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 Thirteen - Unfinished Business

In May, 2005, the Premier, Mike Rann, told the South Australian Parliament:

“I can announce today to the House that I understand that the Solicitor-General is currently looking into aspects of the Keogh case ...”

And after a brief exchange with the Attorney-General the Premier added:

“… is currently examining Keogh’s third petition of mercy.”

In fact the Solicitor-General had been investigating the issues since November 2003, and the Premier had announced this in April 2004. The Attorney-General had been looking at them since August of 2002. Malcolm McCusker QC, an eminent West Australian barrister, has observed that in other jurisdictions one would expect a Petition to the Governor to be answered in about three months. Three years without a response seemed an ‘exorbitant’ length of time.

Extensive submissions have been made by Mr Borick to the Solicitor-General, and several meetings between him and some of Keogh’s legal team and expert advisors have taken place. The Solicitor-General has also consulted with a number of independent experts of his own choosing. The reports of these experts have not been divulged to Keogh’s counsel. The Solicitor-General has indicated that it is not for him to look at the more general issues of Dr Manock’s alleged competence. Mr Borick disagreed. He took the view that it was one of the central issues.

Under the Petition procedure, the options are to:

recommend that the conviction be overturned;
refer the case to the Full Court, to be considered as a further appeal;
seek the assistance of the judges of the Supreme Court on any point arising;
recommend to the Attorney-General that the Petition be dismissed.

Mr Borick argued that the decision is straightforward. In his view, as soon as Dr Manock had given to the Medical Board sworn evidence which contradicted his evidence at the trial, there existed the clearest possible grounds on which to set Keogh’s conviction aside.

There are recent High Court cases to show that expert evidence has to be properly based, and that it is not acceptable to merely state that expert opinions are supported by some sort of undocumented experience. The cases also state that expert evidence which advances some novel scientific theory should be subject to ‘special scrutiny’ to determine whether it meets the basic threshold of reliability or expertise. In 1991, the Chief Justice of South Australia made it clear that expert evidence which does not have scientific and peer support is not admissible in evidence. [1]

Obviously, the question will arise as to whether or not a conviction can be maintained despite any deficiencies in the expert evidence. The trial judge in Keogh’s case made it clear to the jury they could not convict on the basis of evidence of motive alone. Evidence as to a motive arising from insurance policies, for example, had to be linked to other proven circumstances, such as the cause of death. If the deceased had drowned, then it had to be shown that the drowning was deliberate and not accidental. If drowning (especially homicidal drowning) could not be established beyond reasonable doubt, then any evidence of motive is irrelevant.

It has been suggested that deficiencies in the way in which a case was put at trial should not necessarily undermine confidence in the safety of a conviction. The argument says that if, apart from the deficiencies, there is still sufficient compelling evidence of guilt, then that may be an adequate basis upon which to uphold the verdict.

The cases make it clear that, except for the application of the proviso (see below), this cannot be done. A person is entitled to a trial by jury and a trial that is fair and held according to law. A conviction cannot be maintained on the basis of assumptions about what the jury would have done if the matters had been properly explained. It is not for a court of appeal (or a Solicitor-General, or an Attorney-General) to try and second-guess what a jury might have done if they had been presented with a different case.

It may be assumed, for example, that the jury in Keogh’s case were satisfied that the cause of death was drowning. If they were also satisfied that the accused had a motive to kill, they still could not convict unless accidental drowning or death by natural causes had been properly removed as a possibility. It may be that the jury mistakenly thought that those other possibilities had been removed because of the purported grip mark. This mark was then an essential link in the chain of circumstantial evidence, leading to the conviction. If there was no proper basis for it, then clearly the conviction should be overturned.

The same might be said about the jury being told that the deceased was a fit and healthy person - when that had not been established. The same might well apply to the jury being told that apparently fit and healthy people do not die suddenly – when clearly they do.

In summary, Mr Borick said that the failures in the Keogh case had been so numerous and so fundamental that there could be no rational or legal impediment to the setting aside of the conviction.

The main point to bear in mind is whether a miscarriage of justice has occurred. The principles for determining this have been established in the leading cases. They are set out in Appendix One. They are, however, merely guidelines, and they, ‘should not ... be regarded as absolute or hard and fast rules.’ [2] The Australian position on error at trial is set out as follows:
- The decision was unreasonable, having regard to the evidence;
- There was a wrong decision on a question of law;
- On any ground whatsoever, there was a miscarriage of justice.

