12 Apr 2016

Forensic pathologists 'critical' to defence

5:44 am on 12 April 2016

A declining number of forensic pathologists in New Zealand is likely to throw further doubt over people's ability to get a fair trial.

One of the six forensic pathologists in New Zealand will retire in June, but defence lawyers are already having to go overseas to find experts who can challenge the Crown's evidence in cases as serious as murder.

Scientist viewing a DNA sequence.

Photo: AFP / Cultura Creative

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Independent forensic consultant Anna Sandiford took a call just last night from a defence lawyer asking whether she knew a pathologist who could go and view a body alongside the expert already lined up by the Crown.

"Unfortunately I can't do that because there is nobody here to do that ... that's the second call I've had in as many weeks," said Dr Sandiford.

"If somebody wants the opportunity to be able to do that, they're not currently afforded that opportunity."

In this case, the safeguard was that the autopsy report from the Crown's expert will be reviewed later by another pathologist.

But Dr Sandiford said having a defence expert see the body was better, as it was a more transparent process if two people witnessed the body.

The lack of defence options doesn't stop there.

Auckland barrister Simon Lance recently ran into trouble while looking for a forensic pathologist for a murder trial.

"I approached firstly [veteran pathologist] Martin Sage who I had used once before, but he was too busy," said Mr Lance. "He recommended someone in Palmerston North, and again I had a helluva job getting through to that person but finally did, and she also said she was too busy.

"I was trying to get someone out of Auckland rather than have someone in Auckland just down the corridor from the Crown pathologist."

In the end he used Anna Sandiford's firm to get hold of a UK expert, though in the meantime an Auckland pathologist also came through.

The pathologist's two reports were crucial in Matthew Edmonds eventually being acquitted of murder but found guilty of manslaughter last December, Mr Lance said.

"This is often very, very critical evidence. It may affect your advice to your client as to their plea and whether they should be continuing with a not guilty plea or potentially looking at pleading guilty," he said.

"So it's very, very critical evidence and as the months tick by you can sense a frustration within the court when you say, 'well, I'm not ready'."

Chief pathologist Dr Martin Sage

Dr Martin Sage Photo: POOL

Typically, the Crown had the first say on what medical, ESR and other experts they wanted to use in their case, while the defence had access to whoever was left.

It was proving especially hard to find pathologists in child abuse cases.

Last month in Rotorua, in early hearings for two people charged over the death of a Taupo toddler,a frustrated judge said he might order an inquiry into the country's whole pathology system if the defence was unable to get a forensic pathologist's report.

The defence in that case is able to get a report only by going to a UK expert found by Dr Sandiford.

She founded her firm to play just this kind of backstop and could be about to get busier. Dr Sage, of Christchurch, last week told RNZ News the Crown-funded pathology service was on the brink of a catastrophic unravelling] due to overwork, with D-day in June when a colleague would retire.

Criminal Bar Association president Noel Sainsbury said the government must do more.

"There are no votes in being seen to be assisting those who represent criminals," said Mr Sainsbury. "But that's a very mistaken and misguided belief.

"We need to have an efficient criminal justice system and it needs to be properly resourced. The alternative is that cases are run without the jury or judge having access to all the relevant information. That leads to miscarriages of justice."

The "CSI factor" - people's TV-fuelled faith in scientific advances to prove guilt or innocence - was also adding to the pressure, he said.

But even as more scientific evidence is being used in courts, it's also being increasingly overturned, at least in the US, where a big pushback is underway challenging virtually every aspect of such evidence, including fingerprinting.

Mr Sainsbury said this demonstrated how vital it was that both sides have access to quality experts.