Networked Knowledge - The case of Henry Vincent Keogh
Response To The Attorney General’s Second Statement

Author: Dr Robert N Moles

On 1 April 2003, the Attorney-General made another statement in Parliament, this time to the House of Assembly. He said that he was responding to the program broadcast by Today Tonight (Adelaide) on Monday 17 March 2003. The Attorney commenced with an apology to the Cheney family for the hurt that had been done to them. He said that he had met with Anna Cheney's mother and brother the week before last and that Mrs Cheney had asked whether he could do anything to make sure the whole story was told, and to make sure, ‘the distorted version of events did not go unchallenged.’ He apparently gave Mrs Cheney his commitment that he would do so. He stated that Today Tonight had shown a lack of ‘empathy and compassion’:

They were prepared to show little respect for the rights of Anna-Jane's family and, instead, were prepared to pander to morbid curiosity by showing forensic photographs of Anna-Jane's lower legs.

The particular photographs in question were those which had been produced in court and which had already been shown on the ABC 4Corners program. They were already very much in the public domain. Also, as we have said, they do not identify the person whose legs they are.

Again, the Attorney-General stated that the allegations made in the program were neither startling nor new:

Indeed, if the allegations were startling, it was not because they were new; rather it was the misleading manner in which the allegations were presented.

The Attorney-General also apologised to the House of Assembly, because his predecessor as Attorney-General (in the Legislative Council on 14 November 2001) and Mr Roberts (referred to above) had both responded by saying that all relevant facts had been considered by the court in convicting Henry Keogh.

He went on to say that the media (in particular Today Tonight) had suggested that the Director of Public Prosecutions had a gambling problem. The Attorney said that he had spoken to Mr Rofe, and ‘he has made an undertaking not to gamble during work-time.’

The Attorney said that Mr Rofe's handling of the Keogh case was ‘skilled, scrupulously fair and thorough,’ and that he quite properly drew the jury's and the court's attention to the weaknesses in the pathology evidence. However, in his reply, the Attorney-General did not refer to the specific points which we have mentioned above from the DPP’s closing address to the jury. The Attorney repeated his view that the Coroner had not criticised Dr Manock’s skills in doing autopsies on adults.

He then pointed out that the defence pathologists at the trial had not raised issues about other possible causes of death, including an allergic reaction, which had been raised in the Second Petition. He failed to mention, however, that those pathologists were never asked to review the whole of the file in this case.

The Attorney went on to say that ‘the petitions did not specify the nature of the underlying medical condition that might have caused Anna-Jane's death.’ Again this was incorrect. The following information was contained in the Second Petition:

Dr Manock failed to report on other markings visible on the body of the deceased which are evident on the photographs taken at the scene. Those marks are consistent with oedematous weals and swelling which would indicate the possibility of a severe allergic reaction.

The evidence which Dr Manock gave at Mr Keogh’s trial was inconsistent with the photographic evidence which has since been made available. It was said many times at the trial that Anna Cheney was ‘a fit and healthy person’. The photographs taken at the scene indicate that she may have suffered an anaphylactic allergic reaction, which can cause death within three minutes.

Dr Manock made no reference in any of his reports to the extensive and significant evidence which indicated that Ms Cheney may have suffered an acute allergic reaction. Neither the prosecution nor Mr Keogh’s defence counsel adverted to the possibility that the death of Ms Cheney could have been as a result of natural causes.

Why did they [the police] not follow up on the aspects of the case which indicated that Ms Cheney had a severe allergic reaction, as evidenced by the photographs which they had taken, and which must have been apparent to the police at the scene that evening?

The police colour photographs show the possible existence of an allergic reaction, and damage to Ms Cheney’s body not noted at the autopsy. They contain clear evidence, which was inconsistent with the evidence being put to the court. Ms Cheney’s extensive oedema was clearly not consistent with her being ‘fit and healthy’.

The Attorney said in his parliamentary statement that the names had not been given of any specialists who may have thought that Ms Cheney could have died from a condition not associated with drowning. Again, this was incorrect. Professors Ansford, Cordner and Thomas had all stated that Ms Cheney could have become light-headed after standing in a warm bath after taking alcohol, and fainted or she could have suffered from an epileptic attack. They were all agreed (as was Dr James) that accidental causes of death could not be excluded. None of them had been given access to her medical records, and so it was not possible for them to be more specific.

