The climax of the first trial came when Henry Keogh himself gave evidence. Accused persons are not obliged to get in the witness box and juries are repeatedly instructed not to place any significance on a decision to decline questioning. Keogh chose to face the scrutiny of the court. There’s little doubt the publicity followed him every day into the courtroom. But he did take the stand and, as with all his dealings with the authorities throughout the investigation, he was disarmingly candid.
Keogh was the antithesis of the stereotypical murder suspect. He was not the misunderstood brute who could blame a violent childhood for his predicament. He was not the wasted soul who was a soft target for the police desperate to find someone to prosecute. He was educated and comparatively privileged, and this image worked against him, as did his demeanour. There was something remote about this man. Outwardly he maintained an implacable mask as he brushed past the media cameras when striding into court. In the dock it was the same. No outward sign of being touched by the nightmare that lunged at him from all sides. It didn’t matter what inner turmoil he harboured; the jury and the media saw only the inscrutable surface. But having been accused of committing a callous and calculating crime, an act of ruthless betrayal, this display of self-control could have been read as the apparent absence of remorse; it made a powerful impression.
Keogh claimed the confusion over the existence of the will and any insurance was a product of the emotional despair he was suffering after finding his fiancée dead in the bath. He didn’t deny forging signatures or having an illicit affair with B. during a rough patch in his relationship with Anna-Jane. When the tape of his emergency call was played to the court it brought him to tears in the witness box. He wasn’t defensive or belligerent when cross-examined but firmly denied the accusation that he had planned and carried out the murder of his fiancée.
Following the presentation of the evidence both the prosecution and the defence proceeded with their lengthy closing addresses to the jury. The DPP, Paul Rofe, sculpted the image of Henry Keogh as a heartless opportunist. He put to the jury that the infidelity was an indication of a lack of commitment to his relationship with Anna-Jane which culminated in his secret scheming over the million dollars plus in phoney insurance policies. The prosecutor roamed around the circumstantial evidence and then arrived at the night of Anna-Jane’s death, where the only measure of what occurred, aside from Keogh’s account, was the forensics.
While Rofe conceded ‘the pathology alone in the case’93 would not prove deliberate drowning, he had circumstantial evidence up his sleeve. What he was offering the jury was a bit of both. Exclude one entirely and the prosecution case would collapse as Professor Cordner believed it should. However, keep important bits of both elements and Keogh’s future looked grim. The DPP conceded that Dr Manock was in the minority when it came to evidence of consciousness and observable injury to the brain; Rofe asked the jury to favour the majority view. He then hammered home Dr Manock’s grip theory:
If all that bruising, the injuries and the abnormalities, occurred at the same time – namely, at the time of death – and those marks on her lower leg are left there by three fingers and a thumb, a grip, the only conclusion you can come to is someone else was there. The only conclusion, I would suggest, was it was the accused.94
When Michael David’s turn came he presented the view that Henry Keogh was the victim of a series of unrelated, relatively unremarkable events. Infidelity doesn’t make a man a murderer, and the insurance did not involve the conspiracy the prosecution made it out to be. There was ample evidence Anna-Jane knew and approved of the policies. People’s lives can be a loose bundle of ill-fitting fragments that only appear to take shape if some calamitous event leads an external observer to look for a pattern among the disorder. It could not be reasonably discounted that Anna-Jane had slipped on a shiny bath after several glasses of wine, struck her head and tragically drowned. David concluded with a plea to the jury:
It’s my submission that all the evidence points to this being what it is, a sad and tragic accident. To elevate this to murder, and murder by my client, is a step which you cannot take. It is my submission that in taking that step we are all going to be involved in a terrible miscarriage of justice.95
Finally, after almost four weeks, it was Justice Kevin Duggan’s task to sum up for the jury. Duggan had a strong pedigree in criminal law: shortly after his admission to the Bar he became the associate of celebrated High Court Judge Sir Edward McTiernan. When he returned from Canberra he joined the Office of Crown Law, and was elevated to the position of Crown Prosecutor, the equivalent of the DPP, at the young age of 29. In 1988 Duggan was appointed to a seat on the Supreme Court bench, a role he took with the utmost seriousness. When he retired, in 2011, he was described by his peers as ‘reliable, sensible and trustworthy’.96
After thoroughly working through the evidence over almost two sitting days, Duggan left the jury with this advice:
… as this is a case involving circumstantial evidence, you are entitled to consider those facts you find proved in their combined effect but you cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than that the accused is guilty.97
The jury retired at 12.18 pm on Friday 10 March 1995.
