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A state of Injustice - Dr Robert N Moles
Chapter Eleven - The one positive indication of murder

A state of Injustice: table of contents

Also by Dr Moles - Losing Their Grip - The Case of Henry Keogh - Definition and Rule in Legal Theory

Henry Keogh 1995 - Part 1: Investigation and trials

In August 1995, Henry Keogh was convicted of the murder of his fiancee Anna-Jane Cheney, a 29-year-old solicitor. At that time Keogh had been a senior banker in Adelaide who had recently moved to a firm of financial planners. Anna had had a high profile job as the head of professional conduct at the Law Society.

Anna died on a Friday evening and, because her death was deemed ‘not suspicious’ by those investigating the incident, Dr Manock did not conduct an autopsy until the Sunday. This autopsy was done by Dr Manock at the time that his work was being subjected to the serious challenges in the Coroner’s Court in the Baby Deaths case described in the previous chapter.

Further, Anna’s body was cremated shortly after the autopsy which meant that no one apart from Dr Manock was able to inspect it, or to ensure that proper autopsy procedures had been undertaken and results recorded. Because the cremation took place long before Keogh was arrested and charged, it also meant that neither he nor his lawyers could do anything to check the pathology evidence or test other possible explanations.

The prosecution case, based on a scenario proposed by Dr Manock, was that when Anna was taking a bath, Keogh gripped one of her legs and raised it up, thereby forcing her head underwater, causing her to drown.

In this chapter we discuss the forensic examination of the scene and the pathology aspects of the trial. The next chapter describes information that has come to light since the trials and how the appeal process has failed to work properly in this case. [1]

Anna found dead in the bath

Henry Keogh had been married and had three daughters, but was separated. Afterwards he met Anna and was subsequently divorced. He and Anna had become engaged and they were to be married in about two weeks’ time. After work that Friday (18 March 1994) they met and went to a local hotel for a few drinks. They had some wine and potato wedges, and then went home to Anna’s house, each driving their own car. They spent a short while together at home, then Anna drove over to see her sister-in-law so that they could take their dogs for a walk at the local park. After Anna returned home, Keogh went to visit his mother for a short while.

Keogh said that he returned home at around 9.30 pm and found Anna in the bath. He said that she was sitting at the plug end with her body slumped for to her right, with her face in the water. He said he dragged her out and tried to resuscitate her. He called the emergency number and ambulance and police officers came to the house. The ambulance officers also attempted resuscitation, but to no avail. Anna was pronounced dead. As there were ‘no suspicious circumstances’, her body was removed to the mortuary at the Forensic Science Centre in Adelaide. 

On Sunday 20 March 1994, Dr Manock conducted the first autopsy of Anna Cheney. The coronial running sheet states that Dr Manock noticed a bruise to the top of the head and that further enquiries were to be carried out to explain this bruise, which he said was caused prior to death. The same note on the running sheet also stated that the body would be free the following day, after the laboratory technician had taken the necessary photographs in the morning.

The same day, according to the coronial running sheet, the police officer attached to the Coroner’s Office contacted various police officers during the evening to raise her concerns about the case.

On Tuesday 22 March 1994, according to his autopsy report, Dr Manock conducted further autopsy procedures and two more bruises are said to have been detected at the back of the head / neck. However, when asked in evidence at trial he stated that the further procedures were completed on the Monday. This discrepancy in timing was not cleared up.

On Wednesday 23 March 1994, the police said Anna’s death was a murder. 

On Friday 25 March 1994, the police declared Anna’s death a ‘major crime’.

On Monday 28 March 1994, the Coroner, Wayne Chivell, gave written permission for the Anna’s body to be cremated after he received written confirmation from Dr Manock that the body would no longer be needed. [2]

On Wednesday 30 March 1994, a funeral service was held and Anna’s body was cremated.

On Friday 29 April 1994, Dr Manock completed his autopsy report that mentioned bruising to Anna’s left leg. He said nothing in the report about them constituting evidence of a hand grip. However, he had already indicated to the police that this was an important part of the explanation as to the cause of her death.

On Saturday 7 May 1994, Keogh was arrested while attending a basketball match with his daughters, and charged with the murder of Anna Cheney. 

On Wednesday 18 May 1994, Dr Manock gave the toxicologist samples for analysis.

