Nicholas Gruen posted on the weekend about a South Australian defamation matter called Manock v Channel Seven Adelaide Pty Ltd which has been going for almost 7 years and still hasn’t even reached trial. Nicholas quite rightly cited the case as a good example of the deplorable tendency of Australia’s legal system to foster/tolerate gross delaying tactics and utterly unnecessary complexity and expense resulting in systemic unfairness.
However, the context for the Manock case is itself fascinating and well worth a blog post in its own right. Dr Colin Manock is a veteran forensic pathologist who performed the autopsy on a 29 year old Adelaide lawyer named Anna-Jane Cheney after her death in 1994. Ms Cheney had drowned in her bath at home. Dr Manock concluded that she had been murdered by someone using a technique effectively identical to the notorious UK Brides in the Bath murders in the early 1900s. One George Joseph Smith had killed three wives in succession by suddenly grabbing their ankles and pulling their heads under water while they were in the bath. Smith was convicted of all three murders in 1915 after some pioneering forensic work. Dr Manock found bruises on Ms Cheney’s ankles consistent with a grip mark. Ms Cheney’s fiance former bank manager Henry Keogh, who found her body, was subsequently charged with and convicted of her murder.
There is no doubt that Dr Manock’s testimony was a significant part of the circumstantial case against Keogh, although arguably at least as significant was the fact that shortly before her death Keogh had taken out 5 separate insurance policies on her life totalling some $1 million and had allegedly forged her signature on some insurance documents. There was also evidence that Keogh had romantic relationships with two other women at the time of Ms Cheney’s death, and statements he made subsequent to the death in relation to the insurance policies to members of the deceased’s family. Keogh certainly had both motive and opportunity at the very least.
Subsequent to Keogh’s conviction a small group of people led by ex-Adelaide University law lecturer Bob Moles formed the view that Keogh had been a victim of a miscarriage of justice and began campaigning for a retrial or at least an independent re-examination of the evidence. Their main arguments appear to revolve around alleged inadequacies in Dr Manock’s autopsy and his evidence at Keogh’s trial. Unfortunately for them (and Keogh) the High Court twice rejected these arguments as did a SA Medical Board enquiry which found:
There is no basis for criticising the opinion of Dr Manock as to the cause of death.
There are valid criticisms of the autopsy which even Dr Manock acknowledged was less than perfect. However for the reasons which we have expressed, we do not regard those criticisms as a cause for disciplinary action.
I became aware of the Keogh case some years ago after I had some dealings with Bob Moles as part of my CDU duties, and he took the opportunity to send me a copy of his book about it. Moles struck me as an intense, determined and possibly even obsessive-compulsive chap, an impression heightened by perusal of his voluminous website about the Keogh case.
After the endless publicity, petitions and court applications triggered by Moles and his group, you would have to wonder whether they are doing anyone including Keogh any favours by persisting in their endeavours. Still, no doubt some people said similar things about those who assisted Andrew Mallard prior to his eventual exoneration and release. That point was made by a recent ABC Background Briefing program about the Keogh case. Even so, my own tentative conclusion about the case after reading much of the material on Moles’ site is that there simply isn’t enough doubt surrounding Keogh’s conviction to justify re-opening the case.
Nevertheless, it seems likely that Dr Manock formed a strong conviction about Keogh’s guilt at a quite early stage, and perhaps as a result failed fully to investigate and eliminate other possible if highly unlikely explanations for Anna-Jane Cheney’s death. For example, one argument Moles and his colleagues have advanced is that Manock failed to disclose when giving evidence at trial that ordinary histology had not confirmed that one of the marks on Ms Cheney’s ankles was in fact a bruise, and that he utilised a test called polilight to confirm the diagnosis at least in respect of the thumb-print. They also argue that Manock failed to conduct an examination of Ms Cheney’s brain which, they allege, might have revealed some undiagnosed, unsuspected and completely asymptomatic medical condition such as epilepsy. That hypothetical illness in turn might have caused a sudden blackout, which could have provided an innocent explanation for how a seemingly completely healthy 29 year old woman could accidentally drown while having a bath!! They may well be correct about the shortcomings of Manock’s autopsy and evidence, but these arguments don’t strike me as providing a compelling case that a miscarriage of justice occurred. Nor did they so strike the High Court (twice), the Medical Board or the SA Attorney-General (three times with a fourth petition currently being considered).
