent for that pathologist to keep a record of what he had been told and by whom. Clearly, there is also a distinction between keeping a list of statements which had been read, and repeating the content of those statements.

Dr Manock said, ‘the fact that I have read them is neither here nor there’. That was not correct. His explanation was, ‘by the time the matter goes to court, that evidence will be produced’. However, he would have no way of knowing that. Many statements are generated during the course of an investigation, but not all of them are subsequently used in court. There is no necessary correlation between ‘evidence produced in court’ and ‘evidence which has influenced a pathologist in the course of the inquiries’.

The reason for keeping a record of what has been read about the matter is not so that he can include that in the autopsy report, for the benefit of the court later on, but so that it can be a record of the thinking process during the investigative phase of the proceedings.

Medical history

Mr Borick then moved on to the matter of the medical records. He asked Dr Manock if he had been aware ‘that this girl had seen a dozen different doctors on 37 occasions in the few years preceding her death’. Dr Manock replied, interestingly, ‘I have done recently, yes’. This clearly implies that he did not know about that at the time of his investigation. Mr Borick then asked, ‘Isn’t that a matter of significance?’ Dr Manock replied, ‘It all depends what the visits were for’.

Mr Borick: You don’t know, do you?

Dr Manock: No, I don’t.

Mr Borick: Don’t you believe that even now you should find out what’s in those medical reports?

Dr Manock: No, I don’t.

Mr Borick’s suggestion was based on the principle that a medical practitioner such as Dr Manock has an ongoing responsibility under the rules of professional conduct, in relation to a matter such as this, to correct his understanding if further or new evidence comes to light. If Dr Manock did not know about the medical history of the deceased at the time of doing the autopsy, and he is now informed that there was a possibly significant history, then the pathologist should check it out to see if there was anything of relevance there.

In relation to this, Dr James said that the only document he had seen about Anna’s medical history was the document from the general practitioner.

Mr Borick: That’s all you know about it?

Dr James: Absolutely.

When the information about visits to other doctors was put to him, he replied:

“I’d heard something to that effect on a television program.”

Mr Borick: If you had known about that at about the time you were preparing her post-mortem – an autopsy report in this case – would you not have sought that history?

Dr James: I would have sought a medical history, yes.

Even to this day, neither Dr Manock nor Dr James, know the medical history of the deceased.

Organ weights

Dr Manock said at the Medical Board hearing that he personally weighed the lungs at autopsy, despite the fact that he had said at the committal proceedings that he did not weigh them. [18] He accepted that there was a note in his handwriting of the weight of the lungs. He said he did not think it important enough to put the weights into his autopsy report.

Dr Manock told the Medical Board that he had weighed the other organs at the autopsy. He said the reason he had not reported these weights was that during the autopsy, the weights were written on the whiteboard in the mortuary. At some point, he said, he was required to leave the mortuary to take or make a telephone call. While he was away, the organs had been returned to the body and the weights had been cleaned from the whiteboard. ‘I had already written down the lungs, and those were the only weights that were retained’. He said that he thought that it would be inappropriate to re-open the body and re-weigh the organs. Dr Manock did not explain why the weights had been cleaned from the whiteboard, especially as this was the last autopsy to be done that day.

Appearance of the lungs

Dr James had reported when he checked the work of Dr Manock that one of the features ‘consistent with fresh water drowning’ was ‘the appearance of the lungs … to the naked eye’. But he had never seen them, and there was no photograph of them.

Dr James referred to ‘the finding of water in the upper and lower air passages.’ Again, he could not have known whether this was so. No tests were done at the time to determine what the fluid consisted of, and whether it was bath-water or oedema. Certainly, there may have been fluid in the air passages, but this is a common occurrence in many types of death from drugs, heart attacks and many other causes. The same applies to Dr James’ acceptance of the existence of ‘water in the lungs’.

Dr James information on this would have come, at least in part, from Dr Manock’s evidence at the committal proceedings.

Mr David: And that was the heavy lung was due to water and nothing else, no other bodily fluids?

Dr Manock: I don’t know that one could differentiate, I mean there are two alternatives, either water or blood and it wasn’t blood.

And then:

Mr David: That was definitely water there as distinguished from pulmonary oedema?

Dr Manock: you can’t distinguish between the two.[19]

Dr Manock agreed that if there had been any doubt about the diagnosis as drowning, then it would have been appropriate to take a larger number of lung samples for histology. He took just one. The point about drowning being a diagnosis of exclusion is that there should have been a doubt about the diagnosis until other reasonable possibilities had been properly investigated.

