Channel 7 - Today Tonight (Adelaide)
Keogh Follow Up - 17 March 2003

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

The Baby Deaths homepage
The Henry Keogh homepage
Article on Australian miscarriage of justice cases
Article on UK miscarriage of justice cases
Article on USA miscarriage of justice cases

In order of appearance

Leigh McClusky - Presenter
Frances Bedford MP
Graham Archer - Producer and Interviewer
Paul Rofe QC - Director of Public Prosecutions
Tony Thomas - Associate Professor - pathologist
Dr Bob Moles
Rohan Wenn - Interviewer

Program

Leigh McClusky

Hello and welcome to the program. First tonight, is everyone equal in the eyes of the law? Well, you be the judge. Today, a prominent Adelaide barrister, David Quick QC was suspended from practicing for just 3 months after confessing to a cocaine addiction, dodging police and buying his drugs from prostitutes. Amongst his referees were Supreme and District Court judges, and a who's who of the legal fraternity. And it begs the question - what if an ordinary worker was facing a similar prospect? Would we receive the same blessings from the bench? Henry Keogh for one must be very puzzled with his treatment, despite more and more questions arising over his prosecution and his conviction. Because so far, new evidence has been either overlooked or rejected by the Director of Public Prosecutions Paul Rofe and now by our Attorney General. Tonight we ask - have they made a monumental mistake? As Graham Archer reports, the facts cast real doubt on both the murder and the motive.

Frances Bedford

On the very first day my electorate office opened at Modbury, a couple came in to see me about a case of their son being killed in tragic and suspicious circumstances several years beforehand and they still had not closure or satisfaction with the case. So the very first day I became an MP.

Graham Archer

You will remember the Director of Public Prosecutions Paul Rofe was sprung for getting a skinful and hopping in his car - and for his passion of punting on the job.

Paul Rofe

I have a contract until 2006.

Graham Archer

His boss the Attorney General has given him another reprieve but the real issue is, and always was, the way he's done the job. Well, you be the judge.

Paul Rofe

Yes, I think I've been upfront about everything with Keogh.

Graham Archer

We beg to differ. Like the Keogh case there are others which raise suspicions without ever getting to the DPP's desk.

Frances Bedford

There are still very many questions unanswered and it's when the questions aren't answered that you have to have some grave concerns.

Graham Archer

MP Frances Bedford has been carrying the torch for the Wilson family, left angry and suspicious by the inadequate police investigation of their son Peter's death.

Frances Bedford

The Wilson's sons body was found on the road in circumstances that were never actually clearly explained - the time of death, where he died - even whose clothes he was wearing the day he was found.

Graham Archer

It's a case which deserves exposure. Sadly, there are no shortage of those. And now the Attorney General has joined in to smooth over the mounting scandal arising from the death of Anna-Jane Cheney and the conviction of Henry Keogh.
First, here's a sample of Rofe's rough justice in that matter.

Paul Rofe

A fit and healthy 29 year old doesn't just drown in the bath.

Graham Archer

Correct? No

Tony Thomas

I would get approximately 10 to 12 cases per year referred to me to examine the heart in precisely that scenario - where a young person has died suddenly, and nothing has been found at autopsy.

Graham Archer

Professor Tony Thomas is a highly respected Adelaide pathologist who is an expert on the subject of sudden death in young people.

Tony Thomas

As I've said, young people unfortunately do die suddenly and unexpectedly and sometimes, even after very exhaustive examination, you still can't find the cause.

Graham Archer

Then there's the failure to follow basic procedures at the scene of Anna Jane's death.

Paul Rofe

I can't think of any evidence that might have been left that was destroyed.

Graham Archer

Correct? Wrong.
Almost nothing was properly checked that night. Even the bath water was emptied without testing.

Tony Thomas

I think it would be part of a sound forensic principle that one would expect to and want to examine all the circumstances surrounding the case.

Graham Archer

And what about makeup being applied to the body?

Paul Rofe

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

Graham Archer

Acceptable? Well no, it's not. Next the autopsy. Procedures demand that the police crime scene investigator be present.

Paul Rofe

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

Graham Archer

Right? Could he be wrong again?

Paul Rofe

I'd have to check this.

Bob Moles

We have no statements from any police officer saying that they were present at the autopsy.

Graham Archer

One of the greatest travesties is Dr Manock's use of black and white photographs to show bruising when colour is crucial and when the procedures specify colour photographs.
But were all the photographs clearly provided to the defence?

Paul Rofe

Yes.

