Courtrooms are hostile environments. Walking into one for the first time puts you on edge, as though you’re in a church with no forgiveness. To enter as a defendant is even more frightening. If the charge is murder, the penalty incarceration for life and the victim the woman you were about to marry, the apprehension is for only that person to truly know. It’s an ordeal Henry Keogh would have to endure twice. On two occasions he’d sit rigid, wild-eyed and numb listening to strangers dissecting his life while awaiting his fate.
Keogh’s first trial began on Monday 13 February 1995. The Crown would call 47 witnesses, the defence just three. In the second trial, in August that year, the prosecution witness list stretched to 55 and the defence called five. In both trials much of the evidence was scene-setting. The star witnesses were A. and B., the two women claiming to have had steamy affairs with the accused; the Cheney family, with their grave suspicions over the financial motive behind the death of their darling girl; and, of course, the state’s Senior Director of Forensic Pathology, Dr Colin Manock.
February–March 1995
When Dr Manock took the stand and swore the oath to tell ‘the whole truth and nothing but the truth’, 26 witnesses had gone before him. The Director of Public Prosecutions Paul Rofe QC rose, his imposing frame draped in black, his large hands grasping the lectern, and in his solemn, gravelly voice established the witness’s qualifications for the benefit of the seven women and five men of the jury.
PR: What medical qualifications do you hold?
CM: Bachelor of Medicine/Bachelor of Surgery at Leeds University, 1962; Fellowship of the Royal College of Pathologists of Australasia in 1971.
PR: How long have you been practising as a pathologist?
CM: 31 years.70
After some preliminaries about the autopsy process and an explanation of freshwater drowning the prosecutor moved to Anna-Jane’s youth and health, and what could be deduced from the condition of her body. That brought Dr Manock to his critical observations of the bruises to her legs and how they had come to his attention: ‘I placed my left hand behind the lower leg and found that I could fit my three fingers and thumb against the bruises that were present so it was possible they were caused by a grip.’71 The image of the hovering hand of the forensic specialist closing around the injuries to the victim’s waxen leg was a powerful one.
Few, aside from a skilled prosecutor, would have picked up the doctor’s subtle but significant slip of the tongue. Even if the left hand was the best fit when Dr Manock first conceived his theory, he had been obliged to swap to the right after his visit to the scene. When he did see the bath in situ, months after the death, he found that it was bound on three sides by walls. Anna-Jane’s head had been at the left-hand plug end with her feet at the opposite end. It would have been impossible to scoop up the legs and raise them over her head with the left hand, while using the spare hand to submerge her head without performing extraordinary contortions. It became immediately obvious the right hand was the only feasible option with which to grasp the left leg. For the hypothesis to work the ‘grip’ hand had to change.
According to Dr Manock the shape of the bath complemented his hypothesis by causing the arms of the ‘victim’ to be trapped by her side leaving her unable to extricate herself from her deadly predicament. It was a proposition not subjected to any empirical tests by either the prosecution or the defence. No re-enactment was conducted to ensure the theory could be practically applied. Dr Manock went on to postulate the bathwater would create a ‘flotation effect’,72 enabling the assailant to pull his ‘victim’ with ease through the water and causing it to rush up her nose, bringing on rapid unconsciousness.
The DPP caught the initial stumble and immediately gave Dr Manock the opportunity to correct his ‘left hand’ reference: ‘From their position and shape, are you able to say which hand was used?’ Dr Manock replied, ‘It would appear to be a right hand.’73 The state’s Senior Director of Forensic Pathology proceeded to give his analysis of other subtle scientific clues which corroborated his hypothesis of murder.
Dr Manock’s second-in-charge was Dr Ross James. He followed his boss into the witness box, giving the jury a second Crown expert’s perspective on the highly incriminating forensic evidence they’d just heard.
Dr James had studied for his medical degree at the University of Adelaide, graduating in 1967 and beginning work as a pathologist in 1969. He undertook postgraduate studies in the practices of histopathology and haematology and became a member of the Royal College of Pathologists in 1974. Dr James had worked at the Forensic Science Centre under Dr Manock since then. By the time Keogh’s trial came around he’d been with the Department for over 20 years and held the role of the Senior Specialist Forensic Pathologist. He was also a Senior Clinical Lecturer at the University of Adelaide. As the department’s deputy head Dr James was heir apparent should Dr Manock retire, or otherwise relinquish the top job.