However, there is an exception, which is that the court may dismiss the appeal if it considers that no miscarriage of justice has actually occurred. This exception is commonly referred to as ‘the proviso’.
The High Court has said that where there have been shortcomings in a trial, if the accused person has lost ‘a chance’ which was fairly open to them of being acquitted, then that amounts to a miscarriage of justice.

“Were the position otherwise, there would be trial by appellate Judges who had seen no witnesses, heard no evidence and had no direct contact with the atmosphere, the tensions, the nuances or the reality of the actual trial.” [3]

The judges have said that:

“if the evidence contains discrepancies, displays inadequacies, is tainted, or otherwise lacks probative force so as to suggest that there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.” [4]

Keogh says that these criteria would encompass the contradictions between Dr Manock’s evidence at trial and to the Medical Board as to which hand had caused the so-called grip; whether it was from above or below; whether it was a single-handed or two-handed action. Also there are Dr Manock’s affidavits variously asserting that colour photographs were and were not taken at the autopsy. There is the contradictory evidence of Dr James at the trials and the Medical Board hearings concerning the number, nature and significance of the sections or slides of so-called bruising. There is Dr Manock’s and Dr James’ 1994 theory about ‘aortic staining’ having been confirmed by ‘case studies’, and the more recent 2005 research application by Dr Byard as current head of forensic pathology which states that the theory is speculative and unsupported as yet by either research or publications, which is why he now needs to conduct the research.

The judge’s criteria would clearly encompass the case of an important prosecution witness whose work had been severely criticised in the Coronial Findings and this was not revealed at trial. It would also include the withholding of the negative result of an important scientific examination (the histology), or autopsy photographs which fail to identify the person concerned.

In the case of Grey, previously questionable activity by a prosecution witness had not been disclosed at the trial. [5] The High Court found that this was a disingenuous basis upon which to present the witness. The court said that this meant that the accused was prevented from opening up a fertile ground of cross-examination. As a result, there had been a miscarriage of justice. The High Court said that although it might be possible that a lucky (if risky) question of him might have elicited an answer which revealed the existence of the issues relating to his credibility, there was no reason why the defence in a criminal trial should be obliged to fossick for information of this kind and to which it was entitled.

Justice Kirby said that to treat such a case as one amenable to the rules governing fresh or new evidence following a criminal trial is effectively to convert the prosecutor's duty to disclose information into an accused's obligation to find out. The Chief Justice of South Australia has said:

“appellate courts will always receive fresh evidence if it can be clearly shown that the failure to receive such evidence might have the result that an unjust conviction or an unjust sentence is permitted to stand.” [6]

Clearly Keogh would say that he has now been able to produce an abundance of such evidence.

In Grey, the High Court held that the Crown was bound to facilitate a fair trial by providing to Grey all of the materials to which he was entitled to have access. This did not happen and was found to constitute a miscarriage of justice. The same can be said in Keogh’s case about the failure to provide access to medical records, the negatives of photographs, the results of scientific procedures, and the so-called case studies which were said to have supported the aortic-staining theory.

The Chief Justice of Western Australia set out in the case of Button some of the issues to be considered. [7] He said that if material was available to the Crown, on the basis that it was known to the police, for example, then the accused was entitled to it, whether or not its existence was known to prosecuting counsel. An innocent failure to disclose relevant material may nonetheless constitute a miscarriage of justice.

Keogh says that would apply not only to the failure to provide photographs (and their negatives), but also to the failure to provide the medical history of the deceased and a proper written explanation of the research upon which the murder scenario was said to have been based. It would apply to the Coroner’s Findings in relation to Dr Manock; it was clearly in the possession of ‘the Crown’ but not disclosed by the Crown until after Keogh’s conviction.

The Chief Justice pointed out that it would need to be shown that in such cases, the evidence relied upon could not, with reasonable diligence, have been produced by the accused at the trial, although he said this is not an inflexible requirement. Clearly Keogh could not have produced the Coroner’s Finding, if the Coroner deliberately withheld them from him until after his trial. Nor could be have accessed Anna’s medical history.

The Chief Justice said that there must be a ‘significant possibility’ of a wrongful conviction. If the jury in Keogh’s trial had known that the Coroner (a judicial officer) had said that Dr Manock’s autopsies had achieved the opposite of their intended purpose; that Dr Manock was the sort of person who saw things which could not have been seen; that some of his answers to questions on oath were ‘spurious’ – then clearly there was a significant possibility that things might have been assessed differently.

