In the early 2000s a number of new players appeared on the scene who were to have an enormous influence over the future direction of the case. Dr Robert Moles was one of the most influential. In some ways Bob is a larger-than-life figure: tall and broad, with an infectious good humour and an irrepressible optimism. Bob takes a moral view of the world, possibly informed by his strong religious belief. The Keogh case for him is a morality play with the characters lining up on either side of the great moral divide.
Bob Moles was born in Belfast and studied at the Queen’s University School of Law. One formative experience growing up was being nearby when an IRA bomb exploded in the high street, killing and maiming innocent bystanders. To this day recounting the story moves him to tears. In one violent moment of noise, smoke and showering rubble he witnessed just how fragile and precious life is. It also influenced his thinking about the importance of the rule of law over the tyranny of the bullet and the bomb.
After studying for a doctorate in Edinburgh, Dr Moles migrated to Australia and took a lecturing position in law at the Australian National University (ANU). In Canberra he met his future second wife, fellow law lecturer Bibi Sangha. When Bibi took up a position at Flinders University Law School in Adelaide, Moles decided to look for a position that would reunite them in the city of churches. The perfect opportunity soon came his way.
Every five years the convention of the Law School Deans around Australia produces an evaluation of where each faculty sits in terms of its performance and progress relative to each other and with some reference to the standards set overseas. In the late 1990s the Law School of Adelaide University was scoring near the bottom. It was an appalling indictment of the moribund and self-serving culture in the university’s most conservative faculty. It may have also reflected poorly on the insular legal system it had spawned in the state over many years.
The perfect agent of change was Dr Bob Moles, who was taken on as an associate professor of law. His brief was to introduce students to a practical working of the law within the courts, law firms and the government. Bob believed that, having taken him on, the institution would be open to his fresh ideas. But of all the faculties at the University of Adelaide, the Law School was by far the most resentful of any intrusions into their exclusive world.
Change is a difficult process for any organisation. There are really only two ways to bring it about: either crash through or take a painstakingly slow route which panders to the cautious, the sceptical and the recalcitrant. Bob Moles naively took the former path.
Coincidentally, one of the students Bob met while he was lecturing was Dr Noel McCleave, the police doctor who would later conduct the examination of Henry Keogh on the night he was escorted to the City Watch House after his arrest. McCleave was a smart and experienced medico who could see his services might have greater value if he was also formally qualified in law. Dr McCleave and Bob hit it off and he confided in Bob that in the course of writing one essay he’d included what he thought was some relevant data he’d acquired through his medical duties working in the criminal justice system. He was rewarded with a huge red line through what he’d written. He was surprised but also a little bit amused by the lesson: anything beyond the walls of the Law School was not welcome. Bob was to learn the same lesson from a different exercise.
Instead of limiting his student contact to the required ten hours of lectures, seminars and tutorials each week, Bob greatly expanded his contact. He invited them to join him sitting in on court hearing and trials, placed students with law firms for work experience and arranged for overseas exchanges. However, a year into his contract, the Dean of Faculty, Malcolm Detmold, telegraphed his imminent retirement. Bob was about to lose the patronage and support of the faculty head. The resentment towards Bob’s program which had been simmering from day one was about to boil over.
One of his most damaging misjudgements was in not restricting the students he encouraged to join his expansive program to just those under his supervision. This led to a backlash from lecturers who either hadn’t been properly consulted or who, from the very beginning, had resented Bob’s intrusion in the faculty. His complete undoing came when he asked students to research cases of potential miscarriages of justice, cases where the legal system appeared to have failed.
In seeking out fertile case studies Bob contacted various defence lawyers around town. One of those was Sam Abbott. Abbott was a former scholar of the city’s most affluent and prestigious school, St Peter’s College, the cradle for many of the university’s medical and law graduates. At that time Abbott was working on a case with fellow barrister Marie Shaw QC. Shaw was one of the state’s most eminent defence counsels, who had gained a formidable reputation after she had worked on the Royal Commission into the murder conviction of Edward Splatt in 1984, which resulted in Splatt being pardoned. This was a rare and seminal victory in South Australian legal history, which exposed the shortcomings of the state’s expert scientific witnesses and illustrated the capricious and unpredictable variables in the system. Abbott and Shaw had in front of them a case which was a perfect fit for Bob’s purposes, one that had run out of conventional options.
