Losing Their Grip - the case of Henry Keogh

Author: Dr Robert N Moles

Go to: Networked Knowledge - the Henry Keogh homepage
Go to: A state of Injustice: table of contents

Losing Their Grip - table of contents

Part Three - Chapter Six - One-day cricket, or a test match?

In 1998, Valerie Armfield, a retired Adelaide solicitor, began investigating the circumstances surrounding the death of Anna Cheney. Her reading of the transcripts of the evidence and all other materials contained in the Supreme Court file R v HV Keogh No. 356/1994 convinced her that Keogh had not received a fair trial. In October of that year she advised in some detail the then Attorney-General, Mr Trevor Griffin, of her concerns. Many of these related to discrepancies with the pathology and the scenario as proposed by Dr Manock. [1]

She later wrote again to the Attorney-General indicating that, with help from Mr Robert Sheehan, she had researched the legislation applying to cremations in South Australia, particularly as it related to the role of the Coroner. She said that this work led her to conclude that there were some very serious concerns with what had happened with respect to Anna’s body. She said that Keogh had authorized her to submit these concerns to the Attorney-General. [2]

Mr Griffin replied in May 1999. He said that there were no problems with the role of the Coroner in this matter. He admitted that Dr Manock had been the subject of criticism at other inquests, but added: “These inquests, however, bore no relevance to the evidence in the Keogh trial and the criticisms were specifically directed at pediatric issues.” He went on: “It cannot be ignored that all of the evidence at trial was scrutinized by the jury and subsequently by the Court of Criminal Appeal. Mr Keogh also had most experienced and competent counsel in Mr David QC (as he was then). The conviction of murder remains.” [3]

In March 2000, the then Premier (Mr John Olsen) responded to her requests to him, noting “… I must accept that due legal process has been followed and that the conviction remains. Furthermore, legal advice to the Attorney-General is that the cremation of Anna Jane Cheney was lawful.” [4]

Undeterred, research into the case continued, particularly through the efforts of Robert Sheehan. Whilst these efforts on behalf of Keogh did get some limited publicity in the press, what was more obvious was something somewhat novel. A large semi-trailer truck, owned by transport operator (and husband of Valerie Armfield) John Lewis, appeared at various sites around Adelaide and other parts of South Australia, bearing the signage “Free Keogh now”.

The first real public disclosure of disquiet about the Keogh case did not appear in the media until October 2001, when the ABC broadcast the 4Corners program Expert Witness. Sally Neighbour opened the program by referring to the Baby Deaths Inquiry:

“In 1993, a nine-month-old boy was admitted to Adelaide Children's Hospital. He was dead on arrival with horrific injuries from child abuse.”

She went on to say that:

“Against all the evidence, the pathologist who did the post-mortem found the baby had died of bronchopneumonia and that his fractured spine was a result of attempts to revive him. It was a major mistake.”

She added:

“A Coroner would find the same mistake was made by the same pathologist not once but three times in three separate cases, all of them severely battered babies whose deaths were wrongly put down to pneumonia.”

That pathologist was Dr Colin Manock. The program disclosed that whilst Dr Manock was admitted to the Royal College of Pathologists of Australasia in 1971, he had been exempted from the normal five years of training and two written exams. Dr David Weedon, on behalf of the College, said that Dr Manock would have been interviewed for about 20 minutes and he would have been asked, ‘some questions about pathology’.

The program pointed out that in his evidence during the course of legal proceedings in the mid 1970s, Dr Manock’s boss had said:

“There are people who would claim that Dr Manock is not competent to do some of the work.”

Kevin Borick QC stated in the program:

“That one man could've made so many mistakes and for the people involved in our legal system who knew about it -- 'cause there have been newspaper articles about it, there have been the judicial criticisms. The Coroner knew about it. The police knew about it. Everybody knew about it.”

The program said that through it all, Dr Manock continued to appear for the Crown, described as an ‘eminent expert witness’, in case after case. When Sally Neighbour asked the DPP whether he had any misgivings about putting him up as an eminent witness, Mr Rofe QC replied:

“No, he's a man of 33 years experience, 9,000 or 10,000 post-mortems. And, you know, he got one wrong, certainly.”