The Attorney went on to say that Dr Manock’s explanation for the discolouration on Annas’ body was ‘hypostasis contact pallor’. Hypostasis is part of the process of lividity, which can explain redness in parts of the body. It occurs when the blood drains there to the lower parts after death. Pallor refers to areas of blanching where the body is in contact with a hard surface (such as the floor) so that the blood cannot drain into those parts, and they will remain pale in colour.

However, it could not explain the redness and swelling seen in the face depicted in a photograph taken at the scene. The body was lying flat on the back at the scene -- and this would have caused the redness in the face to diminish. It is clear then that such redness and swelling of the face had been caused around the time of death, and could be consistent with a death from asphyxiation, following upon anaphylaxis (for example), especially if the body had slumped forwards, as Keogh had claimed.

The Attorney went on to say that ‘the defence did not challenge this at the trial. I can only assume that Doctors James, Ansford and Cordner agreed with it.’ That, again, would not be correct. If they were not asked about it at the trial, then the Attorney can only know if they agreed with it by asking them himself.

The Attorney said that Professor Thomas had ‘also criticised the proof of bruising and grip marks that, as I said, Today Tonight exploited by showing photographs of Anna-Jane's lower legs.’

The showing of a photograph to make a valid forensic point about an ongoing and serious case of injustice hardly seems to amount to ‘exploitation’. The Attorney then said that the Professor’s views were not new, as he had expressed the same views in the ABC 4Corners program ‘some years ago’. The fact that someone consistently repeats valid propositions after the trial does not make them ‘not new’. They are ‘new’ if they are additional to what was stated at the trial.

The Attorney then went on to make a point that was quite perplexing. He said that Dr James, then the Chief Forensic Pathologist for South Australia, had examined the bruises and agreed that histopathology (microscopical examination) failed to confirm that one of the alleged bruises (that on the inner aspect of the left ankle) was a bruise. This was the mark that it had been said was the thumb mark of a grip. The Attorney said:

The explanation for the failure to identify bruising on the inner left ankle could be either that the mark was not a bruise or that the tissue removed from that area for histopathology did not contain the bruised area, but sections of the other marks on the front of the legs clearly confirm their nature as bruises.

If the existence of a thumb mark bruise is in question, then to point out that the examination of other marks (on the front of the legs) clearly confirmed that they were bruises, is hardly to the point. As it happens, only one of the other marks on the front of the legs was examined microscopically, and as we will see shortly, there is opinion to say that was not a bruise either. However, the point remains, that Dr Manock’s chief associate over 25 years, and now his successor, stated that microscopical examination failed to identify the thumb mark as a bruise.

The Attorney-General then engaged in a remarkable piece of reasoning, which had been provided to him in a letter by Dr James. He continued: 

Dr James said -- if Professor Thomas had a case of manual strangulation and found the expected row of neck bruises on one side of the victim's neck from finger pressure and failed to confirm a bruise on the opposite side of the neck from the thumb, would he therefore exclude manual strangulation as a cause of death?

And:

While the opposing thumb bruise will corroborate a grip mark, the opposite is not true.

The Attorney concluded, ‘there is no reason I should not accept Dr James's expert opinion on this.’ There were, of course, many reasons why such an opinion should have been rejected. The most important of which is that it did not conform to the requirements of "expert opinion" as we explain in the separate report on that topic. Also, Dr James had started his process of reasoning by saying that ‘if’ [one has] a case of manual strangulation’, then the absence of the thumb bruise would not be significant. That may well be true. But the example makes it clear that you already know that the cause of death was manual strangulation, independently of the existence of a thumb mark bruise, and possibly in the absence of any bruising. That can, of course, be done in some cases; damage to the hyoid bone in the neck is a key indicator of such a cause of death. However, that is quite different from this case, which is an inference essentially from the bruising alone.

Both Dr Manock and Dr James had made it clear that it was the pattern of bruising which was the sign of a grip. Three (finger) bruises on one side of the leg, a single (thumb) bruise on the other side. But if there was no evidence of a thumb bruise -- then we only have three bruises on one side of the leg to indicate a grip, and the pattern is different. Clearly three bruises would be less compelling than the four. In turn, two, or one, would be less compelling than three. The Attorney stated:

Today Tonight neglected to tell its viewers that Dr Cordner, also a professor and, at the time of the trial, head of the Victorian Institute of Forensic Medicine, said that the bruising was consistent with being gripped with a hand.

