INJUSTICE IN SOUTH AUSTRALIA
AND
THE NETWORKED KNOWLEDGE PROJECT

 

 

THE TEAM
Because of the widespread national concern about these matters, and because some of the officials based in South Australia seem either unable or unwilling to investigate these matters, we have brought together a unique team to ensure that they do not continue to be brushed under the carpet.

COUNSEL
The following people have agreed to act as counsel in relation to these matters:
John Nader QC Sydney. John is a former Supreme Court Judge of the Northern Territory. He is now head of the Legal Professional Conduct Tribunal for New South Wales.
Tim Game SC Sydney. Tim previously acted for Henry Keogh in his application for leave to appeal to the High Court, which was not allowed.
Tom Percy QC Perth. Tom has achieved a number of notable successes in relation to overturning convictions in relation to miscarriages of justice in Western Australia.
Kevin Borick QC Adelaide. Kevin has appeared in the ABC 4Corners program and in a number of Channel 7 Today Tonight programs. He is the President of the Australasian Criminal Lawyers Association and has played a leading role in pressing for these Inquiries.
Stephen Howells barrister Melbourne. Stephen is the Head of the Independent Gambling Authority for South Australia and one of the country’s leading barristers in civil litigation, and he has a particular interest in administrative law.

SOLICITORS
The following have agreed to act as solicitors in relation to these matters:
Michael Sykes of Sykes Bidstrup, Adelaide. Michael was formerly the solicitor to Henry Keogh in instructing Tim Game SC in the High Court appeal. Neither Michael nor Tim were involved in the Trial proceedings.
Chris Patterson, Finlaysons, Adelaide. Chris is a criminal and industrial lawyer who has worked with Kevin Borick and Bob Moles in preparing the Petitions for Henry Keogh and in representing him before the Medical Board.
Terry O’Gorman AM of Robertson O’Gorman, Queensland. Terry is a prominent advocate on civil liberties issues in Australia for which he was recently awarded the AM.

 

THE BOOK

TITLE: A STATE OF INJUSTICE

 

Are people “getting away with murder” in South Australia? Most people assume that the legal system works pretty well at dispensing justice, but this is not always the case.

Professor Derrick Pounder Author: Dr Robert N Moles
Category: Non Fiction
RRP: $24.95
Publication: 1 October 2004
ISBN: 0734405979
Publisher: Lothian Books
Paperback

 

Drawing on painstaking research and insightful analysis, A State of Injustice examines various cases where forensic investigations were later found to be flawed. These cases have prompted calls for the establishment of a criminal cases review commission and raised doubts about the involvement of the former Chief of Forensic Pathology for South Australia, Dr Colin Manock, whose qualifications for the job have come into question. In view of the errors brought to light, author Robert Moles asks, have innocent people been wrongly imprisoned and have guilty parties literally gotten away with murder? A State of Injustice will make every reader wonder: If the system fails, who then will protect the innocent?

Dr Bob Moles was born and educated in the UK. He graduated in law from Queens University, Belfast, and completed his PhD at Edinburgh University. He previously held positions as Associate Professor of Law at the University of Adelaide, senior lecturer in the Faculty of Law at the Australian National University and lecturer in law and jurisprudence at Queens University Belfast. His previous book was Definition and Rule in Legal Theory (1987). Currently he works full-time on the Networked Knowledge Project, which investigates alleged miscarriages of justice that have occurred in South Australia over the last 30 years.

 

More information:
Contact Georgie Way ph 03 9694 4932 or 0407 301 367
Email georgina_way@lothian.com.au

 

Networked Knowledge – Briefing Paper – The Cases
Dr Colin Manock was the Director of Forensic Pathology in South Australia between 1968 and 1995.

Mr Henry Keogh – conviction for murder
Henry Keogh was convicted of the murder of his fiancée Anna-Jane Cheney in 1994. The conviction was based on a theory expounded by Dr Manock to the effect that when Anna Cheney was taking a bath, Henry Keogh had gripped her left leg, then forced her legs over her head, causing her to drown. The evidence of the grip mark was said to consist of four bruises on Anna’s left leg.

Mr Keogh has exhausted all avenues of appeal. In August 2002, he submitted a Petition to the Governor of South Australia. The Petition asked for his conviction to be re-examined because the evidence given by Dr Manock had been incompetent and unprofessional. The Petition was rejected upon the advice of the Attorney General in December 2002.

