The South Australian case of convicted murderer Henry Keogh (the “body in the bath”) refuses to lie down and die.
Last month Dr Ross James, one of two forensic experts who gave evidence at the original trial, was found guilty of unprofessional conduct by the South Australian Medical Board.
The finding was that he failed to disclose relevant information when giving evidence at the trial and had “ignorance or disregard” of his responsibilities. James is currently appealing that finding.
This is the latest in a litany of proceedings sparked by Keogh’s relentless attempts to have his case re-opened.
The finding of unprofessional conduct against the doctor is a significant moment in the history of the case.
The Medical Board exonerated James on a number of other issues, but this single finding amounts to official recognition for the first time of the problems with at least some of the forensic evidence presented at Keogh’s trial.
In 1995 Harry Keogh was found guilty of the murder of his girlfriend, South Australian Law Society officer, Anna-Jane Cheney.
Keogh’s conviction came after two trials, (in the first the jury could not reach a verdict) and he’s serving a 25-year prison term. It was claimed by the prosecution that Keogh would benefit from more than $1 million of Cheney’s life insurance and that this was the motive for the murder.
Keogh has maintained his innocence. His legal team, frequently led by Sydney-based counsel Tim Game, has so far unsuccessfully pursued a variety of avenues to have the case reopened, including petitions to South Australia’s Attorney General and appeals to the High Court.
Forensic opinion gathered by Keogh’s people asserts that the cause of Cheney’s death was not properly established.
Experts who have expressed this view include Professor Anthony Ansford, head pathologist in Queensland since 1983 and Associate Professor Anthony Thomas, associate chief examiner in anatomical pathology at the Royal College of Pathologists of Australasia.
Channel Seven Adelaide’s Today Tonight and a number of lawyers and legal academics, most prominently Dr Robert Moles, have championed Keogh’s cause. Moles has a whole section of his Networked Knowledge website dedicated to a comprehensive coverage of the Keogh case.
Moles is pinning a great deal on the latest Medical Board finding:
“If the court has been misled on a significant issue – and this is a very significant issue – then it means the conviction is unsafe and should be set aside.”
However, successive SA attorneys general have dug in their heels, and Keogh’s three petitions to reopen the case have all been refused by the government, claiming the forensics wouldn’t have made a difference to the outcome, given the whole of the circumstantial evidence.
The current AG, Michael Atkinson, has staked his and the government’s reputation on the issue. His most recent display of insistence that nothing needs further examination emerged during a bout of bickering with Today Tonight reporter Graham Archer at a media conference (pic) following the Medical Board findings on James.
Here’s an uplifting slice of the proceedings:
Archer: But in 2003 you told the parliament that you denied – you personally denied that evidence had been withheld from the court.
Atkinson: Well, I’ll have to have a look at that, you’ve misquoted me in the past …
Archer: No I haven’t …
Atkinson: You’ve misquoted me …
Archer: No we haven’t, no we haven’t …
Archer: But the key thing here is that two senior forensic pathologists …
Atkinson: (pic) Yes I know …
Archer: ... misinformed the juries in this state, is that OK by you?
Atkinson: No, it isn’t …
Archer: And you denied that it happened in Parliament in 2003.
Atkinson: I will check the quote because you have misquoted me before and you have …
Archer: Well, you’re on a mission of misinformation about this and you have not done the public or the justice system …
Atkinson: ... any you’ve lost two defamation actions just recently … and your program fails to tell the public what happened in the High Court and what happened in the Supreme Court, you cover up …
Archer: ... what rubbish, that was merely an argument …
The exchange progressed to the point where Archer (pic) told the attorney general to “shut up”.
Failure to disclose: the pathologists
Keogh brought a complaint in 2001 to the SA Medical Board against SA’s senior forensic pathologist, Dr Colin Manock. Manock held his post from 1968 until 1995. While he was experienced at conducting post-mortems he had no formal qualifications as a pathologist.
In 2001, the ABC’s Four Corners broadcast a program in which Manock was accused of incompetence, negligence and unethical conduct spanning a period of 30 years.
Keogh complained that Manock botched the autopsy, and gave scientifically baseless opinions at the trial about the manner of Cheney’s death and failed to examine all the evidence.
Crucially, at the original trial, Manock and James said they had found bruises on the victim’s leg and that it was their view that the bruises were evidence of a hand grip on the leg.