Graham Archer

They could look through all of the photographs taken by the police - taken by the Forensic Science Unit - and have open access to them.

Paul Rofe

Yes.

Graham Archer

Right? Wrong yet again.

Bob Moles

If it's true then the photographs are inadequate because they fail to establish what actually happened. If it's not true, then it indicates that the prosecution have misled the defence.

Graham Archer

Furthermore, despite serious questions over his competence Dr Manock was allowed to conduct Anna-Jane's autopsy unchecked.

Paul Rofe

That was the established procedure at the time in my experience.

Graham Archer

Is this right? No - wrong. Another pathologist should be present.
And what about what the DPP has to say about a re-enactment to test the validity of Manock's theory on Anna's so-called drowning?

Paul Rofe

We never had a plan to re-enact anything as I recall.

Graham Archer

Right? Wrong. This police running sheet notes the idea was discussed - but Rofe rejected it. Perhaps it would have raised more questions than it would have answered - based on Manock's questionable theory that so-called bruises on Anna-Jane's ankle were the result of Henry's hand grip during the act of drowning?

Paul Rofe

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

Graham Archer

Wrong. How could Rofe possibly say this when the case rested from the outset on Manock's shoddy science. This is what he told the jury.

Voice over Rofe

the grip mark on the left leg suggests Keogh murdered his fiance by deliberately drowning her in the bath.

Graham Archer

Now the DPP has conned his boss the Attorney General to deny the existence of new evidence and to overlook the expert opinion of Professor Tony Thomas.

Tony Thomas

The interpretation of some of the suggested bruising that was seen at the time of autopsy - in my opinion there is very little evidence of that in the sections that were examined down the microscope.

Graham Archer

Almost no proof of bruising.
Look at it deal with it, clear the air, because it won't go away.

Paul Rofe

As far as I'm concerned it has ...

Graham Archer

Wrong. You see the most startling evidence is yet to be revealed even though it's been available to the DPP. However, even putting the host of forensic failures to one side, what are the facts behind those insurance policies?

Bob Moles

Information about the insurance policies was taken out of context and fundamentally misconstrued.

Graham Archer

As Bob Moles, a former associate professor of law at Adelaide Uni says, the insurance policies were the prosecution's trump card. Their theory, Henry Keogh secretly took out 5 joint life policies, forged his fiancee's signature and then murdered her for the cash.

Bob Moles

Such a crass thing to attempt - that he would have no prospect of concealing the claims under 5 policies when he told all the companies that he only had 1 insurance.

Graham Archer

One of the prosecution's key points was that Keogh kept Anna-Jane in the dark about the existence of the policies.

Paul Rofe

He lied about what he'd told Anna-Jane about them, in the course of his evidence, and that was clearly demonstrated.

Graham Archer

Correct? Well, wrong. And the proof - before her death Anna-Jane applied to bank SA for a number of small bank loans. The last 2 being in November '93, and again in March '94. In the box marked life insurance, she entered the figure $36. Precisely the amount of her half share of the instalments on those 5 policies.

Bob Moles

Look, if anybody looks at the evidence objectively, you'd have to assume that she did know about the policies.

Graham Archer

To explain away this troublesome fact, Paul Rofe told the jury that this $36 was really a split between Anna-Jane's mutual health and her disability insurance policies, despite evidence that one had lapsed and Anna had cancelled the other.

Bob Moles

It's absolutely clear that Anna Cheney knew that the policies had been cancelled and that she did not have any medical insurance - and Rofe knew that.

Graham Archer

And then there's the DPP's claim that Keogh withheld evidence of the policies' existence.

Paul Rofe

Oh, they were very important, both what he said about them - certainly he didn't come clean about them at the beginning - and it only emerged in dribs and drabs.

Graham Archer

Right? Well not really. Just 4 days after the distress of finding his fiance dead Keogh gave her super and 3 of her policies to the police. Just one week later, having located the remaining 2, he passed them to his solicitor who gave them to the police. In less than 3 weeks the police had been given everything.

Rohan Wenn

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

Paul Rofe

Well, it was their explanation and it was there to be accepted or rejected by the jury - again, clearly rejected.

Graham Archer

Well, OK. But remember the jury had not been told of the serious questions over the competence of pathologist Dr Manock. They had not been given all of the evidence which cast extreme doubt on any murder ever taking place.

Bob Moles

And if the forensic evidence was flawed or fundamentally mistaken, then the jury might have considered the other evidence differently.