On the editorial floor of the local daily, the Advertiser, things were hectic. Saturday’s paper, the week’s biggest publication, was still a work in progress and the subeditors were busy cutting, rewriting and pasting. For the Chief Court Reporter, Sylvia Kriven, the timing of the trial was a godsend. The Keogh jury had retired at about midday and it was thought they would almost certainly have a verdict by 5 or 6 pm. The case was a court reporter’s dream: sex, greed and murder. Add to that the scheming implicit in the fraudulent insurance policies and the brilliant ‘gotcha’ of the faint handprint of homicide. All that was needed was for the jury to play their part.
At 5.21 pm Justice Duggan recalled counsel to deal with a question from the jury about why exhibit P36, one of Anna-Jane’s loan applications, was introduced into evidence. The answer was that it formed part of her statement of assets and liabilities prepared by the police forensic accountant. Justice Duggan brought the jury into court, explained the nature of the document and asked them if they would like dinner. The court adjourned at 5.28 pm.
Back at the Tiser things were hotting up. The early edition of the paper was to go to print at around midnight, which gave them about six hours left to scoop their sister paper and rival, the Sunday Mail, as well as the 6 pm TV news bulletins. In the one-newspaper town of Adelaide the Sunday edition was the only real print rivalry left. It was as much about the egos and careers of the editors and journalists as it was about the interests of their readers. The people of Adelaide had come to view that any competition was largely artificial, knowing both papers were owned by Rupert Murdoch and shared resources as well as staff. In reality the only difference was the masthead.
The Advertiser’s editor, Peter Blunden, had earmarked the Keogh verdict story for the ‘Insight’ feature section of the Saturday paper but with the instruction that if it were to be ready it must be legalled before going to print. The requirement to get the tick of approval from the paper’s lawyers could be a time-consuming and frustrating process for journalists. Meanwhile the jury seemed to be taking longer than expected to arrive at a verdict. Papers would have to be printed, bundled and hitting streets and front lawns in a matter of six or seven hours, verdict or no verdict.
Before their dinner, a choice between a mixed grill and fish, was to be delivered at 6.15, the jury asked for guidance on another matter related to exhibit P36. They wanted to know if Keogh’s address, given as his matrimonial home at Athelstone on a loan application he had created, was accurate. Perhaps they were checking whether he had fabricated his circumstances for the sake of acquiring a loan. As it turned out, the document was accurate and Keogh still had a financial interest in the Athelstone property. The jury departed the courtroom at 5.57 pm.
Sylvia Kriven, based at the Advertiser’s office in the courts’ Sir Samuel Way Building, was struggling. While she had been a journalist for 14 years she’d spent just two at the courts and was still dependent on advice from more experienced hands. To make matters more difficult this day, she was two reporters down and had to oversee the work of a cadet journalist. It was one of those days. As yet the story had not been written.
The editor of the ‘Insight’ section – Colin James, also a 14-year veteran – was having his own problems. It was a hectic news day. High-profile federal Liberal MP Ian McLachlan had announced his resignation from the Opposition front bench over the controversial Hindmarsh Island Bridge ‘secret women’s business’ affair. McLachlan had tabled confidential documents in parliament and wrongly represented how he came by them. It was big news in Adelaide, and big news nationally as McLachlan had even been touted by some as a possible future prime minister. It was a case James had followed closely and the bigger story made a perfect, though complex, subject for his ‘Insight’ section. Unfortunately, it meant he’d have to roll up his sleeves and pull it together himself.
James had questioned whether Peter Blunden still wanted the Keogh feature included if the jury was still out. The answer was a firm yes, with the proviso it was passed by the paper’s lawyers first.
At 8.14 pm disaster struck. The jury foreman contacted Justice Duggan to ask if they could wrap up for the night and reconvene in the morning. Neither Paul Rofe nor Michael David objected as long as the jury were sequestered from any outside contact. Minutes later they were permitted to retire for the night.
