Channel 7 - Today Tonight (Adelaide)
The DPP [Mr Paul Rofe QC] Full Interview - Keogh Case 27 June 2002

This version of the transcript has been edited by Dr Robert N Moles

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This is the transcript of an interview with Paul Rofe QC, the Director of Public Prosecutions in South Australia. It is the full transcript of the interview, without any editing, other than the addition of comments, and the exclusion of comments in relation to one third party (Dr Byron Collins). Mr Rofe is being interviewed by Rohan Wenn of the Channel 7 Today Tonight television program in Adelaide. The interview was recorded on camera at the Channel 7 studios on 27 June 2002. The comments have been written by Bob Moles. Remember that Mr Rofe was the prosecutor in the case of Henry Keogh.

Rohan Wenn:

Well firstly, why do you believe that Henry Keogh was found guilty of the murder of Anna-Jane Cheney?

Mr Rofe:

I think it was a combination of a lot of evidence that was led at trial and in a large part a jury assessment of his own evidence which was quite lengthy which they obviously rejected.

Rohan Wenn:

So how important do you think was the evidence relating say to Henry's affairs?

Mr Rofe:

Oh it each had its own bit of importance. I mean no one piece was definitive if I can use that word. Probably the most telling piece of evidence was the lies that he told in evidence that he was caught out on.

Rohan Wenn:

The lies in relation to the affairs or the insurance policies?

Mr Rofe:

The insurance policies.

Rohan Wenn:

How important was the discovery of those policies and the fact that they were used as part of the trial?

Mr Rofe:

They were very important, both what he said about them and certainly didn't come clean about them at the beginning, and it only emerged in dribs and drabs. And then he lied about what he'd told Anna-Jane about them in the course of his evidence and that was clearly demonstrated.

Rohan Wenn:

The defence argued at the time that he was upset about the death, that some of the people he was talking to didn't want to give specific information to, what did you make of that?

Mr Rofe:

I mean that was their explanation. It was there to be accepted or rejected by the jury. Again, clearly rejected.

Rohan Wenn:

How important to you was the forensic evidence?

Mr Rofe:

I think I said in my final address to the jury that the forensic pathology wasn't going to provide the answer. I mean it was necessary and important background. I mean accidental death was obviously something we had to disprove and to that extent it rendered the death, at least, very suspicious. As indeed we said, you know, a fit and healthy 29 year old girl doesn't drown in the bath. And Dr James, for example, had never come across such a case and even Professor Cordner conceded that that rendered the death suspicious and it required further investigation, which was then undertaken, whereupon the insurance policies and the affairs and the like came to light.

Comment: The Advertiser of June 18 1996 contained the following article. It will be noted that this was reported in the main paper circulating in Adelaide, shortly after Mr Keogh's trial and prior to his appeals. It is surprising therefore that Mr Rofe and Dr James would both say that they had "never heard of such an instance'.

Woman Drowns Taking Bath

A healthy young woman drowned while taking an early morning bath when she fell asleep after a night socialising with friends, a coronial inquest has found.

Jody Louise Ryan 22, spent the previous night at home with a few friends - a quiet night chatting and drinking bourbon and red wine.

Glebe Coroner's Court heard yesterday a flatmate found Miss Ryan immersed in the bathtub of their Clovelly home about 7.20am on Saturday May 27 1995.

The bath water was still luke-warm. It is believed the young woman, who worked for a communications company, had fallen asleep.

Her death shocked and perplexed Miss Ryan's parents John and Denise - their daughter was fit and healthy, a former State champion swimmer and runner.

However, coroner Mr John Abernathy said he was satisfied there was no foul play involved after hearing evidence from Miss Ryan's flatmates, paramedics and the police.

"The overall pattern of injuries was consistent with the consumption of alcohol' Mr Abernethy said.

A post-mortem examination found Miss Ryan had a blood alcohol level of 0.13 the inquest heard. [Emphasis added].

The Interview continues:

Rohan Wenn:

How much confidence did you have in Dr Manock?

Mr Rofe:

Um, well he was the senior forensic pathologist and had been for some time. He'd given evidence in a number of cases that I'd been involved in and he'd conducted something in the order of 8 or 9,000 post mortems. I reviewed his evidence like I would any other witness and there was an area that concerned me that I asked Dr James to review his findings and indeed called Dr James at the trial and they disagreed on one reasonably important aspect relating to what was called the pathology of concussion.

Rohan Wenn:

When Dr James did his review, he wasn't able to look at the body for example because it had been cremated. He wasn't there at the time.

Rofe:

That's correct ...

Rohan Wenn:

... as per the police forensic procedures, so how reliable was his concurrence with Dr Manock?

Mr Rofe:

Well, you know, it was there. It was another view as indeed the defence called two experts on the same material. He was able to review photographs, pathology, histopathology, the tissue samples as did the defence experts.

Rohan Wenn:

But not actually the body?

Mr Rofe:

Not the body no.

Rohan Wenn:

Does it concern you that Manock was the only one who got to actually see the body, and do a post-mortem on the body?

Mr Rofe:

No, I mean that was a recognised procedure.

Rohan Wenn:

Well the police Forensic Manual says that there should be somebody doing the cross checks, somebody like Dr James doing a cross check at the time of the post-mortem, not reviewing those later on down the track, doesn't that concern you?

Mr Rofe:

I wasn't aware of the Police Manual in that respect and the forensic pathology department of Forensic Science has its own procedures and my belief and understanding is that they were followed.

Rohan Wenn:

Were you aware of the Infant Deaths cases at the time of the trial?

