Petition of Henry Vincent Keogh to His Excellency Sir Eric Neal, AC, CVO

Governor of South Australia

17 December 1996

[The following is the text of the first Petition which was presented to the Governor on Mr Keogh’s behalf. The Petition was denied “in effect” because the view was taken that Mr Keogh still had available to him the opportunity to appeal to the High Court. This meant that the substance of Mr Keogh’s Petition was not considered at that time]

This petition of Henry Vincent Keogh care of Yatala Labour Prison, Peter Brown Drive, Northfield in the State of South Australia Shows:-

1. Mr Keogh stood trial before Duggan J and jury in the Supreme Court, in March of 1995 charged with the murder of Anna Jane Cheney. The jury was unable to agree. Following a retrial before His Honour and jury, Mr Keogh was convicted of murder on 23 August 1995. He appealed to the Court of Criminal Appeal and that appeal was dismissed on 22 December 1995 (the judgment of the Court of Criminal Appeal is Annexure “A”). He now makes this petition seeking a reference by the Attorney General of the whole case to the Full Court pursuant to Section 369 of the Criminal Law Consolidation, Act 1935. The grounds upon which the petition is made appear below.

2. This petition relates to the evidence given at the trial by a forensic pathologist, Dr Manock. This evidence was a central part of the Crown’s case. In particular, Dr Manock provided a theory as to how the death might have been caused. It is submitted that, having regard to both the evidence available at trial and the material now available (arising from an inquest in which Dr Manock was heavily criticised), Dr Manock’s evidence must be regarded as unreliable.

The evidence of Dr Manock

3. At the second trial, Dr Manock testified as follows:

“if the person is sitting at the plug end of the bath and an arm is put underneath both legs to grip the left calf, either by simply lifting or lifting the leg and pushing the head, then the head could slide under the water. At this time, the edge of the bath could cause bruising to the back of the neck or the muscles attached to the base of the skull. If the movement is then continued and the legs are folded over entirely, this would have the effect of trapping the arms by the sides of the bath and the top of the head would then be against the top of the bath and that would give a flat surface that could cause the bruising to the top of the head. The left leg has been gripped. However, the right leg is merely encompassed by the arc of the arm and can move. If it thrashes around, it will bang itself against the edge of the bath and may produce bruising along the border”.
(Transcript p 167)

Lying behind that theory was Dr Manock’s opinion that the bruises which he observed on the left leg (three said to be on the lateral side, one said to be on the medial side of the calf) were caused by the grip of a right hand placed around the calf. The bruises to the left leg were said to have been caused by a grip described as follows:

“It was possible to cover the bruises by putting a hand over the leg and a thumb approximating to the bruise on the inner aspects of the left leg and the three forefingers would encompass the bruises on the right aspect. That is if the right hand is placed beneath the calf and the thumb then comes on the inside of the calf”.
(Transcript p 155)

4. The theory propounded by Dr Manock and advanced by the Director of Public Prosecutions as the mechanism for non accidental drowning was based on an account of a murder trial at about the turn of the century written by or about a Mr Smith entitled “Brides in the bath”. It was untested and unsupported by any scientific analysis.
(See committal transcript pp33-35 – Annexure “B”).

5. The theory which was advanced by Dr Manock was the only prosecution theory advanced relating the bruises to the manner of death. Although it was put forward as a possible account, it was the only theory put forward by the prosecution and it admitted of only one conclusion which was that the death was by murder and that the murder was committed by the appellant.

6. The Director of Public Prosecutions relied heavily on the evidence of Dr Manock. In his address to the jury, the Director of Public Prosecutions appears to have accepted that Dr Manock may have been wrong about the relationship between loss of consciousness and observed trauma in the brain (see Transcript p 1045 Ls. 8-13). However, the Director of Public Prosecutions strongly relied on Dr Manock’s observations and opinion as to the way in which death occurred:

“Dr Manock, will no doubt be roundly criticised by my friend because he got this wrong about unconsciousness leaves bruising on the brain. However, he is the most experienced pathologist who was called in this trial quite clearly: for 30 odd years, 10,000 autopsies. He takes a different view to Dr Cordner, to Dr Ansford, even to his colleague Dr James, whom the prosecution called. So be it. He was the one who saw the body, who put his hand on the marks on the lower leg and said, “That’s consistent with a grip mark and I can’t thin of anything else it could be”. Even Dr James said “Well, it is the obvious explanation in the absence of anything else””.
(Transcript p 1031)

A little later in his address the Director of Public Prosecutions said:

“And as I said, even if you think, and accept Dr Cordner, that Dr Manock is wrong medically about the evidence on the brain, the loss of consciousness, that is no reason that you would just dismiss Dr Manock out of hand. A man of 30 years experience, 10,000 post mortems or whatever it is.
When you think about the evidence particularly of Dr James and Dr Cordner, what they are saying is, yes, normally we would expect those signs, but we are not prepared to go all the way. There might be cases when we will accept you can lose consciousness and there will be no sign.

