"But there are two things, you might think, that are crucial to this case. If those four bruises on her lower left leg were inflicted at the same time, and that time was just before she died in the bath, there is no other explanation for them, other than a grip. If it was a grip, it must have been the grip of the accused. If it was the grip of the accused, it must have been part of the act of murder".

The Attorney-General has to accept that the prosecutor described Dr Manock’s evidence about the so-called grip mark as the one positive indication of murder and it was therefore crucial to the Crown case.

To say that it was the overwhelming strength of the whole of the circumstantial evidence that led to a conclusion of guilt is also inappropriate. As to the respective strengths of the various elements of the Crown case it must be agreed that the jury were obliged to base their verdict on the whole of the evidence. If some part of that evidence has been found to be defective, it is not permissible for the Attorney-General to say that “that bit didn’t really count”. If it were not probative (capable of proving the facts in issue) it would not have been admissible. If it was admissible, then the jury was legally obliged to take account of it. Because under Australian law it would be illegal to ask the jury what they thought of any single piece of evidence, it would also be improper for the Attorney-General either to speculate about it or to suggest that they had not been faithful to their oath which was to base their verdict upon the whole of the evidence.  

By saying that some of the criticisms of the way in which Dr Manock conducted the autopsy of Ms Cheney may be valid, the Attorney-General concedes all that needs to be conceded to overturn the verdict. It will of course be necessary for the Attorney-General to state which bits of Dr Manock’s procedures he is referring to.

To say that those defects do not matter because they were known to the Mr Keogh’s lawyers or expert pathologists at the time of the trial rather begs the question.

The important consideration is not whether they were known to Keogh’s lawyers or expert advisors but whether they were made known to the jury. If, for example, Keogh’s legal advisors had inadvertently or erroneously failed to bring such defects to the attention of the jury, then that might still justify the overturning of the verdict. However, neither Mr Keogh’s legal advisors nor expert advisors knew that Dr Manock was aware that the histology sample from the bruise on the inside of the left leg showed no signs of bruising under the microscope, because Dr Manock admits that he did not tell anyone of this fact. There were, in fact, numerous shortcomings of Dr Manock’s autopsy process which have only been discovered as a result of further research since the conviction and appeals were concluded.

To say that there was no deficiency in the prosecution’s disclosure, is astonishing.

In fact, the deficiencies in the prosecution’s disclosure will set new international standards in this regard. The Finding by the Coroner in relation to Dr Manock’s work in the Baby Deaths cases was extraordinary. He said that the autopsies had achieved the opposite of their intended purpose, that serious crimes may have gone unpunished as a result, that Dr Manock’s answers to some questions had been “spurious”, and that Dr Manock had seen things which could not have been seen. It would be hard to think of a way in which the criticisms could have been worse. Yet none of this was disclosed until after Keogh’s trial, because the Coroner admitted that he kept his Findings a secret until that time. The law makes it clear that information known to a judicial officer such as the Coroner must be deemed to have been known by the prosecutors and thus represents the most serious non-disclosure.

Also, Dr Manock did not disclose the negative result from a histology examination. A similar occurrence in the UK has recently resulted in the doctor concerned being struck off. Dr Manock did not disclose that he had not examined the medical history of the deceased. Even to this day the prosecution has still not disclosed to Mr Keogh’s lawyers the medical history of the deceased. The negatives of the autopsy photographs have never been disclosed, and photographic experts say that without these, the prints from them are not evidence of anything. Dr Manock did not disclose that the theory which led him to diagnose death by drowning, had never been published in any scientific book or paper, and thus did not constitute “scientific” evidence. The prosecution did not disclose the extensive prior criticisms of Dr Manock in many other cases.

The cases decided by the High Court of Australia make it clear that the duty on the prosecutor is to positively disclose such information and not to expect the defence to “fossick” around to try and find it.

The evidence referred to about the insurances and the so-called “lies” requires to be re-evaluated in the context of the deficiencies in the other evidence. As it has been said in the leading cases in Australia, if the jury knew about the weaknesses in the other aspects of the evidence, they might have evaluated related bits of evidence differently. There is clear authority to say that discredited pieces of evidence cannot be put to one side on the basis that there was still enough evidence to convict.

Clearly the Attorney-General has missed the point about the missing car. It is accepted by all concerned that the photo shows a car in the car port of the house. The point, however, is that there should have been two cars in that position.

The claim that it is a “specious suggestion” that there was insufficient water in the bath, has to be seen in the context of Dr Manock’s statement to the Medical Board that if the bath had only been one third full of water, he would not have proposed his scenario of forcible drowning to the police. It is true to say that other possible scenarios could account for a death, but again, the decided cases make it clear that a conviction cannot be upheld on any basis which was NOT put to the jury.

Mr Keogh’s evidence about Ms Cheney being found slumped forward with her face in the water, is unrelated to the possibility that she could have been forcibly drowned by having her head pushed backwards into the water. It seems incongruent that the Attorney-General is prepared to accept Keogh’s account of things if it works against him, but otherwise is happy to call him a liar.

Whilst there are some eye-witness accounts referring to the depth of the water as being half to three-quarters full, those observations were made at a time when the death was not thought to be suspicious. Eye witness evidence with regard to such matters is universally accepted as being inherently unreliable. However, the photograph of the water in the bath enables the depth of water to be calculated.

The point about the photograph being printed in reverse means that basic errors had occurred in the police investigation. Mr Keogh was denied the opportunity of referring to those at the time of his trial, because the facts on which they were based were unknown to him. He was therefore deprived of information upon which he could have cross-examined witnesses about their procedures. It was, for example, not revealed until after the trial that the DPP had never heard of the police Crime Procedures Manual. A shocking admission by any account.

The fact that the police on the night of the death and Dr Manock did not see a mark referred to in a photograph of the body is a peculiar way of trying to establish that it does not exist. We have Australia’s leading expert on the subject saying that the issue of anaphylaxis should have been examined and it was not examined. The fact that the Attorney-General has been able to obtain a contrary opinion from an anonymous expert who has given to him some secret opinion, also undisclosed to Mr Keogh or his medical or legal advisors, is clearly contrary to the most basic rules of Natural Justice. The Attorney-General should know that.

The suggestion that the appearance of the deceased’s face cannot have been altered at the scene because the allegation is inherently improbable is a strange way of dealing with the issue. We have reported to the Attorney-General the name of the person who has told others that it was done. The fact that the Attorney-General cannot think of a motive as to why such a thing would be done is unrelated to the probability of it having occurred.

After 3 years of an Inquiry by the Solicitor-General and 4 years by the Attorney-General, they still get it wrong. Yet they make it worse. The expert opinions which they are said to have obtained when considering the Petition have not been disclosed, nor have those experts even been identified. The reasons for rejecting the Petiton have not been disclosed even though legal professional privilege in respect of them has been waived by operation of law. The office of the Attorney-General first says that they will not release the reasons because of legal profesional privilege. Then when it is explained that privilege has been waived they say they no longer have a copy of those reasons. They have apparently been returned to the Solicitor-General who's office is not subject to FOI requests. If the Attorney-General's office has not retained a copy of the advice from the Solicitor-General, that would be most inappropriate. Plainly, there would be little point in Keogh submitting a further Petition, without knowing what "expert advice" could possibly offset the compelling advice which he submitted from leading Australian experts in support of his Petition.

Submissions to the Solicitor-General in support of the Petitions

Affidavits of Henry Keogh in support of his Petitions

For a review of the important legal principles which should have been applied in this case, go to:

General Principles common to Australia / UK / USA

The important principles in the High Court Australia case of R v Mallard

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