On this occasion, he was correct in what he said. However, the effect of what he said was misleading. He failed to complete the proposition implicit in his reasoning. Being consistent with is not the same as being caused by. The point is that even no bruises would have been consistent with the leg being gripped, because the leg could be gripped and not leave any bruises. There were various arguments, for example, as to why the little finger of the hand might not leave a mark, or why the alleged thumb bruise, or one of the finger bruises, could be fainter than the others. Exactly the same points could have been made in relation to existence or absence of each of the other marks that were said to have been on the leg. 

Here, it was necessary to assume that the marks were grip marks -- in order to render meaningless the absence of the thumb grip mark. But if one starts from the correct point -- of not knowing what the marks are (or how they were caused), then the presence or absence of one or the other becomes very important to any interpretation of the meaning of any pattern.

The Attorney then went on to make a point that demonstrated his misunderstanding of forensic pathology. He said that:

Both doctors [Ansford and Cordner] were witnesses for the defence, not the Crown. Both doctors were deemed to be experts in forensic pathology, unlike Professor Thomas, who was a histopathologist. [Emphasis added]

This requires a brief discussion of the relationship of histopathology to forensic pathology. Essentially, histopathology is the understanding of disease processes through microscopical examination of tissues. Whilst it is correct to say that Professor Thomas is a histopathologist, this means that he has been specially qualified in something which is an essential ingredient in the broader discipline of forensic pathology. In other words, histopathology is an essential tool of the forensic pathologist; being better qualified in that area of pathology means that one would be a better forensic pathologist, not a worse one.

However, the Attorney then went on to make critical comments in relation to Professor Thomas that were entirely incorrect. He said:

Professor Thomas was not a forensic pathologist when he appeared on 4Corners.

The ABC 4Corners program was broadcast in October 2001. Nearly three years prior to that, in Bee v Police, Justice Mullighan in the South Australian Supreme Court, described Dr Thomas as:

… a specialist forensic pathologist and forensic scientist. It is unnecessary to mention his extensive qualifications, training and experience.
[no SCGRG 98 1482 29 January 1999]

Given that the Attorney-General is the senior law officer of the State, he would be presumed to know what is contained in the law reports. In fact, as we shall see, the Attorney had particular reason to be aware of this case. However, in so far as the Attorney’s comments related to the standing of Dr Thomas as a forensic pathologist, he was quite wrong. As we have seen, Dr Thomas was then the Chief Examiner in Anatomical Pathology for the Royal College of Pathologists of Australasia. He had undertaken coronial autopsies in the UK and in New Zealand as well as around 1,000 autopsies in South Australia by that time. He was also retained as a Consultant Forensic Pathologist by the Forensic Science Centre in Adelaide, and accepted as a specialist by the Coroner of South Australia

But the Attorney continued:

I am told he had not carried out a post mortem investigation on a homicide case in South Australia.

Again, this is quite wrong. First of all, one has to distinguish between a post mortem and a post mortem investigation. The former involves the dissection of the body (an autopsy). The latter includes the review and evaluation of procedures that had been undertaken at an autopsy. Clearly the Attorney should have known about Dr Thomas’s specialist involvement in the Baby Deaths on behalf of the Coroner. It was clear from the Coroner’s comments, that the deaths should have been regarded as possible homicide (or infanticide) cases from the outset. Therefore, Dr Thomas’s work in the recently completed Baby Deaths Inquiry amounted to post mortem investigations in possible homicide cases.

The Attorney should also have been aware that the basic proposition (as he put it) could not have made sense. One is asked to do an autopsy in order to determine the cause of death. Logically, one has to know the cause of death before being able to determine who, if anyone, was responsible for it. Was it a cardiac arrest or a brain haemorrhage, for example? Once one has determined the biological cause of death, one then has to determine whether it occurred naturally, or as a result of some external agency. If it is the latter, it then has to be determined whether the external agency was intentional or accidental. Only if it was intentional, can one then go on to determine whether it was self-inflicted (suicide) or inflicted by another (homicide).

The suggestion by the Attorney, that one could determine -- in advance of the autopsy -- that a cause of death in a Coronial case was non-homicidal, does not make sense.