When we talk about the bruising, if they are inflicted at the same time, and if that time is at or just before death, then the bruising to the legs can be explained by no other evidence or situation other than murder and murder by the accused”.
(Transcript p 1045)

7. Insofar as other forensic pathologists (including Dr James) could comment on the matter they were obliged to rely fundamentally upon the observations made by Dr Manock. Moreover, such acceptance of the possibility of Dr Manock’s theory as was elicited, carried such qualification as to make it of no moment other than in its expression coming from Dr Manock. (Annexure “C” is a schedule setting out the material findings and opinions of Dr Manock, the respective views of the other forensic pathologists, together with the comments of the Director of Public Prosecutions in his address and the trial judge in his summing up).

8. Dr Manock’s theory was adopted in the Court of Criminal Appeal without qualification (see judgment of Matheson J Annexure “A” at pp. 16-25). Matheson J commenced his analysis of the evidence of the forensic pathologist by saying:

“The actual post mortem was performed by perhaps the most experienced of the four pathologists, namely Dr Manock. He has been a forensic pathologist for 33 years and has performed over 9000 autopsies. Over the last 7 or 8 years he said that he had done about 100 autopsies where the cause of death was drowning and some of those resulted from domestic bath situations”. (Judgment p 15)

The Inquest

9. In August 1994, after the committal hearing of Mr Keogh, but before his first trial, an inquest commenced in relation to the deaths of three very young children, namely, Storm Deane, William Barnard and Joshua Nottle. That inquest was conducted by Wayne Chivell, Coroner for the State of South Australia. The inquest proceeded on a number of days in August 1994, November 1994 and May 1995. Findings were handed down on 25 August 1995 just two days after the verdict in this case. As appears from Annexure “D” (referred to in para 22 and infra) the handing down of that decision was delayed until after the jury’s verdict.

10. The central issue in the inquest was a challenge to findings by Dr Manock that each of the deaths was caused by bronchopneumonia. Under attack at the inquest were the autopsy findings and opinions expressed by Dr Manock. It was put by Counsel assisting the Coroner that Dr Manock:

(a) failed to make observations which should have been made
(Inquest transcript – 1091 line 32 – 1092 line 11; see also 962-9, 993-5, 1008-1010, 1074-6);

(b) made observations of things which he could not have seen
(964 lines 24-36; 966 lines 1-8; 1072-3);

(c) made findings which flew in the face of established facts
(939; see also 954, 1010-1011, 1069-1073);

(d) expressed opinions which were manifestly wrong
(939; see also 964, 1011, 1071-3);

(e) so acted as to prevent meaningful lines of enquiry from being pursued by the police
(939 and 1091; see also 965, 1010, 1014-5, 1070-1); and

(f) lacked credibility
(971, 1015, 1080, 1088-1090).

11. For convenience, and because it is anticipated that there is not likely to be any contest about the Coroner's Finding of Inquest (Finding) by the Director of Public Prosecutions, this Petition will use the Finding for the purpose of identifying those aspects of the evidence which touch critically upon the observations made, and opinions expressed, in each case, by Dr Manock. The Finding is Annexure “E” to this petition. Schedules have been prepared relating to each of the three deaths investigated. They form Annexures “F” (Deane), “G” (Nottle) and “H” (Barnard). Specific criticisms of Dr Manock by the expert witnesses called by counsel assisting the coroner and accepted by the Coroner were:

(a) His post mortem finding as to the cause of death in each case (bronchopneumonia) was unsustainable.
Finding – pages 28.5; 53.7; 82.7.

(b) He consistently failed to carry out routine examination and testing procedures properly required in a post mortem.
Finding – pages 17.1 to 20.1 (Deane; where no less than 11 such failures are identified including, pertinently, serious deficiencies in histological examination and failure to weigh organs including the lungs in accordance with time honoured practice).
Pages 47.8 to 49.1 (Barnard; where no less than 9 such failures were identified and again the organs including the lungs were not weighed and there was no block key to identify origin of the tissues which had been taken for histological examination).
Pages 74.5 to 80.8 (Nottle; where no less than 11 such failures are identified again including defects in the histological examination).

