Monday, January 19, 2015

Henry Keogh; South Australia; A guest post by Dr. Bob Moles on why an outright acquittal - as opposed to exposing Henry Keogh to a possible retrial - would have been the appropriate remedy. (Must Read; HL);

PUBLISHER'S NOTE: After years of following the Henry Keogh case in the pages of this Blog, I have been left with a gnawing question:  How could the criminal appeal court have given the prosecutors the option of a retrial in circumstances that in my view, from everything I had read about the case,  cried out for an outright acquittal?  So I reached out to my friend Robert Moles - the South Australian legal expert who has fought for Keogh's exoneration for so many years  and even lobbied  successfully for new criminal review legislation in South Australia which would make this possible - for his view as to why a verdict of acquittal would have the appropriate remedy. I am grateful to Bob Moles for addressing this question head on  in the following guest post.

Harold Levy; Publisher; The Charles Smith Blog; 

INTRODUCTION:  "The court determined that the conviction for murder should be set aside and the court’s order allowed for the possibility of a retrial. The questions arises as to whether it would have been more appropriate to have entered a verdict of acquittal."  

THE FORENSIC EVIDENCE: "At trial, the forensic evidence was that there were marks on the body which indicated that the young woman had been forcibly drowned in a domestic bath by her fiancé. It was said there were bruises to the leg which indicated a hand-grip. It was also said that the bruises had been inflicted at or about the time of death. There was other bruising to the head which had been caused as the woman’s head was said to have been forced down into the water.  The Crown obtained an independent forensic report in 2004 which stated that the forensic evidence had been misinterpreted. It said that the only inference to be drawn was that death resulted from a slip-and-fall accident, and that there were no signs of homicide. It suggested that additional tests could be undertaken which might indicate that the bruises to the leg were historical and not associated with the time of death. Those tests were not undertaken.  The report was not disclosed until a new statutory right of appeal was established in 2013.  A subsequent report obtained by the Crown in 2014 confirmed the findings of the 2004 report – as did two additional reports by the defence, each from highly credentialed experts. They variously established that what were thought to be bruises to the leg were not in fact bruises, and that the alleged bruising to the head was in fact artifactual – it was caused during the process of the autopsy. The pathologist who gave evidence at trial subsequently admitted in proceedings before the Medical Board and the Medical Tribunal, that much of the evidence he had given at trial was incorrect or not supported by appropriate evidence. The appeal was allowed the conviction was overturned but the court allowed for the possibility of a retrial. It said that the non-forensic evidence left it open for a prosecution to succeed, but that it was for the prosecutors to decide if there should be a retrial. 

 LEGAL FRAMEWORK GOVERNING RETRIALS: (THE AUSTRALIAN "PARKER" CASE); "In Parker’s case there is little point in requiring a retrial. Such a trial would be had simply to vindicate the Crown's charges. This would not be the correct course where, if the Crown were to succeed, it would, on its own case, need significantly to change the way in which it presented the matter at the first trial. It is an established appellate principle that a second trial should be refused where the first trial miscarried by reason of the conduct of the Crown or where a second trial is needed to allow the Crown a further chance to present a different case. A criminal trial is not a contest between the Crown's assertions and the accused's defences. From first to last, it is a proceeding whereby the Crown, on behalf of the community, assumes the obligation of establishing the charges laid. This obliges it, relevantly, to prove beyond reasonable doubt facts which constitute a precise offence known to law, being the exact offence alleged in the indictment. The Crown failed to do this at the first trial of the appellant. It should not have a second chance.  Having regard to the lengthy saga of these proceedings; the significant lapse of time since the events, the subject of the remaining charges, occurred; the completion by the appellant of the custodial part of his sentence; and the unchallenged rejection of the Crown's appeal against sentence, the court had no doubt that the proper course is for this Court to exercise the discretion which miscarried in the Court of Criminal Appeal. The first trial went seriously wrong in the several respects correctly identified by the Court of Criminal Appeal. It could not be expected that a second trial would take place, probably until a decade after most of the offences charged were alleged to have occurred. The proper order for this Court to make is that verdicts of acquittal be entered."

 WHY THE SAME RESULT SHOULD OCCUR IN THE KEOGH CASE:  It is now 20 years since the conviction. The non-forensic evidence referred to in the Court of Appeal judgment concerns some insurance policies and allegations that the accused had affairs with some women. Even if that were true, it would go only to motive. Unless the underlying facts are indicative of the occurrence of a criminal event – in this case murder – then factors indicative of motive are irrelevant. There is also a requirement in Australian law that in a circumstantial case, if there is a rational explanation of the facts consistent with the innocence of the accused, then the accused cannot be convicted. Given that all four eminent forensic experts on the appeal are agreed that the forensic evidence supports an accident scenario, 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. The additional but important point to be taken from R v Parker is that if there were to be a retrial, it could only be brought upon a basis which was significantly different to that which was put at the first trial. That would not be permissible. The only question which now remains is how long will it take for the people responsible for prosecutions in South Australia to state the obvious – that there will be no retrial."


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Harold Levy; Publisher; The Charles Smith Blog;