On Thursday 23 June 1994, the toxicologist completed his report stating that the deceased had ‘no common drugs’ in her system.

On Monday 27 June 1994, Dr Manock visited the scene and on 28 June produced a further report in which he described the possible murder scenario.

Keogh’s committal was heard in the Adelaide Magistrates Court in August 1994 and he was committed for trial. He subsequently stood trial before Justice Duggan in the Supreme Court of South Australia in March 1995. Mr Paul Rofe, QC, Director of Public Prosecutions, prosecuted. Counsel for Henry Keogh was Mr Michael David, QC. The jury was unable to agree on a verdict.

A second trial took place in August 1995, before the same judge but a different jury, after there had been some delay with regard to some prejudicial publicity. The same defence and prosecution counsel were involved.

The case against Henry Keogh

In a criminal case, it is necessary to establish both the psychological and the physical components of the crime, and the prosecution presented these two types of evidence at the Keogh trial. All of it was circumstantial. There was controversial evidence which related to insurance policies that Keogh had taken out on Anna’s life. This was said to show that Keogh had a motive to murder Anna. As the prosecution said, her death would then give him his freedom and the financial means to enjoy it. He was also said to have had affairs with other women. The prosecution also argued that at the time of Anna’s death, Keogh had not ordered his suit for the wedding, nor had he arranged to take time off work for the honeymoon. This evidence was said to show that he had never had any intention of marrying Anna. There was also the pathology evidence, which they claimed was the physical proof that showed that Keogh had murdered Anna.

The psychological factors

The prosecution led evidence that Keogh had taken out over $1 million of life insurance on Anna which he had done by signing Anna’s signature on five policies. The prosecution case was that he had been planning Anna’s death since the policies came into effect, that is, for about two years.

The prosecution accepted that Anna knew of at least two of the policies. It follows then, that she must have known that there were two life policies that Keogh had signed in her name. The prosecution argued that if she had known that there were in fact five policies, she would have known that Keogh had a much greater financial interest in her demise.

Keogh said that when he was employed by the State Bank, he realised that his job was not too secure because of likely restructuring. He said that as he had agencies with five life insurance companies, he decided to put a policy through each of them to encourage the insurance companies to keep his agencies open. The five agencies therefore explained the reason for having five policies. He said that the commissions he would earn on the policies would cover their cost, and he could give the impression of doing some business without it actually costing him anything.

He said that if the prosecution case was correct, and that he had effected the policies with a view to murdering his fiancee and then claiming on them, it would have been a scheme doomed to failure.

On each of the proposals for insurance there was a question which asked if there were any other life insurances on the life to be insured. To each of those questions Keogh wrote the answer ‘No’. That alone would have invalidated four of the five policies. The only way in which the scheme proposed by prosecution’s proposal could have worked would have been if Keogh could murder Anna, and claim on all five policies without any of the insurance companies realising that there were other companies who had policies on her life. If such a scheme had been attempted in a large city such as New York or London it might have had some prospect of success. Keogh argued that if he were to attempt to do such a thing in a small place such as Adelaide, he would have had no chance of getting away with it.

Keogh’s former wife, Susan, supported his claims in relation to this. As she said at the trial, and in a subsequent interview by Rohan Wenn for the Channel 7 Today Tonight program on 30 July 2002:

Rohan Wenn:  Much too was made of five insurance policies that Henry took out for Anna – by forging her signature – worth more than $1 million. And whilst on the surface it looks very suspicious, his former wife says it wasn’t unusual and alone didn’t make him a murderer.

Susan Keogh:  Well, while we were married, as a matter of convenience, Henry always signed papers for me and he had my permission to do that and I had no problem with that, it was just a matter of convenience. [3]

Evidence was also present to show that Keogh had recently been involved with other women. One woman said that she had sex with Keogh after he had become engaged to Anna. Keogh agreed that this had happened. Another woman claimed that there had been some intimacy with Keogh on a number of occasions although she had never had sex with him. This evidence was strongly contested by Keogh.  

