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Keogh Petition (continued)

The Director of Public Prosecutions

The Director of Public Prosecutions, Mr Paul Rofe QC, had been the prosecutor at the trial of the Petitioner and at the various appeals. He had been asked to provide advice to the Attorney General in relation to the Second Petition of the Petitioner. In a filmed interview with Channel 7 Today Tonight Mr Rofe explained the state of his knowledge, and his reasons for his advice and actions.
[See Appendices 11 and 12]

17 The Director of Public Prosecutions

In the filmed interview with Channel 7 Today Tonight, Mr Rofe stated that:

As indeed we said, you know, a fit and healthy 29 year old girl doesn't drown in the bath. And Dr James, for example, had never come across such a case.

Facts

The Advertiser of June 18 1996 contained the following article. It will be noted that this was reported in the main paper circulating in Adelaide, shortly after Mr Keogh’s trial and prior to his appeals. It is surprising therefore that Mr Rofe and Dr James would both say that they had “never heard of such an instance”. This example was included in the Petitioner’s Second Petition.

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.
[Emphasis added].

The following exchange took place in another interview broadcast by Channel 7 Today Tonight.
[See Appendices 7 and 8]

Graham Archer: First, here’s a sample of Rofe’s rough justice in that matter.

Paul Rofe: A fit and healthy 29 year old doesn’t just drown in the bath.

Graham Archer: Correct? No

Tony Thomas: I would get approximately 10 to 12 cases per year referred to me to examine the heart in precisely that scenario - where a young person has died suddenly, and nothing has been found at autopsy.

Graham Archer: Professor Tony Thomas is a highly respected Adelaide pathologist who is an expert on the subject of sudden death in young people.

Tony Thomas: As I’ve said, young people unfortunately do die suddenly and unexpectedly and sometimes, even after very exhaustive examination, you still can’t find the cause.

Complaint

The information provided by Mr Rofe to the court at the trial of the Petitioner, and to the Attorney General in relation to the Second Petition was incorrect. The Petitioner is entitled to have his complaints assessed according to law.

18 The Director of Public Prosecutions

In the filmed interview with Channel 7 Today Tonight, the following exchange took place:

Rohan Wenn: How much confidence did you have in Dr Manock?

Mr Rofe: Well he was the senior forensic pathologist and had been for some time. He'd given evidence in a number of cases that I'd been involved in and he'd conducted something in the order of 8 or 9,000 post mortems. I reviewed his evidence like I would any other witness and there was an area that concerned me. I asked Dr James to review his findings and indeed called Dr James at the trial and they disagreed on one reasonably important aspect relating to what was called the pathology of concussion.

Rohan Wenn: When Dr James did his review, he wasn't able to look at the body for example because it had been cremated. He wasn't there at the time.

Mr Rofe: That’s correct …

Rohan Wenn: … as per the police forensic procedures, so how reliable was his concurrence with Dr Manock?

Mr Rofe: Well, you know, it was there. It was another view as indeed the defence called two experts on the same material. He was able to review photographs, pathology, histopathology the tissue samples as did the defence experts.

Rohan Wenn: But not actually the body?

Mr Rofe: Not the body no.

Rohan Wenn: Does it concern you that Manock was the only one who got to actually see the body, and do a post-mortem on the body?

Mr Rofe: No, I mean that was a recognised procedure.

Rohan Wenn: Well the police Forensic Manual says that there should be somebody doing the cross checks, somebody like Dr James doing a cross check at the time of the post-mortem, not reviewing those later on down the track, doesn't that concern you?

Mr Rofe: I wasn't aware of the Police Manual in that respect

Facts

Mr Rofe was already aware of the Findings of the Coroner in relation to the Baby Deaths case, where the Coroner had found that Dr Manock had “seen things which could not have been seen”, and that his answers in relation to certain questions had been spurious, which could be interpreted to mean incorrect or untruthful. It was therefore inappropriate of Mr Rofe to state that he had such confidence in the opinions of Dr Manock.

The Police Forensic Procedures Manual (of which Mr Rofe said he was unaware) states that:

“Crime scene investigators are to photograph the autopsy examination, preferably using 6 x 7 format, colour film, and electronic flash. Photographs should include:

General photographs of the body bagged
General photographs of the body un-bagged
Mid-range photographs of the body
Detailed photographs of the body
Any other photographs at the request of the pathologist.

It is clear that Mr Rofe should have known that crime-scene investigators should have been present at the autopsy. Proper procedures would also have required another pathologist to be present at the autopsy into a death suspected of being a murder.

None of the mandated photographs were taken at the autopsy of Ms Cheney.

Neither of the two black and white autopsy photographs produced at the trial of the Petitioner identified the person whose autopsy it was said to be. Nor did they satisfactorily identify areas of bruising which Dr Manock is said to have seen.

Complaint

These statements by the Director of Public Prosecutions indicate that he either ignored or did not know of important information and principles essential to a proper evaluation of the Second Petition of the Petitioner. He should not have been asked to advise the Attorney General in relation to those matters. The above complaints of the Petitioner which were included in his second Petition should now be considered according to law.

19 The Director of Public Prosecutions

In the filmed interview with Channel 7 Today Tonight, the following exchange took place:

Mr Rofe: I guess you then go looking for was there bruising that was consistent with a fall or whatever. A lot of evidence was called as to that, by both sides, but the bruising on the leg was certainly unusual, and warranted, … one explanation was that it was a grip mark and that was confirmed by Dr James and you know that was in the absence of anything else that may explain it and there wasn't anything else that could explain it.