What was in Paul Rofe’s mind when he asked Dr James to play a role in the Keogh case in November 1994 is not entirely clear. Ross James later told the court, ‘Dr Manock was overseas for some months and when matters came up relating to the case, in lieu of Dr Manock, I was asked to look at the matter.’74 James had no more than glimpsed Anna-Jane’s body in the mortuary after the first autopsy, and he made no record of what he’d seen. When giving evidence he was insistent on applying the qualification, ‘I’m reliant totally on the observations of Dr Manock as reported in his post-mortem report.’75
What the prosecution wanted was Dr James’s opinion of the three key elements in Dr Manock’s murder scenario. The first inquiry pertained to Dr Manock’s cause-of-death diagnosis, which he attributed in the autopsy to freshwater drowning. Dr James agreed with this conclusion. The challenge with drowning as a cause of death is that it is defined as a ‘diagnosis of exclusion’. There being no exclusive or definitive symptoms for drowning, there’s always the possibility the deceased may have been dead before they entered into the water. It’s also possible that prior to the moment of submersion the victim had suffered a fatal episode, such as a heart attack or anaphylaxis, which brings on a sudden loss of consciousness and ultimately death. Dr James explained that it is customary to look for other factors, particularly in a case where a healthy young adult dies in the bath. Aside from an accident, underlying disease or medical condition, drugs or alcohol can also play a role. Testing tissue taken from the lungs, the heart and the brain might assist in eliminating some alternatives.
The second point related to Dr Manock’s contention that he could find no evidence of injury to Anna-Jane’s brain, and she therefore must have been conscious when she drowned. Dr James disagreed on this point, as did many other medical experts. Dr James’s submission was, ‘Concussion has no pathology. In other words, of people we know to have been concussed and who subsequently die, when we look at the brain, we don’t find anything.’76
Finally, and most crucially, was Dr Manock’s grip theory. Ross James supported this hypothesis. When quizzed about the left leg bruises making up the grip pattern James said, ‘I’ve seen photographs of all those bruises except for the one on the medial side of the ankle. I don’t recall seeing a photograph of that.’77 For the benefit of the jury, Paul Rofe steered Dr James towards the conclusion he was seeking:
PR: Did they [the bruises] appear consistent with being caused by a grip, by finger marks?
RJ: Particularly if there was in fact a bruise on the medial side of the ankle, then a grip is the obvious interpretation.78
It was compelling testimony, made more so because of the concurrence of both the Crown’s experts that this was likely proof of the brazen handprint of murder.
The other forensic pathologist to play a key role during the trials was Professor Stephen Cordner. Professor Cordner established the Victorian Institute of Forensic Medicine, has co-authored a number of books, and was a member of the Royal College both in the UK and Australia. On the evidence available, Cordner said the Keogh case would never have made it to court in Victoria. The professor’s belief was the evidence was so circumstantial there could be no certainty as to any of the forensic aspects of the case. He testified, ‘I basically think that the resolution of this case does not lie in the field of forensic pathology.’79 Anna-Jane’s blood alcohol level was measured at 0.08 but may have been as high as 0.1 at the time of death. Professor Cordner’s opinion was that this, combined with the slippery surface of the bath, meant it was quite reasonable to accept that she may have slipped and cracked her head on any of the numerous hard surfaces surrounding the bath and slid into the water unconscious. When questioned about the grip theory, Cordner said, ‘I think really one is limited only by one’s imagination in thinking of what sort of thing might have created those sorts of bruises.’80
Professor Cordner disagreed with Dr Manock’s opinion that a person could not be knocked unconscious without some observable damage to the surface of the brain. He informed the court that Dr Manock was more or less on his own in holding that view: ‘If he is saying that there would have been observable damage to the brain, then that would have to be regarded as an idiosyncratic view.’81
The jury now had a clear idea of the division between both sides on the ‘what’ and ‘how’ of the death of Anna-Jane. The prosecution claimed to have clear, demonstrable evidence of foul play while the defence insisted on absolute uncertainty. It was time for the ‘why’.
