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A state of Injustice - Dr Robert N Moles
Chapter Twelve - No bruise, no grip, no crime

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 2: Further Investigations and the appeals

Henry Keogh has always maintained that he is innocent of the crime for which he was convicted. Several attempts have been made by his lawyers to establish this through the appeal process of the courts, but without success. In the meantime, a large amount of research has taken place into the events on the night of Anna Cheney’s death, the police investigation, the pathology (particularly Dr Manock’s expertise, his diagnosis of drowning, and his grip theory), and the conduct of the trials.

This second chapter on the Keogh case looks in more detail at the scenario proposed by Dr Manock for the drowning of Anna, and at some of the work which has been done since the trial to test the theory, including a re-enactment. It then discusses the problems Keogh has had in appealing his conviction.

The pathology evidence

Professor Stephen Cordner was called by the defence to give evidence at Keogh’s trials. He was extremely critical of Dr Manock’s evidence. During the second trial, to elicit the professor’s response, Mr David, QC, read out to him the questions which had been put to Dr Manock at the first trial and the answers which he gave to them. The first extract that was read to the professor covered two pages of transcript and included a series of eight questions and answers. The next extract (which was read to him shortly after) covered three pages and a series of 27 questions and answers. Professor Cordner has since provided a report containing further and more detailed comments on Dr Manock’s evidence. [1]

Wrong opinions

Professor Cordner concludes his analysis of Dr Manock’s work in this case by stating:

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

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

In spite of Professor Cordner’s concern about the difficulty of refuting Dr Manock’s opinions, it has been possible to test some aspects of the scenario.

Histology shows no bruise

Microscopical examination of histology sections will determine if what looks like a bruise really is a bruise.

The tissue remaining from sample said to have been removed from the alleged bruise on the inside of the left leg – the supposed thumb mark of the grip – has been examined by pathologist Dr Tony Thomas as an independent expert. He was the expert called by the Coroner in the Baby Deaths inquest. He has stated that the tissue sample showed no sign of a bruise at all. [2]

If in fact there was no thumb bruise then, with only the three bruises on the left side of the leg, there was no basis for the suggestion that they were part of a grip mark. Without the grip mark, ‘the one positive indication of murder’ (according to Mr Rofe [3]), the prosecution case is seriously weakened.

However, when we look in more detail at the three bruises on the outside of the left leg, further questions arise. According to an affidavit of Dr Tony Thomas, Dr Manock said that as sample of tissue was taken from only one of the three marks on the outside of this leg. These are the marks which Dr Manock attributed to finger marks. Dr Thomas says that his histological examination of the one sample taken from those three bruises does show some leakage of blood into the tissues. However, he says there is no cellular reaction present related to this leaked blood. Therefore, he concludes that it may be inferred that the blood could have got there at any time within the twenty-four hours prior to the death or in the immediate post-mortem period. [4]

Dr Thomas then goes on to state in his affidavit that, in his opinion, the leakage of blood runs more along the lines between the fatty tissue. Therefore, this type of leakage may have been artifactual; that is, it may have been caused by the manner of taking the tissue sample at the time of the autopsy. Dr Thomas also points out that because there are so few red blood cells in the tissues, they would not have been able to be seen through the skin. Therefore, they would not have constituted a ‘bruise’ as a bruise had been defined by Dr Manock in his evidence:

“Bruising is bleeding which has occurred in tissues, and any pressure or blow or tearing of the tissues can cause small blood vessels to be torn and to leak, and that’s what we call a bruise when we can view this blood through the skin.” [5]

Dr James opinion on this matter was in accordance with Dr Manock’s:

“Bruising is simply bleeding beneath the skin as a result of crushing of  the tissues by some external factor such that it can be seen from outside the body.” [6]

Dr Manock said that he had not sampled all of the bruises on the left leg because, to him, they all looked the same. Therefore, Dr Thomas concludes in his affidavit that:

“…it follows that there is no scientific evidence available to me to conclude that any of the marks seen by Dr Manock on the left leg represent bruises.”

