Petition of Henry Vincent Keogh

To Her Excellency Marjorie Jackson-Nelson
Governor of South Australia

[This petition was lodged with the Governor of South Australia in August 2002]

This petition of Henry Vincent Keogh, Port Augusta Prison, in the State of South Australia shows the following procedures have been completed in respect of Mr Keogh’s circumstances:

First Trial

March 1995 – Duggan J.
Mr PJL Rofe QC and Ms R Gray for the Office of the Director of Public Prosecutions. Mr Michael David QC with Mr Stephen Ey for Mr Keogh.

Mr Keogh stood trial before Duggan J and jury in the Supreme Court charged with the murder of Ms Anna-Jane Cheney. The jury was unable to agree upon a verdict.
Issues related to Dr Manock’s competence were not raised at the trial.

Second Trial

August 1995 – Duggan J.
Mr PJL Rofe QC and Ms R Gray for the Office of the Director of Public Prosecutions.
Mr Michael David QC and Mr Ian Sampson for Mr Keogh

Following a retrial Mr Keogh was convicted of murder on 23 August 1995. He was sentenced to a minimum period of 25 years imprisonment.

First Appeal

December 1995 - Matheson, Millhouse and Mullighan JJ.
Mr PJL Rofe QC and Ms R Gray for the Office of the Director of Public Prosecutions.
Mr Michael David QC and Mr Stephen Ey for Mr Keogh

The hearing was in Adelaide from 14-15 December 1995.
The appeal was dismissed on 22 December 1995.

The extent of the adverse findings concerning Dr Manock in the Infant Deaths Inquiry were not made publicly available by the Coroner until after the conclusion of Mr Keogh’s trial. Mr Keogh’s counsel did not raise with the Court of Criminal Appeal the issue concerning Dr Manock’s failure to adhere to appropriate standards in the Infants Deaths cases.

First Petition

December 1996 – The Governor of South Australia.
Mr Michael Sykes for Mr Keogh

On 17 December 1996 Mr Keogh lodged a Petition to His Excellency Sir Eric Neal, AC, CVO, Governor of South Australia, requesting that the Attorney General refer the whole case to the Full Court of the Supreme Court of South Australia, pursuant to Section 369 of the Criminal Law Consolidation Act 1935. The Governor replied by letter dated 3 March 1997 stating that on the advice of his Ministers it would not be appropriate for him to take any action in respect of the Petition. The Governor also stated that Mr Keogh still had an application for leave to appeal to the High Court, which had not been pursued.

As a result the substance of Mr Keogh’s Petition was not considered by the Attorney General.

Second  Appeal

13 May 1997 - Matheson, Millhouse and Mullighan JJ.
Mr Michael Sykes – solicitor.

Application to re-open the appeal refused.

Mr Michael Sykes had been retained by Mr Keogh as instructing solicitor for the purpose of assisting with the preparation of his application to seek special leave to appeal to the High Court of Australia. Mr Sykes lodged this further application with the Court of Criminal Appeal of South Australia to reopen the Appeal. At that time, the applications for special leave to appeal to the High Court had been filed, but the matter had not yet been heard by the High Court. This application to the Court of Criminal Appeal was to the effect that the trial had miscarried by reason of the unavailability at trial of evidence which would establish that no reliance could be placed upon the opinions and evidence of Dr Manock. The Court determined that as the order of the Court of Criminal Appeal had been perfected, it was no longer possible to approach that Court to reopen the appeal. Accordingly, the only avenue for relief would be by way of a reference under Section 369 of the Criminal Law Consolidation Act.

As a result the substance of Mr Keogh’s Appeal relating to Dr Manock’s incompetence was not considered by the Court of Criminal Appeal.

Special leave applications to the High Court of Australia

3 October 1997.
Mr TA Game SC and Mr SJ Odgers with Mr Michael Sykes for Mr Keogh – applicant.
Mr PJL Rofe QC and Ms RC Gray for the Director of Public Prosecutions – respondent.

The applications were refused.

As a result the substance of Mr Keogh’s arguments relating to Dr Manock’s incompetence were not addressed by the High Court of Australia.

Dr Manock

Dr Manock was incompetent and unprofessional in his conduct of matters related to Mr Keogh’s trial.

Dr Manock’s Qualifications and Experience

It appears that Dr Manock obtained his degree in medicine from Leeds University in 1962. His record states:

He graduated MB ChB from Leeds University on 6 July 1962.
He was a Senior House Officer at Leeds General Infirmary from February 1963 to July 1963.
He was a Senior House Officer at Leeds Maternity Hospital from August 1963 to January 1964.
He was appointed as an Assistant Lecturer in the Department of Forensic Medicine at Leeds University from February 1964.
He was appointed to the permanent staff as a Lecturer in the Department of Forensic Medicine at the same university in October 1966.
In 1967 and 1968 he is listed as a member of the British Association of Forensic Medicine.
It would appear that none of the training which Dr Manock is said to have undertaken was done at an institution which was an accredited training institution in pathology.