In August 2003 Mr Keogh submitted another Petition which claimed that the Attorney General’s advice in relation to the previous Petition was in error, and therefore Mr Keogh’s earlier Petition should be re-examined. The Attorney General is now seeking the advice of the Solicitor General in relation to the Petitions. Mr Keogh’s legal advisers have provided substantial new evidence to the Solicitor General.

Mr Keogh has also submitted a Complaint to the Medical Board of South Australia. It alleges that Dr Manock has been incompetent and unprofessional in the practice of Medicine.

On 1 April 2003 the Attorney General told the Parliament that:
Notwithstanding these efforts to explain that all relevant facts had been considered by the court in convicting Henry Keogh, a few people (I repeat, just a few people), including a couple of lawyers and a former law professor, have questioned the competence of the prosecution and suggested that important pieces of evidence were withheld from the court.

The Attorney General also told the Parliament:
… the assertions made on the Today Tonight program overstate the extent to which the Crown relied on the competence of Dr Manock.

This contrasts with the submission made by Mr Rofe QC, as the Director of Public Prosecutions, when he told the jury in his summing up to them:
… you might give him [Henry Keogh] the benefit of the doubt, explain away in some way, the one positive indication of murder, namely the grip mark on the bottom left leg. He then went on to say to the jury: [Dr Manock] was the one who saw the body, who put his hand on the marks on the lower leg and said, “That’s consistent with a grip mark and I can’t think of anything else it could be”.

Contrary to what the Attorney General said about the numbers of people involved, there is an extensive group of eminent lawyers, scientists, medical and forensic specialists, who are asking for Mr Keogh’s case to be re-examined.

What is the basis of the Complaint?
It is now clear from the affidavits which have been provided by many senior pathologists, scientists and doctors in Australia, that there is not (nor has there ever been) proper evidence to support a finding as to the cause of death of Anna Cheney. It is also clear that possible causes of death, including accidental and natural causes, have never been properly examined or excluded. As Dr Manock said in his evidence at Mr Keogh’s committal hearing: … I was at no time looking or thinking that the death was accidental because I could find no explanation as to why she would drown.

Because of Dr Manock’s incompetence, it is not possible now to determine a cause of death. This much can be clearly established from the affidavits which have been submitted to the Medical Board and to the Solicitor General. We have also established that Dr Manock has had an extensive history of incompetence in other cases.

The Baby Deaths 1994.
These cases were being heard by the Coroner whilst the Keogh case was being investigated. They involved the deaths of three babies each between the ages of three months and nine months. Each of them exhibited very serious non-accidental injuries. One of them had 15 broken ribs, a fractured spine and head injuries. Dr Manock determined that they had each died from bronchopneumonia.

The Coroner concluded that Dr Manock’s diagnosis of bronchopneumonia was wrong. He said in his Findings that Dr Manock did not follow the most basic forensic pathology procedures. He stated that Dr Manock had not taken proper tissue samples for microscopical examination. The Coroner also found that Dr Manock’s explanations for his failure to consult with the police investigators were “spurious”.

Dr Manock’s investigation, and his subsequent report provided innocent explanations for the most serious injuries found on Joshua’s body, explanations which I am now satisfied were incorrect. Dr Manock’s explanations for failing to consult with police investigators were spurious. Because of Dr Manock’s incompetence, the people who had caused the extensive injuries to these babies were never brought to justice.

Unfortunately, the Coroner held back his Report until two days after Mr Keogh’s conviction for murder. He said that although his report had been completed during the Keogh trial, he did not want to release it until after Mr Keogh’s trial had been concluded; in case it interferred with the trial in some way. Given that his report directly undermined the integrity and professional competence of Dr Manock (the Crown’s chief witness at Mr Keogh’s trial) we take the view that this was a serous error of judgment by the Coroner. We are also of the view that the Coroner should have ensured that the Medical Board investigated Dr Manock’s conduct in the Baby Deaths cases - and the others which we have reported on here.

The English Schoolboy 1999
Dr Manock determined that an English schoolboy, who had died whilst playing rugby, had died as a result of heatstroke. The Coroner of the Northern Territory commissioned an independent report from Dr Thomas of the Flinders Medical Centre. The same Dr Thomas who had reported to the South Australian Coroner on the Baby Deaths. Professor Thomas determined that the diagnosis of heatstroke was wrong, and that the boy had in fact died as the result of a heart defect.

