Part One: The Henry Keogh Case: A Disturbing Research Paper From Australia. Why Is This Man Still In Jail?

One of the most disturbing documents to be filed at the Goudge Inquiry is a research paper by Dr. Robert Moles and Ms. Bibi Sangha which raises many important points about forensic pathology in the context of work performed by Dr. Colin Manock.

One important aspect of the paper deals with Dr. Manock's findings that three baby deaths in 1992 and 1993 in Adelaide were the result of natural causes when a subsequent review found significant evidence to indicate that the deaths were non-accidental.

The paper, entitled, "Comparative Experience with Pediatric Pathology and Miscarriages of Justice in Australia" determines how faulty forensic pediatric pathology can contribute to false negatives such as false findings of natural death, as well as false positive findings of non-accidental death.

The co-authors also focus on Manock's involvement in the case of Henry Keogh which is the subject of this posting.

My personal feeling is that if the Keogh case had happened in Ontario, there is no doubt that it would have been the subject of an independent review and under consideration by the Goudge Inquiry - like so many of the cases involving Dr. Charles Smith.

(I also suspect that Ontario prosecutors would have consented to his release pending his appeal- rather than allow him to languish another day behind bars);

I am personally horrified that Mr. Keogh has had so many doors shut in his face in Australia, where is currently serving a minimum twenty-five year murder sentence;

We learn that Mr. Keogh has over the years appealed his conviction to the South Australian Court of Criminal Appeal and to the High Court of Australia - and all his appeals have been unsuccessful.

Moreover, Mr. Keogh has petitioned the Governor three times. (On each occasion his application has been rejected).

His only hope at the moment is that now admitted instances of non-disclosure by Dr.
Manock and a colleague of significant evidence at the trial (as discussed below) will persuade the High Court that his conviction is a miscarriage of justice.

Here is a brief introduction to the Keough case as reported on Wikipedia: (I will follow it with a portion of Moles and Sangha's research paper);

"Henry Keogh is an Australian murderer," the Wikipedia excerpt begins.

"He grew up in Adelaide, South Australia and was educated at Saint Ignatius College, South Australia and briefly in the School of Dentistry at The University of Adelaide," the excerpt continues.

"In 1995, he was sentenced to 26 years in prison for the 1994 murder of his 29-year-old fiancée, Anna-Jane Cheney, then head of Professional Conduct at the Law Society in Adelaide, South Australia: it was alleged that Keogh had planned the murder for over two years.

Mr Keogh and his family have always claimed his innocence, and raised doubts regarding the evidence upon which the conviction was based.

In a petition lodged in 2002, Keogh's legal team provided material in support of a substantial number of complaints.

Keogh's key complaint was against then chief forensic pathologist Colin Manock's handling of the autopsy on Cheney and his evidence in the trial.

South Australian Deputy Premier, Kevin Foley, said that after considering the report of the Solicitor General, delivered after an exhaustive examination over two and a half years of the 37 complaints contained in Mr Keogh’s third petition, he formed the opinion that it did not disclose any arguable basis on which the Supreme Court could find that there had been a miscarriage of justice.

In May 2007, Mr Keogh applied for leave to appeal to the Supreme Court of South Australia.

The appeal was dismissed on 22 June 2007.

On 16 November 2007, the High Court of Australia rejected Keogh's application for special leave to appeal against a decision by the South Australian Court of Criminal Appeal that it did not have jurisdiction to reopen his appeal."

The research paper sets out the following background for the 1994 Keogh case;

Anna Jane Cheney was found dead in the bath at her home on the night of 18 March
1994. She was found by her fiancé Henry Keogh.

The police at the scene decided that there was nothing suspicious about the death.

On Sunday 20 March 1994, Dr. Manock conducted the post-mortem examination for the Coroner.

The Coroner had at that time received the report of Dr. Thomas (dated 11 February 1994) critical of Dr. Manock’s autopsies in the baby deaths cases, but the inquest hearings had yet to commence.

Also, Dr. Tilstone had requested Dr. Oettle to review procedures and practices relating to pediatric autopsies between the years 1989 and 1993 in the forensic pathology section of the State Forensic Science Centre.