A re-enactment

Dr Manock proposed his scenario as follows:

“If the person is sitting at the plug end of the bath and an arm is put underneath both legs to grip the left calf, either by simply lifting or lifting the leg and pushing the head, then the head could slide under the water. At this time, the edge of the bath could cause bruising to the back of the neck or the muscles attached to the base of the skull. If the movement is then continued and the legs are folded over entirely, this would have the effect of trapping the arms by the sides of the bath and the top of the head would then be against the top of the bath and that would give a flat surface that could cause the bruising to the top of the head. The left leg has been gripped. However, the right leg is merely encompassed by the arc of the arm and can move. If it thrashes around, it will bang itself against the edge of the bath and may produce bruising along the border.” [8]

On this theory, Keogh put an arm underneath both legs to grip Anna’s left calf. The left leg is the leg nearest the wall and is just beneath the taps on the wall, halfway along the bath. Then Anna’s head slides under the water either by simply lifting the left leg, or by lifting the left leg with Keogh using his other arm to push Anna’s head under the water. Her legs are then folded over entirely, supposedly trapping her arms by the sides of the bath. Her left leg is gripped, but the right leg (which would have been closest to Keogh) is free to thrash around causing bruising to the border (being the front) of the right leg.

In putting this scenario Dr Manock did not specify which hand he thought it was that had been used to grab Anna’s left leg.

Professor Maciej Henneberg, the professor of anatomy at the University of Adelaide, has stated that this scenario propounded by Dr Manock is inconsistent with a proper understanding of the science of anatomy and biomechanics. Contrary to the view expressed by Dr Manock that such a scenario would be ‘relatively easy’, Professor Henneberg takes the view that it would be entirely implausible. The power of the flexor and extensor muscles in a woman’s leg would always be greater than the power which a man could exert through a fingertip grip of a woman’s calf. Dr Manock claimed that he had been involved in a number of drowning cases. Even so, it would not make him an expert on drowning by murder or biomechanics.

In a television interview some time after the trial, the DPP said he did not recall that there were any intentions to undertake a re-enactment of the scenario. [9] However, the police running sheets show that such a re-enactment was planned. They also note that the DPP instructed the police not to go ahead with it. This was perhaps unfortunate, as the re-enactment subsequently undertaken by Mr Borick QC has provided some important insights regarding the shortcomings of the prosecution theory.

Kevin Borick, QC has put the proposed scenario to a practical test. Using the actual bath at Anna’s former home and an actress of similar proportions to Anna and an investigator of similar size to Keogh, and, a re-enactment was filmed. All of those involved were convinced afterwards that the scenario which Dr Manock had proposed did not make sense.

It could be seen that it would not be at all difficult for ‘the victim’ to use the free right leg to kick any possible assailant, and to kick him in the face. Given that the taps and the waterspout were located on the wall, halfway along the bath, such a victim could easily take hold of those to help her keep her head above the water. Also, her arms would clearly have been injured from hitting against the taps if there had been any real struggle. When she lay down with her head on the bottom of the bath there was only be two or three centimetres or so of water over her nose and mouth, and it would be quite impossible for someone to hold her head under with one hand. If there had been a fight, it would have been inevitable that the assailant and the victim would both be injured from hitting against the taps and waterspout. At no time was there any possibility that the woman’s arms could be ‘trapped by the sides of the bath’ as Dr Manock said that they would be. It was not possible for the victim to bang the crown of her head against the end of the bath, as Dr Manock said would be done.

Which hand?

In the scenario quoted above from Dr Manock’s evidence, he did not indicate which hand it was he thought had been used to grip Anna’s left leg. However, in the first trial he said that his own left hand fitted the marks, but then immediately said that a right hand had been used.

As part of their analysis of this case, the Channel 7 Today Tonight program produced a series of computer-generated images to help viewers understand the proposed scenario and its limitations. [10] It was effectively a virtual re-enactment to demonstrate the grip theory and to examine the situation using either hand.

The computer images show the position of the alleged bruises on Anna’s left leg – the three bruises which are supposed to be on the outside of the leg and the single bruise on the inside. With a left hand gripping the leg, the thumb is covering the mark on the inside of the left leg and it is possible for three fingers to occupy the other positions, although it is difficult to position the middle finger to properly cover the centre mark.

Further images show the position Keogh’s arm would have had to be in to be under both of Anna’s legs with his left hand gripping her left leg, in accordance with the theory. With the left arm being used like this, it is apparent that it would be impossible for the right arm to have reached Anna’s head to hold it under the water. Keogh would have to have reached across his body with his right arm, crossing over his left arm, to have reached Anna’s head, which would have been to the left of him. 

Images depicting the position that Anna would have been in if she had been sitting at the sloping end of the bath, rather than the tap end as proposed by Dr Manock, show that the theory is impossible in that scenario too. To have done what was alleged, in accordance with the marks and the theory, Keogh’s arms would have to have been coming out of the wall.