Dr Thomas stated in his report that:
Sudden death with no previous symptomology is not that of heat stroke. It is clear that Dr Manock had misdiagnosed heatstroke. The symptoms are not the same. The boy had not been playing long enough to develop heatstroke. It is incorrect to say that he came from a cold climate to the tropics. He had come from an English summer to the Australian winter, where temperatures were comparable in each of those places. There had not been an incident of heatstroke, amongst any of the other schoolboys, and no similar event in the last 6 years. In interpreting the heart weight, Dr Manock failed to take into account the body weight.

Dr Manock’s interpretation of “interstitial haemorrhage” within the heart was not correct. Dr Manock said that the lungs showed signs of muscle spasm. There is no way that such a spasm could be detected after death. There are no signs to support such a diagnosis macroscopically or microscopically. The lungs are slightly heavy, but not twice as heavy as Dr Manock stated. This is a normal finding at autopsy.

In conclusion, Dr Thomas said that the death had nothing whatever to do with heatstroke. He also said that the information provided in the autopsy report was grossly inadequate. He said that a more comprehensive examination of the heart should have been performed.

Gerald Warren 1992
Gerald was a 15 year old aboriginal boy. He was killed on a dirt track outside Port Augusta. A subsequent confession by his murderers demonstrated that Dr Manock’s opinion as to cause of death was wrong. Again, this case demonstrated Dr Manock’s lack of expertise on the issue of the timing of bruises and injuries – one of the key factors in the Keogh case.

Dr Manock said that if Gerald had been hit about the head with a metal bar, or had had the fabric of corduroy impressed against his skin, the resulting injuries would have been indistinguishable from each other. Dr Manock also said that if Gerald had fallen out of a moving vehicle, or if he had had the vehicle driven backwards and forwards over the top of him, the physical forces and the resulting injuries would again have been the same. His “expert” opinions on these matters could easily have led to the acquittal of those accused of the murder.

Peter Marshall 1992
Mr Marshall was found dead beside his bed, with some blood pooling around his head. Dr Manock visited the scene and said that Mr Marshall had died by falling out of bed and had possibly suffered a brain haemorrhage. He concluded that there was “nothing suspicious” about the death. During the subsequent autopsy, it was found that he had been shot in the head and that a bullet was lodged in his brain. By that time, of course, the murder scene had been tidied up. The person or persons responsible for Mr Marshall’s murder have not been brought to justice.

Terry Akritidis 1987
Terry’s body was found beside a police communications tower in a fairly remote area. At the Coronial inquiry which took place some three years later, Dr Manock said that it was his expert opinion that Terry had jumped from the tower and that he had committed suicide. Dr Manock told the Coroner that he thought that Terry had died some 12 hours before his body had been undressed at the autopsy. This turned out to be some 2 hours after his body had been found by the police. Nobody seemed to think that there was anything problematic with this.

Dr Manock accepted that Terry might have fallen as far as 150 feet and that he would have been falling “partially inverted”. Dr Manock also accepted that a hole about one foot square had been knocked right through the thick reinforced concrete roof on which he presumed that Terry had landed. Dr Manock stated that Terry had had no significant head injuries.

Dr Manock told the Coroner that he would not have expected Terry to have significant external injuries after falling that distance and landing on a concrete slab. Dr Manock explained that this was because “his clothing would have been interposed between his body and the surface that it struck.” Again, no one (apart from Terry’s father) seems to think that there might be anything problematic about this determination.

Ms Cook 1984
Mrs Cook was found dead in a car at the Bolivar sewage treatment works in Adelaide. One of Australia’s most respected pathologists, Dr DV Plueckhahn has described Dr Manock’s evidence in this case as “not tenable” and “without any scientific basis”. This case also involved the issue of bruising, which is a particularly important issue in the context of the Keogh case.

John Highfold 1983
Mr Highfold was an aboriginal man who had been found dead in custody. Dr Manock gave evidence that Mr Highfold had died of an epileptic seizure. Professor Burns (a specialist on epilepsy) said there was no test which could establish that epilepsy had been a cause of death.

Mr Eames was Counsel Assisting the Commission.[1] He said that by regarding Mr Highfold’s death as routine, Dr Manock’s approach had been ‘inappropriate’ as part of vital investigations into a death in custody. He asked Dr Manock that, where a prisoner is found in a cell with no apparent cause of death, would he not agree that a heavy responsibility is placed on the pathologist to examine and exclude all other reasonable possibilities? Dr Manock replied ‘No I would not’.