Facts

This is incorrect, and does not reflect the evidence given at the trial of the Petitioner. There were extensive submissions in the Second Petition of the Petitioner where independent experts were quoted as saying that the bruises on the legs of a deceased person were common findings at autopsy, and that nothing sinister could be inferred from such findings as is confirmed by statements of Dr Collins, Dr Thomas and Professor Cordner in the ABC 4Corners program.
[See Appendices 5 and 6]

The Petitioner averred in his Second Petition that photographs taken by the police at the scene showed the leg of the deceased pressed against the door frame. He also averred that the facts concerning the removal of the deceased’s body could have explained any bruises found at that location. Now that it has been established that the alleged bruise on the inside (medial side) of the left leg does not exist, there is nothing distinctive about the remaining marks to indicate that are suggestive of a grip.

Complaint

These statements by the Director of Public Prosecutions clearly indicate that he either ignored or did not know of important information and principles essential to a proper evaluation of the Second Petition of the Petitioner. He should not have been asked to advise the Attorney General in relation to those matters which should now be considered according to law.

20 The Director of Public Prosecutions

In the filmed interview with Channel 7 Today Tonight, the following exchange took place:

Rohan Wenn: A lot was made of the bruises on the legs that seemed to indicate that she'd been involved in a drowning. Now police said at the trial that they had carried the body out by the arms and the legs to outside the home. Isn't it possible that the police could have caused that bruising?

Mr Rofe: I mean that possibility, as I recall it was canvassed at the trial in relation to not perhaps that specific bruising but any bruising on the body. So it was there again for the jury to make what they would of it.

Facts

This statement by Mr Rofe is clearly inconsistent with the statement to Parliament by the Attorney General in point 5 above to the effect that no one had referred to the possibility of the bruises being caused after death. None of the persons who moved the body at the scene or who lifted the body to remove it from the premises were called as witnesses to explain how they had handled the body. There were at least 12 people involved in handling the body after death and none of them were excluded as persons who may have caused bruising to the leg of the deceased.

Complaint

21 The Director of Public Prosecutions

In the filmed interview with Channel 7 Today Tonight, the following exchange took place:

Rohan Wenn: It is argued now that the bruising to the brain may actually have been caused during the autopsy itself. Was that something that was considered?

Mr Rofe: As I recall it, yes it was -- and was brought out at trial.

Facts

This refers to the claims by the Petitioner in his Second Petition that the bruising or bleeding to the head of the deceased – especially the marks said to have been found at the back of head and neck at the second autopsy procedure were artifactual. This means that they were actually caused or likely to have been caused by the procedure undertaken by the pathologist at the first autopsy examination. Mr Rofe is incorrect when he states that this issue was examined at trial. It was not.

Complaint

22 The Director of Public Prosecutions

In the filmed interview with Channel 7 Today Tonight, the following exchange took place:

Rohan Wenn: In cases of suspicious deaths it is standard practice to cordon off the area and treat it as a crime scene but that didn't happen in this case, does that concern you?

Mr Rofe: No the death didn't I guess to those attending wasn't regarded as suspicious at the time.

Rohan Wenn: But no cause of death had been established …

Mr Rofe: No, that’s right.

Rohan Wenn: So it should have been cordoned off?

Mr Rofe: Well it would have been better if it had been but at the time they were accepting of Mr Keogh’s story that it was an accident.

Rohan Wenn: Were you concerned that it wasn't cordoned off, given the impact that it could have on evidence?

Mr Rofe: No. I can’t think off-hand of any evidence that might have been lost by the lack of it cordoned.

Facts

The Police Forensic Procedures Manual clearly states that the scene of any sudden and unexplained death must be immediately cordoned off and a guard appointed to control access to the scene, which must be limited to properly trained crime-scene investigators. Mr Rofe knew that Mr Cheney, the father of the deceased had emptied the bath water without any samples or tests being taken. He knew or should have known that the body of the deceased had been examined and moved and had makeup applied and hair combed by people who were not crime scene examiners. Mr Rofe should have known that the reason for the scientific examination of crime scenes is to find trace evidence in relation to fluids fibres, fingerprints and other matters which might be out of place or otherwise inconsistent with one’s expectations.

Complaint

23 The Director of Public Prosecutions

In the filmed interview with Channel 7 Today Tonight, the following exchange took place:

Rohan Wenn: Crime scene officers weren't present for the post-mortem which they're required to be according to the Police Forensics Manual, did that concern you?

Mr Rofe: My understanding was that there were people present at the post-mortem.

Rohan Wenn: My understanding was that the crime scene officers weren't present at the post-mortem

Mr Rofe: I'd have to check that.

Rohan Wenn: Alright we check it too. If it is the case, does that concern you?

Mr Rofe: No. Not particularly.

Rohan Wenn: But it's against procedure.

Mr Rofe: Well, I mean, when I say that it doesn't particularly concern me I mean I'd have to know the details and what transpired. There may be all sorts of reasons if that was in fact the case.

Rohan Wenn: If it was the case, wouldn't it be a concern?

Mr Rofe: Again, I’d probably ask why it hadn't happened and if the explanation wasn't sufficient then I'd be concerned.

Rohan Wenn: But to date that’s a question you haven't asked?

Mr Rofe: I haven't been told this before.

Facts

No crime-scene examiners were present at the post mortem. No independent pathologists were present at the post mortem. Both of these factors represent serious breaches of acceptable procedures.

Complaint

24 The Director of Public Prosecutions

In the filmed interview with Channel 7 Today Tonight, the following exchange took place:

Rohan Wenn: Alright no worries. This is a photo of Anna Jane Cheney, do you want to have a look at that there, and you can notice on the left leg, some independent forensic people say that it appears to be an injection mark on Anna Jane's leg. Was this something that you considered prior to any of the trials or during any of the trials as an alternate explanation?

Mr Rofe: No.

Facts

The colour photograph referred to shows an area of inflammation consistent with an injection mark or a bee sting. The photographs also indicate swelling and oedematous weals on various parts of the body of the deceased consistent with a condition known as anaphylaxis which is a well accepted cause of sudden death. The anaphylactic response is one which is well known to result from injections or bee stings. Mr Rofe accepts that he has not previously known of that possibility, and therefore cannot have excluded it from his investigations prior to the trial of the Petitioner. This admission by the DPP who was the prosecutor at the trial of the Petitioner is a sufficient basis to establish that the trial of the Petitioner miscarried.