The Chief Justice said that the evidence must be capable of belief. The Coroner’s Finding in relation to Dr Manock are clearly ‘capable of belief’.

A ‘significant possibility’ of a wrongful conviction means that the mere existence of such a possibility is sufficient. If it exists, then the court is bound to set aside the verdict. Justice Kirby in the High Court case of Gipp said:

“Once the appellate court comes to the conclusion that any of the pre-conditions to the exercise of its jurisdiction is made out it is obliged to ("shall") allow the appeal.”

Justice Gaudron also pointed out in Gipp that when an appeal is lodged, the entire matter is before the court and the court can entertain any matter, however arising, which shows that the decision of the Court appealed from is erroneous. She then went on to say that an appeal may well succeed on a point which was neither taken at trial nor in the subsequent appeal to a court of criminal appeal.

This means in Keogh’s case that the failure at trial and in the appeal to question the probative value of the black and white photographs, which did not identify the body of the deceased, can properly be raised in the appeal. So too can the issues relating to the integrity and standing of Dr Manock.

Justice Kirby said in Gipp’s case that it would be tempting to dispose of the appellant's new complaints before the Court on the technical footing that they were not argued before the Court of Appeal. But, he said:

“… such a result would, in my view, condone a serious miscarriage of justice which has now been brought to light. The appellant personally was clearly not responsible for the failure earlier to raise the objections to the trial which have now been expressed. The mistake or oversight was that of the legal representatives who earlier appeared for him.”

Any suggestion that the Coronial Findings in the Baby Deaths Inquiry would not be of help to Keogh in his appeal, or that one would not be able to properly digest the contents of the 94 page Finding in the three months prior to the appeal, might well be thought to be inappropriate an example of what Justice Kirby had in mind. [9]

Justice Kirby also referred to the nature of errors undermining ‘the administration of justice’. As he said, the ultimate interest of the courts in the administration of justice must be to ensure that people are not ultimately victims of the system.

In Keogh’s case, the failure to examine the medical history of the deceased before informing the court that the deceased was ‘fit and healthy’ is the type of error which undermines the administration of justice. The Director of Public Prosecutions has disclosed since Keogh’s trial that he was unaware of the existence of the Police Forensic Procedures Manual. He also stated that he was unaware that the investigation of the Keogh case was seriously deficient. He did not know that the deceased’s car was missing from the premises on the night of her death; he was unaware that crime scene investigators were not present at the autopsy; he was unaware that the body of the deceased had been interfered with at the scene. Presumably he was also unaware of the fact that otherwise fit and healthy people can die suddenly. [10]

Undoubtedly, these serious errors might be thought to be the type of errors which ‘undermine the administration of justice’.

Justice Callinan said that in these types of cases, there may well be circumstances where there is still evidence upon which a jury might convict; ‘none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand’. [11]

“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a Court of Criminal Appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied ‘beyond reasonable doubt’ that the accused was guilty.”[12]

In answering that question the court must not disregard or discount the fact that the jury is the body entrusted with the primary responsibility of determining guilt or innocence; or the fact that the jury has had the benefit of having seen and heard the witnesses. As we have pointed out, if a trial has miscarried, a guilty verdict cannot be upheld on a basis not left to the jury.

A question which is bound to arise is whether, despite any miscarriage of justice, the proviso should be applied. As Justice Kirby pointed out in Grey, the proviso appears in a section that does not negate the fundamental principle of the administration of criminal justice in Australia - that no person should be convicted of a serious crime, except by the verdict of a jury, after a fair trial, held according to law. If the trial ceases to be a fair trial according to law, the verdict of guilty, and the criminal conviction that follows it is intrinsically flawed. It is then no part of the function of a court of criminal appeal to hold that the accused is ‘so obviously guilty that the requirement of a fair trial according to law can be dispensed with’. As Justice Kirby pointed out, the proviso has no application to such a case. He said:

“it is not the purpose of the proviso to substitute for trial by jury, in effect, trial with the Court of Criminal Appeal as the tribunal of fact.”

If there is a proper doubt that the conviction was inevitable or that the accused may have lost a fair chance of acquittal, the impugned conviction cannot be sustained. ‘These are the high standards that our system of criminal justice upholds’.