Mr Rofe:

I was aware that there'd been criticisms raised, as was the defence.

Rohan Wenn:

That didn't concern you?

Mr Rofe:

I mean everything concerns me. But my understanding was that those mistakes, as the Coroner subsequently found, were as the result of post-mortems on babies and young children requiring a special skill which Dr Manock didn't possess and indeed didn't profess to possess.

Rohan Wenn:

But if he's messing those up, what made you sure he wasn't messing up this stuff as well?

Mr Rofe:

I reviewed his procedures and notes and findings and I had no reason to doubt, indeed neither did the Coroner, find him to be incompetent in any way in regard to adult post mortems.

Rohan Wenn:

Alright. So what role did Manock's evidence play in you deciding that a crime had actually been committed?

Mr Rofe:

I think the first thing I thought was, I'd never heard of a fit healthy person dying in a bath, drowning in a bath. I guess you then go looking for was there bruising that was consistent with a fall or whatever. A lot of evidence was called as to that, by both sides, but the bruising on the leg was certainly unusual, and warranted, ... one explanation was that it was a grip mark and that was confirmed by Dr James and you know that was in the absence of anything else that may explain it and there wasn't anything else that could explain it.

Rohan Wenn:

So even to this day you're convinced there's no other explanation than murder, no possible explanation?

Mr Rofe:

I'm quite satisfied that the verdict was correct as was the Court of Criminal Appeal and the High Court and the Solicitor General in the Petition.

Rohan Wenn:

No worries. You have said that Manock's mishandling in the Infant Deaths cases does not bear upon his skills more generally; did you feel that confident during the trial?

Mr Rofe:

Yes I had no reason to. I mean, the issue about where there was a disagreement between Manock and James and Cordner you know, I mean, that was fairly presented and put before the jury and for them to make what they could of it.

Rohan Wenn:

But to be fair, Cordner and James' evidence was based on Manock's work, not on an examination of the body.

Mr Rofe:

No, but they said he was wrong in one aspect about whether a concussion would leave a physical trace.

Rohan Wenn:

But isn't there a chance that they could find he was wrong in many other areas if they'd actually gotten the chance to see the body?

Mr Rofe:

Oh, I mean, that could happen in anything I guess. Experts disagree and it's a thing about the courts that we often have disputes between experts and there were disputes here. I mean it was fairly put to the jury that by the defence experts that they considered it possible that she may have, you know, had a fainting fit and fallen and drowned. Dr James conceded that as a possibility although he'd never heard of it before or hadn't ever read about a case. Indeed I think Cordner also hadn't heard of a case of that type. So it was a matter for the jury on all the evidence, I mean the forensic pathology was part of it, and just a part of it.

Rohan Wenn:

In your view was it unfortunate that Manock was the only one who got to see the body?

Mr Rofe:

No, as I said that was the established procedure at the time, in my experience.

Rohan Wenn:

But it goes against the Police Forensic Guidelines.

Mr Rofe:

Well I haven't seen those, and I'm not aware of them. I mean if that was so that could have been put to Manock at the trial and to my knowledge it wasn't.

Rohan Wenn:

A lot was made of the bruises on the legs that seemed to indicate that she'd been involved in a drowning. Now police said at the trial that they had carried the body out by the arms and the legs to outside the home. Isn't it possible that the police could have caused that bruising?

Mr Rofe:

I mean that possibility, as I recall it was canvassed at the trial in relation to not perhaps that specific bruising but any bruising on the body. So it was there again for the jury to make what they would of it.

Rohan Wenn:

But even when you were looking at the evidence to decide whether a crime had been committed was that something you considered?

Mr Rofe:

Oh yes I think they were all, you don't necessarily go to everything specific thing, but you do approach the evidence critically and I mean I have a responsibility to only put what I believe to be credible evidence before the jury.

It's not for me to make my mind up about who to believe or who not to believe. But if there is a possibility of error then I have a duty as a prosecutor to bring that out before the court, which I did by calling James, and even allowing for the fact that he hadn't seen the body, but certainly the difference about whether you get bruising through concussion was certainly brought out by the prosecution.

Rohan Wenn:

It is argued now that the bruising to the brain may actually have been caused during the autopsy itself. Was that something that was considered?

Mr Rofe:

As I recall it, yes it was -- and was brought out at trial. I mean all of things are old hat in a sense that they were all available to defence at the trial. Personally I'm angry that they've chosen now to use the media as a process when I think the proper process is back through the courts. And if there is credible new evidence suggesting that the conviction was unsafe then the court processes can deal with it and that is the proper forum for it, not the media.

Rohan Wenn:

What's wrong with media scrutiny?

Mr Rofe:

Nothing is wrong with media scrutiny, I think -- er -- provided it's fair and accurate, and I don't think it has been to date, not criticising this program, but I think certainly the 4 Corners program was incomplete.

Rohan Wenn:

Look I'll keep working through some of the other evidence stuff if I can because they're making the claims and it's important to tick them all off as we go. Now police reportedly made a number of phone calls from homes nearby the Cheney residence on the night of the death. Did you look at why they'd be using home phones instead of mobile phones or police radios to make calls?

Mr Rofe:

I didn't know that fact.

Rohan Wenn:

Does it concern you?

Mr Rofe:

No. Why should it

Rohan Wenn:

Well why would the police not use their mobile phones or their radios, if they had to call someone?

Mr Rofe:

I don't know you'd have to ask them.

Rohan Wenn:

But it's not an area of concern?

Mr Rofe:

No

Rohan Wenn:

Do you want to stop -- do you want to check anything?

