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Gut instinct leads to justice pain

Gut instinct leads to justice pain

Jonathon Manley - Enemies without cause
Jonathon Manley – Enemies without cause

Imagine the pain of a baby’s death, then the father is falsely convicted of murder. Jonathon Manley’s story exposes another Australian miscarriage of justice case. Dr Bob Moles reviews the book

‘Gut instinct’ leads to justice pain

Review by Dr Bob Moles of Networked Knowledge

 Jonathon Manley, Enemies Without Cause: Convicted, Imprisoned, Innocent
Harper Collins 1998 ISBN 0 7322 5972 X

 At the age of 37 life seemed to be going well for Jonathon and his family. The children were Harry, one year old, and April, 4 years old. Jonathon worked as a product manager for a large manufacturing company and Mary, his wife, was a full time casual social science teacher at a local High School in Sydney.

One morning they found their young son appeared unwell, and within 24 hours he had died. In the middle of their grief they were shocked to find that Jonathon was accused of causing Harry’s death. It was said that he had died from a blow to the abdomen which caused internal injuries, leading to peritonitis and death. It was also alleged that Jonathon had put his hand across the face of his young child to prevent him from crying and this had led to asphyxiation.

Jonathon had said in a police interview that he had been with Harry when he was restless early one morning some 36 hours before he died. It subsequently transpired that expert medical witnesses would state with some degree of certainty that the assault had occurred at 36-48 hours before death. The same experts would say that there were marks on the face consistent with an adult handprint. (The Court of Appeal would later say that without this admission by Jonathon, there would have been no case against him).

The defence case was that the medical experts for the prosecution had ventured beyond their area of expertise and that it was not acceptable to interpret marks to the face on the basis of photographs instead of the more direct evidence of histology (tissue slides from areas of alleged bruising). The alternative explanation for discolouration of the face was that it was post mortem lividity. The prosecution case was said to have been based upon ‘speculation’.

The trial lasted 5 weeks and the summing up 2 hours which was relatively short. The jury found Jonathon guilty of murder. It was said that they were confused by the medical evidence and probably thought at the end of the day that someone had done it so Jonathan was most likely. Not quite ‘beyond reasonable doubt’ but perhaps, they might have thought – a reasonable compromise.

The main part of the book is taken up with Jonathon’s account of his life in prison; how he coped with the alienation from his family and friends which the prison routine imposed upon him and how he coped with managing his own and their expectations in this new and uncertain environment. There is no doubt that life in prison can be tough, and especially so for a person who has been wrongly convicted.

Jonathon had his faith in God, which was shaken at times and reinforced at others. He explains that he made himself a small target whilst in the various remand centres and prisons to which he was assigned. He tried to be friendly with all, non-judgmental about others and to keep focussed on his family, his appeal and his faith. To anyone unfamiliar with the experience of those in prison, this is certainly worth reading. The mind-numbing routine. The constant threat of possible and unpredictable harm from others. The irrationality of when and how favourable treatment may be granted or withdrawn.

Overshadowing all of this is the unpredictability and inexplicable delays which the legal process involves. When one says that there was about one year between the jury verdict and the appeal, that might sound to any ordinary person to be ‘not bad’. Indeed, in the recent case of Gordon Wood (also in NSW) the delay was three and a half years. Reading this book makes one year sound and feel a lot longer. To imagine that period and experience being extended to 19 years as has happened in the case of Henry Keogh in South Australia, defies belief.

When Jonathon decided not to attend court for his appeal I admit to feeling surprised. Yet I ought not to have been. I have come across many other cases where prisoners have said that the experience of leaving prison, attending court, managing hopes and expectations and the inevitable disappointments all becomes too much. The indignity of strip searches before and after leaving prison. The loss of benefits due to an absence from prison seems hard to comprehend but is obviously real. It is not an uncommon decision for prisoners, but emphasises the difficulty which even empathetic outsiders experience in trying to truly understand the situation of those wrongly convicted. I was struck by the small comment that ‘we have no mirrors in prison’.

Jonathon spoke of his disappointment when Justice Kirby was not assigned to his appeal as had been expected. He referred to the comment by Kirby J at a Seventh Day Adventist Conference that there may be many Chamberlains (as in Lindy Chamberlain – innocent person) in prison.

The appeal was heard in 1994 and the discussion of the unpredictability of the process and potential outcome is quite harrowing, especially for anyone who likes to believe in the predictability and clarity of the law and its processes. It is ironic that an obviously innocent person such as Jonathon was quite shocked when told that he had been acquitted, it being said that the jury’s verdict was ‘unsafe and unsatisfactory’ (which is actually the British rather than the Australian test).

The appeal court found that the experts ought not to have relied upon the photographic evidence rather than more direct evidence (histology) which the court said was inherently more reliable (p216).

The appeal court said, citing Chamberlain, that a fact inconsistent with the Crown hypothesis will bring the case down.

The prosecution said (on the basis of tape recorded conversations from bugs placed in the family home) that an absence of discussion about how the death was caused might be consistent with a guilty mind. The court thought it was more likely the thought processes of people who were confused and traumatised, and unquestioning about medical reports and medical experts.

Clearly Jonathon thought that the case was based upon the ‘gut instinct’ of investigating police who then ‘shopped around’ for an expert who was willing to support their hypothesis.

The book takes us up to 1997-8, when Jonathon speaks of the need to pursue an action for malicious prosecution to obtain compensation or an ex-gratia payment which he obviously thought to be inappropriate for someone who had been acquitted. He spoke favourably about the then shadow attorney-general John Hannaford who was pressing for compensation and the establishment of a Criminal Cases Review Commission. Indeed, Jonathon finishes his account on a fairly optimistic note about the legislation which Hannaford had put to the parliament to establish the right to compensation and a CCRC.

In 2013, similar moves were made in the South Australian parliament to establish a CCRC.

To date, the issue of compensation and a CCRC has failed to progress any further in any of the Australian states. No doubt it is something which will come up again, especially in the light of the recent Gordon Wood and Jeffrey Gilham cases in NSW. It is understood that Wood, after spending over three years in prison between conviction and appeal, will be pursuing legal action to obtain compensation after he too was acquitted.

Reading this account has a special poignancy in the light of more recent experience of baby deaths in Australia and the UK and the controversies which have arisen over the diagnostic issues involved. Kathleen Folbigg is one case which has attracted special attention in NSW and the tragic case of Sally Clark in the UK is also well known.

ENDS

 This review initially featured on the Networked Knowledge Book Reviews Homepage

Review by Dr Robert N Moles, a former Associate Professor of Law at Adelaide University,  Phd from the  University of Edinburgh, taught at Queen’s Belfast and at the ANU in Canberra. Author of five books (details from Homepage) in the miscarriage of justice and rule of law area.

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