Another factor worth keeping in mind is that the second medical expert called by the Prosecution at trial also supported Dr Manock’s conclusion about the bruising and its being consistent with a Brides in the Bath modus operandi, while both defence experts conceded that Manock’s conclusion was possible on the evidence, but suggested that the bruising might also be consistent with the deceased having bumped her leg or had a fall at some earlier time. ((However, the alleged thumb-print on the inside of Ms Cheney’s ankle was fairly clearly not consistent with a bump or fall, which is why the fact that Manock was only able to establish with a polilight test that it was in fact a bruise becomes so potentially significant. It appears that the central aspect of the current defamation proceedings between Manock and Channel 7 is the latter’s suggestion (no doubt at the urging of Keogh’s supporters), that the fact that the polilight testing was done and that it was the sole basis for Manock’s conclusion that this mark was a bruise, was deliberately suppressed by Dr Manock in his evidence at trial. It might be argued that the question of whether the mark on the inside of Ms Cheney’s ankle was a thumb-print bruise is critical to reaching a conclusion beyond reasonable doubt as to whether she was murdered in the way Dr Manock concluded. ~ KP))
Anyway, make up your own mind. Here is the full transcript of the Background Briefing program on the Keogh case, and I’ve extracted the bits particularly relevant to Dr Manock below:
Reporter: Keogh stood in the dock at Justice Duggan described the cold-blooded and long-planned execution of Anna Jane Cheney. The former bank manager was convicted by a jury of deliberately drowning Ms. Cheney in the bath in their Magill home.
Reporter: Keogh, now 41, will be in his mid 60s before he can apply for parole.
Hagar Cohen: Henry Keogh’s daughter, Alexis, was nine years old at the time.
Alexis Keogh: I remember reading things about my dad that I thought were about somebody else, they were just horrific. I was never ashamed of my dad, but because I just couldn’t deal with people’s opinions, I would often pretend that I wasn’t who I was.
Hagar Cohen: Alexis Keogh believes her father was convicted on the basis of false evidence.
Alexis Keogh: There are question marks. And that is the whole reason why the case has to be reviewed, because there shouldn’t be so many question marks. If a guilty verdict is brought down, it has to be beyond reasonable doubt, and there’s a lot of reasonable doubt. Now it’s just so hard to find out what actually did happen.
Hagar Cohen: For the past ten years a team of legal and other experts has been going through the evidence that led to Keogh’s conviction, and as we’ll hear, they are convinced it does not prove Henry Keogh killed Anna Jane Cheney.
The Keogh case is closed, so the South Australian Attorney-General must approve the re-opening of the case for new evidence to be heard. But the former Attorney-General, Michael Atkinson, refused three petitions from Keogh’s lawyers asking for the evidence to be re-examined.
In 2003, after deciding on the third petition, Michael Atkinson spoke in parliament about the campaign to reopen the case. This is a reading from the parliamentary Hansard.
Atkinson Reading: Let me apologise to the Cheney family for the hurt that has been done to them. I met with Anna-Jane Cheney’s mother and brother the week before last. They have had to live with the campaign to release the murderer of Anna-Jane for nine years.
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. This is wrong. I deny it. Justice was done to Henry Keogh; let it be done also to the deceased, Anna-Jane, and to her family.
Hagar Cohen: A fourth petition has now been submitted to the current Attorney-General, John Rau. A spokesperson for Mr Rau said he will not comment on the case until the petition process is concluded. …
Hagar Cohen: Joe Crowley is a recent addition to a team of people who’ve been gathering new evidence for the past 10 years. One of them, Kevin Borick, says calls to reopen the case have so far failed to convince the Attorney-General.
Kevin Borick: That is the end of the matter. You can’t take it anywhere else, unless you can persuade a politician, the Attorney-General, the case should be referred back to the court. The former Attorney-General of South Australia, who’s been the Attorney-General for most of this, has made his position completely clear, that Henry Keogh was guilty of murder.
Hagar Cohen: So in light of this position, are you hopeful that anything’s going to come out of this?
Kevin Borick: It’s not a question of hope, there is no doubt that one day in the future, whether it’s going to be this year, next year or 20 years, the story of Henry Keogh will be told.
