Channel 7 Today Tonight (Adelaide) 12 July 2004
Henry Keogh New Revelations

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

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In order of appearance

Leigh McCluskey, Presenter
Kevin Borick QC, Lawyer for Henry Keogh
Paul Rofe QC, Director of Public Prosecutions [file tape]
Graham Archer, Producer and Interviewer
Rohan Wenn, Interviewer [file tape]
Rebecca Gray, Prosecutor [file tape]
Maciej Henneberg, Professor of Functional Anatomy, University of Adelaide

Program

Leigh McCluskey 

Tonight a breakthrough in the Keogh case. What we're about to reveal has been suspected for some time, but despite numerous denials, crucial colour photographs, which could throw vital light on the case, do in fact exist. Over the past two years, Today Tonight has raised serious doubts about the way the death of Anna Jane Cheney was investigated and after years of political resistance from all sides, the Premier Mike Rann has now referred the case to the Solicitor-General for review. Tonight we also have evidence that the murder scenario proposed by the prosecution would have been almost physically impossible and that evidence has been altered. All this together with the revelation of the missing photos has been enough for Henry Keogh's lawyers to call for a police investigation into the matter. Graham Archer has this investigation.

Kevin Borick QC

New information has emerged which has taken us to further lines of investigation which reveals a situation which I think the people of South Australia will be amazed at when they see the whole thing in its entirety. And they haven't seen that yet.

Paul Rofe QC

[DPP file tape] I think a distinction has to be drawn between the proper processes and if you like, trial by media.

Graham Archer

But what if those processes are faulty? Who then do we call on?

Kevin Borick QC

We've had a Petition before the Government and we've been waiting two years to get a response - and we've been before the Medical Board and we've been waiting even longer. We've been blocked or delayed all along the line.

Graham Archer

Most recently has been the refusal by trial judge, Justice Duggan to even consider an application for access to photographic negatives, which reveal vital new evidence.

Kevin Borick QC

By using new technology to enhance them we're seeing things that we had no idea existed. And the more we thought about it the more we see this as a matter for the police. And the police can get the negatives and follow through what we want to do.

Graham Archer

According to Henry Keogh's barrister, Kevin Borick QC, few cases appear as deficient in due process as the Keogh case. But we're about to raise the possibility of something even more troubling which can only be properly investigated by the police.

Kevin Borick QC

And that is a matter for the police and we will refer the matter to the police.

Graham Archer

Now that's a very serious claim.

Kevin Borick QC

Well it's a matter for the police Graham - and they will have to consider it.

Graham Archer

Today Tonight has already exposed numerous breaches in the collection, preservation and disclosure of evidence. Repeatedly the former DPP, Paul Rofe has maintained that all the evidence, including vital photographs has been made available.
[File tape to Paul Rofe] There were a lot of photographs not exhibited in the trial?

Paul Rofe QC

[File tape] That's always the case yes.

Graham Archer

But does the Defence have access to all those photographs?

Paul Rofe QC

[File tape] Yes.

Graham Archer

For years there's been suspicions about the number and nature of photographs taken but not declared.

Kevin Borick QC

All of our investigation of the photographic material would indicate that there were other photographs taken.

Graham Archer

And we're about to reveal an extraordinary admission. Most difficult to accept have been claims that no colour photographs were taken at the autopsy, particularly given the importance placed upon bruising. It's a matter we've raised for a number of years.

Rohan Wenn

[File tape] I'm asking why colour photographs weren't taken?

Rebecca Gray

[File tape] Well there's a very good reason for that.

Graham Archer

That was Paul Rofe's Assistant, Rebecca Gray butting in, attempting to justify this incredible omission. Rofe himself came up with this -  

Paul Rofe QC

[File tape] I mean it maybe that the funding didn't extend to colour photography, I don't know. I mean it could any number of reasons why colour photographs weren't taken at that time.

Graham Archer

How much is a role of film? But before we get to what's now come to light, even the limited photographs that were handed over after painstaking re-examination reveal compelling new evidence about the death of Anna Jane Cheney.

Kevin Borick QC

There are marks which are appearing on one photograph in particular, as that photograph has been enhanced, which lead to a view that parts of the face of the deceased were interfered with.

