Henry Keogh: South Australia: Major Development: Henry Keogh applauds release of hidden top-level investigation of his conviction, 7News Adelaide reports: (Reporter Emily Olle with Mike Smithson)...Publisher's Note... "Concealment of this important forensic report is significant for this Blog because it extends our list of actors in the criminal justice system who have committed forensic related misconduct from lab technicians, pathologists, police officers and prosecutors to the top law enforcement official in the land - in Keogh's case, a man named Chris Kourakis, who was Solicitor-General at the time and today is Chief Justice of the Supreme Court of South Australia."
PUBLISHER'S NOTE:
As publisher of this Blog, I have published far too many posts on what I have come to call 'white elephant cases,' all of which are set out as follows:
"In the years since I started publishing this Blog I have become
increasingly disturbed by the 'white elephant' in the room: Sheer,
unadulterated, willful misconduct in the criminal justice system -
much of it involving forensic evidence - committed by lab technicians,
pathologists, police officers, prosecutors and others. Think Annie
Dookhan; Think Sonia Farak; Think David Kofoed; Think Charles Smith;
Think Ken Anderson; Think Gene Morrison. (And now think South Australian Chief Justice Chris Kourakis.) I have therefore decided to run this image of a
white elephant at the top of every applicable post henceforth, to draw
our reader's attention to what I see as a major problem in all too
many criminal justice system's - my own included. Harold Levy;
Publisher: The Charles Smith Blog;
"Reformers have for years recommended that all forensic labs be
independent from law enforcement and prosecutorial agencies' and this is
a key reform promoted by The Justice Project (2008). But fixing
these problems is only half the answer' because half of the wrongful
convictions attributed to misleading forensic evidence involved
deliberate forensic fraud' evidence tampering' and/or perjury.
From "The Elephant in the Crime Lab," by co-authored by Sheila Berry and Larry Ytuarte; Forensic Examiner; Spring, 2009; http://www.t-mlaw.com/blog/post/the-elephant-in-the-crime-lab/"
Concealment of this important forensic report is significant for this Blog because it extends our list of actors in the criminal justice system who have committed forensic related misconduct from lab technicians, pathologists, police officers and prosecutors to the top law enforcement official in the land - in Keogh's case, a man named Chris Kourakis, who was Solicitor-General at the time and today is Chief Justice of the Supreme Court of South Australia. As 7News reports, Kourakis denied Keogh's petition for mercy - even though at the time he possessed a forensic report - which he kept secret even from Henry Keogh's lawyers - which concluded that Anna-Jane Cheney's death was accidental, or the
result of a medical event, and that the autopsy of Dr Manock was
"wholly inadequate" in numerous ways. To make matters worse, the report also recommended a test
for bruising, that Kourakis chose not to have carried out. As noted by Dr. Bob Moles, in an analysis posted below: "In addition, a further test (the haemosiderin test) was recommended
by the Professor. Permission for that test was not given by the
Solicitor-General. When it was subsequently undertaken on the
instructions of the Court of Appeal, the results had a profound affect
upon the consideration of the case. It showed that the bruising to the
leg had occurred long before the night in question." As Dr. Moles comments, Chief Justice Kourakis has a lot of explaining to do, especially in the context of the South Australian government's efforts over the years to resist publication of the forensic report. In view of the governmental obstruction of Henry Keogh's desperate struggle for freedom and exoneration, the high level's involved, and the importance of maintaining public confidence in South Australia's criminal justice system, it is hard to imagine that anything short of a public commission of inquiry will do.
PASSAGE OF THE DAY: The
forensic report, compiled by now-Chief Justice Chris Kourakis,
Solicitor-General at the time, reviewed crucial forensics which led to
the conviction and formed the basis of the former Labor government's
decision to reject Keogh's petition for mercy. Among
those was a forensic report from Professor Barrie Vernon-Roberts, from
the Institute of Medical and Veterinary Science (IMVS). Vernon-Roberts
took the preferred view that the death of Cheney was accidental, or the
result of a medical event, and that the autopsy of Dr Manock was
"wholly inadequate" in numerous ways. The report also recommended a test
for bruising, that Kourakis chose not to have carried out.