The physical factors

The pathology evidence was fundamental to the prosecution case. There was evidence about bruising which was said to show a ‘grip’ mark on Anna’s leg. The prosecution argued, therefore, that Anna’s death was a deliberate and forced ‘death by drowning’, and that there were no other possibilities, such as an accident or natural causes. Dr Manock said at the committal hearing, ‘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’. [4]

In subsequent petitions to the Governor of South Australia on behalf of Keogh, Kevin Borick, QC has claimed that Manock’s statement is clearly inconsistent with the most basic obligation of a pathologist – which is to consider all reasonable possibilities as to a cause of death.

Professor Stephen Cordner, the professor of pathology at Monash University and head of the Victorian Institute of Forensic Medicine, who gave evidence for the defence at the trial, has since reviewed the pathology material in this case and provided detailed written comments on Dr Manock’s work. In his report he states: ‘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’. [5]

As to the significance of the pathology evidence, the Director of Public Prosecutions, in his final address to the jury, said:

“Whereas to murder I suggest the bruising on the lower left leg, if that is a grip mark, is almost in itself conclusive, providing you accept that it was applied at or about the time of death. [6]

… you might give him the benefit of the doubt, explain away in some way, the one positive indication of murder, namely the grip mark on the bottom left leg. [7]

But there are two things, you might think, that are crucial to this case. If those four bruises on her lower left leg were inflicted at the same time, and that time was just before she died in the bath, there is no other explanation for them, other than a grip. If it was a grip, it must have been the grip of the accused. If it was the grip of the accused, it must have been part of the act of murder.” [8]

In other words, the jury were told that Dr Manock’s evidence about the grip mark was the one positive indication of murder and crucial to the prosecution case.

This should be contrasted with what the DPP said on the Today Tonight program in June 2002 when he was asked how important was the pathology evidence:

“I said in my final address to the jury that the forensic pathology wasn’t going to provide the answer. I mean it was necessary and important background. 

… a fit and healthy 29-year-old girl doesn't drown in the bath.” [9]

Also, the Attorney-General, in his statement to the South Australian Legislative Council on 20 February 2003, stated:

“Dr Manock’s evidence as to how the bruises came to be on the victim’s leg in the Keogh case had marginal weight and relevance to the prosecution case.

… the verdict did not depend on Dr Manock’s evidence.”

Mr Borick has argued in Keogh’s petitions that the jury, on the evidence presented to them, had no option but to consider the pathology evidence significant, and they made their decision accordingly.

At the scene

The police took some colour photographs at the scene that night. The implications arising from them were not brought out at the trial, but they have proved since to be most useful in developing an understanding of what occurred  that night.

Resuscitation failed

The statements of the ambulance officers indicate that they arrived at the house at 9.38 pm in response to Keogh’s call for help. After waiting for a moment or two for the dog to be removed from the hallway, they commenced CPR but found that Anna’s airway was full of fluid and they could not get air into her lungs. They stopped resuscitation attempts at 9.55 pm after working on her for ten minutes.

One of the ambulance officers made a statement that night but did not appear to express in it any concerns about the situation as they found it. After all, the police were to conclude that night that there were no suspicious circumstances. Some months later, however, the ambulance officer made another statement to the police in which he listed a series of observations, apparently reflecting some concerns which he says he had on the night. These were: there was no vomit near the body or on it; the hair, body and towel were not wet; and there was no water on the floor in the bedroom or in the bathroom. He thought the explanation about Keogh doing CPR was unusual, saying that any attempt at manual compression would cause vomit and water to spill out. In evidence at the trial he said that whatever he tried to do as he worked on her, Anna’s airway filled with water.

The second ambulance officer also made a statement around the time of Anna’s death and noted that they found Anna to be asystolic (clinically dead). The officer said that doing CPR caused water and vomit to come from her mouth. She said that Anna’s hair was damp (but not wet) and the bathroom floor was dry. As with her colleague, the second officer also made another statement some months later and likewise referred to apparent observations which she thought then to be significant, but which were not included as part of her previous statement – that there had been no water or vomit on the carpet, and the airway was clear – indicating that she thought that Keogh did not attempt resuscitation.

This is confusing. Both officers agree that Keogh could not have done CPR. Yet the facts on which they base their inferences that led each of them to the conclusion that Keogh had not done CPR as he had claimed - the presence of water in the upper airway on one hand and the absence of it on the other – are diametrically opposed.