The Attorney then went on to say that he was not sure of the current expertise of Dr Thomas in forensic pathology. However, it would not have been at all difficult to find out. He could easily have asked Dr Thomas -- or obtained the information through the State Forensic Science Centre, that had retained him as a consultant in that area. The Attorney then went on to say:

I can tell members that in 1998 Professor Thomas was called as an expert witness for a defendant charged with having made a false representation to the police. Magistrate Baldino's sentencing remarks are pertinent, given Professor Thomas's preparedness to question the veracity of the forensic evidence in the Cheney case. Magistrate Baldino says:

However, the Attorney failed to mention, as we have already seen, that the magistrate’s decision was appealed to the Supreme Court. In that appeal, Justice Mullighan overturned the decision of Magistrate Baldino. In doing so, he evaluated the reasons the magistrate had given for disregarding the evidence of Dr Thomas.

In relation to the first of the reasons, Justice Mullighan said that he was unable to see the point of the observation by the magistrate. In relation to the second of the reasons, he said, ‘there could be no basis for rejecting the evidence of Professor Thomas for that reason.’ In relation to the third of the reasons, Justice Mullighan said, ‘in my view, the evidence of Constable Smith was unsatisfactory and did not discredit the opinion of Professor Thomas about the possible circumstances of the blood stains in any way.’ In relation to the fourth of the reasons, Justice Mullighan said that the learned magistrate formed the impression that Professor Thomas’s views were not entirely impartial. He said of this:

These are very serious findings so far as Professor Thomas is concerned. He is a specialist in his profession and holds senior and important positions at the Flinders Medical Centre and the Forensic Science Centre where he is an honorary senior consultant. He has a long history of working in forensic pathology overseas and in this State. The finding of the learned magistrate reflects poorly upon him. He gave no reasons for his conclusions. It may be seen that his adverse finding was not based upon a matter of credit or his demeanour in the witness box. It may have been based upon a matter of attitude but that is a matter of speculation. Certainly no suggestion of lack of impartiality or independence or bias was put to Professor Thomas during his evidence by the prosecutor or the learned magistrate. There is no hint of any of these matters in his evidence. His observations and opinions appear to have been recounted in an entirely appropriate manner.

In my view the learned magistrate erred in his dismissal of Professor Thomas’s evidence from his consideration.

It is unfortunate that the Attorney appeared to have been unaware of these comments by the Supreme Court judge.

The Attorney went on to say that ‘there was no such lack of bias in the Cheney case.’ He pointed out that after the committal proceedings involving Henry Keogh, the Director of Public Prosecutions asked Dr James ‘to review Dr Manock's views’, which he did. However, there are two serious problems with this. The first is that Dr James had been subordinate to Dr Manock at the Adelaide Forensic Science Centre for some 25 years. As Kevin Borick QC put it in the Second Petition:

The explanation which has been advanced as to why it was necessary to have Dr James check the work of his Director, was that Dr Manock was overseas for some period of time. This placed Dr James in an invidious position. If Dr Manock’s work needed to have been checked that check should have been carried out by a senior pathologist from outside the South Australian Department of Forensic Pathology.

The second problem is that it was clear that in many areas it was not possible for Dr James (or anyone else for that matter) to meaningfully ‘check Dr Manock’s work’, because Anna’s body had been cremated and because of what Professor Cordner referred to as the ‘paucity of the record’ in relation to the case. Dr James said he had to take the described appearance of the lungs by Dr Manock ‘on face value by his report only’. As to the previous medical history of the deceased, Dr James had to base his opinion solely on Dr Manock’s autopsy report. Dr James accepted from his examination of Dr Manock’s report that there were only three areas of bruising to the body.

Dr James saw photographs of three bruises on the ‘lateral (outer) side of the left ankle’ He did not see a photograph of the bruise on the medial side. This remained his position even up to the end of the second trial. Given that the photograph was put into evidence at the second trial, it would not have been difficult to have shown it to Dr James for his opinion.

This bruise is the critical bruise, because it is said to represent the thumb of the so-called grip mark. Without this bruise there could be no grip theory -- which was the essential factor in the prosecution case. Dr James, in relation to this alleged bruise said:

If it was present as he [Dr Manock] suggests then a grip mark is an obvious explanation. [Emphasis added]

This clearly states that Dr James was himself unable to confirm the presence of that bruise. He merely states that IF it were present, then certain inferences may be drawn. Dr James said that he looked at three histopathology slides relating to bruises on the legs:
one from the group of three on the outer aspect of the left leg.
one from the bruise on the inner aspect of the left leg.
one from one of the seven bruises on the right shin.