In the Cheney autopsy, Dr. Manock determined the cause of death to be freshwater
drowning and decided that the drowning may have been deliberate.

He told the committal proceedings that he “was at no time looking or thinking that the death was accidental because I could find no explanation as to why she would drown.”

81 Dr. Manock revisited the body the following day (Monday 21 March) and noticed what he described as some faint bruising on the lower left leg of the deceased.

He was the only pathologist to examine the body of the deceased.

His work was not checked at the time by anyone.

The body was cremated on or about 30 March 1994.

Keogh was charged with the murder and tried twice (the first jury failing to agree on a verdict) in 1995.

Both trials occurred during the period of the hearings in the baby deaths inquest.

He was convicted of murder on 23 August 1995 and sentenced to a minimum of
25 years imprisonment.

Two days later, the Coroner’s report on the baby deaths was released.

Here is the research paper's analysis of the role played by Dr. Manock in the Keogh case:

In November 2004 Dr. Manock’s opinion as to the cause of death was brought into
question before the Medical Board of South Australia, following upon a Complaint by
Keogh.

At the Medical Board hearing, Mr. Borick, QC, asked Dr. Manock: “Do you agree with what I put to you, that it is the view of all of your professional colleagues over three decades that drowning is a diagnosis of exclusion? Do you agree with that proposition?”

Dr. Manock replied, “No, I don’t.”

He was then shown a list of major text books on pathology, published between 1955 and
2004, which described it as such.

Mr. Borick asked, “It covers the field doesn’t it?”

Dr Manock: Yes, some of which I’ve made contribution to, as well.

Mr Borick: Which ones?

Dr Manock: Polson and Gee, their second edition; and I see that you don’t have Polson
and Tattersall’s Toxicology, where I also made a contribution.

Mr Borick: In what year?

Dr Manock: That would have been in the mid-60s. [Dr. Manock completed his medical
degree in 1962]

Mr Borick: Anything since then?

Dr Manock: No.

The following quotation from one of the texts was then put to Dr. Manock:

A diagnosis of drowning cannot be made without a complete autopsy and full toxicological screening, histologic analysis of all organs including the lungs and the diatom test.

The diagnosis of drowning cannot be based solely on the circumstances of the death, non-specific anatomic findings and the results of the biological analysis.

He was then asked: “Your autopsy did not accord with that basic principle?”

He replied, “No, it didn’t.”

At the second trial, Dr. Manock told the jury that the basis for his conclusion as to the cause of death was his observation of red haemolytic staining of the lining of the aorta with no such staining of the pulmonary artery.

He said that these observations were “a classical sign of fresh water drowning.”

At the Medical Board hearing in 2004, Dr. Manock said that his opinion was based on principles derived “from his experience,” which had not been published.

He said that at the time he gave his evidence to the jury, he knew that there was no reference in the recognized forensic pathology textbooks on the list given to him of books published over the last three decades of this differential staining phenomenon being diagnostic of drowning.

He said that this was because “the rest of the world hadn’t caught up.”

The only way in which such a finding could be conclusive would be for it to have been
validated by proper scientific studies and published in the literature.

Dr. Manock agreed that differential staining is not referred to in the medical literature as a test for drowning.

He had not carried out any properly validated scientific studies to determine how often it occurred in freshwater drowning; or whether it also occurred in non-drowning cases.

Mr Borick: Bearing in mind that the rest of the world differs from you on aortic staining, have you ever written anything on it?

Dr Manock: No, I haven’t.

Mr Borick: Have you ever given the world the advantage of your skill?

Dr Manock: I have drawn people’s attention to it, yes.

Mr Borick: Which people?

Dr Manock: People who have trained in forensic pathology at Divett Place. [The location of the Forensic Science Centre and mortuary in Adelaide]

Mr Borick: Outside Divett Place, have you ever drawn attention to anybody?

Dr Manock: I can’t recall.

As the Appeal Court judges had said in relation to Dr. Alan Clift in the U.K., if his test had been such a wonderful test, “why didn’t he publish it?”

The accepted scientific view is that there are no signs that are pathognomic of drowning.