Having reviewed the cases of Frits Van Beelen and Emily Perry, Sally Neighbour went on to say that in 1993, Dr Manock would make a mistake that was finally too serious to ignore (referring to the Baby Deaths Inquiry).

The program said that Dr Weedon was asked about Dr Manock’s continuing to be a Fellow of the Royal College of Pathology despite the concerns over the earlier cases. He said:

“Look, the College does not have the ability to stop someone practising. It's -- the powers of the College are misunderstood by the public. The regulation of practice in Australia is the province of the medical boards.”

He went on to say that it would have been very difficult for the College to withdraw a person’s Fellowship without an adverse finding by a medical board. When Sally Neighbour said that there had been many adverse findings by ‘Courts, Coroners, Royal Commissions, is that not enough?’ Dr Weedon replied, ‘Oh, I'm unaware of those’.

The program then pointed out that Dr Manock helped the police to secure one last major conviction; that of Henry Keogh:

“It was an entirely circumstantial case. Dr Manock was the key witness for the Crown. His track record has sown seeds of doubt about the safety of the verdict and Keogh's sentence of a minimum 25 years in jail.”

Professor Stephen Cordner, the Professor of Pathology at Monash University and Head of the Victorian Institute of Forensic Medicine, pointed out that he took the view that some of the mistakes made by Dr Manock in the Keogh case were:

“… outside mainstream forensic pathology and I don't think -- I can't think of any other forensic pathologists in Australia that would've said the same thing.”

Kevin Borick QC was moved to say:

“I think they were quite wrong to put him up as an -- as an expert when they must've known -- certainly towards the end after the Coroner's inquiry into the three baby deaths -- they must've known that and should not have put him forward as an eminent witness.”

When Sally Neighbour put it to the DPP (in relation to the Baby Deaths Inquiry):

“Well, we've just interviewed a pathologist who agrees that his [Dr Manock’s] work in that case was incompetent. I mean, it was absolutely hopeless.”

Mr Rofe replied:

“Yes, I mean, he was severely criticised by the Coroner. I accept that.”

Professor Cordner said that Dr Manock should not have proposed the drowning scenario in the Keogh case, because it was in his view, ‘almost speculative’, and that, ‘it's not the business of forensic pathologists to be indulging in speculation.’

Professor Gale Spring, an expert in forensic photography, described the photographic evidence in the Keogh case as ‘amazingly dangerous’. He went on to say:

“I think these images are quite appalling in the way that they try to portray a very small part of the overall picture.”

When asked if he could see a hand grip when he looked at the black and white photographs, he said:

“No. No. I've had that pointed out in the past at the areas that were supposedly thumbprints or whatnot; and I can't possibly see that. I see a number of areas that are darker in this black and white print; again, we have no colour, I'm afraid, but some areas of shading. There are some areas that I can see; but as far as a particular outline or an impression of a thumb or fingers or grip, I don't believe - I don't believe that that - I don't believe that that can be seen.”

As the program pointed out:

“With only the black and white photos shown to the jury to go on, Professor Spring says the marks might not even be bruises at all.”

Professor Spring said:

“To be quite honest, there's no way to actually prove that that isn't just something on the surface of the skin. Is it a red rash, for example? Or is it - does it have a classic purple look of a bruise? But there's no real way to prove that unless the medical evidence actually supports that through histology. In particular with an autopsy, undoubtedly histology could be done.”

It was then revealed that the scientific examination by Associate Professor Tony Thomas of the supposed thumb mark disclosed, ‘no evidence of bruising whatsoever’. The DPP, Paul Rofe QC, responded with a view that was to be repeated many times over the next few years: 

“These aren't new allegations. I mean, these were raised years ago. And they've been raised by numerous people.”

When Sally Neighbour said that the interpretation of the pathology was new, Mr Rofe said that, ‘it may be, but as I said, I haven't seen that. That hasn't been brought to my attention at all.’ When asked if he would consider looking at it again he said, ‘Oh, if someone brought it to my attention, I'd look at it, yes.’

