Wednesday 14 March 2007 - Legislative Council

[This version of the document has been edited by Dr Robert N Moles
Underlining where it occurs is for editorial emphasis]

If you wish to comment on this matter, you can email to "dennis.hood@parliament.sa.gov.au" or write to "Dennis Hood, Family First, c/o Parliament House, North Tce, Adelaide 5000"

PETITIONS FOR MERCY

The Hon. D.G.E. HOOD: I move:

That this council calls on the Premier of South Australia to—

1. Obtain independent legal advice on petitions of mercy made to the Governor; and 2. Release such advice publicly.

My motion this evening is based on concerns about the handling of a petition for mercy in the Keogh case. In cases where a defendant's appeal to our Supreme Court and High Court fail, their only recourse is a petition of mercy to the Governor or exoneration by a royal commission. In cases where these steps must be called upon, it is important that the procedure should be as clear and transparent as the courts system itself. Family First believes there are several deficiencies in the procedure by which petitions made to the Governor under section 369 of the Criminal Law Consolidation Act 1935 have been dealt with. This section mentions the procedure whereby a convicted person seeks a review of their conviction and allows in some cases a petitioner's plea to be referred to the Supreme Court.

On 10 August 2006 the Hon. Kevin Foley announced that he had declined to refer the Keogh petition to the Supreme Court after giving significant consideration and after receiving advice from Solicitor General, Chris Kourakis QC. In his explanation in support of that view the Deputy Premier quoted certain passages from the advice of Mr Kourakis but did not release the totality of that advice publicly. Some requests have been made by members of South Australia's legal community to have the advice of the Solicitor General released publicly. Should it be suggested that the advice of the Solicitor General is the subject of legal professional privilege, the following points should be borne in mind. In the case of Mann v Carnell, the High Court of Australia stated as follows:

Disclosure by a client of confidential legal advice received by the client, which may be for the purpose of explaining or justifying the client's actions, or for some other purpose, will waive privilege if such disclosure is inconsistent with the confidentiality which the privilege serves to protect.

In Bennett v Chief Executive Officer of the Australian Customs Service, Justice Tamberlin said:

. . . once the conclusion in the advice is stated, together with the effect of it, then in my view there is imputed waiver of the privilege.

Justice Tamberlin also stated:

. . . the disclosure of the conclusion reached in, or course of action recommended by, an advice can amount to waiver of privilege in respect of the premises relating to the opinion which has been disclosed, notwithstanding that this reasoning is not disclosed.

Of course, in the media release of the honourable member, considerable parts of the reasoning from that advice were disclosed. It follows, therefore, that any privilege that may have attached to that advice has been waived. In the course of that media release, the Treasurer stated:

Some of the criticisms of the way in which Dr Manock conducted the autopsy of Ms Cheney may be valid.

It would be important for this council to know in what respects it is accepted that criticisms of Dr Manock were thought to be valid. These are very valid comments by the Treasurer, and we have no reason to doubt his word. Really, the point of what I am saying is that some further information would be very valuable. In the media release the Treasurer also stated:

An independent expert has reported that there is no evidence upon which to conclude that Ms Cheney suffered an anaphylactic reaction. Clearly, the statement was contained in the statement of the Solicitor-General. However, no such report has been available to Mr Keogh or to his legal representatives. In order for there to be a fair trial, the prosecution is obliged to disclose to the defence all material that is available to it which is relevant, or possibly relevant, to any issue in the case.

In Grey v the Queen, in the judgment of Chief Justice Gleeson and Justices Gummow and Callinan, it was observed that the rules of the bar association provided as follows:

A prosecutor must disclose to the opponent as soon as practicable all material available to the prosecutor or of which the prosecutor becomes aware which constitutes evidence relevant to the guilt or innocence of the accused.

In this connection it should also be pointed out that, despite the fact that Mr Keogh has been in prison for over 12 years, neither he nor his legal advisers have ever had access to the medical history of the deceased. Dr Manock has explained to the Medical Board of South Australia that he had never checked the medical history of the deceased before he informed the court at the Keogh trial that Ms Cheney was a fit and healthy person at the time of her death. It should also be noted that neither Mr Keogh nor his legal advisers have ever had access to the negatives of the photographs produced in court. Of course, it is a matter of commonsense that photographic prints are not properly admissible as evidence in court unless and until the negatives from which the prints were produced have been examined. The final door to freedom for a defendant closes when their Petition for Mercy to the Governor fails. It is therefore very important that such petitions are dealt with transparently and with the utmost care. It is most troubling that the media release concerning the rejection of the petition contains several errors in explanation and understanding. The news release was issued prior to any notification to Mr Keogh, or his legal representatives, that a decision had been made or was about to be made. This was contrary to the expectations of Keogh's legal team, who had hoped to be furnished with a draft opinion before it was released.

Further, it was not correct to say that there were 37 complaints in the third petition. There were 37 headings in the third petition but each section contained a number, in some instances a substantial number, of individual complaints. The third petition was directed only to one issue, that was that the Governor had erred in his reasons for rejecting the second petition. By refusing the third petition for mercy it means that the issues raised in the second petition have still not been properly addressed. It is the second petition which contains the substantive complaints relating to Mr Keogh's trial and which Mr Keogh's advisers thought was under consideration by the government for the previous four years.

