Channel 7 - Today Tonight (Adelaide)
Developments in The Keogh Case - 9 June 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 McCluskey - presenter
Derrick Pounder - Professor of Pathology, Dundee University
Graham Archer - interviewer and producer
Rohan Wenn - interviewer
Paul Rofe QC - Director of Public Prosecutions - DPP

Program

Leigh McCluskey

Good evening and welcome to the program. In tonight's story, Graham Archer will re-examine the circumstances on the night Anna Cheney died. Tonight, we will reveal the possibility that someone else may have been present that night; and we will reveal a host of new evidence never investigated, or which was actually withheld from the jury - evidence which may have led to a very different outcome. Now this investigation is not directed so much at the guilt or innocence of Henry Keogh, but more importantly at the need to ensure the proper functioning of the criminal justice system in this State. And alarmingly tonight we will reveal the length that authorities and Attorney's General in particular have been prepared to go to protect the system which in many ways is a law unto itself. Graham Archer has this special investigation.

Voice over song

Everybody knows, everybody knows ...

Derrick Pounder

I can guarantee you that your justice system will have miscarriages of justice. Its a system which is built around human beings and human beings fail.

Graham Archer

It's a proposition that's beyond dispute, except perhaps in South Australia.

Derrick Pounder

By facing up to those mistakes, we strengthen the system, we don't weaken it.

Graham Archer

That's the informed opinion of Professor Derrick Pounder, an internationally respected forensic pathologist now in the UK but who formerly worked in Adelaide.

Derrick Pounder

You only need one item of evidence which says it couldn't have happened to prove it didn't happen.

Graham Archer

What you're about to see is evidence of the most serious failings of our justice system. An abuse of process under the noses of the defence counsel and supreme court judge, during the two murder trials of Henry Keogh.

Derrick Pounder

Well, I think the thing we have to remember is, we can all be accused persons, and it's in everyone's interests that we have a justice system which is fair, and in which we have strong confidence.

Sound bite

from radio interview with Bob Francis:

Michael Atkinson

Look, I am I am a fair fair man Bob

Bob Francis

Yeah

Michael Atkinson

If there is new evidence, evidence that was, was not before the court, and would tend to raise a reasonable doubt as to Keogh's conviction, then of course I am willing to have a lawyer look at that.

End of sound bite

Graham Archer

Yes, but which lawyers? That's our Attorney General Michael Atkinson, who despite this high minded pledge has done the opposite, conducting the charade of having the Director of Public Prosecutions, investigate himself.

Derrick Pounder

Well, there's no point in having a re-investigation by the original investigators, because they carry with them the baggage of the previous investigations, or their prejudices about that. And of course, the serious implications if they have made an error.

Graham Archer

But we can reveal a stack of new evidence that's never been investigated, or followed up, starting with this letter to the former Attorney General.

Voice over Letter

The honourable Trevor Griffin, Dear sir, I do believe my suspicions should be reported to your office.

Graham Archer

This is former lawyer Linden Fairclough in 1994. He was the subject of a fraud inquiry headed up by Anna-Jane Cheney in her role as the acting director of professional conduct and practice with the Law Society. However, on the day she died, she and members of the fraud squad faced the embarrassment of returning Fairclough's files after seizing them illegally. On the day of Anna's death Fairclough spoke to her by phone on three separate occasions. A fortnight later, he wrote this letter to the then Attorney General Trevor Griffin, raising his concerns about Anna's state of mind on the day of her death. The letter reads:

Voice over letter

I spoke to Ms Cheney on three further occasions on Friday 18 of March. I gained the distinct impression that Ms Cheney was increasingly concerned and distressed. I believe Ms Cheney died that evening and I note suicide has been ruled out. Perhaps other witnesses with whom she worked may be able to assist further in relation to her state of mind that day.

Graham Archer

In fact, suicide had never been ruled out by any thorough scientific inquiry, but the die was cast. They were interested in nothing but murder. All Fairclough ever received was a note to say that the letter had arrived. No one. Not the Attorney General. Not the prosecution. Not the defence if they ever knew about it, ever contacted him.
Follow up - NIL
But this was not the only phone conversation on the day of Anna's death which should have raised questions.
(Outside the house in Homes Avenue, Magill)
On the night Anna died, this street was full of activity. The police, ambulance, family and onlookers. And one neighbour, Beth Underwood remembers that night particularly well. She was asked by a police officer if he could use her phone. Brett Williams made that call, and was later himself called as a witness in the first trial and questioned by the DPP Paul Rofe QC.

Voice over Paul Rofe from transcript

Did you make any phone calls that night.

