Channel 7 Today Tonight (Adelaide)

Henry Keogh and the Medical Board Monday 3 July 2006

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

In order of appearance

Rosanna Mangiarelli, Presenter
John Nader QC - former Supreme Court judge NSW
Graham Archer, Producer and interviewer
Professor Derrick Pounder - Dundee, Scotland
Professor Rex Ferris, International Forensic Pathologist, New Zealand

Program

Rosanna Mangiarelli

Last night we revealed the contents of confidential memos... produced by three government experts - which were scathing about the quality of the autopsy of Henry Keogh's fiancée Anna-Jane Cheney. The documents surfaced in the Supreme Court last week, and refer to former Chief Pathologist Colin Manock's work in the case as ‘incompetent’. But no mention was made of these documents in the ultimate Board Report that was published 12 months ago.

This new development adds to what's already a large body of evidence demanding a public review of the case, and as you're about to see, there's more. South Australians have, so far, been given little cause for confidence in the justice system especially when there seems to be more interest in damage control than due process for all.

John Nader QC

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

Graphic - John Nader QC - Former NSW Supreme Court Judge

Graham Archer

Do you think there is a need here for an independent review of the Keogh case in particular?

Professor Derrick Pounder

Yes I think that there are very worrying things in the Keogh case.

Graphic - Professor Derrick Pounder - Head of Forensic Pathology, Dundee.

Malcolm McCusker QC - Perth

I think this is one of the instances that point up the need for an Independent Commission of Review of cases of the type that exists in the United Kingdom .

Graphic - Malcolm McCusker QC

Graham Archer

What do those opinions cry out for?

Professor Ferris

Well they cry out for a review of the case.

Graphic - Professor Rex Ferris - International Forensic Pathologist.

Graham Archer

Has the possibility of natural causes been properly excluded?

Professor Stephen Cordner - Melbourne

No

Graham Archer

… in what you have seen?

Professor Stephen Cordner

… no the answer to that question is no."

Graphic - Professor Stephen Cordner - Director of Forensic Medicine Victoria.

Tom Percy QC - Perth

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.

Graphic - Tom Percy QC

Graham Archer

Last night we revealed how the Medical Board's report on the work of the State's former Chief Forensic pathologist in the Keogh case failed to mention earlier opinions of "incompetence" formed by the three experts who actually sat on the Inquiry.

Robin Napper

It's almost frightening to hear words like that in murder case - in a murder case.

Professor Ferris

It is certainly a damning indictment of the system

Graham Archer

The Inquiry panel unanimously found Dr Manock's work in the autopsy of Anna-Jane Cheney to be acceptable - despite confidential submissions from their own experts claiming it to be lamentably sub-standard. Ex Scotland Yard forensic expert Robin Napper.

Robin Napper

Totally opposite - the notes are totally opposite to that finding of the Medical Board

Graham Archer

The notes surfaced in court last week when Henry Keogh sought a review of the Medical Board’s Findings – and simply add to the growing concerns about the handling of this and other cases.  

Professor Derrick Pounder

You only need one item of evidence which says it couldn't have happened to prove it didn't happen. You can have infinite amount of evidence to suggest that it did happen and still it may not have happened.

Graham Archer

A look back to when serious concerns were first raised in the Keogh case reveals an alarming picture - starting with the hollow promise from the man who prosecuted Henry Keogh - former DPP Paul Rofe.

Paul Rofe QC – file tape

If there is any credible new evidence then I'm quite happy to look at it.

Graham Archer

We've heard the same promises from the Attorney-General.  

Interview with Michael Atkinson and Bob Francis (radio)

Look, I'm a fair man, Bob, and if there is ... new evidence, evidence that was not before the court and would tend to raise a reasonable doubt as to Keogh's conviction, then of course I am willing to have lawyers look at that.

Graham Archer

In fact there's no shortage of evidence endorsed as “new” by scores of respected independent experts. Just take as an example the level of water in the bath in which Keogh was said to have drowned his fiancée

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

Professor Maciej Henneberg – file tape

If the head is kept straight facing upwards - certainly not - because the distance between the back of the head to the base of the nose is approximately 20 cms.

Graham Archer

Dr Manock has since admitted not checking the level and that it may well have changed everything. Then there's the revelation that the so-called “thumb bruise” - presented to the jury in two trials as confirming his - Manock's - theory of murder - lacks any scientific proof.  

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.

Graham Archer

Certainly - no pathologist who's looked for evidence under the microscope has found proof of a bruise.

Dr Byron Collins - Melbourne

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

Graham Archer

It's since also been disclosed that neither of the State's pathologists - who supported the prosecution case in court - could find evidence of the bruise under the microscope - not Dr Ross James - nor Dr Manock himself.

