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Losing Their Grip - the case of Henry Keogh - Dr Robert N Moles
Chapter Seven – ‘There was no miscarriage of justice…’

Losing Their Grip - table of contents

Also by Dr Moles - A state of Injustice - Definition and Rule in Legal Theory

By 2003, the government had changed – Mike Rann’s minority Labor government was in power. The new Attorney-General (Michael Atkinson) was a member of the House of Assembly and could not therefore participate in debates in the Legislative Council. It was therefore necessary for Terry Roberts in the Legislative Council to reply on behalf of the Government to the Xenophon motion of 2001.

Roberts said that:

“The response I have received from the Attorney-General, which he has asked me to convey to the Council, reads as follows:”

The reply said that there was considerable doubt about the reliability of the ABC 4Corners report which it saw as an attempt to, ‘discredit Dr Manock in order to cast doubt on one particular court decision that allegedly relied on his findings.’

It went on to say that there was no serious attempt at balance or context or accuracy, and that the report had ‘verged on dishonesty’ in the way it sensationalised the Keogh trial and Dr Manock's part in it. It said some of those making assertions in the program had an axe to grind but hid it.

The Attorney-General’s reply pointed out that, ‘key South Australian pathologists declined to participate in the program.’ He failed to add that they had stated that because of a direction from the Minister’s office, they were not permitted by the Government to be interviewed.

The Attorney-General continued:

“The report did not say whether Dr Manock had been asked to comment, and no comment from Dr Manock was broadcast. Instead, the report showed a brief, edited clip of Dr Manock speaking to an ABC news reporter in 1991, on unrelated issues.”

This is wrong. Sally Neighbour specifically stated in the program that Dr Manock had been requested to do an interview, but that he had declined.

The Attorney-General said that Keogh's petition in 1996 was based on the assertion that the verdict was unsafe because Dr Manock's findings were unreliable. He added that the Governor had dismissed the Petition on advice that the evidence referred to in the Petition could not be described as ‘fresh evidence’ not previously considered by the court.

In fact, the reply dated 3 March 1997 stated that it would not be appropriate 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. The letter made no mention of fresh evidence.

The Attorney-General went on to say:

“The Coroner, when inquiring into Dr Manock's findings in the three infant deaths, did not find Dr Manock incompetent to conduct adult autopsies.”

That was not a question that the Coroner had to consider. Dr Manock’s work in the cases before him involved baby deaths. However, the Coroner had said that Dr Manock had seen things which could not have been seen; that his replies to certain questions had been spurious; that Dr Manock had not weighed organs or taken temperatures which were ‘time-honoured’ procedures; that Dr Manock had not examined the hearts or brains properly, nor had he sent them to appropriate experts for examination as he should have done. None of that arose from any need to have specialist paediatric knowledge. They were simply the most basic procedures to be undertaken in any autopsy dealing with a suspicious and unexplained death. Indeed, the independent pathologist advising the Coroner (Dr Thomas) was not a paediatric specialist.

The Attorney-General said that the defence in Keogh’s trial had every opportunity to raise the matters in the Baby Deaths Coronial Inquiry in the defence, but chose not to. This is not correct. People were aware that allegations had been raised concerning Dr Manock. But the defence at the trial could have known what the Coroner’s conclusions were because he did not publish his Finding until after Keogh’s trial had concluded.

We now have some understanding of how this situation came about. In 1996, after the failure of the first appeal to the Court of Criminal Appeal, Keogh instructed Michael Sykes, solicitor, to take over his case. Mr Sykes contacted Mr David QC, who was by then a Judge of the District Court of South Australia, and he also contacted the Coroner, Wayne Chivell. He then completed an affidavit in the following terms:

“I asked Judge David if he would make an affidavit deposing to reasons as to why he did not raise in the appeal any issue relating to the Baby Deaths Coronial Findings by the Coroner in relation to Dr Manock. Judge David declined. He informed me that once they were published he had considered them, but could not see how they could assist Keogh. As the Findings only came out after the trial he did not have time to consider them in more than an embryonic level and was without the opportunity for an in-depth analysis prior to the appeal being heard.” [1]

“The Coroner said he was sensitive to the fact that Mr Keogh’s trial was proceeding at the time he was ready to publish his Findings. He knew that Dr Manock was a principal Crown witness. So as to avoid a mistrial he decided, of his own volition, to delay publishing the Findings until the trial had concluded.
Sworn and signed by Mr Michael Sykes.
7 November 1996”

Mr Sykes also had Keogh complete an affidavit, which was in the following terms:

“The question arose whether the defence should raise at trial the issues being reported in the press by the Coroner in relation to Dr Manock’s work in the Baby Deaths cases. Mr David said that it would not be necessary as the expert witnesses he was to call for the defence would be sufficient.

After the trial, I was advised that Mr David was confident in the grounds of appeal which he had filed, and that the Baby Deaths Coronial Findings, handed down after the verdict, were neither here nor there. I was not given a copy of the Findings, but was given to understand that they would not assist my case.
Sworn and signed by Henry Vincent Keogh.
17 December 1996.

Mr Roberts went on with his reading out of the Attorney –General’s statement, telling the Parliament:

“There was no miscarriage of justice in the Keogh case.”

The Attorney-General then stated that much of Dr Manock's evidence had been relied upon by the defence. This is only true in the sense that they had to rely on what he said about his observations because they could not check them as the body had been cremated. The Attorney stated that Dr Manock’s evidence had been supported by photographic evidence. Yet the only photographs that had been produced in court were black and white and none of them identified the body. Surprisingly, he said:

“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.”

How he arrived at this conclusion is unclear. In his summing up to the jury, the prosecutor, Mr Rofe QC, had said that:

“the bruising on the lower left leg, if that is a grip mark, is almost in itself conclusive … if her lower left leg was gripped by someone just before she died, then that must indicate murder’” [2]

Mr Rofe also referred to ‘the one positive indication of murder, namely the grip mark on the bottom left leg.’ [3] He summed up in this way:

“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.” [4]

The Attorney-General was clearly incorrect in minimising the effect of that evidence. Neither he, nor anyone else, would be able to calculate the effect which those remarks would have had on the minds of the jurors.

The Attorney-General then said:

“If there had been a miscarriage of justice, the High Court would have found so on appeal.”

However, the High Court did not hear the appeal. Keogh was refused leave to appeal.

As we have seen, the Attorney-General was correct when he said that:

“At the time of Keogh's appeal to the Court of Criminal Appeal, the Infant Death Coronial Findings were known to his defence team.”

However he was incorrect when he went on to say:

“The choice not to object to the safety of the verdict on these grounds in the appeal can only suggest advice that this argument would not succeed because the verdict did not depend on Dr Manock's evidence.”

Once Dr Manock’s evidence had been put before the jury, it would be inappropriate for an Attorney-General to suggest that a jury would not have been influenced by it. They would have had a legal duty to take it into account. Neither the Attorney-General, nor anybody else, would know what weight the jury attached to it, as it would be unlawful (in the Australian legal system) for anyone to discuss such things with jury members after the case.

The Attorney-General concluded his statement by adding:

“We do not want to set up a publicly-funded platform for campaigns for the release of convicted murderers or rapists. What public good would this serve?”

Quite a lot it would seem, if the work of the Criminal Cases Review Commission in the UK and of the Innocence Projects in the USA, Canada and Australia in reviewing cases of alleged miscarriages of justice is anything to go by. Over the last few years in the UK, for example, the Court of Criminal Appeal has overturned the murder convictions of some 50 people, who had otherwise exhausted all avenues of appeal.

On 17 March 2003, about a month after the Attorney-General’s statement, the Today Tonight presenter, Leigh McClusky, opened the program with these words:

“Hello and welcome to the program. First tonight, is everyone equal in the eyes of the law? Well, you be the judge. Today, a prominent Adelaide barrister, David Quick QC was suspended from practicing for just three months after confessing to a cocaine addiction, dodging police and buying his drugs from prostitutes. Amongst his referees were Supreme and District Court judges, and a ‘who’s-who’ of the legal fraternity. And it begs the question - what if an ordinary worker was facing a similar prospect? Would we receive the same blessings from the bench?

Henry Keogh for one must be very puzzled with his treatment, despite more and more questions arising over his prosecution and his conviction. Because so far, new evidence has been either overlooked or rejected by the Director of Public Prosecutions Paul Rofe, and now by our Attorney-General. Tonight we ask -- have they made a monumental mistake? As Graham Archer reports, the facts cast real doubt on both the murder and the motive.”

Graham Archer then referred to some of the issues, which he described as, ‘Rofe’s rough justice’ in the Keogh matter:

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

Graham Archer: Correct? No.

Associate Professor Tony Thomas, an expert on the subject of sudden death in young people, explained that he would get approximately 10 to 12 cases each year referred to him where he has had to examine the heart in precisely that scenario -- where a young person has died suddenly, and nothing has been found at autopsy. As he said:

“Young people unfortunately do die suddenly and unexpectedly and sometimes, even after very exhaustive examination, you still can’t find the cause.”

The program continued:  

Graham Archer: Then there’s the failure to follow basic procedures at the scene of Anna Jane’s death.

Paul Rofe: I can’t think of any evidence that might have been left that was destroyed.

Graham Archer: Correct? Wrong!

It is accepted that the bath water was emptied without testing; proper photographs were not taken of the body and the rooms, so that years afterwards people were still debating whether the floor in the bathroom was wet or dry, or whether there was enough water in the bath to drown anyone.

The program went on:

Graham Archer: Next the autopsy. Procedures demand that the police crime scene investigator be present.

Paul Rofe: My understanding is that there were people present at the post mortem.

Of course there were people present at the autopsy. However, no crime scene examiner and no other pathologist, was present. No proper photographs of the autopsy have ever been produced and no pathologist other than Dr Manock ever got to see the body.

Then there was the vexed question of the photographs.

Graham Archer: One of the greatest travesties is Dr Manock’s use of black and white photographs to show bruising when colour is crucial and when the procedures specify colour photographs. But were all the photographs clearly provided to the defence?

Paul Rofe: Yes.

Graham Archer: They could look through all of the photographs taken by the police - taken by the Forensic Science Unit - and have open access to them?

Paul Rofe: Yes.

Graham Archer: Right? Wrong yet again.

Ten years after Keogh’s imprisonment, his lawyers are still pressing to be provided with a proper list of photographs and to be granted access to the negatives of them.

The program then raised the question of a re-enactment.

Graham Archer: And what about what the DPP has to say about a re-enactment to test the validity of Manock’s theory on Anna’s so-called drowning?

Paul Rofe: We never had a plan to re-enact anything as I recall.

Graham Archer: Right? Wrong! This police running sheet [shown on camera] notes the idea was discussed - but Rofe rejected it.

Then the question was raised about the importance of Dr Manock’s evidence.

Paul Rofe: I was quite satisfied with his competence. I don’t think his evidence convicted Henry Keogh.

Graham Archer: Wrong! How could Rofe possibly say this when the case rested from the outset on Manock’s shoddy science? This is what he told the jury.

Voice over Mr Rofe: The grip mark on the left leg suggests Keogh murdered his fiancée by deliberately drowning her in the bath.

The issue of the insurances was dealt with as follows:

Graham Archer: As Bob Moles, a former Associate Professor of Law at Adelaide Uni says, the insurance policies were the prosecution’s trump card. Their theory - Henry Keogh secretly took out five joint life policies, forged his fiancée’s signature and then murdered her for the cash.

Bob Moles: Such a crass thing to attempt - that he would have no prospect of concealing the claims under five policies when he told all the companies that he only had the one insurance policy.

Graham Archer: One of the prosecution’s key points was that Keogh kept Anna-Jane in the dark about the existence of the policies.

Paul Rofe: He lied about what he’d told Anna-Jane about them, in the course of his evidence, and that was clearly demonstrated.

Graham Archer: Correct? Well, wrong. And the proof - before her death Anna-Jane applied to Bank SA for a number of small bank loans; the last two being in November ‘93, and again in March ‘94. In the box marked ‘life insurance’, she entered the figure “$36”. Precisely the amount of her half share of the instalments on those five policies.

Bob Moles: Look, if anybody looks at the evidence objectively, you’d have to assume that she did know about the policies.

Graham Archer: To explain away this troublesome fact, Paul Rofe told the jury that this $36 was really a split between Anna-Jane’s Mutual Health and her disability-insurance policies - despite evidence that one had lapsed and Anna had cancelled the other.

Bob Moles: It’s absolutely clear that Anna Cheney knew that the policies had been cancelled and that she did not have any medical insurance - and Rofe knew that.

Then there was the suggestion that somehow Keogh had concealed evidence of two of the policies.

Graham Archer: And then there’s the DPP’s claim that Keogh withheld evidence of the policies’ existence.

Paul Rofe: Oh, they were very important, both what he said about them - certainly he didn’t come clean about them at the beginning - and it only emerged in dribs and drabs.

Graham Archer: Right? Well not really. Just four days after the distress of finding his fiancée dead - Keogh gave her super and three of her policies to the police. Just one week later, having located the remaining two, he passed them to his solicitor who gave them to the police. In less than three weeks the police had been given everything.

Rohan Wenn: The defence argued at the time that he was upset about the death and some of the people he was talking to - he didn’t want to give specific information to - what do you make of that?

Paul Rofe: Well, it was their explanation and it was there to be accepted or rejected by the jury - again, clearly rejected.

Graham Archer: Well, OK. But remember the jury had not been told of the serious questions over the competence of pathologist Dr Manock. They had not been given all of the evidence which cast extreme doubt on any murder ever taking place.

Bob Moles: And if the forensic evidence was flawed or fundamentally mistaken, then the jury might have considered the other evidence differently.

Graham Archer: But if delays in coughing-up evidence troubled the DPP, consider the case of lawyer Scott Aitken, two of whose children were killed when he crashed off the freeway with a can of petrol - and dropping a cigarette when he says he was attempting to avoid hitting a dog. With a witness from Mr Aitken’s own law firm who’d seen a dog in the area, but who had sat on the information for 12 months? 

Paul Rofe: That is so.

Graham Archer: Then it popped up in the last week of the Coronial Inquest?

Paul Rofe: Correct.

Graham Archer: In the light of all that - people were very sceptical about the …

Paul Rofe: I can understand the scepticism, but it was just another factor that was factored in to my opinion and that of the trial prosecutors.

Graham Archer: The year long delay, the Coroner was told, was on legal advice. But standards seem to differ remarkably. In the Aitken case, despite having Aitken’s daughter, a passenger, being prepared to testify against her father, the DPP agreed to accept almost every argument put by the defence without a trial. I mean the rumour was that the deal, the deal was struck over a few beers?

Paul Rofe: It wasn’t a deal - it was the advice of the trial prosecutor that we couldn’t prove the murder charge.

Graham Archer: Aitken’s murder charges were reduced to death by dangerous driving and the judge had no option but to suspend his sentence. Aitken continues to work as a lawyer, now for a major law firm in Sydney.

Paul Rofe: I guess you’ve just got to ask the public to trust whoever’s in the job.

The discussion then moved on to the role of the Attorney-General in rejecting Keogh’s Petition.

Graham Archer: Trust! Now that’s a fragile commodity - particularly when the Attorney-General, Michael Atkinson, briefed by the DPP and the Solicitor-General, puts a report to Parliament lacking credibility in key areas; even playing down Dr Manock’s failings in the Infant Deaths cases. The Attorney-General said that the fact that certain people were not prosecuted in relation to the deaths was not attributable to the impugned findings of Dr Manock. Right? Absolutely wrong! In fact, one person [in one of the baby deaths] confessed to murder, but Dr Manock’s diagnosis of death by natural causes put a stop to everything.

Dr Tony Thomas: That put the police in a very invidious situation whereby they then were prevented from following up any other circumstances arising in the case - and in effect the trail went cold.

Graham Archer: Tony Thomas should know - he produced the final report for the Coroner on the Battered Babies case. But our Attorney-General comes up with this… 

Voice over Attorney General: The Coroner did not find Dr Manock incompetent to conduct adult autopsies.

Graham Archer: Correct? Totally wrong! While the subjects were babies, Manock failed to diagnose injury and infection, common in both infants and adults. No specialised skills were required for that?

Dr Tony Thomas: Not in that particular context - of the interpretation of bronchopneumonia - or even as I said fractured bones, which one would expect a forensic pathologist to deal with in adults as well as in children.

The program then assessed the conclusion of the prosecutor and the Attorney-General.

Graham Archer: It seems that Paul Rofe and the Attorney-General are desperate to stop the first worm getting out of the can.

Voice over Attorney General: There was no miscarriage of justice in the Keogh case. The verdict did not depend on Manock’s pathology report, but on circumstantial evidence.

Graham Archer: Correct? Wrong! Obviously, if the forensic evidence doesn’t support murder, then the circumstantial evidence is irrelevant. But the most questionable statement is this:

Voice over Attorney General: There is not a trace of fresh evidence.

Graham Archer: Wrong! There is a mountain of evidence which could be considered new -- but has never been tested before any court -- and Michael Atkinson should know that.

As we will see in the next chapter, Today Tonight didn’t have to wait long for a response.

Endnotes

[1] At p1019 of the trial transcript.

[2] At p1022 of the trial transcript.

[3] At p1062 of the trial transcript.

[4] There were some three months between the date the Findings were issued and the hearing of the appeal.

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