Channel 7 Today Tonight (Adelaide) 23 April 2004
The case of Henry Keogh

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In Order of Appearance

Leigh McCluskey, Presenter
Terry O’Gorman, Civil Rights Solicitor, Queensland
Robin Napper, University of Western Australia, Forensic Science Unit. Graham Archer, Producer and Interviewer
Derrick Pounder, Professor of Pathology, Dundee University Stephen Cordner, Director of the Victorian Institute of Forensic Medicine Paul Rofe QC, Director of Public Prosecutions, South Australia.

Program

Leigh McCluskey

Hello and welcome to the program. First tonight, how the tide has turned against Director of Public Prosecutions Paul Rofe. This week has seen the release of a damning report from the Solicitor General over Mr Rofe’s inept handing of the Nemer case. A report which also raised serious concerns about the plea bargain deal in the Schmidt case. Now both issues first raised and covered in detail by this program as we examined serious flaws in our justice system that had been allowed to go unchallenged.

As Graham Archer reports, with Mr Rofe now on sick leave from his duties, another high profile case he handled is about to go under the microscope.

Terry O’Gorman

[File-tape] 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.

Robin Napper

[File-tape]  The primary focus is always a search for the truth.

Graham Archer

It is inevitable that we will have miscarriages of justice. But it is unforgivable to have victims of justice.

Derrick Pounder

[File-tape] I work within the criminal justice system. I am a forensic pathologist, but yes, we can make mistakes and by facing up to those mistakes, we strengthen the system, we don’t weaken it.

Robin Napper

[File-tape] 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 democra – tin pot dictatorship.

Graham Archer

Over the past few years, Today Tonight has raised many concerns about our justice system, most notably with regard to the conviction of Henry Keogh.

Stephen Cordner

[File-tape] 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

Problems in the prosecution case also led us to examine the conduct of the Director of Public Prosecutions Paul Rofe QC. Despite claims that his department was overworked and under-resourced we discovered the DPP spending much of his working day at the TAB and drinking coffee.

Graham Archer

[File-tape]  What about the gambling?

Paul Rofe

[File-tape] No, I don’t regard it as a problem.

Graham Archer

[File-tape] There are also rumours that you had lost large sums at the casino?

Paul Rofe

[File-tape] Yes, I’ve heard those rumours.

Graham Archer

[File-tape] They’re not true?

Paul Rofe

[File-tape] No.

Graham Archer

Predictably we were pilloried by many lawyers who saw it as an attack upon one from their own profession rather than as a legitimate check upon what was appropriate behaviour by the State’s Chief Law Officer.

Michael Abbott

[File-tape] - firstly, I think you owe Mr Rofe an apology.

Graham Archer

[File-tape] On what score?

Michael Abbott

[File-tape] Well, in view of what you said, I mean, now is your opportunity to apologise.

Graham Archer

Now the lynch mob mentality which politicians and the media exhibited towards Keogh seems to have focussed on Paul Rofe himself, this time with some justification. And it was on this program that Rofe’s failings in the Nemer case were first revealed.

Mr and Mrs Williams

[File-tape in relation to the Nemer case] They handed in the wrong gun.

Graham Archer

[File-tape] Who handed in the wrong gun?

Mr and Mrs Williams

[File-tape] Nemer – we don’t know

Graham Archer

It was also this program which first revealed the factual flaw in the plea bargain arrangement in the Schmidt case, one month before Nemer, but with striking parallels.

Graham Archer

[File-tape in relation to the shooting of Stacey Brown] So, the DPP Paul Rofe called you into his office to say what?

Anne

[File-tape] To tell us that the charges had been dropped to manslaughter, not to murder. That we were all to be prepared that he would get a very light sentencing due to the fact that he was pleading it was an accident what had happened.

Rose

[File-tape] I was just absolutely dumbfounded. To think that someone’s life is worth just 15 months.

Graham Archer

There are many other cases which deserve the re-examination the Nemer plea bargain has received. And as we have told you previously, since November the Solicitor General Chris Kourakis has been applying his mind to the Keogh case. It’s a chance for our leaders to make history as the heroes or the villains in a drama being played out before us all in the proper observance of due process.