From this, it appears that he had some four years of practical experience in pathology in the UK. He had not during this time undertaken any formal training or study, nor had he gained any qualifications in pathology or histopathology.

In 1968, the Minister responsible for forensic services in South Australia was concerned that the pathologist who had undertaken this work up until then was about to retire. A position as “Director of Forensic Pathology” for South Australia was then said to have been advertised in the British Medical Journal of 24 February 1968. Dr Manock applied for the position, and was subsequently notified by telegram dated 23 May 1968 that the Council had recommended him for the appointment.

A few years after his appointment, issues were raised relating to his lack of formal qualifications, and what was perceived to be his inability to do some of the work. Arrangements were put in place to appoint someone above him as a Senior Director of Forensic Pathology (sometimes described as Senior Director of Forensic Medicine). However, Dr Manock took the view that as he was the head of the Department, to appoint someone above him would be tantamount to a constructive dismissal of him. Dr Manock began proceedings in the Industrial Commission in South Australia, and then in the Supreme Court. Dr Manock was successful in regard to this matter.

A number of Reports have been produced which deal with the provision of Forensic Science Services in South Australia. In particular, the Mitchell Report of 1974.
[Justice Mitchell’s Second Report on Criminal Investigation, Criminal Law and Penal Reform Committee of South Australia, 1974]

This was then followed by the Badger Report of 1980.
[The Badger Committee of Inquiry into Pathology Services Report May 1980]

There was also the Wells Report on the IMVS. There was then yet another report by Dr Ian Robertson which had been commissioned by the Attorney General.
[The Report of Dr Ian Robertson to the Attorney General of South Australia]

The Robertson Report, in some respects overlaps with the Wells Report, as it was due to be submitted shortly after the Wells Report was completed.

The Wells Committee of Inquiry into the IMVS, specifically referred to the need for high levels of professional competence and peer review. This report stressed the need for forensic pathology staff not to become isolated, and to remain involved with their non-forensic pathology colleagues. It said that:

“the only way the specialist forensic pathologists can keep at the cutting edge of knowledge in forensic morbid anatomy and histopathology is through their continued involvement in non-forensic autopsies and histopathology where they are also subject to peer pressures and review."
[Wells Committee of Inquiry p24]

This Report referred to “the Manock case” which we have outlined above.
[Wells Committee of Inquiry p33]

 The section of this Report on forensic pathology services also refers to the shortage of adequately trained forensic pathologists.
[Wells Committee of Inquiry p70]

 It stresses the need for forensic pathology staff not to become isolated and to remain involved with their non-forensic pathology colleagues, because they (the non-forensic staff): “have to explain their findings and defend their conclusions to well informed and often critical colleagues.”
[Wells Committee of Inquiry p68]

Dr Manock did not make it a practice to discuss his cases or files with his colleagues, and he did not ask them to look at his slides or reports. Indeed, he is often described as arrogant, and dismissive of others who did not agree with him. Given his position as Director of Forensic Pathology, others were unable to influence him in this regard.

Dr Manock was subsequently admitted to the Royal Australasian College of Pathology in 1972. He was excused the normal five years of study and examinations, on the basis of “the seniority of the position”, which he held. Professor Weedon has said that Dr Manock’s admission to the College was based on an oral examination, which would “probably have taken about 20 minutes”, during which time, he would have been asked “some questions about pathology”.
[Transcript of ABC 4Corners Program 22 October 2001]

From the commencement of his appointment in Adelaide, Dr Manock has assisted in the securing of convictions where the accused was tried on the basis of purely “scientific” or “circumstantial” evidence. Evidence which has involved theories propounded by Dr Manock, and which were unsupported by other forensic scientists at that time. He evidence has also been used to prevent the completion of inquiries which would otherwise have been made into deaths which were regarded as having resulted from criminal activities.

Particulars –Mr Keogh’s trial

The following opinion was expressed by the Royal Commissioner in the case of Edward Charles Splatt: “Some at least of the scientists appeared also to have a dual role; and when one came to seek to analyse what they said and what they had done it was difficult to determine whether that was said or done in an investigative police role or as an integral step in proper scientific analysis.”
[Royal Commission Report Concerning the Conviction of Edward Charles Splatt (1984) p43]

The Commissioner pointed out that these things could only happen in a system which was “an incorrect one with serious defects”.
[Royal Commission Report Concerning the Conviction of Edward Charles Splatt (1984) p43]

It is clear that Dr Manock continued with this duality of roles, and that the system which he maintained was an incorrect one, with serious defects.

Background Facts

On Friday 18 March 1994 at around 9.30pm, Ms Anna-Jane Cheney was found dead in the bath at her home at Magill, Adelaide, by her fiancée Mr Henry Keogh. Ambulance and police personnel attended at the scene. Ms Cheney was pronounced dead. It was determined by those in attendance that there were “no suspicious circumstances” and Ms Cheney’s body was removed to the mortuary. 

On Saturday 19 March 1994, a person informed Ms Cheney’s father by telephone in the morning, that “she did not have an aneurism”. Ms Cheney’s father is Dr Kevin Cheney, a specialist in the pathology of blood who worked at the Red Cross Blood Bank.