He said that he had to rely on Dr Manock’s body chart for this information. Dr James agreed that these slides ‘are only a small portion of each bruise’. In context, this is what he said under cross-examination:

Mr David: And those slides themselves are only a small portion of each bruise?

Dr James: Yes.

Dr James agrees he has only a small portion of the alleged thumb bruise to look at. He then states that IF it is representative of the bruise as a whole, then certain inferences may be drawn. He then goes on to confirm that that was done here.

As Mr Borick said in the Second Petition, he could have no possible basis for the provision of that confirmation to the court. He had no proper basis to say that the slide which he looked at was representative of the bruise as a whole. He then makes the further assumption that it was a representative section through the middle of the bruise. If these assumptions are correct then (he says) this slide ‘can reasonably be used as assessment of that bruise’.

Mr Borick went on to say that although Dr James was not challenged at the time by defence counsel, he was not entitled to make either assumption. An expression of opinion can be based on a fact, or a combination of facts, but never on an assumption which is based on an earlier assumption. In any event, the slide that Dr James says he looked at was not a representative section of the alleged bruise. It was in fact not a bruise at all.

The Attorney-General then stated that, ‘before the trial, Dr James, at the request of defence counsel, made available the pathology evidence for Drs Cordner and Collins.’ However, this fails to deal with the more general point that no pathologist apart from Dr Manock was able to view the body -- and there were no colour photographs from the autopsy. Therefore, Professors Cordner and Ansford could not have been in any better position than Dr James was.

It is not uncommon, of course, for one pathologist to take the information as given to them by another pathologist as the basis for an opinion. However, this case is extraordinary, because, the Coroner had already determined in the Baby Deaths cases, that Dr Manock was the sort of person who ‘had seen things which could not have been seen’ and whose autopsies in those cases had achieved, 'the opposite of their intended purpose'.

In an attempt to bolster his confidence in Dr Manock, the Attorney stated the points on which he said that Dr Cordner had agreed with Dr Manock. He said that Dr Cordner had agreed at the trial that Anna's death was suspicious. That is something which nobody has disagreed with. He then said that Dr Cordner had agreed that Dr Manock's theory could be a possibility of how Anna's death was caused. In fact, what Professor Cordner had said was:

Even as a possibility it is flawed. It would be quite inappropriate for Dr Manock to promote such conclusions on his own initiative.

The Attorney said that Professor Cordner had also agreed that the bruises on the left leg were consistent with a grip mark. As we have shown above, the other witnesses (including Cordner and Ansford) also made it very clear that they were also consistent with accidents or the incidents of everyday living. This was also the view expressed by Dr Byron Collins, one of the leading independent forensic pathologists in Australia.

The Attorney then added that significantly, none of the pathologists who gave evidence at Keogh's trial said that the bruising could have occurred after death. The simple answer to this is that they were not asked. If they had been (as Drs Manock and James have been) they would have answered (as Drs Manock and James have done) that of course bruising can occur after death.

The Attorney added that one could conclude from these events that Dr Manock's views were subjected to scrutiny by three peers, two of whom were engaged on behalf of Keogh, as well as scrutiny in the court. In doing so he fails, yet again, to appreciate the points that had been made about the lack of effective or meaningful peer review. The Attorney then said:

Not only did Today Tonight attack Paul Rofe and Dr Manock but also the South Australia Police were criticised for not following basic procedures at the scene of Anna-Jane's death.

The criticism relies on procedures outlined in the police crime scene forensic procedures manual, a manual that was formally endorsed by the then Commissioner of Police, David Hunt, in 1996 -- almost two years after Anna-Jane's death.

This is misleading. What the Attorney failed to make clear was that the 1996 version of the procedures remained unchanged from those previously in force for many years. In 1996, the police merely decided to issue a version of the procedures in a single volume, rather than to have them distributed throughout the Police General Orders. The Attorney then proposed that:

The manual does not, nor has it ever, applied to the State Forensic Science Centre staff.

This again, is misleading. The pathologist who conducts a Coronial autopsy is engaged by the Coroner for South Australia, who has the statutory responsibility to determine the cause of death. As such, the pathologist is working under the instructions of the Coroner, and not as part of the Forensic Science Centre staff. Clearly it would be inappropriate for the Coroner, or anyone working on his instructions, to ignore the police forensic procedures manual. The Attorney then said that:

The crime scene investigator who attended the scene of Anna-Jane's death did not assess the scene as a crime scene. He took a few photographs for the purpose of the coronial inquest. The death was not assumed to be owing to a criminal act at that time. The information I have been given confirms that the investigator followed the guidelines based on his assessment of the death scene.

