Channel 7 Today Tonight (Adelaide)

Henry Keogh 13 March 2006

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

In order of appearance

Leigh McCluskey – presenter
Tom Percy QC – Perth
Malcolm McCusker QC - Perth
Graham Archer - Producer and interviewer
Paul Rofe QC – Former DPP [File tape]
Professor Stephen Cordner – Head, Victorian Institute of Forensic Medicine [File tape]
Dr Byron Collins – Melbourne Independent Pathologist [File tape]
Associate Professor Tony Thomas – Anatomical Pathologist [File tape]
Associate Professor Gale Spring – Forensic Photographer [File tape]
Kevin Borick QC - Keogh’s lawyer
Dr Bob Moles, author and academic lawyer

Program

Leigh McCluskey

There's no question it’s very hard to have a murder conviction overturned - particularly when all the avenues of appeal have been blocked. But should it be ‘impossible’?

Tonight, two of the country's most eminent legal figures join the growing ranks of lawyers and forensic experts locally, interstate and internationally - who agree that the prosecution of Henry Keogh for the murder of his fiancée Anna-Jane Cheney simply doesn't stack up. And tonight, you can have your say on whether the case deserves a properly independent review to see if Henry Keogh has already spent 11 years of a 25 year sentence - behind bars - for nothing.

The argument? That key forensic evidence has now been almost totally discredited; that the public has been left in the dark - or worse - misinformed - about the true facts of the case.

Here's Graham Archer with this special investigation.

Tom Percy QC

I would think Keogh is not even a marginal case. It's a case that begs to go back to the court - and it begs to go back quickly.

Malcolm McCusker QC

Just as a good government is in favour of law and order - so it ought to be in favour of a good system of justice and not a system that allows an unjust conviction to stand un-reversed.

Graham Archer

By now, most South Australians are aware that fundamental errors were made in the conviction of Henry Keogh.

Professor Stephen Cordner

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

Graham Archer

And word of our apparent tolerance of shoddy justice has travelled well outside the state.

Tom Percy QC

Well it seems there's been a significant miscarriage of justice. There's evidence that's come to light that nobody knew much about at the time of the trial, which could well have influenced the jury’s verdict; and in cases such as that I would have thought it would be appropriate for it to be re-determined by the Court of Criminal Appeal.

Graham Archer

Tom Percy and Malcolm McCusker are two of the nation's top QC's from the west - specialising in miscarriages of justice. Between them they have overturned some of the country's worst injustices - the Button, Beamish, Christie, Mickelberg and Mallard cases - being just some. They now see the Keogh case as almost certainly another.

Tom Percy QC

I think this is every bit as strong as the three - three or four recent cases in Western Australia where convictions have been overturned. I think the evidence here is exactly the sort of thing which would have the court have another look at it and overturn the verdict

Graham Archer

Malcolm McCusker says that what the jury weren't aware of is enough - alone - to set aside Keogh's conviction. A scathing report on the scientific competence of the key expert witness - pathologist Dr Colin Manock - over basic errors he made in not one, but three previous baby death autopsies, was withheld by the Coroner until after Keogh was convicted.  

And they knew nothing of the Coronial Investigation?

Malcolm McCusker QC

They knew nothing of the Coronial Investigation - no - because it was kept under wraps. Indeed, the Coroner said, as I've read - quite extraordinarily - said that he did not want to give his decision because if publicised it would affect the jury’s decision in the Keogh case.

Graham Archer

And it did?

Malcolm McCusker QC

Of course it did.

Graham Archer

Worse still, the former DPP, the then Attorney-General Trevor Griffin and many others in the system, were at the time already well aware of serious criticisms of Dr Manock's work in a number of other earlier cases - but seemed to have taken no action.

Tom Percy QC

I think the problem with expert evidence is that lay jurors tend to take it as gospel. At the end of the day very few juries feel confident to embark on their own assessment of uncontradicted expert evidence.

Graham Archer

Of course, for Keogh, this had catastrophic consequences. All too obvious now that there's overwhelming expert agreement that the evidence Dr Manock put to the jury was scientifically unsound. The so-called ‘thumb bruise’ on Anna-Jane Cheney's inner left calf, which the DPP told the court revealed how she was killed and completed what he believed was, ‘the one positive indication of murder namely the grip mark on the bottom of the leg’ almost certainly never existed.

