“ … we conclude that the applicant has established that a substantial miscarriage of justice has occurred.” Andrew L. Urban reports.
When Henry Keogh walked out of jail just in time for Christmas 2014, he had served 10 extra years in prison because new forensic evidence that would have cleared him of murder was kept from him in 2004. “Detailed criticisms of the autopsy were specifically identified by Professor Vernon-Roberts in 2004. This information was first known by defence counsel in late 2013 when it was made available to them.” According to the appeals court judgement (at 330, R v KEOGH (No 2)  SASCFC 136.)
Keogh was convicted of 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, over some wine (the autopsy showed her blood alcohol level at 0.1, a matter not raised in the legal proceedings) and potato wedges. 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’s speculation (or drove it).
By December 2014, Keogh had served almost 20 years of his life sentence, when newly introduced legislation (s353A of the Criminal Law Consolidation Act 1935, May 5, 2013) allowed him to make yet another appeal, which was heard in December 2014, resulting in his August 1995 conviction being set aside.
Professor Vernon-Roberts’ crucial 2004 report was withheld for almost 10 years
The court further stated: “We consider the evidence of the inadequacies of the autopsy conducted by (prosecution witness, chief forensic pathologist) Dr Manock to be fresh evidence or otherwise admissible … The evidence of the presence of haemosiderin and the various recantations of Dr Manock place his autopsy in an entirely new light. These specific matters of fresh evidence, had they been known to the defence, would necessarily have called for a defence that addressed the adequacy of the autopsy.”
“Had they been known to the defence…” These matters were not known at the time of the trial, where the jury relied on the forensic evidence given By Dr Colin Manock. But nor was the defence made aware of the report/s that totally discredited that evidence, as the appeal court notes:
“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 Barrie 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.” [Emphasis added.]
The court did not address the question of why the report was withheld. Had such a report been delivered to the Crown during the trial, say, it would have had a legal duty to disclose it to the defence. Natural justice would also require its disclosure after the trial.
If the report was withheld in the belief it was covered by legal professional privilege, that belief would seem to have been in grievous error. In the recent Eastman case, the ACT DPP took the view that notes of meetings with expert witnesses who might be called by the prosecution were subject to legal professional privilege. However, he also accepted that if ‘relevant information’ was provided in the course of such a meeting, the duty of disclosure required that it be disclosed to the defence. (Eastman Inquiry at  and ). Reports were disclosed even if covered by legal professional privilege . The rationale behind that approach is that duty of disclosure is a fundamental aspect of a fair justice system.
The importance of the undeclared evidence is impossible to overstate; the appeal court states that it finds the report of Professor Derrick Pounder (now Emeritus Professor at Dundee University), compelling: “In brief, there is nothing in the autopsy findings, as now known as a result of disclosure of autopsy photographic and microscopic evidence, to suggest that the death is other than a presumed drowning in the bath following a fall and head injury which rendered this unfortunate woman unconscious. The cause of a fall cannot be known with any certainty because consideration of the possibility of a fall was never seriously entertained and the opportunities for appropriate investigations have been irretrievably lost. The broad possibilities are that a fall was the accidental result of a concurrence of circumstances, or that there was an underlying occult natural disease. 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 grip theory . . . no more than mere speculation
Professor Pounder, like Professor Vernon-Roberts, rejects the results of the autopsy carried out by Dr Manock, results which were the very basis of the prosecution. His comments were also withheld from 2004 until 2013.
The court found that “If this fresh and compelling evidence had been available at trial, then the mechanism of murder postulated in evidence by Dr Manock could not have been advanced before the jury. The grip theory advanced by Dr Manock and supported by Dr James would be no more than mere speculation.
“The evidence of Dr Manock that, according to the pathology, Ms Cheney’s death was a homicide and that other causes, such as a medical event or an accidental fall, were excluded, either could not have been put forward in those terms or, if it had been, would have been largely discredited.”
In other words, Henry Keogh would not have even faced trial without Dr Manock’s (incorrect) evidence. He would not have spent the best part of his life behind bars. Bad science put him there, legal error kept him there.
In fact, it seems likely that several legal errors over a number of years kept him there. Since his conviction, Keogh had petitioned the Governor for mercy on five occasions. The first three petitions were rejected. The fourth was withdrawn and the fifth petition awaited resolution.
“it is baffling to think how a prosecutor could present a case”
At time of writing, Henry Keogh is refraining from public comment, awaiting the decision of the DPP whether in fact to seek a new trial as proposed by the appeal court.
But, despite the DPP taking his time to make a decision about a retrial, that seems a far fetched prospect. “Given that all four eminent forensic experts on the appeal are agreed that the forensic evidence supports an accident scenario,” comments legal academic Dr Bob Moles*, “and the forensic ‘expert’ at trial recanted on the factors relevant to the murder hypothesis – it is baffling to think how a prosecutor could present a case which could exclude ‘beyond reasonable doubt’ an accidental death scenario.”
* Dr Moles writing on Harold Levy’s blog, smithforensic.blogspot.ca which focuses on cases involving flawed forensic science.