It follows that Dr. Manock’s finding about differential staining and drowning would have been the only positive sign which had been found to be specifically diagnostic of drowning.

It would have been an important finding and surely worthy of publication.

He did not at the time of the trial disclose to either the prosecution or the defence the lack of published scientific support for his diagnostic criteria.

There is no photographic record of the observations by Dr. Manock of “differential
staining” at the autopsy.

In fact, there are no autopsy photographs even identifying the deceased.

The only photographs that have been made available from the autopsy are of
the lower legs and of the top of the head with the scalp reflected.

The photographs areblack and white prints, a standard practice at the Adelaide mortuary at the time, according to Dr. Manock and others.

Dr. Manock formulated a scenario as to manner of death.

It was based on the presence of what he said were four bruises on the lower left leg of the deceased, one of them being on the inner or medial side of the left calf, the other three being on the outer side of the leg.

He said that the bruising was consistent with the leg having been gripped from behind by a right hand.

The evidence of this “grip” enabled him to say that the deceased was killed
by someone grabbing her left leg as she lay in the bath, forcing her legs back over her head and causing her head to go under water, thereby drowning her.

The presence of a grip mark on the left leg was to become critical to the prosecution case, with the prosecutor telling the jury it was “the one positive indication of murder.”

Although Dr. Manock demonstrated at the trial how the drowning might have been
carried out using a right-hand grip from behind the left leg, he told the Medical Board hearing that he had always said the marks on the leg resulted from the grip of a left hand.

He further said that the leg had been gripped from above by a left hand, or, alternatively, both hands had been used at different times.

This episode raises issues about the limits of the expertise of a forensic pathologist.

To what extent, for example, should a forensic pathologist express opinions that may now be seen to be part of other specialities, such as anatomical issues and biomechanics.

For example, note the following exchange:

Mr Borick: … I am saying that by definition you’re accepting that Prof Henneberg’s
field—forensic anatomy—is outside your field.

Dr Manock: No, its not.

41
Mr Borick: Nowhere are you trained in forensic anatomy, are you.

Dr Manock: Yes.

Mr Borick: When.

Dr Manock: Every time we go to a crime scene we have to associate the findings at the
crime scene with the injuries to the body.

Mr Borick: Have you looked at Prof Henneberg’s second affidavit, which details the
training required to be an anatomist.

Dr Manock: What do you think an anatomical pathologist does?

Mr Borick: Dr Manock, your job as a forensic pathologist is to ascertain the cause of
death.

Dr Manock: Yes.

Mr Borick: Right, and on this occasion you did an autopsy and you said cause of death
was drowning.

Dr Manock: Yes.

Mr Borick: That’s all you’re required to do. You didn’t have to go into all the anatomical exercise that you talked about.

That’s not your field of expertise at all.

Dr Manock: Crime scene examination is part of my function, yes.

Another issue that arises here is where inconsistencies emerge between later testimony and earlier reports.

To what extent do the opinions being represented disclose an evolving view to accommodate evidential developments, or merely represent problematic and arbitrary adjustments?

We will consider this further as part of our general
conclusions.

Fundamental to establishing that there was a grip pattern was the mark on the medial side of the left leg.

It was said to represent the position of a thumb.

Dr. Manock told the jury that for histological examination he had taken sections from the bruises on the legs and that his microscopical examination showed that there was blood trapped in the tissue of the medial left leg section, which confirmed that the section was from a bruise.

At the Medical Board hearing, Dr. Manock admitted to the Board that the histology did
not in fact support that the mark on the medial side of the left leg was a bruise and that he knew that from a few days after the autopsy in March 1994.

The effect of this evidence is that there was no histological proof that the mark on the medial side of the left leg was a bruise and, further, there was no basis for what he told the jury as to the age of the bruise.

Dr. Manock told the Medical Board that he did not disclose to the prosecutor the truth concerning the histology of this bruise because it “wasn’t part of the conversation.”

It is also known now that Dr. Manock did not check the full medical history of the
deceased before forming his diagnosis.

If he had done so he would have found that the deceased had had 37 medical consultations with 12 different medical practitioners over the previous five years.