(c) His opinions as to the likely mechanism for the cause of injuries were in two of three cases rejected as unsustainable:
Finding – pages 7.8; 8.9; 12.8; 27.7 (Deane)
Finding - pages 59.4; 74.8; 80.5; 81.9; 82.5 (Nottle).

(d) He failed to make observations of injuries apparent on examination by the other experts.
Finding – pages 15.7; 15.9 (Deane)
Finding - pages 47.8; 48.9. 50.6 (Barnard)
Finding - pages 75.1; 80.4 (Nottle)

(e) He claimed to make observations of things he could not have made.
Finding – pages 34.1; 48.6 (Barnard)
Finding - pages 72.8; 76.6 (Nottle)

(f) His post mortem examination in each case achieved the opposite of its proper purpose in that it closed off lines of investigation rather than opened them up.
Finding – pages 27.9 (Deane)
Finding - pages 53.6 (Barnard)
Finding - pages 81.9 (Nottle)

(g) His explanations designed to exculpate himself for the manifest failure of the post mortem investigations were found to be lacking in credit.
Finding – pages 50.5; 52.1 (Barnard)
Finding - pages 82.5 (Nottle)

(h) In addition, evidence on at least one factual issue arising during the investigation was directly challenged by the investigating police officer in a way that seriously undermined his credibility generally.
Finding – pages 26.8 (Deane).

12. In his opening remarks the Coroner made reference to the fact that:

“In each case, concerns were expressed to me by police investigators, both in the Coronial Investigation Section and in the Criminal Investigation Branch and also by eminent practitioners who are experts in the field of paediatric medicine in general, and non-accidental injury to children in particular that the postulated cause of death may not be correct, and, more seriously, may have masked serious child abuse or even homicide”.
Finding – page 2.3

It is clear from a careful analysis of the Finding that those concerns were proven to be well founded and, it is submitted, almost entirely due to the incompetence of Dr Manock who was the central focus of the inquiry.

13. There were five eminent and expert medical practitioners whose opinions were referred to and accepted by the Coroner. Expressly or by implication they were critical of Dr Manock and challenged his opinions and methods.

Matters of concern regarding Dr Manock’s evidence at the trial

14. There are reasons for concern regarding the evidence of Dr Manock’s observations given at the trial and in regard to his theory as to the cause of death. These matters of concern arise from the evidence at the trial, the inquest material and the report of Professor Cordner (Annexure “I”) which relates the Finding to Dr Manock’s evidence at the trial.

A. Dr Manock’s Observations

15. The medical practitioners who testified at the inquest had a crucial advantage over the eminent and expert witnesses who were called to give evidence challenging Dr Manock in the present case – they were in a position to observe at first hand the individuals concerned, conduct tests and take photographs and x-rays. In this case the body was cremated shortly after autopsy and the only medical practitioner with the unique advantage of personal observation was Dr Manock whose observations had to be accepted as given.

16. Dr Manock’s theory had, as a premise, the proposition that the three marks on the lateral side (finger pads) and a single mark on the inner aspect (thumb pad) of the calf of the deceased were consistent with a grip by the assailant’s right hand. It was a necessary precondition for the advancement of Dr Manock’s theory, and it was a matter which required proof beyond a reasonable doubt, that the bruises were in fact present as suggested and were sustained at the same time. Having regard to both the evidence available at trial, and the material now available, that was a very questionable proposition (see Annexure “I” par 2.3-2.4). Whatever may be said of the three marks on the lateral side, there is cause for concern about the evidence given by Dr Manock in relation to the mark on the inner aspect. The concern arises in this way:

(a) The existence of a bruise in this position is in doubt. It occurred to Dr Manock as an afterthought. No photograph was taken of it at the time of autopsy. A photograph which Dr Manock claimed showed the bruise (exhibit p.53) was produced for the first time late in Dr Manock’s evidence in the second trial. It is not distinct. It was clearly a photograph taken to show bruises on the right leg.
Transcript second trial – p.170.10
Annexure “I” par 3.4

(b) Dr Ross James called by the Director of Public Prosecutions to corroborate Dr Manock made it plain that he had not seen a bruise in this position on the photographs of the autopsy shown to him.
Statement of Witness –22.12.94 pp.1 and 2.5
Transcript of first trial – p.518.30
Transcript of second trial – p.207.9

17. In order to prove its case of murder the Crown was obliged to exclude, as a possibility, accidental death by drowning; that is, following a slip or fall in the bath leading to unconsciousness and the ingestion of water into the lungs of the deceased. It sought to do so through Dr Manock who gave evidence that the injuries he observed to the top and back of the head of the deceased could not have caused unconsciousness as these were of insufficient force and there was no observable internal sign of injury on the brain.
Transcript second trial – pp.158.1; 158.25; 166.1; 166.27; 177.17; 178.25; 179.28; 180.5; 180.60; 180.25; 181.1; 181.9

A number of points of concern arise as a consequence of this view which Dr Manock dogmatically defended:

(a) In light of Dr Manock’s incompetence as disclosed in the coronial inquiry, it is unsafe to assume that he actually assessed and recorded the extent of the injuries to the head and the lack of injury to the brain. (If the injuries were, or could have been, worse than he stated then the prospects of death by accident are increased).