Woman's voice (Mr Rofe's assistant): (not all audible) ... 1994 ... mobile phones ... these phone calls ... just be interesting to know what you are talking about ... if they are made from the kitchen ... they were ringing the deceased's family to come and attend, is that what you're talking about?

Rohan Wenn:

No, no, from neighbours' homes.

Woman's voice: Well, I think you need a bit more information on what you are talking about.

Rohan Wenn:

In cases of suspicious deaths it is standard practice to cordon off the area and treat it as a crime scene but that didn't happen in this case, does that concern you?

Mr Rofe:

No the death didn't I guess to those attending wasn't regarded as suspicious at the time.

Rohan Wenn:

But no cause of death had been established ...

Mr Rofe:

No, that's right.

Rohan Wenn:

So it should have been cordoned off?

Mr Rofe:

Well it would have been better if it had been but at the time they were accepting of Mr Keogh's story that it was an accident.

Rohan Wenn:

Were you concerned that it wasn't cordoned off, given the impact that it could have on evidence?

Mr Rofe:

No. I can't think off-hand of any evidence that might have been lost by the lack of it cordoned.

Rohan Wenn:

Well the body was moved and there was something like in excess of 10 people in the house?

Mr Rofe:

Sure but -- um -- Keogh was living in the house and -- um -- it was a very remote possibility that someone else had come in and done it but there was no evidence to suggest that.

Rohan Wenn:

Could that evidence have been lost given the fact that the crime scene wasn't cordoned off?

Mr Rofe:

I don't think so, no -- I can't think of any evidence that might have been left that was destroyed. I mean you obviously had to get ambulance people in and their attempts to revive and all that sort of thing. So that would have happened cordon or no cordon and the movement of the body.

Rohan Wenn:

Crime scene officers weren't present for the post-mortem which they're required to be according to the Police Forensics Manual, did that concern you?

Mr Rofe:

My understanding was that there were people present at the post-mortem.

Rohan Wenn:

My understanding was that the crime scene officers weren't present at the post-mortem

Mr Rofe:

I'd have to check that.

Rohan Wenn:

Alright we check it too. If it is the case, does that concern you?

Mr Rofe:

No. Not particularly.

Rohan Wenn:

But it's against procedure.

Mr Rofe:

Well, I mean, when I say that it doesn't particularly concern me I mean I'd have to know the details and what transpired. There may be all sorts of reasons if that was in fact the case.

Rohan Wenn:

If it was the case, wouldn't it be a concern?

Mr Rofe:

Again, I'd probably ask why it hadn't happened and if the explanation wasn't sufficient then I'd be concerned.

Rohan Wenn:

But to date that's a question you haven't asked?

Mr Rofe:

I haven't been told this before.

Rohan Wenn:

No worries.

Mr Rofe:

I mean -- this is what I'm saying -- that there are proper procedures -- and I see it in the 4 Corners program and restate that if there is any credible new evidence then I'm quite happy to look at it.

I mean I regard part of my job is making sure that we don't have miscarriages of justice, either way. Innocent people being convicted or guilty people being acquitted. But the procedure is to present that evidence to the Governor through the Attorney General who gets an independent assessment normally by the Solicitor General.

That has been done once in this case but that's no reason why it can't be done again. As I say that is the appropriate forum for these things to be raised.

Rohan Wenn:

Just on that point you mentioned the 4 Corners story and you obviously saw people who were making allegations about this case. You've said that you're unhappy with the fact that they're using the media and I think it's fair at this time to ask you -- what do you make of the motivations of these people, and do you have any specific concerns about that?

Mr Rofe:

No, I'm happy for anyone to raise questions about anything that goes on in the courts or in my area. But I think they should be upfront about who they are and why they're doing it. I've no reason to doubt, for example, Kevin Borick's involvement or but I would point out, for example, Chris Patterson who was relied upon as being a former Major Crime Officer, to my knowledge was never a member of the Major Crime Squad. He may have on occasions been assigned to Major Crime to do odd investigations but to portray him as a former Major Crime police officer was, one, inaccurate, but also failed to state that he's currently a defence criminal solicitor. ^#1

I think the public, if they're going to accept this information need to know the full facts. Professor Moles was dismissed by the University of Adelaide, but was put forward as a Professor of Law at the University. He may have still been that in name but in my understanding he wasn't being allowed by the university to teach students last year. That fact wasn't disclosed. ^#2

[The author has excluded a comment by Mr Rofe concerning another person]

So you're trying to put forward to the public a credible investigation I think it loses credibility if you don't reveal the full facts of the situation which I don't think 4 Corners did.

Rohan Wenn:

OK. Um -- You keep saying if new evidence has come to light then you're happy for it to be reviewed, but if the evidence wasn't sufficiently dealt with during the trial isn't that reason enough to have another look?

Mr Rofe:

Well that was ventilated in the Court of Criminal Appeal, the High Court of Australia, in the Petition of the Governor that was rejected by the Solicitor General. I mean I think the processes have been gone through.

Rohan Wenn:

Alright no worries. This is a photo of Anna Jane Cheney, do you want to have a look at that there, and you can notice on the left leg, some independent forensic people say that it appears to be an injection mark on Anna Jane's leg. Was this something that you considered prior to any of the trials or during any of the trials as an alternate explanation?

Mr Rofe:

No. I mean, this is part of why I say that the media is so inappropriate. Material like that shouldn't be in the public domain.

Rohan Wenn:

Why not?

Mr Rofe:

I think this whole process has been so upsetting to the Cheney family, and is just being .... prolonged by these sorts of ...

