Forensic pathology and miscarriages of justice
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COMMENTARY
Forensic pathology and miscarriages of justice Stephen Cordner
Accepted: 5 April 2012 / Published online: 1 May 2012 Springer Science+Business Media, LLC 2012
Introduction The extremely disturbing miscarriage of justice reported by Pollanen in this issue of the Journal was one of a number in Ontario which led to the Goudge Inquiry [1], which reported in 2008. About 5 convictions (all in relation to baby or toddler deaths) came to be regarded as unsafe, and the character of other convictions had to be modified. The Goudge Inquiry probably represents the most thorough public evaluation of forensic pathology at any time, anywhere in the world. This is so even though the Inquiry was formally into the small sub-discipline of paediatric forensic pathology. I remain surprised at the paucity of academic comment on the Inquiry’s report and the related material it generated. There are a number of observations that flow from the Ontario experience: 1.
2.
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A sophisticated first world criminal justice system was not a sufficient protection against poor expert evidence, provided by a key individual for a sustained period, leading to repeated injustice. Prevention of a recurrence of this requires recognition that the failure is systemic, involving all actors (to different degrees) in the criminal justice system; after all, preventing wrong convictions is precisely what the whole investigation and court based system of proper process and review is designed to do! It is also a serious professional issue for those responsible for the maintenance and oversight of
S. Cordner (&) Department of Forensic Medicine, Monash University; and Victorian Institute of Forensic Medicine, 57-83 Kavanagh St, Southbank, VIC 3006, Australia e-mail: [email protected]
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standards and training in forensic pathology. This is essentially another form of systemic failure. Finally, and obviously, it is a terrible failure of the individual involved.
Justice Goudge, in the view of this author, got it right and concentrated mainly on the first three of the above. Of course, the pathologist involved failed; but the pathologist could also legitimately ask: How is it, if I was so wrong, and as often as you say, that the criminal justice system allowed it to happen? The death investigation system let me do what I was doing. It was not entirely, or even mainly, my fault. It was also because coroners, police, prosecutors, defence lawyers and courts failed that people were wrongly convicted. Was I supposed to set up QA programs myself, in advance of anyone else setting up such programmes, in this tiny, essentially solo area of forensic practice; was I supposed to oversee myself to make sure I was participating in them; nobody said to me, that as I had no forensic pathology training or qualifications, I should not or could not do complicated forensic pathology cases; quite the contrary, the system welcomed my participation wholeheartedly; nobody seriously challenged me in court and if they did, it made no difference; defence patholog
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