He then added that he’d be prepared to look at anything new, with any case. Perhaps it was Chris Patterson, as Keogh’s solicitor, who put his finger on the problem when he said:

“It seems to me that with the number of cases that have now become apparent, it creates a terribly difficult situation for the – ‘establishment’, if I can use that word, in general because the question of – verdicts, ..the question of investigations, are all likely to be aired and it can cause an enormous ripple and then a wave right through the establishment in South Australia as to how this could possibly happen without somebody questioning it.”

The then Attorney-General, Trevor Griffin, finished off on what appeared to be a reassuring note:

“… but what I do want to - to assert is that I've got an open mind on all of these matters. If the proper processes are followed, if the evidence which is provided, raises a significant doubt about the safety of a verdict, of course it will be looked at. And everyone who makes applications to me as Attorney-General can be assured that they will be properly looked at.”

The program then finished with a couple of points that are worth emphasising. Sally Neighbour pointed out that:

“Dr Manock would not be interviewed and would not discuss the details of any case. So the bewildering questions about how he worked and how he reached his conclusions remain unanswered. What is clear is that there's much more in question than one man's competence. The much bigger question is how an entire system has let so many doubts go unresolved in so many cases for so many years.”

Kevin Borick QC added:

“I think you have to lay the blame directly with the legal profession and with the judiciary. It was our responsibility to make sure something like his didn't happen, and I include myself in the same criticism. It did happen; and now we have to put it right.”

The program created a minor flurry of activity on the topic at Parliament House, particularly in the Upper House (Legislative Chamber). On 31 October 2001, Sandra Kank (Democrat) raised with the Minister for Health the matter of Dr Manock and his performance and the failure of the Medical Board to do something about it.

On 4 December 2001 Nick Xenophon, an Independent member of the Legislative Council in South Australia, brought the following motion before the Parliament:

“1. That this Council expresses its deep concern over the material presented and allegations contained in the ABC's Four Corners report entitled Expert Witness broadcast on 22 October 2001, involving Dr Colin Manock, forensic pathologist, and the evidence he gave from 1968-1995 in numerous criminal law cases;

2. Further, this Council calls on the Attorney-General to request an inquiry by independent senior counsel, or a retired Supreme Court judge, to report whether there are matters of substance raised by the Four Corners report that warrant further formal investigation; and

3. That the Attorney-General subsequently report, in an appropriate manner, to this Council on the allegations made in the Four Corners report and their impact on the administration of justice in this State.” [5]

The Attorney-General (Trevor Griffin, Liberal) addressed the motion on 14 November. He said that he did not intend to establish an inquiry into the matters raised because the program did not accurately represent the facts. He said that he had looked at some material that had come from Dr Ross James, the then Chief Forensic Pathologist [and prosecution witness at the trial], which stated:

“With regard to the Cheney case the program was mischievous in the sense that there was no material presented which had not already been available to the defence experts before the trial took place.”

This is a comment worth keeping in mind when we discuss the hearing in 2004 before the Medical Board. The Attorney-general went on to say that when the [first] petition was received from Keogh by the Governor, it was referred to him and he referred the matter to the then Solicitor-General. He said that the Solicitor-General concluded, and his recommendation was, that the Governor be advised that it is not appropriate to take any action in respect of the petition. He reported that he had referred the matter of the program to the DPP (Paul Rofe QC) who was critical of the balance and honesty of the program. Mr Rofe had confirmed that Dr James and Dr Kobus (the Director of the Forensic Science Centre) had declined to participate in the program on the advice of their department, advice with which he concurred.

On 28 November, Trevor Crothers (Labor) spoke and was quite critical of Dr Manock and particularly of his theory in the Keogh case. He was followed by Terry Roberts. He said that the [Labor] opposition had:

“some sympathy with the government's position that, if any or all of those accusations were found to have merit, the justice system that we have would be failing, particularly those infants and those who have possibly been wrongly charged.”