Rohan Wenn:

We certainly don't want to upset the Cheney family, but if there's two victims here, and one of them's in gaol, shouldn't we have a look at it?

Mr Rofe:

Oh yes, as I said I'm not afraid of media scrutiny but I mean I think it's got to be properly based. There are processes that are appropriate, that should have been gone through and they haven't been gone through in relation to this material and as I said it was all material that was before or known at the trial. If they want to talk about possible needle marks or injection marks, then it was up to them to bring it up.

Rohan Wenn:

But they didn't...

Mr Rofe:

I don't know, I can't remember it.

Rohan Wenn:

Certainly, in my understanding having read the transcripts of the trial, it doesn't appear to be there.

Mr Rofe:

I don't recall it.

Rohan Wenn:

But it wasn't something you thought about prior to...?

Mr Rofe:

Why would I?

Rohan Wenn:

Well just in case it had come up, it was an alternate explanation.

Mr Rofe:

Well it's the first time I have ever been told that there was anyone who had thought that may have been the case.

Rohan Wenn:

Sure... I'm not trying to have a go, I'm just trying to establish on the record...

Mr Rofe:

I can only think of things that were within my comprehension or which were brought to my attention, and that certainly wasn't one.

Rohan Wenn:

That's really what I'm just trying to establish. No worries. Henry Keogh senior says he witnessed Anna's father -- Dr Cheney -- receiving a phone call on the Saturday morning, during which he was told that Anna hadn't died of an aneurism. Now the first autopsy wasn't done until the Sunday, can you understand under what circumstances, somebody could be making that claim with any authority?

Mr Rofe:

No.

Rohan Wenn:

Were you aware of the phone call?

Mr Rofe:

No.

Rohan Wenn:

Does it concern you?

Mr Rofe:

I'd need to know more about it.

Rohan Wenn:

But it's something you didn't know during the trial?

Mr Rofe:

No.

Rohan Wenn:

OK no worries at all. Were you concerned that the autopsy photos were taken in black and white?

Mr Rofe:

No. Sorry, just hang on.

Rohan Wenn:

Yeah, of course, of course.

(Female voice of Mr Rofe's assistant, off camera): Are you talking about the polylight photographs?

Rohan Wenn:

I'm talking about the autopsy photographs that were taken by the Forensic Science Centre. The police took colour photos.

Woman:

Which ones are you referring to?

Rohan Wenn:

I'm referring to . . .

Woman:

There's two sets. There's black and white photographs and there is polylight photographs.

Rohan Wenn:

The Forensic Science Centre only took black and white photographs, they told us.

Woman:

Do you know what polylight photographs are?

Rohan Wenn:

No I don't.

Woman:

Right. Well I think that's what you're probably talking about. Do you have a copy of the photograph that you're talking about?

Rohan Wenn:

No I am asking why colour photographs weren't taken.

Woman:

Well there is a very good reason for that.

Rohan Wenn:

Well do you want to tell him, because I don't want to get this wrong obviously?

Woman:

Polylight photographs are those special photographs that are taken that show up bruising.

Rohan Wenn:

Yeah but that still doesn't get away from the fact that colour photographs weren't taken.

Woman:

Well . . .

Rohan Wenn:

Because every other forensic science centre interstate does take colour photos as a matter of course.

Mr Rofe:

This was raised in the trial wasn't it?

Woman:

Yeah, the photographs were spoken about a hundred times, but what concerns me is on the 4Corners program there was shown an unauthorised picture of polylight photographs of Anna Jane Cheney's leg and it was never mentioned was that they were polylight photographs. They were talked about as being black and white. Well they are, but they are polylight photographs.

Rohan Wenn:

I know the ones you're talking about, the ones that were almost iridescent?

Woman:

The whole issue of photographs has become very vexed in all of this, because there are people have been using photographs that were taken for a specific purpose that showed the bruising and they have been used to say that they don't reflect bruising, because they have been treated as normal black and white photographs, when in fact they are special polylight photographs.

Rohan Wenn:

I am aware of the mistake 4Corners made in relation to that because I knew that wasn't a black and white photo that they were passing off as a black and white photo.

Woman:

It is a black and white photo, but taken with polylight.

Rohan Wenn:

It's not taken what you and I would consider a black and white photo?

Woman:

No, That's right. That was an error made on 4Corners.

Rohan Wenn:

I'm aware of that. It's a black and white photo, but it's not what you and I would conventionally call it because it was taken specifically with a special light.

Woman:

That shows bruising.

Rohan Wenn:

But it doesn't get away from the fact that all of the other forensic science centres -- and we have checked -- around Australia as a matter of course take both black and white and colour photos.

Mr Rofe:

I recall this being raised at the trial and I can't remember the explanation now, but I think that now the procedure here is the colour photos are taken.

Rohan Wenn:

Are you worried that colour photos weren't taken given the fact that some of the regular black and white photos were used to indicate bruising?

Mr Rofe:

No. The indications of bruising were done by special lighting on photographs, admittedly they were black and white. But that was all brought out at the trial, as I recall anyway. So that explanation is there before the jury. I mean...

Rohan Wenn:

Was it an oversight that colour photos weren't taken given the fact that...?

Mr Rofe:

I honestly can't remember why colour photos weren't taken. It may have been that it wasn't the procedure at the time.

Rohan Wenn:

We now do it. We have increased that procedure. Is that a flaw in past procedures?

Mr Rofe:

Well it may have been. But you have to look at each case individually and I mean it may be that their funding didn't extend to colour photography. I don't know. There could be any number of reasons why colour photographs weren't taken at that time.

Rohan Wenn:

Well certainly the current head of the forensic science centre says that it was a money issue back during the trial.