The marks on the legs

Dr James said in relation to the marks on the legs (seven on the right, and four on the left) that they ‘were all similar, as shown in the photographs; they all looked about the same shape and size and appearance.’ Professor Ansford in his affidavit said he did not agree with this. (Remember that this is all based on a few black and white photographs.) So the first issue, said Dr James, is what they were, ‘and there’s no doubt at all that they’re bruises.’ As we have seen from the affidavits of Professors Thomas and Spring, there is in fact considerable doubt as to whether or not they were bruises.

Going on, Dr James effectively reversed the onus of proof, saying:

“… but they’re so suggestive of grip marks that it’s reasonable to assume they’re grip marks until a more plausible explanation presents itself.”

Of course, explanations do not present themselves. Once the pathologist determines that the marks are grip-marks, it is difficult to know what an accused person can do to upset that presumption. Keogh did everything he could possibly be expected to do. He called other eminent pathologists, such as Professor Cordner at the trial and Dr Collins and Professor Thomas at the Medical Board. They agreed that the marks could have been caused by any number of occurrences in day-to-day living. At the Medical Board he called Professor Spring who said that they could even have been marks on the negatives of the photographs.

The ‘thumb bruise’

The most important of all the marks on the body was that on the inner side of the lower left leg, which was said to be a thumb bruise. The position Dr James took on this, as he told Sally Neighbour from the ABC, was:

“If there is no mark on the other side – that is, the thumb mark – then you haven’t got proof of a grip.”

A bruise was defined by Dr Manock at the second trial as ‘blood which has escaped from its blood vessels into the surrounding tissues in sufficient quantity to be seen through the skin itself’. It follows then that the way to definitively identify a mark as a bruise is to cut a section (histology) and examine it using a microscope. Dr James, reading from his notes in cross-examination at the trial, said that in relation to bruising, all the slides from the legs showed ‘skin with bruising’ or ‘ haemorrhage into fat’. [20] Dr Manock talked at the trial of these sections as being ‘of the bruises’, and it is clear from an examination of the transcript that the court and the jury thought that Dr Manock had determined that the histology supported his view that the marks that he saw were bruises.

However, in a letter dated 30 October 2001 to Mr Rofe QC, commenting on the 4Corners program, Dr James revealed that he agreed with Dr Thomas’s view that the histology did not support the fact that the medial (that is, inner side of the leg) mark was a bruise. This information did not become public until the Attorney-General’s speech in Parliament on 1 April 2003. Dr James confirmed this opinion in his affidavit to the Medical Board and in his oral evidence there, stating that ‘down the microscope I can’t convince myself that that’s earned the description of a bruise’. [21] He also described the mark as ‘not sufficiently impressive’ to label as a bruise, and concluded, ‘I don’t know what that was’

Mr Borick put it to Dr Manock that Professor Thomas, Dr Collins and now Dr James all agreed that the microscopic section from this mark did not show evidence of a bruise. He then asked:

Mr Borick: What’s your view?

Dr Manock: That the histology doesn’t support the fact that it’s a bruise; but that isn’t the only evidence that was available.

Mr Borick: When did you first become aware that the histology did not support the fact that the mark on the medial side of the left leg was a bruise?

Dr Manock: By the end of the week beginning whatever it was - 20 March, was it?

Mr Borick: Yes. So by 26 or 27 March, you knew - - -

Dr Manock: Yes

Mr Borick: - - -  that the mark on the inside was not supported by the histology?

Dr Manock: Yes.

This came as a great surprise to Mr Borick. Presumably also to Dr James, who in his most recent statements to the Medical Board had said:

“… one area that Dr Manock and I differed was … [the] bruise on the inside left ankle. … I would not have described what I saw in the sample as a bruise.”

However, Dr Manock is now stating that there was no difference, because he agreed with Dr James - and necessarily with Professor Thomas, who first raised this concern. 

This revelation by Dr Manock appears to conflict with his own evidence at the trial, where he said:

“… the difference between those bruises [the bruises on the right leg and the bruises on the left leg] after microscopic examination was that it was simply because of the thickness of the skin that they appeared different. [22]

It means also that when Dr James gave his evidence at the second trial that all the leg sections showed bruising, Dr Manock would have known that he was wrong with regard to this ‘bruise’, but did nothing about it.

It seems surprising that Dr Manock’s closest professional colleague, who had at the time of the trial checked Dr Manock’s work on behalf of the DPP, still thought some 10 years after Keogh was convicted, that Dr Manock had seen microscopic evidence of a bruise at that location. It would seem that there was no proper record of Dr Manock’s observations and conclusions.

However, despite the fact that the microscopical examination of the tissue showed no signs of bruising, Dr Manock said that this merely failed to confirm that there was a bruise. He continued to assert that there was a bruise at that location on the basis of his macroscopic (visual) observation.

Mr Borick said that the correct approach to the issue was that the alleged macroscopic observation of a bruise by Dr Manock was falsified by the histological examination of the material under the microscope.