The so-called girlfriend witnesses, A. and B., were eagerly anticipated by the media in particular. The defence protested numerous times that their evidence did not offer the court any tangible insights into Keogh’s relationship with Anna-Jane and was merely being used as a device by the prosecution to paint his client as a philanderer with no genuine commitment to Anna-Jane. After considerable argument in the absence of the jury Justice Duggan admitted their testimony.
B. was first to take the stand. She effortlessly recounted how she had met Keogh, and how the intimacy of their relationship flourished in July 1992. She described theirs as a ‘fairly intense sexual relationship’82 which had ended on 17 December 1992. B. explained that it was she who put an end to the affair because Keogh would never stay the night, and was not ready to make that sort of commitment.
In closing, Paul Rofe asked if she had ever seen him naked. B. confirmed she had. She was then asked if she had any photographs of the accused, naked or otherwise. She replied she had only one such image of him lying on her living-room floor. The question was then asked, ‘Was Mr Keogh clothed or not?’ To the delight of the journalists present, B. responded, ‘He was wearing my cat.’83
A. was next into the witness box. Keogh had not denied their friendship or feeling some compassion for her circumstances. A., however, declared they were ‘boyfriend and girlfriend’.84 When it was put to her that she had fantasised their relationship, and that Keogh had made it clear he already had a girlfriend, A. expressed outrage: ‘That is absolutely false.’85
The prosecution recognised how damaging A.’s evidence was, not just because it eroded the image of Henry Keogh as a devoted partner, but because it was the kind of testimony not likely to be forgotten. The picture she painted conflicted in a number of ways with statements Keogh had made. In official statements he had never construed his former wife Sue in any other light than a flattering one. A., on the other hand, claimed he had described her as a vengeful, money-sucking misery, who made their ‘eight-year’ divorce a nightmare. While she gave a vivid account of the acrimony between them, she couldn’t recall Sue’s name.
A. detailed how their own alleged romance blossomed, describing Keogh as her ‘suitor’, who took her on romantic dinners and to the movies, and bought her flowers. The timing appeared to coincide with the cooling of Henry’s affair with B. after the rekindling of his relationship with Anna-Jane, leading to his marriage proposal in November 1992. A. told the court that their relationship became overtly intimate around December 1992 following a visit to the historic Chelsea Cinema on Kensington Road. Though A. couldn’t recall the name of the movie they’d seen, she richly recounted what followed. As the couple left the art deco theatre Henry took hold of her hand and then ‘swung me to him very quickly and he began kissing me on the lips very urgently’.86 When they arrived at A.’s house the intimacy continued with ‘a lot of touching, a lot of kissing and holding me very close to him’.87 There was, according to A., lots of contact both personal and professional in the months that followed. The real sex, she claimed, began in the middle of 1993.
A. believed Henry wanted to see her more often and alleged he took her to the tiny unit at the back of the Norwood branch of the State Bank, which Keogh was managing at the time. No intercourse took place but according to A. things got very close. In December 1993, A. said, they saw the comedy movie Dave at a second iconic suburban cinema, the Capri Theatre on the city’s southern fringe, and then ate at the quick-serve restaurant Hawker’s Corner.
The remainder of A.’s story was a chronicle of lust: the two took their meals with them for an evening picnic in the Botanic Garden adjacent to the zoo. After being ‘eaten by mosquitos’, A. testified, they went to her Nailsworth home, where she lived with her mother and sister. On that evening there was nobody home. A. says the moment she entered the house she was enveloped in a whirlwind of passion:
He came in with me, shut the door, walked down the corridor of the house and all of a sudden he pushed me against the wall of the house and was leaning on me and was kissing me really hard and he said he wanted me. And before I knew it he had picked me up and was taking me to my bedroom. I did feel really attracted to him in the same way, and yes, we made love.88
A. believed Henry’s illicit longing continued to haunt him even while he and Anna holidayed in South-East Asia. She told the court she understood he’d gone with a male friend but couldn’t resist calling her. Henry confirmed during the trial that he had phoned the bank to check on his account and when the person he was seeking wasn’t available he asked to be put through to A. for help. He denied there had been any romantic motive behind the call.
