By Andrew L. Urban
The chronic, long term failure of the South Australian legal system to ensure that its chief forensic pathologist was suitably qualified to give evidence was a ticking time bomb that is now about to explode, with some 400 criminal cases needing to be re-opened, the largest volume of potential wrongful convictions in a single jurisdiction in history.
The Chief Forensic Pathologist in South Australia, Dr Colin Manock, was at all relevant times “unprofessional, incompetent, untrustworthy” according to documents lodged with the Supreme Court of South Australia. Dr Manock gave ‘expert’ evidence in some 400 criminal trials over his 26 year tenure, resulting in convictions which are now all deemed unsafe and require to be re-opened.
This is an unprecedented volume of potential miscarriages of justice for any jurisdiction let alone a sparsely populated state such as South Australia, says legal academic Dr Bob Moles, whose latest book (co-authored with Bibi Sangha), Miscarriages of Justice: Criminal Appeals and the Rule of Law in Australia (LexisNexis) has just been published (September 2015), with a foreword by retired Supreme Court Judge Michael Kirby. In the book, they argue that Australia’s existing appeals system does not comply with the rule of law provisions – nor with Australia’s international human rights obligations.
It was Sangha and Dr Moles whose expertise helped introduce new statutory right of appeal legislation in South Australia in May 2013. It was the first substantial change to the criminal appeal rights anywhere in Australia in 100 years.
Sangha says that while the legislation constitutes a major improvement to the fairness of the system, in jurisdictions where there is evidence of multiple miscarriages of justice – such as in South Australia – establishing a criminal review commission may be the best answer.
It is under this new legislation that Frits Van Beelen has moved to have his conviction overturned, 25 years after being freed from a 17-year jail term for killing teenager Deborah Leach on Taperoo Beach on July 15, 1971.
His legal team will assert Dr Manock was not qualified to give evidence at the trial, claiming that this is the “fresh and compelling” evidence needed to secure the appeal. Court of Criminal Appeal documents, lodged on September 9, 2015 by Michael Hegarty & Associates Solicitors, assert Dr Manock should not have been permitted to give evidence which was crucial to the prosecution case against Van Beelen, now in his late 60s.
“The opinion Dr Manock provided as to time of death, clearly accepted by the jury, was wrong. At trial it was the prosecution case, based on Dr Manock’s autopsy observations and his opinions, that the Applicant committed necrophilia on the body of the deceased immediately after killing her. That proposition was without factual or valid scientific basis …”
Van Beelen stood trial twice and submitted numerous appeals, including an appeal to the Privy Council in London, but his conviction for the murder was upheld. In 1974, a juror at the second trial claimed that the stress of circumstances and pressure in the jury room influenced their vote.
The Van Beelen case is only the latest to highlight the deficiencies in the work of Dr Manock. Criticism of Dr Manock’s testimony in the controversial Henry Keogh murder trial led to a historic appeal last year, and a retrial is set for May next year. That circumstantial case against him relied significantly on Dr Manock’s testimony, which the appeal judges have now rejected.
In 1992, a report profoundly discredited Dr Colin Manock’s forensic evidence which was used to help convince the jury of David Szach’s guilt as the killer of his lover Derrance Stevenson. Dr Manock’s evidence about the time of death was critical; Stevenson had been shot in the head and his body placed in a freezer. Dr Manock claimed certainty about the time of death; this was later discredited as an “invalid” conclusion.
Szach is now 55 and dying slowly from the effects of motor neurone disease – the one made world famous by Stephen Hawking. Before he slides into the abyss of this horrible disease, he wants his 1979 murder conviction officially quashed. After almost 14 years in prison (and attempts at appeal) he was released but when he applied for legal aid to mount a further appeal under South Australia’s new legislation (2013), he was refused. The damage continues.
Dr Manock’s testimony in the case of the deaths of three babies in 1992 and 1993 was thoroughly discredited in the 1994/95 inquest by the Coroner. In his conclusions, the Coroner stated that Dr Manock’s autopsies in these three cases had achieved “the opposite of their intended purpose”. They had closed off inquiries rather than opening them up. Once the deaths were diagnosed as resulting from natural causes, the police were unable to follow up on their investigations. The cause of death for each was given as bronchopneumonia, a basic lung infection, associated with other features.
During the inquest into the case of baby Billy, for example, Dr Manock said he could not recall why he did not weigh the lungs. He agreed that broncho-pneumonia was unlikely to have been the cause of death. He was unable to recall what he saw in the slides which had led him to this conclusion. The Coroner said that it was astonishing that a pathologist in his position had not seen fit to write it down. Dr Manock said he did not send the brain for examination, because he was waiting for something from the detectives, so that he could tell the specialist what to look for. The Coroner said that he was perplexed at this statement, as the specialist was perfectly capable of examining the brain without being told what to look for.
In a submission to the Solicitor General concerning Dr Manock, the lawyers for Keogh had stated: “…there is no documentary proof of Dr Manock’s clinical qualifications and expertise. It is clear that in at least his first two years of practice in South Australia, he had no formal qualifications as a forensic pathologist. So far as we are aware he did not make that fact clear in the various cases in which he gave evidence during that period. His experience in the UK before he was appointed to the position as a forensic pathologist in South Australia is at best uncertain. Various anomalies exist, including his claim as to his appointments at Leeds University, which do not accord with the records we have been able to obtain from Leeds.
“Despite our frequent requests, the Medical Board has consistently refused to check his qualifications.
“According to evidence given by his employer at the IMVS, Dr Jim Bonnin, the South Australian government of the time (1969) was desperate to obtain the services of a qualified forensic pathologist. Because of the dearth of suitably qualified applicants, Dr Bonnin said words to the effect that ‘we had to take a risk and we took it.’ With hindsight, it is clear that it was a risk which should not have been taken. Nor was there any real attempt made to deal with the problems which resulted from the acceptance of that risk.
“It is acknowledged that Dr Manock had no formal training in histology (an essential requirement for forensic pathology) and more importantly, he consistently refused to rectify the problem …”
Dr Bonnin told Sally Neighbour in a 2001 Four Corners story “I tried to encourage Dr Manock to study and obtain his membership of the Royal College of Pathologists of Australia because we had a man who had no specialist qualifications in a specialist’s job, and without that this would have been a severe embarrassment.”
Dr Manock is now retired. It’s up to South Australia’s legal system to deal with the hundreds of cases that recorded his unreliable testimony and to answer the question of how the entire system let so many doubts about his competence go unresolved for so long. What confidence can the public have in such a system? What safeguards are being put in place to prevent it happening again?
Ontario, Canada had a similar situation that made headlines in 2011 with discredited pathologist Dr Charles Smith.
Dr. Smith was considered a leading expert on pediatric forensic pathology from the 1980s to 2001. But he was found later to have made errors in 20 investigations, the majority of which led to criminal charges against parents or other caregivers. In most cases, they have since been cleared of wrongdoing.
Ontario’s response was to allocate $1 billion to build a state of the art forensic laboratory complex and introduce comprehensive training systems. Speaking in the wake of the scandal, Dr. Michael Pollanen, Ontario’s chief forensic pathologist said “It was immediately apparent to me and many other people that the pathway forward was going to be defined by education.”