Complaint

25 The Director of Public Prosecutions

In the filmed interview with Channel 7 Today Tonight, the following exchange took place:

Rohan Wenn: … Henry Keogh senior says he witnessed Anna's father -- Dr Cheney -- receiving a phone call on the Saturday morning, during which he was told that Anna hadn't died of an aneurism. Now the first autopsy wasn't done until the Sunday, can you understand under what circumstances, somebody could be making that claim with any authority?

Mr Rofe: No.

Rohan Wenn: Were you aware of the phone call?

Mr Rofe: No.

Rohan Wenn: Does it concern you?

Mr Rofe: I'd need to know more about it.

Rohan Wenn: But it’s something you didn't know during the trial?

Mr Rofe: No.

Facts

The pathologist stated that the first autopsy procedure on the deceased was conducted on Sunday 21 March 1994. Therefore it would not have been possible, on the day preceding that examination, for anyone to assert with any authority that Ms Cheney had not died from an aneurism. In any forensic investigation it is important to establish the proper sequence of events. This is something which should have been properly examined prior to the trial of the Petitioner.

Complaint

26 The Director of Public Prosecutions

In the filmed interview with Channel 7 Today Tonight, the following exchange took place:

Rohan Wenn: … Were you concerned that the autopsy photos were taken in black and white?

Mr Rofe: No. Sorry, just hang on.

Rohan Wenn: Yeah, of course, of course.

Female voice of Mr Rofe’s assistant off camera: Are you talking about the polylight photographs?

Rohan Wenn: I'm talking about the autopsy photographs that were taken by the Forensic Science Centre. The police took colour photos.

Woman: Which ones are you referring to?

Rohan Wenn: I'm referring to . . .

Woman: There's two sets. There's black and white photographs and there is polylight photographs.

Rohan Wenn: The Forensic Science Centre only took black and white photographs, they told us.

Woman: Do you know what polylight photographs are?

Rohan Wenn: No I don't.

Woman: Right. Well I think that's what you’re probably talking about. Do you have a copy of the photograph that you’re talking about?

Rohan Wenn: No I am asking why colour photographs weren't taken.

Woman: Well there is a very good reason for that.

Rohan Wenn: Well do you want to tell him, because I don't want to get this wrong obviously?

Woman: Polylight photographs are those special photographs that are taken that show up bruising.

Rohan Wenn: Yeah but that still doesn't get away from the fact that colour photographs weren't taken.

Woman: Well . . .

Rohan Wenn: Because every other forensic science centre interstate does take colour photos as a matter of course.

Mr Rofe: This was raised in the trial wasn't it?

Woman: Yeah, the photographs were spoken about a hundred times, but what concerns me is on the 4Corners program there was shown an unauthorised picture of polylight photographs of Anna Jane Cheney's leg and it was never mentioned was that they were polylight photographs. They were talked about as being black and white. Well they are, but they are polylight photographs.

Rohan Wenn: I know the ones you’re talking about, the ones that were almost iridescent?

Woman: The whole issue of photographs has become very vexed in all of this, because there are people have been using photographs that were taken for a specific purpose that showed the bruising and they have been used to say that they don't reflect bruising, because they have been treated as normal black and white photographs, when in fact they are special polylight photographs.

Rohan Wenn: I am aware of the mistake 4Corners made in relation to that because I knew that wasn't a black and white photo that they were passing off as a black and white photo.

Woman: It is a black and white photo, but taken with polylight.

Rohan Wenn: It’s not taken what you and I would consider a black and white photo?

Woman: No, That's right. That was an error made on 4Corners.

Rohan Wenn: I'm aware of that. It's a black and white photo, but it's not what you and I would conventionally call it because it was taken specifically with a special light.

Woman: That shows bruising.

Rohan Wenn: But it doesn't get away from the fact that all of the other forensic science centres -- and we have checked -- around Australia as a matter of course take both black and white and colour photos.

Mr Rofe: I recall this being raised at the trial and I can't remember the explanation now, but I think that now the procedure here is the colour photos are taken.

Rohan Wenn: Are you worried that colour photos weren't taken given the fact that some of the regular black and white photos were used to indicate bruising?

Mr Rofe: No. The indications of bruising were done by special lighting on photographs, admittedly they were black and white. But that was all brought out at the trial, as I recall anyway. So that explanation is there before the jury. I mean…

Rohan Wenn: Was it an oversight that colour photos weren't taken given the fact that…?

Mr Rofe: I honestly can't remember why colour photos weren't taken. It may have been that it wasn't the procedure at the time.

Rohan Wenn: We now do it. We have increased that procedure. Is that a flaw in past procedures?

Mr Rofe: Well it may have been. But you have to look at each case individually and I mean it may be that their funding didn't extend to colour photography. I don't know. There could be any number of reasons why colour photographs weren't taken at that time.

Rohan Wenn: Well certainly the current head of the forensic science centre says that it was a money issue back during the trial.

Mr Rofe: Well it may have been. I honestly don't remember.

............

Rohan Wenn: OK, let us touch on that. Whilst there were no colour photos taken there were a variety of what are effectively black and white photos?

Mr Rofe: Taken under specialty lighting designed to bring out bruising, yes.

Rohan Wenn: So in your view that was adequate?

Mr Rofe: Yes I had no reason to doubt the adequacy of those.
[See Appendix 16]

Facts

The above discussion with regard to the “polylight” is misleading. Polylight is the trade name of a device which can produce light of different wavelengths (colours). It can be used as a light source for photography and the photographs can be taken using either colour film or black and white film. It can be used to highlight areas of contrast which may not be seen by the naked eye.

At the trial, Dr Manock was asked specifically if the photographs being introduced into evidence had been taken with any special light source. He said that those particular photographs were taken with an ordinary flash, and not with any special or fancy lighting source.