Mr Rofe:

Well it may have been. I honestly don't remember.

Rohan Wenn:

No worries. Dr Manock had no formal qualifications in -- sorry, training, rather -- he had qualifications given the fact that he was a Fellow, but he had no formal training in pathology or histopathology, but you still used him as a witness. Why?

Mr Rofe:

Well I think we used Dr Manock first and foremost because he was the one who conducted the post-mortem examination. He was the senior forensic pathologist in this State.

Rohan Wenn:

Yet he had no training in pathology or histopathology, and yet you were still confident enough to use him as an expert witness?

Mr Rofe:

Yes. He had vast experience.

Rohan Wenn:

But just because you do a job often doesn't mean you do it well?

Mr Rofe:

No. That's possibly true. But I had confidence in Dr Manock from previous cases that...

Rohan Wenn:

Do you still feel confident about Dr Manock now?

Mr Rofe:

Yes.

Rohan Wenn:

Ok no worries. You're obviously aware that a re-enactment of the drowning has been done. Now the other people, forensic folk, argue that Manock's drowning theory is improbable and a professor of anatomy says that the theory is quote 'totally implausible'. Does that concern you?

Mr Rofe:

I know nothing about that except the abysmal again media coverage of that.

Rohan Wenn:

Well does it concern you that a professor of anatomy says that the drowning is totally implausible?

Mr Rofe:

Um -- no we didn't put any particular -- I mean Dr Manock had a theory that was demonstrated. Again, I mean, if that was the case it was open to defence to say 'that that's not on'. Certainly that evidence wasn't available at the time of the trial.

Rohan Wenn:

Should it have been?

Mr Rofe:

Well, I think he was represented by very experienced defence counsel - um ...

Rohan Wenn:

Well, at the trial you made some mention about doing a re-enactment with Dr Manock, but a re-enactment was never done. Why didn't you carry through with that plan to re-enact the actual drowning?

Mr Rofe:

We never had it planned to re-enact anything as I recall.

Rohan Wenn:

My understanding is that some indication had been given that prosecution was going to do a re-enactment as part of their case?

Mr Rofe:

No.

Rohan Wenn:

Did it occur to you to do a re-enactment?

Mr Rofe:

No.

Rohan Wenn:

Did you feel it was necessary?

Mr Rofe:

No.

Rohan Wenn:

Why didn't you feel it was necessary?

Mr Rofe:

Well I mean -- I don't -- you -- that something that the bath or a replica bath was tendered to give the jury ideas of dimensions and sizes. Re-enactments in my experience can be as dangerous as speculation.

Rohan Wenn:

Why do police do them so often then?

Mr Rofe:

Oh mate, you'd have to ask them. To understand certain angles, possibilities, the way things may have happened.

Rohan Wenn:

So there is some value in re-enactments then?

Mr Rofe:

There can be, it depends on the case. I didn't see any value in this case of a re-enactment.

Rohan Wenn:

Have you seen the re-enactment?

Rofe:

No, no one's presented anything to me. This is again why I am, if you like, angry about the way this is being conducted in the media, rather than in the proper place.

Rohan Wenn:

Look, I am happy to get you a copy of that if you really want us to.

Mr Rofe:

No I don't.

Rohan Wenn:

You don't want to see it?

Mr Rofe:

Not particularly. No.

[There is an interruption in the picture at this point, during which voices can be heard in the background.]

Rohan Wenn:

Do you want to go over something and clarify something, relating to our previous answers. I absolutely do not want to get anything wrong with this story. So if you need to clarify anything. Is it cool?

Mr Rofe:

It was just about the bruising and the photos that we did take histology and that did show bruising and some of the bruises.

Rohan Wenn:

OK, let us touch on that. Whilst there were no colour photos taken there were a variety of what are effectively black and white photos?

Mr Rofe:

Taken under specialty lighting designed to bring out bruising, yes.

Rohan Wenn:

So in your view that was adequate?

Mr Rofe:

Yes I had no reason to doubt the adequacy of those.

Rohan Wenn:

In the second trial it was claimed that Henry Keogh drowned Anna Jane Cheney using his right hand. Now these are the two photos that were admitted to trial by police. I don't know if you've seen them. Have you seen these photos?

Mr Rofe:

No.

Rohan Wenn:

Can you see anything irregular about those photos?

Mr Rofe:

No. They appear to show the front and back of a hand.

Rohan Wenn:

Which hand?

Mr Rofe:

I've got no idea.

Rohan Wenn:

That's his left hand.

Mr Rofe:

I'll take your word for it. I don't know.

Rohan Wenn:

Well it's clearly not a right hand?

Mr Rofe:

Well, no, I'll accept that.

Rohan Wenn:

Which kind of begs the question if the police are messing this up could they be messing other things up in the trial?

Mr Rofe:

I don't recall these photos ever being used in the trial.

Rohan Wenn:

They were evidence.

Mr Rofe:

I'll take your word for it. But -- um -- as you say -- just looking at them -- it's obvious that it's not a right hand. Whether the photographs have been transposed in the reproduction, I don't know.

Rohan Wenn:

The numbers. Are there numbers there that seem to appear to be not back to front?

Mr Rofe:

Yes. But I don't know what your point is.

Rohan Wenn:

Well -- I guess the point is that people are saying if the police are taking photos of the wrong hand -- perhaps other errors are being made as well. Certainly that's their argument.

Mr Rofe:

Well that was an argument that they were free to make at the time and if it was as obvious as those photos are then ...

Rohan Wenn:

Could it have been made?

