Immediately after his conviction on 23 August, Keogh’s trial lawyers filed for an appeal on 31 August, citing four grounds. The inadmissibility of A. and B.’s evidence and the damage done by the ‘Tale of treachery’ article were among them, with the third pertaining to unfair, prejudicial newspaper coverage of the trial. It took the three justices of the Full Court – Matheson, Millhouse and Mullighan – only a week to arrive at their decision, which was announced in late December. One by one they dismissed the appeal points and the verdict stood.
Following the rejection of the appeal, Keogh changed his legal team. Criminal lawyer Michael Sykes with senior counsel Tim Game QC, who agreed to work on the case pro bono, took over in February 1996. The route forward through the justice system was to apply for special leave to appeal to the High Court, the final legal arbiter. The High Court required this preliminary step before they would expend their time on an actual appeal, and very few cases made it through. The predicament facing Michael Sykes and Tim Game was that the High Court would not accept ‘new’ or ‘fresh’ evidence; the majority of High Court jurists have interpreted their role under the Constitution as a purely appellate court. The long shot Sykes and Game had to aim for was to attempt to reopen Keogh’s Full Court appeal in order to include evidence from the baby deaths inquest, so they could put it before the High Court.
Aside from the gamble to reopen the appeal and then the unlikely tilt at the High Court, Keogh’s only other remote avenue of relief was to prepare a petition for mercy to the Governor. This is an archaic mechanism derived from the royal prerogative which confers on the monarch the power to pardon criminals and commute death sentences. This power has since been broadened to the pardoning of serious convictions if compelling new evidence comes to light, and has been delegated to governors and governors-general of the Commonwealth countries. In reality these decisions are further assigned to ministers of the Crown, most particularly the Attorney-General, and ratified by the Executive Council of government.
Michael Sykes was deeply concerned by the non-disclosure of the Coroner’s findings at the time of Keogh’s second trial. The Crown had an obligation to reveal what it knew of the criticisms of Dr Manock’s approach to the autopsies and his evidence to the inquest. Sykes contacted Michael David, who by this time had been elevated to the judiciary, hoping the former counsel might provide some useful explanation as to why he hadn’t raised these criticisms of Dr Manock in Keogh’s appeal. David refused, simply informing Sykes, ‘he did not see how the findings could have been used to assist Mr Keogh’.18
Sykes also approached the Coroner, Wayne Chivell, seeking an affidavit to explain his reasons for withholding his findings. Again he was met with a refusal. During their phone conversation the Coroner did say:
… that he was sensitive to the fact that Mr Keogh’s second trial was proceeding at the time when he was ready to publish his findings. He knew Dr Manock was a principal Crown witness in the trial and to avoid a mistrial he decided of his own volition to delay publishing the findings until after the trial had concluded.19
Sykes was dismayed. The Coroner must have known he was sitting on a report capable of causing a mistrial. Chivell appreciated the force of his decision.
Only one or two petitions for mercy to the Governor have ever been successful in South Australia. What most latter-day petitioners want is not a pardon but to have their case remitted to the Court for retrial. That was precisely what Henry Keogh was hoping for when his first petition was lodged on 17 December 1996. It is not a transparent process but, considering the cost and potential futility of seeking special leave to the High Court, it appeared to be his best option.
Understandably few governments want to get enmeshed in the controversial business of giving convicted criminals, particularly murderers, a second chance. There were no votes in provoking the wrath of the victims-of-crime lobby, which has become increasingly strident and influential. ‘Law and order’ governments, as most state governments are these days, want to be seen as tough on crime. It’s for this reason these kinds of dilemmas should be left to the courts.
There’s also a principle at risk here. Everyone deserves to be treated fairly, which means decisions should not be made arbitrarily and the reasons ought to be open and transparent. Yet under the petition process there is no obligation on governments to meet either of those criteria. Any legal advice underpinning a finding can be kept from the petitioner on the grounds of professional legal privilege because the Solicitor-General, who provides that advice, is the Attorney-General’s lawyer.