Had these concerns been stated at the outset instead of months later, the police would have been alerted to potential problems and could have secured the scene. The fact that the observations of the second officer were at odds with that of the first officer would indicate that their recall of these matters was unreliable. The ambulance officers do not appear to have made any notes of their observations that evening – their evidence in court was given without reference to such notes.

Keogh gave evidence at his trial that he tried to resuscitate Anna and that in doing so, he saw that she had mucous around her mouth. He said that he had wiped this away using some track pants lying nearby in order to get a seal so that he could inflate her lungs. It was part of the prosecution case that he had not done so, because he would hardly be trying to save her if he had in fact just tried to murder her. However, a police photograph taken at the scene shows the presence on the track pants of what appears to be mucous material.

Contaminated scene

The police did not at any time cordon off the scene of the death to avoid contamination, as they should have done. An officer was placed at the door, but when people arrived and said that they were family or friends they were allowed in. In all, about 20 people were allowed into the house, and from the various reports it seems that many of them went to the bathroom and the bedroom where the events had occurred. Anna’s body was lying naked on the floor of the bedroom adjacent to the bathroom, with her feet just level with the bathroom door.

When Mr Rofe was asked in an interview later whether he was concerned that the scene wasn’t cordoned off, given the impact that it could have on evidence, he replied, ‘No. I can’t think off-hand of any evidence that might have been lost by the lack of it cordoned’. [10] The bath water, however, was evidence and this was lost as a direct result of the failure to properly secure and examine the scene. It may well have provided significant information about what occurred that night, but it was never sampled or tested. If there was something in the water that night it might be important to know whether it was just bath salts, bodily fluids or vomit, for example. If testing had shown that there was biological material present, it might be an important clue to know whom it belonged to. However, the reports about the bath water are conflicting and confused.

Anna’s father said that the water was clear, but that there were flecks of amorphous material on the bottom of bath. The first ambulance officer said that he examined the bathroom area and that the bath water was slightly cloudy but there was no sign of vomit in the bath. Yet how could he have known that the cloudiness had nothing to do with vomitus material? One of the police officers reported that the bath was three-quarters full – with ‘almost clear’ water. The second ambulance officer said that the bath was three-quarters full and the water was still warm, but not as warm as she would use for a bath. But no one recorded the temperature or took a sample of water for analysis for diatoms or for anything else. Substances such as vomit, bodily fluids or bath salts could have caused the ‘cloudiness’ or ‘amorphous material’ in the water. One might have thought it to be important to determine which, if any, it was. Anna’s father said (in his statement) that he let the water out after the police had left the house that night.

The floors were wet and dry

Evidence about the state of the floors was also lost because of the failure to secure and examine the scene, and to record the information at the time. The condition of the floors is important with regard to Keogh’s actions on the night. He claimed to have found Anna in the bath and pulled her out and attempted resuscitation. If this was the case, one might expect that the floors would be wet, but the evidence about the floors is as confusing as that about the CPR. The first ambulance officer said in his statement months later that he examined the bathroom area and could see no sign of vomit or water on the floor. The second ambulance officer said that when they arrived the floor in the bathroom was dry and the bathroom mat was dry. Anna’s father said the fact that the floor was not wet in the bathroom seemed strange. However, other witnesses that evening stated that the floor was wet, and that the bathroom mat was very wet. The police officer from the Coroner’s Office even stated that she picked the bath mat up and it was ‘heavy with water’.

The second ambulance officer recalled that there was no water or vomit on the bedroom carpet. This was taken to be a further indication that Keogh did not attempt to resuscitate Anna. The photographs taken at the scene, however, show that the carpet under the body appears to be wet.

Was the body tidied up?

Some of the photographs, taken by the police shortly after their arrival at the scene, show Anna’s body with her face swollen and with vomit in her hair. They also show the patches where the pads for the monitoring equipment had been attached. In one photograph, Anna’s left leg, below the knee, can be seen pressed against the door frame. In later photographs, the swelling in Anna’s face has reduced, and most surprisingly, her hair has been combed and her make-up has been reapplied. The photographs show a mark on her forehead that was not evident in the earlier photographs. This was not recorded in the autopsy report, but it is commented upon in the coronial running sheet. None of the witness statements taken that evening say anything about her body being tidied up at the scene, even though the evidence is plainly visible in the police photographs.