On Sunday 20 March 1994 Dr Manock is said to have conducted the first autopsy of Ms Cheney. As a result of this, the police were informed that because there was bruising on the body, the death was to be regarded as being a “suspicious” death.

On Monday 21 March 1994 Dr Manock is said to have conducted the second autopsy and some further bruising is said to have been detected.

On Wednesday 23 March 1994 Ms Cheney’s death was said by the police to have been a murder. The only significant support for this view was the opinion expressed to them by Dr Manock. 

On Friday 25 March 1994 Ms Cheney’s death was declared to be a major crime by the police.

On Friday 25 March 1994 the Coroner, Mr Wayne Chivell gave permission for the cremation of Ms Cheney’s body to take place.

On Wednesday 30 March 1994, a funeral service was held and Ms Cheney’s body is said to have been cremated at or about that date. 

On Saturday 7 May 1994 Mr Keogh was arrested whilst attending a basketball match with his daughters.

Dr Manock’s depiction of the declared murder scenario

At Mr Keogh’s 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”.

The Royal Commissioner in the case of Edward Charles Splatt referred to evidence in that case as follows: “..the quoted statements are not only completely non-scientific statements: they are statements which have all the indicia of a police investigatory suggestion.”
[Royal Commission Report Concerning the Conviction of Edward Charles Splatt (1984) p45]

The Commissioner in the Splatt case made the point on many occasions that a system which did not distinguish between scientific observations and deductions by police in their investigatory capacity, was “a defective and therefore a non-acceptable forensic system” and that “in each instance the dual roles are, in my opinion, incompatible”.
[Royal Commission Report Concerning the Conviction of Edward Charles Splatt (1984) p47]

Similar criticisms can be made of the statements of Dr Manock, who stated that as the body was immersed in water, the “flotation effect” would substantially reduce the weight of the body, which would make it easier to accomplish the above procedure. At second trial, this evidence, although incorrect was substantially unchallenged by Mr David QC. No attempt was made by the prosecution or defence to test this hypothesis.

The re-enactment

A recent re-enactment of the proposed scenario has been undertaken, with an actress of similar proportions to Ms Cheney, [the woman] and an investigator of similar size to Mr Keogh [the assailant]. The re-enactment was filmed.

The scenario proposed by Dr Manock would have been impossible to execute, for the following reasons:

The woman found that it would not be at all difficult to use the free leg, her right leg, closest to the alleged assailant, to kick any possible assailant, to kick away the arm holding her, and to kick the assailant in the face.

As the taps and water-spout were located on the wall, half-way along the bath, the woman could take hold of these to help her keep her head above water.

If there had been a fight, it would have been inevitable that the assailant and the woman would both be injured from hitting against the taps and water spout.

At no time was there any possibility that the woman’s arms could be “trapped by the sides of the bath” as Dr Manock said that they would be.

It was not possible for the woman to bang the crown of her head against the end of the bath, as Dr Manock said would be done.

Even with the bath three-quarters full, the head would only have to be raised an inch or so off the bottom of the bath, to ensure that the mouth and nostrils were no longer under the water. In a situation of struggle, it would be impossible to keep the head underwater in the manner alleged. 

The opinions expressed by Dr Manock clearly went beyond any expertise he might have had.

The Professor of Anatomy at Adelaide University, Maciej Henneberg has stated that the views propounded by Dr Manock are inconsistent with the Professor’s understanding of scientific opinions within the disciplines of anatomy and bio-mechanics. Contrary to the view expressed by Dr Manock, that such a scenario would be “relatively easy” the Professor takes the view that it would be entirely implausible as a suggested scenario. The power of the extensor muscles in the woman’s leg would always be greater than the power which a man could exert through a fingertip grip of the woman’s calf. Dr Manock claimed that he had been involved in a number of cases which have involved drownings. Even if this were true, it would not make him “an expert” on drowning scenarios.

Dr Manock did not consider a possible accidental drowning

Dr Manock stated at the committal hearing in Mr Keogh’s case that: “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.”

This statement does not make sense. This statement is inconsistent with the most basic obligation of a pathologist - which is to consider all reasonable possibilities of a cause of death. At the time at which he said this, the body of the deceased is thought to have long since been cremated. At that time:

Dr Manock had not attended the scene on the evening of the death.

Dr Manock had not established that the death was caused by drowning.

Dr Manock did not have access to or consult the medical records of the deceased.

Dr Manock had not reviewed the photographs taken at the scene that evening by the police. The photographs have since been examined by medical specialists who have concluded that the deceased had a serious (and possibly fatal) medical condition not associated with drowning.

Dr Manock had not reviewed statements from witnesses who were present at the scene that evening. This includes family, police and ambulance officers.

Dr Manock had not sent the heart for specialist examination to see if Ms Cheney may have had any heart defect which could help to explain a sudden and otherwise unexplained death. 