Professor 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 hand.

Dr Byron Collins

And the tissue examined under the microscope from this samples shows minimal, if any, bruising at all.

Associate Professor Tony Thomas

In my opinion there’s very little evidence of that in the tissue when seen down the microscope.

Graham Archer

Even those state pathologists who gave prosecution evidence in the two Keogh trials have now confirmed their microscopes too could see no sign of bruising. Dr Ross James told a recent Medical Board Inquiry:

Dr Ross James[Voice over from transcript]

Down the microscope I can't convince myself that that's earned the description of a bruise.

Graham Archer

And the author of the ‘grip theory’ itself - former Chief Pathologist Dr Colin Manock has finally admitted he couldn't find it either.  

Graham Archer [File tape]

So he looked at it - thought it might be a bruise - put it under the microscope - and couldn't find any scientific evidence of a bruise - but said it was a bruise anyway?

Dr Bob Moles [File tape]

That’s correct.

Graham Archer

Against all scientific practice, Dr Manock simply chose to push his ‘grip theory’ based only on what he thought he'd seen with his naked eye. An approach even his close colleague Dr James asserted was, ‘so imprecise as to be almost useless.’

And so the jury was led on, in blind faith, that there was genuine science behind what they were being told. In fact, the only evidence of the phantom bruise was supposedly captured in these grainy black and white images [shown on screen]. Photos which Professor Gale Spring - an expert in forensic photography tells us - are themselves of almost no evidentiary value whatsoever.

Associate Professor Gale Spring

It’s not to say black and white can't be used for specialist things. But as a general recording medium, colour photography is an international standard.

Graham Archer

And for something such as bruising, would it seem ‘self-evident’ to use colour?

Associate Professor Gale Spring

In any kind of photograph where colour might identify what it is, how old it is - colour film is quite crucial to that.

Graham Archer

However, what's now equally disturbing are the lengths governments seemed to have gone to since to excuse these and other obvious short comings in the prosecution's case. On April 1 2003 our Attorney-General Michael Atkinson went public - attempting to prop up the flimsy photographic evidence with this astonishing claim,

"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."

Surely he couldn't have been serious?

Malcolm McCusker QC

I've never heard of such a policy and it sounds ridiculous - because obviously even to the most inexperienced layman a colour photograph must be much more valuable than a black and white photograph. So if there is such a policy it is grounded in folly.

Graham Archer

It was not just the jury - but now the public too who have not been told the whole story.

Associate Professor Gale Spring

I have been in forensics - and pathology - since 1976 - and I have never known anything other than colour.

Graham Archer

So just who was in the AG Michael Atkinson's apparently eager ear, saying a black and white only policy was in force until just 10 years ago? It would seem those closely linked to the case. Dr Ross James [from letter], ‘Photographs were taken in black and white which was usual in our department at that time’.

And the former DPP Paul Rofe.

"It may have been the funding didn't extend to colour photography. I don't know. There may have been a number of reasons why they weren't taken at that time."[File tape]

But did such a policy ever exist? Not if you check the evidence. Bear in mind - and the AG should have known this - aside from their own staff, the state's pathologists also had access to the photographic services of the SA police, who for many years have used colour.

If we go back to 1989, for instance, and the Black Deaths In Custody Royal Commission - the same Dr Manock - in doing the autopsy of Kingsley Richard Dixon - ordered copious colour photographs be taken - particularly to record bruising. In fact the Royal Commissioner in his report noted:

"Comprehensive coloured photographs were taken during the autopsy procedures which enable me to accept Dr Manock's finding particularly as to bruising or the lack of bruising."

We then searched back over numerous other cases and found the use of colour was common place. Take for instance the case of Derek Bromley - convicted of murder back in 1984 - itself a possible miscarriage in which Dr Manock played a key role.

What are the photos of in the Bromley case?

Dr Bob Moles

Well they are photos of the bruising and the injuries.

Graham Archer

In colour?

Dr Bob Moles

Absolutely

Graham Archer

And that would have been what - 10 years before the Keogh case?

Dr Bob Moles

That's correct yes.

Graham Archer

And who would have ordered the taking of those photos?

Dr Bob Moles

It must have been Dr Manock because he was the pathologist on the case.