On 1 November 2001, Frances Bedford MP (Labor) convened a meeting at Parliament House, Adelaide. This brought together for the first time lawyers, researchers, consultants and other interested persons. Several media representatives also attended.

Angus Redford (Liberal) spoke on 4 December in favour of the Xenophon motion. He was critical of Forensic Science in South Australia generally.

On 16 December 2001, the Sunday Mail published a series of articles on forensic investigations in criminal cases. The lead article, one of several on the Keogh case, included images from a re-enactment of the drowning scenario. This caused considerable public offence; many subscriptions were cancelled and editorial changes were made. The paper apologized the following week. The Press Council subsequently condemned the publication of what it viewed as ‘a serious lapse of editorial judgment’. The articles also became the subject of court action.

In 2002, the Channel 7 Today Tonight program in Adelaide began a series of investigative reports on Dr Manock and the Keogh case and these have continued to the present day. The first of the programs was on 30 July 2002. It announced that they were to reveal ‘startling new evidence’ in the Keogh case; ‘evidence that had never been tested in court’. They said that they were also going to report on the breakdown in legal procedures over the past 30 years that had lawyers and politicians calling for a Royal Commission into the justice system. The reporter, Rohan Wenn, said:

“If the jury had known Dr Manock’s evidence had been so heavily criticised in those cases would they have ever convicted Henry Keogh? Eventually Keogh got 25 years. Then two days later the Coroner released his Findings into the battered babies, but thanks to Manock’s incompetence, no one has ever been charged for the infant deaths. In his defence, Manock claimed that he was not an expert in infant pathology.”

The program continued:

Bob Moles: So why would the Coroner appoint Dr Manock to do the autopsy of Anna Cheney when he previously had extensive evidence over the previous 12 months that Dr Manock wasn’t doing his job properly?

Rohan Wenn: During the Keogh trial, our State Director of Public Prosecutions, Paul Rofe, relied heavily on Manock as an expert witness. The fact that Manock’s reputation was in tatters was never raised by anyone.

Paul Rofe: He was the senior forensic pathologist in this State.

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

Paul Rofe: Yes. He had vast experience.

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

Paul Rofe: No, this is possibly true.

When it was pointed out that the police had failed to secure the scene, Mr Rofe replied:

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.

It was suggested that the body had been tampered with and that the police photos showed that Anna’s hair was combed and makeup had been applied to her face:

Rohan Wenn: Paul Rofe says that he didn’t know about that, but adds, ‘it really doesn’t matter anyway’.

Rohan Wenn: But, it does indicate that somebody has been dealing with the body?

Mr Rofe: That's your interpretation of it.

Rohan Wenn: Well how else does she get made up and then get her hair done?

Mr Rofe: I have got no idea. But it may be someone who just out of respect for a dead person.  

Rohan Wenn: Which is fine, except it does indicate that somebody has been dealing with the body?

Mr Rofe: Well it may have been the Coroner's assistant. I don't know.

Rohan Wenn: Making her up at the scene of the death?

Mr Rofe: Look, I honestly don't know, but it doesn't concern me.

Rohan Wenn said that according to accepted procedures, Dr Manock’s autopsy should have been witnessed by investigating police. But no police were ever present. He asked the DPP, ‘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.

Rohan Wenn then pointed out that there was a further problem in that Dr Manock was the only pathologist to examine the body. He asked Mr Rofe, ‘was it unfortunate that Manock was the only one to see the body?’

Mr Rofe: No, as I said that was the established procedure at the time, in my experience.

Rohan Wenn: But it goes against the Police Forensic Guidelines?

Mr Rofe: Well, I haven't seen those, and I'm not aware of them.

Rohan Wenn: Well here they are (showing a copy on camera). Paul Rofe later called us to say that no one has heard of the Police Forensic Guidelines. But when we offered to send him our copy, he declined.

The Police Forensic Procedures Manual establishes the regulatory framework under which the police operate. The Manual states that the provisions that it contains are the minimum operating standards that are to be adhered to. It covers such matters as securing the scene of a crime, the role and responsibilities of crime scene investigators, procedures for the examination of the crime scene and the preservation of evidence.