Graham Archer

Let’s start with this basic example using the police photograph taken of the bath on the 18th of March 1994, the night Anna Jane died. The police witness statements, in almost every case not completed until months later, carry a similar theme about the depth of the water. From the officer who took the photographs himself:
“I observed that the bathtub had water in it and was approximately two-thirds full.”
And constable Patricia Walkley, the officer, who from the very start was most active in promoting the suggestions of murder:
“I saw the bath was approximately three quarters filled with water.”
To almost every other police witness:
“Approximately three quarters its capacity.”
“Two-thirds full.”
“Just under three quarters full.”
But from the actual photograph, the water level is significantly lower. Yet only one police officer said “half-full”. The calculation from the photo puts the level at just 13 centimetres. This is the actual bath itself and you can see the level.
Now Maciej, you're comfortable that that is a photograph of the bath taken on the night that Anna Jane Cheney died, is that right?

Prof Maciej Henneberg

Yes I have seen this photograph.

Graham Archer

Professor Maciej Henneberg is one of the country’s leading anatomical scientists, specialising in human identification, body shape, size and movement. At a glace what would you say the level of the water is there?

Prof Maciej Henneberg

Well the bathtub is half-full of water and it's a small bathtub.

Graham Archer

Professor Henneberg also calculated the displacement of water caused by a body of Anna's size. And what is revealed is the method of drowning proposed by Chief Forensic Pathologist, Dr Colin Manock was impossible.

Considering that level, would it have been possible by the prosecution's theory to drown a woman like Anna Jane Cheney that size in that amount of water?

Prof Maciej Henneberg

If the head is kept straight, facing upwards, certainly not, because the distance from the back of the head to the base of the nose is approximately 20 centimetres.

Graham Archer

This computer simulation with a model of the same proportions as Anna Jane, and taking into account displacement, demonstrates the point.
So given that, on that evidence alone, it kind of knocks the prosecution’s theory out the window doesn't it?

Prof Maciej Henneberg

Yes. If it’s stated that her head was facing straight upwards, and her legs were pulled up and so on to drown her, it’s simply impossible. Because the water would not have reached the nose and the mouth unless the head was forcibly turned sideways and this would obviously leave clear marks.

Graham Archer

And there's never been any mention of bruises, injuries or evidence of a struggle to support that suggestion. But there's more. You're familiar with these photographs?

Prof Maciej Henneberg

Yes I am.

Graham Archer

These are the photographs of Anna Jane Cheney shortly after she died. [Showing to Henneberg] While these pictures are too graphic to show they are crucial. So we composed computer models instead. This is based on the first of the photos of Anne Jane taken that night.
The shape, especially of the upper face and the forehead is seriously altered by swelling.
And you're an expert in this field and so you're saying that the photograph that you see there bears little resemblance to the living image of Anna Jane Cheney?

Prof Maciej Henneberg

Yes.

Graham Archer

Next, if we compare the first image with the appearance of the second modelled image, from another photograph taken later that night, which was taken on the same roll of film just shortly afterwards. What do you see?

Prof Maciej Henneberg

Well the swelling is completely gone and I would not have had any hesitation to say that this photograph is that of the living person.

Graham Archer

Given the time-frame is that a change that could have possibly occurred naturally?

Prof Maciej Henneberg

I would think it’s impossible in such a short period of time for a natural change to occur and for the swelling to simply somehow go away. It had to be removed by an action of a person.

Graham Archer

So it would require human intervention within that timeframe to change her appearance from this to this?

Prof Maciej Henneberg

As an anatomist I would yes - impossible.

Graham Archer

The original swelling before it was removed offered vital clues to the possible cause of death?

Prof Maciej Henneberg

It's certainly a very important clue as to the cause of death because people don't swell without any reason.

Graham Archer

So in removing that swelling, in essence what's happening, is those clues to a possible cause of death are being destroyed?

Prof Maciej Henneberg

Yes, and what maybe worse, the pattern now has been altered because in making a diagnosis one has to take the pattern of all changes into account.

Graham Archer

Destroyed too was something else - the signs of lividity. When the heart stops the blood settles by gravity to the lowest points of the body. The dark shadows that form under the skin, referred to as lividity, can reveal a host of things about the circumstances of death.
So in other words, the position of the body at the time of death?

Prof Maciej Henneberg

Yes.

Graham Archer

What does the lividity that you see there suggest about her position?

Prof Maciej Henneberg

She would have slumped with her face forward and neck bent. That's what I can see from the photographs.

Graham Archer

And this closely fits the description Keogh gave when he found his fiancé slumped in the bath and contradicts the prosecution case, which claimed –

Prof Maciej Henneberg

She was supposed to have been drowned with her head facing upwards. And then she was pulled out of the bath and put down on her back. So therefore all the blood, in the head especially, would move backwards through the back of the head and drained away from the face. This is not the case.