The above discussion means either that Dr Manock’s evidence was incorrect, or that the above discussion is irrelevant as far as those particular photographs were concerned.

It also means that the 4Corners program was quite correct to refer to them as black and white photographs.

The Director of Public Prosecutions placed black and white photographs into evidence – at a trial for murder – where the evidence related to bruising – and where colour is essential to any assessment of it. Whilst Mr Rofe and the Attorney General claim that this was not only acceptable practice but good practice, this is contrary to common sense and to the police forensic procedures and to national and international standards.

Complaint

27 The Director of Public Prosecutions

In the filmed interview with Channel 7 Today Tonight, the following exchange took place:

Rohan Wenn: No worries. Dr Manock had no formal qualifications in - sorry, training, rather - he had qualifications given the fact that he was a Fellow, but he had no formal training in pathology or histopathology, but you still used him as a witness. Why?

Mr Rofe: Well I think we used Dr Manock first and foremost because he was the one who conducted the post-mortem examination. He was the senior forensic pathologist in this State.

Rohan Wenn: Yet he had no training in pathology or histopathology, and yet you were still confident enough to use him as an expert witness?

Mr Rofe: Yes. He had vast experience.

Rohan Wenn: But just because you do a job often doesn't mean you do it well?

Mr Rofe: No. That's possibly true. But I had confidence in Dr Manock from previous cases that…

Rohan Wenn: Do you still feel confident about Dr Manock now?

Mr Rofe: Yes.

Facts

The Second Petition sets out the details of many cases in which Dr Manock’s evidence was contrary to common sense and accepted scientific principles. It also details a substantial number of issues where the conduct of Dr Manock in relation to the forensic investigation of the cause of death of the deceased for which the Petitioner was put on trial was also seriously deficient. In the light of all of that information which was either known or which should have been known to the Director of Public Prosecutions, the Petitioner claims that the Director of Public Prosecutions should not have proceeded with the prosecution of the Petitioner on the inadequate and unsubstantiated evidence of Dr Manock.

Complaint

28 The Director of Public Prosecutions

In the filmed interview with Channel 7 Today Tonight, the following exchange took place:

Rohan Wenn: Ok no worries. You’re obviously aware that a re-enactment of the drowning has been done. Now the other people, forensic folk, argue that Manock's drowning theory is improbable and a professor of anatomy says that the theory is quote “totally implausible’. Does that concern you?

Mr Rofe: I know nothing about that except the abysmal again media coverage of that.

Rohan Wenn: Well does it concern you that a professor of anatomy says that the drowning is totally implausible?

Mr Rofe: No - we didn't put any particular - I mean Dr Manock had a theory that was demonstrated. Again, I mean, if that was the case it was open to defence to say “that that's not on’. Certainly that evidence wasn't available at the time of the trial.

Rohan Wenn: Should it have been?

Mr Rofe: Well, I think he was represented by very experienced defence counsel…

Rohan Wenn: Well, at the trial you made some mention about doing a re-enactment with Dr Manock, but a re-enactment was never done. Why didn't you carry through with that plan to re-enact the actual drowning?

Mr Rofe: We never had it planned to re-enact anything as I recall.

Rohan Wenn: My understanding is that some indication had been given that prosecution was going to do a re-enactment as part of their case?

Mr Rofe: No.

Rohan Wenn: Did it occur to you to do a re-enactment?

Mr Rofe: No.

Rohan Wenn: Did you feel it was necessary?

Mr Rofe: No.

Rohan Wenn: Why didn't you feel it was necessary?

Mr Rofe: Well I mean - I don't - you - that something that the bath or a replica bath was tendered to give the jury ideas of dimensions and sizes. Re-enactments in my experience can be as dangerous as speculation.

Rohan Wenn: Why do police do them so often then?

Mr Rofe: Oh mate, you'd have to ask them. To understand certain angles, possibilities, the way things may have happened.

Rohan Wenn: So there is some value in re-enactments then?

Mr Rofe: There can be, it depends on the case. I didn't see any value in this case of a re-enactment.

Rohan Wenn: Have you seen the re-enactment?

Mr Rofe: No, no one’s presented anything to me. This is again why I am, if you like, angry about the way this is being conducted in the media, rather than in the proper place.

Rohan Wenn: Look, I am happy to get you a copy of that if you really want us to.

Mr Rofe: No I don't.

Rohan Wenn: You don't want to see it?

Mr Rofe: Not particularly. No.

Facts

Mr Rofe’s denial of an intention to undertake a re-enactment of the scenario is incorrect. The Police Running Sheets state that such a re-enactment was planned, but that Mr Rofe instructed the police not to go ahead with it.
[See Appendix 17]

Mr Rofe complains that those who had undertaken the re-enactment had not presented that material to him. Then when he is asked if he would like a copy of the video he declines to accept it. This parallels his conduct in relation to the Police Forensic Procedures Manual. First he denies that such a thing exists. Then he states that he does not wish to receive a copy of it. The Petitioner claims that this is inappropriate behaviour for a Director of Public Prosecutions.

Complaint

29 The Director of Public Prosecutions

In the filmed interview with Channel 7 Today Tonight, the following exchange took place:

Rohan Wenn: In the second trial it was claimed that Henry Keogh drowned Anna Jane Cheney using his right hand. Now these are the two photos that were admitted to trial by police. I don't know if you've seen them. Have you seen these photos?

Mr Rofe: No.

Rohan Wenn: Can you see anything irregular about those photos?

Mr Rofe: No. They appear to show the front and back of a hand.

Rohan Wenn: Which hand?

Mr Rofe: I've got no idea.

Rohan Wenn: That's his left hand.

Mr Rofe: I'll take your word for it. I don't know.

Rohan Wenn: Well it's clearly not a right hand?

Mr Rofe: Well, no, I'll accept that.

Rohan Wenn: Which kind of begs the question if the police are messing this up could they be messing other things up in the trial?

