THE HENRY KEOGH CASE: NEW EVIDENCE PRESENTED IN FOURTH PETITION CRIES OUT TO BE CONSIDERED BY COURTS; HOW CAN GOVERNMENT REMAIN INDIFFERENT?

"THE RESPECTIVE AND UNEQUIVOCAL CONCLUSIONS DRAWN BY THREE MEDICAL EXPERTS WHO WERE MEMBERS OF THE MEDICAL BOARD THAT HEARD THE COMPLAINT BY THE PETITIONER CONCERNING DR MANOCK IN NOVEMBER 2004 WAS THAT DR MANOCK’S CONDUCT OF THE AUTOPSY WAS INCOMPETENT.

THE MEDICAL BOARD HAS ASSERTED THAT DR MANOCK’S CONDUCT OF THE AUTOPSY WAS SO INCOMPETENT THAT NO CONCLUSION CAN SAFELY BE DRAWN AS TO BOTH THE CAUSE AND MANNER OF DEATH.

THE MEDICAL BOARD FOUND THAT DR JAMES WAS GUILTY OF UNPROFESSIONAL CONDUCT IN THAT HE FAILED TO DISCLOSE RELEVANT INFORMATION TO THE COURT CONCERNING THE HISTOLOGY OF ONE MARK ON MS CHENEY’S BODY."

FOURTH PETITION ON BEHALF OF HENRY KEOGH;

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This Blog has devoted numerous posts to the conviction and incarceration of Henry Keogh in August 1995 for the murder of his fiancée, Anna Jane Cheney in the face of what Dr. Bob Moles, who has deeply investigated the case, has called "a combination of fraud, deceit and manifest error."

Dr. Moles and his colleagues have launched one of the most thorough, intensive attacks on pathology evidence in a criminal case that I have ever seen - and have come up over the years with cogent new evidence destroying the prosecution's forensic case, which the government stubbornly refuses to examine;

I am both saddened and horrified that a government - the Government of South Australia - could act with such manifest indifference in the face of such an apparent miscarriage of justice.

Dr. Moles writes that, "Despite the very serous allegations which have been made for years now, not one court has been able to look at the merits of the claims made by Mr Keogh. Such a situation could not arise in the UK, Canada, or the USA.

The fourth petition, filed on February 4, 2009, is a lengthy document which is replete with new revelations which cry out to be heard by the Courts - and not stonewalled for years by the government while Mr. Keogh languishes behind bars.

I am providing for our readers some excerpts from this petition - having taken the liberty of removing having removed reference numbers and footnotes in order to facilitate reading of the text.

The full Petition can be found on the Networked Knowledge web-site at: http://netk.net.au/Keogh/Home.asp...

I heartily recommend it to our readers (And to the Government of South Australia!)

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Dr. Moles advises that:

"This Petition was lodged with the Governor of South Australia on 4 February 2009. It will be referred to the Government and then to the Attorney-General who will seek the advice of the Solicitor-General. A copy of the Petition was lodged with the Solicitor-General on the same day.

As you can see, the Petition states that circumstances such as this have never arisen previously in the legal history of Australia.

It asserts that the conviction of Henry Keogh was obtained by a combination of fraud, deceit and manifest error.

Henry Keogh lodged a complaint with the Medical Board of South Australia some 7 years ago. It is not due to be heard by the Medical Tribunal until May 2009.

With the third Petition it took some 4 years to obtain a response. Since then, the discovery of further non-disclosures by the Crown (forensic pathologists) have been discovered.

All of the legal proceedings to date have been concerned with procedural issues. Despite the very serous allegations which have been made for years now, not one court has been able to look at the merits of the claims made by Mr Keogh. Such a situation could not arise in the UK, Canada, or the USA.