Hagar Cohen: Working closely with Kevin Borick, is Dr Bob Moles, a former law lecturer. And I spoke to him in his car on his way to visit Henry Keogh in prison.
Bob Moles: We’re on Grand Junction Road, which is the main circular road on the north of Adelaide, and we’re just a few minutes away from the Yatala labour prison. We’re going to see Henry Keogh this morning.
Hagar Cohen: Background Briefing was not allowed to speak to Keogh in prison, but Dr Bob Moles has been visiting him every two or three months for the past ten years.
Bob Moles: When I first came across his case, I was a Professor of Law at Adelaide University, and this was just one of the projects that my students had brought to my attention. When I first met with Henry, he said that if we didn’t get a move on, he will have been in prison for about six years, and that was when the Sydney Olympics were coming up, and he dreaded the thought of still being in prison at that time. He’s now been in prison for 16 years, and I have to say it’s all quite unnecessary.
Hagar Cohen: Why did you believe him?
Bob Moles: It wasn’t a question of believing him; the important thing is that I’m of the very firm opinion that no criminal event took place, and therefore it follows that he was not engaged in any criminal activity. I’ve been able to substantiate for myself, that this is a serious miscarriage of justice.
Hagar Cohen: On a Friday night in 1994, 29 year-old Anna Jane Cheney was found dead in the bathroom of her Adelaide home. Her fiancé, Henry Keogh said he found her after returning from a visit to his mum.
It became a murder case, where Henry Keogh was the only suspect.
Here’s a re-enactment from the trial, where Keogh was questioned by the Crown Prosecutor, Paul Rofe.
Paul Rofe: 1How long after you stopped your car in the carport at Homes Avenue was it before you found Anna Jane?
Henry Keogh: 1As long as it would have taken me to get out of my car, lock it, walk to the front door, open that, close it quickly because Jordan came running towards me, give him a quick pat, call out ‘Hello’, see that Anna wasn’t on the chesterfields, stick my head around the arch, see that she wasn’t on the phone; turn around, call out again and walk towards the bedroom, however long that takes.
Paul Rofe: 1Perhaps a minute or so.
Henry Keogh: 1Approximately, yes.
Paul Rofe: 1Once you found her, you immediately took her out of the bath?
Henry Keogh: 1I tried to get her out of the bath immediately, yes. I would have immediately checked Anna’s pulse. There was none.
Hagar Cohen: Henry Keogh’s motive was said to be money. He’d taken out five insurance policies in Anna Jane Cheney’s name.
Paul Rofe: 1So there’s no mistake, I am suggesting you killed Anna Jane Cheney, at least in part, hoping to benefit from those five policies.
Henry Keogh: 1No.
Hagar Cohen: The defence argued there was never a murder, and that Anna Jane Cheney’s death was an accident. But the prosecution said the circumstances of the death were highly suspicious. Prosecutor Paul Rofe put it to the jury.
Paul Rofe: 1On 15th March last year, Anna Jane Cheney celebrated her 29th birthday. She was a fit, healthy, young woman. She had a promising career as a lawyer. She thought she was about to be married. Three days later, she was dead, drowned in the bath of her home in Magill. And on the Crown case, with recent bruising particularly on the left lower leg consistent with grip mark.
Hagar Cohen: The grip mark was only part of the story. Henry Keogh had two other girlfriends at the time he was engaged to Anna Jane Cheney. And he also took out the insurance policies on her life by forging her signature on them.
Here’s Paul Rofe again in his opening address to the jury.
Paul Rofe: 1Her fiancé, Henry Vincent Keogh, stood to benefit $1-million-150,000 from her death as a result of five insurance policies he had taken out on her life some 12 months previously, policies for which he was the agent, co-owner and sole beneficiary. The accused, now aged 40 on the Crown case, was responsible for Ms Cheney’s death and he stands before you charged with murder.
Hagar Cohen: Henry Keogh maintained his fiancé knew about the insurance policies. A few days after the death of Anna Jane Cheney, police questioned him about the unusual financial arrangements.
At the trial, Henry Keogh was asked by the prosecutor about this visit by police.