Dr Manock had not sent the brain for any specialist examination, to see if Ms Cheney may have had any brain defect, which may help to explain a sudden and otherwise unexplained death.

Dr Manock had not taken proper or sufficient tissue samples of organs, for histology testing. He took two tissue samples of the heart, one of kidney, one of lung, and five of bruising. Expert pathologists state that this was woefully inadequate in the circumstances. It would have been appropriate for a specialist to have examined some 350 tissue samples of the heart alone. Dr Manock had not extracted serum from the blood for further diagnosis. In any event, the histology sections which Dr Manock claims to have examined, were not correctly interpreted by him.

After Dr Manock left his position, it was discovered that the microscope in his office was inoperable.

Dr Manock did not properly explain the possible causes for the haemolytic staining of the aorta, which he had reported. He stated that this was “consistent with” drowning. He failed to mention that it is also consistent with anaphylaxis and other medical conditions which can cause death to occur suddenly. Recorded cases of anaphylaxis indicate that death frequently occurs within three minutes.

Dr Manock had not ensured the continued safe storage of blood, serum, stomach contents, organs or tissue samples for further diagnosis.

Dr Manock had not conducted full toxicology tests to determine if Ms Cheney had taken any of the medications, which were present at the premises that evening. Nor had Dr Manock properly determined if Ms Cheney had ingested any other medications or drugs. He made no inquiries or investigations relating to the possible injection mark which she had on her left thigh.

Dr Manock had not conducted proper testing for the presence of diatoms in Ms Cheney’s system. He misinterpreted the alleged presence of diatoms in the lungs as being evidence of drowning which it is not. If Ms Cheney had died and then fallen into the water she might still have had diatoms in her lungs.

Dr Manock had not properly weighed, measured or tested the body or the bodily organs of Ms Cheney in accordance with proper standards within the profession. The height and weight of the body were not (formally) recorded and reported in his witness statement or autopsy report. “The weight of the organs is a fundamental indicator of underlying pathology.” (Dr Stephen Cordner, Professor of Pathology)

Dr Manock failed to make or keep proper written records of his observations and findings. Standard operating procedures dictate that his observations must be properly recorded in writing and signed by him. They should then be checked by another appropriately qualified person and initialled by them also. This was not done. The police Running Sheets state that the police reported to the Director of Public Prosecutions that Dr Manock did not have any notes. The DPP is said to have responded that the matter should now be left to him to deal with. In this context, the view of the Royal Commissioner in the case of Mr Splatt was:
“Every operation must be documented on the case notes and documented in such a manner that it will still be comprehensible perhaps years later.
All major observations must be checked by an independent observer who must indicate that the proper checks have been made by initialling the notes.”
[Royal Commission Report Concerning the Conviction of Edward Charles Splatt (1984) p52]

Dr Manock failed to establish or maintain proper photographic records of the condition of the deceased and of the autopsy procedures, which he said he undertook. There should be full-body, full-face and profile colour pictures of the deceased and of all the subsequent procedures. This was not done. “The autopsy pathologist who fails to adequately describe and record his or her findings runs the risk that s/he may not be able to substantiate a particular observation if it is queried.” (Dr Stephen Cordner, Professor of Pathology)

The Police Forensic Procedures Manual states that such photographs should be taken by an appropriate crime scene investigation officer. This was not done.
[General Order 8278 South Australian Police Crime Scene and Forensic Procedures Manual]

Dr Manock failed to examine or report on a mark on the left thigh of the deceased, consistent with an injection mark.

Dr Manock failed to report on the fact that the photographs taken at the scene disclosed that the body of the deceased had been “tidied up” before being removed from the premises.

Dr Manock inaccurately reported the extent of bruising to the body of the deceased.

Dr Manock failed to report on a mark indicating damage to the forehead of the deceased. The mark to the forehead was not present in photographs of the deceased taken earlier in the evening.

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.

Dr Manock used a “polylight” as a lighting source for some of the photographs which he is alleged to have taken. This is an inappropriate and irregular procedure. A polylight is a variable wavelength light source, which is usually used by forensic scientists to detect fluid and powder residues. It is not an accepted lighting source for the taking of photographs.

The black and white photographs which were allegedly taken at the autopsy and which were produced in evidence at Mr Keogh’s trial, failed to identify the person who was being photographed.

The black and white photographs which were allegedly taken at the autopsy have black marks or smudges on them which indicate that some marking agent was being used. This is clearly an inappropriate and irregular procedure.

The black and white photographs which were allegedly taken at the autopsy, purport to show a “scale marker”. That marker has been added to the image after the original photograph was taken.

Dr Manock misinformed the Court at Mr Keogh’s trial of the utility of black and white photographs in respect of bruising.

No proper record has been provided of the number of photographs which were taken at autopsy, or by whom they were taken, or when they were taken. The negatives of the alleged autopsy photographs have “gone missing” at the Forensic Science Centre for a significant period of time.

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 initially referred only to the bruising on the right leg and subsequently emphasised the bruising to the left leg.

