Channel 7 - Today Tonight (Adelaide)
Henry Keogh and the Medical Board Inquiry - 8 March 2004

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.
John Nader QC - former Supreme Court Judge Northern Territory.
Professor Stephen Cordner - Director of the Victorian Institute of Forensic Medicine.
Graham Archer - Producer, interviewer, presenter.
Terry O'Gorman - solicitor and Head of the Australian Civil Liberties organisation.
Robin Napper - former UK detective chief inspector.
Paul Rofe - QC, Director of Public Prosecutions.
Dr Byron Collins - independent pathologist, Melbourne.
Ross Kalucy - Professor of psychiatry, Member of the Medical Board of South Australia.

Program

Leigh McClusky

Hello and welcome to the program. First tonight, what may have been one of the biggest miscarriages of justice this State has ever seen. When Henry Keogh was convicted of the murder of his fiance Anna-Jane Cheney it was dependent on the forensic evidence of the State's former chief pathologist Dr Colin Manock. A man whose professional performance had already been seriously questioned with concerns that he had made critical errors in numerous cases of suspicious deaths.

Well, now a national team of 28 eminent legal and medical experts has come together volunteering both their time and expertise because they are so concerned about what they see as the blatant inaccuracies and inconsistencies in the Keogh case. As Graham Archer reports in this special investigation, some of the sharpest legal minds in the country are adamant that this case urgently needs reviewing and urgently demands a response by the State Government.

John Nader

...for a person involved in the prosecution to say there was other weighty evidence against an accused person in any event is just no answer ... it shows a complete misunderstanding of the judicial process.

Stephen Cordner

My view and I said it at the trial is, I don't think this case would have got to court in Victoria.

Graham Archer

Though it's had scant mention by any other media, this may open the State's biggest legal scandal.

John Nader

It seems to me that there should be no hesitation about ordering an investigation.

Graham Archer

After years of resistance the Medical Board is obliged to do its duty by conducting an inquiry into the work of former chief pathologist Dr Colin Manock ... starting with his actions in the prosecution of Henry Keogh.

Terry O'Gorman

Well, faulty forensic evidence simply means, as it did in Lindy Chamberlain's case, that an innocent person gets sent to jail.

Graham Archer

According to their Act [the Medical Practitioners Act] this should have occurred years ago after his errors in the Emily Perry case in the 80's and the Baby Deaths cases of the mid 90's - just as in Britain medical authorities have responded after famous pathologist Sir Roy Meadow was exposed as giving faulty evidence in scores of baby death cases.

Terry O'Gorman

The UK Attorney General has ordered a review of almost three hundred cases, where women have been sent to jail in respect of murdering their children, where the evidence now suggests that the so-called eminent expert medical evidence given could well have been fundamentally flawed.

Graham Archer

But this is South Australia ... things are done differently here - if they are done at all.

Terry O'Gorman

... in this country you can get law and order, and increased police powers, and increased powers for prosecutions at the drop of a hat. Try to do something about miscarriages of justice and you might as well go and sing in the wind.

Graham Archer

With the apparent indifference of the local criminal law community and resistance from Attorney's General past and present now a national team of eminent lawyers and medical experts have volunteered to add their weight to the need for a review.

John Nader

I have been shown a number of affidavits from very eminent forensic pathologists who question the conclusions reached by Dr Manock ... they are so eminent and so numerous that it is hard to understand, unless these is other evidence that I don't know about which would have a countervailing effect ... it is hard to understand why an Attorney General would not, without hesitation, direct an appropriate enquiry into the matter.

Graham Archer

John Nader QC is a former New South Wales Supreme Court judge ... having sat on the final appeal which freed Lindy Chamberlain, he understands adherence to proper procedures is vital to any justice system.

John Nader

It's quite clear that if those rules are not observed, there will almost inevitably be miscarriages of justice.

Graham Archer

Welcome to SA. He's joined by Perth's Tom Percy QC, Tim Game QC from Sydney, Stephen Howells QC from Melbourne and Terry O'Gorman from Brisbane.

Terry O'Gorman

In Australia - and I include all states and territories including South Australia - we are so smug and complacent about how fantastic our court system is that we need an urgent wake-up call.