Voice over constable Brett Williams from transcript

Yes, I did.

Voice over Paul Rofe from transcript

From where?

Voice over constable Brett Williams from transcript

From a neighbour's premises

Voice over Paul Rofe from transcript

Was there any reason you used the neighbour's rather than the phone in the deceased's house?

Voice over constable Brett Williams from transcript

Well, I couldn't use the phone in the house, either discreetly or privately, so I chose to use a neighbour's.

Graham Archer

But that's where the questioning stopped. Not one word about who was called, or what was said. But Beth Underwood knows something of that conversation. She overheard Williams say that Anna had strange marks all over her body. Strange marks. Now that doesn't prove anything. But it raises the issue of an allergic reaction. But none of this was followed up. Not the prosecution. Not the defence questioned Williams any further. And he wasn't even called for the second trial.
Follow up - NIL.
Is it acceptable for the police or the prosecution to ignore evidence of alternative causes of death?

Derrick Pounder

No, it's never appropriate to consider only one possibility.

Graham Archer

Equally disturbing, Williams made no reference to the call in his written statement and when questioned, Paul Rofe seemed to have no knowledge of it, despite raising it in court.

Rohan Wenn

Did you look at why they'd been using home phones instead of mobile phones, or police radios to make calls?

Paul Rofe DPP

I didn't know that fact.

Rohan Wenn

Does it concern you?

Paul Rofe DPP

No, why should it?

Graham Archer

When we contacted Williams, no longer a police officer, he refused to divulge anything about that call or give reasons for his refusal. And here's something even more extraordinary. We can reveal evidence that someone else may have been at the house that night. Evidence police and prosecutor Paul Rofe have overlooked.

Paul Rofe DPP

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

Graham Archer

The reference is to this police photograph, taken on that night. Henry Keogh's car is in the drive, but despite her obviously being home, where's Anna's car - also a Volvo.
This close up shows no sign of a car. That cloth is not covering a vehicle and certainly not a Volvo. Here it is in a later photograph. Now here's an identical photograph taken with the same model Volvo in the spot Anna's should have been, using the same format camera the police say they used. When we compare the two close ups it presents the distinct possibility that Anna's car is missing. Amazing again, no one seemed curious.

Paul Rofe

I've always said it wasn't raised by the defence, no.

Rohan Wenn

And it's not something you looked at prior to going to trial deciding whether a crime has been committed?

Paul Rofe

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

Paul Rofe

That's a possibility, yes.

Graham Archer

This has the potential to change a great deal. The deceased's car is missing and the prosecutor has just conceded it's a possibility someone else was at the house that night. Surely that's fundamental to any inquiry into what really happened.
Follow up - NIL.
But there's more. Someone else had some views about what might have happened that night.

Voice over Constable Fielding from trial transcript

On my instructions because of Ms Cheney's work with the Law Society professional conduct, Mr McKenzie who was something to do with that, raised queries about two practitioners they were having difficulties with at the time.

Graham Archer

The two detectives, Kerrie Man and partner Michael Fielding conducted the first inquiries into Anna-Jane's death. In one of their CIB running sheets they note meeting a Peter McKenzie at Anna's parents house a few days after her death. Much later, but before the trial, this meeting was discussed in court.

Voice over Kerrie Man from transcript

Spoke with Peter McKenzie boss of deceased.

Voice over Paul Rofe from transcript

What had you learnt from Peter McKenzie?

Voice over Kerrie Man from transcript

Basically, he felt he was Anna-Jane's boss at the time and he felt that ...

Voice over Paul Rofe from transcript

from where...

Voice over Kerrie Man from transcript

From the Law Society and it was his understanding that her death could be related to some of the files she was handling at the time.

Graham Archer

From the outset, it poses a number of troubling questions. Firstly, Peter McKenzie was not Anna's boss. In fact, there was no such lawyer in Adelaide of that name at that time. Paul Rofe, Michael David, Keogh's defence and in fact the judge Justice Duggan all should have known that Barry Fitzgerald was her employer. After all, she worked for the Law Society, so why not correct it, or question further who was the mysterious Mr McKenzie. But the questioning continues, this time with Detective Fielding.

Voice over Paul Rofe from transcript

You mentioned Peter McKenzie whom you understood to be the employer of Ms Cheney?

Voice over constable Michael Fielding from transcript

Yes.

Voice over Paul Rofe from transcript

You saw him at the Cheney's?

Voice over constable Michael Fielding from transcript

Yes

Voice over Paul Rofe from transcript

Did you speak to him?

