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Keogh granted new trial…after 19 years

Keogh granted new trial…after 19 years

After 19 years behind bars, convicted murderer Henry Keogh will at last have another day in court…in a case which will set new legal precedents for Australia.

Keogh granted new trial…after 19 years

Henry Vincent Keogh will get another, historic day in court in South Australia.

He has been in jail for 19 years since his murder conviction in August 1995.

Keogh is the first person in Australia to gain a second full bench appeal under the law.

Judge Kevin Nicholson found it was “reasonably arguable” that Keogh had suffered a “substantial miscarriage of justice” two decades ago.

His appeal will go to a full bench of three judges of the Court of Criminal Appeal of SA.

A new law* to allow such secondary appeals was passed in SA only in mid-2013.

It is likely Keogh’s full bench appeal will be heard this year: if so, he may be acquitted of the crime before August, just as he is to enter his 20th year a prisoner.

Anna Jane Cheney
Anna Jane Cheney

Keogh was originally convicted at a second trial after the first resulted in a hung jury.  On circumstantial evidence he was found guilty of killing Anna Jane Cheney (left), who was found dead in the bath. They were engaged, and about to marry.

The Crown alleged he grabbed her legs and held them above her, until she drowned.

A significant element of the state’s case against Keogh relied on forensic evidence as to alleged grip marks and bruises, and when the bruising – if any – occurred.

Evidence given at the original trials by the state’s senior forensic pathologist, Dr Colin Manock, was later discredited by other forensic experts. He claimed he could identify grip marks, and bruising: other examiners could find no such evidence.

Recent developments have suggested Ms Cheney may have suffered an extreme allergic reaction to the antihistamine drug Hismanal, and anaphylactic shock.

Technically, the Nicholson finding this month left as many questions as it answered. While Keogh, his family and supporters welcomed the fact he might be free and home at Christmas, the task for the full bench of the SA Supreme Court is enormous.

They will have to decide questions posed by the new law and left open by Judge Nicholson:

  • Has the new Keogh material, which was presented to gain the appeal, met the tests and standards required for admissibility and the formal “permission” aspect of the full bench of the court in hearing an appeal?
  • Does the new hearing involve considering all aspects of the original case, or only the new material and the particular points on which the new material bears? and
  • Does the new Keogh material meet the definitions of “fresh” and “compelling” in the new law, definitions which will be created for the first time in the Keogh appeal, because it is the first such case in Australia?

A difficulty facing Keogh is that one of the forensic experts on which he relies, Professor Barrie Vernon-Roberts, is now very ill, and cannot be cross-examined.

But difficulties are nothing new to Keogh: he  has “firmly maintained his innocence at all times prior to and after his conviction”, Judge Nicholson noted.

Keogh has spent almost as much time in court as in jail:

  • He has already appealed the SA Court of Criminal Appeal (CCA) once: dismissed on 22 December 1995.
  • An application to re-open the appeal dismissed by the same court on 13 May 1997.
  • The High court refused special leave to appeal on 3 October 1997.
  • A second appeal to the CCA of SA dismissed on 22 June 2007 (because the court lacked jurisdiction to hear it…that is, there was no law in place like the one eventually passed in 2013).
  • On 16 November 2007, the High Court rejected appeal against the above decision.
  • Keogh also lodged petitions for mercy to the Governors of SA in 1996, 2002 and 2003: none resulted in the SA Attorney-General referring the case back to the CCA.
  • In 2009, Keogh lodged a fourth petition for mercy: Keogh has had no answer from the AG of SA on that request…five years after lodging it.

As well, Keogh took complaints to the Medical Board of SA against the two forensic pathologists called to give evidence by the Crown during the trial, Dr Colin Manock and Dr Ross James.

                                                                                                                             – Bill Rowlings

 The new ‘law’ which has allowed the new Keogh appeal to take place is an amendment to the Criminal Law Consolidation Act (1935).

 60 Minutes on the case:  http://sixtyminutes.ninemsn.com.au/article.aspx?id=8257120

SMH:  http://www.smh.com.au/national/the-devil-in-the-detail-20140210-32amx.html

5 Comments

  1. Bob Moles has campaigned tirelessly to achieve what is the first change to criminal appeal laws in Australia (albeit only SA at this stage) for 100 years. Now people currently incarcerated in South Australia for crimes they maintain they did not commit, and who have fresh and compelling evidence of their innocence, can finally be heard. Well done!

    Jackie Schmidt

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