The apparent photograph of the bruise to the medial side of the left leg is not supported by the histology which is said to have been taken from that location. That tissue sample is only of subcutaneous fat, and is therefore an inappropriate sample. It provides no evidence to support the claim that there was a bruise at this location. This destroys the “grip theory” which was an essential part of Dr Manock’s evidence, and of the prosecution case.

Dr Manock had not asked any other pathologist to properly review his work before informing the Coroner that the body of the deceased could be disposed of.

Dr Manock had not properly informed the Coroner at the time he agreed that the body could be disposed of, that there were concerns that the deceased may have been murdered, and that the pathological work which had been done in respect of the deceased was seriously deficient. It is recorded in the police Running Sheets that the death was considered to be a murder on 23 March 1994.

Dr Manock failed to consider that part or all of any bruising could have been caused by any of the significant number of people who had handled the body after death, apart from Mr Keogh.

Dr Manock’s description of the bruising to the top of the head of the deceased was inconsistent with the photographic evidence.

Dr Manock failed to consider that part or all of the so-called bruising could have been “artifactual” – that is, caused by the process of the autopsy.

Dr Manock frequently changed his explanation as to the location of the bruising upon the left leg of the deceased. He also changed his explanation as to whether it might have been caused by the use of an assailant’s left hand or right hand.

Dr Manock asserted that his own hand “fitted the pattern of bruising” on the deceased’s left leg. Neither he nor the police made any proper attempt to determine if Mr Keogh’s hand also fitted that pattern of bruising.

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.

Dr Manock said that whilst he could explain the “grip theory” to the police as soon as he saw the body, he could not write it in his report, until he had been to the scene some three months later. All of his explanations to the police should have been properly recorded at the time that they were provided to the police.

It is said by witnesses that after her death, Ms Cheney’s hair smelled of mousse. This is not consistent with Dr Manock’s explanation that her head had been submerged.

Dr Manock changed his version of events from the use by Mr Keogh of his left hand to the use by Mr Keogh of his right hand. The photographic evidence appears to show two images of the left hand. However, one of them appears to be a “reversed image” of a right hand. This is clearly irregular and requires to be explained.

Professor Cordner’s criticisms of Dr Manock’s work

Dr Stephen Cordner, a Professor of Pathology was called to give evidence at Mr Keogh’s trial. He was extremely critical of Dr Manock’s evidence. In his examination of the Professor, Mr Michael David QC sought the Professor’s opinion of the evidence which had been given by Dr Manock. Mr David read out to the Professor the questions which had been put to Dr Manock and the answers which he gave to them. However, instead of putting the questions and answers to the Professor one by one, to allow him to comment on them, Mr David simply read to the Professor the whole series of questions and answers from Dr Manock’s evidence. The first extract which was read to the Professor covered two pages of transcript and included a series of 8 questions and answers. The next extract which was read to him, shortly after, covered 3 pages and a series of 27 questions and answers. Consequently, it was not possible for the Professor to detail his critique of Dr Manock’s work at Mr Keogh’s trial.

Reference is made to the view expressed by the Royal Commissioner in the case of Mr Splatt:
“It becomes quite clear that in the conduct of such a Trial a very serious obligation lies not only on the scientists who give evidence but on the representatives of the legal system who are responsible for the conduct of the trial. ...
And the critical responsibility which rests upon the legal persons is to ask such detailed and probing questions of the scientists as are most likely to elicit the type of evidence just mentioned.”
[Royal Commission Report Concerning the Conviction of Edward Charles Splatt (1984) p52]

It is submitted that Mr David QC failed in this respect. The Professor has subsequently provided written comments on Dr Manock’s work as follows:

Professor Cordner’s general criticism is that:

“It seems that [as] in the three cases subject to inquest, [the Infant Deaths Cases] Dr Manock made the wrong ‘call’ or, at least, allowed a wrong ‘call’ to eventuate. Deaths which were (it has to be said) obviously suspicious were regarded or came to be regarded, by the police as natural causes deaths because of Dr Manock’s handling of them. I do not believe the same result would have occurred in the hands of any other full time forensic pathologist in Australia, including the two other forensic pathologists in Adelaide.” [Emphasis added]

“So it is, it seems with the case of Anna Cheney. Again I think that most if not all forensic pathologists in Australia would have been decidedly uncomfortable proposing a murder scenario in court on the basis of the injuries present in this case.” [Emphasis added]

Bruising – left leg

The following question was put to Dr Manock in relation to alleged bruising on the left leg:

Q Those bruises on the left leg – did they appear to you to be consistent with a particular cause?

A Yes. 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. [Emphasis added]

The Professor’s view of this is:

“This exchange brings to mind the Chamberlain case. The answer has the same quality to it as Professor Cameron saying a smudge (of whatever) on Azaria’s jump suit was a handprint in blood.”