Voice over constable Michael Fielding from transcript

Briefly, yes. He expressed some concerns regarding the death of Anna Cheney and said he wanted to speak to us in regards to his suspicions.

Voice over Paul Rofe from transcript

A matter he was working on with the Law Society?

Voice over constable Michael Fielding from transcript

That's correct.

Voice over Paul Rofe from transcript

Did that relate to legal practitioners?

Voice over constable Michael Fielding from transcript

Yes it did. And also some concerns regarding her former employer too.

Graham Archer

Again, was any of this ever properly investigated? Now it's the defence's turn to quiz detective Fielding.

Voice over Michael David from transcript

Mr McKenzie mentioned to you what night, the Monday night?

Voice over constable Michael Fielding from transcript

That was on Monday.

Voice over Michael David from transcript

Mentioned another possible suspect, a possible suspect.

Voice over constable Michael Fielding from transcript

Yes, possible suspicions that he had

Voice over Michael David from transcript

Between then and when you spoke to Mr Keogh on the Wednesday morning, had you done some investigations on Mr McKenzie's thoughts on the matter?

Voice over constable Michael Fielding from transcript

I didn't but I think it was found that someone from the fraud squad had actually attended at an office where Ms Cheney had worked and seized some documents and some enquiries were made in regard to that and what that was all about.

Graham Archer

But was it enough? Well we chased it up, and McKenzie was actually Barry Fitzgerald. But no reference is ever made to his suspicions, and he was never called as a witness by the defence or the prosecution.
Once again - follow up NIL. Anna's previous employer was lawyer Roger Nunn who was also being investigated. His practice was under suspicion while Anna was still working there. He too was eventually convicted of fraud.

Voice over

Non-parole was set at four months.

Graham Archer

Add to this the fiasco of the raid on Fairclough's files, and the pressure on Anna-Jane was intense. Enough conceivably to bring on a stress related seizure, or even to suicide. But the only option explored was murder.
Follow up - NIL.

Leigh McCluskey

Well after the break, as our investigation continues, how the case against Henry Keogh was based on evidence which wasn't just misleading, it was impossible.

Break

Leigh McCluskey

Graham Archer now shows that the Crown's case about what happened on that night was not just misleading but impossible. With the use of 3D animation we can now reveal why the case was flawed. Graham Archer continues his investigation.

Paul Rofe

I mean circumstantial evidence is not in itself necessarily subject to weakness or strength any more than eye witness evidence might be.

Graham Archer

In cases based purely on circumstantial evidence as the Keogh case was, the prosecution should only proceed with murder if they've eliminated all other possibilities. So let's consider the Crown's murder scenario which Paul Rofe described to the jury as conclusive. Vital to that conclusion were a series of marks on Anna's legs which pathologist Dr Manock claimed were bruises. Here's what he told the court in the first Keogh trial.

Voice over Paul Rofe from transcript

The bruises on the left leg did they appear to you to be consistent with any particular cause?

Voice over Dr Colin Manock from transcript

I placed my left hand behind the lower leg, and found that I could fit my three fingers and thumb against the bruises that were present, so that it was possible it was caused by a grip.

Derrick Pounder

There's never any proof that these marks are hand marks. It's an inference based upon the pattern of bruising.

Graham Archer

Dr Manock admitted this in court when questioned by the defence.
Are they necessarily finger marks?

Derrick Pounder

No, the only features that suggested they are finger marks is that they are the same size as the tips of fingers.

Graham Archer

All doubts were set aside, and the argument put that Keogh scooped up both of Anna's legs, gripping the left calf around the ankle, somehow pinning her right leg in the crook of his elbow, and forcing her legs over her head, using his other hand to submerge her head.

Derrick Pounder

The normal practice is that if we know a death is suspicious, or we know it's a homicide, the forensic pathologist goes to the scene of the death from the start.

Graham Archer

In a matter of days, Dr Manock was signalling the possibility of foul play. But it was three months before he visited the scene and found it was physically impossible for Keogh to have used his left hand. Even if Anna was lying the opposite way, it meant Keogh was standing in the wall. So what to do? Simple. Swap hands. Here's the complete exchange in court.

Voice over Dr Manock from transcript

I placed my left hand behind the lower leg and found that I could fit my three fingers and thumb against the bruises that were present so that it was possible it was caused by a grip.

Voice over Paul Rofe from transcript

From their position and shape, are you able to say which hand was used?

Voice over Dr Manock from transcript

It would appear to be the right hand.

Graham Archer

Left hand in one answer. Right hand in the next. And not so much as a blink. But that too was impossible. A right hand grip didn't fit the pattern of bruising.