Vernon-Roberts' report was the catalyst for Keogh's successful appeal.
In
his report, reviewed by 7NEWS, Kourakis upheld the original evidence of
guilt, despite Vernon-Roberts' blistering fault-finding. Keogh believes
releasing it at the time would have fast-tracked the eventual Full
Court decision in his favour."
Details of hidden investigation released into one of SA's most notorious deaths."
PHOTO CAPTION: Photo caption: "Acquitted
of his fiancée's murder after 20 years behind bars, a controversial
investigation into Henry Keogh's conviction has been made public."
GIST:
"It's been a long road for Henry Keogh. He
spent 20 years behind bars, controversially convicted over the murder
of his fiancée Anna-Jane Cheney in 1994 - a decision that was overturned
in 2014 after Channel 7's Today Tonight helped prove the forensic
evidence against him was flawed. Now, details of a hidden top-level
investigation into Keogh's controversial case have been made public. The case that captivated South Australia:
The death of Cheney, a talented young lawyer, captivated the state. It
was alleged Keogh, a financier and insurance broker who left his wife
and children to be with the 29-year-old, drowned Cheney in the bathtub
of her Magill home in Adelaide's east to cash in a $1 million life
insurance policy. The initial Supreme Court trial was deadlocked, but a
retrial found him guilty. Keogh - who has always protested his innocence
- was sentenced to 25 years behind bars. But the case was far from
over. His
supporters, who believed Cheney died of a seizure, launched what would
become a long-running and high-profile crusade to have him freed, based
on what they argued was flawed forensic evidence from pathologist Dr
Colin Manock. Keogh made four ViceRegal
petitions for mercy, calling upon then-Attorney-General Michael Atkinson
to exercise his prerogative to either refer the case for appeal or
pardon him. These petitions were rejected by the then-Labor government.
But in 2013 - a breakthrough. New laws allowed Keogh to launch another
appeal, on the grounds of 'fresh and compelling evidence'. After 19
years in jail, he walked free in 2014 after the Court of Criminal Appeal
ruled in his favour. Report revealed: Now,
details of a hidden top-level investigation into Keogh's case, which
could provide insight as to why his mercy bid was rejected, have been
made public. It was tabled in state parliament on Monday, following a
long legal battle for its release. The 148-page document was held under
lock and key by the former Labor government for 13 years. The
forensic report, compiled by now-Chief Justice Chris Kourakis,
Solicitor-General at the time, reviewed crucial forensics which led to
the conviction and formed the basis of the former Labor government's
decision to reject Keogh's petition for mercy. Among
those was a forensic report from Professor Barrie Vernon-Roberts, from
the Institute of Medical and Veterinary Science (IMVS). Vernon-Roberts
took the preferred view that the death of Cheney was accidental, or the
result of a medical event, and that the autopsy of Dr Manock was
"wholly inadequate" in numerous ways. The report also recommended a test
for bruising, that Kourakis chose not to have carried out.
Vernon-Roberts' report was the catalyst for Keogh's successful appeal.
In
his report, reviewed by 7NEWS, Kourakis upheld the original evidence of
guilt, despite Vernon-Roberts' blistering fault-finding. Keogh believes
releasing it at the time would have fast-tracked the eventual Full
Court decision in his favour: Questions asked: While
Attorney-General Vickie Chapman today avoided commenting on the Chief
Justice's former life, the report raises questions as to why Kourakis'
findings were so at odds with the Full Court's findings, a decade later.
For
Keogh, he believes the report's release brings him one step closer to
understanding just why he was, in his opinion, denied justice. "If you
persist long enough, you will win," he said. "And that's the key to
winning... persistence.""