To say that the third petition does not give any reason to doubt Mr Keogh's guilt of murder not only means that the Governor has been considering the wrong petition but also that he (because it was `he' at the time) has been asking himself the wrong question. The decided cases make it perfectly clear that it is not the task of an appellate court, or the Governor, to consider the guilt or innocence of the accused; it is to determine whether there has been any error in the trial or appeal process. The decisions make it clear that even where the guilt of the accused may not be in doubt there may still be sufficient reason to order a retrial. The only process by which the guilt of an accused person can be established in our law is by the verdict of a jury, properly constituted and properly instructed.

Of course, some of the most difficult cases are those where there has been a serious irregularity in the trial, and yet there still seems to be sufficient evidence of guilt. Family First does not know whether Keogh is guilty or innocent. I want to stress that: we do not know whether he is guilty or innocent. However, in this regard the approach of the UK and Australian courts has been principled. In the UK it was said that, unless the requirements of a fair trial have been complied with, the conviction cannot remain undisturbed:

So, a material irregularity resulted in the quashing of a conviction when evidence as to guilt was overwhelming.

In Australia, in a case before the High Court involving Mr Mallard, in which Mr McCusker QC acted for Mr Mallard, Justices Gummow, Hayne, Callinan and Heydon of the High Court stated that it was not appropriate to speculate on what might have happened in a case if the prosecution had presented the case on some other basis. It is not for the appellate courts to speculate about the impact of potentially exculpatory evidence which had not been disclosed. Equally, it is not for a . . . Court of Criminal Appeal to seek out possibilities, obvious or otherwise, to explain away troublesome inconsistencies which an accused has been denied an opportunity to explain and exploit forensically.

Further, for the media release to have stated that `it is important to understand that the case against Mr Keogh was never dependent on the pathology evidence alone', was not quite right. I am advised that in none of the submissions on behalf of Mr Keogh has this even been suggested. It has always been accepted that there was evidence in addition to the pathology evidence, albeit that much of that was also in error or otherwise inadmissible. The point is that it was argued that the pathology evidence which was put before the jury was incomplete, misleading and wrong.

It does not matter what other evidence there was or how compelling the balance of evidence might have been, the existence of the errors and shortcomings in the pathology evidence establish that the verdict was questionable, at the very least. For example, in the High Court case of M v The Queen in 1994, the court stated:

If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the Court of Criminal Appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.

In his final address to the jury, at the trial of the petitioner, the then director of public prosecutions, Mr Paul Rofe QC, stated in reference to Dr Manock's evidence:

Whereas to murder I suggest the bruising on the lower left leg, if that is a grip mark, is almost in itself conclusive, providing you accept that it was applied at or about the time of death.

It is clear that the so-called grip mark was considered to be the one positive indication of murder and it was therefore crucial to the Crown case.

The finding of the Coroner in relation to Dr Manock's work in the baby deaths cases was extraordinary. He said that the autopsies had achieved the opposite of their intended purpose, that serious crimes may have gone unpunished as a result, that Dr Manock's answers to some questions had been `spurious', and that Dr Manock had seen things which could not have been seen. It would be hard to think of a way in which the criticisms could have been worse, yet none of this was disclosed until after Keogh's trial, because the Coroner admitted that he kept his findings a secret until that time. The law makes it clear that information known to a judicial officer such as the Coroner must be deemed to have been known by the prosecutors and thus represents the most serious non-disclosure in a particular case.

In Gallagher v the Queen it was said that the issue as to whether the jury was mistaken or misled really `subsumes the issue of credibility'.

The issue of the credibility of Dr Manock has never been an issue in any of the trials in which he has given evidence. Yet, Dr Manock should have disclosed that he was given his qualification by the Royal Australasian College of Pathology and had not achieved it through examination or testing. He should have disclosed the adverse finding against him by the High Court in the case of Mrs Emily Perry. He should have disclosed the adverse findings against him in the Royal Commission into Aboriginal Deaths in Custody. [See the cases of John Highfold and Kingsley Dixon] He should have also disclosed the adverse findings against him by the Coroner. As Dr Manock had unexpectedly retired just prior to the Keogh trial and at the time of the completion of the Coroner's report, it is a fair inference that Dr Manock knew of those findings at the time that he gave evidence during the Keogh case.

In the case of Antoun, Justice Kirby said that the entitlement to an impartial tribunal is one of the most important human rights and fundamental freedoms recognised by international law. Article 14.1 of the International Covenant on Civil and Political Rights specifically states this. Australia is a party to that covenant and also to the first optional protocol that renders Australia accountable to the Human Rights Committee of the United Nations. "I repeat the words I used in the case of Goktas v Government Insurance Office (NSW): Our system of government must do better. This court must accept its obligation to ensure against wrongs which can be proved and then corrected. At stake is something greater even than the interests of the parties to the case. At stake is the integrity of our system of law and justice."

Family First believes that an important step in improving confidence in the South Australian court system involves transparency; that the `last hope' petitions for mercy to the Governor be dealt with in the open and without party or political interference. In a sense, they should be dealt with judicially rather than via executive channels—openly and independently. I commend the motion to members.

The Hon. I.K. HUNTER secured the adjournment of the debate.

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