Derrick Pounder

It's very important to make sure that there is a correspondence, because it only requires one conflict to say that that hypothesis cannot be correct.

Graham Archer

By the second trial, when questioned by the defence, Dr Manock performed some gymnastics of his own.

Voice over Michael David from transcript

Those four bruises are consistent with grip marks, is that because of their placement?

Voice over Dr Manock from transcript

Because I was able to put my hand on the calf and then my fingers and my thumb fell on the bruises without any contortions at all.

Graham Archer

Still no one challenged how marks once indicative of a left hand grip, could be claimed to so comfortably match the opposite hand. But the sleight of hand went further. The only photographs of Keogh's hands tendered are of the wrong hand. His left hand. Or what appears to be his left hand. Look carefully and this one is actually Keogh's right hand, but it's been printed in reverse. Looks like the hand that might best fit those marks.

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. Can you see anything irregular about those photos?

Paul Rofe

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

Rohan Wenn

Which hand?

Paul Rofe

Got no idea.

Rohan Wenn

That's his left hand.

Paul Rofe

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

Graham Archer

And while the DPP was surprisingly slow in picking his left from his right, he was very quick to twig to the flipped photograph.

Paul Rofe

Just looking at them it's obvious it's not a right hand. I mean, whether the photograph's been transposed in the reproduction, I don't know.

Rohan Wenn

It's about the numbers. Are there numbers there that seem to appear to be not back to front?

Paul Rofe

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

Graham Archer

Oh really. How much clearer could it be? But let's make this point. Rofe's reluctance to recognise the obvious failings in the case show how inappropriate it is for him to review his own work.
Follow up - NIL.
The DPP described the grip marks as the one positive indication of murder. But Anna's body had been picked up and carried outside by the police themselves. Later tests of tissue taken from the so-called thumb print showed no signs of bruising, and only black and white photographs were taken - which make no distinction between a stain, a blemish or a bruise.

Derrick Pounder

We would never take a black and white photograph instead of a colour photograph.

Leigh McCluskey

Well next the crucial evidence that Henry Keogh did try to revive his fiancee.

Break

Leigh McCluskey

The prosecutions case was that he didn't attempt to resuscitate his fiancee. Obviously, if it was murder, he wouldn't have attempted to save her. But tonight we can reveal evidence which was never tested scientifically and was never raised before the jury, that actually supports Keogh's claim that he did try to save his fiancee's life. Graham Archer continues.

Paul Rofe

Accidental death was obviously something we had to disprove, and to that extent, it rendered the death at least as very suspicious. As indeed we said, a fit healthy 29 year old girl doesn't drown in the bath.

Graham Archer

But they do. There are quite surprising statistics to show such events are not uncommon. However, one of the crucial parts of the prosecution's case was to disprove any attempt by Keogh to resuscitate his fiancee. After all, if he tried to save her, it could hardly be murder.

Voice over Paul Rofe from transcript

What about the resuscitation? The Crown case is very simple. There was none. There wouldn't have been. There was no evidence of that because there wasn't any. There was no staining, wetness and so forth.

Graham Archer

Keogh says he tried resuscitation but couldn't inflate Anna's lungs, and in fact in the autopsy, an airways blockage was found. Keogh also said he was forced to wipe away mucous so he could continue mouth to mouth.

Voice over Keogh from transcript

I just grabbed some track suit pants that were there and just wiped that so I could get a seal.

Graham Archer

Keogh was accused of lying about this, but here are the photographs taken on the night. Taken by police. They distinctly show the presence of mucous on the clothing. Mucous which was never tested forensically but again, is a significant indicator of severe allergic reaction.
Again, follow up - NIL.
Now from what you know about the Keogh case, do you think there's cause for an independent review?

Derrick Pounder

Yes. I think that there are very worrying things in the Keogh case. I am a forensic pathologist, so I look particularly at the forensic pathology. And when I see a complete difference of view point between the forensic pathologists; we're not talking shades of grey but black and white, then there's a problem.

Graham Archer

But this is not so much about what Henry Keogh did or didn't do, it's about the functioning of the criminal justice system, according to proper principles, to ensure the innocent are safe and the guilty are punished.

Derrick Pounder

It's important we face up to the fact that yes, we can make mistakes, and by facing up to those mistakes, we strengthen the system, we don't weaken it.

Voice over song

.. it really will disclose, what everybody knows

Leigh McCluskey

And a footnote to that story. A team of eminent barristers from interstate has now been recruited to examine all of the evidence and provide an independent analysis to be presented to the Supreme Court.

Top of Page