Wednesday, October 8, 2014

Henry Keogh: South Australia; Guest Post. Dr. Bob Moles. (I asked Dr. Moles to provide our readers with an update on Henry Keogh's on-going appeal of hs conviction in 1995 for the murder of his fiancee. Dr. Moles very graciously complied. HL);

PUBLISHER'S NOTE: I am very grateful to Dr. Bob Moles for responding so quickly to my request for an update on the on-going appeal. Dr. Moles played a pivotal role in the movement for establishing an independent appeal process in South Australia. I have been following the Henry Keogh case on this Blog for years because of the blatant miscarriage of justice which cries out for correction, the riveting forensic issues of the case, and the noble battle that has been fought for Henry Keogh's freedom and exoneration.

GUEST POST:  The Henry Keogh appeal: South Australia: The history-making appeal against a conviction for murder in the case of Henry Keogh was heard for two weeks from 22 September 2014. Mr Keogh was convicted of the murder of his fiancée in 1995. It was said that he had drowned her in a bath at their home in Adelaide in South Australia in 1994 – just two weeks before they were due to be married. Part of the circumstantial context which looked suspicious were several insurance policies which he had taken out on her life and he admitted he had signed the applications in her name. He explained that he was merely putting policies through his agency (he was a financial planner) to keep his agencies open. There was also a question about whether he had affairs with some women.
A key part of the Crown case was the forensic pathology evidence which was said to have established bruising to the legs and head of the deceased. The Crown alleged that the bruises to the legs were the classic sign of a grip-mark. This was interpreted to mean that the accused had gripped the legs of his fiancée, forcing them up in the air and pressing down on her head to effect a forced drowning. It was also said that bruising to the head and neck provided some corroboration for this scenario as it would otherwise require a “complex choreography” to explain the bruises as part of an accidental fall.
Since his conviction and failed appeal serious questions have arisen about the work of the former chief forensic pathologist in a wide range of cases. They have been discussed in the book A State of Injustice (2004). There have been numerous television radio and media reports about his work more generally and in particular in relation to the case of Mr Keogh. The web site for the Keogh case is here, and the book Losing Their Grip (2006) on the Keogh case is also available online.
The problem was that Australian law did not allow for second or further appeals. The only chance of a further review was to obtain a referral back to the courts by an Attorney-General. Being a person who also holds a political office experience has shown that such referrals are notoriously difficult to obtain.
In 2013, after much lobbying and manoeuvring, the South Australian parliament passed new legislation to create a right to a second or further appeal in circumstances where there was fresh and compelling evidence that there had been a substantial miscarriage of justice. The complexities of this are considered in a recent law journal article. It was the first substantial change to the Australian criminal appeal rights in over 100 years.
Mr Keogh lodged his application for a fresh appeal which is now in the process of being heard. Most people were surprised to learn that in 2004 when an application was before the Attorney-General for a referral, the Solicitor-General had obtained an independent forensic report on the case. [It was not disclosed until 2013, according to the judgment on the leave application.] Greater was their surprise when they learned that the report stated that in the opinion of the expert concerned, the forensic evidence supported an accidental slip-and-fall scenario, but not a homicide scenario.
Since then, two further forensic experts have been consulted. One was Professor Pounder from the UK (retained by the defence) and the other was Dr Lynch from Melbourne (retained by the prosecution). According to their evidence on this appeal, both of them agreed in substance with the findings of the earlier report from 2004. This means that the prosecution now had two expert reports which they have obtained and which undermined key issues put forward by the prosecution at trial. The defence have also obtained two additional forensic reports, post-trial, which have reached the same conclusion.
In addition, the chief forensic pathologist since the trial has given sworn evidence in professional conduct proceedings which contradicted or undermined the evidence which he gave at trial. These have been outlined in chapter 11 of Losing Their Grip. He expressed a different view as to whether the leg was gripped by a right hand (at trial) or a left hand (post trial). At trial he had said that the woman would have been conscious when forced into the water because there was no sign of external damage to the brain, thus ruling out the accident scenario. He later accepted that this had no proper scientific basis to it. This, presumably, opened up the “accidental scenario” hypothesis as a reasonable possibility. He had said at trial that “aortic staining” was a sign of drowning, but subsequently accepted that there was no support for this in the scientific literature.
This appeal has so far revealed the unanimous opinions expressed in the post-trial scientific reports. It has set out what the defence referred to as the significant number of “recantations” by the chief forensic pathologist since the trial. Despite this the prosecution have maintained either that the evidence does not satisfy the “fresh and compelling” test for the admission of new evidence on the appeal,  or that if it does satisfy that test it does not show that there has been “a substantial miscarriage of justice” as the legislation requires.
Whilst the substance of the appeal has now been heard, a directions hearing has been set for Monday 13 October to address a few outstanding issues. It may take some time yet before the result of the appeal is known. 


Dear Reader. Keep your eye on the Charles Smith Blog. We are following this case.
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The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at:

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Harold Levy: Publisher; The Charles Smith Blog;