The newspaper presses were due to roll in a few hours’ time. Whatever legal opinion they should have sought appears to have gone by the wayside. It was a case of publish or perish – perhaps both.
That Saturday morning, under the banner of ‘A TALE OF TREACHERY’, they laid it all bare: at least, they lay Keogh’s yet-to-be-proven guilt bare. The front-page headline was much more temperate: ‘Jury delay in Cheney murder trial’. The article described the buzz of anticipation that had descended on the court precinct.
Though technically accurate, the article had to undergo some last-minute surgery. The presumption in the writing of the piece, that Keogh would be found guilty in time for publication, had to be subtly altered. The angle had to be that, though unresolved, all the cards were stacked against him. The most compelling story was the one which proved him to be a contemptible killer, which would be quite legitimate after a guilty verdict, but not before.
The freedom of an inquiring media is one of the cornerstones of our democracy. This article, however, had less to do with public interest than self-interest on the part of the Tiser’s editors and journos to be first with the story.
Whoever may have risen earliest that Saturday morning – Paul Rofe, Michael David or Kevin Duggan – it was the judge who was on the phone to the court Sheriff at 7.15 endeavouring to prevent any copies of the Advertiser being delivered to the jury members in their hotel rooms. By 9.40 am all three men were in the Sir Samuel Way Building to discuss the impact of the article should it have reached the hands of the jury members. David’s view was of no surprise: the jury would have to be dismissed. The Sheriff, Mr Iverson, then entered the court and gave an assurance that none of the jurors had access to the morning paper. Though it was offered, Keogh’s counsel didn’t want Justice Duggan to question each jury member as to whether they happened to see the article, as it might risk influencing their deliberations. All agreed.
The next bombshell dropped at 11.52 am when the jury sent the message that they were hopelessly deadlocked. There was no chance of a unanimous guilty verdict as was required in a charge of murder. The DPP requested Justice Duggan issue what’s known as a ‘Black’ direction. Emanating from the High Court case of Black v The Queen, it gives judges discretion to ask the jury to continue deliberating if there’s any possible prospect of agreement with additional time.
Justice Duggan opted to address the jury about their responsibilities. He reminded them that judges are reluctant to dismiss juries if there is any hope of unanimity and offered them the opportunity to withdraw, discuss their difficulties and seek his advice if necessary. In half an hour they did return to ask for the legal definition of ‘beyond reasonable doubt’, but were informed they had to rely on the ordinary meaning of each of the three words.
Just before 1 pm the jury members sent a note saying they couldn’t break the deadlock. There would be no verdict. Henry Keogh, the Cheney family and all the witnesses were now compelled to face the same distressing ordeal all over again. Having remanded Keogh in custody for the trial, Justice Duggan issued a further warning to the media that they risked contempt if they indulged in anything more than the straight reporting of what has occurred. The court was adjourned, with a date to be set.
The next day the Sunday Mail had their own massive banner headline: ‘DEADLOCKED’.98 The entire front page was devoted to the story along with an enormous photograph of a pensive Henry Keogh being driven away in a police car. The story carried a tale of ‘courtroom tension and drama’, including the news that Judge Kevin Duggan had been ‘asked to dismiss the jury over media reporting of the trial’. It went on to say that defence and prosecution counsel had branded ‘some’ media reports on the trial unprofessional. Conspicuously absent was any reference to the previous day’s Advertiser as the prime offender, as was the fact the judge’s threat of a contempt charge was directed at their own stablemate.
Michael David applied to the court, pleading Henry Keogh could no longer find an unbiased jury in South Australia, and that the charges should be permanently stayed. However, Justice Duggan rejected his arguments and simply moved the trial, due to start the following week, until August, four months away; he also let Keogh out on bail. Fortuitously for the Advertiser, the reasons for both the application and the postponement were supressed. This spared them the embarrassment of reporting on their own indiscretions. It appears Justice Duggan believed the article was sufficiently prejudicial that any further reference would disadvantage Keogh and yet it hadn’t yet reached whatever intangible standard he’d set to see the proceedings halted. The minor heading in the paper of 14 April simply read, ‘Bid to abandon Keogh trial fails’.