Graham Archer

As most would know, Today Tonight - in conjunction with others - has spent a couple of years investigating this state's often self-serving justice system - the Keogh case being just one example. What's emerged there is a litany of failures, from police crime scene procedures, to the handling of the body, its premature cremation, the destruction of evidence, suspicions raised to police and Attorneys General which were never pursued, all starting with the strange events of that night such as evidence of Anna Jane's missing car .... and on it goes.

Robin Napper

The primary focus is always a search for the truth.

Graham Archer

Robin Napper is a former Chief Inspector of New Scotland Yard - now with the Department of Forensic Science at the University of WA.

Robin Napper

Unless the investigation is thorough then the court proceedings aren't going to be complete, because they are only getting a part of the story.

Graham Archer

And of course, vital to many investigations was Dr Colin Manock who conducted 10,000 autopsies based in many cases on very questionable science.

Terry O'Gorman

Often jurors are bamboozled but particularly when they are told they have an expert before them and they are told by the prosecutor that this expert has given evidence for 20 or 30 years. Most jurors say "well, this bloke must be unassailable". Well, that's the problem in the UK.

Graham Archer

Has the possibility of natural causes been properly excluded?

Stephen Cordner

No.

Graham Archer

In what you have seen.

Stephen Cordner

No. The answer to that question is no.

Graham Archer

Professor Stephen Cordner is the Director of Forensic Pathology in Victoria. He says almost no other expert in the country would propose a murder scenario as Dr Manock did.

Stephen Cordner

I had difficulty thinking that many or possibly even any pathologist in Australia would think or say the same thing.

Graham Archer

It's a disturbing example of an investigation being prejudiced from the start. Much of which came via this woman - now retired police officer Pat Walkley - then attached to the Coroner's Office. She recorded the suspicions of the Cheney family, treating opinion as fact. On the day of the autopsy she added the following to the coronial running sheet.

Voice over Pat Walkley

The whole family hated Henry Keogh.

Graham Archer

She even came up with her own recipe of murder and committed it to the official record

Voice over Pat Walkley

I wonder if he hadn't come home and found her asleep in the bath and pushed her head down into the water. Hence the mark on her forehead.

Graham Archer

In fact the mark referred to is almost certainly a blemish and has never been referred to since. But she then goes on to say.

Voice over Pat Walkley

It's not sounding too pleasant. He is a very odd fellow and strongly built.

Graham Archer

Hardly the product of an open mind, as she seems to have steered the investigation in just one direction, and later boasted to 4Corners.

Voice over Pat Walkley

Keogh is an evil, evil man. If it wasn't for me he wouldn't have been locked up.

Graham Archer

So it was Walkley, fuelled by the comments of the Cheney family, who speculated on the insurance policies as the motive even though they clearly knew of their existence. Walkley circulated the theory to anyone who'd listen, including Dr Manock, exposing as nonsense what the DPP Paul Rofe later tried to suggest what had in fact had been done.

Paul Rofe DPP

I mean accidental death was obviously something we had to disprove.

Graham Archer

Accidental death was never ever tested at all. A fact Dr Manock makes clear as he ignored the most basic rule of forensic investigation.

Dr Manock voice over

I was at no time looking or thinking that the death was accidental because I could find no explanation as to why she would drown.

Dr Byron Collins

The mind needs to be open right from the start.

Graham Archer

Would you say that's a basic requirement of a pathologist to keep all options open?

Dr Byron Collins

Yes it is, particularly initially.

Leigh McClusky

Well next, the case apparently prejudiced from the start. The experts not even prepared to consider it may not have been murder after all. How the evidence was made to fit.

Dr Byron Collins

I don't think other possible causes have been reasonably excluded. There is little evidence to support the "grip" theory.

Break

Leigh McClusky

With a concerted presumption that it couldn't have been anything else but murder, this was the only light the evidence was examined in. Even though the independent experts say it simply doesn't make sense - and in fact there was much more evidence suggesting Anna-Jane actually died of accidental or natural causes. As Graham Archer continues in this special report, all other considerations were apparently rejected in an effort to convict a man of murder.

