Lies and Lawyers

Just been reading the Veritas report regard Mr John Day. Readers will recall that various allegations were made against him during Dr Moyano's trial, and as he was not called as a witness by either side, those allegations were allowed to stand; a matter with which even the judge expressed surprise.

If Mr Day had appeared in Court, it would, of course, be his word against Dr Moyano and the lawyer making the accusations on her behalf. Where the Veritas report is so much better is that the authors have access to background checks, they seek, time and time again, to verify from external and uncontestable sources what the truth of the matter was.

Example 1:

Dr Moyano recollected that after leaving the operating theatre she telephoned Mr Day again because she was not happy with his advice. He does not remember receiving this call and the hospital phone log does not show any calls to his mobile or consulting rooms at that time.

Example 2:

It was suggested at the trial that Mr Day left the hospital to see patients in his private consulting rooms eight to ten minutes drive from the hospital. Mr Day's private Tuesday afternoon clinic ran from 2.30pm, but he had patients booked from noon that day. Mr Day told both us and police that he had phoned his secretary during the morning list to cancel these appointments. His mobile phone records and the phone records of the hospital show that a short call using the hospital phone was made to his private rooms at 12.02pm and a shorter one on his mobile at 12.10pm. His private clinic diary for 17 October shows that the appointments of patients booked in before 2.30pm were cancelled. The first of these patients has written to confirm that she recalls arriving for her noon appointment and being told by the receptionist that it had been cancelled, with the receptionist apologising that she had not been able to contact her before she left to come to the clinic. This fits with Mr Day's mobile phone call to his secretary at 12.02pm.

They note that "the only evidence that Mr Day wanted to leave early comes from Dr Moyano and is contradicted by the stronger evidence that Mr Day cancelled his pre-clinic appointments and remained in the day surgery unit until Mrs Rourke was in theatre."

Example 3:

Was Mr Day speaking constantly on his mobile phone while he was in the operating theatre? This criticism is based on comments in Dr Moyano's statement. Other people in the operating theatre made no mention of this in their statements and no one could remember this behaviour. Mr Day's mobile phone records for 17 October show that the only calls he made on it that day before leaving the hospital were one to his home at 12.05 pm lasting less than two minutes, one to his private rooms at 12.10pm referred to in section 7, which lasted for 10 seconds and one at 12.33pm lasting 23 seconds which was unrelated to the events of the day.

It seems to us that others present on the day would have noticed if Mr Day's phone was constantly ringing. They have no such memories. The only calls Mr Day made from his mobile that morning were during a 10-minute period between patients. The weight of evidence is against the allegation that Mr Day was constantly on his mobile phone.

Would the Court case regarding Dr Moyano have been adversely effected had these checks been part of the record? It is impossible to say, but it is very clear that the allegations made in the Court case against Mr Day were based upon one individual's recollection - Dr Moyano - and for whatever reason or motive, these recollections were massively incorrect. 

I'm not going to say she was lying, because the memory can play tricks, especially when stressed, and the work of Elizabeth Loftus on False Memory Syndrome demonstrates conclusively that a vague recall (perhaps mixed with other memories) can harden into certainty by going over the memory again and again, something which she would certainly been asked to do. But clearly allegations were made which it was possible to check on - phone records, appointment diaries etc - and it was extremely lax for them to be left standing unchallenged in Court.

It was not for the Dr Moyano's defence to check on the veracity of the statements. Acting on her behalf, it was quite proper for them to take what she said at face value. But the prosecution - Crown Advocate Howard Sharp - clearly failed to investigate these claims.

In summing up, he asked four questions

Did Dr Moyano owe Mrs Rourke a duty of care? Did she breach that duty of care and expose Mrs Rourke to risk of death? Was that breach a cause of death? And was Dr Moyano's conduct so bad in all circumstances that it amounted to a criminal act?

The fifth question was left unsaid: Was the mitigation by Dr Moyano's lawyer that Mr Day failed to provide proper supervision and support justified, or was it her memory at fault?

The question not asked, or even raised by Advocate Sharp, meant that the allegations against Mr Day were unchallenged, and therefore presumed to be true. It would be extremely odd if this mitigation argued for by the defense was not in the minds of the jury when they left to deliberate.

Perhaps Advocate Sharp would now like to explain why he did not challenge the evidence, or even perhaps call Mr Day?