A five day-long hearing in the Supreme Court last week was many things: among the first appeals by a convicted murderer using a new law to prevent miscarriages of justice; a highly technical examination of forensic pathology opinion over the past 20 years; a legal title fight with an unpredictable outcome.
But most of all, it was Henry Keogh’s last, best hope for freedom.
He was convicted in a second trial for the murder of his then-fiancée Anna-Jane Cheney in March 1994 – 20 years ago next month.
While circumstantial evidence raised suspicions about Keogh, it was the forensic pathology evidence produced by the state’s chief forensic pathologist, Dr Colin Manock, that clinched the case for then-DPP Paul Rofe QC.
In the past 14 years, repeated revelations have emerged appearing to undermine the forensic evidence led at Keogh’s trial.
But because Keogh had used-up his single right of appeal soon after conviction he has been unable to force a review of his conviction by a court.
Until, this was, last year, when the South Australian Parliament passed the nation’s first appeal right in cases of fresh and compelling evidence of a possible miscarriage of justice.
Keogh’s leave to appeal application was only the second, under the new law.
The lengthy hearing added several more chapters to the strange and compelling Keogh saga.
I’ve been covering it, on and off, since 2005, first for The Australian and then for InDaily.
A decade ago I was new to South Australia and keen to write stories about criminal cases that required further scrutiny.
By then, Keogh had been in prison for more than a decade. Opinion around Adelaide had atrophied into frustration at Keogh and his supporters.
Why wouldn’t he just accept his fate and serve his time quietly?
“Know thy place,” seemed to be the subtext.
Anna-Jane Cheney was a daughter of the establishment. Her father, Dr Kevin Cheney, was a respected specialist (haematology pathology) medico. By the age of 29 Anna-Jane had risen to the well-connected post of Director of Professional Standards for Law Society of South Australia. She knew a lot of lawyers and she was well liked.
Keogh was an outsider. His parents were Irish immigrants. He was a divorced husband and father of three young girls.
Keogh was not a lawyer but a suburban bank manager-turned-insurance broker and was about ten years older than Anna-Jane.
It emerged in the trial that Keogh had conducted at least one affair behind Anna-Jane’s back in the year before her death and signed her name to secure five life insurance policies to the value of $1.2 million.
The good burghers of Adelaide might have called him a “bounder”, even if he weren’t convicted of murder.
So it was that Keogh’s case returned to court last Monday, or to be precise, Court 12 of the Supreme Court of South Australia building on Victoria Square.
Perhaps aptly for the state’s first such hearing, Court 12 lies apart from the other courts, at the top of four flights of stairs to the side of the main entrance to the Supreme Court complex.
As one lawyer close to the case opined: it was complex, technical and the outcome unpredictable – a “legal cluster f**k”.
Supreme Court judge Kevin Nicholson ran the hearing with the air of a guileless school principal.
Appearing for Keogh was Marie Shaw – all business in black suit, black hair up in a bun. Her “junior” was noted Adelaide barrister Sam Abbott.
Shaw left her judgeship on the District Court in 2010, sparking speculation over her future. Taking on the epic Keogh case along with Abbott and a stable of legal interns, pro bono, answered the questions.
For the Government was Director of Public Prosecutions Adam Kimber, appointed in early 2012.
Kimber must have been on a steep learning curve. There have been several DPPs and acting-DPPs since Paul Rofe QC secured the conviction of Keogh at his second attempt in 1995 – the first trial produced a hung jury.
In Court 12 last week, Kimber opposed Keogh’s leave to appeal application and was in court running the case in person.
His close personal attention was perhaps not surprising given the hearing was a national first.
The hearing produced several genuine revelations that will reverberate for the remainder of the process and perhaps more broadly.
Chief among them was the news, delivered by DPP Kimber last Wednesday, that the remaining tissue samples from Anna-Jane Cheney’s autopsy had been destroyed by the Government’s own Forensic Science Centre, which had stored them since 1994.
Kimber promised a written explanation from the Forensic Science Centre detailing who authorised the destruction and for what purpose. No such explanation had been provided before the hearing adjourned on Monday afternoon.
The view of Justice Nicholson was not hard to discern.
“It’s an interesting proposition, given the evidence we heard yesterday about the importance of retaining this sort of material, virtually indefinitely,” he said.
As Shaw commented, the evidence was disposed of while Keogh had a live petition before the Governor to have his conviction re-examined by the courts.
The other revelation from the week-long hearing emerged on the first day. A report by Flinders University pathologist Professor Tony Thomas was tendered that appeared to strengthen evidence of an innocent explanation for Anna-Jane’s death.
Professor Thomas concluded that a bruise on Anna-Jane Cheney’s lower left leg was not inflicted at the time of her death, as was asserted at trial, but was at least 24 hours old.
Thomas’s report also stated that, based on her medical records, Anna-Jane may have been taking the anti-histamine Hismanal, known to cause potentially fatal side effects. His report may be admitted as evidence if an Appeal is granted.
Professor Thomas had tested a tissue sample he had retained from a previous review of the original autopsy he had conducted in 2004.
Later in the week a question emerged as to the status of Thomas’s samples, numbering about 15.
As Kimber told the court – Professor Thomas’s samples were now the only ones left in existence from the autopsy. He wanted the samples handed over to him or the court for further testing by the Forensic Science Centre.
