Ms Vicky Chapman Attorney-General and Deputy Premier Parliament of South Australia [email protected] 5 December 2020 Dear Attorney-General Dr Manock and the case of Derek Bromley Background My name is Satish Sekar. I have an interest in justice issues, including forensic sciences stretching back over three decades. I have worked on a number of leading cases which have involved close collaboration with some of the most senior lawyers in the UK and with the police and leading forensic experts over many years. I have been involved with films such as In the Name of the Father, television programs such as Panorama, Trial and Error and Law in Action, and newspapers such as , and . In particular, I played a leading role in helping to overturn the convictions of those who were wrongly convicted of the murder of Lynette White variously referred to as the Three (or sometimes the Cardiff Five). I have had four books on these issues published to date - – the latest is about forensic pathology (see Appendix One, which accompanies this letter). My fifth book will be launched in February.

Contacts In recent weeks I have brought together a significant number of people who have been involved with the issues of wrongful convictions from a number of different countries in Zoom conference sessions which are available from the Fitted-In Project’s YouTube channel. They included some of those who had been wrongly convicted as well as some of the forensic experts who have taken a leading role on these issues, particularly in the UK, Canada and Australia. We were particularly disturbed to learn of the developments, (or perhaps lack of developments) with regard to the issues arising from the South Australian experience with Dr Manock.

Dr Manock

I am aware that Dr Manock was engaged as the Chief Forensic Pathologist in South Australia in 1968. I know that Dr Bonnin of the South Australian Forensic Science Centre (then called the IMVS) had given evidence in civil proceedings involving Dr Manock in the mid-1970s. His evidence was to the effect that Dr Manock was not properly qualified to certify cause of death in cases of suspicious or unknown deaths because he had no training in histopathology – an essential diagnostic tool for a complete autopsy. He also stated that Dr Manock had no ‘expert qualifications’ which meant that he had not acquired ‘specialised knowledge’ as a result of study or training. The obvious inference was that under South Australian law he was not entitled to conduct or complete autopsies on his own or to appear in court to provide expert opinion evidence. Yet, it is clear that Dr Manock continued in his position up until the mid-1990s. During that time the record shows that he was involved in helping to secure over 400 criminal convictions and that he also conducted over 10,000 autopsies. As a researcher, interested in the comparative analysis of the institutional responses to wrongful convictions in various common-law countries, this situation gives rise to a number of issues which appear as yet to be unresolved. They are as follows:

Dr Manock’s Fellowship of the College of Pathology Dr Manock was given this certificate without having to undertake any proper study, training or examinations which normally took place over a minimum period of five years. That would have been the equivalent of an undergraduate and master’s degree for many subjects these days. It was said that Dr Manock was given the Fellowship because of the seniority of the position to which he was appointed. That was not good enough. He subsequently gave evidence in criminal proceedings, merely stating that he was a Fellow of the College of Pathology without explaining that it did not represent that he had engaged in any study or training. His use of this certificate in those proceedings was clearly misleading, and the appropriateness of his acquisition of it and his use of it requires further investigation. The effect of his omission of essential context on convictions deserves to be reviewed.

The Forensic Science Centre in Adelaide (FSC) formerly known as the IMVS It is clear that the FSC is a ‘government instrumentality.’ It has yet to be determined why the South Australian government through the FSC permitted Dr Manock to conduct and complete autopsies on his own when it was clear that it was known that he did not have the necessary skills or training to do so. It is clear from the evidence given to the Medical Board that Dr Manock did in fact complete the autopsies in which he was involved on his own. It should also be determined why the FSC permitted Dr Manock to prepare and submit autopsy reports to investigators and prosecutors when it was known that they contained (either expressly or by implication) material misrepresentations as to his qualifications and knowledge. In particular, the reports must have represented that Dr Manock was qualified to determine cause of death, when the FSC knew that he was not in fact so qualified. It has to be determined why the FSC permitted Dr Manock to attend court and coronial proceedings to provide expert opinion evidence when it was known by the FSC that he was not in fact qualified to do so. In Britain, when the Court of Criminal quashed the convictions of Judith Ward in the early 1990s, the judges said: “This Court will not tolerate convictions secured by ambush.” That case set the standard on non-disclosure. I hope that you will agree with me that it is impossible to conclude that convictions secured without disclosing the full set of pertinent information on Manock referred to above and below to the defence were not secured by ambush. I hope that such practices outrage you as much as they outrage me.

The Coroner of South Australia It should also be determined why Dr Manock was instructed by the Coroners of South Australia to conduct post-mortem examinations when it was public knowledge that he was not qualified to do so. It was stated in evidence to the Medical Board that ‘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.’ Equally, it may be asked of the various Coroners, why they accepted Dr Manock’s evidence in Coronial proceedings with regard to cause of death, when it was known by the relevant bodies that he was not properly qualified to provide such opinions.