A. also sent Keogh a pager message to say she’d booked a romantic weekend in the Clare Valley wine region. At the last minute he abruptly cancelled, with the distressing news that his eldest daughter, Dani, had gone missing. Keogh admitted in court this had been a lie as he didn’t know how to temper A.’s growing obsession. He said he was panicked by A.’s strange behaviour and her fixation with him. Even so, the lie about his daughter’s disappearance didn’t help his credibility with the jury or the reporting media.
A. also claimed she had planned a trip to Hong Kong with Keogh for February 1994, just ten weeks prior to his wedding. She said she asked Henry to accompany her, and that the flights were booked and an itinerary printed, but according to A. he was forced to pull out because he’d been offered a new job with Baker Young Stockbrokers.
There was no dispute that Keogh had visited A. at home and she’d helped him with his computing skills. He conceded her mother and sister may have thought he was her boyfriend as she was very ‘tactile’ in their presence. His evidence was that she had fantasised about the relationship she wanted, rather than accept the one she had. Regardless, her testimony became potentially more and more damaging. She claimed that as late as January 1994 she had no knowledge of Anna-Jane and when her name came up at work she’d asked Henry, ‘Who is Anna-Jane?’ His answer, she said, was that:
‘Anna-Jane’s an ex-girlfriend. She phones me all the time. I find it very annoying.’ I said, ‘Why won’t you tell her that?’ and he said, ‘She’s obsessed with me, she is convinced she wants to marry me, but I will never marry her.’89
The media lapped it all up, the more salacious the better. And it did get more salacious. Prosecutor Paul Rofe QC quizzed A. in detail about the sex. Michael David again tried to call a halt to it but Justice Duggan let it go on.
There was at least one more bombshell moment to come. This next one related to the condition of Henry Keogh’s sexual anatomy.
Dr Noel McCleave was a private medical practitioner who had examined Keogh on the afternoon of his arrest. The police wanted to check Keogh’s claims that his back problems had added to the difficulty of removing Anna-Jane from the bath. The doctor confirmed it was a legitimate congenital condition and would have hampered his attempts to lift Anna-Jane’s weight. McCleave also assisted with the request to photograph Keogh’s outspread hands. This is the evidence he gave to the prosecution.
However, Henry’s counsel had something else in mind: he asked the doctor if he’d made any observations or inquiries about whether Henry’s penis was circumcised. Dr McCleave had not. With that Michael David asked for a momentary delay in proceedings and asked the judge if Dr McCleave might be permitted to conduct an inspection of his client’s penis. It was a request Justice Duggan felt obliged to grant. The doctor caused a wave of mirth through the court when he explained that to do such an examination he usually required a light and a magnifier.90 Justice Duggan asked Keogh to leave the courtroom so the doctor could undertake the procedure.
Dr McCleave returned to the witness box to deliver his diagnosis: ‘There is no evidence to suggest he is circumcised.’91 A. was then recalled to the witness box and Michael David wasted little time in getting to the sensitive point of circumcision. A. confirmed she’d seen his penis, and yes, it was circumcised. Then another complication arose around the appearance of a penis when it is erect. A photograph was produced of a naked Henry Keogh with an erection. The photo had been retrieved from Anna-Jane’s house following a police search. Dr McCleave was recalled and both prosecution and defence questioned him at length about the appearance of an erect uncircumcised penis and whether it would appear to have no foreskin. The doctor in the end, with some qualification, came down on the side that it may be very difficult to tell.
As part of her evidence A. had explained she was into amateur dramatics and had performed in a number of plays. If she had simply imagined much of what she’d told the jury, she’d given the performance of her life.
Before the jury departed to consider their verdict the judge gave them some preliminary instructions on how they ought to weigh up the evidence of A. and B. Justice Duggan was sensitive to how damning the evidence could become if the jury gave it inappropriate force. He told them that if they believed the evidence it must only be used in the context of Keogh’s relationship with Anna-Jane, but not as ‘a general slur on him’.92 Michael David went further and objected once again to the admissibility of the whole of B. and A.’s evidence, making an application for a mistrial. Again Justice Duggan rejected David’s argument.
Equally potent as the tempestuous tales of lovemaking was the spectre, if all of A. and B.’s recollections were to be believed, that Henry Keogh was in trouble.