A stoush ensued when the judge refused to order that Professor Thomas hand them over.
As Shaw told the court, it wasn’t in Keogh’s interest. Tissue had to be preserved for further court hearings and inquiries, she said.
“We are maintaining security for obvious reasons.
“So, in essence, it is an extraordinary situation.”
But the Keogh case has been extraordinary from the start. Police initially treated Anna-Jane’s death as non-suspicious. It was only later, when the state’s chief forensic pathologist Colin Manock raised a murder scenario and the Cheney family expressed disquiet about Keogh, that police mounted a case against him.
Manock, an Englishman with no specialist training in forensic pathology, was appointed in 1968 and performed thousands of autopsies and given evidence in over 400 criminal cases over his 30-year tenure in Adelaide. Some of those autopsies were heavily criticised by Coroner Wayne Chivell in a report released just after the Keogh trials and Manock received further heavy criticism from a Four Corners program in October 2001, reported by Sally Neighbour, now the executive producer of ABC’s 7.30.
But it would become Manock’s conduct of Anna-Jane Cheney’s autopsy and his evidence at the Keogh trial, together with his “recantations” since, that formed the basis of Keogh’s leave to appeal application.
South Australians should steel themselves for disappointment if they are expecting a dramatic courtroom move that proves Keogh’s innocence.
Shaw: “This appeal is about uncovering fresh evidence that raises a reasonable doubt, not proof of innocence.”
And so it was careful, forensic work by Shaw all week, as she detailed Dr Manock’s substantial back-flips of his autopsy findings and trial evidence, made since the trial in other forums, mostly under questioning from Keogh’s former barrister Kevin Borick QC on oath before the Medical Board of South Australia in hearings in the past decade.
“The substantial miscarriage of justice here (is) that this jury was invited to convict on Dr Manock’s evidence (and) that has now been retracted or recanted by Dr Manock,” she told Justice Nicholson.
At the trial Manock told the jury that the victim was conscious when she drowned in her bath — effectively ruling-out death by accident or natural causes, which would have involved falling, hitting her head becoming unconscious and then falling into the water.
Manock also strongly concluded that there had been left a “grip mark” of four bruises, including a thumb bruise, on the left leg of Anna-Jane. He said this was consistent with Anna-Jane being up-ended in the bath and drowned by a person known to her.
However, since the trial Manock has admitted that Anna-Jane may have been unconscious when she fell into the water; that a skin sample from the so-called “thumb bruise” that he examined under a microscope in the autopsy showed no signs of bruising, thus undermining his assertions about a grip pattern and that all the bruises were fresh and of approximately the same age. Manock has also admitted that he failed to tell the jury about the blank “histology” slide, nor mention it in his autopsy report.
“If Dr Manock had told the jury about the histology of the thumb bruise, saying:’these bruises are not the same, the alleged thumb bruise … has no evidence of a bruise confirmed’, therefore the entire case based on a grip mark would have been severely weakened,” Shaw told the court.
Shaw then zeroed-in on the expert’s failure to disclose material facts and its impact on the trial.
“That Dr Manock (and his colleague Dr Ross James) did not disclose out of their mouths or lips … was critical to the jury’s evaluation of evidence upon which they subsequently convicted. These retractions clearly goes to the core of the Crown case, the issue of excluding accident,” Shaw said.
“We are dealing with a matrix of facts that the jury relied on that, in fact, was false. The jury convicted on a false premise.”
Kimber said that Manock’s testimony wasn’t as strong as Shaw claimed, that there were three other expert pathologists who gave evidence, any one of whom may have been relied upon by the jury.
And anyway, Kimber told the court, the forensic pathology only brought you so far.
“As Paul Rofe put to the jury in summing up: ‘the forensic evidence alone doesn’t solve this murder for you’,” he told the court.
And so we return to where we started: Keogh the bounder.
The circumstantial evidence provided motive and discredited Keogh, to be sure.
But it didn’t prove a murder had taken place. Dr Manock’s evidence was crucial to proving a murder had occurred, instead of a horrible accident or death by natural causes.
With a frontal assault on Manock’s evidence now mounted, largely using his own words to discredit the original evidence, the road to a bona fide review of the conviction is now open.
Justice Nicholson reserved his decision to a later time.
• The so-called “thumb bruise” found on Anna-Jane’s lower left leg. Dr Manock has since admitted that a microscope sample showed no bruising and that he didn’t tell anyone about this finding at the trial. He has also admitted that the microscope slide undermines his conclusion that all four bruises were “fresh”, or less than four hours old at time of death, undermining the murder hypothesis. He says now the bruises could have been up to 24 hours old or even older.
• Aortic staining (red) said by Manock to be indicative of fresh water drowning – has since admitted it is not.
• Death by drowning. Manock now admits he failed to carry out a diagnosis of exclusion, required in drowning cases, which would have ruled out other possible causes of death such as brain or heart problems.
• Anna-Jane was conscious when she drowned, said Manock at the trial. This ruled out accident or natural causes leading to drowning. He has since admitted that his reasoning – that the brain showed no visible marks and so Anna-Jane never lost consciousness – was wrong.
• Manock originally told the trial it had to have been Keogh’s right hand that gripped Anna-Jane’s leg, pushing her torso and head under water. But he has since changed that to left hand which was supposed to be holding her head under the water.
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