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The Case at Trial:

In August 1995 the Petitioner was convicted of the murder of his fiancée, Anna Jane Cheney. The prosecution case was that when she was taking a bath he gripped one of her legs, raising it up and by pressing down on her head forced her head underwater, causing her to drown. The case included his alleged relationship with two other women at the time, alleged forged insurance policies, and statements he made subsequent to her death in relation to those policies. The motive, it was said, was to cash in her insurance policies and to acquire the benefit of those proceeds. The critical feature of the prosecution case was an observation by the pathologist who performed the autopsy that four alleged bruises on the lower left leg of the deceased constituted a grip pattern of a hand.

There were two trials – the first jury was unable to agree on a verdict.

The Petitioner appealed his conviction and in his judgment of 22 December 1995 Matheson J identified the “strands” of the evidence at trial as follows:

(1) “It was not disputed by the pathologists, nor by one’s common experiences of life, that it would be unusual, if not extraordinary, for a fit, healthy, 29 year old used to drinking alcohol to drown in her bath after drinking several glasses of wine.”

(2) “The appellant clearly had the opportunity to drown her deliberately, either before he visited his mother (if he did) or after, and was the last person to see her alive.”

(3) “He had a motive, namely to obtain his freedom, and the means to enjoy it.”

(4) “The evidence of Georgiou and Manzitti pointed to the drowning being deliberate.”

(5) “Bruising found on the deceased, and in particular on the left shin, pointed to the modus operandi demonstrated by Dr Manock.”

(6) “The opinions of Drs Manock and James supported such a modus operandi, and neither Dr Ansford nor Professor Cordner rejected it.”

(7) “Epilepsy and myocarditis appear unlikely.”

(8) “A faint, whether or not due to postural hypotension, would be unlikely to cause the number and situation of bruises on the deceased.”

(9) “Falling to sleep would probably have led to her coughing and awakening.”

(10) “The accused has clearly told some lies.”

Matheson J concluded:

The jury saw him [the Petitioner] cross-examined in the witness box. Their verdict indicates they did not believe him, and I am not surprised. On the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that he deliberately drowned his fiancée. I think their verdict was correct. I would dismiss the appeal.

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The new information revealed:

At both trials both Dr Manock and Dr James claimed, or at the very least implied, that their examination of the tissue slides under the microscope (the histological examination) supported the evidence of the existence of the four alleged bruises on the lower left leg of the deceased which taken together formed a hand grip pattern and further that the alleged bruises were all caused at or about the same time which was shortly before death.

A report written by Professor AC (Tony) Thomas following his examination of the original histology slides in July 2000 stated that at least one of the slides showed no evidence of bruising.8 However, it was not completely understood at that time by the lawyers advising the Petitioner that there were in fact two slides which showed no evidence of bruising.

As a result, when Dr James and Dr Manock presented their evidence to the Medical Board during 2004, they were only asked about one slide. Dr Manock said that at the time of the trial he did not disclose the fact one slide showed no evidence of bruising because “It wasn’t part of the conversation” with the prosecutor.9 Dr James said that he did not make disclosure of that fact because he “didn’t think it was particularly relevant”.10 Neither Dr Manock nor Dr James volunteered or mentioned the existence of the second slide.

It is important to note that not only did the tissue slides referred to above reveal no evidence of bruising but as a result it was impossible to use the information on the slides to make any assessment of the age of the bruises. The above information was passed on to the former Solicitor-General by the Petitioner for consideration as part of the Petitioner’s Third Petition. What follows is material discovered by the Petitioner since the refusal of his Third Petition in 2006.

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Discovery of further material: PART 1: 2005-2008 Competency of autopsy:

By letter of 19 December 2005 the Medical Board of South Australia disclosed to the Petitioner the contents of their files concerning the complaints made by the Petitioner against Dr Manock and against Dr James. That disclosure produced inter alia (on or about 21 March 2006) memoranda prepared by the three pathologists on the Board that in November 2004 heard the complaint by the Petitioner against Dr Manock. The memoranda contain comments critical of the work of Dr Manock and opinions that the procedure by which Dr Manock conducted the autopsy was inadequate and substandard.

