Losing Their Grip the Case of Henry Keogh - Introduction

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Introduction

"I said to him ‘… quite apart from the legal aspects of these cases, do you have any opinions about the guilt or innocence of the accused?’

‘Of course I have opinions’ he said, ‘but they’re of no importance. I don’t know what happened. I do know they were wrongly convicted. As a matter of fact’ he went on, ‘it’s precisely because in many cases we cannot know what actually happened that we must ensure that the rules designed to protect the accused are scrupulously observed.’" [1]

In 1995, Henry Keogh was convicted of the murder of his fiancée, Anna-Jane Cheney, by drowning her in the bath, just a few weeks before they were due to be married. Keogh has consistently proclaimed his innocence.

Maybe no one knows what really happened on that dreadful night. We can make an educated guess, just as the jury was invited to do. When we make such a guess, we do so based on the information that we have at the time, combined with our more general views of human nature and society. Such judgments may be better or worse than others. But we can never really know what happened.

Whilst we may never have the comfort of certainty, we must make every effort to be scrupulous and balanced in our investigations and assessments. In matters that fundamentally affect the lives and well-being of others, the standard must be high.

There are some basic rules that we can follow to increase the probability of arriving at a sound conclusion. First and foremost, we should start with an open mind. We should consider all reasonable possibilities. If we seek expert assistance, we should ensure that the expert is suitably qualified and experienced in the field in which the assistance is sought. Finally, we should ensure that those who are called upon to make the final judgment (the jury) are provided with all of the relevant details.

Since Henry Keogh’s trial, further research has given rise to a lot more detail about the circumstances surrounding the death. We believe from this research that we have identified fundamental flaws in this case.

In a criminal trial, the rules of evidence and procedure are complex and appear, to those not familiar with them, to contain unnecessary technicalities. As a result, we often hear of trial procedures being drawn out interminably. That did not happen in Keogh’s case. The most important part of the investigation was completed in just over a week. Keogh had two trials because the first jury was unable to reach a verdict. Each trial took about two weeks. The scientific investigations were limited, and much delayed. The cause of death (as drowning) and the manner of death (as homicide) were determined before many of the scientific results became available.

How do we know that it is a murder in advance of the detailed and scientific examination of the body? How can the examination be completed, without a detailed and scientific examination of the scene? How can that be accomplished without a detailed inquiry into those who were present at the scene? If we start out by trying to find the perpetrator of a murder then we may already have pre-judged the issue. The danger in any investigation is ‘tunnel-vision’; the acceptance of a conclusion in an investigation as the explanation, before there is proper evidence to justify it. Once that point is reached, the tendency is to see what fits with that answer, and nothing else. [2]

In Keogh’s case, the cause of death as drowning was determined long before the pathologist visited the scene. The manner of death, as forced drowning by gripping the left leg, was determined by interpreting marks on the body, long before it was known who had handled the body after death.

A perpetrator was identified without any serious consideration of the death having resulted from an accident or from natural causes. Even to this day, the medical history of the deceased is unknown to Keogh, his legal representatives, the pathologists who investigated the death or the independent experts referred to in this book. Yet, by 2005, Keogh had completed eleven years of a sentence of a minimum 25 years, for murder.

Keogh is seen by many to be undeserving of their sympathy or interest. After all, they say he has been through the criminal justice system and has been found guilty of the worst of crimes. And as we know, our system is one of due process (proper procedures). But if things have not been done in the right way, then can we be confident that the system has arrived at the right answer? Our interest, therefore, is not just about Keogh. It is also about ‘the system’. If there have been fundamental defects in Keogh’s case, then maybe there is more at risk than just his freedom?

The re-investigation of a possible miscarriage of justice in a murder case is not an easy task and sometimes it is not a popular thing to do. By the time it is conducted, there have inevitably been trials, appeals and much public discussion. Every time the issue is raised, many people, especially the family of the deceased, find it all very upsetting. Surely there has to be an end to it all?

We agree. But if the answer that has been arrived at is not the correct answer, then maybe there is another victim - a victim of the justice system.

Those responsible for the justice system should welcome a close examination of the basis upon which their judgments have been made. [3] After all, if their judgments have been sound and properly based, and the standards high, then any inquiry will only increase public confidence in their work and dispel the worries of the doubters.

It may be argued that everything is alright because there is a consensus. But it is also possible that the consensus may be wrong. Our view is that responsibility is an individual thing. We should not rest content by relying upon the view of the majority. Any assessment has to be in accordance with properly formulated standards. If those standards have not been properly adhered to, then we have a responsibility to say so.  