Mr Rofe:

Well I don't know. I don't know what kind of significance it's possibly got. I don't recall those photos having any significance at all other than for completeness probably.

Rohan Wenn:

You keep sort of making the point that these are things that should have come up in the trial but ...

Mr Rofe:

That's the process we have. We have a trial process.

Rohan Wenn:

If they don't come up in the trial, what happens if someone is wrongly convicted?

Mr Rofe:

Well that's what the courts are there for. The courts of appeal, and they can explain why they didn't come up at trial -- and -- I mean -- the courts are reluctant to extend the process forever. So then you can't have a continual process of 'let's go back and see whether everything was done properly'. You do it as it stands at the time -- and there are very good reasons for that, but I mean the courts equally are -- as we are -- anxious to make sure that there are no miscarriages of justice.

Rohan Wenn:

I guess it's a key issue because -- on the other hand -- folk at home don't want people spending thirty years in court. People are interested in good fast justice?

Mr Rofe:

It's not fast justice.

Rohan Wenn:

Well not fast justice, but swift justice you know?

Mr Rofe:

Appropriate justice.

Rohan Wenn:

I don't mean irrationally fast justice. But they don't want things taking thirty years. Is that a balancing act that the legal system has to get right?

Mr Rofe:

To some extent. But the predominant one is to make sure that it's right justice - and there are no miscarriages as I said.

Rohan Wenn:

Just before the second trial it was revealed to police that Dr Manock didn't have any original notes on which he based his first report. Did that concern you?

Mr Rofe:

Again that's something that is news to me. I mean my memory is of Dr. Manock's method of operation was that he would dictate his notes as he went.

Rohan Wenn:

But if the notes were written or dictated surely they should still exist?

Mr Rofe:

I can't remember but -- um -- he may use the same tape. He does thousands of post mortems a year and you don't necessarily keep the tape of every one. But the tape would be typed up. Whether it's typed up as notes or typed up as a report. My memory I think is that he tended to type them up as a, have them typed up as a report and then would sign off as a report.

Rohan Wenn:

He would reuse the tapes?

Mr Rofe:

Well I don't know. I'd imagine that's the case. And my memory is that he did refer to those reports. I don't recall any issue being raised about no notes being available.

Rohan Wenn:

Well this is a police case running sheet that shows that in 1995 the police were told that no notes were held by Manock -- and that the DPP Rofe and Gray were following up and would deal directly with Manock themselves. Have you seen that?

Mr Rofe:

No.

Rohan Wenn:

What happened there?

Mr Rofe:

Well I would imagine that if we were told this, we would have asked Manock what happened. And as I said, if the procedure was as I just said it, that he dictated it and then they were then typed up as a report, he would have told us that they are the notes if you like. Cause he would have read the report and signed it off while the post-mortem was still fresh in his mind.

Rohan Wenn:

So, it wasn't a concern that we had gotten to the second trial and we had only then learnt that Manock did not have his original notes, on tape or written down?

Mr Rofe:

Depending what you mean as original notes.

Rohan Wenn:

Well the notes he made during the autopsy.

Mr Rofe:

As I said, as I remember, his operation and procedure was to dictate them. Now I am not concerned that he didn't no longer have those if he had signed off as he did of it on a post-mortem report, which would have been those dictated notes typed up and checked by him.

Rohan Wenn:

Anna's face -- while she was still at the house -- was made up -- and her hair was combed, indicating that somebody had dealt with the body. Didn't that concern you?

Mr Rofe:

I don't know what you're talking about.

Rohan Wenn:

Well there are photos that were taken by police at the time that show her face unmade and her hair messy -- and then later photos show that her face had actually been made up and her hair had been combed, which would indicate that somebody had made her hair up and did her makeup. Were you aware of that?

Mr Rofe:

No.

Rohan Wenn:

Does that concern you?

Mr Rofe:

No.

Rohan Wenn:

Doesn't concern you that that somebody's taken the time to do her make-up and hair and therefore may have done other things to the body?

Mr Rofe:

Like ....bruises or something?

Rohan Wenn:

Well who knows, I think that's the question.

Mr Rofe:

Well I think that is the question, but you can speculate on these sorts of things forever. What they should be, as I keep saying, is that they should be put before a court and say are they are of significance or not?

Rohan Wenn:

Well if they were put before a court would you consider them significant?

Mr Rofe:

It's not for me to make those decisions. That, simply, I don't regard as significant.

Rohan Wenn:

But, it does indicate that somebody has been dealing with the body.

Mr Rofe:

That's your interpretation of it.

Rohan Wenn:

Well how else does she get made up and then get her hair done?

Mr Rofe:

I have got no idea. But it may be someone who just out of respect for a dead person ...

Rohan Wenn:

Which is fine, except it does indicate that somebody has been dealing with the body.

Mr Rofe:

Well it may have been a coroner's assistant. I don't know.

Rohan Wenn:

Making her up at the scene of the death?

Mr Rofe:

Look I honestly don't know, but it doesn't concern me.

Rohan Wenn:

OK that's cool. No worries. There's evidence that Anna-Jane Cheney visited ... had 36 doctor appointments in the two years before her death, but at the trial she was given a clean bill of health. She visited the doctor 36 times in two years and it appears that she had visited at least five different doctors and specialists. Were you aware of that at the time of the trial?

Mr Rofe:

We were aware of her previous medical history and that was made available to defence to do what they want with. But there was nothing that we found to be of concern at all.

Rohan Wenn:

Were you aware of the 36 visits?

Mr Rofe:

I don't know of the precise number but we were certainly aware of her previous medical history. That was something we checked as a matter of course, as we would.