What happened to Anna’s car?

A police photograph taken of the outside of the house that night shows that Anna’s car was not where it should have been. The coroner’s van can be seen on the road and police officers can be seen standing on the doorstep. Keogh’s car is in the driveway, but Anna’s car is not in the carport, nor is it on the road outside the house. Another photograph taken at the house two days later shows Anna’s car parked beside the house. None of the witness statements refer either to the fact that the car was missing, or to the fact of its being returned by someone. Evidence of this, though, could indicate that after Keogh went to his mother’s house that evening, Anna either left the house in her car and walked back home, or else someone had been to the house while Keogh was away and then left using Anna’s car. This matter was not raised at the trial. The DPP now says that the explanation could be an innocent one. [11] However, if that were so, one would think it would have been explained in the witness statements. The lack of a simple explanation where one might be expected should be cause for concern. 

No suspicious circumstances

At the end of the evening the police determined that there were no suspicious circumstances. Anna’s body was then picked up and carried out of the house before being placed on a stretcher. This handling of the body is significant because, as it turned out, one of the most important signs said to indicate murder was stated by Dr Manock to be bruising to the legs. However, no one was questioned about this at the trial, not even those who carried the body out of the house, to see if they could have caused any of the bruising to the legs.

Death by drowning

At the trial, the prosecution’s case was that Anna’s death was a ‘death by drowning’. But death by drowning is a diagnosis of exclusion. This means death by drowning cannot be proved conclusively. To reach such a diagnosis all other possibilities, such as accident or natural causes, must first be examined and excluded.

Dr Manock had  ruled out other possibilities. However, other possibilities do exist and have not been eliminated by proper examination or testing.

Sudden death in apparently fit and healthy people

The DPP made it clear in his opening and closing addresses to the jury that death by natural causes, or a death contributed to by natural causes, should be ruled out. It was said on many occasions throughout the trial that Anna was a fit and healthy person, and that fit and healthy people do not just fall over and die. Dr Manock gave evidence that he regarded Anna as having been ‘fit and healthy’. However, Anna’s full medical history was never produced in court. The only evidence at the trial in this regard was that of her general practitioner. However, it is now known that Anna had some 37 consultations with a number of different medical practitioners over the previous five years, but the details of these visits have not been revealed.

In an interview with Channel 7 Today Tonight program after the trial, Mr Rofe stated that:

“As indeed we said, you know, a 29-year-old girl doesn't drown in the bath. And Dr James [another forensic pathologist from the Forensic Science Centre in Adelaide], for example, had never come across such a case.” [12]

But fit and healthy young people do die suddenly and unexpectedly in all sorts of circumstances. Professor Tony Thomas, the expert pathologist used by the Coroner in the Baby Deaths cases, is highly respected as an expert on the subject of sudden death in young people. He has about ten to twelve cases of sudden death in a young person referred to him each year. As no cause of death has been found at autopsy, he is requested to examine the heart. [13]

Shortly after Keogh’s trial but prior to his appeals, The Advertiser, Adelaide’s main newspaper, reported a similar bath death in Sydney. The article of 18 June 1996, stated, ‘A healthy young woman drowned while taking an early morning bath when she fell asleep’. It went on to say that the woman, who was 22 years old and ‘was fit and healthy, a former State champion swimmer and runner’, had been found immersed in lukewarm water in the bath at her home in May 1995. However, the Coroner said that he ‘was satisfied there was no foul play involved’. So it does happen.

Anaphylactic death a possibility

Another possible cause of Anna’s death, again based on evidence available at the time, is that of a severe allergic or anaphylactic reaction. This was not tested for at autopsy and the possibility was not put before the court.

The photographs taken at the house show that Anna had some general swelling of the face, and that there was what looked like some streaking or blistering on her body in the upper left-hand side. She also had what appeared to be a dark red blister or sore behind her ear. These are classic signs of anaphylaxis, a severe allergic reaction to certain foods, medications or other substances. It is quite possible that Anna went into anaphylactic shock, especially as it appears that she may have suffered from allergies. While no evidence with regard to this was provided to the court, there is some information to suggest that she bought cosmetics specially designed for people with allergic sensitivities.