Dr Manock’s theory, as eventually given at the second trial, involved the alleged use by Keogh of his right hand on Anna’s left leg and his left arm on her head.

The computer-generated images of a right hand gripping the left leg show that it is impossible for the right thumb to fit the pattern of marks. With a right hand (as opposed to a left hand) the thumb cannot match up with the supposed bruise on the inside of the leg. The only way in which this could be done would be if the leg had been gripped from above with the right hand. It would, of course, be impossible to force the legs up and over in this scenario. It was one that was never proposed by Dr Manock.

In every description of his theory, the action required a hand to be placed beneath the calf of the leg. Whether it was said to have been the left hand or the right hand that was used, the theory is demonstrably impossible.

Keogh’s appeals

he DPP has stated that both he and the defence were aware that, at the time of the first trial, Dr Manock’s credibility and expertise had been subjected to serious challenge in the Baby Deaths inquest in the Adelaide Coroner’s Court between 1993 and 1995. [11] The Coroner completed his Findings in that matter during the time the second Keogh trial was proceeding. His report, as we have seen in Chapter 10, revealed the true extent of Dr Manock’s shortcomings. The Findings, however, were not published until two days after the verdict in the second Keogh trial. The Coroner has stated to Keogh’s solicitor that he deliberately delayed releasing them because he was sensitive to the fact that Dr Manock was a principal prosecution witness in the trial, and he was concerned that publishing the report may have resulted in a mistrial. [12]

One cannot know if this would have been so, but what is known is that the Coroner’s decision meant that the jury in the second Keogh trial had to choose between evidence given by Dr Manock, the principal prosecution witness, and that given by Professors Ansford and Cordner for the defence, unaware of matters which cast severe doubt on the competence and professional integrity of Dr Manock. It can be argued that the holding back of the report was an error of judgment by the Coroner. In the United Kingdom, similar circumstances have been used to overturn convictions on the basis that they constitute miscarriages of justice.

The Court of Criminal Appeal

Keogh appealed his conviction, without success, to the Court of Criminal Appeal, in December 1995. Unusually, the solicitor retained by Keogh lodged a further application to reopen the appeal with the Court of Criminal Appeal in May 1997. This is unusual because normally once an appeal is heard one either goes to the High Court or one accepts the decision. It is not usual procedure to go back to the same court of appeal for another hearing of an appeal in the same case. In Keogh’s case, when he applied to re-open the appeal, an application for special leave to appeal to the High Court had been filed, but the court had not heard the matter.

The further application to the Court of Criminal Appeal was heard by the same judges who had heard the first appeal. The application was to the effect that the trial miscarried by reason of the unavailability at trial of evidence which would establish that no reliance could be placed on the opinions and evidence of Dr Manock. The court determined that as the order of the Court of Criminal Appeal had been perfected (that is, it had been signed and recorded), it was no longer possible to approach that court to reopen the appeal.

The only procedures then left to Keogh’s legal advisers were to proceed with an appeal to the High Court, or to seek a reference under section 369 of the Criminal Law Consolidation Act 1935, of South Australia, which is the petition procedure. The High Court would not be able to hear any new evidence (about the findings of the Coroner concerning Dr Manock, for example) so Keogh’s lawyer decided to approach the Governor with a petition on behalf of Keogh.

The first petition

In December 1996, during the appeal process, Keogh lodged a Petition to the then Governor of South Australia, requesting that the Attorney-General refer the whole case to the Appeal Court to be heard by the court as if it were an appeal against the conviction. As there had already been one appeal, to allow a new appeal there had to be some ‘new evidence’. Keogh claimed that fresh evidence had emerged subsequent to his trial that went to the issue of the competence of Dr Manock, the expert witness who had propounded the ‘deliberate drowning’ theory. The Governor replied by letter in March 1997 stating that, on the advice of his ministers, it would not be appropriate for him to take any action in respect of the petition because Keogh still had an application for leave to appeal to the High Court which had not been pursued. This meant that the only avenue open to Keogh was to proceed with the High Court appeal, even though he knew that the High Court could not consider new evidence concerning Dr Manock’s role in the case.

In October 1997, the application for special leave to appeal was heard by the High Court. The application was refused. This meant that the issues that Keogh had wanted to raise relating to Dr Manock had not been considered in any of the legal proceedings.