Mr Rofe: I don't recall these photos ever being used in the trial.

Rohan Wenn: They were evidence.

Mr Rofe: I'll take your word for it. But - as you say - just looking at them - it’s obvious that it’s not a right hand. Whether the photographs have been transposed in the reproduction, I don't know.

Rohan Wenn: The numbers. Are there numbers there that seem to appear to be not back to front?

Mr Rofe: Yes. But I don't know what your point is.

Rohan Wenn: Well -- I guess the point is that people are saying if the police are taking photos of the wrong hand - perhaps other errors are being made as well. Certainly that's their argument.

Mr Rofe: Well that was an argument that they were free to make at the time and if it was as obvious as those photos are then ...

Facts

Mr Rofe is being shown 2 colour photographs which appear to be of the Petitioner’s left hand.
[See Appendix 16]
Initially Dr Manock suggested that the Petitioner had committed the crime with his left hand. Yet, several months after the event the accusation changes to the Petitioner having used his right hand. When the police photographs are carefully examined it can be seen that initially, photographs were taken of both of the Petitioner’s hands. At some stage of the investigation, the photograph of the Petitioner’s right hand has been printed back to front which makes it look like a left hand. No explanation has ever been provided for the change from the left hand to the right hand nor were the jury informed of this crucial change.

Complaint

30 The Director of Public Prosecutions

In the filmed interview with Channel 7 Today Tonight, the following exchange took place:

Rohan Wenn: Were you aware of the Infant Deaths cases at the time of the trial?

Mr Rofe: I was aware that there’d been criticisms raised, as was the defence.

Rohan Wenn: That didn't concern you?

Mr Rofe: I mean everything concerns me. But my understanding was that those mistakes, as the Coroner subsequently found, were as the result of post-mortems on babies and young children requiring a special skill which Dr Manock didn't possess and indeed didn't profess to possess.

Rohan Wenn: But if he's messing those up, what made you sure he wasn't messing up this stuff as well?

Mr Rofe: I reviewed his procedures and notes and findings and I had no reason to doubt, indeed neither did the Coroner, find him to be incompetent in any way in regard to adult post mortems.

See the information contained above in relation to point 10. The statement by Mr Rofe that, “I reviewed his procedures and notes” must be incorrect, for as Mr Rofe later acknowledges in relation to the following point, Dr Manock did not keep his original notes of his autopsy on Ms Cheney, and because of the paucity of the record of the autopsy, it was impossible for anyone to have later reviewed his procedures.

Complaint

31 The Director of Public Prosecutions

In the filmed interview with Channel 7 Today Tonight, the following exchange took place:

Rohan Wenn: Just before the second trial it was revealed to police that Dr Manock didn't have any original notes on which he based his first report. Did that concern you?

Mr Rofe: Again that's something that is news to me. I mean my memory is of Dr. Manock’s method of operation was that he would dictate his notes as he went.

Rohan Wenn: But if the notes were written or dictated surely they should still exist?

Mr Rofe: I can't remember but - he may use the same tape. He does thousands of post mortems a year and you don't necessarily keep the tape of every one. But the tape would be typed up. Whether it's typed up as notes or typed up as a report. My memory I think is that he tended to type them up as a, have them typed up as a report and then would sign off as a report.

Rohan Wenn: He would reuse the tapes?

Mr Rofe: Well I don't know. I'd imagine that's the case. And my memory is that he did refer to those reports. I don't recall any issue being raised about no notes being available.

Rohan Wenn: Well this is a police case running sheet that shows that in 1995 the police were told that no notes were held by Manock - and that the DPP Rofe and Gray were following up and would deal directly with Manock themselves. Have you seen that?

Mr Rofe: No.

Rohan Wenn: What happened there?

Mr Rofe: Well I would imagine that if we were told this, we would have asked Manock what happened. And as I said, if the procedure was as I just said it, that he dictated it and then they were then typed up as a report, he would have told us that they are the notes if you like. Cause he would have read the report and signed it off while the post-mortem was still fresh in his mind.

Rohan Wenn: So, it wasn’t a concern that we had gotten to the second trial and we had only then learnt that Manock did not have his original notes, on tape or written down?

Mr Rofe: Depending what you mean as original notes.

Rohan Wenn: Well the notes he made during the autopsy.

Mr Rofe: As I said, as I remember, his operation and procedure was to dictate them. Now I am not concerned that he didn't no longer have those if he had signed off as he did of it on a post-mortem report, which would have been those dictated notes typed up and checked by him.

Facts

The Running Sheets produced to Mr Rofe state that he was informed by the police, shortly before the Second Trial of the Petitioner, that “Dr Manock did not have any original notes”
[See Appendix 17].
This should have been brought to the attention of the court in order to ensure a fair trial of the Petitioner.

Mr Rofe’s claims that it was acceptable for a pathologist in an alleged murder case to re-use the dictaphone tape which he made at the time of the autopsy is not in accordance with national or international procedures, nor is it in accordance with the rules of evidence and procedure.

Complaint

32 The Director of Public Prosecutions

In the filmed interview with Channel 7 Today Tonight, the following exchange took place:

Rohan Wenn: … There's evidence that Anna-Jane Cheney visited … had 36 doctor appointments in the two years before her death, but at the trial she was given a clean bill of health. She visited the doctor 36 times in two years and it appears that she had visited at least five different doctors and specialists. Were you aware of that at the time of the trial?

Mr Rofe: We were aware of her previous medical history and that was made available to defence to do what they want with. But there was nothing that we found to be of concern at all.

Rohan Wenn: Were you aware of the 36 visits?

Mr Rofe: I don't know of the precise number but we were certainly aware of her previous medical history. That was something we checked as a matter of course, as we would.

Rohan Wenn: But you didn't sort of stop and think that that was an extraordinary number of visits?

Mr Rofe: No.

Rohan Wenn: No problem at all. I mean some would argue that seems to be a lot of visits to the doctor.