Haemolysis, an indicator of possible anaphylaxis, was found in the aorta at autopsy, although it was explained by Dr Manock only as part of a process of ‘drowning’. No other possible causes were mentioned. Dr Manock said that the lungs were heavier than normal. His autopsy report states that there was ‘massive oedema’ in the lungs and that when the lungs were cut, ‘water’ flowed from them. However, water and oedema are not the same thing. The former would indicate drowning. The latter could result from anaphylaxis or cardiac failure. But it would seem that the possibility of anaphylaxis was not even considered at autopsy, and certainly no test was made for it.

It is worth noting that anaphylaxis often causes difficulty with breathing. The muscles and tissues of the airways can expand, narrowing the airways, and this can lead to fainting or unconsciousness. If this had occurred it may well have been undetectable by the time of the autopsy. Mucous plugging, which could also have been undetectable at autopsy, could also have caused a blockage.

However, Dr Manock said that Anna’s airway was blocked. The inability to obtain an airway could have been caused by a blockage as the result of an anaphylactic reaction. When combined with the regurgitation of food, if inhaled into the airway, it would have caused a blockage of he airway. The initial muscular spasms or narrowing of the airway may have been undetectable at autopsy, although the blockage by the regurgitated food would still be present as Dr Manock found.

In fact Dr Manock’s autopsy report stated: ‘Larynx, trachea and main bronchi were packed with fluid and gastric contents but it was difficult to ascertain whether this was an antemortem phenomenon … ’

It is worth noting that if it had been ante mortem, which means ‘prior to death’, this would have meant that Anna would have choked to death.

The photographs taken at the scene also show that Anna had what appears to be a mark with some redness around it on her upper left leg. It is the sort of mark that can result from an injection or an insect bite or sting, any of which could cause an anaphylactic reaction. None of the witnesses at the scene mentioned this mark. Nor is there any mention of it in the autopsy report. As the body was not examined until two days later, it’s possible that the symptoms had disappeared  by that time. There are no colour photographs from the autopsy, so it is not possible to confirm this one way or the other. However, it is expected that the pathologist would review all the available evidence, and the photographs taken at the scene would be important to that assessment.

‘It must be a grip’

Dr Manock said that he could identify three bruises to the outside of Anna’s left leg, and a single bruise on the inside of the left leg. He said that this particular combination of bruises was the classic sign of a grip and he couldn’t think of anything else that it could be. This led him to hypothesise that Keogh had gripped Anna’s left calf to force her legs over her head and then to drown her by pushing her head under the water. This scenario, he said, would explain the bruising to the top of the head. It would, he said, have the effect of trapping the arms by the sides of the bath but leave the right leg free to thrash around and bang itself against the edge of the bath and so produce bruising along the border. A later re-enactment that disproved this hypothesis is discussed in the next chapter.

Dr Manock asserted that his own hand ‘fitted the pattern of bruising’ on Anna’s left leg. Neither he nor the police made any proper attempt to determine if Keogh’s hand also fitted that pattern of bruising. Dr Manock said that while he was able to 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. It is difficult to understand why that should be so.

The autopsy

Photography inadequate

None of the photographs which were said to have been taken at the autopsy tendered in court actually identify the person in the photographs. One set is of a person’s legs from just above the knees to the feet. The other set is of bruising to the head, but the angle of the photograph is such that it does not show the face or any other distinguishing features.

Interestingly, these photographs are all in black and white.. They were accepted into evidence at the trial without any explanation being provided as to why colour photographs weren’t taken. In relation to this case, the Attorney-General made the following statement in the South Australian Parliament:

“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.” [14]

But in his evidence in the Baby Deaths inquest in 1994, Dr Manock said that ‘currently it [the photography] would be in colour’. [15] There are also on record many cases in which the Forensic Science Centre has used colour autopsy photographs prior to 1994. For example, in the 1987 case of Kingsley Dixon, the Commissioner into Aboriginal Deaths in Custody specifically commented on how useful colour autopsy photographs were, particularly with respect to bruising. Indeed, as Professor Derrick Pounder has said, ‘We would never take a black and white photograph instead of a colour photograph’. [16]

In the Keogh trial in 1995, however, the only photographic evidence before the court of bruises to the legs consisted of two black and white photographs. The most important of these was the one said to show a bruise on the inside of the left leg – the supposed thumb mark of the grip. In court, the photograph was first shown to Dr Manock for him to confirm that the photograph showed a bruise on the leg. Before the photograph was shown to the jury, he was asked to mark a circle with a red pen around where the bruise was said to be. This meant that the jury only got to see the photograph with the red circle marked on it. When another copy of the photograph (without the red circle) was shown later to an expert in forensic photography, he said that it was impossible for him to see any mark in that location which could be said to be a bruise.

