PUBLISHER'S NOTE: In the roughly 10 years since I began publishing The Charles Smith Blog some of the issues I have explored - as well as some of the cases I have been following - have become the subject matter of books. This prompted me recently - as I searched anxiously for ways of keeping me occupied during the languid summer hours - other than sitting on the patio, drinking a cool glass of white wine, and reading the latest Steven King - it occurred to me that a book review series based in my previous posts from the outset of the Blog would be just what the pathologist ordered. I would invite my readers to offer me their own suggestions for inclusion by email to hlevy15@gmail.com. Have a great summer.
Harold Levy: Publisher. The Charles Smith Blog.
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PASSAGE OF THE DAY: (1): (From Graham Archer's personal account of his extraordinary experience reporting the Keogh case); "Henry Keogh’s case probably took longer than most. I had never made it a battle between innocence and guilt, but a question of a fair trial. At the heart of that were the forensics conducted by the state’s Director of Forensic Pathology, Dr Colin Manock. In 1978, after a decade in the role, the Department that employed him told the Industrial Court he was “unable to do certifying of cause of death because of his lack [of qualifications] in histopathology.” It is the essential qualification for forensic pathology. He never gained that credential but was permitted to perform almost 10,000 autopsies in this state. The work he did in the Keogh case was not just flawed – it ultimately had the effect of misleading the jury."
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PASSAGE OF THE DAY: (2): "In 2004, when considering the Petition, the Crown sought advice from the expert best qualified to appraise the crucial forensics in the case. Professor Barrie Vernon-Roberts AO had been the Director of the IVMS and, for many years, had overseen pathology in the state. His 16-page report was scathing of many aspects of the post mortem. His conclusions, however, were dramatic. He found the forensic evidence did not sustain a hypothesis of deliberate drowning and, finally: “My preference as an hypothesis … for Ms Cheney’s death is that she lost consciousness after having sustained an initial fall in blood pressure due to blockage to a small artery in her heart or during a faint. While falling backwards from an erect position hit her head on the bath before sliding under the water and drowning while unconscious.“ That report only became public knowledge nine years later. In August 2006, the appeal for clemency was rejected."
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PUBLICATION: "Unmaking a murderer," by Graham Archer, published by Penguin. (Graham Archer is an investigative reporter and producer who has worked for the ABC, Channel 9 and is now Director, News and Public Affairs, SA for channel 7.)
GIST: (From Penguin): "An investigation into an intriguing murder case and an unprecedented account of how the decisions made by organs of government can be defended and mistakes covered up. Anna-Jane Cheney worked at the epicentre of the conservative Adelaide legal community. She was vivacious, popular and talented, with an impeccable middle-class upbringing. The man she loved, Henry Vincent Keogh, was a divorced 39-year-old Irish migrant with three children. She died just six weeks before their wedding date. According to the prosecution, Keogh had planned the drowning murder of Anna-Jane 18 months in advance. He had taken out five insurance policies amounting to $1.2 million over his fiancée’s life and forged her signature on them. Journalist Graham Archer became fascinated by the case. It wasn’t a matter of Henry Keogh’s guilt or innocence, but that a man could be sentenced to life in prison without him having received a fair trial. The story became an odyssey for Graham. Deliberately, he had no contact with Henry Keogh in the 13 years it took to have the case reviewed by the Supreme Court and have his conviction quashed. In the end dogged determination prevailed, and after 20 years behind bars Henry Keogh was released."
Purchasing information can be read at the link below:
https://www.penguin.com.au/books/unmaking-a-murder-9780143784050
PUBLISHER'S NOTE: Another notable book on the Henry Keogh case is 'Losing their grip' (published in 2006) by Robert Moles, an influential source of law reform in Australia, who played a major role in the establishment of an independent criminal case review court in South Australia and elsewhere - and and played a major role in securing the exoneration of Henry Keogh. It is published by Elvis Press. As prominent Perth QC McCusker wrote: "This book not only exposes the serious flaws in the scientific evidence which convicted one man of murder a decade ago, it also demonstrates how our justice system resists the idea that it may have 'got it wrong.'"
Harold Levy: Publisher The Charles Smith Blog.
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Read Graham Archer's personal account of the Keogh case: 'How could this happen? Henry Keogh's long road to freedom,' at the link following 'GIST);
GIST: "In December 2014, Henry Keogh walked out of
jail for the first time in 20 years. A year later, the case against him
for the 1994 murder of his fiancée, Anna-Jane Cheney, was dropped. As
Keogh prepares to break his silence, journalist Graham Archer reflects
on how his long search for the truth became a battle with the justice
system"...... "In 2003, I said to the then-Director of Public Prosecutions Paul Rofe QC: “This won’t go away.” I was talking about the wrongful conviction of Henry Keogh. I meant it; it didn’t, and it still hasn’t. I just didn’t think it would take 13 years. Unpopular causes are not the usual choice of nightly current affairs
programs. However, when you believe something is wrong, popular or not,
you are presented with a choice: use the power you have to do something
or do nothing. I planned to be as objective as possible. Faced with the hostility
that came my way I can’t say I perfected the technique, however I chose
not to have any contact whatsoever with Henry Keogh. After 13 years I
met and spoke with him for the first time on the evening of his release. What appeared to have been a slam-dunk for the justice system in the end has exposed just how perverted it can be. More disturbing is the tenacity to deny, defend and dig deeper into
the mire when faced with its own repeated and inexcusable errors. Even
now with Keogh’s conviction quashed and any charge against him
abandoned, the same mindset seems to remain. There appears no inclination to learn from the past. I had an immediate sense of the opposition I’d face from the
Government when I was alerted to a speech the then Attorney-General
Michael Atkinson gave in Parliament on April 1, 2003, in response to a
story I’d done on the case. He told Parliament that “a few people, I
repeat just a few people, have questioned the competency of the
prosecution and suggested important pieces of evidence were withheld
from the court. This is wrong. I deny it.” It was actually right, and I
knew it. A blow-by-blow account of the decade-long battle to have the flawed
evidence in the case independently tested is a story for another time. However, it’s worth reflecting on the fact that almost every
miscarriage of justice in this country and around the world has only
come to light following sustained, and sometimes bitterly resisted,
media campaigns. Henry Keogh’s case probably took longer than most. I had never made it a battle between innocence and guilt, but a
question of a fair trial. At the heart of that were the forensics
conducted by the state’s Director of Forensic Pathology, Dr Colin
Manock. In 1978, after a decade in the role, the Department that employed him
told the Industrial Court he was “unable to do certifying of cause of
death because of his lack [of qualifications] in histopathology.” It is the essential qualification for forensic pathology. He never
gained that credential but was permitted to perform almost 10,000
autopsies in this state. The work he did in the Keogh case was not just
flawed – it ultimately had the effect of misleading the jury. Keogh’s one slender thread of hope rested in the hands of the
Government. The Petition for Mercy is an antiquated hangover from the
royal prerogative. For Keogh, it was not a plea to be “freed” from
prison, but the presentation of fresh evidence requesting the right to
have his case referred back to court. As a process, it is deeply flawed. The decision is essentially made
at a political level behind closed doors. No reasons need be given and
there is no right of appeal. In 2004, when considering the Petition, the Crown sought advice from
the expert best qualified to appraise the crucial forensics in the case.
