Networked Knowledge - The Case of Henry Keogh
Affidavit of Associate Professor Tony Thomas (summary)

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Professor Thomas began by stating his qualifications. He continued:

In the Keogh case, I examined the histology sections from the autopsy. I discussed them with Professor Cordner.

Preliminary considerations

In the case of a suspicious, sudden, unexpected and unexplained death of an adult, I would expect the pathologist to attend at the scene when the body was found. Dr Manock did not visit the scene until months later. That was in my opinion inappropriate.

A pathologist must consider all reasonable possible causes of death before making a determination. Dr Manock stated at the committal proceedings:

"I was at no time looking or thinking that the death was accidental because I could find no explanation as to why she would drown."
[Committal Proceedings Transcript p26:5.]

Dr Manock stated that there were no signs of natural disease present. In January 2000, I examined the Medicare history of Ms Cheney from 1989 to 1994. There were some 37 consultations or procedures over a period of five years prior to her death. There was no reference in Dr Manock’s notes or autopsy report to any details of this medical history. It should have been explained in the autopsy report. Without that, any assessment of natural disease processes would be incomplete. 

It is important to obtain as much clinical information as possible. For example, an electrocardiogram, if available, might have provided some insight into any cardiac conduction problems that may have existed. Such problems are known to carry a high risk of sudden death. They may not give rise to any detectable abnormality at autopsy even after extensive microscopic examination.

Inadequate Documentation

I agree that:

"Every operation must be documented on the case notes and documented in such a manner that it will still be comprehensible perhaps years later."
[Royal Commission Report Concerning the Conviction of Edward Charles Splatt (1984) at p51.]

There was no proper case-file for the case. There were a number of different autopsy reports, body charts and hand written notes which had not been properly collated. It was not possible to get a clear understanding of what had occurred in this case.

There was no proper documentation of the organ weights which is an essential part of any autopsy. Without that you cannot make a proper assessment of the cause of death. Dr Manock stated [at the committal proceedings] he had not weighed the lungs - yet there is a note of those weights on one of the documents.

Chain-of-Custody Considerations

The chart for the tissue samples was inadequate, so it was not possible to determine precisely the origin of some of the tissue samples. The labels on the containers did not indicate their chain-of-custody. Their origin and processing could not be positively affirmed.

A body chart indicated that tissue samples were taken from the mark on the inside of the left leg, a mark on the outside of the left leg, a mark on the right leg and one of the four alleged bruises on the head.

Contradictions Within The Available Evidence

Dr Manock said the tissue samples were taken on Monday 21 March 1994. The mortuary assistant stated, "the bruising on the ankle consistently got darker as the week progressed." If the tissue samples had been taken on the Monday, then this observation could not have been possible in relation the excised bruises. The statement does not refer to "the remaining bruises".

Further Information Required

For any sound conclusion the following questions needed to be addressed:

Who took the tissue samples and when were they taken?
Who labelled the containers into which they were placed?
Where were they taken from?
When were the entries made in the work diary and who wrote them?
Who trimmed the samples and who cut the final sections?

From the information available to me, I am unable to answer those questions.

Photographs

In the UK, New Zealand and Australia it has been standard practice to take colour photographs at an autopsy for some 25 years. The photographs in this case were totally inadequate. The most important defect of the black and white photographs is that none of them identified the body. Apart from identification, they should have fully recorded any injuries, damage, or marking to the body. That was not done.

They should have fully recorded the autopsy procedures, sites of tissue samples and findings both positive and negative. That was not done.

The photos from the scene showed marking to the upper left quadrant of the body; a mark to the forehead; raised areas around the left ear; swelling to the face and nostrils. The photographs at autopsy should show those areas to see if those features were still present. That was not done.

There is a photo from the scene which appears to show a mark to the outside of the left thigh. That area should have been carefully examined to exclude causes such as an injection or insect bite. The autopsy photographs should have a close-up of that area. That was not done.

Dr Manock said:

"The feet were the subject of considerable speculation, because of colour changes that arose about five days after the death, or six days after the death, and it was in fact due to early putrefaction. There was no suggestion eventually that there was any bruising to the feet."
[Second Trial Transcript p192:15.]

Those colour changes should have been recorded by colour photographs. That was not done. It was therefore not possible to make an independent assessment of Dr Manock’s opinion about bruising to the feet.

The autopsy photos should have shown the state and distribution of lividity which is an important factor in the timing of death. That was not done.

No photographs of the internal organs were taken at the autopsy. That was a serious defect.