“Professor Cameron told the jury that, upon examination of the jump suit and Mr. Ruddick’s photographs, he saw patterns in these areas of diffuse staining which he described as impressions of the bloodstained hands of a small adult. On the left side of the chest of the jump suit, he saw marks, which suggested thumb prints, and on the left back, over the shoulder blade area he saw marks, which gave the impression to him of the heel of a hand with four extended fingers. He described a mark, which suggested the thumbprint (etc…). No other witness saw the hand imprints…”

“Forensic pathologists are always looking for patterns. The essential question is, for the forensic pathologist, how much of a pattern needs to be present before it is sufficiently definitive of a particular cause to put forward in the witness box as that particular case. If the pattern is not definitive, more speculative propositions can be shared with investigators, as inquiries or other tests may help in assessing the validity or otherwise of one of the propositions. Propositions which of their very nature simply cannot be disproved unless accompanied with appropriate cautions or unless the pattern is so clear that the conclusion is virtually obvious.”

“No doubt Dr Manock would say the pattern was clear and the conclusion obvious. I think, as mentioned above, most if not all forensic pathologists in Australia would not be comfortable making such a proposition in circumstances such as this. Clearly, however if the prosecutor put the proposition, (i.e. are the bruises in this case consistent with the lower leg being gripped firmly by a hand?) the answer would have to be yes (subject to some discussion about the word “firmly”). In my view, I think it is too speculative for the pathologist to raise this on his or her own initiative.” [Emphasis added]

Use of words “consistent with” by experts may confuse jurors

Expert witnesses are frequently asked if certain observations are “consistent with” certain observable phenomena. It was pointed out in the Splatt Royal Commission that such use of language may have a tendency to mislead jurors who fail to properly appreciate the technical sense in which these words are used.
[Royal Commission Report Concerning the Conviction of Edward Charles Splatt (1984) pp41-42]

The jurors may take the words “consistent with” to mean “caused by ...” or “likely to have been caused by ...” However, such meaning would be quite incorrect. The expression means simply “not inconsistent with”. However, when a medical specialist such as Dr Manock says not only that the observation of the bruises on the leg is “consistent with” a grip and that “he cannot think of anything else it could be” he is going beyond his brief as an expert witness, and making a prejudicial statement which is unrelated to his “expertise”. This is why the Professor stated that no other pathologist in Australia would have expressed themselves in that way. 

Ageing of bruises on the legs

The following question was put to Dr Manock in relation to the ageing of bruises on the legs:

Q Did you form an opinion as to when the bruising on the legs may have occurred?

A Yes. I could find no evidence of white blood-cell migration into the areas and therefore, I felt they were peri-mortem. In other words, they’d occurred close to the time of death. I felt that was probably within 4 hours.

The Professor’s view of this is:

“Peri-mortem means around the time of death. Strictly it includes the period before and after death. Dr Manock does not believe these bruises occurred after death. Up to four hours before death may not be construed by some people as close to the time of death. This clearly means that other explanations for the bruises may exist.”

“The main point, however, is that the lack of evidence of white cell migration (a sign of inflammation, the body’s response to injury) means the bruise could have occurred up to 24 hours or so before death.”

Cause of bruises on the legs

At the trial, it was merely assumed by the court that if there were bruises on the legs of the deceased, then they must have been caused by Mr Keogh. The body of the deceased was handled by a significant number of people after death. No evidence was tendered which would enable one to exclude the possibility that those others had not caused the bruising to the legs. There are no records to enable it to be determined who had access to the body post-mortem, or when such accesses may have taken place. Even if there were bruises to the legs, there was no proper evidence by which the jury could conclude that they had been caused by the accused.

Ageing of bruises to top of head

The following question was put to Dr Manock in relation to the ageing of two bruises on the top of the head:

Q Were they faint or well defined in intensity?

A Relatively –the edges were not clearly defined, so they were relatively faint, which is one of the reasons I thought they were about the time of death.

The Professor’s view of this is:

I know of no reference or recognised basis for this conclusion. The naked eye ageing of bruises allows one to conclude that the bruise is recent or old. The former is up to about 24 hours or so before death. [Emphasis added]

Cause of bruises to head

Dr Manock was asked about the causes of bruises to head. He stated:

Q The lack of definition around the edges – was that a symptom of a flat surface rather than a specified object?

A Yes it is.

The Professor’s view of this is:

“I know of no reference or recognised basis for this conclusion.” [Emphasis added]

Bruising during a fall

The following was put to Dr Manock in relation to whether bruises to the top of the head could occur during a fall:

Q But there is a complicating factor if there are other objects that you might strike your head with as you fall down.

A There may be, yes.

Q In these circumstances could there be an injury to the top of the head?

A There could be an injury, but not a circular bruise consistent with striking a flat surface. It would have to be a projection if you were to strike the top of the head.

Q What about a wall?

A You would graze along it. You wouldn’t bruise yourself. Gravity would take you parallel with the wall.

The Professor’s view of this is:

“This exchange is difficult to make sense of in relation to the issues in this case. The mechanism by which the bruises to the top of the head were caused is essentially the same whether one takes the murder or the accident scenarios. Somehow the above exchange purports to establish, spuriously in my view, that the bruises on the head would not have been the result of a fall.”