Stephen Cordner

I find it difficult to think that there'd be many, if any other pathologists in Australia, who'd be comfortable with proposing a murder scenario in court and saying that's what I really think this case is, and for me, I need to be able to you know, get to sleep, about 11 o clock at night and get 8 hours sleep, so that's not the sort of thing I could have done in this case.

Graham Archer

With nothing but murder in his sights, it became a matter of selecting evidence which fitted. Hence the so-called bruises on Anna Jane's left calf were used to support the improbable theory that Keogh gripped it and raised Anna's legs above her head to drown her. It's why on proper inspection it makes little sense. But worse - there are questions about the existence of the critical bruise which may never have existed.

Byron Collins

From this specimen when looked at under the microscope it shows minimal if any bruising at all.

Graham Archer

Dr Byron Collins is a Victorian independent pathologist working in private practice who also has serious misgivings about a presumption of murder.

Byron Collins

If there is an inconsistency then yes, I think that it should be investigated with as much rigour as possible.

Graham Archer

Equally appalling is that since that possibility was first raised by expert pathologist Professor Tony Thomas, he's been the subject of a personal attack by the Attorney General in Parliament in an effort to discredit him. And, aided by Paul Rofe and others there seems to be an effort to shift the focus away from the significance of those highly dubious bruises.

Paul Rofe

The forensic pathology wasn't going to provide the answer. I mean it was necessary and important background.

John Nader

It is not enough by the way to say "oh look, there is other evidence in the case which may have pointed towards the guilt of Keogh", because a trial is tainted by any evidence which may have operated on a jury's mind, which may have shifted them, to convince them of an accused persons guilt, taints the whole trial.

Graham Archer

The concerns raised by Professor Thomas are supported by many other pathologists and medical experts who say there's much more evidence to support death by natural causes.

Byron Collins

But that I don't think other possible causes have been reasonably excluded.

Graham Archer

What do you think of Dr Manock's claim that the bruise on the top of the head ruled out any possibility of an accidental death?

Stephen Cordner

A slip in the bath of a woman who has a blood alcohol level of .08 - perhaps standing up in the bath suddenly, getting a faint, to me - to use that for some kind of support for a murder scenario - I can't understand how it tells between one thing and another.

Graham Archer

But what's now emerging is something much more alarming. Is there any objective proof that you know of that a section was taken from the inside of the left leg?

Byron Collins

No, there's none that I know of, or that I have been shown.

Graham Archer

As stated, the most doubtful bruise is the one on the inside left calf which Dr Manock claimed proved Keogh had gripped the leg.

Byron Collins

I think there is little evidence to support the grip theory as described by the pathologist in this case.

Graham Archer

And it's here that Dr Manock's offsider and successor, Dr Ross James now also comes under scrutiny. His advice has become crucial to the Rann government's attempts to close off any further inquiry. He's been liberally quoted by the Attorney General, while relying on sympathy for the Cheney family to justify his political agenda.

Voice over Attorney General in Parliament

He (Dr James) concluded while the opposing thumb bruise will corroborate a grip mark, the opposite is not true.

Stephen Cordner

I think there are very few pathologists in Australia who would go to court and say this means the leg was gripped by a hand.

Graham Archer

Now a much more serious question has arisen about where the tissue samples of the bruises really came from. In the first trial, Dr James said no sample was taken from the right leg. And his source was the body chart prepared by Dr Manock during the autopsy.

Voice over Ross James

I am guided, of course, by the records of Dr Manock here.

Voice over Michael David

Yes of course.

Voice over Ross James

I have a chart of his in relation to this case, which indicates that one tissue sample was taken from the bruise on the top of the head, one was taken from the bottom cluster of the three bruises on the left calf above the ankle and the third section was from the bruise on the inside of the left ankle.

Voice over Michael David

So, from two areas?

Voice over Ross James

Yes the leg and the head.

Graham Archer

And Dr James continues.

Voice over Ross James

Apparently no tissue samples were taken of the bruises on the back of the neck and the right shin.

Graham Archer

Not right. One of the photographs, not disclosed to the defence, proves the body chart, and therefore Dr James' evidence was wrong. It shows tissue was taken from the right leg.

Graham Archer

Have you seen that photograph before?

Byron Collins

No.