If Dr Manock had formed the view that the histological examination merely failed to confirm the observation (as he has stated) as opposed to its falsification (as Mr Borick stated), then this could only be because there had been some error in the process by which the sample had been taken or prepared for microscopical examination.

The way Dr Manock could have properly discerned the difference between the failure to confirm the observation and the falsification of the observation would have been to take further histological samples for testing; and this would have been possible as the body had not been released from the mortuary at the time he says he determined the negative result of the histology. His failure to take further samples for testing meant, in effect, that Keogh had been deprived of an opportunity to establish his innocence.

Mr Borick went on to ask Dr Manock if he had informed the DPP that his microscopic examination of the tissue failed to confirm the existence of a bruise. He said he had not done so because ‘it wasn’t part of the conversation’. [23]

Dr James response was similar to Dr Manock’s. When asked why he hadn’t made his views about the histology of this mark known at the time to the DPP and to Mr David QC (whom he had assisted in preparing the defence case), he replied, ‘I don’t think it was asked of me …’. He said he did not explain it to the jury because ‘I didn’t think it was particularly relevant’.[24]

There are in these responses clear similarities to the Dr Clift situation:

“His [Dr Clift’s] response to all of this was that the information was there at trial but nobody asked him about any of the points which subsequently were said to be shortcomings, and in particular nobody asked him during the trial … “ [25]

Similarly, in the UK more recently, Dr Alan Williams, the pathologist who failed to disclose test results in the case of Sally Clark (who was accused of murdering her two children), responded after the appeal verdict with: ‘The results were there in the files for anyone to see’. [26] The Court of Appeal said that ‘his failure demonstrated that he had fallen a very long way short of standards to be expected of someone in his position upon whose evidence the court was inevitably going to be so dependent’. [27] The Attorney-General has ordered a review of cases of deaths of babies in which Dr Williams was involved. [28] As we have noted earlier, Dr Williams was being investigated by the General Medical Council and banned from doing forensic pathology for three years. [29]

For Dr Manock to have not informed the DPP of this important histology observation, because ‘it wasn’t part of the conversation’ and for Dr James to have not informed the DPP either, or Mr David, because he wasn’t asked, goes completely against the recommendation of the Splatt report, cited by Professor Tilstone, their boss:

“The critical responsibility which rests with the legal persons is to ask such detailed and probing questions of the scientist as are most likely to elicit such evidence. In this context, the primary responsibility must always remain with the scientist.” [30]

Exact location of bruising

Dr Manock was asked why it was that even at the Medical Board inquiry, both he and Dr James were still talking about the bruise marks being on the ankle or the calf. The confusion as to the location of the marks probably wasn’t helped by Dr Manock’s evidence at the committal proceedings”

Mr David: Was there bruising on the ankle?

Dr Manock: Yes slightly lower than the ankle on the shin and calf. [31]

But in answer to Mr Borick’s question at the Medical Board Dr Manock replied:  

“There is in fact a photograph of the whole body, where these bruises and the histology sites are in fact marked on the photograph.”

That is incorrect. There is no photograph ‘of the whole body’. That is one of the most disturbing things about this case.

Mr Borick: My proposition to you was, why should we have to say ‘about’? We should know exactly, shouldn’t we, if you had been doing your job properly?

Dr Manock: If the position of that was dependent on some fixed object, then yes, it should.

Mr Borick: Well, it was dependent upon three fixed objects - that is, the objects on the other side which constituted the supposed grip mark. It was vital that that be accurately recorded. Don’t you agree?

Dr Manock: No.

If the hypothesis is that the pattern of marks on the leg were said to have constituted a ‘grip mark’ then the exact positioning of the marks in relation to each other would be crucial. After all, left and right hands (having thumbs on opposite sides) make marks in different positions. The positioning of the marks would tell us something about the size of any hands which had been involved, if hands they were. The exact positioning of any marks would either rule in or rule out certain possibilities. After all, Dr Manock said at the trial that his own hand fitted the pattern of the marks.

Dr Manock: I was able to put my hand on the calf and my fingers and my thumb fell on the bruises without any contortions at all.

Clearly it would be crucial to know if Henry Keogh’s hand was the same size as Dr Manock’s. It would also be important to know if Dr Manock had used his left or right hand, and whether it ‘fell on the bruises’ from above or below the leg.

Which hand

Dr Manock issued a second report on 28 June 1994, the day after he had made his visit to the scene of Anna’s death. This report contains the first written indication of the manner of death. To help follow the discussion below, it is necessary to have some understanding of the layout of the bathroom.

In his report, Dr Manock described the scene as ‘a domestic bath which had the plug at the left and at the [left] end was a flat area on which was a pot plant’. To elaborate; the bath was against a wall, with a soap dish and taps and spout about half way along. There was a wall at the other end of the bath. Thus, if someone was in the bath, sitting at the plug end as Anna was said to have been, any assailant, if indeed there was one, could only approach on the person’s right.