Paul Rofe: 1You knew, did you not, that the police had you under suspicion because of the amount of money involved. The will, the insurance, the house, as you told us this morning.
Henry Keogh: 1I didn’t know the basis for that suspicion.
Paul Rofe: 1Again, are you seriously suggesting that you didn’t know why you were under suspicion?
Henry Keogh: 1I believed that it would all blow over. I really didn’t believe it could be a serious thought on the police’s mind that I had killed Anna Jane. I thought it would blow over.
Paul Rofe: 1I suggest not only did you think it would blow over, but in time you would be able to successfully claim on the five policies you had taken out on Anna Jane’s life.
Henry Keogh: 1No.
Hagar Cohen: The jury decided Henry Keogh was guilty of murder, and it was widely reported by the South Australian press.
ABC NEWS THEME
Reporter: The judge told Keogh his principal motive was greed. More than a million dollars in life insurance policies. It was an elaborate and coldly planned scheme to kill Ms Cheney and profit from her death. The judge said he was satisfied Ms Cheney had no idea Keogh stood to gain so much.
Hagar Cohen: A key element of the evidence for the prosecution was the grip mark on the ankle of the deceased. It was a sign, the Crown argued, that Henry Keogh had forced his fiancé under water in the bath. An expert witness for the prosecution was Dr Colin Manock, who had three decades of experience in forensic pathology.
He’d conducted around 10,000 autopsies in his career, and the autopsy on Anna Jane Cheney was Dr Manock’s last big case before his retirement. His interpretation of what happened is disputed by Keogh’s legal team, and is central to their argument that the case should be reviewed.
Dr Manock has never spoken out publicly about the Keogh case, until now. He agreed to speak to Background Briefing about the case and how he diagnosed the signs of murder.
Colin Manock: Well, we just said, cause of death was drowning in fresh water.
Hagar Cohen: But how did it happen?
Colin Manock: I think that she was in the bath and I think she was relaxing, and I think that someone close to her who she had every confidence in, was probably kneeling or crouching by the side of the bath, and he put his right hand under the heels and lifted them up until the legs were vertical, at which stage her body would slide further down the bath, and at that stage when the legs passed above her head, his left hand gripped her left ankle, which puts the left thumb on the inside of the left calf, and in that position folded over almost jack-knife position, she was unable to struggle very much.
Hagar Cohen: Are you confident that it is beyond reasonable doubt that Henry Keogh had actually murdered Anna Cheney?
Colin Manock: Yes, I am.
Hagar Cohen: And you were confident of that all along? Nothing’s ever changed?
Colin Manock: Yes, that’s right.
Hagar Cohen: Dr Manock’s murder scenario was based on a 1915 murder case in England, known as the Brides in the Baths. George Joseph Smith drowned all three of his brides in the bath during their honeymoons. He did that, using a particular method that killed the women very quickly, and left no serious injuries on their bodies. Back in 1915, George Smith’s motive was money.
When Dr Manock observed the grip mark on Anna Jane Cheney’s leg, and the condition of her lungs suggested that she had drowned, he believed the murder scenario was clear.
Colin Manock: I read the copy of the transcripts from the George Joseph Smith case. I was quite familiar with the circumstances. And when I saw the circumstances of Anna Jane’s death, it was like seeing a friend across the street; I’d seen it all before.
Hagar Cohen: Dr Manock’s use of the 1915 scenario, concerned a number of pathologists reviewing the Keogh case. For example, Melbourne-based Dr Byron Collins, has been asked by Keogh’s defence to scrutinise the autopsy findings from the trial. He’s been working as an independent forensic pathologist since the early ’70s.
Dr Byron Collins says comparing the Brides in the Baths theory to the death of Anna Jane Cheney was distracting and irrelevant.
Byron Collins: I think really it’s drawing a long bow. Each case has its own specific individual characteristics. And that is what needs to be assessed at the time, and if one tries to relate a particular set of circumstances such as in this case, as something that has occurred previously, it may well cloud the mind and fetter the processes of reasoned deductive exercises. So while I think you know, it gives a good description for the press of Brides in the Bath type drowning, I think that’s about as far as it goes. It doesn’t serve any useful purpose in my mind in assisting –
Hagar Cohen: What about a diagnostic purpose?
Byron Collins: No, it serves no diagnostic purpose whatsoever.