Dr Manock’s autopsyreport stated:

"Larynx, trachea and main bronchi were packed with fluid and gastric contents but it was difficult to ascertain whether this was an antemortem phenomenon or resulted from external cardiac massage and artificial respiration." [Emphasis added]

The photos should have shown that condition. That was not done. If it had been an ante mortem phenomenon then it clearly could have been the cause of death. Dr Manock said he had a difficulty in determining the cause of that condition. He did not explain what the problem was.

In his autopsy report Dr Manock stated:

"Lungs showed massive oedema. Water could be squeezed from the cut surface of the lungs by applying minimal pressure."[p 4.]

Oedema and water are not the same things. Oedema can result from cardiac problems. If the lungs had shown "massive oedema", this would have been consistent with a death from cardiac failure. It would have been essential for colour photographs to have been taken of the lungs. Whilst it would not have enabled a subsequent pathologist to determine if the fluid was oedema or water, there may have been other factors relating to the lungs which would have enabled a more specific determination to be made, especially in the hands of a specialist.

In his autopsy report, Dr Manock stated:

"There was haemolytic staining inner lining (sic) of the aorta from the aortic ring down to the level of the diaphragm…"

That observation subsequently proved to be important to Dr Manock’s diagnosis of the cause of death. It would have been essential for colour photographs to have been taken of the aorta and the staining which was said to have been observed. That was not done.

It would have been essential for colour photographs to be taken of the heart, brain and other major organs which were said to have shown no pathology. That was not done.

In a suspected murder case, the police should have been present at the autopsy and the pathologist should have invited suggestions from them as to what other photographs might have assisted from an evidentiary perspective. That was not done.

Colour photographs are essential to the identity of marks, and are always taken at a Coronial autopsy. Visual differentiation of bruising from certain other lesions, skin blemishes, smudges or marks depends upon colour rendition. Without a record of this information, it is not possible to determine the nature of the marks in question. If we cannot determine from the photos what the marks are, then we cannot determine what the causes of the marks might be.

The significance of this matter was referred to by Dr Manock, when he said in relation to the photograph of the bruising on the left leg of the deceased:

"It is in black and white and obviously the object is naturally in colour."
[Second Trial Transcript p154.2.]

Dr James also referred to the significance of the colour of a bruise when he said:

"Generally speaking, the colour changes provide the index of whether a bruise might be recent. In other words, within 24 hours or so. The development of colour changes going through yellow to green before fading might suggest a period of three or four days or more than a week, for instance."
[Second Trial Transcript 208.9.]

Dr Manock’s visual observation of alleged bruising subsequently proved to be a key factor in his diagnosis of the cause of death. As there was no record of any other pathologist or any police officer being present at the autopsy, it would have been essential for colour photographs to have been taken of the bruising which was said to have been observed. That was not done. Therefore it is not possible for another subsequent pathologist to confirm that observation.

Unconsciousness

The following exchanges took place with Dr Manock when he was asked about the causes of unconsciousness in his examination-in-chief by the DPP:

Mr Rofe QC: Can you explain to us how a person loses consciousness when force is applied to the head?

Dr Manock: No, I did not.

[Second Trial Transcript p165.23 – p166.12.]

Mr Rofe QC: Would you expect for sustained unconsciousness to occur in that situation that there would be physical evidence of trauma to the head?

Dr Manock: I would expect that, yes.

[Second Trial Transcript p177.17.]

Then in the cross examination by Mr David QC, the following exchange took place:

Dr Manock: If a blow is suffered and the brain is moved within the head so that it becomes distorted, then I would expect to see some sign of that within the skull.

Dr Manock: Yes.

[Second Trial Transcript p180.2.]

Dr Manock’s views in relation to this issue are incorrect. In the following extract from the cross-examination, he not only repeats those incorrect views, but also misrepresents the views of other pathologists: 

Mr David QC: I take it you would disagree with my proposition that I put to you now -- namely, that a trauma which causes unconsciousness may leave no mark at all, either internally or externally?

Dr Manock: I believe so.

[Second Trial Transcript p181.9.]

Loss of consciousness does not necessarily have any observable signs. Other pathologists do not share the views of Dr Manock on this topic. There is no scientific literature or scientific studies which would confirm the views of Dr Manock.

As a result of these incorrect opinions, it would appear that Dr Manock determined that there was no possible natural or accidental cause which would have given rise to unconsciousness. It would appear that this was why he said that he was at no time - looking - or thinking that the death was accidental - because I could see no reason as to why she would have drowned. It would appear that the autopsy then continued without any further investigation of any possible natural or accidental causes of death. That was inappropriate.