Mr Rofe: Well, I mean, it depends who you are I suppose. I don't go to the doctor very often. But people I know would possibly go 36 times in a year. But they regard themselves as being in good health.

Rohan Wenn: So that wasn't an area of concern during the trial?

Mr Rofe: Oh, I mean, it was an area that had to be looked at, and was looked at. And evidence was given about it, yes.

Rohan Wenn: But nowhere in the transcript does it mention the frequency of visits or the number of doctors. It almost looks like doctor shopping.

Mr Rofe: Why? Well - I mean - that's your interpretation. But it’s … some people see nothing unusual with that number of visits. Other than a person who may be very conscious about their own health and continually having check ups.
[See Appendix 18]

Facts

The evidence given at trial with regard to Ms Cheney’s previous medical history was that she was a fit and healthy person. Her General Practitioner gave evidence that, to the best of her knowledge, Ms Cheney did not have any relevant medical problems.
[See Appendix 4]

However, the Petitioner has since learned that his fiancée had some 36 visits to medical practitioners in the three years prior to her death. Some of those visits were to practitioners and specialists who deal with allergies and / or other related conditions.

Complaint

The Petitioner complains that at his trial the jury were misled as to the true facts of the deceased’s medical history.

33 The Director of Public Prosecutions

In the filmed interview with Channel 7 Today Tonight, the following exchange took place:

Mr Rofe: We satisfied ourselves that those visits didn't represent any problem that may have impacted upon the manner of her death. I mean, there is no predisposition and we checked with the doctors and indeed the doctor gave, as I recall, evidence. Again, that was out in the public arena. That was explored.

Facts

At the time of his trial the Petitioner was completely unaware of the extensive number of visits which his fiancée had engaged in with a wide range of medical practitioners. To this date, neither the Petitioner nor his legal advisers have been able to gain access to the medical files of the deceased. The important factor is not whether the Director of Public Prosecutions and his staff have satisfied themselves, but whether the Petitioner and his legal advisers have had a similar opportunity to similarly satisfy themselves when the Petitioner was on trial for murder.

The Petitioner has been denied access to important and relevant information which would be essential to the conduct of a fair trial.

Complaint

34 The Director of Public Prosecutions

In the filmed interview with Channel 7 Today Tonight, the following exchange took place in the presence of Mr Rofe:

Mr Rofe’s female assistant interjected in the context of the discussion of the number of visits to medical practitioners by Ms Cheney:

her Medicare suggests that she had medical problems like thrush and things like that. This is so inappropriate. This is just off the rails. We checked all of those things. We’ve spoken to her doctor. She did go to the doctor a lot. She was getting sexually transmitted thrush, I suspect, but … (inaudible) … For us to explain that is yet another thing that her family have to deal with. It’s so inappropriate.

Facts

The Petitioner was on trial for murder. Extensive details had been produced in evidence about the Petitioners personal and sexual conduct with the deceased and others. Indeed, his penis was inspected by a medical practitioner and then its condition was discussed in evidence to the court.

The fact that Ms Cheney may have had a problem “like thrush and things like that” was not disclosed in evidence at the trial of the Petitioner. If it had been, then it may have given rise to the investigation of further relevant matters. If Ms Cheney had been receiving treatment for such a condition (or conditions), then it would be important to know what that treatment comprised of.

For the prosecutor’s assistant to disclose that “she was getting sexually transmitted thrush, I suspect,” would have been important and relevant information for the defence of the Petitioner. His penis had been examined by the court appointed doctor, and no mention was made of the Petitioner having thrush. That being so, there was a clear possibility (in the mind of the prosecutors) that the deceased may have had a sexual involvement with a person unknown to the Petitioner. If that were so, then it would have been important to determine who that person was, and what the nature of the relationship with the deceased had been. Such information could clearly have had a bearing on the mental condition of the deceased immediately prior to her death.

This would have been especially important in the light of the new information (referred to in the following point) that an undisclosed third party may have been to the premises of the deceased whilst the Petitioner had been absent for part of the evening immediately prior to his finding his fiancée dead. It was also relevant in the context of the new information which indicated that the deceased had been suffering from considerable stress in relation to her work situation on the day of her death.

Complaint

35 The Director of Public Prosecutions

In the filmed interview with Channel 7 Today Tonight, the following exchange took place:

Rohan Wenn: The only other evidentiary issue that's being raised by these protagonists for Keogh relates to Anna-Jane Cheney's car. Now, she drove herself home that night and you can see in that photo there, there’s Henry's car. There's not enough room, it’s been measured. There's not enough room for a second car to be there. And a photo analysis shows that a car isn't there - that's Anna-Jane Cheney's car. So it appears - and it has been reported by witnesses - that Anna-Jane Cheney's car wasn't there when Henry arrived home. But did arrive back at the house a couple of days later. Was that looked at during the trial?

Mr Rofe: That's the first I've ever heard of it. No one’s ever drawn that to my attention.

Rohan Wenn: Would that be an area of concern?

Mr Rofe: Well - I mean - no, I mean ….

Rohan Wenn: It wouldn't be an area of concern that the car wasn't there even if she'd driven it home that night?

Mr Rofe: Well it may be something you'd look at, but whether it is an area of concern is neither here nor there. Unless someone put it to us and said, look, this is an area of concern. There may be a very innocent explanation, I don't know.

Rohan Wenn: There may be. But clearly cars don't drive themselves. So if her car went missing that night, somebody must have driven it, and therefore been at the house.

Mr Rofe: That's a possibility yes.

Rohan Wenn: But it’s one that wasn't looked at during the trial?

Mr Rofe: Well it certainly wasn't raised by defence. No.

Rohan Wenn: It’s nothing you looked at prior to going to trial, to decide if a crime had been committed?

Mr Rofe: Well, I don't recall that ever being put to me - that the car wasn't there - or it was missing - or that there was some explanation required.

