Examples of senior legal practitioners disregarding the law and not being held accountable for it is evident in Australia’s criminal legal system writes Andrew L. Urban.
The judges of the South Australian court of criminal appeal have accepted that Henry Keogh had been wrongly convicted of murder some 20 years ago, that new evidence shows it was an accident – yet they ordered a retrial. South Australian Director of Public Prosecutions, Adam Kimber, has asked the court for six weeks (‘longer than the ordinary four weeks your Honour’) in which the police can ‘assemble the brief of evidence and ascertain the availability of witnesses’ for a directions hearing on March 20, 2015.
“The proper legal decision was to acquit Keogh,” comments noted legal academic Dr Bob Moles. The court ordered a retrial, “for which – in light of their own decisions – there is no legal or logical basis.” If Dr Moles is correct, the law is being disregarded.
Judges (and lawyers in general) are frequently timid in criticising their professional colleagues. Is peer group protectionism among lawyers trumping miscarriages of justice? It’s a question Dr Moles and other concerned observers are asking.
When Henry Keogh, now 59, 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.
The prosecution had argued that Keogh murdered Anna-Jane Cheney by grabbing her by the ankle as she was lying in the bath, forcing her head under water. The State’s Chief Forensic Pathologist Dr Colin Manock gave evidence that marks on her legs were grip marks that drove the prosecution’s case.
‘it was an accident, not a murder’
It was a purely circumstantial case; sentenced to life for the murder of his 29 year old fiancée Anna-Jane Cheney; 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.
The appeal court called the forensic evidence of discredited Dr Colin Manock “unwarranted speculation”, and accepted the contrary forensic evidence of four experts that it was an accident, not a murder.
The appeal court stated (December 2014): “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.”
The importance of the undeclared evidence is impossible to overstate. The court did not address the question of why the report was withheld for 10 years. Had such a report been delivered to the DPP during the trial, for instance, the prosecution would have had a legal duty to disclose it to the defence. Of course, the result of that would have been an aborted trial.
Keogh’s is not the only case in which significant errors are made by those at the very height of the legal profession, says Dr Moles. A former professor of law, Dr Moles has spent over 15 years investigating alleged miscarriages of justice going back more than 40 years. He is the co-author of Forensic Investigations and Miscarriages of Justice, (Irwin Law, Toronto, 2010) among other books and papers. He advocated and helped the South Australian Parliament introduce legislation in 2013 (s353A of the Criminal Law Consolidation Act 1935) granting applicants convicted of a crime a further statutory right of review.
DISREGARDING THE LAW: OTHER CASES
CASE OF DAVID SZACH, circumstantial case; sentenced to life for 1979 murder of older male lover Derrance Stevenson; forensic evidence played key role, but later totally discredited; Szach released after 14 years in jail but conviction stands. Szach (now suffering motor neurone disease) wishes to exercise his rights under the new (2013) statutory right of further appeal, but is denied legal aid to have conviction quashed and his name cleared.
ERROR AT LAW 1: incorrect finding by Legal Services Commission
On his application for legal aid, the Legal Services Commission (South Australia) took the view that “even if the jury had not been able to estimate the time of death, there was other circumstantial evidence which may have supported the jury finding the complainant guilty.
That statement is firmly contradicted by Dr Moles: “With great respect to the members of the LSC, that is not correct. Without Dr Manock’s forensic evidence, there would be no evidence of time of death. At the trial, Mr Brian Martin QC (prosecutor) said: … ‘the objective and scientific evidence means that he was dead by 6.40, and the accused was there.’”
There was no other probative evidence led at trial that links Szach to the murder.
“It is also entirely improper for the LSC to make pronouncements about evidence, which are properly matters for a court of law,” adds Dr Moles.
Besides, it is a well-accepted principle that a significant error at trial cannot be overlooked even if there is other evidence, or indeed, other compelling evidence against the accused. The focus is on whether there has been a fair trial, not on whether the accused is guilty.
A 1991 report by Michael David QC, to the Director of the Legal Services
Commission of South Australia cast serious doubt on the safety of Szach’s
conviction. It refers to the “invalid” forensic evidence about the time of death and
also to the unchallenged evidence of a defence witness, Mrs Shea, a receptionist
at the Legal Services Commission in Adelaide.
Had the mystery man seen the murder?
He described Mrs Shea’s evidence as “startling”. “She gave evidence that on the
morning of the 5th June 1979 [ed: the morning after the murder but several
hours before police found the body] she was a receptionist at the Legal Services
Commission … shortly after she arrived at about 5 minutes past 8, she noticed a
man knocking on the front window. She spoke to that person and said “can I help
you”. He said “is Justin in?” Justin was Justin O’Halloran, one of the Legal Services
Commission’s solicitors. She said “have you got an appointment” and he replied
“no”. She said “are you a client of Justin’s or is it about an application” and he
said “not yet but I need help”. She said “what type of matter is it”, he said “a
crime”. She said “have you seen a solicitor or is a solicitor willing to act for you”.