John Nader

[File-tape] 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

John Nader QC is a former New South Wales Supreme Court judge and though speaking generally, let’s hope his advice is heeded by the Premier and the Attorney General.

John Nader

[File-tape] If he allows political considerations at all to influence his decisions as the first law officer, he is failing in his duty and he is failing the people of the body politic to which he belongs.

Graham Archer

It is a rare opportunity that a community has the chance to change a culture so entrenched and self-serving as the legal mindset in this State.

But it has to be done for the right reasons. Sadly, there are plenty of them. Next week Today Tonight will examine the extraordinary facts behind another high profile case. That involving Scott Aitken where a plea bargain and faulty evidence has left a family feeling betrayed by the justice system they placed so much faith in.

Family member in Aitken case

Hell would be the short answer. The questions that have not been answered for them. No closure. All those doubts that have not been examined. It must have been a hell of an experience for them and they deserved better.

Channel 7 News Exclusive - 22 April 2004

Jane Doyle presenter

But first tonight, a legal bombshell. The highly publicised Henry Keogh murder case is being fully re-examined by the Solicitor General. Chris Kourakis is exploring a possible miscarriage of justice which could lead to a re-trial.

Mike Smithson interviewer

Solicitor General Chris Kourakis wants all the Keogh files and any new information which may have come to light. His brief from the Attorney General, following a new Petition by Keogh to the Governor is to explore possible unsafe justice. Keogh was convicted of the callous and calculated drowning murder of his fiancée Anna Jane Cheney in 1996. Many questions have since been raised about the forensic pathology evidence gathered by Dr Colin Manock. If Chris Kourakis finds anything is out of order then the Keogh case will be sent to the Court of Criminal Appeal which can order a re-trial.

Mike Rann Premier

He is looking at the Keogh case. He is looking to see if there is any problems with the original case and then he is going to report back to the Attorney General.

Mike Smithson

The Solicitor General has been reviewing the complete Keogh file already for several weeks. There is no deadline for him to come up with a conclusion, but the Premier is certain that the investigation will be thorough.

Mike Rann

We are doing this properly and that is the way it should be dealt with.

Mike Smithson

The Solicitor General is noted for his tough and astute approach. It was Chris Kourakis whose advice led to the Nemer case being re-examined leading to a hefty jail term after the defendant had received lenient treatment. This week, Mr Kourakis also savaged the Director of Public Prosecutions Paul Rofe over his handling of the Nemer case. Mr Rofe also prosecuted the Keogh case and is on record as saying there was nothing improper in the conviction. Mike Smithson - Seven News.

Channel 7 News  - 23 April 2004

Jane Doyle presenter

People involved in the Keogh murder case are confident the new inquiry by the Solicitor General will achieve justice. But some legal experts believe it’s more about getting rid of Mr Rofe - rather than establishing Keogh’s guilt or innocence.

Mike Smithson interviewer

The Premier’s comments to Seven News about trying to resolve the Keogh matter once and for all have further raised the stakes.

Bob Moles

I think that the statement by the Premier yesterday represents a major turning point in the position of the government in relation to this.

Mike Smithson

Keogh’s supporters are confident alleged forensic pathology bungles will be exposed. Serious doubts have been raised over some of the evidence which led to Keogh’s 25 year prison term for the murder of his fiancée Anna Cheney. Keogh’s lawyers who provided new information to the Solicitor General about other alleged prosecution bungles are intrigued by the timing of the Premier’s comments. They say there are concerns about the role of the DPP Paul Rofe who personally prosecuted the Keogh case.

Bob Moles

If the prosecution of Keogh was unsound then the prosecution of other cases may be unsound as well.

Mike Smithson

The Opposition claims it’s known of the new Kourakis investigation for some time. It says the Premier is merely using the issues as yet another ‘get Paul Rofe’ tactic.

Robert Lawson QC Shadow Attorney General

What I think is unfortunate is the Premier’s opportunistic intervention to try and brow-beat Mr Rofe into resigning.

Mike Smithson interviewer

The Attorney General says it would be improper to discuss the new Kourakis Inquiry. The Premier won’t discuss the matter with the Solicitor General until he has reached a decision. Mike Smithson - Seven News.

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