He also pointed out that once a miscarriage of justice is demonstrated, it is the prosecutionthat bears the burden of persuasion that the accused had not lost ‘a chance which was fairly open to him of being acquitted’ or ‘a real chance of acquittal’.

Justice Kirby said in Grey that a conclusion of not guilty is not a conclusion that a jury would necessarily have reached. Perhaps it does not represent the most probable verdict of a reasonable jury. However, ‘It is a definite possibility’. It is one of which Grey was deprived because he did not have access to information that, forensically, would have strengthened his attack on the credit of the prosecution witnesses.

“The prosecution should gain no such advantage from its conceded default in disclosing this important information to the defence.”

The High Court has subsequently confirmed this position in the case of Mallard. [13]

“At this point it is relevant to note that the recent case of Grey v The Queen in this Court stands as authority for the proposition that the prosecution must at common law also disclose all relevant evidence to an accused, and that a failure to do so may, in some circumstances, require the quashing of a verdict of guilty.”

The judges went on to say that it was not for an appeal court to seek out possibilities, obvious or otherwise, to explain away troublesome inconsistencies in the case which an accused has been denied an opportunity to explore and exploit forensically. An important issue of legal principle was whether non-disclosure of evidence deprived an appellant of a fair trial, ‘understood as a trial resulting in a verdict worthy of confidence’.

Justice Kirby in Mallard said that a principle to be applied was:

“the prosecution may not suppress evidence in its possession, or available to it, material to the contested issues in the trial. It must ordinarily provide such evidence to the defence. Especially is this so where the material evidence may cast a significant light on the credibility or reliability of material prosecution witnesses or the acceptability and truthfulness of exculpatory evidence by or for the accused.”

He said that the courts ‘are  guardians to ensure that “justice is done” in criminal trials’, and that:

Ultimately, where there has been non-disclosure or suppression of material evidence, which fairness suggests ought to have been provided to the defence, the question is whether the omission has occasioned a miscarriage of justice. …

… in a case where the non-disclosure could have seriously undermined the effective presentation of the defence case, a verdict reached in the absence of the material evidence (and the use that the defence might have made of it) cannot stand.”

A summary of the principles derived from Mallard is given in Appendix Two, together with a list of evidence not disclosed in Keogh’s case.  

It is important to bear in mind that the problems in Keogh’s case are not just with the pathology. There are important legal issues as well. The question then becomes, ‘how far do the problems extend?’ It is quite apparent that the issues which we have identified go well beyond the Keogh case. They are problems of a systemic nature.

Whilst there has been much discussion of the work of Dr Manock in these pages, it is clear that he was just one player amongst many in the legal processes which were followed. Why was it that the prosecutor and defence counsel at Keogh’s trials and appeals did not identify the problems? Why has the Medical Board been unable to conduct a proper evaluation of the issues? Why have the politicians in South Australia been so little interested in the issues raised here? Why have they not introduced some form of Criminal Cases Review Commission to enable proper and timely review of cases like Keogh’s?

The Chamberlain and Splatt cases both involved deaths which aroused great public consternation at the time in the same way the Keogh case has done. In Chamberlain, it was the death of a very young baby in the outback. In Splatt it was the rape and murder of an elderly lady in a suburb of Adelaide. In both cases, the public interest turned to intrigue when it was thought that ‘science’ could help us to track down killers. When public expectations and ‘scientific certainty’ are combined, it is not hard to see how public confidence is restored by the identification and punishment of some wrongdoer.

But the subsequent Royal Commissions into both of those cases made it clear that the science which had been used had not been proper science.

A great many recommendations were made by the two Commissions. As a consequence, the scientific forensic services in South Australia were given an overhaul and procedures were significantly improved. However, forensic pathology was not seen to have been implicated in either of those cases, at least insofar as the South Australian services were concerned, and so this area, for which Dr Manock was responsible, was not subjected to the additional scrutiny and apparently was allowed to continue much as it had done before.

However, any proper analysis of the system at that time should have led to the understanding that the basis of forensic pathology is scientific. Pathologists have to make observations, record them and draw inferences from them. The pathologists should have been subjected to the same cross-checks and peer review systems as their scientific colleagues working in the laboratories. For whatever reason, this was not done. As recently as 2001, Dr James stated that he had never checked any of Dr Manock’s cases at the time at which they were completed, and Dr Manock had never checked any of his.