This is incorrect. The Attorney would only have had to read the police forensic procedures manual to know that. The following information was contained in the Second Petition indicating the shortcomings of the police in this respect:

The Police Forensic Procedures Manual (PFPM) is part of the Police General Orders, and establishes the regulatory framework under which the police operate. The PFPM states that the provisions that it contains are the minimum operating standards which are to be adhered to. In many respects those standards and procedures were ignored in relation to Ms Cheney’s death. The Director of Public Prosecutions has stated that he does not know of the existence of this manual, and that he has never seen it. The DPP would not be in a position to assess the adequacy of police investigations without reference to this manual.

The Petition then set out the many factors that had been ignored, including the fact that there was no cordon or barrier to the scene, and there was no proper examination of the scene. In fact, there were many police officers at the scene that night, some of them very senior. If they made the judgment about the death not being suspicious, then it was directly contrary to the provisions of their forensic procedures manual. The manual clearly states that the officers attending at an unexplained death are to treat it as a suspicious death (a homicide) until the issues are properly resolved. Normally, it says, this cannot be done until the result of the autopsy is known. The Attorney stated that:

It seems to me that the initial police response was based on the belief that Anna-Jane's death was accidental. Her death was not treated as suspicious until after the post mortem.

The Attorney should have realised that it was in fact the police (as well as the pathologist) who had failed to adhere to the police forensic guidelines. The Attorney continued in his statement to say that:

There is no evidence that Anna-Jane's body was in any way tidied up. Certainly the photographs do not depict this.

Those who have viewed the photographs are clearly of the view that the face has had makeup reapplied to it. Indeed, the DPP said in a filmed interview as follows:

Rohan Wenn: Anna's face -- while she was still at the house -- was made up -- and her hair was combed, indicating that somebody had dealt with the body. Didn't that concern you?

Mr Rofe: No.

In July 2004, Graham Archer of Today Tonight interviewed Professor Maciej Henneberg, an anatomist, and a leading authority on facial and facial feature recognition. Mr Archer said in the program that there were changes to Anna's face at the scene of death which were so pronounced that they have removed vital clues to the cause and circumstances of the death. He gave copies of the photographs to Professor Henneberg:

Graham Archer: Given the time frame, is that a change that could possibly occur naturally?’

Professor Henneberg: As an anatomist, I would say yes.

Anna’s mother has stated in a discussion with Graham Archer, that in fact it was she who re-applied the makeup to the face of her daughter at the scene. She explained to Mr Archer that she didn’t want her daughter to go into the body bag ‘looking like that’. Mr Archer stated, ‘that was the sort of remark you don’t easily forget.’

The Attorney went on to say to the Parliament:

The photographs themselves have been criticised. This was raised in the second petition and was reviewed by the Solicitor-General.

At the time at which the Attorney made his statement to Parliament, no review of the matter had apparently been conducted by the Solicitor-General. The Attorney then went on to say that in 1994 it was the policy of the State Forensic Science Centre to take only black and white photographs. If that was true, then it was clearly inappropriate. Every other forensic science centre in Australia (and other countries) had by that time been taking colour photographs in their investigations for at least 25 years.

It is the obligation of all investigators to provide the best possible evidence of what has occurred. Clearly colour photographs are superior to black and white photographs, and this is borne out by the fact that colour photographs were taken two years previously at the autopsies in the Baby Deaths cases -- deaths which were not considered by Dr Manock to be suspicious. We can also establish that colour photographs have been taken at autopsies in many other cases prior to 1994. The Police Forensic Procedures state that the crime scene officer should be present at the post mortem and take the various colour photographs. This presupposes, of course, that the police are informed of the timing of the autopsy so that they can be present. The Attorney explained this extraordinary state of affairs in this way:

For the purposes of examining suspected bruises, black and white photographs are useful because they can be enhanced better than can colour photographs to help with the examination.

This is to confuse photographs for the purpose of record keeping, with those used as part of some diagnostic technique. As Professor Derrick Pounder, Professor of Forensic Medicine at Dundee University, has stated – ‘one would never take a black and white photograph instead of a colour photograph’.  

The Attorney then moved on to the question of the insurances. He said that:

The controversy over the insurance policies, including the $36 payment, was canvassed exhaustively at the trial. The assertion that the $36 payment is startling new evidence is wrong, mischievously so.