The Department of Public Prosecutions in South Australia When Dr Bonnin stated in his evidence to the Supreme Court in South Australia that Dr Manock did not possess expert qualifications, the clear inference was that he was not qualified to give expert opinion evidence in court proceedings. The fact that Dr Bonnin had expressed that view became an issue which would have required prosecutorial disclosure in subsequent legal proceedings or any convictions would have been secured by ambush. Justice Brian Martin in the Board of Inquiry into the conviction of Mr David Eastman made it clear that if criticisms had been raised about the qualifications, experience or knowledge of a potential expert witness by another credible expert, then that criticism must be disclosed to the defence in any subsequent legal proceedings. Indeed, the legal authorities make it clear that the duty of disclosure by the Crown is not just to the accused, but ‘to the court’. Of course, I am mindful that it was stated in the High Court of Australia in the case of Mrs Emily Perry that the evidence of Dr Manock was ‘not fit to be taken into consideration’ and that the Crown should use people who are ‘substantially’ and not just ‘nominally’ experts in their field. Subsequently, the Coroner in the Baby Deaths cases was severely critical of Dr Manock’s work. He said his autopsy reports achieved the opposite of their intended purpose in that they closed off lines of inquiry instead of opening them up. He said that Dr Manock had claimed to have seen signs relevant to a perceived cause of death which could not have been seen, because they did not exist. He also said that Dr Manock had given answers to question on oath which were spurious, which means ‘not honest’. Finally, in Henry Keogh’s appeal, the court found, amongst many other criticisms, that Dr Manock’s evidence was false and misleading on important issues, that it had been based upon speculation and was inadequate in material respects. This occurred after Mr Keogh had been convicted by a most shameful ambush.

The Legal requirements in the context of miscarriages of justice I am also mindful of the statements in the Australian cases which say that to secure a wrongful conviction by providing evidence which is known to be false or misleading is ‘an unspeakable outrage’ – ‘an extremely grave criminal offence’ – or ‘a species of criminality at the extreme end of the spectrum of official corruption’. It would appear that Dr Manock, in the course of dissecting the bodies of 10,000 persons, did so knowing that he was not qualified to determine cause of death in each case, and therefore, the only legitimate explanation for such conduct is that he would have committed a serious criminal offence in each of those cases. It would appear that Dr Manock, when he turned up at court to give expert opinion evidence in criminal trials, must have known that he was not in fact qualified to do so. At the very least, he would have known of the statements made by Dr Bonnin in his civil litigation, and of the High Court in Mrs Perry’s case and that he would have known that he had an obligation to make disclosure of those statements to the defence and ‘to the court’ in each of those cases. His representation of himself as an expert in these circumstances, and his failure to make full disclosure of his correct status in each case, being false and misleading, would constitute grounds for concluding that he had committed an unspeakable outrage or an extremely grave criminal offence in each case.

The case of Derek Bromley I am of course interested in the case of Mr Bromley which is, as I understand it, being prepared for appeal to the High Court of Australia. It gives rise to what I perceive to be an important procedural issue which is a matter of public interest. If on the application for leave to appeal to the High Court, the prosecution acts in accordance with its duty of disclosure ‘to the court’, it would be obliged to disclose that Dr Manock was not in fact an expert when he purported to give expert opinion evidence at Mr Bromley’s trial, and therefore his evidence should not have been admitted. If that is so, then there can be no doubt that the false and misleading evidence of Dr Manock as to his status (that he was an expert) constituted an appealable error, and the appeal would have to be allowed. The fact that Mr Bromley’s counsel chose to withdraw that issue from the consideration of the court on the appeal does not obviate the necessity of the prosecution to fulfil their duty of disclosure to the court on this issue. If that is so, then of course it would be unnecessary for Mr Bromley to spend another year or more in prison whilst the appeal to the High Court is under way. If the Crown were willing to concede the preliminary point in advance of the High Court proceedings, then a separate application can be made for the matter to be re-listed for hearing before the Court of Criminal Appeal in South Australia. The legislation allows for there to be a ‘second or further appeal’. Such a concession by the Crown would amount to there being ‘fresh and compelling evidence’ of a substantial . It should be noted that prosecutors in South Australia are committed to acting as ‘ministers for justice’ and ‘model litigants’ which entails acting in a timely and cost-effective manner and not putting other parties to unnecessary proofs of issues which should be conceded. In this context, an important lesson can be learned from the experience of the case of Farah Jama in Victoria. Once the prosecutor identified that there had been an appealable error, he contacted the court registry and asked for the appeal court to sit to hear the matter as a matter of urgency. The court then sat on the next working day. The judgment of the court consists of a single sentence: “The Court, having read the materials filed by the parties and having considered the submissions and concessions of the Crown, is satisfied that it is appropriate to order that the conviction relating to the applicant be set aside and a verdict of acquittal be entered.”

