Channel 7 Today Tonight (Adelaide) 8 November 2004

Keogh and the Medical Board

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

In order of appearance

Rosanna Mangiarelli, Presenter
Dr Bob Moles, Author A state of injustice
Professor Stephen Cordner, Director, Victorian Institute of Forensic Medicine
Graham Archer, Producer and Interviewer
Derrick Pounder, Professor of Pathology, Dundee University, Scotland
Dr Tony Thomas, Associate Professor of Anatomical Pathology, Flinders Medical Centre, Adelaide
Dr Byron Collins, Independent Consulting Pathologist, Melbourne

Program

Rosanna Mangiarelli

First tonight the faulty evidence put to the jury in the conviction of Henry Keogh will at last appear quite unmistakable and totally unacceptable if we're to restore confidence in our justice system. Last week the State's former chief forensic pathologist, Dr Colin Manock, gave evidence under oath in a Medical Board inquiry into his work in the Keogh case. What's emerged though, and what's now on record, are conflicting reports over and over again, with evidence put to two juries in Henry Keogh's trials. And it wasn't just Dr Manock who appears to have given conflicting reports. Evidence of other witnesses at the trial has now also come under serious question. Now would be the appropriate time for the Solicitor-General to respond to calls for an independent inquiry into the case and perhaps, as Keogh's lawyers are saying, time too to call in the police. Graham Archer has this story.  

Bob Moles

It's hard to imagine a matter more serious for the legal system than something of this sort.

Professor 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 at 11 o'clock at night and have 8 hours sleep, so that's not the sort of thing I could have done in this case.

Graham Archer

We're getting much, much closer to what did and did not happen the night of March 18th 1994, the night Anna Jane Cheney died.

Is this case big enough and the implications of this case big enough to demand a Royal Commission?

Bob Moles

Oh, without a doubt. I haven't in all my years of studying legal cases ever come across a case that remotely comes as close as this one has to a complete failure of procedures.

Graham Archer

What's been suspected for years took a giant step towards reality last week when Dr Colin Manock, the State's chief forensic pathologist for almost 30 years, faced a Medical Board hearing into the competence of his work in the conviction of Henry Keogh. While claiming the rest of the world had not caught up with him - in so many alarming ways - Dr Manock's evidence under oath conflicted dramatically with what he'd told a committal hearing and two murder trials 10 years ago.

Prof Derrick Pounder

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

Graham Archer

We'll begin with the bruises on Anna Jane's left leg, so important to the prosecution's case. In fact former DPP, Paul Rofe, told the court they were, "The one positive indication of murder, namely the grip mark on the bottom of the leg."

The one positive indication of murder? But crucial to complete the grip theory was whether the so-called thumb bruise on the inside of the calf actually existed. Every pathologist who has examined the tissue taken from that spot under a microscope has failed to find evidence of a bruise. Not Professor Stephen Cordner.

Prof Stephen Cordner

[file tape] I think there would be very few of any pathologist in Australia who would go to court and say 'this means a leg was gripped by a hand'.

Graham Archer

Not Associate Professor Tony Thomas.
The information that's gone to the court do you think that's been dealt with satisfactorily?

Dr Tony Thomas

I think one would have to say no.

Graham Archer

Not Dr Byron Collins.

Dr Byron Collins

The material that - of this - from this specimen that's looked at under the microscope shows minimal, if any, bruising at all.

Graham Archer

Add to the list, most recently, Dr Manock's own colleague - Dr Ross James, who's now conceded to the Medical Board:

"When I looked at the histological section purported to have been taken from this area I would not describe what I saw in the sample as a bruise."

But now the real bombshell! Dr Manock himself has now admitted he couldn't find proof of a bruise either.
So he looked at it, thought it might be a bruise, put it under the microscope, couldn't find any scientific evidence of a bruise but said it was a bruise anyway?

Dr Bob Moles

That's correct.

Graham Archer

But he kept this extraordinary fact to himself?

Dr Bob Moles

And he said that he didn't inform the Director of Public Prosecutions of that fact.

Graham Archer

He didn't?

Dr Bob Moles

He did not.

Graham Archer

Dr Bob Moles has just completed a book called A state of injustice, which examines a number of Dr Manock's cases - but what he's heard in the last few days has shocked him.
And every other pathologist who's looked at that slide - and this is the bruise on the inside of the calf - has said 'it's almost certainly not a bruise'.

Dr Bob Moles

Well absolutely. Well, they've said that there's no scientific evidence that there is a bruise at that location - and we always understood that that was a conflict between the other pathologists and Dr Manock. But Dr Manock, in his evidence at the Medical Board, said in fact it's not a conflict - because he agrees with them.

Graham Archer

But even so, none of this stopped Dr Manock from suggesting to the jury that he had found proof of a bruise?

Dr Manock

[Second trial transcript of Henry Keogh - voice over] All the bruises appeared to be the same. The ones examined microscopically appeared to be less than 4 hours old.

Graham Archer

Next he changed his evidence, over which hand he claimed Henry Keogh had used to grip and lift Anna Jane's legs.

Dr Bob Moles

Dr Manock said very clearly before the Medical Board that it had always been his position that the marks on the left leg of the deceased had been caused by a left hand.