The rejection of Henry Keogh’s first petition, on 10 March 1997, was purely procedural, as he had not exhausted his option to apply for special leave to the High Court. One paragraph in the letter from the Governor’s Secretary reveals the mindset any petitioner confronts: ‘I am able to say that the Ministers noted that an appeal to the Court of Criminal Appeal did not disturb the verdict of the Trial Court.’20 If that was the criterion for rejection, no petition would ever succeed. It may explain why so few have.
All the South Australian authorities were against reopening. The term used for the finalising of a case is itself presumptive of the omniscience of the judicial process. The decision is said to be ‘perfected’. It’s a concept that perhaps belongs in theology rather than human law, but it’s that sense of immutability that the applicant confronts.
Sykes and Game believed that if they could get before the Supreme Court on the argument to reopen, that might be sufficient to put the inquest evidence into play. Even if their application was rejected, as they imagined it would be, they could still approach the almost unassailable High Court with the same evidence.
Over a month later, on 6 May, the same three judges who sat on the first appeal agreed to at least hear their submission. Paul Rofe was also present, ready to defend the integrity of the prosecution. Michael Sykes, in addressing the bench, conceded that the ‘perfection’ of the Court’s order was complete. But he argued the inquest findings challenged the ‘competence of Dr Manock generally’.21 It was with these words the alarm bells began ringing:
Mullighan J: Have all his evidence excluded?
Mr Sykes: That is a possibility.
Millhouse J: By showing that, in fact, he is not an expert?
Mr Sykes: Incompetent.
Millhouse J: An incompetent expert?
Mr Sykes: We say, therefore, not capable of giving evidence on issues relating to the expertise of a forensic pathologist.22
It was a bold contention, but Sykes didn’t stop there. While one arm of the Crown, the Crown Solicitor, was assisting the Coroner in a damning inquiry into Dr Manock’s conduct and credibility, another branch, the DPP, had put him forward as a reputable expert. It didn’t take the good men on the bench long to grasp what the consequences might be if they found the Crown had been so duplicitous. Justice Millhouse asked Sykes, ‘I suppose if you were to succeed in this case, that all the matters in which [Manock] has been concerned over the years as forensic pathologist could be reopened on the same grounds?’23
With that calamitous prospect hanging in the air, Paul Rofe leapt to the lectern to make doubly sure the bench was in no doubt about what was at stake. He attacked the plea to reopen, but also took aim at Sykes himself: ‘Really, my friend’s submission comes awfully close to alleging joint conspiracy, a conspiracy perhaps in the trial process of an alleged failure to disclose by the Crown …’24 The court got the message and unanimously rejected the application.
All that was left was the slender thread dangling from above, the High Court. First Keogh’s team needed to apply for special leave. In October 1997 Tim Game fronted the three judges in Canberra to argue that not raising the coronial inquest findings amounted to ‘incompetent’ advice to the client by Michael David and his team: ‘[Keogh’s] lawyers have incompetently failed to advise him on the importance of the material.’25 Game went on to say the absence of any reference to what had emerged during the inquest amounted to ‘non-disclosure’ on the part of the prosecution and the Crown generally: ‘The Crown has failed in its obligation to inquire and put the material to the defence.’26
The High Court’s Justice Toohey wasn’t buying it. He said the defence had discussed it, as was disclosed in Henry Keogh’s affidavit attached to the application. The matter had also been publicly ventilated in the media, so it was not something that was kept from them: ‘It was a matter not only of public record, but a matter which had come to the attention of the applicant and his legal advisers.’27 Game persisted, arguing only the findings brought all the evidence together into a coherent and credible form, and that the court could exercise its power to set aside the judgement if there was likely to have been a ‘miscarriage of justice’.
Game’s final point was that the local Court of Criminal Appeal didn’t treat the grip theory as needing to be established beyond reasonable doubt before moving to the question of motive. Instead the court had wrongly addressed the two as one: ‘Without establishing that there was a deliberate grip mark to the leg, it is difficult to see how you could be satisfied beyond reasonable doubt that this was a deliberate killing by the accused.’28
If only he knew just how significant that point was to become. The High Court remained unmoved, and special leave was refused. If Henry Keogh was potentially a victim of an unprecedented forensic scandal, he was also the victim of his original legal advice.