Police crime scene examiners were not present at the autopsy as required by the police forensic procedures manual. In fact, if they had been present, then they would have taken sufficient and suitable colour photographs, as the police manual instructs. The DPP has stated since the trial that he did not know of the existence of this manual, and that he had never seen it. [17]

In an affidavit files before the Medical Board in June 2004, Dr Manock stated:

“Colour photographs were taken later on 21 March 1994 by a police crime scene photographer.”

After all of the trials, appeals and petitions, this is the first time that the existence of such photographs has been revealed.

Examination of the head

Dr Manock stated that he peeled back part of the scalp to check for bruising. He said that he returned to further peel back the scalp some 24 hours later and found some further bruising. The obvious thing to watch out for in such a situation is that the bruising (which is really just bleeding under the skin) found at the second stage was not caused by the earlier autopsy procedures. Yet there was no discussion at the trial or in any of the notes of this possibility. This was critical to the understanding of the whole situation. It was said that the two sets of bruises to the head made it less likely that Anna had simply fainted and hit her head as she fell. But if the pathologist had caused at least one of the sets of bruises, then this simple explanation is perfectly plausible.

Inadequate histology

Dr Manock took just two tissue samples of the heart, one of kidney, one of lung, and four of bruising. He did not conduct appropriate testing for the presence of diatoms in Anna’s system. He said that the presence of diatoms in the lungs would have been evidence of drowning, just as he had said years before in the Van Beelen case. As shown, this is not necessarily correct. If Anna had died and then fallen into the water she might still have had diatoms in her lungs. Diatom testing of bone marrow samples may have been able to confirm or exclude drowning.

No specialist examination of heart or brain

Dr Manock did not get specialist opinions with regard to the heart and brain, in spite of the Coroner saying in relation to the Baby Deaths cases that such expert assistance would be absolutely essential in cases of sudden and otherwise unexplained deaths.

Throughout the trial the prosecution repeatedly stated that Anna was a fit and healthy person, but we cannot possibly know if she was unless a proper examination was undertaken at autopsy. Detailed examination of the brain and heart are absolutely essential, even if only to rule out other possible causes of sudden death. Without detailed examination of the brain and heart at least, the autopsy examination is fundamentally incomplete.

Toxicology inadequate

Dr Manock’s autopsy report states that a blood sample was taken for alcohol analysis, which yielded a result of 0.08g per cent, ‘which is about the level achieved in normal social drinking’. It also states that the only sample taken for drug testing was a urine sample. This was tested by a screening method, with negative results. However, just as in the Highfold case, in giving evidence Dr Manock stated that other work had been done but not recorded in his report. Toxicology tests had been done on blood and liver tissue for chloroform and a whole range of drugs, and had given negative results.

There is no specific statement in Dr Manock’s autopsy report, or his evidence, that tests were done to determine if Anna had taken medications that were known to be present at the house that evening. The police took a drug container from the house on 23 March 1994 (five days after her death). The container can be seen in photographs of bookshelves in the study / office taken on the night she died.. The drug was a non-steroid anti-inflammatory drug (NSAID) commonly used to relieve pain and reduce inflammation, swelling, redness and soreness which may occur in different types of arthritis and in muscle and bone injuries. The drug comes with a manufacturer’s warning that the medicine is not to be taken if there is an allergy to it, or if one has taken aspirin or any other NSAID medicine. The warning describes the symptoms of an allergic reaction, which may include asthma, wheezing or shortness of breath, swelling of the face, lips or tongue, which may give difficulty in swallowing or breathing, hives (urticaria), oedema, itching or skin rash, and fainting. Symptoms which may occur include drowsiness, stomach upset, vomiting, nausea, dizziness or light-headedness. Given that there is a specific warning that a known side-effect of this drug is an allergic reaction which could cause swelling of the face, such as can be seen in the photographs of Anna’s body, one would have thought it would be important to undertake appropriate tests to determine if Anna had this drug in her system before determining the cause of death. However, the toxicology samples were not submitted for testing until some three weeks after Dr Manock had completed his autopsy report, and nearly two weeks after Keogh had been arrested. The results were not known until five weeks after that.