Dr Manock then stated that he thought that a person sitting in such a position could be immersed with relative ease by lifting their feet and as the same time pressing down with the other hand on the head or shoulder. He wrote:

“This mechanism requires the assailant to place the right hand under the deceased’s right ankle and grip the left ankle.” [Emphasis added]

At the committal proceedings he stated:

“The bruising to the lower left leg consisted of three bruises on the outer surface, the lateral side of the leg and the single bruise of the medial side of the leg, and they represented a grip by a right-hand if it is applied from behind.” [32] [Emphasis added]

He further stated in relation to the bruising on the ‘left ankle’, ‘The distribution of the bruising is consistent with a grip with a right-hand.” [33] And later, “I don’t think a (sic) ordinary bloke in the street as you put it would recognise the grip mark on the leg as inflicted by a right hand.” [34]

At the first trial, he described this as:

Dr Manock: I placed my left hand behind the lower leg and found that I could fit my three fingers and thumb against the bruises that were present so that it was possible they were caused by a grip.

Mr Rofe: From their position and shape, are you able to say which hand was used.

Dr Manock: It would appear to be a right hand. [35]

Seems a little confusing? At the second trial it was not much clearer:

Dr Manock: It was possible to cover the bruises [on the left leg] by putting a hand over the leg and a thumb approximating to the bruise on the inner aspects of the left leg and 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.

Clearly Dr Manock is stating that the bruises on the leg have resulted from a right-hand grip, even if he is somewhat unclear about whether the hand had come over the top of the leg, or from underneath it.

But it was not clear at all, apparently, because at the Medical Board, Dr Manock claimed: 

“The right hand goes under the legs to lift them, but it’s not necessarily the right hand that actually caused the grip. Once the legs are in the air, then they can be held by the left hand, and it was in fact a left handed grip.”

He went on to say, somewhat inaccurately, ‘I’ve always described those finger marks as being of the left hand.’ Mr Borick sought for clarification, but the following exchange only made matters worse:

Mr Borick: You originally said the left hand, and then you changed it to the right hand. I mean, you surprise me, but that’s the fact.

Dr Manock: I thought when I changed it, I changed it to the right hand. [That was correct.]

Mr Borick: Well, if it’s the right hand - so what are you saying now, the left hand or the right hand?

Dr Manock: As I have said, this is something happening in slow motion - the hand goes underneath the legs and lifts them up, to hold them in position. The left hand grabs the left leg and holds it, pulls it over the head and downwards. I’m not saying that the right hand went under there and left bruises at all. I’m saying that the mark that’s left on that left leg is the grip of a left hand.

At this point, Mr Borick read back to Dr Manock the extract from the first trial where he said that his left hand fitted the pattern of marks but the grip ‘would appear to be a right hand’. Mr Borick continued:

Mr Borick: You see, in giving evidence you started with the - you said first the left hand then you changed it to the right hand. Do you agree with that? Do you agree that’s what happened there in that bit of evidence?

Dr Manock: Yes.

Mr Borick: Which hand do you now say first gripped the left leg of the deceased?

Dr Manock: I’m saying the grip mark that I saw on the left leg of the deceased was a left-handed grip, and due to the geography of the bathroom, the way in which to initiate that movement would be to put a right hand under the legs to lift them up.

Mr Borick: So we’ve got in effect the left hand and the right hand - the left arm and the right arm now, if you like - being used to push the leg up?

Dr Manock: No, the right hand and arm lift the legs. The left hand grips the ankle and holds it.

This unexpected return to the ankle versus the calf obviously took Mr Borick by surprise, as he tried hard to picture the contortions which the potential assailant was engaging in.

Mr Borick: So, the right hand has got the legs and the left hand has got the ankle?

Dr Manock: Yes.

Mr Borick: You’re crossing them over now, Dr Manock?

Dr Manock: No, I’m not.

Mr Borick: Well, you have a think about it. You’re facing towards the bath. You’ve got the right hand on the legs and the left hand on the ankle. You have to be crossing them over?

Dr Manock: No, because once - - -

Mr Borick: No need to tell me; you tell the Board how you explain that.

Dr Manock: Once you’ve got the legs in the air, it’s quite easy to grab hold of it with the left hand.

Mr Borick: Grab hold of what?

Dr Manock: The ankle, the left ankle. [The marks were on the calf]

Getting somewhat exasperated, Mr Borick said:

Mr Borick: But your theory has always depended upon one of the hands - and I don’t care which one now - pushing the head under water.

Dr Manock: Yes.

Mr Borick: You’ve got both hands now on the legs and the ankle. Which hand are you now saying pushes the head down?

Dr Manock: Initially, the left hand.

Mr Borick: Pushing the head down?