Graham Archer

And there's many more examples. The Gerald Warren autopsy - colour photographs. The Peter Wilson autopsy - more colour photographs. The Baby Deaths cases of the early nineties - also colour. The Black Deaths cases in '91 - of Bronte Ware and the Stephen Webster cases too - involved the taking of colour autopsy photos.

There must be all sorts of people though, police, prosecutors, defence lawyers, pathologists - even judges themselves - who knew what the practice was but who've silent about this?

Dr Bob Moles

Yes. Wouldn't you think that some amongst them - even one amongst them - would have thought it appropriate to put the record straight?  

Graham Archer

While the silence isn't sinister - it certainly hasn't helped. Former Adelaide Uni Law Professor Bob Moles. He has published a book called ‘Losing Their Grip – The Case of Henry Keogh’ - which provides a detailed analysis of all the elements in the Keogh case.  

Dr Bob Moles

If people read the book - and compared the facts of what actually happened in the Keogh case - and compared that with what they'd been told - they'd be horrified.

Graham Archer

To be doubly sure of the accepted practice regarding colour photography, we wrote to forensic science centres around the country. Without exception, colour photos at autopsies was deemed ‘essential’, ‘absolutely essential in homicide cases’, ‘indispensable’, ‘very valuable’ - and ‘the use of colour became more or less obligatory in the late 1970's to the mid 1980's’.

Professor Derrick Pounder [File tape]

So ‘good practice’ or ‘best practice’ will be to take the colour photographs first - with a scale – and then take the black and white photograph. But you would never take a black and white photograph instead of a colour photograph.

Graham Archer

We then wrote to Dr Hilton Kobus - the Director of Forensic Science SA – twice. While he dodged the question about a black and white only policy, he did say [from letter from DAIS shown on screen] ‘FSSA photographic records indicate that a transition to colour photography at autopsies occurred in the second half of 1994.’

Graham Archer

However, when we referred this to internationally respected pathologist Professor Derrick Pounder - who worked at the Adelaide Forensic Science Centre during the 1980's - he immediately disputed it.

"I have colour slides of bodies autopsied at the forensic science centre taken during my time there by the FSC technician in the early 1980s !!!"[From email]

Incidentally, the Centre boss Dr Kobus - in the same year as the Keogh case - admitted in court his lab had bungled crucial evidence in the NCA bombing case. No one has ever been convicted of that awful crime.

We also wrote to the Attorney-General; twice - about the so-called ‘photo policy’. He simply failed to reply.

The question the public must ask now is, ‘Why, if the Keogh conviction was sound, would the authorities need to be so defensive about what was done?’ How much confidence can the public have in what they are being told?

To add further to the injustice, the Attorney-General's lawyer, Chris Kourakis QC has had Henry Keogh's Petition on his desk for an incredible two and a half years. This represents 15 % of his entire sentence.

Malcolm McCusker QC

Given the evidence of the lack of proper credentials of the pathologist - and the uncertainty of the scientific approach - I would have thought that could have been dealt with in a matter of three months. There’s nothing very complex about the situation.

Graham Archer

As an Attorney-General, Michael Atkinson has displayed such distaste for the case the top QC's say he should disqualify himself from playing any further role.  

Do you think in this case it would better if it went to an independent arbiter?

Tom Percy QC

I think that's probably a valid point. Inevitably, the person who is called upon to make these decisions as to whether these things should go back is a politician. They appointed judges - they've appointed prosecutors - and they have, one might think at least in the public perception, they have some vested interest in the status quo. That is - that the conviction be retained.

Graham Archer

In fact, Keogh's barrister - Kevin Borick QC has decided enough is enough.

Kevin Borick QC

Not only has there been an inexcusable three and a half year delay, but we’ve not got an election coming up. We don’t know who the Attorney-General will be next week. We now have to pursue the only other option available to us and that is to ask the Court of Criminal Appeal to re-open the case. That’s a very difficult task.

Graham Archer

Keogh now represents a test of whether the new government has any genuine commitment to justice. So far - in this case - the Rann government has failed miserably. But then - we'd been happy to be proven wrong.

Tom Percy QC

What you've got in Keogh now is some very - very well credentialed expert evidence - which casts enormous doubt on the very fundamentals that convicted Keogh. In my opinion it's the sort of case - it's the archetypal case - to go back before the court.

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