The question then arises about the efficacy of external reviews of pathology cases, when they become part of the prosecution process. One might think that the prosecutors and defence counsel would be concerned to ensure that proper procedures had been complied with. However, when the chief prosecutor for South Australia admits that not only was he unaware of the Police Forensic Procedures Manual, but goes off to a pathologist (Dr James) to check up on it and reports back that it does not exist, then perhaps alarm bells should have sounded. After all, if he is unable to properly confirm the existence of something as obvious as a police procedures manual, then it might give rise to questions about his procedures for checking on other things as well.

The prosecutor is essential to the effective operation of any criminal justice system. Very often, the prosecutor has insights into the detail of investigations, which defence lawyers cannot share. There have been very extensive debates in recent years about the duty of prosecutors to disclose relevant information to the defence. [14]

The High Court in Mallard’s case put it that it is not the duty of the prosecutor to ‘deliver his entire file to defence counsel’, but rather:

Prudent prosecutors, it is said, will always resolve doubtful questions in favour of disclosure. They will do so in recognition that the role of the prosecutor is as: ‘the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.’ [15]

Another matter which is not so often discussed is the extent to which the prosecutors should explain to the public what they are doing. As Stephen Pallaras QC, who in 2005 replaced Paul Rofe as DPP for South Australia has said, ‘… in doing our job the DPP has to be mindful of the clear duties we owe to the court, the community, the accused, the victims, witnesses and defence counsel’. [16]

Mr Rofe, when he was the DPP, said that the public must trust whoever is in the job to properly evaluate all relevant factors and come to proper conclusions.

Why would the prosecutor say that he does not know why Anna’s car was missing from her house on the night she died - but that it did not concern him? Why would he not have asked for an explanation about the absence of colour photos at the autopsy? Why no questions about the absence of crime-scene examiners or another pathologist at the autopsy in such a serious case? Why no questions about the body being cremated before the findings could be assessed and it be examined by another pathologist? Why did he not ask for some explanation about the failure to cordon off the scene? Why no questions about the failure to provide a complete medical history of the deceased? If he did not have a complete medical history, why did he tell the jury that Anna was ‘fit and healthy’? Why did he tell the jury that ‘fit and healthy’ people do not just die - without providing some statistical evidence about the occurrence of sudden adult deaths?

Dr Manock said that he knew, from the outset, that the slide from the alleged thumb mark showed no scientific evidence of bruising - but that it ‘did not come up in conversation’ with the DPP. How could this happen when the DPP said of Dr Manock: ‘I reviewed his procedures and notes and findings and had no reason to doubt…’? [17] Why was it that the DPP never asked Dr Manock to write down his scenario of the way in which Anna was alleged to have been killed?

Just as the deficiencies of the pathology procedures give rise to wider implications, so too might the deficiencies of prosecutorial procedures give rise to wider implications.

Ironically, in a situation somewhat reminiscent of the close proximity of the Baby Deaths Inquiry and the Keogh trial, just three months before the Solicitor-General was asked to conduct an examination of Keogh’s Petition, he was engaged in an examination of the procedures undertaken by the DPP in relation to what are called plea bargaining cases. These are cases in which the accused accepts that there is evidence which they have to deal with and their lawyers try to persuade the prosecution to go for the lowest reasonable charges in return for a guilty plea. [18] They involve direct interaction and agreement between the DPP and defence counsel. The following points are taken from the report into these matters by the Solicitor-General. [19]

The case that precipitated the investigation was that of Paul Nemer. [20] He was a young man who shot a Mr Williams in the head whilst Mr Williams was delivering newspapers in the early hours of the morning. Nemer was initially charged with attempted murder. The charges were subsequently reduced, and he was eventually sentenced on a particularly favourable view of things. There was considerable public disquiet about whether the fact that he came from a wealthy family had influenced the outcome. The Government intervened and said that the matter had to be appealed, and instructed the Solicitor-General to look into what had happened.

In his report on the matter, the Solicitor General said that he asked the DPP, Mr Rofe QC, to provide a written response to a list of questions he had about the negotiations with defence counsel in the Nemer case. Mr Rofe declined to answer those questions because he said he was concerned that the requests were made in an attempt to obtain some evidence of misconduct or malpractice on his part.