The health of the deceased

There was no detail in Dr Manock’s notes relating to the prior medical history of the deceased. It seems that the autopsy was conducted without any proper investigation of any possible natural causes, or natural contributing causes. The DPP’s first words to the jury were: 

"On 15 March last year, Anna Jane Cheney had her 29th birthday. She was a fit, healthy young woman."
[Second Trial Transcript p 2.2.]

The DPP also said that:

"The prosecution says that murder is the only inference open on the evidence, the only explanation. Of course, to prove its case, the Crown must prove there is no other reasonable possibility -- either that she committed suicide or she was killed by someone else or that she died as a result of an accident. [The prosecutor makes no mention of possible natural causes]. We say the circumstances, her general health and fitness, the findings of the post mortem ... leave no other explanation."
[Second Trial Transcript p 3.29 – 4.1. Emphasis added]

He also said:

"A fit, healthy, 29 year old woman may well query why someone has insured her life for more than $1 million."
[Second Trial Transcript p 9.9.]

The father of the deceased said:

"She was a very healthy girl. She was very fit, and very keen on aerobics."
[Second Trial Transcript p 699.14.]

It is important to bear in mind the advice of Mr Justice Shannon in the Splatt [Royal Commission] Report when he said that:

"The vital obligation which lies upon the testifying scientists is that they spell out to the jury in non-ambiguous and precisely clear terms, the degree of weight and substance and significance which is or ought properly to be attached to the scientific tests and analyses and examinations as to which they depose; and specifically the nature and degree of any limitations or provisos which are properly appended thereto."
[Royal Commission Report Concerning the Conviction of Edward Charles Splatt (1984) at p52.]

In this case, with regard to the autopsy findings, the only person who could have provided direct evidence as to the fitness or health of the deceased at that time was Dr Manock. He was the only doctor and pathologist present at the autopsy.

Issues of fitness and health are not matters to be assumed. They should be determined scientifically. Without a proper examination of the heart and the brain, for example, it is not possible for those matters to be positively established. Without proper examination of the medical files of the deceased from all of the doctors who attended her, those matters cannot have been properly established.

If those things had not been done, then it was the duty of the pathologist to make it clear that they had not been positively established. Because of the fact that there are no recordings of those matters, it can only be concluded that they were not done.

Therefore, in my opinion, the legal proceedings went forward on the basis of scientific facts which had not been established by the autopsy or other enquiries necessary to properly establish the condition of the deceased either prior to her death or at the time of her death.   

Cause of Death as "Drowning"

Dr Manock’s autopsy report stated: "ANATOMICAL DIAGNOSIS Drowning."

It appeared that he reached this finding from two observations:

1. The lungs were waterlogged / heavy with oedema;

2. There was staining of the lining of the aorta.

Dr Manock reported that his examination of the single piece of lung tissue supported his diagnosis of drowning. He concluded that as he could find no evidence of unconsciousness prior to death, then this had to be a forced drowning or homicide. It was inappropriate for Dr Manock to make that determination on the basis of such inadequate information and his faulty reasoning in relation to the issue of unconsciousness, for the following reasons. 

Drowning as diagnosis of exclusion

Dr Manock stated that unconsciousness would have to precede death. The judge asked Dr Manock, "Does it occur in every case?" Dr Manock replied, "Every case of drowning, yes. There is an unconscious state before death where there is still a circulation."
[Second Trial Transcript p144.35. Emphasis added].

The main problem with this is that drowning is a diagnosis of exclusion. Therefore you have to evaluate all other possible and reasonable causes of death consistent with the findings.

Lung pathology not properly determined

If the lungs had been heavy with fluid, then it would have been important to consider if the fluid was oedema or water. Pulmonary oedema is a common complication of heart failure. In sudden unexpected cardiac deaths, in otherwise apparently healthy people, the lungs may be extremely heavy and waterlogged. The notation on this file [but not included in the autopsy report] was: ‘Right lung 840, Left lung 700 (60)’. Those lung weights are consistent with cardiac failure in sudden unexpected cardiac death.

Staining of aorta not properly determined

Dr Manock said that he observed staining of the lining of the aorta. That may be consistent with freshwater drowning from the break-down (haemolysis) of the red blood cells. It is also consistent with certain disease states such as haemolytic anaemia, which also causes a similar red cell breakdown during life, and may be drug-induced.

Dr Manock said the autopsy procedures were undertaken by him on two separate occasions -- two days and three days after death. In his evidence, but not in his report, he referred (as we have seen) to early putrefactive changes. Such changes may cause similar staining. To determine that there was an exclusive correlation between the staining -- and any drowning, you would have to exclude those other causes. There was no evidence of such procedures, examinations or tests being carried out, as would have enabled Dr Manock to properly exclude them. In the absence of such evidence one could only conclude that they were not done.