Loss of consciousness

The following question was put to Dr Manock in relation to the idea of a rapid loss of consciousness which could occur following sudden immersion in water:

Q Are there particular circumstances in which it [consciousness] is lost more quickly than others?

A Yes, if a person is submerged unexpectedly and very rapidly feet first, this forces water up the nose and into the upper airway, consciousness may be lost very rapidly indeed. That is what I was referring to when I say it may be only a few seconds.

The Professor’s view of this is:

“I agree with the answer as stated. The category of victims mainly, but not solely, consists of those who are drunk and become accidentally submerged. Anecdotally, these subjects are often seen to show no sign of struggle – they simply disappear. A number of these subjects show, at autopsy, ‘dry’ drowning; i.e. they do not appear to have inhaled water. This then, is the general category of cases where consciousness is regarded as being lost very quickly. It is postulated that the rapid entry of water into the nasopharyngeal area either causes vagal inhibition, which stops the heart causing more or less immediate unconsciousness or causes spasm of the vocal chords which prevents the passage of water into the lungs.”

“Any relevance that the answer purportedly has for showing murder by the means proposed also goes to increase the likelihood of death associated with an accidental fall. It removes the need to rely upon an effect on consciousness of the injuries to the head. Thus a fall into water following fainting after standing in the bath (a well recognised phenomenon) could force “water up the nose” and into the upper airway (and) consciousness may be lost very rapidly indeed.”

The following was put to Dr Manock concerning the issue of loss of consciousness, and whether there would be any signs of this in the brain at post-mortem.

Q If that has happened in any given case, would you expect to find evidence of that on an examination of the brain?

A Not necessarily by looking at the hypothalamus, but if the brain has been distorted sufficiently to cause the loss of function, then it must have moved within the skull to some extent, and it is my view that it is likely in these circumstances that there will be a surface injury to the brain which may be represented as a bruise or a small surface subarachnoid haemorrhage.

Q Did you see any evidence from your examination, internal or external that there had been a loss of consciousness by Miss Cheney prior to death?

A No. I did not.

The Professor’s view of this is:

“This exchange purports to establish that had there been a loss of consciousness (and by inference even any effect on consciousness) then some sign of this would have been visible. This is simply not the case. I know of no reference or recognised basis for such a conclusion. I do not believe any other forensic pathologist in Australia would support such a conclusion.” [Emphasis added]

The detailed murder scenario

The following is the explanation by Dr Manock concerning the detailed murder scenario:

“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 [seen] on 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.”

The Professor’s view of this is:

“It is a surprise to me how this scenario could be proposed on the basis of some bruises to the back of the neck, the head and the legs, without it being made absolutely clear that it could only be one of a number of possible scenarios. Even as a possibility it is flawed.” [Emphasis added] 

“If the bruising to the back of the neck could be caused as described, it could easily be caused during the course of slipping from a standing height.”

“It is not clear to me how the arms would be trapped by the sides of the bath.”

“The proposition is put that the right leg can thrash around to cause bruising along its front. If this can occur, then there is consciousness and the capacity for extra resistance to the manoeuvre described. This could include kicking with the left leg and using the arms even if trapped which I find hard to conceive – to lift her off the bottom of the bath.”

Faint or fall

In relation to the possibility of a faint, after standing in the bath, leading to a fall and then drowning, Dr Manock said:

A Yes. A person loses consciousness when they are in a standing position. The net result of that is that you fall down and if you fall down and are going to remain unconscious I believe it is necessary for there to be some injury which would shake the brain within the head to cause a sustained unconsciousness, otherwise the horizontal position would cause the consciousness to be regained because the blood would again reach the brain, and that would cause revival.

Q Would you expect for sustained unconsciousness to occur in that situation that there would be physical evidence of a trauma to the head.

A I would expect that, yes.

The Professor’s view of this is:

“It seems at this stage that the phenomenon of rapid loss of consciousness, which seems to be a part of the murder hypothesis, is not considered as a possibility in the accidental hypothesis. Why is it not possible, as a consequence of a faint into the water, for the same rapid influx of water into the mouth and nose to cause the same rapid unconsciousness and drowning? If during the faint, the bruises to the neck and head occur, could not these impacts at least aggravate the fainting and increase the likelihood of a fatal outcome from the influx of water into the mouth and nose.”

“I regard this as a perfectly acceptable explanation for the death. It is for this reason that I believe most, if not all, forensic pathologists in Australia would not be comfortable being in the position of Dr Manock, proposing on his own initiative a murder scenario based on the findings in this case.” [Emphasis added]

No other pathologist would agree with Dr Manock

The Professor clearly states that in his opinion, the views of Dr Manock in Mr Keogh’s case are wrong, and that no other forensic pathologist in Australia would take such a position. He states:

“I believe Dr Manock has expressed opinions in this case which are wrong. These wrong views are then combined with other rather speculative propositions to support a reconstruction of this death as a murder. Dr Manock has, in my view, wrongly dismissed an accidental explanation for this death as, at least, a reasonable proposition.”

