Keogh fate being closely watched

A decision is expected within months in the Keogh case, an appeal under a new South Australian law being used for the first time.

Keogh fate being closely watched

By Dr Bob Moles*

South Australia awaits with profound interest a decision on the quality of justice in Australia in a seminal case where three judges are hearing the first appeal under a new law.

The history-making appeal is against a conviction for murder in the case of Henry Keogh.

The main appeal hearing ran for two weeks from 22 September 2014 before a Full Court of the SA Court of Criminal Appeal comprising Justices Gray, Sulan and Nicholson.

In mid-2013 the South Australian Parliament passed a law which allowed for second and subsequent appeals if “fresh and compelling” evidence was produced: the Keogh case is the first to reach an appeal hearing under the law. The Tasmanian Attorney-General, Dr Vanessa Goodwin, has promised to pass a similar law for that state, and Civil Liberties Australia and my organisation, Networked Knowledge, are campaigning for a “mirror” law in other states and territories, and federally.

Mr Keogh was convicted of the murder of his fiancée, Anna-Jane Cheney, in 1995. It was said that he had drowned her in a bath at their home in Adelaide in South Australia in 1994 – just a few weeks before they were due to be married. He has been in jail for 19 years, constantly protesting his innocence. He has lodged four petitions for mercy before the current case.

Part of the circumstantial context which looked suspicious originally was several insurance policies which he had taken out on Ms Cheney’s life. He admitted he had signed the applications in her name, explaining that he was merely putting policies through his business (he was a financial planner) to keep his insurance agencies open. There was also a question about whether he had affairs with some women.

A key part of the Crown case was the forensic pathology evidence, said to have established bruising to the legs and head of the deceased. The Crown alleged that bruises to the legs were the classic sign of a grip-mark. This was interpreted to mean that the accused had gripped the legs of his fiancée, forcing them up in the air and pressing down on her head to effect a forced drowning. It was also said that bruising to the head and neck provided some corroboration for this scenario as it would otherwise require a “complex choreography” to explain the bruises as part of an accidental fall.

Since his conviction and failed appeal, serious questions have arisen about the work of the former chief forensic pathologist involved, Dr Colin Manock[i], in a wide range of cases. They have been discussed in the book A State of Injustice (2004). There have been numerous television radio and media reports about his work more generally and in particular in relation to the case of Mr Keogh. The web site for the Keogh case is here, and the book Losing Their Grip (2006) on the Keogh case is also available online.

justiceThe problem that Mr Keogh faced was that Australian law did not allow for second or further appeals. The only chance of a further review was to obtain a referral back to the courts through an Attorney-General. As AGs also hold a political office, experience in SA and other Australian states and territories has shown that such referrals are notoriously difficult to obtain.

In 2013, after much lobbying and manoeuvring, the SA Parliament passed new legislation to create a right to a second or further appeal in circumstances where there was fresh and compelling evidence that there had been a substantial miscarriage of justice. The complexities of this are considered in a recent law journal article. It was the first substantial change to the Australian criminal appeal rights in more than 100 years. As soon as the law passed, Mr Keogh lodged his application for a fresh appeal which is now (October 2014) in the process of being heard.

Most people were surprised to learn that in 2004, when an application was before the Attorney-General for a referral, the Solicitor-General had obtained an independent forensic report on the case by Professor Barrie Vernon-Roberts. [It was not disclosed until 2013, according to the judgment on the recent leave application].

Greater was their surprise when they learned that the report stated that, in the opinion of the expert concerned, the forensic evidence supported an accidental slip-and-fall scenario, but not a homicide scenario.

Since then, two further forensic experts have been consulted. One was Professor Derrick Pounder from the UK, retained by the defence, and the other was Dr Matthew Lynch from Melbourne, retained by the prosecution. According to their evidence on this appeal, both of them agreed in substance with the findings of the earlier report from 2004. This means that the prosecution now had two expert reports which they have obtained and which undermined key issues put forward by the prosecution at trial. The defence have also obtained two additional forensic reports, post-trial, which have reached the same conclusion.

In addition, the chief forensic pathologist in the original case has, since the trial, given sworn evidence in professional conduct proceedings which contradicted or undermined the evidence which he gave at trial. These anomalies have been outlined in chapter 11 of Losing Their Grip.

He expressed a different view as to whether the leg was gripped by a right hand (at trial) or a left hand (post trial). At trial he had said that the woman would have been conscious when forced into the water because there was no sign of external damage to the brain, thus ruling out the accident scenario. He later accepted that this had no proper scientific basis to it. This, presumably, opened up the “accidental scenario” hypothesis as a reasonable possibility. He had said at trial that “aortic staining” was a sign of drowning, but subsequently accepted that there was no support for this in the scientific literature.

This current appeal has so far revealed the unanimous opinions expressed in the post-trial scientific reports. It has set out what the defence referred to as the significant number of “recantations” by the chief forensic pathologist since the trial.

Despite this, the prosecution have maintained either that the evidence does not satisfy the “fresh and compelling” test for the admission of new evidence on the appeal or that, if it does satisfy that test, it does not show that there has been “a substantial miscarriage of justice” as the legislation requires.

Whilst the substance of the appeal has been heard, some outstanding issues will be heard in November 2014. It may take some months into 2015 before the result of the appeal is known.

NOTE: The case is being closely watched in jurisdictions throughout Australia and the “British justice system” world – Ed.

[i] Chief Forensic Pathologist of South Australia, 1968-1995.

* Dr Bob Moles leads Networked Knowledge, the main research organisation investigating miscarriages of justice in Australia, with close links to similar organisations in the UK, Canada and the USA. He is an author of several books, and has taught law at ANU in Canberra, ADealide University and The Queens University in Belfast.



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