On 21 January 2008 the Medical Board of South Australia laid a complaint with the Medical Professional Conduct Tribunal that Dr Manock’s conduct of the autopsy was incompetent.

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Differential staining:

It can be demonstrated now that the ‘differential staining’ phenomenon described to the jury by Dr Manock as a “classical sign of fresh water drowning” had, at the time Dr Manock gave this evidence, no scientific basis.

Attempts which have been made by Professor Roger Byard of the Forensic Science Centre, Adelaide, to establish that haemolytic staining of the aorta with no staining of the pulmonary artery as described by Dr Manock is diagnostic of fresh water drowning have failed. Further, the phenomenon of ‘differential staining’ has been demonstrated to occur in cases of natural death other than drowning.

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Re-enactment:

An expert in photogrammetry has provided an opinion on the level of water in the bath at the scene. 16 It shows that the bath was about half full, not up to three quarters full as Dr Manock was asked at the trial to assume when he put his scenario of the manner of death to the jury.

A subsequent re-enactment of the scenario proposed by Dr Manock has found that it was not possible to re-create a situation which was consistent with or explained the alleged bruising. It has been found that with the calculated amount of water in the bath the nose and mouth of a person would not have been covered by the water when their legs were raised and then folded over. It has been further found that the arms would not be trapped by the side of the bath as stated and it would not be possible
for the right leg (shin) to make contact with the end of the bath.

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On 7 August 2008 Professor Thomas was provided with the opportunity to again examine the relevant tissue slides held at the Forensic Science Centre, Adelaide, and did so with Dr Harry Harding.

The fronts of the slides were labelled with stick-on labels. However Dr Harding observed marks on the front of the slides which caused him to examine the reverse sides of the slides. For the first time it became apparent that there were other notations on the slides...

Subsequent analysis alerted the Petitioner’s legal advisers that there were in fact two slides from the medial side of the left leg which revealed no evidence of bruising and not just one slide as the Medical Board had previously been told by Dr James and by Dr Manock.

These two slides are referred to as being ‘levels’. It can be inferred from the existence of the second slide that the second slide was a section cut at a deeper level of the tissue because there was concern about the result of the initial section which had been taken. To take a simple analogy -- if a scientist was asked to test the ingredients in a loaf of bread, it would be appropriate to test one of the first slices from near the top (level 1). If that gave rise to concern, it might be appropriate to take another slice from further down the packet (level 2) in order to confirm the original finding.

Accordingly, on 7 August 2008 the Petitioner became aware for the first time that there were in fact five slides relating to bruising, not four as he had been led to believe, and that two of those five slides showed no evidence of bruising, not just the one that had previously been discovered. This means that there were three slides from the left leg which were relied on by the prosecution to establish the alleged grip pattern and two of those slides do not show evidence of bruising.

The recognition of the second left leg medial slide together with its labelling allowed the Petitioner’s advisers for the first time to gain a proper understanding and interpretation of the reference to ‘levels’ by Dr James in his evidence.

This meant that for the first time it was possible to establish definitely that when Dr James told the jury that both of these slides showed “skin with bruising” he was wrong for both of them.

The recognition of these two slides also established for the first time that in his evidence Dr James did not tell the jury a histology result for the slide from the lateral (outer) side of the left leg. This non-disclosure is of significance in that it has always been understood by the Petitioner and those advising him, and it would have been so understood by the jury, that at least by implication one of the slides Dr James described in his evidence was from the lateral side of the leg.

The identification of the second slide coupled with the non-disclosure by Dr Manock and Dr James of its existence notwithstanding their knowledge of it and its significance demonstrates the presentation to the jury by them of a “false and distorted scientific picture” and confirms the extent of their dishonesty and deception.

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On 17 September 2008 a copy of the hand-written notes made by Dr James at the time he reviewed the work of Dr Manock in 1994 were disclosed to the Petitioner.20 This was the first time the Petitioner had access to these notes despite previous repeated requests. These notes show inter alia that Dr James not only saw but he also
examined during his review the photograph of the medial side of the left leg of the deceased which became Exhibit P53. This was contrary to his evidence at the trial.