Questions asked in parliament

In October 2001, the ABC 4 Corners program investigated a number of the issues which we have discussed in this book. In particular, they discussed the nature of Dr Manock’s qualifications and his evidence in a number of cases. In the State Parliament by the Hon. Nick Xenophon, an independent member of the Legislative Council, to look into the issues raised by the program. [13] The Attorney-General asked the DPP’s office and the Forensic Science Centre to comment. The Attorney-General reported to the parliament that his advice was that there was no need for an inquiry.

A second petition

In August 2002, a further petition on behalf of Keogh was prepared by his lawyers and presented to the Governor of South Australia. This covered the issues raised in the 4 Corners program together with a number of other cases and issues, many of which have been included in this book. On the last working day before Christmas 2002, the Attorney-General, Michael Atkinson, posted a letter to Keogh’s lawyers to inform them that the petition had been rejected. The following day, Mr Borick, QC said on the Channel 7 Today Tonight program that he thought the decision and its timing were ‘cowardly’. He said that if the government and the DPP thought that the people of South Australia had confidence in the justice system, then (if they did) their confidence was seriously mistaken. He said, ‘I think the decision is a reflection on our justice system; it’s a disgrace’. [14]

The Attorney-General subsequently provided two detailed statements to the South Australian Parliament to explain why the second petition was rejected. The first statement was made to the Legislative Council on 20 February 2003, the second was made to the House of Assembly on 1 April 2003. He questioned the credibility of the 4 Corners, and Channel 7 Today Tonight programs. He said he had acted after being contacted by Anna Cheney’s family. [15]

A third petition

A third petition was then lodged with the Governor in September 2003. It claimed that much of the information relied upon by the Attorney-General in his statements to the Parliament was provided to the Attorney-General by the DPP and by the South Australian Forensic Science Centre. Both the DPP and the Forensic Science Centre were the subject of complaints in the second petition, and it was claimed that it was therefore inappropriate for the Attorney-General to seek advice from impugned persons or organisations that would be the subject of the inquiry.

The petition further claimed that much of the information provided to the Parliament of South Australia in the statements by the Attorney-General was in error, listing some 29 topics. It claimed that this indicated that, as a result, the Governor had acted on information that was misleading or unsatisfactory and as a consequence the second petition had not been properly considered.

In November 2003 the Attorney-General referred the second and third petitions to the Solicitor-General for further investigation and consideration. The lawyers for Keogh submitted affidavits in support of the petitions to the Solicitor-General in February 2004. In May 2004, the Premier announced the inquiry which was being undertaken by the Solicitor-General into the Keogh case.

Summary

Keogh’s situation highlights some of the deficiencies of the appeals process.

In his book, The Stuart Affair, Sir Roderic Chamberlain, a former Crown prosecutor and Supreme Court judge in South Australia, wrote: ‘Under the system of justice that prevails in South Australia, no person is ever denied assistance in disproving a charge against him if he, or his legal advisers, takes the trouble to ask for it’. [16]

Keogh might well find this a bit hard to believe.

Endnotes

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

2. ‘Expert Witness’, 4 Corners, television program, ABC TV, 22 October 2001.

3. Trial transcript, second trial, p. 1022.

4. Affadavit of Dr Tony Thomas to the Medical Board of South Australia and to the Solicitor-General of South Australia, paragraphs 144–147.

5. Trial transcript, first trial, p. 457. Examination of Dr Manock by Michael David QC, (emphasis added).

6. Trial transcript, second trial, p. 206. Examination of Dr Ross James by the prosecutor Mr Rofe QC, (emphasis added).

7. Affidavit of Dr Tony Thomas to the Medical Board of South Australia and to the Solicitor-General of South Australia, paragraph 151.

8. Trial transcript, second trial, p.167.

9. Interview by Rohan Wenn, Today Tonight, television program, Channel 7 (Adelaide), recorded 27 June 2002.

10. Today Tonight, television program, Channel 7, (Adelaide), 9 June 2003.

11. See, interview by Rohan Wenn, Today Tonight, ref. 9.12. Affidavit of Michael Sykes, solicitor, dated 7 November 1996.

13. Statement by the Hon. Nick Xenophon to the South Australian Legislative Council, 31 October 2001. 

14. Today Tonight, television program, (Adelaide), 24 December 2002.

15. ‘Atkinson attacks TV show ethics’, The Advertiser, 2 April 2003, p. 2.

16. R Chamberlain, The Stuart Affair, Rigby, Adelaide, 1973, pp. 20–21.

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