He said “only Derrance Stevenson but when I left him last night he was in no
condition to act for anyone”. He then went on and said “I have to see Justin
because he is the only lawyer in Adelaide that will help me”. She said “you might
ring later in the day and arrange an appointment.”
Michael David QC added: “Bearing in mind that the Police did not find
Stevenson’s body until the afternoon of the 5th June, what this person said to
Mrs. Shea was of course quite startling.” Mrs Shea had never seen this young
man before and no-one has been able to contact him since. It wasn’t Szach; he
was sitting opposite her in court. Had the mystery man seen the murder? The
body? How? When? Did he have anything to do with the murder?
As Michael David QC noted, this evidence went unchallenged at trial. The implications are profound, establishing considerable doubt over the Crown case against Szach. It can be argued that the learned judge erred in not dismissing the case against Szach, given that Mrs Shea’s evidence represents a rational explanation for the innocence of the accused. This is elementary law in circumstantial cases, as this one is, remarks Dr Moles.
Szach adds an alarming footnote: “The Commission’s Director withheld Mrs
Shea’s evidence from the police for about 10 weeks… on basis of legal privilege
which actually hadn’t existed over that conversation. I have often wondered what if the Director had provided that information to the police on the Tuesday –
before I was arrested …”
CASE OF SUE NEILL-FRASER: circumstantial case, sentenced to 23 years for the 2009 Australia Day murder of her partner of 18 years, Bob Chappell, on their yacht Four Winds in the Derwent, Hobart; Chappell had disappeared overnight, his body never found; prosecution speculated she murdered him with a wrench; no wrench was tendered in evidence; prosecution speculated she dumped his bleeding body into the dinghy and then weighed it down with a fire extinguisher before dumping it overboard; no evidence was produced to support these propositions.
ERROR AT LAW 1: prosecution speculation without evidence in clear breach of legal rules and inadmissible as was stated by the Chief Justice of NSW in the Gordon Wood appeal.
ERROR AT LAW 2: the judge’s summing up contrary to law
Dr Moles says “the judge told the jury that Mr Chappell had not disappeared, and it must
be accepted that he must be dead. He [the judge] said that this could be inferred from the inactivity on his Medicare account and his bank accounts and the fact that he has not been in touch with anyone.” Dr Moles points out that these factors are not indicative of ‘death’, they are in fact key indicators of ‘disappeared’. If there had been any such activity, then he
would have been found.
The judge’s summing up also excluded the possibilities of suicide or accident by making inappropriate inferences. He suggested for example that Chappell had projects to work on at work and his friends didn’t think him to be suicidal. Dr Moles says “To make such claims without any proper evidential basis is clearly contrary to the law as was stated by the Chief Justice of NSW in the Gordon Wood appeal.”
ERROR AT LAW 3: inadmissible forensic evidence
In the Neill-Fraser case, according to Dr Moles, “The evidence given to the court by the forensic scientist was totally inadmissible. Screening test results (for blood) were used as if they were conclusive. “This error warrants the conviction being set aside.”
The evidence given to the court by the forensic pathologist was also “totally inadmissible. There is no factual basis for the expert opinion being led; he was asked to give expert evidence on the prosecution’s speculation (about the possible effects of a wrench as a weapon, but no wrench was produced in evidence). This error also warrants the conviction being set aside.”
ERROR AT LAW 4: non-existent evidence cited by appeal court
Neill-Fraser appealed her conviction. The appeal court judge referred to the fact that there was a substantial body of evidence that was probative of guilt. “That was simply incorrect,” states Dr Moles. “There was in fact no credible evidence which was probative of the guilt of Ms Neill-Fraser.”
“Wrongful convictions are hidden,” says Associate Professor David Hamer of Sydney University Law School:* “There are institutional barriers to correct them and defendants generally lack the resources to overcome those barriers.”
Speaking from frustrating personal experience, Joseph Crowley, barrister and Senior Teaching Fellow at Bond University says* barriers to appeals were like “a hydra’s head … as you chop one off another grows in its place.” He was referring to the preliminary conditions for an appeal before a court will assess the merits of the appeal. “There can be a miscarriage of justice either in the outcome, or in the unfairness of the process.”
Speaking of “the hubris and isolation of lawyers and judges”, Professor Gary Edmond, Professor of Law at the University of NSW (and Australian Research Council Future Fellow) is scathing of their failures in the pursuit of rational practices in criminal trials. He said that safeguards and standards parameters just don’t exist in the matter of forensic evidence presentation.
“If the Australian public was aware that dozens of innocent people are serving lengthy sentences for murders and rapes they didn’t commit – and the real criminals are living free among us – we could expect considerable outrage and demands that ‘something be done’,” suggests Dr Moles.
* All were speaking at the Symposium on Miscarriages of Justice, Flinders University, Adelaide, South Australia, Nov. 7 & 8, 2014.