Henry Keogh wins appeal – bad science and 20 years later

Until 4pm in Adelaide on Friday December 19, 2014, Henry Keogh was a convicted murderer, as he had been for almost 20 years, since his 1995 trial for the murder of his 29 year old fiancée Anna-Jane Cheney. They were soon to be married and on March 18, 1994, they had had a pleasant evening out. After dinner, while he went to briefly visit his mother, Anna-Jane relaxed in her bath. When he returned she was dead.  

Keogh tried urgent CPR after calling the ambulance, but Anna-Jane could not be revived. He has always protested his innocence and claimed to have not received a fair trial. On December 19, 2014, the Supreme Court of South Australia (Court of Criminal Appeal) agreed.

In what was a wholly circumstantial case, the prosecution had argued that Henry Keogh murdered Anna-Jane Cheney by grabbing her by the ankle as she was lying in the bath, forcing her head under water. Forensic pathologist Dr Colin Manock# gave evidence that marks on her legs were grip marks that supported the prosecution hypothesis. But in 2009 Manock recanted his evidence, as noted by the judges (Gray, Sulan and Nicholson JJ). “Dr Manock later acknowledged that evidence he gave at trial to the effect, at least by implication, that his microscopic examination supported the conclusion that the medial side mark was a bruise, was wrong.” (Manock had already given similar evidence before the Medical Board in 2004.)

“The recantation was made on oath by Dr Manock when giving evidence before the Medical Tribunal. It followed, the applicant [Henry Keogh] said, that a natural cause or misadventure could not be excluded and the jury had been materially misled in this respect.”

The judges did not comment on why, following that recantation, the judicial system failed to instigate self correcting mechanisms to review the case.

The error was to prove catastrophic for Keogh; the bruise Manock identified as the grip marks could not have been inflicted at the time of death, as haemosiderin was later found in the relevant tissue sample. As the appeals court heard, “haemosiderin is a by-product of the healing process consequent on a person suffering, inter alia, a bruise or some type of tissue lesion. However, haemosiderin will be detectable no earlier than 24 hours after the bruise or lesion to which it relates is suffered.

“The possible presence of haemosiderin was first identified in the 2004 report of Barrie Vernon-Roberts*. The report included a recommendation that particular tissue be tested for the presence of haemosiderin and sought permission to do so. For reasons unknown to this Court, that testing was not then undertaken. Professor Vernon-Roberts’ report of 2004 was released to the applicant’s advisors on 5 December 2013. In February 2014, the testing recommended by Professor Vernon-Roberts was undertaken by Professor Thomas. This testing confirmed the tentative view expressed by Professor Vernon-Roberts that tissue taken from a possible lesion on the medial aspect of Ms Cheney’s left leg contained haemosiderin. As a consequence, if the possible lesion was in fact a bruise, the conclusion could be safely drawn that it had been sustained at least 24 hours before death. The consequence of such a finding is that Dr Manock’s opinion as to the mechanism of murder is materially undermined.”

Keogh had appealed before, even lodged a Petition of Mercy with the Governor four times, all to no avail. He had exhausted all formal rights of appeal, until the South Australian Parliament (on the urging of legal academics Bibi Sangha and Dr Bob Moles) introduced new legislation last year, providing a statutory right to further appeal (s353A of the Criminal Law Consolidation Act 1935). The Director of Public Prosecutions had opposed the application for permission.

In order to succeed with any appeal heard pursuant to s353A the applicant needed to persuade the Court of Criminal Appeal that there was a “substantial miscarriage of justice”. The Court set aside the conviction and ordered a retrial, saying: “The forensic and medical evidence was only one aspect of the prosecution case. A conviction is open to a properly directed jury based on the evidence as now understood, though not inevitable. Accordingly, it would not be appropriate to order an acquittal. The applicant should be retried.”

(With respect to the Court, this view seems arguable: if there is no evidence to place Keogh at the scene of death and murder is not established by any other evidence, what evidence – even if motive was firmly established could be probative enough to warrant a retrial?

To underline the matter, it’s worth noting that the Court found Professor Derrick Pounder’s* views ‘compelling’: “There is nothing in the medical evidence to raise the suggestion that the death was homicidal or to discount the death as being accidental.”)

The court accepted that “In his report, Professor Vernon-Roberts expressed the following opinion: My preference as an hypothesis for the sequence of events leading to Ms Cheney’s death is that she lost consciousness after having sustained an initial fall in blood pressure due to blockage of a small artery in her heart or during a faint. While falling backwards from an erect position she struck her head on the bath before sliding under the water and drowning while unconscious.

“I believe that there is a lack of essential pathological findings to sustain the hypothesis that Ms Cheney drowned as a result of a person gripping her lower legs forcibly to apply traction leading to immersion of her face.”

Keogh’s was the first case to be heard under the new legislation; the repercussions are expected to be considerable throughout Australia’s criminal justice system.

# Dr Colin Manock, Chief Forensic Pathologist, South Australia – retired

* Professor Derrick Pounder, Dept of Forensic Medicine, University of Dundee

* Professor Barrie Vernon-Roberts, Emeritus Professor, Institute of Medical & Veterinary Science, University of Adelaide

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