The Solicitor-General then invited Mr Rofe to put material before him in any way he wished. Mr Rofe again declined, because he claimed that the Solicitor-General had implied that he (Mr Rofe) had come to an improper arrangement with defence counsel. The junior barrister to Mr Rofe in the case also declined to provide details of conversations with Mr Rofe.

Mr Rofe told the Solicitor-General that the ‘agreement’ with the defence evolved over time. The court found that the defence version was inconsistent with the prosecution statements, but the defence version was not challenged by the prosecution. The Solicitor-General said that, ‘the prosecution case was overwhelming.’

He went on to say that it was likely that Mr Rofe decided not to dispute the defence version because he was concerned that to do so might be contrary to an implicit term of an agreement to accept a plea to a lesser charge. The Solicitor-General reported that in the course of his first interview with Mr Rofe the following exchange took place:

Solicitor-General: So the simple point there saying ‘Williams’  statement is sworn, Nemer’s is a mere submission they want to put that they can put Nemer in the box why didn’t you take that position?

Mr Rofe DPP: Well maybe I thought that would have been contrary to what had been agreed but I mean you’re very consciously seen as … trust and um between prosecution and defence you’re not seen to go back on your word.

Solicitor-General: Well I didn’t understand whether there’d been agreement about this, about the facts?

Mr Rofe DPP: There wasn’t but er…

Solicitor-General: So what part of the agreement might that have been contrary to?

Mr Rofe DPP: Oh I think it might have been their understanding of the agreement more than the agreement itself.

Solicitor-General: Right, well this is a concern they were expressing so what is it that you thought their understanding of the agreement might have been that requiring Nemer to be called would contravene?

Mr Rofe DPP: I think just the general underlying agreement that we wouldn’t go to evidence on the case.

Solicitor-General: Well, when was that made?

Mr Rofe DPP: Oh it wasn’t. I mean it was underlying. I think this will require appreciation if you like of their appreciation of the situation. There was certainly no specific agreement that we wouldn’t go to evidence but normally in those situations when you come to a negotiation its mostly implicit if you like that its (sic) obvious I mean for evidence.

The Solicitor-General said that it was his view that Mr Rofe’s uncertainty arose in part because of the failure to properly record and confirm the terms of the arrangement. Neither defence counsel nor Mr Rofe had made notes of their discussions.

He said he was also of the view that Mr Rofe was wrong to agree not to make an issue of certain discrepancies in the evidence. Mr Rofe told him that in his view the discrepancies did not affect Nemer’s culpability. The Solicitor-General disagreed with that view.

The Solicitor-General said that there was no reason for Mr Rofe to agree to an unduly favourable version of the facts; or to agree to take an unduly favourable sentencing position, in order to secure conviction by way of guilty plea. As he said, ‘a conviction would almost certainly have followed a trial in the matter’.

The Solicitor-General said that Mr Rofe could only have adopted the mistaken approach to the prosecution that he did, contrary to the views of the prosecutors around him, because he did not give their views the serious consideration they deserved. Also, he did not seek the views of the investigating detectives on the disputed-fact issues.

Mr Rofe agreed that, measured against the position that other prosecutors would have taken, his stance on a suspended sentence was probably ‘surprisingly advantageous’ to Nemer. The Solicitor-General said that the position should be that prosecutions should be determined by a standard that results in a similar position being taken in similar cases, irrespective of the identity of the prosecutor.

The Solicitor-General said that, ‘the Court of Criminal Appeal unanimously found that the evidence was inconsistent with the defence version’ and that, ‘these were not difficult issues over which experienced criminal lawyers might reasonably differ.’

The Solicitor-General concluded;

“Although Mr Rofe QC at all times acted in good faith and in accord with what he believed to be his duty, overall the conduct of the prosecution of Mr Nemer was inept.”

The second case considered by the Solicitor-General was that of Darren Schmidt.

Schmidt had received three years and nine months imprisonment, with a non-parole period of 15 months, following a guilty plea for manslaughter when the DPP agreed not to proceed with a charge of murder. The sentence was backdated, which meant that he only had to stay in prison for only a couple more months after being sentenced.

The Solicitor-General said that Stacey Brown was shot in the head at Schmidt’s home. The hand gun was never found. The gun was fired from no more than 30cm away from her face. The bullet grazed the left aspect of her nose as it travelled through her eye in a horizontal plane.