It was then pointed out that Anna’s body was released by the Coroner for cremation on the very day her death was declared to be a major crime:

Rohan Wenn: No one had examined the body but Colin Manock, and now, no one else ever would.

The program went on to say that based on a reconstruction by Kevin Borick QC, it would be virtually impossible to drown an adult woman in the manner described by Dr Manock. It said that it was surprising that the only records of bruising were black and white photographs, and that when other pathologists checked the remaining tissue samples they formed the opinion that they weren’t bruises at all:

Kevin Borick: What was said to be a bruise was not a bruise and that destroys the prosecution case.

The program suggested that Anna had suffered some kind of allergic reaction. This was something which had not been explored at the trial, nor considered at the autopsy:

Bob Moles: In court, it was said many, many times that she was a fit and healthy person; but we know that she had over 30 medical consultations in the previous five years.

Paul Rofe: It depends upon who you are I suppose. I don’t go to the doctor very often, but people I know would probably go 36 times in a year. [Emphasis added]

Rohan Wenn: Some of those visits were to an allergy specialist, and pathologists have recently pointed to what could be an injection mark or a bee sting on Anna-Jane’s leg, which could suggest a reaction to some medication, or an insect bite. 

Bob Moles: If she has a pin-prick, or a mark, at that location, it could be a bee sting, it could be an injection mark, it could be all sorts of things, but it should be explained.

Rohan Wenn: It’s a possibility that’s never been raised before.

The program then introduced the public to Susan Keogh, Henry Keogh’s former wife.

Susan Keogh: He’s made lots of mistakes in his life but that makes him human. He’s not a murderer. It’s a huge leap from making silly decisions, silly choices, and moving to murder. I just know he’s not a murderer.

Rohan Wenn: You don’t believe that he was responsible for Anna’s death?

Susan Keogh: No. I’ve never believed that. I’ve taken the children in to visit; they were only eight, eleven and thirteen when it first started. If I’d thought for a moment that he was responsible for her death, there is no way I would have let them have any contact with him.

The program acknowledged the stories of infidelity, and the five insurance policies worth more than $1m that Henry had taken out on Anna, did not look good. As they said, ‘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.

Rohan Wenn: Evidence was also presented that Henry had taken out the policies to keep his insurance agencies alive.

Bob Moles: He had recently taken up a new job with a firm of financial planners and was very concerned that within the next few months, it may not work out and he might have to go out on his own. So therefore, why not put a policy through each of the agencies, which might encourage the life insurance companies to keep his agencies open rather than close them off?

Rohan Wenn: There was also evidence given at the trials, although disputed, that Anna-Jane was well aware that those policies existed.

Bob Moles: There was one question which said, ‘how much do you spend on life insurances?’ She put beside that $36.00 per week, which is, roughly speaking, the cost of the five life insurance policies.

The program pointed out that the new defence counsel did raise Manock’s failures in the second appeal and the Petition to the High Court, but that Paul Rofe had countered by saying that the forensic evidence was not the deciding factor. This was an argument accepted by the appeal court:

Rohan Wenn: By this time the die was cast and whatever the truth is, a system that flouts its own rules and tolerates incompetence must surely leave us with lingering doubts.

Kevin Borick: There must be an independent inquiry, not an inquiry by people who are involved, but an independent inquiry to see if what we’re saying has substance.

The program concluded by saying that the interest in the Keogh case had led to a public campaign to have the matter re-investigated and that Keogh’s lawyers had presented the Governor with a Second Petition on behalf of Keogh. The presenter concluded with these words:

Now, compiling that report, we attempted to meet with Henry Keogh but were refused by the authorities concerned. We also asked to speak with Dr Manock, the Coroner, Keogh’s defence counsel at the trials, and the Cheney family. All declined.

The Second Petition referred to had set out the fact that there had been two trials, two appeals to the Court of Criminal Appeal, a previous Petition to the Governor, and an attempt to appeal to the High Court of Australia. However, as Mr Borick QC said in the Petition, despite all of this, the issue of Dr Manock’s incompetence, and the role it had played in the trial had not been addressed as a substantive issue in any of those proceedings.