Rohan Wenn:

But you didn't sort of stop and think that that was an extraordinary number of visits?

Mr Rofe:

No.

Rohan Wenn:

No problem at all. I mean some would argue that seems to be a lot of visits to the doctor.

Mr Rofe:

Well, I mean, it depends who you are I suppose. I don't go to the doctor very often. But people I know would possibly go 36 times in a year. But they regard themselves as being in good health.

Rohan Wenn:

So that wasn't an area of concern during the trial?

Mr Rofe:

Oh, I mean, it was an area that had to be looked at, and was looked at. And evidence was given about it, yes.

Rohan Wenn:

But nowhere in the transcript does it mention the frequency of visits or the number of doctors. It almost looks like doctor shopping.

Mr Rofe:

Why? Well -- I mean -- that's your interpretation. But it's ... some people see nothing unusual with that number of visits. Other than a person who may be very conscious about their own health and continually having check ups.

(Woman from the background interjects. She whispers to Rofe): ... (inaudible) ... then - Just hang - her Medicare suggests that she had medical problems like thrush and things like that. This is so inappropriate. This is just off the rails. We checked all of those things. We've spoken to her doctor. She did go to the doctor a lot. She was getting sexually transmitted thrush, I suspect, but ... (inaudible) ... For us to explain that is yet another thing that her family have to deal with. It's so inappropriate.

Rohan Wenn:

Well let me ask you whether there is personal reasons that aren't relevant to the trial that relate to that frequency of visits?

Mr Rofe:

We satisfied ourselves that those visits didn't represent any problem that may have impacted upon the manner of her death. I mean, there is no predisposition and we checked with the doctors and indeed the doctor gave, as I recall, evidence. Again, that was out in the public arena. That was explored.

Rohan Wenn:

Alright, no worries. We're not here to deal with that sort of stuff. I obviously heard that conversation. Now that you've pointed that out we will be taking it into account. The only other evidentiary issue that's being raised by these protagonists for Keogh relates to Anna-Jane Cheney's car. Now, she drove herself home that night and you can see in that photo there, there's Henry's car. There's not enough room, it's been measured. There's not enough room for a second car to be there. And a photo analysis shows that a car isn't there -- that's Anna-Jane Cheney's car. So it appears -- and it has been reported by witnesses -- that Anna-Jane Cheney's car wasn't there when Henry arrived home. But did arrive back at the house a couple of days later. Was that looked at during the trial?

Mr Rofe:

That's the first I've ever heard of it. No one's ever drawn that to my attention.

Rohan Wenn:

Would that be an area of concern?

Mr Rofe:

Well -- I mean -- no, I mean ....

Rohan Wenn:

It wouldn't be an area of concern that the car wasn't there even if she'd driven it home that night?

Mr Rofe:

Well it may be something you'd look at, but whether it is an area of concern is neither here nor there. Unless someone put it to us and said, look, this is an area of concern. There may be a very innocent explanation, I don't know.

Rohan Wenn:

There may be. But clearly cars don't drive themselves. So if her car went missing that night, somebody must have driven it, and therefore been at the house.

Mr Rofe:

That's a possibility yes.

Rohan Wenn:

But it's one that wasn't looked at during the trial?

Mr Rofe:

Well it certainly wasn't raised by defence. No.

Rohan Wenn:

It's nothing you looked at prior to going to trial, to decide if a crime had been committed?

Mr Rofe:

Well, I don't recall that ever being put to me -- that the car wasn't there -- or it was missing -- or that there was some explanation required.

Rohan Wenn:

Alright. So given the fact that Dr. Manock has received a lot of attention -- you say obviously unfair media attention. But there have been questions raised. There's certainly been at least one report to the Coroner about his work. Are you still confident that he was competent enough to give evidence upon which to get a conviction in that trial?

Mr Rofe:

Well I was quite satisfied with his competence. I don't think that his evidence convicted Henry Keogh.

Rohan Wenn:

Do you think that it went some way towards you deciding that a crime had been committed in the first place?

Mr Rofe:

I think, as did the other pathologist, that his evidence raised questions that needed to be looked at.

Rohan Wenn:

Sure, but Manock was the only one that had actually seen the body.

Mr Rofe:

So be it. They were the facts that we had to deal with.

Rohan Wenn:

Alright. So at this point then, can you ever entertain another explanation for Anna's death, whether it be the fact that she fell or an allergic reaction?

Mr Rofe:

I'm totally satisfied with the jury verdict.

Rohan Wenn:

So you couldn't entertain another possible cause of death?

Mr Rofe:

If there was credible evidence brought forward to support an alternative, yes I would look at it. I have no problem with that.

Rohan Wenn:

Does the forensic evidence that Manock put forward explain away other possibilities to your satisfaction?

Mr Rofe:

No I think it's a combination of all the evidence that explains away the others. And that was the way that it was put to the jury. Pathology doesn't solve this case. I mean -- you know -- it postulates a certain proposition. But it's the other evidence that confirmed it and in particular the evidence of Keogh himself.

Rohan Wenn:

Given the fact that this campaign has been mounted in the media, more general questions now. What are the dangers there from your perspective? You have probably seen an example while I have been doing this interview. But I mean, what are your concerns there?

Mr Rofe:

I think if there are appropriate procedures they should be followed. A media driven campaign lacks credibility if those procedures aren't followed.

Rohan Wenn:

If they make an approach to the Governor -- and the Attorney General had a look at it -- and decides that it should be looked at -- is that something that you would be comfortable with?