Mr Eames asked Dr Manock if it would be a failure by a pathologist not to gain access to the full medical records of a prisoner who had died in custody. Dr Manock said ‘Yes’ it would. However, there is no record of Dr Manock fulfilling a similar responsibility in the case of Ms Cheney.

Mrs Emily Perry 1981
Dr Manock said that it was his opinion that Mrs Perry had tried to poison her husband with arsenic. It was Dr Manock’s view that she had probably done the same thing to others she had been involved with over the previous 20 years. It was in fact her husband who was the chief witness for the defence. However, Mrs Perry was convicted of attempted murder. She was sentenced to 15 years imprisonment with hard labour. Her appeal to the Supreme Court was unsuccessful.

In the High Court, Justice Lionel Murphy (in referring generally to ‘the modern forensic scientist’) said that the prosecution’s evidence fell far short of the proper standard. He said that if the expert assistance available to the prosecution in this case was typical, then the interests of justice demanded an improvement in both the investigation and the interpretation of data – and their presentation to the court by witnesses who are substantially and not merely nominally experts in the subject which calls for expertise.

In referring more directly to Dr Manock’s evidence, Justice Murphy said that Mr Perry had had a history of motor bike accidents, including severe injury to his facial structure and nasal passages which led to symptoms such as rhinitis (running nose). He said that the prosecution's expert witness had attributed this to arsenic or lead poisoning by Mrs Perry. The only problem with this theory was that the condition had existed years before Mr Perry had made her acquaintance. The condition had, in fact, been the subject of a published medical article on facial reconstruction.

Justice Murphy then went on to say as part of his general criticism of the case: … the evidence, particularly in relation to Duncan, but also of the other alleged poisonings including that of Mr Perry, revealed an appalling departure from acceptable standards of forensic science in the investigation of this case and in the evidence presented on behalf of the prosecution.[2]

He said that in his opinion, “the evidence was not fit to be taken into consideration”. He pointed out that in his summing up, the trial judge had said that no-one had even thought of lead or arsenic as even a possibility until the case against Mrs Perry began.

David Szach 1979
This case involved Derrance Stevenson, a lawyer in Adelaide, who was found dead in a freezer at his home. He had been shot. His young boyfriend was convicted of his murder. Dr Manock’s estimate of the time of death was wrong. He utilised a scientific formula in an entirely inappropriate manner. He “made up” or guessed at most of the significant variables which he used in the formula. He could not have known the temperature of the body when it was placed in the freezer. He could not have known what the temperature of the freezer was at the time of the body’s placement there. He could not have known how long the body had been in the freezer. It just so happened that the “estimated time of death” was the time when David Szach was known to be at the premises.

Frits Van Beelen 1972
This case involved the murder and rape of a young girl on Taperoo beach just outside Adelaide. Dr Manock’s evidence was again, scientifically unsound. In particular, his attempt to fix the time of death to within a time frame of 15 minutes, based on the analysis of stomach contents.

Professor Pounder of Dundee University has published articles in the medical literature to say that Dr Manock’s methodology in this case was unscientific. In another case a few years later, Dr Manock agreed that such accuracy was not possible. Nobody thought to reconsider the effect of that revised opinion on the prior conviction of Van Beelen.

Mr Van Beelen went on to serve over 17 years in prison. Normally he would have been released after about 9 years, but because he would not admit to having committed the crime, the parole board would not grant his parole. We have now established that if the forensic evidence put forward by the Crown in Van Beelen had been properly explained it would have demonstrated that Mr Van Beelen could not have caused the injuries to the girl during the time he was at the scene.

Summing up
After these cases, the DPP continued to use Dr Manock as the Crown’s expert witness in the Keogh case. Even if the DPP did not know of all of these shortcomings at the time of the Keogh trial, he certainly knew about them when he was asked to advise the Attorney General on Mr Keogh’s Petition. That Petition contained all of these details (and more) about Dr Manock’s previous cases. After reviewing all of that evidence about Dr Manock’s work, the DPP still advised the Attorney General that there was no need to review the procedures relating to the conviction of Mr Keogh.

NOTES
[1] Mr Eames is now a judge of the Victorian Supreme Court.
[2] Ibid, at 599.

 

 

TOP

 

 

www.slimeylimeyjustice.org