Facts

Mr Rofe acknowledges that there is a possibility that Ms Cheney’s car was not at her home at the relevant time. He also acknowledges that it could give rise to an inference that an undisclosed person had been in attendance at her home on the evening of her death, whilst her fiancée was absent from the premises, and immediately prior to her being found dead. He then immediately offers the explanation “There may be a very innocent explanation, I don't know”. This is important and relevant information.

Complaint

36 The Director of Public Prosecutions

In the filmed interview with Channel 7 Today Tonight, the following exchange took place:

Rohan Wenn: … Are you still confident that he [Dr Manock] was competent enough to give evidence upon which to get a conviction in that trial?

Mr Rofe: Well I was quite satisfied with his competence. I don't think that his evidence convicted Henry Keogh.

Facts

Mr Rofe led the evidence of Dr Manock at the trial of the Petitioner. In his summing up to the jury he described that evidence as being crucial and as providing the only possible explanation for the death of the deceased. No other evidence was given at the trial which would have linked the actions of the Petitioner with the death of the deceased. Although there was evidence in relation to alleged actions of the Petitioner with other women or insurance policies, the death of the deceased clearly had no causal relationship with either of those two matters. Therefore, the ONLY evidence which could have established a causal relationship between the death of the deceased and the actions of the Petitioner was that given by Dr Manock.

As a matter of logic, therefore, the conviction of the accused must have been as the result of the evidence of Dr Manock, for without Dr Manock’s evidence there would have been no case against the accused on a charge of murder.

It is inappropriate for the Director of Public Prosecutions to make such statements with regard to the weight of Dr Manock’s evidence after having secured the conviction of the Petitioner on a charge of murder. If Dr Manock’s evidence had not been relevant, then it would have been improper for the Director of Public Prosecutions to have led that evidence at the trial. If it was relevant, then the Director of Public Prosecutions cannot assess the extent to which the jury had been influenced by it in their deliberations.

However, having told the jury that in his opinion that evidence was both crucial and the only possible explanation of the facts, then it is contradictory for him to tell the public that it was otherwise.

Complaint

37 The Attorney General

In his statement to the South Australian Legislative Council on Thursday 20 February 2003 the Attorney General stated:

That advice was to the effect that the evidence referred to in the Petition could not be described as “fresh evidence” not previously considered by the court.

Facts

The Attorney General was referring to the evidence referred to in the Second Petition of the Petitioner. It is clear that the advice which the Attorney General referred to included advice from Mr Rofe the Director of Public Prosecutions.

In the filmed interview with Channel 7 Today Tonight, referred to above, it has been confirmed that:

1 The DPP did not know about the evidence suggesting that the deceased’s car was missing from her home on the night of her death.

2 The DPP did not know about the evidence suggesting that the deceased had a mark on her leg consistent with an injection mark or a bee sting.

3 The DPP did not know that the deceased had a medical history which indicated a propensity to allergic reactions.

4 The DPP did not know that a re-enactment had established that it would have been impossible for the Petitioner to have brought about the death of the deceased in the manner proposed by Dr Manock.

5 The DPP did not know of the reported cases in which otherwise fit and healthy people had died suddenly without having been murdered.

6 The DPP did not know of the existence of the Police Forensic Procedures Manual.

7 The DPP did not know that crime-scene investigators had not been present at the autopsy of the deceased as they should have been.

8 The DPP did not know that the Coroner’s Findings in relation to the Baby Deaths had given rise to grave questions in regard to Dr Manock’s ability to correctly observe, record, report and interpret his observations at autopsy, and that those shortcomings would be relevant to his ability to conduct adult autopsies.

9 The DPP did not know that there were innocent explanations for the observations which Dr Manock said that he had made.

10 The DPP did not know that there was no evidence to support the claim by Dr Manock that there was a bruise on the medial side of the left leg of the deceased.

11 The DPP did not know that bruising to the body of the deceased could have been caused after death.

12 The DPP did not know that there were up to 12 people who could have caused bruising to the body of the deceased, and who had not been excluded by his inquiries.

13 The DPP did not know that the bruising to the head of the deceased could have been artifactual – that is, caused by the process at the earlier autopsy procedure.

14 The DPP did not know that the failure to cordon off the scene was a fundamental breach of police procedures.

15 The DPP did not know that for the police to have been influenced in their investigation at the scene by statements made by the Petitioner was a fundamental breach of police procedures.

16 The DPP did not know that the failure to take appropriate colour photographs at autopsy was a fundamental breach of police and forensic pathology procedures.

17 The DPP did not know that the failure by Dr Manock to retain his original notes was a fundamental failure of forensic pathology procedures.

18 The DPP did not know that crucial evidence had been destroyed at the scene – such as the bathwater in which the deceased was said to have been found.

19 The DPP did not know that the failure to record basic evidence at the scene was a fundamental failure of procedures. No temperatures were taken of the deceased, and the photographic evidence of vomitus material on the track pants was not investigated and remained untested.

20 The DPP did not know that the interference with the body of the deceased by the application of makeup had contaminated the scene in a manner which is a fundamental breach of criminal investigation procedures.

21 The DPP did not know of a telephone call which indicated that autopsy procedures may have been conducted earlier than those recorded.

22 The DPP did not know that the photographs produced in court were taken without the aid of any special lighting technique.

23 The DPP denied that he had instructed the police not to proceed with a re-enactment which would have established the implausibility of the theory propounded by him.

24 The DPP did not know that the photographs produced to him by the police of the Petitioner’s hands were of the wrong hand, and that one of the images had been printed back to front.

25 The DPP was presumably aware of the suggestion by his assistant that Ms Cheney may have had “thrush” or some sexually transmitted condition. Yet he failed to bring this important knowledge to the attention of the Petitioner to enable him to prepare properly his defence to the charges.

Complaint

All of these issues were put forward by the Petitioner in his Second Petition.

The Director of Public Prosecutions (Mr Rofe), in the filmed interview referred to, has clearly stated that he was unaware of the above issues at the time of the trial of the Petitioner.