See also analysis by Dr. Bob Moles at the link below: (Dr Bob Moles, Adjunct Principal Researcher, College of
Humanities, Arts and Social Sciences, Flinders University of South
Australia, has consulted on the Keogh case for several years.
The report by the Solicitor-General
is undated but clearly had been provided prior to the statement by the
Acting Attorney-General who rejected the Keogh petition on 10 August2006 based upon that advice. It is clear that the opinion expressed by the Solicitor-General that a
referral to the Court of Appeal by the Attorney-General would have no
prospect of success was clearly incorrect. The subsequent appeal by Mr
Keogh based substantially upon the same evidence that was before the
Solicitor-General was in fact successful. This is disturbing because the test which should be applied by an
Attorney-General on a statutory referral application and that to be
applied by the Court of Appeal are significantly different. In effect,
the Attorney-General is considering an application for leave to appeal.
At that stage, the applicant only has to show that his case is
‘reasonably arguable’. If the Attorney makes the referral the Court of Appeal will have to
consider the appeal. The test for the appeal itself is more demanding.
At that stage it has to be shown that there has been ‘a substantial
miscarriage of justice’. So, how could the Court of Appeal find that there has been a
substantial miscarriage of justice – and the Solicitor-General advise
that the case is not even reasonably arguable – when they are
considering substantially the same evidence? The answer is that the Solicitor-General was applying the wrong test.
He repeatedly discussed whether there was sufficient evidence to
support a finding of Mr Keogh’s guilt. He repeatedly stated that he was
satisfied that Mr Keogh was guilty. “The combined weight of the circumstances are more than sufficient to
prove Mr Keogh’s guilt” [para 16 SG Report] “..after considering all of
the evidence I am satisfied, and advise you, that there is no reason to
doubt the guilt of Mr Keogh.” [para 17 SG Report] What he should have been considering was whether Mr Keogh had been given a fair trial. After acknowledging that there had been significant errors in the
conduct of the autopsy, and the way in which the evidence had been
presented at trial, the Solicitor-General formed the view, in his
advice, that the circumstantial evidence (insurance policies, affairs
and lies) in conjunction with the forensic evidence as it then stood
would be sufficient to support a conviction. But the Solicitor-General should have appreciated that such considerations would be suitable for evaluation – by a jury – at a retrial.
The recent High Court cases state repeatedly that it is not for the
appeal courts (much less a Solicitor-General) to usurp the function of
the jury. The job of the appeal court is to look back at the way in
which the trial was conducted, and to ask whether any errors which may
have occurred could reasonably have influenced the jury in arriving at
their verdict. If they could have, then the verdict must be set aside. The Solicitor-General in his report frequently acknowledged that
there had been significant errors in relation to the autopsy procedures,
and the way in which inferences as to the cause of death had been
arrived at by Dr Manock. For example, the investigation as to other
possible causes of death was woefully inadequate, and many of the
inferences drawn by Dr Manock were without scientific support. As the
Court of Appeal subsequently stated, Dr Manock had misled the jury, the
court, the prosecution and defence counsel and the findings in relation
to them had ‘changed the evidential landscape’. In the proceedings before the Medical Board Dr Manock had actually
recanted on significant aspects of the evidence he had given at trial.