Graham Archer

So why was it not on the body chart Dr James referred to? And more particularly, why is there no photographic proof that tissue was taken from that crucial thumb mark on the left leg?

Graham Archer

Have you seen a photograph that shows a section taken from the inside of the calf on the left leg?

Byron Collins

No.

Graham Archer

The body chart Dr James used was never made public. But in the second trial, Dr Manock produced this one which revealed samples were taken from both legs. How can there be two body charts, telling different stories? And even then, the official version still doesn't quite match the photograph.

Robin Napper

Everything should match. I mean an autopsy is an integral part of the criminal investigation.

Graham Archer

And if they don't match?

Robin Napper

Well you certainly couldn't rely on them.

Stephen Cordner

In this case, once the hard light of review is put on this case, you have to accept the record is - the record is weak - and part of that record is that insufficient samples have been taken of a wide enough range of tissues.

Graham Archer

And if all this seems improbable, ponder for a moment on the way our Director of Public Prosecutions disregarded the substitution of the gun in the Nemer case, until Today Tonight exposed it. In the Keogh case, there's so much which doesn't satisfy a proper chain of evidence - such as dates which don't add up - and the testing of items for which no record exists.

Byron Collins

Well, there's no comment that a jar of blood was taken and there is no comment that the stomach contents was taken.

Graham Archer

While John Nader is at pains to point out that his comments are based solely on matters of principle - and not aimed at individuals - he says Attorneys Generals by definition have a duty beyond politics to see that justice is done.

John Nader

That duty is an absolute duty. He cannot back off that. An Attorney General who does not approach that job with complete integrity is derelict in his duty.

Leigh McClusky

Well, after the break, why were Dr Manock's important errors allowed to go unchallenged? The experts are saying that given there were so many concerns about Dr Manock's abilities, where was the Medical Board that should have called him to account?

Robin Napper

It should be all above board on the table. I mean, after all, we're not talking about a Spanish inquisition or a tin pot dictatorship.

Break

Leigh McClusky

Welcome back. Well, given all of the evidence who can we now expect to act? In any case of a major miscarriage of justice who can the South Australian public rely on to see that mistakes are set right? Henry Keogh has now spent the best part of a decade behind bars and while so far the Attorney General has refused to be moved it is surely the Medical Board's role and responsibility to review Dr Manock's performance in this case. But as Graham Archer continues, it is not something they are eager to do.

Graham Archer

Which begs the question why our Attorney General won't, and with all the Premier's posturing about the Nemer case, nothing has actually been done to fix the basic problem. Now Dr Manock's conduct in the case is before a very reluctant Medical Board.

Graham Archer

Do you think the Board is the best forum for this?

Ross Kalucy

Well, I'm not an expert on it, but my answer would be the obvious one - of course it's not - but they exhausted all the other avenues.

Graham Archer

Professor Ross Kalucy is a current member and former president of the Medical Board. In discussions on another topic, we raised with him the Board's confusion over its own rules.

Graham Archer

This is what their website has to say about investigating complaints.

It says that according to the Act, the complainant has two choices - he can go and ask the Registrar to investigate, or the complainant himself investigates and presents the matter before the Board.

But, the Act doesn't say that at all. Section 54 says - (d) an allegation of unprofessional conduct of a medical practitioner can be laid before the Board (d) by a person who is aggrieved. It doesn't say that they have to investigate their own complaint - that would be ludicrous.

Ross Kalucy

What's this got to do with what you said we were going to be talking about?

Graham Archer

It's about process. Surely the meaning of the Act should be fundamental to any discussion - as for the Medical Board's claimed lack of investigative resources? Well that goes straight back to the Attorney General again. For a "law and order" government, there appears to be a lack of interest in ensuring there's some order to the way the law is administered. And that is a problem for us all.

Robin Napper

It should be all above board on the table. I mean, after all, we are not talking about a Spanish inquisition or a tin pot dictatorship. We are talking now about a healthy democracy.

John Nader

It seems to me that there should be no hesitation about ordering an investigation. If it transpires that the body of evidence - the weight of the evidence - is against these forensic pathologists who have been critical of Dr Manock, so be it. All it can do is clear the air and exonerate the Attorney General.

Leigh McClusky

Plenty of questions which still need answers. Graham Archer with that report.

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