Dr Manock: Yes, and once you’ve got the head under water you can then use the left hand to grip the left ankle.

The difficulty with all this, of course, is that if an assailant removed the hand from the head to grasp the leg, the victim would use the opportunity to raise the head above the water - which was in any event not deep enough to cover the head.

The frustrating nature of the exchange continued:

Mr Borick: You’re literally making this up as you go along, aren’t you?

Dr Manock: No, I’m not. This has always been the situation.

Mr Borick: Except it might have always been the situation in your mind but you’ve never ever before today described this scenario to anyone else, have you? Just answer that question, please?

Dr Manock: In my demonstration in the second trial, that’s precisely what I did. Whether it was described exactly or not, I don’t know.

But Dr Manock should have known how his actions were being described to the jury – as he was there at the time. If there had been any inaccuracies in that description, it would have been Dr Manock’s responsibility to ensure that they were corrected.

In fact, at the second trial, the judge was quite at pains to record in the transcript precisely and accurately the actions which Dr Manock was going through - and there was no mention of there being two hands on the legs ‘to pull them over’. Rather, it was described as ‘the right hand … grasping the left leg from behind’.

Mr Borick: I’m saying to you that you have never written down anywhere this scenario which you have given to the Medical Board today?

Dr Manock: I haven’t written it down, no.

Mr Borick: Anywhere, ever, at any time?

Dr Manock: No.

Of course, one of the advantages of having written down such important information is that it militates against any constant adaptation or elaboration of the scenario, to accommodate to each changing nuance.

Marks do not match grips

It was said that the arrangement of the marks on Anna’s legs made up a pattern which could be interpreted to be a grip. This grip was an integral part of a scenario involving forcing the legs over. Roughly speaking, the bruises on the leg had an arrangement that meant that if the grip pattern existed, then it could only fit a left hand grip from below, or a right hand grip from above - neither of which is consistent with the scenario proposed by Dr Manock.

At the trial, Dr Manock told the jury that the leg had been gripped by a right hand from below. That does not fit with the arrangement of the marks.

Then at the Medical Board, he explained that the marks had been caused by a left hand grip from above. That also does not fit with the arrangement of the marks.

Without adequate photographs and without exact measurements of the marks we will always be left wondering what does fit the marks - if they existed.

Circumstantial evidence

The applicable rule of law here can be stated as follows: In the context of a case based upon circumstantial evidence, the court is only entitled to find that guilt has been proven beyond reasonable doubt if it is satisfied that there is no rational hypothesis consistent with innocence. [38]

In other words, guilt is only proven beyond reasonable doubt if the circumstances are such as to render unreasonable any hypothesis consistent with innocence. If a hypothesis consistent with innocence cannot be excluded as unreasonable, then the accused must be acquitted. Moreover, where a particular fact constitutes an ‘indispensable link in a chain of reasoning towards an inference of guilt’, then that fact must also be proven beyond a reasonable doubt. [39]

Indeed, it may be argued that it was not for Dr James or for Dr Manock to determine the cause of the marks as being a grip. That should have been a task for the jury. Their task as scientists was to first determine the nature of the observation, and then to determine the range of possible causes; impact with a blunt object of a certain size, etc. For them to go beyond that and to talk about the object causing the bruise as being a finger as opposed to being a knock against a table, or from a dog, for example, goes beyond science to speculation. Clearly, there could have been neither facts nor probabilities to guide them in such speculations.

To then say that they would accept them as being caused by a grip, ‘until proven otherwise’, is not only to go beyond their assigned task, but it is also contrary to the rules of evidence. Dr James said that if you see the mark from the opposing thumb, for practical purposes that seals the issue. However, he had already given advice to the DPP that whilst the existence of the opposing thumb mark will confirm the marks as a grip, the absence of such a mark does not mean that he remaining marks are not a grip. As Dr James said, ‘it still leaves me with the view that whilst it doesn’t seal the issue, until proved otherwise, I would still regard them as grip marks.’ 

Again, Dr James refers to his unrecorded and unsubstantiated experience when told the Medical Board:

“In the mortuary, bodies are lifted up by the arms and legs and we just don’t see post mortem bruises of this sort on the arms and legs. We don’t see this repetitive pattern as we have in this case from simply lifting the dead weight of the body.”

Sometimes, as we have pointed out, what you see depends upon what you are looking for. To simply assert, without any scientific study, that bodies are not bruised by their handling after death, is not consistent with the reports of other pathologists (such as Dr Collins, for example) or with the scientific literature. If Dr James wants to assert that bodies coming to the mortuary are not bruised during their removal from the scene, then he either has to undertake - or refer to - properly validated scientific studies which prove that to be the case.