(b) In this regard it should be noted that no histology was undertaken in regard of the bruising on the back of the head and no slides were taken of the brain.
Transcript second trial – 163.23; 936.37
Annexure “I”, par 3.1

(c) All three other pathologists called to give evidence, Dr James for the Crown and Professors Cordner and Ansford for the defence rejected Dr Manock’s opinion. As Dr James remarked, “It is said in the text books that concussion has no pathology”.
Transcript second trial – p.212.9

(d) It was apparent that Dr Manock was once again out on a limb with an unorthodox and insupportable opinion on a vitally important topic. A comparison should be made with similar unorthodoxy in the coronial inquiry where he purported to observe evidence of “bronchospasm” in one of the subjects, again a condition without pathology.
Finding – p.76.6

B. Dr Manock’s Theory

18. Objection was taken at the first trial to the admission of evidence of Dr Manock’s theory. The objection was overruled and the objection was not renewed at the second trial (which was before the same judge). The objection taken at the first trial should have been upheld. It depended on the existence of facts which had not been proven beyond reasonable doubt and then drew inferences as to the “possible” causes of death, which was thereafter advanced as the cause of death. The expression of this opinion was purely speculative. It should not have been admitted. See Straker v R (1977) 51 ALJR 690, Stockton (1981) 3 A.Crim.R 384. As Barwick CJ said in Straker (at 694):

“However, it is proper I think to point out that great care should be exercised in the use made by the prosecution of the doctor’s post mortem examination performed on the deceased’s body, particularly as to the extent to which conclusions from it should be pursued in evidence or in argument. In particular, the doctor performing the examination ought not to be allowed to speculate on possible inferences from the state of the deceased’s body. If no inferred fact is probable, the opinion as to what might possibly be inferred is, at least in the circumstances of the case, inadmissible”.
(Similarly Gibbs J at 694, Jacobs J at 696)

19. Regardless of the fact that this was not raised as a ground of appeal, the weight which could be placed upon Dr Manock’s theory was argued on the appeal (see transcript at p.28 et seq). One of the grounds of appeal was that the verdict was unsafe and unsatisfactory (ground 4). Under that ground of appeal it was argued that the forensic evidence relied upon by the Director of Public Prosecutions was inherently unreliable, that, even if accepted, it did not advance the Crown’s case and had been successfully met by the defence evidence on the topic. This ground of challenge failed
(see, in particular, judgement of Matheson J at pp. 15-20).

In carrying out its function the Court of Criminal Appeal was obliged to make an independent assessment of the evidence:
Chamberlain v R [No 2] (1984) 153 CLR 521, M v R (1994) 181 CLR 487.

That duty extended to an assessment of the weight to be attributed to expert evidence given. In performing that function the Court of Criminal Appeal should have rejected Dr Manock’s speculative theory based upon the “Brides in the Bath” case. On the contrary, this theory was adopted in support of the conclusion that the verdict was safe and satisfactory.
(See judgment Annexure “A” et seq).

Why the inquest material should be taken into account now

20. Assuming that the inquest material raises real questions about the evidence of Dr Manock at the trial, it is submitted that a real risk of miscarriage of justice arose from the failure of the Director of Public Prosecutions to disclose the material to the defence before or during the second trial. Counsel assisting the Coroner was Mr Allan Moss, barrister and solicitor in the Crown Solicitor’s Office. Having regard to S.9 of the Director of Public Prosecutions Act 1991 it cannot be said that the Director of Public Prosecutions is truly independent from the Attorney General. The Crown Solicitor’s Office is conducted under the aegis and ultimate responsibility of the Attorney General. In effect, at the same time as the Director of Public Prosecutions was putting forward Dr Manock as a competent expert witness in the most notorious murder trial which has occurred in this State for many years, in the coronial inquiry Dr Manock’s expertise and credibility were stringently tested by the Crown. As the Finding amply demonstrates counsel established successfully that Dr Manock was incompetent and without credit. At no time did the office of the Director of Public Prosecutions make available to the defence any material relating to the coronial inquests conducted by Mr Chivell. The obligations which lie upon a Crown prosecutor to disclose relevant material to the defence are well established.
They are discussed, for example, in R v Maguire [1992] 1 QB 936 and R v Ward [1993] 2 All ER 577.