Schmidt had telephoned 000, telling the operator that he had woken up in his home to find a dead person. He asked that the police come quickly. Schmidt was committed on a charge of murder. A Senior Prosecutor within the DPP’s Office took the view that the evidence including the trajectory of the bullet supported a charge of murder.

Defence counsel wrote to Mr Rofe to say that Schmidt would plead guilty to manslaughter:

“He [Schmidt] does so, on the basis that the victim while handling the gun gave the gun to Schmidt which accidentally discharged. Clearly Mr Schmidt is guilty of manslaughter in that he should have realised that the gun was loaded and in an unsafe condition.

A short time after the death Schmidt telephoned 000 phone number and was clearly distressed. The gun was given to Michael Bow [a friend of Stacey] who then left the premises. My client after a short period of time panicked and rode his pushbike through the backstreets to the local Rebel motorcycle clubroom.

I would be pleased to receive your advice as to whether a plea to the above will be accepted in full satisfaction of the charge of murder.”

The prosecuting solicitor wrote back saying:

“I have been instructed by the Director of Public Prosecutions, Mr Rofe QC, to advise your office formally that he has resolved to accept the offer of a plea to manslaughter in full satisfaction of the present information before the Supreme Court. We note that the full facts will be agreed in the future but offer preliminary agreement to the details set out in the letter.”

It is interesting to note that such an agreement could be arrived at in advance of the full facts being known.

The Solicitor-General pointed out that there was no record on the file of the reason for deciding that the public interest was better served by accepting a plea to manslaughter rather than by proceeding to trial on murder.

The facts agreed to were that Stacey was playing with the gun when Schmidt asked her to pass it to him. As Stacey was handing the gun to him butt-first - with the barrel pointed in the direction of her face - it discharged killing her. Within five minutes of the shooting Schmidt rang 000. Michael Bow took the gun and magazine and left.

The Detective Sergeant in the case responded to this by saying that the only trouble with the agreed-facts was that they were wrong. Bow denied having taken the gun with him.

The agreed fact about the gun was deleted. The judge then sentenced on the remaining agreed facts.

The Solicitor General said that it was his opinion that the choices between proceeding to trial, and accepting a guilty plea, warranted much more careful consideration than the file notes record.

The Solicitor-General said that the alternative of a plea of guilty to manslaughter without agreeing to any facts was an option that should have been considered. It would have left Schmidt having to persuade the sentencing judge of the particularly favourable version appearing in the agreed facts. He said that if Schmidt’s version was not accepted then a much more serious sentence was likely to have been imposed.

The Solicitor-General said that the agreed facts were (in his view) inconsistent with the evidence of Dr James, the pathologist. Moreover, he said, it is difficult, if not impossible, to imagine how the gun could have fired at a point where it was within a foot of and at the level of Stacey’s eye, if it had accidentally discharged in the course of handing the gun over.

The Solicitor-General concluded this section of his report by saying that he observed that Mr Rofe’s decision in this case to consent to the tender of a set of agreed facts, and to advise the judge as he did, was inconsistent with a submission put to him about the use of Statements of Fact. He said that in that submission it was put that the prosecution can never agree facts of which it has no knowledge.

The Solicitor-General’s report was released by the Attorney-General on 19 April 2004. On 3 May 2004, Mr Paul Rofe QC announced that he had resigned as DPP, about two years before his contract was due to end.

Surely the time has now come to engage in a thorough and competent review of the Keogh case, and of the past practices of both the forensic and prosecutorial practices in South Australia. It is clear that those practices have led to unwarranted outcomes in a wide range of cases. We owe it to the victims of the justice system, and their families, to make amends.

Postscript

Alexis Keogh is the daughter of Henry Keogh. She sent the following letter to a number of people she didn’t know in April 2005:

Dear all,

I'm not certain what good could come of this letter, but I guess I've reached a point where all I can do is hope and pray that it might.

My name is Alexis. I'm Henry Keogh's youngest daughter and although I’m not sure of who most of you are, I got your email addresses from one I received from Bob Moles, so I’m assuming that you are either involved or interested in my Dad's case.

I've always tried to keep emotions out of the ten year battle my family has been fighting to get dad out of jail, but in reality, it's been an emotional rollercoaster that just seems to never end and I can't deny my heart isn't breaking.