On 17 September 2008 a report by Dr James to the Director of Forensic Science dated 6 November 2000 was disclosed to the Petitioner. In this report Dr James admitted that his view at the time of the trial was that the post mortem findings by themselves do not prove homicide and 19 James; second trial, “Clearly the slide labelled ‘Head’ shows skin with bruising and the one labelled ‘Skin’ shows bruising and I have also a note of levels 2 and 3 which are also of skin with bruising.”

The reality therefore is that Dr James agreed with the views expressed by the defence experts whereas the only inference that could be drawn from his evidence is that he agreed with Dr Manock. The jury was misled, as was the Court of Criminal Appeal.

On 17 September 2008 a report by Dr James headed “Review of histology slide re: Anna Jane CHENEY (dec’d 18/3/94)” and dated 9 November 2000 was disclosed to the Petitioner. This revealed that in 2000 Dr James had re-examined the original post mortem tissue slides that had been the subject of his evidence at the trial. In that re-examination he had found that only three of those slides in fact showed evidence of bruising. This was contrary to his evidence to the jury that there were four slides of bruising. This finding by Dr James has not been revealed at any hearing
or proceedings.

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Summary of the new evidence::

The following constitutes new evidence:

The respective and unequivocal conclusions drawn by three medical experts who were members of the Medical Board that heard the complaint by the Petitioner concerning Dr Manock in November 2004 was that Dr Manock’s conduct of the autopsy was incompetent.

The Medical Board has asserted that Dr Manock’s conduct of the autopsy was so incompetent that no conclusion can safely be drawn as to both the cause and manner of death.

3. The Medical Board found that Dr James was guilty of unprofessional conduct in that he failed to disclose relevant information to the Court concerning the histology of one mark on Ms Cheney’s body.

4. Dr James has admitted that it was always his opinion that the pathology evidence does not prove homicide.

5. Prior to 7 August 2008 those advising the Petitioner were only aware that there were four slides relating to bruising, one of which showed no evidence of bruising. As previously understood, there was one slide from the head, one slide from the right leg and two slides from the left leg. It has now been established that there are five slides relating to bruising, two of which show no evidence of bruising. It is known now that these two slides are from the medial side of the left leg. Thus there are in fact three slides which relate to the alleged grip pattern on the left leg, and two of those slides do not show bruising and therefore do not support the mark on the medial side of the left leg as being a bruise.

6. Attempts which have been made to establish that haemolytic staining of the aorta with no staining of the pulmonary artery (‘differential staining’) described by Dr Manock as diagnostic of fresh water drowning have failed.

7. The phenomenon of ‘differential staining’ has been demonstrated to occur in cases of natural deaths which do not involve drowning.

8. Dr James did see Exhibit P53, the photograph of the medial side of the left leg of the deceased and which was said to show the alleged bruise on that side of the leg, contrary to his evidence at both trials that he had not seen such a photograph.

9. It can be shown now that the bath was only about half full, not up to the three
quarters full that Dr Manock was asked to assume in his evidence.

10. A subsequent re-enactment of the manner of death scenario proposed by Dr Manock has found that it was not possible to re-create a situation that could re-produce either the alleged bruising or the alleged drowning.

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Incorrect Evidence:

A significant implication of the new evidence is that it can now be shown that when Dr James told the jury that histology slides “levels 2 and 3” were “of skin with bruising” he was wrong. It is known now that neither of these slides show skin and neither show bruising. Dr James in 2000 has himself confirmed this error (although this was not revealed to the Petitioner until 17 September 2008).

The Petitioner contends that this incorrect evidence by Dr James led the jury to believe that the four histology slides that he had described all showed bruising and therefore confirmed the mark on the medial side of the left leg as a bruise, when this was not so, and thereby supported Dr James’s evidence that the marks were a grip. The Petitioner pleads that this error by Dr James is sufficient of itself to have his conviction set aside.

Harold Levy...hlevy15@gmail.com;