Heart pathology not properly determined

I am often called upon to make detailed examinations of hearts in cases of unexpected death where the pathologist at autopsy was unable to determine the cause of death. In a high percentage of these cases, the detailed microscopical examination reveals abnormalities that are known to carry a risk of cardiac arrhythmia and sudden death.

Dr Manock did not obtain specialist examination of the heart. He only took two portions of heart tissue for microscopical examination. Some cardiac abnormalities are hard to find. Specialist and extensive microscopical examination is necessary for their diagnosis. Dr Manock should have been aware of this issue, as he had been questioned extensively about it in the Coronial Inquiry in relation to the Baby Deaths. His failure to obtain specialist examination of the heart meant that the autopsy was incomplete. An alternative cardiac cause of death could not be excluded.

Brain pathology not properly determined

The same considerations apply to the fact that Dr Manock did not seek to obtain specialist examination of the brain. He failed to take any brain tissue for examination. There could have been neurological factors which could account for a cause of sudden death and which may not have been observable without microscopical examination. Dr Manock should also have been aware of this issue, as he had also been questioned about it in the Coronial Inquiry in relation to the Baby Deaths. In one of those cases, abnormalities were detected in the brain by an expert neuropathologist after the tissue sections were reported by Dr Manock as being normal. The failure to obtain this specialist examination meant that the autopsy was again, incomplete. An alternative neurological cause of death could not be excluded.

Blood samples no longer available

The Forensic Science Centre in Adelaide said that the blood samples taken at autopsy were discarded after twelve months. Given the fact that the cause of death in this case has not been properly determined, that ought not to have occurred.

Laryngeal oedema and anaphylaxis not excluded

In the colour photographs which were taken at the scene, the body showed oedema and swelling of the face. The ambulance officers said they had difficulty when attempting to establish an airway during attempts at resuscitation. These factors gave rise to the possibility of laryngeal oedema which might have arisen from the condition known as anaphylaxis.

It is an acute allergic reaction which can occur in response to exposure to a wide range of medications, foods and other factors. It can rapidly cause unconsciousness and death. It is a cause of death which doesn’t appear to have been considered. If the blood samples had been retained they could have been examined for the presence of tryptase, [an enzyme] which is a by-product of the reaction. The inability to undertake this test means that anaphylaxis as a possible cause of death cannot be excluded.

Ambulance records have not been made available

The detailed ambulance records relating to the attempted resuscitation of Ms Cheney have not been properly considered. There is no record of them in Dr Manock’s report. I have not been able to access them. All such information should have been considered before the cause of death was determined.

Sometimes no cause of death can be determined

It was also well recognised that sometimes no satisfactory cause of death can be determined, despite extensive examination. The scientific and medical literature reveals that a significant number of sudden unexpected deaths in adults are unexplained.

Drug screening incomplete

The documentary evidence of the drug screens which were said to have been undertaken in this case were insufficient to exclude a drug-related cause of death. A full toxicological analysis of the blood should have been undertaken. It is not clear if the screening which was undertaken was able to exclude drugs which were on the premises. Certain tablets were found in the bedroom/study. The following entry appeared in one statement:
>From Detective Man I received the following items.
1. 10.09 pm. A plastic bottle with printed label [drug named] located on top of bookshelf in bedroom/study.

That drug is a non-steroid anti-inflammatory drug (NSAID). Such drugs used to relieve pain, reduce inflammation, swelling, redness and soreness, which may occur in different types of arthritis, including rheumatoid arthritis or osteo-arthritis, and ankylosing spondylitis in muscle and bone injuries such as strains, sprains, lower back pain rheumatism and tendonitis, and in menstrual cramps. The medicine is available only with a doctor’s prescription and not to be taken if there is any allergy to it, or any of the ingredients listed, or if one has taken aspirin or any other NSAID medicine. The manufacturer states:

"Allergic reaction
Symptoms of an allergic reaction may include asthma, wheezing or shortness of breath, swelling of the face, lips or tongue, which may cause difficulty in swallowing or breathing, hives, itching or skin rash or fainting. Symptoms which may occur include drowsiness, stomach upset, vomiting, nausea, dizziness or light-headedness."

Where there is a specific warning that a known side effect is an allergic reaction, which could produce drowsiness, dizziness, or light-headedness, then it would have been essential, in the circumstances, to undertake appropriate tests to determine if the deceased had this drug in her system. There was no report that this was done. In that case, one can only conclude that it was not done.