Like I said, I don’t know who you are or what position you hold, but if you have any influence at all, please use it to highlight the injustice dad has been dealt and force people to confront it. I hear Mike Rann preaching about his commitment to ‘justice’ all the time, but I question what he thinks 'justice' is. I've been waiting ten years to find out, because I haven’t seen it yet. Here's his chance to demonstrate his commitment and make things right, but like everybody else, he's more concerned with protecting the government’s failings than he is about the people that the system is supposed to protect. I just don’t understand anymore - it's been ten years. TEN years - and still no one within the system is prepared to step out and stand up for the truth. It makes me feel so helpless and so insignificant and then I think of how dad must feel.

There's nothing I hate more that having to plead with people like this - but I've got nothing left but hope, and pride is the last thing I'm going to let hold me back if one of you can make a difference.

This mess began when I was about 9, and I'm 19 years old now, but inside I'm still that nine year old girl forcing myself to believe that my dad's going to come home - believing that I'll be able to hug him outside of prison walls - praying that my dad will be able to walk me down the aisle.

This is a letter I wrote to my dad in 1995, the year this all began:

24/8/95
Dear Dad,
I love you so much. I was really sad when mum told me the devastating news. I was speechless. I really thought that you were going to get found innocent. And if I felt awful I imagined how you must have felt and still feel now. I am trying to be brave just for you and I will hope for the best in the future. If you ever don’t feel happy, do what I do. I think of you, so you think of me and we will both be happy all of the time. Don’t forget that I am also hoping for some of your letters because they make me feel happy. I am really sorry for you dad and I hope this mess will just disappear, even though it might not. I don’t know how I can cope if the appeal doesn’t work out. But I somehow will figure out a way. Thousands and millions of pieces of my heart belong to you (and Mum of course) and you will always own them.
Lots of love, Alexis xoxoxx

I don’t know what any of you can do. Please forgive me for this email, but understand that I can’t do anything in my own power, because I have none. All I can do is hope that you do. I don’t know what else to say, other than thank you for what you may have already done and thank you for believing in the truth, even though it may never come out.
With love and hope,

Alexis Keogh

Endnotes

[1] R v Runjanjic and Kontinnen 1991 53 A Crim R.

[2] Green v The King (1939) cited in R v Gallagher (1986).

[3] Wilde v The Queen [1988] HCA 6. Applied in R v Grey (2001) and cited in R v Beamish (2005).

[4] M v The Queen (1994), referring to Chamberlain v The Queen [No 2] (1984) and Chidiac v The Queen (1991). See also Jones v The Queen (1997) cited by Gaudron J in Gipp (1998).

[5] Grey v The Queen [2001] High Court of Australia 65.

[6] King CJ in Reg v McIntee (1985) as cited in R v Gallagher (1986).

[7] Button v The Queen [2002] Western Australia Supreme Court.

[8] Gipp v The Queen [1998] High Court of Australia 21.

[9] See the affidavits of Michael Sykes, solicitor, and of Henry Keogh in Chapter Seven.

[10] See record of interview at: http://netk.net.au/Media/2002-06-27-DPPUnedited.asp

[11] Citing Hayes v The Queen (1973).

[12] Whitehorn v The Queen (1983).

[13] Mallard v The Queen [2005] HCA 68 (15 November 2005 P77/2004)

[14] Abraham W, ‘The Duty of Disclosure on the Prosecution’. Paper presented to the Australian Institute of Judicial Administration, Criminal Trial Reform Conference, Melbourne, 24-25 March 2000. http://www.aija.org.au/cfrpapers.htm. See also Manarin B ‘Assessing the expert: a call for reciprocal disclosure in Canada’, Medicine, Science and the Law 39 (1999) 17-22.

[15] Berger v United States 295 US 78 at 88 (1935).  See also Strickler 527 US 263 at 281 (1999). Cited in Mallard v The Queen [2005] HCA 68.

[16] Stephen Pallaras, ‘The prosecution gives its defence.’ The Independent Weekly, 15-21 May 2005, p. 8.

[17] See record of interview at: http://netk.net.au/Media/2002-06-27-DPPUnedited.asp

[18] For more discussion of plea bargaining cases, see Moles RN, A state of injustice, Lothian Books, South Melbourne, 2004, pp. 9-10.

[19] Re: Request to advise on matter of Paul Nemer and associated issues. Report to the Attorney General, by Mr Chris Kourakis QC, Solicitor General of South Australia. 7 April 2004.

[20] The Nemer and Schmidt cases are discussed in more detail in A state of injustice.

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