Professor Barrie Vernon-Roberts AO had been the Director of the IVMS
and, for many years, had overseen pathology in the state. His 16-page report was scathing of many aspects of the post mortem. His conclusions, however, were dramatic. He found the forensic evidence did not sustain a hypothesis
of deliberate drowning and, finally: “My preference as an hypothesis …
for Ms Cheney’s death is that she lost consciousness after having
sustained an initial fall in blood pressure due to blockage to a small
artery in her heart or during a faint. While falling backwards from an
erect position hit her head on the bath before sliding under the water
and drowning while unconscious.“ That report only became public knowledge nine years later. In August 2006, the appeal for clemency was rejected. In a media
release, Acting Attorney-General Kevin Foley said he had further
“declined to refer the petition to the Supreme Court, after considering
advice received from the Solicitor General Chris Kourakis QC”. Foley emphasised that the conviction “was never dependent on the
pathology evidence alone”, quoting Rofe’s own address to the jury that
“if this was just pathology evidence then Keogh should be acquitted”. “Rather,” Foley continued, “it was the overwhelming strength of the
whole of the circumstantial evidence against Mr Keogh that led, and
still leads, to a conclusion of guilt.” I felt like a hostage in the Mike Rann “tough on crime” decade. It
was a populist mantra usually the preserve of tabloid TV. The
administration was hell-bent on “locking up bad guys” – addressing
wrongful convictions didn’t play into that narrative. I don’t think a decent society that prides itself on observing the
rule of law can lock up a citizen for 20 years, quash the conviction,
drop the charge and not ask: How could this happen?
By 2012 I could see something had to change. There’s only been one
murder conviction in this state overturned after the justice system had
washed its hands of it. That was Edward Splatt – back in 1984. The legal architect of that was the eminent and indefatigable Marie
Shaw QC. I asked for her help. Fortunately, we were on very good terms.
She agreed, and brought in Sam Abbott SC and a number of dedicated pro
bono lawyers – on the condition I cease my media coverage. I had to
decide between the interests of a man I’d never met and my job. I chose
to silence the guns. At that time, the petition process was still all
there was to work with. Then, in May 2013, one of the great legacies of
the Keogh campaign materialised. Thanks to Independent MP Ann Bressington, a Parliamentary Select
Committee considered an amendment to allow second-chance appeals based
on the emergence of “fresh and compelling evidence”. Behind the scenes I had been lobbying the new Attorney-General John
Rau. He gave me a commitment that if the Committee recommended the
change he would support it. They did and, true to his word, he steered it through the Parliament. It is a national first. The bar was set high but it meant Henry Keogh – and others – now had an avenue back to court, free of political involvement. What happened in the Full Court appeal is now history. DPP Adam
Kimber SC tried unsuccessfully to have the Vernon-Roberts report ruled
inadmissible because its author, suffering dementia, could no longer be
cross-examined. However, every pathologist called – including two by the Crown –
agreed with the report’s conclusions. The forensic conclusions of Dr
Manock were demolished. The conviction was unanimously quashed – but a
retrial was ordered. Despite being cash-strapped and over-worked, the Office of the DPP
spent almost a year pushing on with the retrial. Then, in November 2015,
the DPP announced that “on May 1 an important witness became unwell
[and] there was no reasonable prospect of conviction without the
witness.” He didn’t name this indispensable figure, but I know it to be Dr Colin Manock. Astonishing – the circumstantial evidence, which the public had been
led to believe over many years was so incriminating, didn’t rate a
mention! Henry Keogh was finally free after 20 years of torment. Now it might just be me but I don’t think a decent society that
prides itself on observing the rule of law can lock up a citizen for 20
years, quash the conviction, drop the charge and not ask: “How could
this happen, and why did we behave so badly for so long?” So far the two men who have been granted a second appeal under the
new legislation have had their convictions quashed. That’s a 100 per
cent hit rate. And yet there has been silence! In the case of Keogh, I wrote to the Attorney-General – no response. I wrote to the Law Society – no response. Opposition legal affairs spokeswoman Vickie Chapman has repeatedly
asked the Attorney-General about the Vernon-Roberts report and why it
hadn’t appeared for nine years.
“I have nothing further to add.” You get the justice you settle for."