Graham Archer

But if delays in coughing up evidence troubled the DPP consider the case of lawyer Scott Aitken, two of whose children were killed when he crashed off the freeway with a can of petrol, and dropping a cigarette when he says he was attempting to avoid hitting a dog.
With a witness form Mr Aitken's own law firm who'd seen a dog in the area, but who had sat on the information for 12 months?

Paul Rofe

That is so.

Graham Archer

Then it popped up in the last week of the Coronial Inquest?

Paul Rofe

Correct.

Graham Archer

In the light of all that people were very sceptical about the ...

Paul Rofe

I can understand the scepticism, but it was just another factor that was factored in to my opinion and that of the trial prosecutors.

Graham Archer

The year long delay the Coroner was told was on legal advice. But standards seem to differ remarkably. In the Aitken case, despite having Aitken's daughter, a passenger, being prepared to testify against her father, the DPP agreed to accept almost every argument put by the defence without a trial.
I mean the rumour was that the deal, the deal was struck over a few beers?

Paul Rofe

It wasn't a deal it was the advice of the trial prosecutor that we couldn't prove the murder charge.

Graham Archer

Aitken's murder charges were reduced to death by dangerous driving and the judge had no option but to suspend his sentence. Aitken continues to work as a lawyer, now for a major law firm in Sydney.

Paul Rofe

I guess you've just got to ask the public to trust whoever's in the job.

Graham Archer

Trust. Now that's a fragile commodity - particularly when the Attorney General Michael Atkinson briefed by the DPP and the Solicitor General puts a report to Parliament lacking credibility in key areas, even playing down Dr Manock's failings in the Infant Deaths case.

Leigh McClusky

Well, a number of allegations, and after the break we'll see what the Attorney General has to say.

Break

Leigh McClusky

Others believe there is indeed plenty to question on a case that just won't go away.

Graham Archer

Trust. Now that's a fragile commodity - particularly when the Attorney General Michael Atkinson briefed by the DPP and the Solicitor General puts a report to Parliament lacking credibility in key areas, even playing down Dr Manock's failings in the Infant Deaths case. The Attorney General said that the fact that certain people were not prosecuted in relation to the deaths was not attributable to the impugned findings of Dr Manock.
Right? Absolutely wrong. In fact, one person confessed to murder, but Dr Manock's diagnosis of death by natural causes put a stop to everything.

Tony Thomas

That put the police in a very invidious situation whereby they then were prevented from following up any other circumstances arising in the case and in effect the trail went cold.

Graham Archer

Tony Thomas should know - he produced the final report for the Coroner on the Battered Babies case. But our Attorney General comes up with this:

Voice over Attorney General

The Coroner did not find Dr Manock incompetent to conduct adult autopsies.

Graham Archer

Correct? Totally wrong. While the subjects were babies Manock failed to diagnose injury and infection common in both infants and adults.
No specialised skills were required for that?

Tony Thomas

Not in that particular context - of the interpretation of bronchopneumonia or even as I said fractured bones which one would expect a forensic pathologist to deal with in adults as well as in children.

Graham Archer

It seems Paul Rofe and the Attorney General are desperate to stop the first worm getting out of the can.

Voice over Attorney General

There was no miscarriage of justice in the Keogh case. The verdict did not depend on Manock's pathology report but on circumstantial evidence.

Graham Archer

Correct? Wrong. Obviously, if the forensic evidence doesn't support murder then the circumstantial evidence is irrelevant.
But the most questionable statement is this

Voice over Attorney General

There is not a trace of fresh evidence.

Graham Archer

Wrong.

Frances Bedford

Well, I'm not sure how new evidence is defined, but there would seem to be a number of anomalies in the case which have never been tested in the court.

Graham Archer

There is a mountain of evidence which could be considered new, but has never been tested before any court - and Michael Atkinson should know that. But there are also serious questions over the handling of the evidence that was put to the court.
The information that has gone to the court, do you think that has been dealt with satisfactorily?

Tony Thomas

I think that one would have to say no.

Graham Archer

In the meantime, Michael Atkinson seems to have been given the media Mike Rann front page treatment on criminal justice, sprouting the get tough on crims chorus. Whatever the facts, increase the penalties. Perhaps getting the right people behind bars might be a better starting point. And the DPP after 8 years has discovered that perhaps baby batterers should be put in jail too, rather than reviewing the official approach into the Keogh case and a host of others, which simply confirm the need for an independent inquiry into our criminal justice system.

Frances Bedford

The number of people in Adelaide who have concerns are still voicing those concerns. They should be investigated.

Graham Archer

(to Rofe) Because it won't go away.

Leigh McClusky

Graham Archer with that special report.

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