For example, whether the assailant had used a left hand or a right hand
to grip the leg, or whether it could be said that the victim had been
conscious at the time of the alleged drowning. The Court of Appeal
subsequently accepted that those factors alone would justify the verdict
being set aside as they placed the autopsy ‘in an entirely new light’. Yet, the Solicitor-General had taken the view that those factors did
not provide even a reasonably arguable case for the conviction to be
reconsidered by the Court of Appeal. It is a matter of grave concern that the forensic pathology report
which was furnished to the Solicitor-General by Professor Vernon-Roberts
was not even disclosed by him to Mr Keogh’s lawyers as it clearly
should have been. The Court of Appeal acknowledged that it had been
received by the Solicitor-General (in 2004) when considering his advice,
but had not been disclosed to Mr Keogh’s legal team until 2013 when he
applied under the new right of appeal. That was a disgraceful lapse in
the duty of disclosure by the Crown, yet the duty to disclose was not
mentioned by the Solicitor-General in his advice. In addition, a further test (the haemosiderin test) was recommended
by the Professor. Permission for that test was not given by the
Solicitor-General. When it was subsequently undertaken on the
instructions of the Court of Appeal, the results had a profound affect
upon the consideration of the case. It showed that the bruising to the
leg had occurred long before the night in question. The reasons for the
Solicitor-General not granting that permission should be obtained. The fact that the advice by the Solicitor-General and the subsequent
findings of the Court of Appeal differ so markedly in the legal
principles they applied to the consideration of this case give rise to
grave concern. If the assessment by the Solicitor-General could have
been so much at odds with the findings of the Court of Appeal, have
there been other cases in which similar differences have occurred? How is it possible that the Solicitor-General could have made such
errors in his assessment of such an important case – especially when the
correct legal principles have been so clearly established in High Court
appeals which were obviously well known at that time? Why was the report of the Solicitor-General not released earlier,
when it was clear that the legal principles governing legal privilege
were also well known and clearly favoured such release? The Solicitor-General made it clear in his report that the
circumstantial evidence along with the forensic evidence which remained
clearly justified a finding that Mr Keogh was guilty of this terrible
crime. If that were so, then after his successful appeal he would have
been retried and found guilty. The fact that Dr Manock was not available
to give evidence should not be determinative. Other experts could have
come forward to explain the significance of his findings if they had
been properly recorded. The fact that the DPP entered a nolle prosequi
establishes conclusively that there was not in fact sufficient evidence
to proceed to a further retrial. The fact that Dr Manock’s evidence was not in fact admissible at all,
because he was not qualified as an expert, had been acknowledged by the
state in legal proceedings which delivered the judgment on his case in
1978. Curiously, the Solicitor-General did not make mention of that
important issue. The consequences of the advice given by the Solicitor-General could
not have been more severe. Mr Keogh was denied the opportunity to put
his case to the court where all of the factors could have been openly
canvassed. If the new right of appeal had not been established, then Mr
Keogh would never have had his case reviewed. The consequence of that is
that he would have remained in prison for the rest of his life – it
being a principle of parole applications in this state that applicants
must admit guilt before being allowed to proceed. Such is the case of Mr
Bromley. In Canada and in the UK it is clearly established practice that the
reasons for the rejection of an application for a review of a potential
wrongful conviction are made available to the applicant at both draft
and final stages. Yet here, it had to take years of legal wrangling to
not only obtain the reasons for the rejection of this application, but
also the evidence upon which it was based. There has clearly been a fundamental failure of due process and the
rule of law in this case. An independent judicial inquiry should be
established to determine the reasons for the discrepancy between the
reasoning of the Solicitor-General and that of the Court of Appeal here. Now that Mr Kourakis has been elevated to the position of
Chief Justice in South Australia, he has an obligation to maintain the
integrity of the judicial system in South Australia. So, does he accept
that the Court of Appeal on Mr Keogh’s appeal was correct to overturn
the conviction? If so, he must accept that his decision not to refer the
matter to the Court of Appeal was wrong. If he maintains that his
position was correct, then by implication he is saying that the Court of
Appeal decision was wrong. That is not a tenable position for a Chief
Justice. https://wrongfulconvictionsreport.org/2019/05/01/kourakis-report-re-keogh-chief-justice-position-now-untenable/
PUBLISHER'S
NOTE: I am monitoring this case/issue. Keep your eye on the
Charles Smith Blog for reports on developments. 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: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher; The Charles Smith Blog.