The rest of the Second Petition went on to address the concerns that Keogh had in relation to Dr Manock’s qualifications and experience. It was the first time that other cases in which it was claimed that Dr Manock had failed to adhere to the proper standards of a forensic pathologist were formally raised with the Government. [6] It also referred to the many claims that Keogh had to make about inappropriate procedures in his own case. The majority of these issues were to be discussed in subsequent television programs and in further procedures following upon that Second Petition. We take up these issues as they appeared as part of the public debate.

The Today Tonight program on 23 Aug 2002 referred to ‘a catalogue of bizarre findings stretching over 30 years.’ It started with the controversial investigation into the drowning death of Dr George Duncan. He had been a law lecturer at the University of Adelaide. The program also referred to the cases of Frits Van Beelen, David Szach and Emily Perry, just as the ABC 4Corners program had done the previous October: [7]

Rohan Wenn: None of this is news to the current State Government. It is fully aware of the concerns about Manock’s evidence, but still Premier Rann seems obsessed with the costs of a proper inquiry.

Mike Rann: Well, I wouldn’t however think that a Royal Commission would be the way to go, Royal Commissions simply cost money.

Rohan Wenn: The real question now, how long will the people of South Australia keep supporting a system they don’t really believe in?

The following few months were rather quiet as people waited for the South Australian Government’s response to the Second Keogh Petition. Then, by chance, Keogh’s lawyer happened to return to his office just after they had closed for the Christmas break to find that the Attorney-General had posted to him a letter rejecting the Second Petition.

As Kevin Borick said in the Today Tonight program broadcast the following evening (23 December 2002), ‘I think the decision is a reflection on our justice system ...it's a disgrace.’

The respective opinions were neatly captured in the following segment of the program.

Kevin Borick: There are a lot of victims and Henry Keogh is one victim of the system.

Rohan Wenn: Director of Public Prosecutions, Paul Rofe, was the man who prosecuted Henry Keogh in the two murder trials, the first ending in a hung jury.

Paul Rofe: This whole process has been upsetting for the Cheney family, and this is just...

Rohan Wenn: We certainly don't want to upset the Cheney family, but if there are two victims and one of them is in prison, shouldn't we have a look at it?

Paul Rofe: Oh yes, I'm not afraid of media scrutiny, but I think that it's got to be properly based.

The program continued:

Rohan Wenn: Following our program lawyers Kevin Borick, fellow lawyer Chris Patterson and Bob Moles presented a Petition to the Governor, detailing their concerns and asking that the Keogh case be properly reviewed.

But in the sort of seemingly cynical exercise that is fast coming to define this Government, just two days before Christmas, Attorney-General Michael Atkinson has begun notifying the lawyers to say the matter won't be reviewed.

Kevin Borick: To bring the decision out when everybody's on holidays and everything happening is a cowardly decision in my view.

Rohan Wenn: Undeterred, Kevin Borick says that the group won't back down, and won't be intimidated by the Adelaide Establishment.

Kevin Borick: The Government and the DPP and ‘The Advertiser’ seem to think that the public is confident in the justice system; but if they are, it's misplaced.

Rohan Wenn: The top QC finishing off with his own Christmas message for the Attorney-General.

Kevin Borick: I think he thinks he's playing one day cricket, when in fact he's playing a test match. There's a long way to go and this is just the beginning.

Endnotes

[1] Letter: Armfield to Griffin 30 October 1998

[2] Letter: Armfield to Griffin 14 December 1998

[3] Letter: Griffin to Armfield 24 May 1999

[4] Letter: Olsen to Armfield 23 March 2000

[5] ABC TV, 22 October 2001.

[6] Hansard, Legislative Council of South Australia, 2001, page 1709.

[7] We have discussed a number of those cases in Robert N Moles, A state of injustice, Lothian Books, 2004.

[8] We have discussed these cases in A state of injustice.

Top of Page