Appealing to the fact that many others have ignored the standard too, merely serves to highlight the extent of the problem, rather than to diminish it. A ‘standard’ is entirely unaffected by the extent to which it has been departed from.

Our objective in conducting our research and writing this book was not to become an advocate for Keogh, or indeed, an advocate for or against the system in South Australia. We have attempted to remain true to our calling as researchers, and to state the rules as we know them to be, and the facts as we understand them to be. Fortified with that knowledge, we are confident that you, the reader, will be able to arrive at your own sound conclusion.

The Overview

This book tells the story of the Henry Keogh case. As such, it is really just one big case-study, with many twists and turns. To help navigate these we provide here a map of our deliberations.

In Part One, we introduce some of the major-players in this drama. From the background of some of the people involved, we move on to what we are told about what happened at the scene of Anna Cheney’s death on the night of Friday, 18 March 1994. The account is provided through summaries of the statements of those involved, as given to the police.

In Part Two, we go through some aspects of the investigation. Because of what they were told about the post mortem examination (autopsy), the investigators really only had one question in their minds at the time of their inquiries -- ‘who did it?’ In that context, Keogh was not only the most obvious suspect (he was there), but almost certainly (as the police told him) the only possible suspect. However, the diagnosis of drowning    was never questioned -- even at the trial. Now it turns out to be one of the most contentious issues in the whole case.

We then deal with the trials. Again, we develop the information from the point of view of the players themselves; we take our narrative from the submissions made to the jury by the prosecutor and the defence counsel, and from the judge’s summing up to the jury. The law allows the media to report on trials as they occur, provided that they provide a fair and accurate account of what is said and done in court. They must avoid comment or judgment on the proceedings. So, we provide an overview of the media coverage, not just of Keogh’s trials, but also of some other relevant events that were occurring at that time. We will demonstrate that the media went beyond what would normally be allowed, and the lawyers involved did not correct it at the time.

In Part Three, we begin to set out a more in-depth analysis of what has happened. History tells us that if you want to get officials to seriously re-examine a possible miscarriage of justice, you must first obtain the interest of the broader public. We start by explaining the issues which were first put before the public through the ABC 4Corner’s Program ‘Expert Witness’ (national) and Channel Seven’s Today Tonight programs (South Australia).

We deal then with the government and official responses to our concerns. The attack upon the researchers, lawyers, the ABC and Channel 7 was, perhaps, predictable. However, the attack upon the integrity of Dr Thomas, the pathologist who had been used by the State as their own independent expert in many other cases, was quite unexpected.

In Part Four, we set out the material that was contained in the affidavits obtained from independent experts.

We explain the procedures that have been pursued to try to get the matter properly re-examined. This includes two appeals to the Court of Criminal Appeal in South Australia, and an application (unsuccessful) for leave to appeal to the High Court of Australia. There have been three Petitions to the Governor. These have been followed by an Inquiry into the Second and Third Petitions by the Solicitor-General and a hearing by the Medical Board of South Australia.

To help evaluate and understand the implications of these procedures we have included some of the important (and new) evidence which was given to the Medical Board, some discussion of the role of expert witnesses and material on the nature and frequency of ‘sudden adult deaths’.

Finally, we explain what the law requires for a case to be considered as a miscarriage of justice – and how such cases should be handled. This leads to a discussion of aspects of systemic problems with prosecutions in South Australia.

We have not yet heard about the conclusions of the Attorney-General. Proceedings are under way for a judicial review of the decisions of the Medical Board. So, in a sense, the final chapter has still to be completed. For the time being, we have left the final word to Henry Keogh’s daughter, Alexis.

[1] G Hawkins, Beyond Reasonable Doubt, Australian Broadcasting Commission, Sydney, 1977, p. 7, Gordon Hawkins, in discussion with Peter Brett, Professor of Jurisprudence, University of Melbourne.

[2] Our use of ‘tunnel vision’ is taken from FPT Heads Of Prosecutions Committee Report Of The Working Group On The Prevention Of Miscarriages Of Justice, Canada September 2004. Available at: http://canada.justice.gc.ca/en/dept/pub/hop/p0.html

[3] I have in mind here Convicting the Innocent, a paper delivered in Darwin by Bruce MacFarlane QC, Minister for Justice, Manitoba. Whilst being a Minister for Justice, he has at the same time studied the bases on which wrongful convictions have been arrived at in many jurisdictions, including his own.

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