It is therefore inappropriate for him to advise the Attorney General that the Second Petition of the Petitioner did not give rise to matters which could be considered to be “fresh evidence”. If the Attorney General had put forward that information to the Parliament of his own volition, then it was done so in ignorance of the facts. The Petitioner requests that the above matters, contained in his Second Petition, now be considered according to law.

The Petitioner

The Petitioner points out that if a Minister provides incorrect or misleading information to Parliament then that Minister has a fundamental requirement to ensure that the error is corrected at the first available opportunity.

At the time that he provided the above statements to the Parliament that the Honourable Members did not have before them the following materials:

The address by the Director of Public Prosecutions to the jury at the trial of the Petitioner, or any other part of the trial transcript.

The Information contained in the Second Petition submitted by the Petitioner, including the reports referred to from the independent pathologists.

The evidence which had been led before the Coroner and his Findings in relation to the Baby Deaths.

Media transcripts of the interviews with the Director of Public Prosecutions, and of various independent experts from South Australia, interstate and overseas in relation to these matters.

The court judgments in relation to the various cases which had been extensively cited in the Second Petition.

The Petitioner now requests the Governor, through her Ministers, to ensure that the Parliamentary record is corrected. The Petitioner also requests that the Governor ensures that the information contained in the Second and Third Petitions of the Petitioner now be considered according to law and in accordance with correct information and principles.

It is submitted by the Petitioner that the corrections to the Parliamentary record should include at least the following statements:

1 I now inform the Parliament that Dr Manock’s evidence in the trial of Henry Keogh was, as stated by the Director of Public Prosecutions to the jury, crucial to the prosecution case. The previous information that was presented to the Parliament in relation to this issue was incorrect.

2 I now inform Parliament that Dr Manock’s evidence at the trial of Henry Keogh that there was a bruise on the inner (medial) side of the left leg was incorrect, and was not supported by photographic, histological or any other evidence. The previous statement to the Parliament in this respect was incorrect. The previous statement in reference to a bruise on the lower left ankle of the deceased was also incorrect.

3 I now inform the Parliament that the other pathologists who gave evidence at the trial of Henry Keogh were never asked if the bruising to the legs of the deceased could have occurred after death. Therefore the statement to the Parliament that, “Significantly, none of the other pathologists who gave evidence at Henry Keogh’s trial said that the bruising could have occurred after death” was misleading.

4 I now inform the Parliament that the fact that other South Australian pathologists declined to appear in the ABC 4Corners program was because they were acting in accordance with an instruction which emanated from the office of the Minister for Administrative Services. The failure to refer to this fact in the previous statement to the Parliament was misleading.

5 I now inform the Parliament that the statement to the Parliament to the effect that the ABC 4Corners Report did not say whether Dr Manock had been asked to comment, was incorrect.

6 I now inform the Parliament that the statement to the Parliament that “… the fact that certain people were not prosecuted in relation to the deaths is not attributable to the impugned findings of Dr Manock” was incorrect.

7 I now inform the Parliament that the statement to the Parliament that, “the investigator followed the guidelines based on his assessment of the death scene” was incorrect.

8 I now inform the Parliament that the statement to the Parliament that, “there is no evidence that Anna-Jane's body was in any way tidied up” was incorrect.

9 I now inform the Parliament that the statement to the Parliament that:

In 1994 it was the policy of the State Forensic Science Centre to take only black and white photographs. For the purposes of examining suspected bruises, black and white photographs are useful because they can be enhanced better than can colour photographs to help with the examination. Therefore, it is quite wrong to suggest that the use of black and white photographs was a poor technique—it was a good practice,

was incorrect.

THE PETITIONER 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.

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.

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 his petition be granted.

DATED this day of August 2003

HENRY VINCENT KEOGH )

Petitioner..................................................................

Appendices attached to the Third Petition of Henry Keogh

Appendix 1 – the Second Petition of the Petitioner dated August 2002.

Appendix 2 – The statement to the South Australian Legislative Council by the Attorney General Michael Atkinson (read by the Hon Mr Roberts) on Thursday 20 February 2003

Appendix 3 – The statement to the South Australian House of Assembly by the Attorney General Michael Atkinson on 1 April 2003.

Appendix 4 – Pages from the trial of Henry Vincent Keogh referred to in the Third Petition.

Appendix 5 – Transcript of the ABC's 4Corners program “Expert Witness” broadcast on 22 October 2001.

Appendix 6 – Videotape of the ABC's 4Corners program “Expert Witness” broadcast on 22 October 2001.

Appendix 7 – Transcript of program by Channel 7 Today Tonight – Henry Keogh follow up.

Appendix 8 – Videotape of the program by Channel 7 Today Tonight – Henry Keogh follow up

Appendix 9 – Findings of the Coroner into the Baby Deaths case.

Appendix 10 - Police Forensic Procedures Manual – pages referred to in the Third Petition.

Appendix 11 – Transcript of the interview by Channel 7 Today Tonight with Mr Paul Rofe, Director of Public Prosecutions.

Appendix 12 – Videotape of the interview by Channel 7 Today Tonight with Mr Paul Rofe, Director of Public Prosecutions.

Appendix 13 – Transcript of the program by Channel 7 Today Tonight – Henry Keogh half hour.

Appendix 14 – Videotape of the program by Channel 7 Today Tonight – Henry Keogh half hour.

Appendix 15 - Bee v Police No [1999] SASC 25 (29 January 1999)

Appendix 16 – Photographs relevant to the Third Petition including computer generated images used in the Channel 7 Today Tonight program. We have not included any of the photographs of the deceased’s head face or body out of consideration for the deceased and her family. Those photographs may be obtained from the DPP’s office by those entitled to have access to them.

Appendix 17 – Police Running sheets – shown in filmed interviews.

Appendix 18 – Report from Dr Tony Thomas relating to the visits by the deceased to medical practitioners.

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