The Cause and manner of death

Dr James then went on, as Dr Manock did, to discuss the distinction between the cause of death and the manner of death. He said, ‘if one accepts for the moment, Dr Manock’s post-mortem observations,’ then the cause of death is fresh water drowning. He continued, ‘the manner of death is the important one because it mitigates as to the whole direction of the case.’ However, the proper view is that it is the cause of death which must influence the direction of the case. In any case, but especially in drowning cases, one must not pick upon one cause without having considered all other possible and reasonable causes. What Dr James is referring to is that after having established a cause of death, one then has to further establish how that came about. But as we have seen, in order for there to be criminal charges, one must be able to establish the cause of death beyond reasonable doubt. That necessarily entails that any other reasonable explanations have been properly investigated and excluded. That had not been done in this case.

However, what Dr Manock and Dr James appear to do, is to reason backwards from a suspicious manner of death (the bruises, etc) to bolster their suspicions as to the cause of death (the drowning). Justice Brennan, of the High Court of Australia, has said that if one attempted to prove a certain fact by a chain of reasoning which assumes the truth of that fact, then that would of course be a fallacy ‘repugnant alike to logic and to the practical processes of criminal courts’. [40]

Dr James said:

“The importance of those bruises is that this is a suspicious death. The three bruises on the head cannot be explained by a simple slip in the bath. They suggest three separate blows on the head or three instances where the head has struck a blunt object such as the bath. It doesn’t sit easily with the accidental mechanism of death. It suggests something more suspicious than that.”

Clearly one has to ask why Dr James would say such a thing. It is not appropriate to say ‘in my experience’, because that experience may well have been limited as a result of various contingent factors. The other pathologists in the case were willing to accept that such bruising - either to the legs or to the head - could have been caused by any number of accidental events. If a person collapses in a small confined bathroom, with bathroom cabinets, hard edges and surfaces of the bath, wall and floors and with taps projecting from the wall, it seems inappropriate to say that one could not possibly bang the head three times. If we allow for the possibility that the bruises to the back of the neck were in fact artifactual, as suggested in Dr Thomas’s affidavit, then the number of bruises to the head through any ‘falling mechanism’ has now been halved.

How many bruises might one have to the head following a fall in such a confined space? Why have neither Dr Manock or Dr James referred to any independent studies of such things? If they have not read the literature about such things, then have they done any independent studies of their own? If not, then they are faced with a logical problem. If the argument, that ‘such a thing has not occurred before in my experience’ is used to suggest the unlikelihood that it has occurred in this case, then presumably, the category of new occurrences is for them, closed off. Such a thing would now be excluded a priori ‘on the basis of my experience’ rather than on the basis of physics or some process of logical reasoning. In the context of criminal trials, this is surely to take one’s own ‘experience’ and to elevate it to the level of a universal law. 

Scientific procedures

Dr James agreed that when he ‘looked down the microscope, looked at what was supposed to be a bruise on the medial side left ankle’ he ‘decided that it was not a bruise’. It is clear that he regarded the microscopic examination of the tissue as an integral part of his determination. However, Dr Manock said that his microscopic examination, ‘did not confirm’ the existence of the bruise, but also, it did not refute it. Here we have two experienced pathologists from the same laboratory, disagreeing over one of the most fundamental issues - what is the meaning to be attached to the microscopical examination of tissues.

Photographs

Dr Manock said that he had instructed various people (the laboratory technician and the police) to take proper and adequate photographs. However, he obviously failed to check that they had done this before he gave his written notification to the Coroner that he had no further need for the body. Indeed, given the special need for colour photographs of certain features, it is hard to imagine how anyone could have taken adequate photographs of those features without Dr Manock being there to instruct them.

Mr Borick asked Dr James that, because one of the samples in relation to bruising was wrong, didn’t that indicate that the marks should have been properly photographed? Dr James surprisingly answered ‘no’. He did add that, ‘adequate photographs would clearly have been desirable’. One might think that in the investigation of a murder, where the bruises had been described by the prosecutor as ‘the one positive indication of murder’, colour photographs of the bruising would have been essential. As we have reported in chapter three, various people were said to have checked that the negatives (and presumably the photos) ‘were OK’ before the body was released to be cremated.

Dr James said, ‘there were marks on the legs that could clearly be seen in the photographs’. That is incorrect. Whilst there are marks which can be seen on the photographic prints - that is not to say that they constitute clear evidence of marks on the legs. As Professor Spring said in his evidence to the Medical Board, there could, for example, have been marks on the lens of the camera, or there could have been marks produced as a by-product of the printing process. Keogh’s advisers have never been provided with the negatives of the prints so, he said, it is not possible for him, as a specialist in forensic photography, to determine what or where the marks are.