This was an important part of the explanation as to how Cheney had been drowned.
However, in the Medical Board hearings, both Manock and James said that when they looked at a microscopic slide taken from the “bruise”, they saw there was actually no bruise.
Neither brought the non-existence of the bruise to the attention of the prosecution or the court.
Manock’s explanation was that it “wasn’t part of the conversation”. James said he didn’t think it was particularly relevant.
In 2005, the Medical Board dismissed the complaint against Manock, finding that the doctor had observed the “usual practices” at his own lab, and that as his theory about the cause of death was not “untenable”, he hadn’t acted unprofessionally.
Keogh appealed and the board’s findings were overturned in September last year by Chief Justice John Doyle (pic).
Doyle sent the case back to the board because, among other things, it had applied the incorrect test for professional misconduct.
Meanwhile, Keogh’s complaint against Manock’s deputy Ross James dragged on, with James unsuccessfully taking points of law up to the Supreme Court in an attempt to stop the Medical Board hearings.
Following Chief Justice Doyle’s “guidance” provided in the Manock decision the board last month handed down its findings against Dr James.
This has sparked a renewed round of challenges – James is appealing to the Supreme Court and Keogh is cross-appealing.
Manock brought defamation proceedings over a Today Tonight promo for a 2004 broadcast. It reached the High Court last year on the point of the defence of fair comment. Channel Seven lost the appeal after the court tweaked and further restricted the defence.
Manock’s defamation action against The Sunday Mail for articles in 2000 and 2001 was settled out of court, but not before engaging the full bench of the SA Supreme Court in a discussion of the common law test for defendants to plead alternative meanings and the Polly Peck defence and whether it should be permitted. It wasn’t.
Dr Barry Fitzgerald, former executive director of the Law Society of South Australia, successfully sued radio station 5DN and a pro-Keogh lawyer, Valerie Armfield.
Ms Armfield, an Alzheimer’s sufferer, called in and alleged on air that Fitzgerald had obstructed justice in the Keogh investigation. He was awarded $45,000 in general and another $12,000 in aggravated damages.
Fresh appeal founders
Last year Keogh’s lawyers sought to have the SA Court of Criminal Appeal “re-open the appeal”.
They asked to be allowed to present evidence that the autopsy carried out by Manock was “incompetent and inadequate upon which to establish both cause and manner of death”.
Specifically they wished to tender the evidence given by Manock and James before the Medical Board that there was no bruise on Cheney’s leg and their admissions that they did not disclose this fact to the prosecution or defence.
Game, for Keogh, told Gleeson, Gummow and Heydon, in that application:
“This is a case where the ability to, as it were, assert that this man’s conviction was obtained by wilfully false evidence of a forensic pathologist who can be shown neither to have been competent nor honest, where this man has no review of any kind, the idea that finality steps over that is an extraordinary one in our submission.”
Gleeson said that state parliaments could have done something about Grierson, but they haven’t.
Despite these setbacks Keogh and his lawyers show no sign of surrender.
Apart from the possibility of seeking judicial review of the AG’s decision not to re-open the case, legal academic and Keogh campaigner Bob Moles believes hope could lie in a line of UK cases that establish that courts have jurisdiction to set aside convictions obtained by fraud or manifest error, even in the absence of a right of appeal.
See: R v West Sussex Quarter Sessions ex p Albert & Maud Johnson Trust Ltd 1973; R v Leyland Justices ex p Hawthorn 1979; R v Crown Court at Knightsbridge ex p Goonatilleke 1985; and R v Bolton Justices ex parte Scally 1991.
“We are continuing with a prosecution of Dr Manock before the Medical Tribunal and trying to persuade the AG to submit the matter back to the court for review.
“If he fails to do so after the result of the Manock and James proceedings are known then we will take further action in the Supreme Court to re-open the matter.”
Among the solicitors who have worked on the Keogh team are: Michael Sykes, Michael Hegarty and Stephen Cudmore of Adelaide along with Brisbane civil liberties advocate Terry O’Gorman.
The barristers include: Kevin Borick QC (Adelaide), John Nader QC and Tim Game SC (Sydney), Tom Percy QC and Malcolm McCusker QC (Perth) and Stephen Howells (Melbourne).
A number of consultants who have contributed their skills, including: John Batt from the UK, Adelaide solicitor Philip Scales, law lecturer Bibi Sangha and Professor David Faigman from the University of California.