It is hard to see that the resolution of Mr Bromley’s case should be any more complicated than that.

The resolution of the issues raised I do understand that you have publicly stated that: Dr Manock’s evidence as an expert was relied upon. It was completely unreliable, in fact manifestly so, for the purposes of making it simply unsustainable to have a conviction be maintained. Clearly, this was a person who for whatever reason had been appointed, you know, decades before who was discredited and dismissed and his evidence wholly, you know, rejected in that way. 2 July 2018. [my emphasis]

That was clearly correct. I also understand that your current position is that the outstanding matters can be dealt with by the police and the prosecutorial authorities in South Australia, and that it would be inappropriate for you to intervene in those processes. However, with the greatest respect, I would venture to suggest that is not an adequate response. There have been a significant number of cases in the US, Canada and the UK in which deficient experts have been identified, and their conduct has been examined by commissions of inquiry, and by various judicial inquiries and professional bodies. Nevertheless, there has never been any previous case (in Australia, the UK, Canada or the USA) in which an expert of Dr Manock’s apparent standing has been identified in formal legal proceedings as incompetent and unqualified and then continued to be used by the state in criminal proceedings without the court being informed of those deficiencies. Once the deficiencies in relation to Lawyer X were brought to the attention of the authorities in Victoria, they immediately appointed a Royal Commission to inquire into the matter. I understand that arising from that Commission an independent investigator is to be appointed to consider the possibility of criminal charges being brought. It seems to me that a similar approach would be advisable in relation to the Dr Manock issue. The suggestion that the police and prosecuting authorities in South Australia can take charge of this issue clearly represents the clearest possible conflict of interest. It is those authorities who have used the evidence of Dr Manock to secure hundreds of convictions over the years in circumstances where it was clearly inappropriate to do so. Leaving the matter in their hands would be equivalent to asking the bishops and cardinals to sort out the issue of institutional child sexual abuse, or asking senior bankers to examine the financial abuses which clearly occurred on their watch – something I have had personal experience of more than once. The suggestion in your recent correspondence that you should not interfere with police and prosecutorial discretion is clearly appropriate in relation to the conduct of individual cases where there is no reason to suspect that these issues may have affected the course of justice, but that does not and cannot apply to all cases. I note that in relation to the issue of Mr Nemer and Mr McGee the Attorney-General of the day did invoke special procedures to help determine if matters had been properly conducted. With respect, that must apply to Mr Bromley’s case. It is self-evident that in the case of Dr Manock, proper procedures have not been followed and the question of the outcomes in 10,000 autopsies and over 400 criminal convictions have been brought into question. Given the growing international interest in this issue, it is in my view only a question of time before a special inquiry is established. No doubt the overturning of the conviction of Mr Bromley will provide a powerful stimulus to that, whether through the shortened appeal procedure or the more-lengthy High Court procedure. The overturning of the Bromley conviction after he has served over 37 years in prison will establish a new record for the length of time served prior to the recognition of a wrongful conviction in Australia, Britain and Canada. Given that he is indigenous, and that the evidence given at his trial was so evidently suspect, even at that time, I have little doubt that the legal institutions in Australia will need to demonstrate a significant commitment to resolving the issues of wrongful convictions as has occurred in both the UK and Canada. After the overturning of the scandalous convictions in the IRA bombing cases, the UK established the Criminal Cases Review Commission which has now been responsible for the overturning of some further 450 wrongful convictions. When the Canadian case of Dr Charles Smith was resolved by the Judicial Inquiry of Justice Goudge, the authorities in Ontario spent over $1 billion in establishing a new forensic science centre in Toronto. It is clearly important to maintain public confidence in the rule of law and in our institutions of justice. The head of the World Bank recently said that confidence in the rule of law was one of the key factors in maintaining confidence in our economic systems. The rule of law in South Australia is in my view in the process of undergoing a serious challenge and as yet, there are no signs of an effective response to that challenge. As the most senior law officer in South Australia, I respectfully request that you consider addressing these issues in a proactive manner, and that you consider obtaining independent advice as to the best means for their resolution.

Yours Faithfully,

Satish Sekar Author/Consultant/Journalist Cc: The Premier the Hon Steven Marshall - [email protected] The Leader of the Opposition the Hon Peter Malinauskas - [email protected] Shadow Attorney-General and Minister for Indigenous Affairs the Hon Kyam Maher - [email protected] Presiding Member of the Crime and Public Integrity Policy Committee the Hon Frank Pangallo MLC - [email protected] The Minister for Police and Correctional Services the Hon Vincent Tarzia - [email protected] The Director of Public Prosecutions, Martin Hinton QC - [email protected]