Level of water in the bath

Dr Manock accepted that in the discussion of the proposed scenario in the courtroom, he was asked by the prosecutor to assume that the bath was two-thirds to three-quarters full. He also said that any opinion he expressed was dependent upon the accuracy of the information he was given. He also agreed that if the nostrils didn’t get under water then it would be very difficult to drown someone in that way. He then suggested, for the first time, that the head may have been turned to the side during the attempted drowning. He agreed that his scenario depended on the depth of the water, ‘and we don’t know what it is.’ He said that he did not go back to the photographs taken at the scene to check the level of water in the bath.

Mr Borick then put it to him that if, in fact, he had been asked to make the assumption, for the purpose of his scenario, that it was only a third full, ‘Well then, you would not have been able to present your scenario to the jury, would you?’ Dr Manock replied, ‘No, I wouldn’t.’

Mr Borick submitted to the Medical Board that the level of the water in the bath has now been investigated. The photographs have been examined closely and the scale of the image calculated using tiles on the wall that are of known dimensions. The bath was, in fact, only about one third full.

Anatomically impossible

Professor Henneberg in his affidavits to the Medical Board put the problems he saw with Dr Manock’s scenario of forced drowning – the scenario that the judge has so painstakingly described for the jury during the trial.

When Dr Manock had previously described this scenario at the committal proceedings, he told Mr David QC in cross-examination that he was ‘aware of an experiment where this had been carried out’. Pressed on where ‘this theory’ came from, Dr Manock replied that it was from three cases ‘in the UK around the turn of the century’ [meaning about 1900].

It turned out that what Dr Manock was referring to was the case of George Joseph Smith, whose crimes came to be known as ‘the Brides in the Baths’ murders. This was an English case (R v Smith – 1915) in which Smith had married a number of young women whom he subsequently drowned in the bath.

On finding out that ‘the experiment’ Dr Manock said he had read about was not described in a medical journal, Mr David sought more details:

Mr David: I’m sorry, did someone do an article, talking about drowning in baths, criminal drowning in baths and talked about these three cases, would that be correct?

Dr Manock: I think it’s a series from publications of famous British trials. 

Mr David: When you talk about an experiment, its an article from a series of British trials?

Dr Manock: Yes.

Mr David: I thought it was from a trial, is it a law book?

Dr Manock: Yes, a law book.

The questioning then shifted to Dr Manock’s experience in the subject:

Mr David: Have you yourself done any experiment of this kind?

Dr Manock: No.

Mr David: Have you spoken to anyone that’s done any experiments of this kind?

Dr Manock: I really don’t know that I can answer that truthfully. [41]

In his affidavit to the Medical Board, Dr Manock revealed that within a few days of the autopsy he had been visited by a detective. He wrote:

“I showed this Detective a chapter in a book titled ‘Five Famous Trials’ which was written by Maurice Moisewitsch. I explained to him a mechanism by which Anna Jane Cheney’s death could have occurred. [42]

Presumably this is the book Dr Manock referred to at the committal and what was shown to the detective was the section that was titled ‘George Joseph Smith’. The only comment by the author on the mechanism involved is:

“The simplest and most effective way to force someone under water – a method probably employed by Smith – is to raise the victim’s knees. [43]

Professor Henneberg told the Medical Board, that it was his professional opinion as an anatomist, that the whole scenario which Dr Manock had proposed was impossible. However, Dr Manock in his evidence then introduced the idea that Professor Henneberg did not allow for the fact that the person in the bath may have been taken by surprise by someone they trust. As Dr Manock said, ‘it may have been an intimate situation.’ Then, ‘it can work very easily because they are taken totally by surprise; their head is under water before they realise what’s happened.’

As Mr Borick said, when we see these refinements being placed upon further refinements, one feels bound to ask why the scenario had not been explained to the jury in that way. After all, one might think that in the course of a murder trial, all of the essential aspects of any theory would have been thoroughly stated and explored. The jury may well have inclined to the view that if they had known what we now know - that there was no microscopic support for the ‘thumb’ bruise; that there was no scientific support for the signs of drowning; that the airway could have been blocked prior to death; that the left hand now had to hold the head under water, and somehow also be used to drag the legs over - then they might have been inclined to agree that the whole scenario was just impossible. 

Endnotes

[1] Home Office Policy Advisory Board for Forensic Pathology and The Royal College of Pathologists: Code of Practice and Performance Standards for Forensic Pathologists, November 2004, p2. This Code is based on the previous Guidelines issued in 1996, and they in turn were based on the previous practices of competent pathologists.

[2] Payne-James J, Busuttil A, Smock W (eds), Forensic Medicine, clinical and pathological aspects, Greenwich Medical Media, 2003, p. 250.

[3] Transcript, second trial, at p. 150.

[4] Byard RW, Houldsworth G, James RA, Gilbert JD, ‘Characteristic features of suicidal drownings: a 20-year study’. American Journal of Forensic Medicine and Pathology 22 (2001) 134-8.

[5] Transcript, Medical Board hearing, at p. 339.