Graham Archer

And is that consistent with evidence he'd given in the trials?

Dr Bob Moles

No it's not.

Graham Archer

Here is what he actually told the jury.

Dr Manock

[Second trial transcript of Henry Keogh - voice over] 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.

Paul Rofe QC

[DPP from second trial transcript of Henry Keogh – voice over] From their position and shape are you able to say which hand was used?

Dr Manock

[Second trial transcript of Henry Keogh - voice over] It would appear to be the right hand.

Graham Archer

Left hand one minute - right hand the next - and now that's all changed again. How does he explain that?

Dr Bob Moles

He indicated that there may have been some inaccuracy in the transcript of the trial.

Graham Archer

Two trials?

Dr Bob Moles

Yes.

Graham Archer

Inaccuracy in two trials?

Dr Bob Moles

Yes.

Graham Archer

Then there's the question of weighing the lungs - something you might think important in suspected drownings. Dr Manock told the Medical Board he did take weights but his assistant wiped them off the whiteboard while he was on the phone - but here's what Dr Manock said at the committal hearing.

Transcript of committal proceedings

[Voice over] Did you weigh the lungs?
[Dr Manock ] No I did not.

Graham Archer

Well clearly that's in conflict too, isn't it?

Dr Bob Moles

Yes.

Graham Archer

What's even more concerning is that in 2001 this document mysteriously appeared bearing Dr Manock's handwriting noting the weight of the lungs.

Dr Bob Moles

In the evidence that's been given before the Medical Board, that there must be even more serious doubts about the evidence that had been given at the trial of Mr Keogh.

Graham Archer

The contradictions continued over the contentious black and white autopsy photographs. Photographer, Murray Billet claimed in his witness statement to have been instructed to take only black and white photographs - and on this point Dr Manock has a strong supporter in the Attorney-General, Michael Atkinson, who informed Parliament:

Michael Atkinson

[In Parliament] Today Tonight would have its viewers believe there was something sinister about the photographs taken during the autopsy.

Graham Archer

Sinister is Atkinson's word. We'll settle at this stage for just incompetent. And it seems, almost every eminent expert here and overseas agrees with us, including internationally renowned pathologist, Professor Derrick Pounder.

Prof Derrick Pounder

[File tape] But you would never taken a black and white photograph instead of a colour photograph.

Graham Archer

And forensic photographic expert, Associate Professor Gale Spring.

Prof Gale Spring

Now I've been in forensic and in pathology for.. well since 1976 and I've never known anything other than using colour.

Graham Archer

But, determined to dig an even deeper grave for his credibility, Atkinson went further.

Michael Atkinson

[In Parliament] In 1994 it was policy of the State Forensic Science Centre to take only black and white photographs. Therefore it is quite wrong to suggest that the use of black and white photographs was a poor technique - it was good practice.

Graham Archer

But not even Dr Manock supports the A-G as he's now said he did request colour photos.

Bob Moles

Well, he indicated that in fact he'd given instructions to his laboratory technician to take a certain number of photographs, including full body photographs, so that the body could be identified. And he also said that he'd ask the police to take colour photographs. Now apparently none of that happened.

Graham Archer

So even though he instructed to someone to take the photographs and they didn't - he took it no further?

Bob Moles

Well, it appears that he'd instructed more than one person to take photographs and they failed to take either the number of photographs or in fact colour photographs as he had apparently instructed them to do, or requested that they do.

Graham Archer

What will the Attorney-General, or his replacement, now tell Parliament?
But this brings us to the level of the bath water. As we've revealed from the police photographs the bath appears to have been only around one third full and as such not deep enough to drown Anna Jane in the way the prosecution claims. Now another revelation from Dr Manock. If it was one third full, what did he say?

Dr Bob Moles

Well, Dr Manock said that if it was only one third full then he wouldn't have put that proposition about the murder scenario to the jury.

Graham Archer

Is there any evidence that Dr Manock tested or attempted to test what might be the real level of the water in the bath?

Dr Bob Moles

No, he didn't do any measurements, any checking, any calculations about the level of water.

Graham Archer

The more evidence that emerges in this case the less credible the original investigation and prosecution becomes.

Graham Archer

[File tape - to Paul Rofe QC, then DPP] But what about that proposal? You let us with an independent expert, or experts as appropriate, look at it, deal with it, clear the air because it won't go away.

Paul Rofe QC

[File tape – when DPP] As far as I'm concerned it has - we've done - we've gone down that track.

Graham Archer

As it's turned out it's the DPP who's gone away - while we're left with the question of will someone now face up to these issues? Keogh's barrister, Kevin Borick QC - 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

Where should this go from here?

Dr Bob Moles

It seems to me that the only sensible thing that can be done now is for the Solicitor-General, who's already reviewing this matter, to make an urgent request to the Medical Board to be provided with a transcript of the hearings over this last week. I'm quite confident that if the Solicitor-General reviews that transcript he would then have to advise the Attorney-General that Mr Keogh be released pending the re-hearing of the matter before some appropriate tribunal.

Rosanna Mangiarelli

Graham Archer with that report.

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