Graham Archer

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 Robert Moles

Thats' correct.

Graham Archer

It's crucial information juries in both trials never heard. Surely that qualifies as “new evidence” - especially given Paul Rofe had gone so far as to tell the Court those bruises amounted to “"the one positive indication of murder namely the grip mark on the bottom of the leg".

Graham Archer

Instead of triggering a review of the case, as these revelations should have - things just got nasty. The first to raise these concerns - pathologist Professor Tony Thomas - was viciously and quite wrongly attacked in Parliament by the Attorney-General Michael Atkinson - the very person whose job it is to ensure the system is accountable.

Professor Derrick Pounder

Well I think the first thing I say is that if a criticism is made about the messenger rather than the message, that's always a little worrying.

Graham Archer

And it didn't stop at that. Professor Thomas's attempts to defend himself were met with threats of a further smear campaign by the Attorney-General with the aid of others hoping to keep to the lid closed on Pandora’s Box.

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

Despite the treatment of Professor Thomas - the number of eminent legal and medical experts who disputed Manock's murder scenario - continued to grow.

Tom Percy QC – Perth

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 very sort of case - it's the archetypal case - to go back before the court.

Graham Archer

Even so - the damage control continued. Next to involve himself was the current Chief Forensic Pathologist Roger Byard, who launched into research which appears intended to prop up yet another of Dr Manock's bogus claims in the Keogh case. This time - his theory for proving death by drowning.

Professor Ferris

Well in my experience it is not.

Graham Archer

Professor Rex Ferris - an internationally respected pathologist - says almost no expert in the world would support Dr Manock's idea - because the evidence he used, “staining of the aorta by the break down of red blood cells”, can have many causes - aside from drowning.

Professor Rex Ferris

The commonest cause for the breakdown [of the red cells] is decomposition - and the autopsy was not performed for, I believe, over 36 hours after this woman's death - and so you could not interpret that as evidence of drowning. I'm not sure it's ever evidence of drowning.

Graham Archer

It seems the attempt to paper over the cracks has spread from politics to the public servants.

Dr Robert Moles

Our system, instead of serving the public - has begun to serve itself - and has become distant from the public and their needs - and we need to correct that.

Graham Archer

It's an indication of just what deep-seated problems in the system lie behind the Keogh case. After all, those confidential memos from the Medical Board didn't stop with criticisms of Dr Manock - but included the performance of our entire Forensic Science Service for decades.  

From Report to the Board

I cannot determine whether mthe apparently unsatisfactory nature of the service was due mainly to poor funding, poor support and staffing levels, or can be laid firmly at Dr Manock'sfeet as an indication of his incompetence or failure in management and direction.

Graham Archer

These flaws, raised many times before - and seemingly confirmed by the new documents – and which could affect any family in the State - have been met so far with nothing but smokescreens and stalling from the Government.  

Mark Brindal MP in Parliament

There's now enormous media and public interest in problems in the legal system, cases including the Nemer case, the Keogh case ....

Interruptions from Government benches

… Keogh, Keogh its all about Keogh.

Graham Archer

And when Premier Rann was put on the spot - the best he could offer was this…

Premier Mike Rann

I can announce to the House today that the Solicitor General is conducting an inquiry into the Keogh case,…

Graham Archer

Just another brush-off. At the time of the Premier's so-called announcement, the Solicitor-General already had Keogh's Petition for a review on his desk for over 2 years without making decision. It’s now been well over 3 years. It's a case of “justice delayed” which has left his more distinguished legal colleagues elsewhere mystified.

Malcolm McCusker QC – Perth

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 nothing very complex about the situation.

Graham Archer

The Opposition new Shadow AG and Justice Minister Isobel Redmond - doesn't seem to have a clue about the proper duties of her office either - responding to a recent request to consider concerns about the case with: ...

Isobel Redmond – extract from letter

I wish to advise you I remain convinced of Henry Keogh's guilt and do not intend to spend anytime whatsoever in answering correspondence henceforth.

Graham Archer

Sadly, this reflects the culture that's paralyzed this State - that the politicians and public servants appear to think they hold the positions they do to serve their own views - and not always the proper duties of office. What we've shown you is only a fraction of the political games played in this case. Fortunately, those Medical Board memos provide the new evidence needed for Keogh's lawyers to by-pass politics and ask the Chief Justice John Doyle to provide a proper judicial review - though something even bigger is clearly called for.  

Robin Napper

Personally I think it cries out for an Independent Case Review but from outside the State.  People who are known experts in their field, investigators, pathologists, forensic medical people so the people of South Australia can have some confidence the system has got it right.

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