[6] Transcript, Medical Board hearing, at p. 340.

[7] Gee DJ, Lecture Notes on Forensic Medicine, Blackwell Scientific Publications, Oxford and Edinburgh, 1st edn, 1968, p. 146.

[8] Gee DJ, Lecture Notes on Forensic Medicine, Blackwell Scientific Publications, Oxford and Edinburgh, 4th edn, 1984, p. 131.

[9] Polson CJ, Gee DJ, Knight B, The Essentials of Forensic Medicine, Pergamon Press, 4th edn, 1985, p. 432.

[10] Sydney Smith & Fiddes, Forensic Medicine, 10th edition 1955, at p267-8; Glaister, Medical Jurisprudence and Toxicology, 10th edition 1957, p. 155.

[11] Camps & Cameron, Practical Forensic Medicine, Revised edition, 1971, pp. 317-8.

[12] Saukko & Knight, Knight’s Forensic Pathology, 3rd edition, 2004, p. 401.

[13] Pounder, Encyclopaedia of Forensic and Legal Medicine, MS NO: 133. ‘Death, Post-mortem Findings: drowning (including drowning mechanisms)’, 2004, pp. 4-5.

[14] Finding of inquest into the deaths of Storm Don Ernie Deane, William Anthony Barnard, Joshua Clive Nottle by the Coroner for South Australia, Mr Wayne Chivell, 25 August 1995; see also references to such omissions in Moles RN, A state of injustice, Lothian Books, South Melbourne, 2004.

[15] Payne-James J, Busuttil A, Smock W (eds), Forensic Medicine, clinical and pathological aspects, Greenwich Medical Media, 2003, p. 250.

[16] Riches KJ, Gillis, D, James RA. ‘An autopsy approach to bee-sting related deaths’. Pathology 34 (2002) 257-62.

[17] Transcript, committal proceedings, at p. 37.

[18] Transcript, committal proceedings, at pp. 39-40.

[19] Transcript, second trial, at pp. 222-3.

[20] Transcript, Medical Board hearing, at p. 292.

[21] Transcript, second trial, at p. 190. [Emphasis added]

[22] Transcript, Medical Board hearing, at p. 388. 

[23] Transcript, Medical board hearing, at p. 305.

[24] Tilstone WJ, ‘Where now for forensic science?’, Proceedings of The Australian Forensic Science Society, Volume 4, Number 1 (April 1986), pp. 12-23; see also Chapter Nine.

[25] A Powell, ‘It wasn’t my job to clear Sally Clark of murder’, Daily Mail (London), 7 February 2003, p. 37.

[26] R and Clark (no. 2) EWCA Crim 1020 (Kay LJ, Holland and Hallett JJ).

[27] Dyer, ‘Group to review babies’ deaths’, The Guardian, 27 June 2003; British Medical Journal 327 (2003) 10 – cited in Johnson P, ‘The Sally Clark case: another collision between science and the criminal law’. Australian Journal of Forensic Sciences 36 (2004) 11-33.

[28] Sally Pook, ‘Jailed mother sues pathologist over withheld evidence’, (Filed: 20/09/2005)

[29] Tilstone WJ, ‘Where now for forensic science?’, Proceedings of The Australian Forensic Science Society, Volume 4, Number 1 (April 1986), pp. 12-23; see also Chapter Nine.

[30] Transcript, committal proceedings, at p. 30.

[31] Transcript, committal proceedings, at p. 25. [Emphasis added]

[32] Transcript, committal proceedings, at p. 30. [Emphasis added]

[33] Transcript, committal proceedings, at p. 45. [Emphasis added]

[34] Transcript, first trial, at p. 457. [Emphasis added] 

[35] Transcript, second trial, at p155. [Emphasis added] 

[36] Transcript, Medical Board hearing, at p. 367. [Emphasis added]

[37] See Chamberlain v R (No 2) (1984) and Shepherd v R (1990). See also the judge’s summing up in this case (Chapter Four).

[38] See Stephen Odgers, Uniform Evidence Law, 4th edn, (2000), pp. 381-2.

[39] Perry v The Queen (1982) 150 CLR 580 (judgment dated 16 December 1982) at p. 612.

[40] Transcript, committal proceedings, at pp. 32-3, 43-4.

[41] Affidavit of Colin Henry Manock, Medical Board of South Australia, 23 June 2004.

[42] Moiseiwitsch M, Five Famous Trials, New York Graphic Society, Greenwich, CT, 1962, pp. 82-123 at p. 112 [Emphasis added]. The book looks at five trials in England, each selected for some strange quirk of human behaviour or some interesting feature of law. A more detailed description of the ‘experiment’ is in fact to be found in Browne DG & Tullett EV, Bernard Spilsbury, his life and cases, Penguin Books, Middlesex, 1955, pp. 96-7.

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