Both of these cases involved scientific evidence and it was accepted that the prosecution should disclose any material which may arguably assist the defence, a duty which exists irrespective of any request by the defence.
In R v Charlton [1972] VR 758 the court in the course of referring to a Privy Council decision said, at 761:

“In our opinion the decision of their Lordships amounts to no more on this aspect than that in the special circumstances disclosed the prior statement should as a matter of practice, and in the interests of justice, have been produced and that the failure to produce it coupled with the other defects in the trial involved a miscarriage of justice in the circumstances of that particular case”.

These principles apply to this case.
See also Lawless v R (1979) 142 CLR 659; Richardson v R (1974) 131 CLR 116; CPK (unrep, NSWCCA 21.6.95).

21. In any event, it is submitted that the evidentiary material lying behind the Finding made by Mr Chivell would have satisfied the test as to fresh evidence in the Court of Criminal Appeal;
See Gallaher v R (1986) 160 CLR 392.

The material would have been relevant at the trial in the following ways.

(a) Credit of Dr Manock. Fresh evidence can relate solely to the credit if the evidence of the witness is of sufficient relevance
cf R v Saleam (1989) 16 NSWLR 14 at 21.

In any case the rule that answers to collateral questions are final has been relaxed considerably in recent times;
see Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 477-478. R v Hawes (1994) 35 NSWLR 294 at 301.

(b) The admissibility of evidence given by Dr Manock. The material was plainly relevant to the reliability of the opinion expressed by Dr Manock. Accordingly, it would have been receivable on the question of the admissibility of Dr Manock’s evidence, or aspects thereof;,br> See Casley-Smith v Evans and Sons Pty Limited (1988) 49 SASR 314, R v Runjanjic (1991) 56 SASR 114, R v C (1993)60 SASR 467.

This would necessitate a voir dire hearing at which evidence of the experts who gave evidence in the three coronial inquiries would be received.

(c) “Similar fact” evidence. If the evidence of Dr Manock were admitted at trial the evidence of the experts from the coronial inquiry would be admissible as “similar fact” evidence; to show, in effect, the propensity of Dr Manock to act in the manner identified in paragraph 22 below;
See Knight v Jones, Ex parte Jones [1981] Qd R 98, Cheney v R (1991) 99 ALR 360.

Where a witness has been put forward as an eminent expert opposing counsel is justified in cross examining on similar cases occurring within a reasonable time which undermine expertise.
Redcliffe v North Canterbury Hospital Board (No 2) [1946] NZLR 368.

22. It is true that the material relied upon was not raised on the appeal. An affidavit of the applicant’s instructing solicitor deposing to his conversation with senior trial counsel explains why the matter was not raised on the appeal (see Annexure “D”). The failure to raise the matter on appeal is not decisive.
See Knowles [1984] VR 751.

In particular, there is nothing to suggest that the petitioner made any sort of deliberate choice not to use this material on his appeal;
See Lawless v R (1979) 142 CLR 659 per Mason J at 675.

It is clear from the petitioner’s own affidavit (Annexure “J”) the Petitioner merely acted on advice, (based as it was on an incomplete understanding of the Finding). It may be that counsel should have been aware of the matters relating to Dr Manock given the level of publicity which the coronial inquiries attracted and that after the delivery of the Finding he should have taken more care to consider the ramifications of the Finding. However, that does not affect the ultimate question which is whether or not there has been a miscarriage of justice, more particularly so where the applicant received no proper advice on the matter.

23. The order of the Court of Criminal Appeal has been perfected. It is no longer possible to approach that Court to reopen the appeal;
cf Lapa (1995) 80 A Crim R 398.

Accordingly, the only avenue for relief is by way of a reference under Section 369 of the Criminal Law Consolidation Act.

24. The matters which the petitioner now seeks to put before the Court of Criminal Appeal have not previously been put to that Court on behalf of the Petitioner.

25. On the grounds that in the interests of justice, and that your intervention is necessary to avoid a miscarriage of justice and to address a justifiable sense of grievance, the Petitioner seeks that this petition be granted.

THIS THE PETITIONER THEREFORE ASKS that on the consideration of this Petition for the exercise of Her Majesty’s mercy having reference to the conviction of the Petitioner on information, the Attorney General refer the whole case to the Full Court pursuant to Section 369 of the Criminal Law Consolidation Act, 1935.

Dated  this 17 day of December 1996 

Signed HV Keogh

Petitioner

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