Graham Archer

No apparent reference to these facts was made to the court - despite the police at the scene - and afterwards the pathologists and the DPP having all this available to them.
Would it be acceptable in the normal course of events for such interference with a body like the one you see here?

Prof Maciej Henneberg

Of course not.

Kevin Borick QC

There is no doubt that the appearance of the face was altered - and there is no doubt that the jury were ever informed of that fact - and there is no doubt that those alterations were significant on the issue of cause of death.

Graham Archer

People present on the night have remarked the body was tended to. What exactly happened that night we are yet to discover.

Prof Maciej Henneberg

It's very strange for anybody to touch the body prior to all the evidence being collected.

Graham Archer

We've already raised questions about the police activity that night. The time the photographs were taken is yet another. According to the police photographer:
[From transcript] “I think you arrived there at about 11pm?
That's correct.”

And after 10 or 15 minutes began filming. This is one of his last photos. If we zoom into the watch on the desk, the time is 11.10. Once again the attention to detail comes under question.

Kevin Borick QC

That time will be proved to be very important as the case develops.

Graham Archer

What we've uncovered might help explain another baffling question. While photographic identification of a person at an autopsy is more or less mandatory, the alterations to the face may explain why no autopsy photographs showing Anna Jane's face have ever been produced.

Kevin Borick

There are other photographs which maybe very relevant to that situation which we haven't seen.

Leigh McCluskey

And there's more still to come on the program. The disclosure of crucial photographic evidence never before made public and coming from a most unexpected source.

Break

Leigh McCluskey

Welcome back. Well the former DPP - and in Parliament the Attorney-General - have constantly claimed that only taking black and white photographs in the autopsy of Anna Jane Cheney was good practice. But almost no forensic expert in the country, nor indeed our own rules governing police forensic procedures, support that position. What's more, the constant assurances that all the photographic evidence in the Keogh case had been put before the defence now seems not to be the case either. It appears that the police did take colour photographs of the body and the person making that claim ought to know.

Graham Archer continues with this breakthrough disclosure.

Kevin Borick QC

I think it's a case that's been made extremely difficult by the fact that it’s been encompassed by fiction and myths. Very much the sort of thing that Lindy Chamberlain was talking about in her case - and it’s tremendously hard for the truth to come out.

Graham Archer

Hopefully what we've already demonstrated will help set the record straight. But this leads us now to the real showstopper. Assurances that Keogh's defence had all the photographs have been repeated many times. But not according to a man who should know. Dr Manock himself. This breakthrough revelation of the existence of other photographs was contained in his response to the current Medical Board inquiry into his performance just a few weeks ago.
[From Dr Manock’s affidavit] “Forensic Science Centre Photographer, Murray Billett attended at the Forensic Science Centre on Monday 21st March 1994 to take photographs of Anna Jane Cheney's body at my request. Monochrome photographs were taken by him. Coloured photographs were taken later on 21st March 1994 by a police crime scene photographer.”

Kevin Borick QC

This is the first time we've been told about what we suspected existed.

Graham Archer

I mean this is a conflict between the Chief Forensic Pathologist and the DPP over the very existence of evidence? That's what it amounts to doesn't it?

Kevin Borick QC

There was obviously a conflict. How that will be resolved of course depends on the way in which the court reviews the evidence which we will now be placing before it.

Graham Archer

What do you propose to do now?

Kevin Borick QC

We'll now have to refer it to the police. There's evidence there that we think is important which should be referred to the police.

Graham Archer

Its taken years to get to this point through appeals, questions in Parliament and calls for inquiries, while the DPP, various Attorney-Generals and the courts have failed in their fundamental duty of searching out the truth - though they've had many chances.
[To Paul Rofe DPP – file tape] Let me put a proposal to you, why don't you just open up all of the evidence because one of the concerns is not all the evidence has been offered up and it hasn't been examined correctly?

Paul Rofe DPP

[File tape] Well I take issue with that. As far as I'm concerned all the evidence was available to defence at trial.

Graham Archer

Do you think we've got close to the truth of this matter?

Prof Maciej Henneberg

I think what was presented in court - certainly not - but now with the discussion of the water level - with the discussion of what happened to the face and so on - we are getting closer to the truth.

Kevin Borick QC

My reaction as a lawyer was that for the first time we really have fresh evidence, potential fresh evidence, which can enable Henry Keogh's case to be sent on to the Court of Criminal Appeal.

Graham Archer

[To Paul Rofe DPP File tape]  Because it won't go away.

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