He took only limited tissue samples from the internal organs for histology.

He told the Medical Board that he had no record of the weights of the organs
because his assistant had wiped them off the whiteboard during his absence from the
mortuary to take a phone call.

Here are the references to the role played in the case by Dr. James; (Dr. Manock's colleaugue);

Dr. Ross James, a long-time colleague of Dr. Manock at the SFS, was asked by the DPP before the trials to review the work of Dr. Manock.

Dr. James told the Medical Board that he had supported Dr. Manock in his diagnosis of cause of death, but he had not disclosed at the trial that his opinion as to cause of death was based on his “personal observation” that he had “noticed differential staining in a number of cases.“

Dr. James also told the Medical Board that he did not disclose to the trial court his
opinion that the mark on the medial side of the deceased’s left leg was not a bruise
because he “didn’t think it was particularly relevant.”

91 He in fact told the Board that he thought his opinion differed from that of Dr. Manock.

Apparently there is no record in Dr. Manock’s case file of the result of his histological findings with regard to his analysis of the bruising.

This should be contrasted with what Dr. Oettle stated in his report in
relation to the baby deaths: It is my opinion that body measurements, organ weights and microscopic findings should be included in the final report of every Coronial case, and this is in keeping with the acceptable international protocols.

The judgment included the following observations: (a) In the 1998 edition of Archbold
Criminal Pleading, Evidence and Practice the existing law was summarised as following
(with emphasis supplied): “Duty of Disclosure It is the duty of an expert instructed by the prosecution to act in the cause of justice R v Ward 96 Cr App R1 CA.

It follows that if an expert has carried out a test which casts doubt on his opinion, or if such a test has been carried out in his laboratory and is known to him, he is under a duty to disclose this to the solicitor instructing him who has a duty to disclose it to the defence.

This duty exists irrespective of any request by the defence.

It is not confined to documentation on which the opinion or findings of the expert are based.

It extends to anything which might arguably assist the defence.

It is, therefore, wider in scope than the obligations imposed by the Crown Court (Advance Notice of Expert Evidence) Rules 1987 (SI 1987 No.716).

Moreover, it is a positive duty which in the context of scientific evidence, obliges the prosecution to make full and proper inquiries from forensic scientists to ascertain whether there is discoverable material.”

Dr. James has himself been the subject of a Complaint to the Medical Board with regard to his conduct in the Keogh case.

Dr. James applied to the Supreme Court to stop the hearing, claiming witness immunity and an abuse of process.

The Full Court held that witness immunity had no application to proceedings brought before the applicant’s professional body and that the Medical Board was the appropriate place to determine any issue as to abuse of process.

The High Court refused Dr. James leave to appeal this decision.

95 The Medical Board hearing was eventually held on 16 August 2007 and the
Board has reserved its decision.

The co-authors also reveal the troubling fact that the Coroner released his finding on the baby deaths inquiry two days after the verdict of guilty in the Keogh case.

"According to the affidavit filed by Keogh’s solicitor, the Coroner has said that he was sensitive to the fact that Keogh’s trial was proceeding at the time when he was ready to publish his Finding," the research paper says.

"He has said that he knew that Dr. Manock was a principal Crown witness in the Keogh trial and to avoid a mistrial he had decided of his own volition to delay publishing the Finding on the baby deaths until after the Keogh trial had concluded."

If only Mr. Keogh had had access to this information relating to Dr. Manock's competence during his trial.

One can only hope that the Australian High Court will have the courage to admit that it has been terribly wrong on the Keogh case.

Or, that failing, that the revelations at the Goudge Inquiry about the weaknesses and limits of forensic pathology will convince the Australian government to finally set things straight.

Mr. Keogh is owed nothing less;

(Dr. Moles is currently engaged full time with the "Networked Knowledge project" which he establshed to investigate and report upon alleged serious miscarriages of justice which are said to have taken place in South Australia over the last 30 years. He is the author of "A State of Injustice" which was published in October 2004, and "Losing Their Grip" – The Case of Henry Keogh published January 2006. His extremely comprehensive Web-site can be found at http://www.netk.net.au...)

Harold Levy...hlevy15@gmail.com;