Wednesday 23 May 2007 - Channel 7 Today Tonight (Adelaide)

Henry Keogh applies to re-open his appeal

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

In order of appearance

Leigh McCluskey, Presenter
Graham Archer, Producer and interviewer
Professor Rex Ferris – forensic pathologist, New Zealand
Professor Stephen Cordner – Head, Victorian Institute of Forensic Medicine
Professor Tony Thomas – forensic pathologist Flinders Medical Centre, Adelaide
Robin Napper – former police officer and forensic investigator, Perth, Australia
Professor Derrick Pounder – Head of forensic pathology, Dundee University, Scotland

Program - Leigh McCluskey

But first tonight - "fraudulent" is not a word used lightly in court. But that's how crucial expert evidence put to two juries in the conviction of Henry Keogh was described to the Full Bench of the Supreme Court today. In something of a breakthrough, the court sat to consider if a second appeal in the case is now justified.

It's the first time, in almost twelve years that a court has heard argument revealing that not only was most of the forensic evidence in the case based on “faulty science" and "baseless assumptions" - but that some of it didn't even exist.

Graham Archer has this report.

Professor Rex Ferris

Faulty forensic evidence just means as it did in the Lindy Chamberlain case that innocent people get sent to jail.

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

Today, after 12 years Henry Keogh again found himself in court facing the prospect of a 2nd Full Bench appeal. Is it any wonder then that there might be some vigorous attempt to keep the lid on this?

Professor Ferris

Clearly it’s an embarrassing situation.

Graham Archer

His Sydney barrister Tim Game QC addressed the court, arguing his conviction was based erroneous assumptions, false evidence - which in places was fraudulent.
The information that's gone to the Court - has that been dealt with satisfactorily?

Professor Tony Thomas

 I think one would have to say No.

Graham Archer

The evidence under challenge amounts to almost everything put to two juries by the DPP concerning circumstances of the death of Anna Jane Cheney - including the basic assumption that she died of drowning.

Has the possibliltiy of natural causes been properly excluded?

Professor Cordner

No.  

Graham Archer

In what you have seen?

Professor Cordner

No - the answer to that question is no.

Two of the State’s longest serving pathologists Dr Colin Manock and Dr Ross James were described to the court as the only experts in the world who would use the evidence they saw as a sign of drowning.   

Professor Ferris

The commonest cause for the breakdown 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

The most significant challenge was to the evidence of bruising underpinning Dr Colin Manock's theory that Henry Keogh gripped his fiancées left leg in the right hand and lifted her legs to drown her. Both the jury and the appeal court had been told that the bruising was: "the one positive indication of murder namely the grip mark on the bottom of the leg".

Today the court was told the key thumb-bruise did not exist - that Dr Manock admitted he didn't ever see it in his microscope and Dr James, who was supposedly assisting the defence, knew it didn't exist but failed to mention it. The jury had been misled.

Robin Napper

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

Graham Archer

But there was much more. From the claims over the depth of the water in the bath - to untested assumptions about the bruising to the right leg and the trapping of the victims arms. Then there's the damning findings on Dr Manock's competence in the Baby Deaths cases which have never been properly assessed by an appeal court. And most recently the scathing opinions of the three experts in the Medical Board Inquiry in the quality of the autopsy of Anna Jane Cheney which found:  

“…the conduct of the autopsy and the quality of the resulting evidence was markedly sub-standard to the point of incompetence."

"Dr Manock was not just a senior pathologist, he was the Chief Forensic Pathologist for the State. He had the opportunity and indeed the responsibility over many years to raise the standards, to introduce up-to-date systems, guidelines and protocols. On the evidence of the Cheney autopsy, he did not."

"The documentation in the autopsy in question was manifestly inadequate, even by the lowest standards."

Robin Napper

Words fail me to read criticism like that of a pathology report.

Graham Archer

None of these crucial issues were properly addressed by the Solicitor General’s 3 year delve into the case on behalf of his boss the AG Michael Atkinson - or at least we'll never know if they were because his finding are a secret. But they are now squarely in the lap of the Supreme Court.

Professor Derrick Pounder

I think the thing we have to remember is that we can all be accused persons and it important we have a justice system which is fair and in which we have strong confidence.  

Graham Archer

Of course the DPP is opposing any appeal - principally on the grounds that the court lacks the power. While this remains a legal argument - the court must decide where the justice lies

Robin Napper

Key to Henry Keogh's conviction was that Anna Jane Cheney was unlawfully killed. Well, of course, if she hadn't been unlawfully killed - and it had been a tragic case of natural causes - Henry Keogh is in prison for a crime that never ever happened.

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