Inadequate records

The police running sheets indicate that it was just before the second trial that the police reported to the DPP that Dr Manock did not have his original notes. The DPP is said (in the running sheet) to have responded that the matter should be left with him (the DPP) to deal with. But as Professor Cordner stated in his report after the trial, Dr Manock failed to make or keep sufficient written records of his observations and findings. As indicated earlier in the discussion of the Splatt Royal Commission, proper procedures would require observations to be recorded in writing and signed by the person making them. They should then be checked by another qualified person and initialled by them also.

Dr Manock also failed to establish or maintain proper photographic records of Anna’s condition before the autopsy or of the procedures that he said he undertook. As Professor Cordner has said, ‘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’. [18]

Peer review inadequate

Dr Ross James was another forensic pathologist at the Adelaide Forensic Science Centre at the time. He gave evidence that he was asked by the DPP, before the trials, to check the work of Dr Manock in this case. The explanation given as to why it was necessary to have Dr James check the work of his then director was that Dr Manock was away on leave. Dr James was provided with Dr Manock’s autopsy report, a number of black and white autopsy photographs, a toxicology report and ten microscope slides, four of which were of samples from areas of bruising on Anna’s body.

Dr James indicated to the court that he had checked the work. But this could only have been in a limited way. He could not have, for example, confirmed the observations of the body or the procedures that had been made. No one, not even Dr James, had checked any of Dr Manock’s observations throughout the investigation stage of this case. They could not. Anna’s body had been cremated before anyone else could examine it and, given the lack of photographic records, it was impossible for anyone later to see what was said to have been seen by Dr Manock. Indeed, in so far as the cause of death was, according to Dr Manock, fresh water drowning, Dr James said he had to take the appearance of the lungs as described 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. He said that he had to rely on Dr Manock’s body chart for his information about the bruises.

A grip inferred

Dr James gave evidence concerning the bruise on the inside of the left leg – the supposed ‘thumb’ mark of the grip – the one Dr Manock circled in red on the photograph. While Dr James said he saw photographs of three bruises on the outer side of the left leg, he said that he did not see a photograph of the bruise on the inner side. He agreed that he had only a small portion of the tissue to look at but stated that if the small section was representative of the bruise as a whole, then it could be inferred that it could be used as assessment of that bruise. In relation to this alleged bruise, Dr James said, ‘If it was present as he [Dr Manock] suggests then a grip mark is an obvious explanation’.

In other words, Dr James was unable to confirm the presence of that bruise. He merely stated that if it were present, then certain inferences might be drawn. Kevin Borick, QC, as counsel for Keogh, has stated in his second petition to the governor, that Dr James, however, was not legally entitled to make these inferences. Mr Borick argued that an expression of opinion can be based on a fact, or a combination of facts, but never on an assumption that is based on an earlier assumption.

In June 2004, however, Dr James stated in his affidavit to the Medical Board that he and Dr Manock differed about the bruise on the inside left ankle. He said:

“When I looked at the histological section purported to have been taken from this area, I would not have described what I saw in the sample as a bruise.”

Professor Cordner makes the observation that it is hard to assert that Dr Manock’s opinions are inconsistent with the evidence because he has preserved so little of that evidence. He says, ‘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’. [19]

Keogh convicted

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

1. The information for Chapters 11 and 12 is taken from the trial transcripts and evidence, witness statements, police and coronial running sheets and the law reports which resulted from the appeals in this case.

2. These matters are detailed in the Coronial Office running sheet.

3.Today Tonight, television program, Channel 7 (Adelaide), 30 July 2002.

4. Committal proceedings, transcript, pp. 25–26.

5. SM Cordner, ‘Further opinion in the case of Anna Cheney (deceased)’, to Sykes Bidstrup, Adelaide, 16 December 1996.

6. Trial transcript, p. 1019.