It has not been said that the information about the $36 is new; merely that it is important evidence. The Attorney concluded by saying that there was nothing new and that:

The assertions made on the Today Tonight program overstate the extent to which the Crown relied on the competence of Dr Manock.

As we can see from our previous discussion, Dr Manock was the only Crown witness who had examined the body of the deceased. He was the only person able to unequivocally assert that murder was the only explanation of the evidence. Even if all of the other witnesses had been taken at face value, they could only say (at best) that murder was a possibility. However, they also admitted that the evidence was also consistent with other, possibly innocent, explanations. In that case, under the rules of circumstantial evidence, if Dr Manock’s evidence had not been admitted, the matter could not have been put to the jury.

In terms of there being ‘nothing new’, the filmed interview which preceded the Today Tonight program (of 17 March 2003) revealed the following:

Mr Rofe said that the fact that Anna’s car may have been missing from her home on the night of her death, and the fact that it may have been returned some two days later, was something previously unknown to him. This clearly indicates the possibility of another person being at the premises shortly before or around the time of Anna’s death.

Mr Rofe said he was previously unaware of the fact that Anna had make-up reapplied to her face, had her hair combed, and the swelling in her face reduced within a short period of her death.

Mr Rofe said he was unaware of the fact that there was a mark visible on Anna Cheney’s forehead, which was not present in the photos taken earlier that evening, before she had been tidied up.

Mr Rofe was surprised to learn of the fact that the police took two apparent photos of Keogh’s left hand -- when the crime was said to have been committed with his right hand. It subsequently transpired that the second photo purporting to be of the left hand is in fact a photo of the right hand printed back-to-front, which makes it look like a left hand. Mr Rofe said that he had never seen those photos (which in itself would be a concern). One would expect that the prosecutor would see all of the photos.  

Mr Rofe said that he did not know that police had made phone calls that evening from the house of a person living nearby.

Mr Rofe said that he wasn’t aware of any evidence that might have gone missing due to the lack of a cordon. But Anna’s father had let out the bath water, which might well have contained useful evidence about her condition.

Mr Rofe was unaware that crime scene officers had not been present at the autopsy.

Mr Rofe said that he was not previously aware of a possible injection mark or bee sting mark on Anna’s left leg. Either of these things could have provided innocent explanations for a sudden death.

Mr Rofe said that he thought that the black and white photographs produced in evidence had been taken with the use of a Polylight. In fact, the evidence at trial clearly showed that Dr Manock denied that this was the case.

Mr Rofe said he was unaware that the theory put forward by Dr Manock had since been examined by a professor of anatomy who stated that it was ‘impossible’.

Mr Rofe denied that a re-enactment had been proposed before the trial when in fact it had. As we have seen, the police running sheets disclosed that Mr Rofe had in fact put a stop to it.

It was not revealed until after the first trial that Dr Manock had not retained his original notes of his autopsy. Mr Rofe knew this to be the case, having been made aware of the matter shortly before the second trial. This was not disclosed to the defence.

It was not revealed until after the trial that Anna had attended at 36 medical appointments, a number being with specialists, in the five years prior to her death. This information was not brought out at the trial and the details have not been made available to date.

As a result of the above, in August of 2003, Keogh’s legal advisers lodged a third Petition with the Governor of South Australia, in which it was said:

The Petitioner now claims that the advice to your Excellency in causing you to reject the Second Petition of the Petitioner was erroneous. He requests that his complaints contained herein be further considered by you, according to law.

The Petitioner complains that much of the information provided to the Parliament of South Australia in the statements by the Attorney-General was misleading or incorrect, and as a result, the Governor of South Australia has acted on advice which was inappropriate. As a consequence the Petitioner claims that the Second Petition was not considered according to law. The Petitioner now provides the details of his complaints.

The Third Petition then set out the points that have been discussed above. It sought Keogh’s immediate release from custody pending a full inquiry, or alternatively, referral of the whole case to the Full Court.

As a result of this third petition, the Solicitor-General (Mr Chris Kourakis QC), contacted Keogh’s legal advisers and asked them to provide evidence to support the claims that they had made, and in February 2004, affidavits were filed with him.

Affidavits were also filed with the Medical Board of South Australia, as a consequence of Keogh’s complaint to them about Dr Manock’s competence and professionalism. We will deal with their findings in a separate report

Top of Page