“One of my objections to Dr Manock’s putting his proposition is that it was not refutable by enquiry or testing and therefore he should have surrounded it with caution. I believe no other forensic pathologist in Australia would be of the view that murder is the only explanation of the findings in this case.”

The failure to preserve evidence

The Professor makes the observation that it is hard to assert that Dr Manock’s opinions are inconsistent with the evidence, if he has preserved so little of that evidence:

“One effect of the Coroner’s view about Dr Manock is to put his work under much closer scrutiny. Once one approaches the autopsy of Anna Cheney wishing to scrutinize it, one finds this a difficult exercise to do objectively because of the paucity of the record.”

“These types of deficiencies resonate with some of the criticisms made by other pathologists in the three Coronial inquests referred to earlier.”

Lack of peer review

The Professor concludes by returning to a fundamental issue: The importance of peer review:

“These are sad conclusions. From a personal point of view they are a powerful reminder of the importance of peer review, discussion of cases with colleagues and most importantly, the self-discipline required in the proper practice of forensic pathology.” [Emphasis added]

A Professor from the UK

Professor Bernard Knight from the UK is a highly qualified expert whose opinion, despite being in retirement, is still highly sought after. The Professor was first approached in 1998 and again in August 1999 for an opinion in relation to the findings and or evidence of Dr Manock in Mr Keogh’s matter. The Professor has had cause to be aware of Dr Manock and his evidence from other cases and was far from impressed as his comments below indicate:

“In this case, much of what Dr Manock says is unwarranted speculation, with no pathological proof… There are many causes for drowning in a bath and in this case, with bruising on the head, an accidental fall may have caused unconsciousness and subsequent immersion. The bruises on the legs are harder to explain, but there is no positive indication to link them with the drowning and all Dr Manock’s imaginative scenario about lifting the legs etc, is pure supposition, incapable of proof. Indeed the original Smith case of the Brides in the bath, was another example of Spilsbury’s autocratic and dogmatic theorising, which in recent years has given rise to much harsh criticism of his bias, which undoubtedly led to several miscarriages of justice.”

“I do not think the available facts allow any further interpretation of the case that would not stray into the realms of speculation, but by the same token, they seem grossly insufficient to sustain a charge of murder, which seems to have been supported mainly by the pejorative over-interpretation of Dr Manock.” [Emphasis added]

Dr Ross James

The judges who sat on the First Appeal said:

“Bruising found on the deceased, and in particular on the left shin, pointed to the modus operandi demonstrated by Dr Manock. The evidence of Drs Manock and James supported such a modus operandi, and neither Professor Cordner nor Professor Ansford rejected it.”

That statement of the Court of Criminal Appeal does not accurately reflect the evidence of Dr James, Professor Cordner or Professor Ansford.

Dr James gave evidence that he was asked by Mr Rofe to check the work of Dr Manock in this case. Whilst he indicated to the court that he had done this, it is clear that he had NOT done so. “Checking the work” must mean confirming the observations which had been made. It is clear that throughout the investigation in this case, no one, not even Dr James, checked any of Dr Manock’s observations. Given the lack of photographic records, it was impossible for anyone later to do so. Given that the Coroner stated in the Infant Deaths Inquiry that Dr Manock “had seen things which could not have been seen”, then it is clear that Dr Manock’s statements with regard to his purported observations are inherently unreliable.

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.

Dr James did not in fact check the work of Dr Manock particularly in relation to the vital opinions as to the alleged bruises and in particular, the bruises which are said to have constituted “the grip”.

Histopathology is an integral part of the practice of forensic pathology. An area in which Dr Manock had no formal training or qualifications. The pathologist must document all findings of fact eg bruises, weight of organs, measurement of injuries. These are observations of fact and should not change. Dr James was provided with:

Dr Manock’s autopsy report.
A folder of black and white autopsy photographs.
Committal depositions.
Ten microscopic slides.

It should be noted that four of the slides were from areas of bruising on the body of Ms Cheney. In so far as the cause of death was, according to Dr Manock, fresh water drowning, 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 described the blood alcohol reading of 0.08 as “an interesting factor” and “a factor that must be considered”.

Dr James accepted from his examination of Dr Manock’s report that there were only three areas of bruising to the body:

1. The right lower leg

2. The left lower leg

3. The head.

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. It must be noted that this 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.”

This clearly states that Dr James was 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:

Q And those slides themselves are only a small portion of each bruise?

A Yes

Q When you are talking about this migration process, if you only have a portion of a bruise, might the migration process be taking place in the rest of the bruise that we haven’t got?

A With regard to that, I think the appearances of the bruise will be representative of the bruise. There is no reason to think why changes will be occurring at one end of it that won’t be occurring in the middle of it or the other end.

Q That’s not a problem, as far as you are concerned?

A No, I think that’s quite reasonable.

Q You have not seen a situation where the migration starts at one end and not at the other?

A I think if we have a representative section through the middle of the bruise, that can reasonably be used as assessment of that bruise.

Q That is what was done here, is it?

A Yes.

This passage of the evidence is of particular significance.

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. 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”.

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.

Top of Page