Mr Rofe:

Yes. I'd be totally comfortable. I understand it's in Parliament at the moment with Mr Xenophon's motion for an independent inquiry relating to Manock generally, but encompassing the Keogh case. So I mean there are more appropriate forums to bring these things forward than the media.

Rohan Wenn:

What did you make of Nick Xenophon's motion in Parliament? You're obviously aware of it.

Mr Rofe:

I think the then Attorney General Trevor Griffin responded, and to me, answered the concerns that Mr Xenophon raised.

Rohan Wenn:

Given the need to raise these issues in the courts -- if people don't feel that they are getting the satisfaction and they do turn to the media -- is that an area of concern for you?

Mr Rofe:

Only in this sense -- that my experience with the media has been that complete and accurate are not words that you would necessarily associate with media enquiries of this type.

Rohan Wenn:

Is there anything that you wanted to add to this discussion in relation to the Keogh case?

Mr Rofe:

No. I'd just like to say that I'm very concerned that the family can go on with their lives without this constant interruption being caused by the protagonists as you call them. And it's important that people know where these protagonists are coming from.

Rohan Wenn:

Are you suspicious of their motives?

Mr Rofe:

Um, no. Not with relation to Mr Borick -- or necessarily. Although I am suspicious when people don't put their cards on the table and say 'look, I am this or that' or they're quite happy to denigrate Dr Manock. [A comment by Mr Rofe about another person has been excluded]

I mean there has to be an end to these things and a limit. And the courts and the government have provided processes. Keogh's been through most of them, but there is still one available to him and I am surprised that if they are this keen about -- or this certain about the possibilities of miscarriage -- that that it hasn't been put.

Rohan Wenn:

We're specifically dealing with Mr Borick and Mr Moles, what concerns do you have about them... that we should know about them?

Rofe:

I think it should be known that Mr Moles is no longer a professor of law at the university. That his contract was terminated by the university. ^#3 I don't know the background to that, but certainly this sort of campaign shouldn't be given credibility by associating it with a professor of law, which he is no longer.

Rohan Wenn:

And Mr. Borick?

Mr Rofe:

Mr Borick is a well known and respected Queen's Counsel. I've great respect for Kevin and his abilities but, you know, I don't know. That isn't a problem for me. If Kevin sees there are things and he is President of the Australian Criminal Lawyers Association -- and certainly these sorts of things -- possible miscarriages -- are something that they are rightly interested in -- and I respect Kevin for taking it, although I would expect him to take it along the proper processes rather than playing to the media.

Rohan Wenn:

Excellent that's great. That's all we need.

Rofe:

Thank you.

Interviewer:

Happy with that?

Comments by Dr Moles

The discussion with regard to the "polylight" is somewhat misleading. [Polylight is the name of a device which can produce light of different wavelengths (colours). It can be used as a light source for photography and the photographs can be taken using either colour film or black and white film.] Dr Manock was asked specifically at the trial if the photographs being introduced into evidence had been taken with any special light source, and he said that those particular photographs were taken with an ordinary flash, and not with any special or fancy lighting source. The above discussion means either that Dr Manock's evidence was incorrect, or that the above discussion is irrelevant as far as those particular photographs were concerned.
It also means that the 4Corners program was quite correct to refer to them as black and white photographs.

The fact that it was suggested that Anna may have had a sexually transmitted disease, or thrush, was not mentioned in evidence at the trial, yet it could be very significant. There was no suggestion that Henry Keogh had this condition, and it therefore opens the possibility that Anna may have had another sexual partner besides Henry Keogh. Given that Mr Keogh's other alleged involvements were of such considerable interest, one might have thought that other relationships which Anna might have had would also have been significant. It could also have been relevant to other possible treatments which she may have had, and whether it could have led to any allergic reaction.

It has been frequently stated by the DPP that Dr Manock's evidence did not convict Henry Keogh. The truth of the matter is that he would have no idea whether that was so or not. If Dr Manock's evidence was irrelevant, then it would clearly not have been admissible evidence. If it was relevant, and admitted as evidence, then no one can tell how the members of the jury would have evaluated it. To lead the evidence and then claim that it was not important to the conviction seems a bit like having a dollar each way.

We suppose that the interviewer's last question, although directed to the DPP, should be the question which we should leave with our readers. "Are you happy with that"?

Footnotes

1. Chris Patterson worked for two years with the Major Crime Squad, which certainly justifies his description as a "former member" of that squad.

2. It is incorrect to suggest that Dr Moles has at any time -- then or since -- "been dismissed" by the University. It is also incorrect to state that Dr Moles was not being allowed by the University to teach students last year. The facts are that Dr Moles was engaged by the University of Adelaide under a three year contract which ended on 17 November 2001. The 4 Corners program went to air on 22 October 2001, and at that time Dr Moles was correctly styled by his title of "Associate Professor" at the law school. There had been some dispute during the course of his last year at the law school about the nature and extent of his duties. He took the view that the law school and/or the University of Adelaide had not acted in accordance with their obligations to him. He took action in conjunction with the academic Union - the NTEU -- in the Industrial Commission and then in the Federal Court. That matter was resolved in February 2002. The terms of the settlement are confidential, and the obligation of confidentiality is binding upon all parties to the action. Dr Moles states that he has fully complied with the terms of settlement, and he would expect the University and its employees to also respect their obligations in relation to this matter. It is incorrect and inappropriate for Mr Rofe to make such statements in relation to a matter which is clearly unrelated to his area of responsibility, and upon which he is not in possession of the full facts.

3. It is incorrect to say that Bob Moles' contract "was terminated" by the University. The most that can be said of it is that it was a contract for three years, which came to an end.

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