The colour photographs taken by the police at the scene provide clear evidence that the deceased had swelling of the face and lips. The manufacturer of the drug stated that it can cause ‘shortness of breath’, ‘difficulty in swallowing or breathing’ and ‘fainting’. The issue of fainting was canvassed extensively at the trial. This issue should have been properly examined and excluded. It was not.

A report from the Forensic Science Centre stated that the blood alcohol level at autopsy was 0.08%. Dr Manock said that because dilution may have occurred:

"The net effect would be that the blood alcohol level during life may have been slightly higher than it was at autopsy."
[Second Trial Transcript p 174.24.]

He went on to say:

"I don’t think it would have been higher than 0.1 grams per cent."
[Second Trial Transcript p 174.31. However, in view of Dr James comments at the Medical Board Hearing in 2004 that haemodilution may have been as much as 80%, this calculation should be re-considered. There is no way of knowing whether Anna consumed any further alcohol that evening when she was alone]. 

I refer to a case which has been reported in the local newspaper:

"Woman Drowns Taking Bath
A healthy young woman drowned while taking an early morning bath when she fell asleep after a night socialising with friends, a coronial inquest has found.
Jody Louise Ryan 22, spent the previous night at home with a few friends – a quiet night chatting and drinking bourbon and red wine.
Glebe Coroner’s Court heard yesterday a flatmate found Miss Ryan immersed in the bathtub of their Clovelly home about 7.20am on Saturday May 27 1995.
The bath water was still luke-warm. It is believed the young woman, who worked for a communications company, had fallen asleep.
Her death shocked and perplexed Miss Ryan’s parents John and Denise – their daughter was fit and healthy, a former State champion swimmer and runner.
However, coroner Mr John Abernathy said he was satisfied there was no foul play involved after hearing evidence from Miss Ryan’s flatmates, paramedics and the police.
“The overall pattern of injuries was consistent with the consumption of alcohol,” Mr Abernethy said.
A post-mortem examination found Miss Ryan had a blood alcohol level of 0.13 the inquest heard.

[The Advertiser 18 June 1996].

Clearly, there is a heightened risk that a person standing up in a warm bath, under the influence of a blood alcohol level of 0.08% or above, where there may be some muscular incoordination in addition to vasodilatation, may accidentally fall or faint, lose consciousness and drown with or without additional head trauma. Dr Manock had inappropriately excluded those possibilities.

Histology Inappropriate

The tissue samples taken for examination were insufficient and others were misinterpreted.

Insufficient histology

There was insufficient examination of the tissues in this case. Initially there were only eight tissue samples from which sections were prepared for microscopical examination. These included:

Four pieces of tissue taken from marks described as bruises.
Two pieces of heart tissue.
One piece of lung tissue.
One piece of kidney tissue.

One piece of lung tissue was insufficient. Professor Henderson, a leading specialist in lung pathology, says that for a lung where no obvious abnormality is evident, it is appropriate to take a total of five samples of tissue. Where there is known abnormality of the lungs (as in this case) he would retain one of the lungs and its associated bronchus. That is an appropriate guide to the minimum tissue retention policy.

It was inappropriate that no brain, liver, adrenal, pancreas or pelvic tissues were taken for microscopical examination. The samples of heart and lung tissue which were taken were inadequate. Viral myocarditis can be very focal and if insufficient sections are examined then this diagnosis can be missed. As Davies states:

"It is self-evident that the pathologist has a responsibility to accurately record data that will allow the cause of death to be identified with a reasonable degree of credibility. This cannot be done without histological examination of the myocardium involving perhaps 6-10 tissue blocks."
[Extract from book by Professor Bernard Knight comprising nine pages].

Histology misinterpreted

There were inaccurate interpretations of the tissue samples in this case. Dr Manock diagnosed drowning by the rupture of the walls of the lung air sacs. This is a finding cited in forensic text books. However, the section of lung tissue which Dr Manock provided showed only congestion and some pulmonary oedema or fluid within the air sacs. This misinterpretation arose from the failure to recognise the normal three-dimensional anatomy of the lung parenchyma as seen in a two dimensional tissue section.

I agree with Bernard Knight [a well known and respected UK forensic pathologist] when he stated in relation to the histological changes in the lungs in cases of drowning that, "the significance of the findings is always ambiguous" and quote Jansen as stating that it is "never probative".
[Knight and Jansen].

Bruising – General Issues

Definition of "bruising"

It is important to note that the term bruising is imprecise. It implies: