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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
Chapter Eight – A Grip?
On 1 April 2003, the Attorney-General made another statement in Parliament - this time in the House of Assembly. He said that he was responding to the program broadcast by Today Tonight (Adelaide) on Monday 17 March 2003. The Attorney commenced with an apology to the Cheney family for the hurt that had been done to them. He said that he had met with Anna Cheney's mother and brother the week before last and that Mrs Cheney had asked whether he could do anything to make sure the whole story was told; to make sure, ‘the distorted version of events did not go unchallenged.’ He said he gave Mrs Cheney his commitment that he would do so [1]
He stated that Today Tonight had shown a lack of ‘empathy and compassion’:
“They were prepared to show little respect for the rights of Anna-Jane's family and, instead, were prepared to pander to morbid curiosity by showing forensic photographs of Anna-Jane's lower legs.”
Yet the photographs had been produced in court and had been shown on the ABC 4Corners program. They were very much in the public domain.
Again, the Attorney-General stated that the allegations in the program were not new:
“Indeed, if the allegations were startling, it was not because they were new; rather it was the misleading manner in which the allegations were presented.”
He went on to say that the media (in particular Today Tonight) had suggested that the DPP had a gambling problem. He added that he had spoken to Mr Rofe, and ‘he has made an undertaking not to gamble during work-time.’
The Attorney said that Mr Rofe's handling of the Keogh case was ‘skilled, scrupulously fair and thorough,’ and that he quite properly drew the jury's and the court's attention to the weaknesses in the pathology evidence. The Attorney repeated his view that the Coroner had not criticised Dr Manock’s skills in doing autopsies on adults.
He said that the defence pathologists at the trial had not raised issues about other possible causes of death, including an allergic reaction, which had been raised in the Second Petition. He failed to mention, however, that those pathologists were never given an opportunity to review the whole of the file in this case.
The Attorney went on to say that ‘the petitions did not specify the nature of the underlying medical condition that might have caused Anna-Jane's death.’ Again this was incorrect. The Second Petition referred to ‘oedematous weals and swelling which would indicate the possibility of a severe allergic reaction’; ‘an anaphylactic allergic reaction, which can cause death within three minutes’; ‘an acute allergic reaction’.
The Attorney said that the names had not been given of any specialists who may have thought that Ms Cheney could have died from a condition not associated with drowning. Again, this was incorrect. Professors Ansford, Cordner and Thomas had all stated that Ms Cheney could have become light-headed after standing in a warm bath after taking alcohol, and fainted, or she could have suffered from an epileptic attack. They were all agreed (as was Dr James) that accidental causes of death could not be excluded.
The Attorney said that Dr Manock’s explanation for the discolouration on Annas’ body was ‘hypostasis contact pallor’. Hypostasis is part of the process of lividity, which can explain redness in parts of the body. It occurs when the blood drains to the lower parts after death. Pallor refers to areas of blanching where the body is in contact with a hard surface (such as the floor) so that the blood cannot drain into those parts, and they will remain pale in colour.
However, that could not explain the redness and swelling seen in the face depicted in a photograph taken at the scene. The body was lying flat on the back at the scene - and this would have caused the redness in the face to diminish. Such redness and swelling of the face had been caused around the time of death, and could be consistent with a death from asphyxiation, especially if the body had slumped forwards, as Keogh had claimed.
The Attorney said that, ‘the defence did not challenge this at the trial. I can only assume that Doctors James, Ansford and Cordner agreed with it.’ If they were not asked about it at the trial, then the Attorney can only assume they agreed with it, unless he asked them.
The Attorney said that Professor Thomas had ‘also criticised the proof of bruising and grip marks that, as I said, Today Tonight exploited by showing photographs of Anna-Jane's lower legs.’
The showing of a photograph to make a valid forensic point about an ongoing and serious case of injustice hardly seems to amount to ‘exploitation’. The Attorney then said that the Professor’s views were not new, as he had expressed the same views in the ABC 4Corners program ‘some years ago’. The fact that someone consistently repeats valid propositions after the trial does not make them ‘not new’. They are ‘new’ if they are additional to what was stated at the trial. [2]
The Attorney then went on to make a point that was quite perplexing. He said that Dr James, by then Chief Forensic Pathologist, had examined the bruises and agreed that microscopical examination failed to confirm that the alleged bruises on the inside of the leg was a bruise. This was said to have been the thumb mark of a grip:
“The explanation for the failure to identify bruising on the inner left ankle could be either that the mark was not a bruise or that the tissue removed from that area for histopathology did not contain the bruised area, but sections of the other marks on the front of the legs clearly confirm their nature as bruises.”
If the existence of a bruise is in question, then to point out that the examination of other marks clearly confirmed that they were bruises, is hardly to the point. As it happens, only one of the other marks on the front of the legs was examined microscopically. As we will see shortly, that was arguably not a bruise either. However, the point remains, that Dr Manock’s chief associate over 25 years, and now his successor, stated that microscopical examination failed to identify the thumb mark as a bruise.
The Attorney-General then engaged in a remarkable piece of sophistry:
“Dr James said - if Professor Thomas had a case of manual strangulation and found the expected row of neck bruises on one side of the victim's neck from finger pressure and failed to confirm a bruise on the opposite side of the neck from the thumb, would he therefore exclude manual strangulation as a cause of death?”
And:
“While the opposing thumb bruise will corroborate a grip mark, the opposite is not true.”
The Attorney concluded, ‘there is no reason I should not accept Dr James's expert opinion on this.’ There were, of course, many reasons why such an opinion should have been rejected. The most important of which is that it did not conform to the requirements of expert opinion as we will explain later. Also, Dr James had started his process of reasoning by saying that ‘if’ one has a case of manual strangulation. That means that the knowledge of the case as being one of manual strangulation existed independently of the existence of a thumb mark bruise, and possibly in the absence of any bruising. That can, of course, be done. Damage to the hyoid bone in the neck is a key indicator of such a cause of death. However, that is quite different from this case, which is an inference essentially from the bruising alone.
Both Dr Manock and Dr James had made it clear that it was the ‘pattern’ of bruising which was ‘the sign’ of a grip. Three (finger) bruises on one side of the leg, a single (thumb) bruise on the other side. But if there was no evidence of a thumb bruise -- then we only have three bruises on one side to indicate a grip. The pattern is different. Clearly three bruises would be less compelling than four. In turn, two, or one, would be less compelling than three. The Attorney stated:
“Today Tonight neglected to tell its viewers that Dr Cordner, also a professor and, at the time of the trial, head of the Victorian Institute of Forensic Medicine, said that the bruising was consistent with being gripped with a hand.”
On this occasion, he was correct in what he said. However, the effect of what he said was misleading. He failed to complete the proposition implicit in his reasoning. Being ‘consistent with’ is not the same as being ‘caused by’. The point is that even ‘no bruises’ would have been consistent with the leg being gripped. This is because the leg could be gripped and not leave any bruises. There were various arguments, for example, as to why the little finger of the hand might not leave a mark, or why the alleged thumb bruise, or one of the finger bruises, could be fainter or darker than the others. Exactly the same points could have been made in relation to existence or absence of each of the other marks that were said to have been on the leg.
Here, it was necessary to assume that the marks were grip marks - in order to render meaningless the absence of the thumb grip mark. But if one starts from the correct point, of not knowing what the marks are (or how they were caused), then the presence or absence of one or the other becomes very important to any interpretation of the meaning of any pattern.
The Attorney then went on to make a point that demonstrated his misunderstanding of forensic pathology. He said that:
“Both doctors [Ansford and Cordner] were witnesses for the defence, not the Crown. Both doctors were deemed to be experts in forensic pathology, unlike Professor Thomas, who was a histopathologist.”
Histopathology is the understanding of disease processes through microscopical examination of tissues. As such, it is a fundamental aspect of forensic pathology. Indeed, in giving his qualifications at the beginning of his evidence at the second trial, Dr James was asked:
Mr Rofe: Have you done work as a histopathologist, or in histopathology, or is it all encompassed as a pathologist?
Dr James: I spend five years training as a histopathologist. I worked at two institutions specialising in histopathology, but histopathology is also part of the practice of forensic pathology. [3]
In other words, histopathology is an essential tool of the forensic pathologist. It is correct to say that Professor Thomas is a histopathologist. What that means is that he has been specially qualified in something which is an essential ingredient in the discipline of forensic pathology. In other words, histopathology is an essential tool of the forensic pathologist; being better qualified in that area of pathology means that one would be a better forensic pathologist, not a worse one.
Conversely, a lack of skills in histopathology would be a serious impediment for a forensic pathologist. As Dr Manock’s former boss (Dr Bonnin) had said in relation to Dr Manock:
“We had to make other arrangements for the work, particularly the histopathology which he was unable to do certifying the cause of death because of his lack in histopathology …” [4]
The Attorney went on:
“Professor Thomas was not a forensic pathologist when he appeared on 4Corners.”
That was wrong. He had, in fact, been employed by the Forensic Science Centre in Adelaide as a Visiting Forensic Pathologist. Further, nearly three years prior to the 4Corners program in October 2001 Justice Mullighan in the South Australian Supreme Court, described Dr Thomas as:
“… a specialist forensic pathologist and forensic scientist. It is unnecessary to mention his extensive qualifications, training and experience.” [5]
Dr Thomas was the Chief Examiner in Anatomical Pathology for the Royal College of Pathologists of Australasia. He had undertaken coronial autopsies in the UK and in New Zealand as well as around 1,000 autopsies in South Australia. He was well accepted as a specialist by the Coroner of South Australia
Yet the Attorney continued:
“I am told he had not carried out a post mortem investigation on a homicide case in South Australia.”
Clearly the Attorney should have known about Dr Thomas’s specialist involvement in the Baby Deaths on behalf of the Coroner. The Coroner specifically stated that the deaths should have been regarded as possible homicide or infanticide cases from the outset.
Further, the basic proposition put by the Attorney made no sense. It is the pathologist who determines the cause of death. At the time of allocating autopsy cases to a pathologist, one cannot know whether or not they will turn out to be homicide cases.
The Attorney then said that he was not sure of the expertise of Dr Thomas in forensic pathology. However, it would not have been at all difficult to find out. He could easily have asked Dr Thomas - or obtained the information through the State Forensic Science Centre, that had retained him as a consultant in that area. The Attorney then went on to say:
“I can tell members that in 1998 Professor Thomas was called as an expert witness for a defendant charged with having made a false representation to the police. Magistrate Baldino's sentencing remarks are pertinent, given Professor Thomas's preparedness to question the veracity of the forensic evidence in the Cheney case. Magistrate Baldino says:
“I formed the distinct impression that the Professor's views, opinions and hypothesis were not entirely impartial and independent. In this regard I am compelled to agree with the prosecution submission that Professor Thomas was ‘obviously not an unbiased witness’. As a general principle it should never be overlooked that an expert's role is to assist the court rather than to go into battle for the party which hires his forensic skills. The absence of independence in an expert's evidence renders it unreliable and unsatisfactory.”
However, the Attorney failed to mention that the magistrate’s decision was appealed to the Supreme Court. In that appeal, Justice Mullighan overturned the decision of Magistrate Baldino. In doing so, he evaluated the reasons the magistrate had given for disregarding the evidence of Dr Thomas.
In relation to the first of the reasons, Justice Mullighan said that he was unable to see the point of the observation by the magistrate. In relation to the second of the reasons, he said, ‘there could be no basis for rejecting the evidence of Professor Thomas for that reason.’ In relation to the third of the reasons, Justice Mullighan said, ‘in my view, the evidence of Constable Smith was unsatisfactory and did not discredit the opinion of Professor Thomas about the possible circumstances of the blood stains in any way.’ In relation to the fourth of the reasons, Justice Mullighan said:
“These are very serious findings so far as Professor Thomas is concerned. He is a specialist in his profession and holds senior and important positions at the Flinders Medical Centre and the Forensic Science Centre where he is an honorary senior consultant. He has a long history of working in forensic pathology overseas and in this State. The finding of the learned magistrate reflects poorly upon him. He gave no reasons for his conclusions. It may be seen that his adverse finding was not based upon a matter of credit or his demeanour in the witness box. It may have been based upon a matter of attitude but that is a matter of speculation. Certainly no suggestion of lack of impartiality or independence or bias was put to Professor Thomas during his evidence by the prosecutor or the learned magistrate. There is no hint of any of these matters in his evidence. His observations and opinions appear to have been recounted in an entirely appropriate manner.
In my view the learned magistrate erred in his dismissal of Professor Thomas’s evidence from his consideration.”
The Attorney was apparently unaware that Professor Thomas had been completely vindicated by Justice Mullighan.
The Attorney went on to say that ‘there was no such lack of bias in the Cheney case.’ He pointed out that after the committal proceedings involving Henry Keogh, the DPP asked Dr James ‘to review Dr Manock's views’, which he did. However, there are two serious problems with this. The first is that Dr James had been subordinate to Dr Manock at the Adelaide Forensic Science Centre for some 25 years. As Kevin Borick QC put it in the Second Petition:
“The explanation which has been advanced as to why it was necessary to have Dr James check the work of his Director, was that Dr Manock was overseas for some period of time. This placed Dr James in an invidious position. If Dr Manock’s work needed to have been checked that check should have been carried out by a senior pathologist from outside the South Australian Department of Forensic Pathology.”
The second problem is that it was clear that in many areas it was not possible for Dr James (or anyone else for that matter) to meaningfully ‘check Dr Manock’s work’, because the body had been cremated and because of what Professor Cordner referred to as the ‘paucity of the record’ in relation to the case. Dr James said he had to take the described appearance of the lungs 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. Dr Manock later acknowledged to the medical board that he did not know the medical history.
“Dr James accepted ‘from [his] examination of Dr Manock’s report’ that there were only three areas of bruising to the body – the right lower leg, the left lower leg, and the head.” He said he saw photographs of three bruises on the ‘lateral (outer) side of the left ankle’ He did not see a photograph of the bruise on the medial side. This remained his position even up to the end of the second trial. Given that the photograph was put into evidence at the second trial, it would not have been difficult to have shown it to Dr James for his opinion.
This bruise is the critical bruise, because it is said to represent the thumb of the so-called grip mark. Without this bruise there could be no grip theory -- which was the essential factor in the prosecution case. Dr James, in relation to this alleged bruise said:
“If it was present as he [Dr Manock] suggests then a grip mark is an obvious explanation.” [Emphasis added]
Dr James was unable to confirm the presence of that bruise. He merely states that if it were present, then certain inferences may be drawn. Dr James said that he looked at three slides relating to bruises on the legs: one from the group of three on the outer aspect of the left leg, one from the bruise on the inner aspect of the left leg, and one from one of the seven bruises on the right shin.
He said that he had to rely on Dr Manock’s body chart for this information. Dr James agreed that these slides ‘are only a small portion of each bruise’. This is what he said under cross-examination in the context of a discussion concerning determining the age of bruising:
Mr David: And those slides themselves are only a small portion of each bruise?
Dr James: Yes
Mr David: When you are talking about this [healing] process, if you only have a portion of a bruise, might the [healing] process be taking place in the rest of the bruise that we haven’t got?
Dr James: With regard to that, I think the appearances of the bruise will be representative of the bruise. There is no reason to think why changes will be occurring at one end of it that won’t be occurring in the middle of it or the other end.
Mr David: That’s not a problem, as far as you are concerned?
Dr James: No, I think that’s quite reasonable.
Mr David: You have not seen a situation where the [healing] starts at one end and not at the other?
Dr James: I think if we have a representative section through the middle of the bruise, that can reasonably be used as assessment of that bruise.
Mr David: That is what was done here, is it?
Dr James: Yes.
Dr James agreed he has only a small portion of the alleged thumb bruise to look at. He then states that if it is representative of the bruise as a whole, then certain inferences may be drawn. He then goes on to confirm that that was done here.
As Mr Borick said in the Second Petition, he could have no proper basis for the provision of that confirmation to the court. He had no evidence to suggest that the slide which he looked at was representative of the bruise as a whole. He then makes the further assumption that it was a representative section through the middle of the bruise. If these assumptions are correct then (he says) this slide ‘can reasonably be used as assessment of that bruise’.
Mr Borick went on to say that although Dr James was not challenged at the time by defence counsel, he was not entitled to make either assumption. An expression of opinion can be based on a fact, or a combination of facts, but never on an assumption which is based on an earlier assumption.
In any event, the slide from the medial aspect of the left leg that Dr James says he looked at was not a representative section of a bruise. It was, we know now, not from a bruise at all. We also know now, that Dr Manock and Dr James both knew at the time Dr James was discussing this, that the section did not in fact show bruising.
The Attorney-General then stated that, ‘before the trial, Dr James, at the request of defence counsel, made available the pathology evidence for Drs Cordner and Collins.’ However, this fails to deal with the more general point that no pathologist apart from Dr Manock was able to view the body - and there were no colour photographs from the autopsy. Professors Cordner and Ansford could therefore not have been in any better position than Dr James was.
It is not uncommon, of course, for one pathologist to take the information as given to them by another pathologist at face value and use it as the basis for an opinion. But is this appropriate in a criminal trial?
In an attempt to bolster his confidence in Dr Manock, the Attorney stated the points on which he said that Dr Cordner had agreed with Dr Manock. He said that Dr Cordner had agreed at the trial that Anna's death was suspicious. That is something which nobody has disagreed with. He then said that Dr Cordner had agreed that Dr Manock's theory could be a possibility of how Anna's death was caused. In fact, what Professor Cordner said was:
“Even as a possibility it is flawed. It would be quite inappropriate for Dr Manock to promote such conclusions on his own initiative.”
The Attorney said that Professor Cordner had also agreed that the bruises on the left leg were consistent with a grip mark . As we have shown above, the other witnesses (including Cordner and Ansford) also made it very clear that they were also consistent with accidents or the incidents of everyday living. This view has also been expressed by Dr Byron Collins, one of the leading independent forensic pathologists in Australia.
The Attorney then added that none of the pathologists who gave evidence at Keogh's trial said that the bruising could have occurred after death. The simple answer to this is that they were not asked. If they had been (as Drs Manock and James have now been) they would have answered (as Drs Manock and James have done) that of course bruising can occur after death.
The Attorney added that one could conclude from these events that Dr Manock's views were subjected to scrutiny by three peers, two of whom were engaged on behalf of Keogh, as well as scrutiny in the court. In doing so he failed, yet again, to appreciate the points that had been made about the lack of effective or meaningful peer review. The Attorney then said:
“Not only did Today Tonight attack Paul Rofe and Dr Manock but also the South Australia Police were criticised for not following basic procedures at the scene of Anna-Jane's death.
The criticism relies on procedures outlined in the police crime scene forensic procedures manual, a manual that was formally endorsed by the then Commissioner of Police, David Hunt, in 1996 - almost two years after Anna-Jane's death.”
This is misleading. What the Attorney failed to make clear was that the 1996 version of the procedures remained substantially unchanged from those previously in force for many years. In 1996, the police merely decided to issue a version of the procedures in a single volume, rather than to have them distributed throughout the Police General Orders. The Attorney then proposed that:
“The manual does not, nor has it ever, applied to the State Forensic Science Centre staff.”
This again, is misleading. The pathologist who conducts a Coronial autopsy is engaged by the Coroner for South Australia, who has the statutory responsibility to determine the cause of death. As such, the pathologist is working under the instructions of the Coroner, and not as part of the Forensic Science Centre staff. Clearly it would be inappropriate for the Coroner to engage people who would ignore the provisions of the police forensic procedures manual.
The Attorney then said that:
“The crime scene investigator who attended the scene of Anna-Jane's death did not assess the scene as a crime scene . He took a few photographs for the purpose of the coronial inquest. The death was not assumed to be owing to a criminal act at that time. The information I have been given confirms that the investigator followed the guidelines based on his assessment of the death scene.”
That might have been the information he was given, but what the police forensic procedures manual states is:
“Initially (regardless of the probable category) crime scene investigators must treat every death as a homicide to ensure that no vital evidence is lost.” [6]
The Attorney stated that:
“It seems to me that the initial police response was based on the belief that Anna-Jane's death was accidental. Her death was not treated as suspicious until after the post mortem.”
There were, in fact, many police officers at the scene that night, some of whom were very senior. If they made the judgment at that time about the death not being suspicious, then it was directly contrary to the provisions of their manual. Not only that, a cause and manner of death cannot normally be established until the result of the autopsy is known. The Attorney should have realised that it was the police (as well as the pathologist) who had failed to adhere to the police forensic guidelines.
The Second Petition contained the following information indicating the shortcomings of the police in this respect:
“The Police Forensic Procedures Manual (PFPM) is part of the Police General Orders, and establishes the regulatory framework under which the police operate. The PFPM states that the provisions that it contains are the minimum operating standards which are to be adhered to. In many respects those standards and procedures were ignored in relation to Ms Cheney’s death. The Director of Public Prosecutions has stated that he does not know of the existence of this manual, and that he has never seen it. The DPP would not be in a position to assess the adequacy of police investigations without reference to this manual.”
The Petition then set out the many factors that had been ignored, including the fact that there was no cordon or barrier to the scene and there was no proper examination of the scene.
The Attorney continued:
“There is no evidence that Anna-Jane's body was in any way tidied up. Certainly the photographs do not depict this.”
Those who have studied the photographs are clearly of the view that the face has had makeup reapplied to it. Indeed, the DPP said in a filmed interview as follows:
Rohan Wenn: Anna's face - while she was still at the house - was made up - and her hair was combed, indicating that somebody had dealt with the body. Didn't that concern you?
Mr Rofe: I don't know what you’re talking about.
Rohan Wenn: Well there are photos that were taken by police at the time that show her face unmade and her hair messy - and then later photos show that her face had actually been made up and her hair had been combed, which would indicate that somebody had made her hair up and did her makeup. Were you aware of that?
Mr Rofe: [Looking at the photos] No.
Rohan Wenn: Does that concern you?
Mr Rofe: No.
In July 2004, Graham Archer of Today Tonight interviewed Professor Maciej Henneberg, an anatomist, and a leading authority on facial and facial feature recognition. Mr Archer said in the program that there were changes to Anna's face at the scene of death which were so pronounced that they have removed vital clues to the cause and circumstances of the death. He gave copies of the photographs to Professor Henneberg who had examined them:
Graham Archer: Given the time frame, is that a change that could possibly occur naturally?
Professor Henneberg: I would think it's impossible in such a short period of time for a natural change to occur and for the swelling to simply somehow go away. It had to be removed by an action of a person.
Graham Archer: So, it would require human intervention within that timeframe to change her appearance from this to this?
Professor Henneberg: As an anatomist, I would say yes.
To everyone’s surprise, the Attorney then went on to say that in 1994 it was the policy of the State Forensic Science Centre to take only black and white photographs at an autopsy . If that was true, then it was clearly inappropriate. Every other forensic science centre had by that time been taking colour photographs in their investigations for at least 25 years. Indeed, Dr Manock himself, in giving evidence to the Baby Deaths Inquest on 25 November 1994, said that if at autopsy he saw an ‘interesting lesion’ then he would get a photograph taken of it and ‘currently it would be in colour’. [7] Dr James, on the other hand, in a letter to the DPP in December 2000 in which he referred to this topic wrote: ‘Photographs were taken in black and white which was our usual practice at that time [that is, 1994].
It is the obligation of all investigators to provide the best possible evidence of what has occurred. Clearly colour photographs are superior to black and white photographs. The Police Forensic Procedures state that the crime scene officer should be present at the post mortem and take the various colour photographs. This presupposes, of course, that the police are informed of the timing of the autopsy so that they can be present.
The Attorney expanded upon this extraordinary state of affairs in this way:
“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.”
This is to confuse photographs for evidential purposes with those used as part of some diagnostic technique. As Professor Derrick Pounder, Professor of Forensic Medicine at Dundee University, has stated – ‘one would never take a black and white photograph instead of a colour photograph’.
The Attorney then moved on to the question of the insurances. He said that:
“The controversy over the insurance policies, including the $36 payment, was canvassed exhaustively at the trial. The assertion that the $36 payment is startling new evidence is wrong, mischievously so.”
It has not been said that the information about the $36 is new; merely that it is important.
The Attorney concluded by saying that there was nothing new and that:
“The assertions made on the Today Tonight program overstate the extent to which the Crown relied on the competence of Dr Manock .”
Yet Dr Manock was the only Crown witness who had examined the body of the deceased. He was the only person able to unequivocally assert that murder was the only explanation. Even if all of the other witnesses had been taken at face value, they could only say (at best) that murder was a possibility. That would have been insufficient to proceed with a criminal prosecution.
As Justice Duggan said in his summing up to the jury:
“In the case of circumstantial evidence, and I give you a particular direction which applies to circumstantial evidence, you cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than that the accused is guilty of the offence. In other words, before you can be satisfied that the accused is guilty, you must be satisfied not only that his guilt is a rational inference from the proved facts but that it is the only rational inference that the circumstances you find proved enable you to draw.”
And later:
“Now, ladies and gentlemen, I conclude my summing up by saying this to you: if you are to return a verdict of guilty you must be satisfied beyond reasonable doubt that the accused killed the deceased without lawful excuse and intending at the same time to kill her or to cause her grievous bodily harm. It is not enough to find at law that an offence of this nature possibly took place, or that it even probably took place.”
If it wasn’t for Dr Manock’s evidence that he could exclude death by accident and by natural causes, then this test put by the judge could not have been satisfied.
In terms of there being ‘nothing new’, the filmed interview which preceded the Today Tonight program (of 17 March 2003) revealed the following:
Mr Rofe said that the fact that Anna’s car may have been missing from her home on the night of her death, and the fact that it may have been returned some two days later, was something previously unknown to him. This clearly indicates the possibility of another person being at the premises shortly before or around the time of Anna’s death.
Mr Rofe said he was previously unaware of the fact that Anna had make-up reapplied to her face, had her hair combed and the swelling in her face reduced within a short period of her death.
Mr Rofe said he was unaware of the fact that there was a mark visible on Anna Cheney’s forehead, which was not present in the photos taken earlier that evening, before she had been tidied up.
Mr Rofe was surprised to learn of the fact that the police took two apparent photos of Keogh’s left hand - when the crime was said to have been committed with his right hand. It subsequently transpired that the second photo purporting to be of the left hand is in fact a photo of the right hand printed back-to-front, which makes it look like a left hand. Mr Rofe said that he had never seen those photos, which in itself would be a concern. One would expect that the prosecutor would see all of the photos.
Mr Rofe said that he did not know that police had made phone calls that evening from the house of a person living nearby.
Mr Rofe said that he wasn’t aware of any evidence that might have gone missing due to the lack of a cordon. But Anna’s father had let out the bath water, which might well have contained useful evidence about her condition (as well as the depth of the water).
Mr Rofe was unaware that crime scene officers had not been present at the autopsy.
Mr Rofe said that he was not previously aware of a possible injection mark or bee sting mark on Anna’s left leg. Either of these things could have provided innocent explanations for a sudden death.
Mr Rofe said he was unaware that the theory put forward by Dr Manock had since been examined by a professor of anatomy who stated that it was ‘impossible’.
It was not revealed until after the trial that Anna had attended at 37 medical appointments, a number being with specialists, in the five years prior to her death. This information was not brought out at the trial and the details have not been made available to date.
As a result of the above, in August of 2003, Keogh’s legal advisers lodged a third Petition with the Governor of South Australia, in which it was said:
“The Petitioner now claims that the advice to your Excellency in causing you to reject the Second Petition of the Petitioner was erroneous. He requests that his complaints contained herein be further considered by you, according to law.
The Petitioner complains that neither his First Petition nor his Second Petition were determined according to law.
In relation to the Second Petition the Attorney-General for the State of South Australia has provided two detailed statements to the South Australian Parliament purporting to explain the reasons upon which his advice to the Governor was based.
The first statement was made by the Attorney-General to the Legislative Council of the South Australian Parliament on 20 February 2003.
The second statement was made by the Attorney-General to the House of Assembly of the South Australian Parliament on 1 April 2003.
The Petitioner claims that the Attorney-General sought advice from the office of the Director of Public Prosecutions of South Australia and from the South Australian Forensic Science Centre. Both of those organisations (or officers of them) were the subject of complaints in the Second Petition. The Petitioner claims that it was therefore inappropriate for them to provide advice to the Attorney-General in relation to whether a review of this matter was warranted.
The Petitioner complains that much of the information provided to the Parliament of South Australia in the statements by the Attorney-General was misleading or incorrect, and as a result, the Governor of South Australia has acted on advice which was inappropriate. As a consequence the Petitioner claims that the Second Petition was not considered according to law. The Petitioner now provides the details of his complaints.”
The Third Petition then set out the points above. It sought Keogh’s immediate release from custody pending a full inquiry, or alternatively, referral of the whole case to the Full Court.
In response to this third petition, the Attorney-General, in November 2003, referred the issues raised in the Second Petition to the Solicitor-General (Chris Kourakis QC). He contacted Keogh’s legal advisers and asked them to provide evidence to support the claims that they had made. In February 2004 affidavits of various experts were provided to him. The Premier publicly announced the Inquiry in April 2004. [8] The terms of reference have never been made public.
Affidavits were also filed with the Medical Board of South Australia, as a consequence of Keogh’s complaint to them about Dr Manock’s competence and professionalism. In the next chapter we look at the way in which the Medical Board responded.
Endnotes
[1] ‘Atkinson attacks TV show ethics’, The Advertiser, 2 April 2003, p. 2.
[2] 'New evidence' is evidence available but not adduced at trial. 'Fresh evidence' is evidence that did not exist at the time of the trial, or if it did, could not then have been discovered with \ reasonable diligence. Appeal courts ordinarily will receive fresh evidence.
[3] Transcript, second trial, at p. 195.
[4] CH Manock v State of South Australia and the Institute of Medical and Veterinary Science SA Supreme Court, 2355 of 1978, transcript, at pp. 117-125.
[5] Bee v Police, SA Supreme Court transcript SCGRG 98 1482, 29 January 1999.
[6] South Australian Police Crime Scene and Forensic Procedures Manual. General Order 8278 (1996) 5. Death.
[7] Coronial Inquest into the deaths of Storm Don Ernie Deane, William Anthony Barnard, Joshua Clive Nottle, transcript, at p. 600.
[8] L Craig and M Williams, 'Thorough check on Keogh case', The Advertiser, 23 April 2004, p. 2.
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