Hagar Cohen: Dr Byron Collins.
As Keogh’s legal team continued their investigations, more questions about the murder theory emerged. The most hotly disputed part of the evidence is the existence of a grip mark.
Dr Manock stands by his diagnosis of a grip mark.
Colin Manock: What’s a grip mark? Well, you’ve got four fingers and a thumb, and if you grip something firmly, then the little finger doesn’t usually leave a mark, it’s usually the index and the middle finger that are the strongest, and the thumb. But we found three bruises on one side, and an opposition mark on the other side of the leg would be the thumb.
Hagar Cohen: That mark, how do you know it was a bruise, and how do you know that it was indeed the thumb?
Colin Manock: Well it’s the only way you can space the fingers to do it, and I know it’s a bruise because I cut into it, and you could see the blood in the tissues.
Hagar Cohen: This method of examination is known as histology. A bruise is a collection of blood in the tissue, usually confirmed through histology. But years later, during an inquiry by the South Australian Medical Board, which we’ll hear more about later, Dr Manock said that histology did not prove there was a bruise. Background Briefing asked Dr Manock how he could explain the conflicting evidence.
Colin Manock: This is 16 years ago, I can’t remember. We did something unusual. I’m talking about the way in which the bruises, I’ll call them, reacted to different wavelengths of light. If you have a red mark and you illuminate it with a red light, it looks white, or it disappears altogether. But if you illuminate it with blue light, it turns black. So if you’ve got something which is very faintly red, and you illuminate it with blue or even green light, and it turns black, then that would suggest that there’s a red pigment there.
Hagar Cohen: So can you say with certainty that that bruise in the inner side of the left leg, which you call the thumb bruise, was indeed a bruise?
Colin Manock: Yes.
Hagar Cohen: And was caused by the thumb?
Colin Manock: That is my opinion, yes.
Hagar Cohen: I’ll just tell you again. From what I read, my understanding was that in the medical tribunal you actually said that the thumb mark, you couldn’t actually say whether it was a bruise or not.
Colin Manock: I think that was only into consideration the histology.
Hagar Cohen: OK, so what are you taking into consideration now?
Colin Manock: The appearance under different coloured lights, that makes the difference.
Hagar Cohen: Dr Manock’s polilight evidence was not put to the jury. So the question about the scientific validity of this method never came up.
An expert in forensic photography, Professor Gale Spring, has extensive experience using the polilight, and he is familiar with the evidence in the Keogh trial. Professor Spring says the polilight technique would be of no use in this instance.
Gale Spring: The curious thing is, if you can see the bruise with your eye, the polilight’s probably not going to give you much more information than that. Where the polilight or ultraviolet radiation might assist in visualising some things actually when, say, days, weeks, months after an incident, where a bruise may no longer visually be seen, but this kind of technique could actually show where a bruise might have been. That technique will actually make the invisible become visible, and with the Keogh case it becomes interesting that this technique would have been used on what I understand was bruises that were already visually there; you could see them. So the polilight would have been probably of no use whatsoever.
Hagar Cohen: But what else can it be? I mean we know that there’s a mark; it looks visually as if it was a grip mark because you’ve got the three marks on the outer side of the left leg, and then the thumb mark; what else can it be?
Gale Spring: Well I’m afraid I can’t say what it is, and once again, I think this is where photography in forensic situations can be kind of dangerous, because once you produce a photograph which many people believe just as fact, and then you put a story with that photograph, people begin to read into photographs what they’re told. So I was never convinced that it actually was fingermarks or thumbprints, or whatever. What it is, nobody will know.
Hagar Cohen: Professor Gale Spring.
By 2004, the team investigating the Keogh case decided to complain about Dr Manock to the South Australian Medical Board.
They claimed Dr Manock’s autopsy at the Keogh trial was incompetent and his work on the case amounted to unprofessional conduct.
After extensive investigations and a second inquiry, it was referred to the medical tribunal.
The tribunal accepted that Dr Manock had made some mistakes, but cleared him of unprofessional conduct.
Reader: We find that those deficiencies were trivial or harmless.
Holding a mistaken opinion by itself does not amount to unprofessional conduct.
There is no basis for criticising the opinion of Dr Manock as to the cause of death.