Bob’s visit to Abbott’s chambers in early 2000 was propitious. Another who had already come knocking on Abbott’s door happened to be Robert Sheehan, ‘the Ferret’. Sheehan had been busy doing the rounds of numerous law firms looking for a champion to take up the cause of the widely reviled Henry Keogh. Abbott and Shaw had shown some interest in the case but, being constrained by a purely legalistic approach, had few avenues to pursue: Keogh had exhausted his appeal options and the petition route was legally unattractive as it took the case into the subjective and potentially impenetrable world of politics. Many hours could be expended in preparing a petition only to have it decided behind closed doors between the offices of the Solicitor-General and the Attorney-General.
Abbott suggested to Bob Moles that he might like to catch up with this Sheehan, who had been approaching him for months with all sorts of theories. Bob jumped at the opportunity. When he did meet ‘the Ferret’, he would have seen that not only had Sheehan already done a great deal of the heavy lifting with his inquiries, but he was also the guardian of a wealth of documentation and exhibits that might otherwise have been beyond reach. For example, Sheehan had the complete transcripts from the committal and the first and second trials, essential reading to grasp how the case was won and lost in court.
To suggest there might be some error in the conviction of the universally despised Henry Keogh was a further sign to those in the Law School that Bob Moles was a heretic and needed to be removed. The fact that at the centre of the case was Anna-Jane, a popular graduate of the faculty and an employee of the Law Society itself, may have been seen as making the whole thing even more contemptible.
This growing outrage coincided with the intense internal lobbying for the position of a successor to the departing dean. One of those to put her hand up was an ambitious junior member of staff, Kathy McEvoy, who campaigned on a platform of ridding the Law School of external influences and re-establishing the status quo. Memos had been circulated accusing Bob of profiting personally from his activities. He was alleged to have collected kickbacks from law firms at which students were placed and to have wined and dined contacts at the university’s expense, assertions which he denied. Bob’s adventurous program was cancelled, his teaching duties were reduced and when he protested, he was sacked.
Bob took the university to the Federal Court for unfair dismissal and launched a defamation action attacking the truth of the poisonous memos. Eventually the university offered to settle the defamation for a substantial figure, if Bob would drop the unfair dismissal case, which he agreed to do. Associate Professor Bob Moles was, for the first time in his life, unemployed and almost certainly unemployable in legal circles in South Australia.
Bob seriously thought about leaving the state for good, but Bibi, who was still working in the newly created Flinders University Law School, offered him another option. If he was committed to the cause of rectifying the cases that he genuinely believed had miscarried then he should stay and fight. Since making up his mind to stick to his guns he’s published five books, including the internationally recognised Controversies and Models in Paediatric Forensic Pathology, which arose from a Canadian royal commission investigating the disgraced former pathologist Dr Charles Smith. Bob also set up a website called Networked Knowledge, the world’s most comprehensive reference point for wrongful convictions.
For Bob Moles the law was the equivalent of the religious scriptures. What was written must be followed in its literal form. His philosophy is evident in his view on cases based purely on circumstantial evidence:
In such a case a person cannot be convicted unless the fact of their guilt is the only rational explanation of the circumstances. The law says that if there is a single rational explanation of the facts, other than the guilt of the accused, then the person cannot be convicted.45
Not too many practising lawyers would rely on that proposition and not too many prison inmates would agree that the system works like that. In reality the statutes are merely the scabbards from with the swords of legal battle are drawn.
It was perhaps inevitable that Valerie Armfield and Bob Moles would cross paths. When they did, in May 2000, Valerie introduced him to another key player in this drama, criminal barrister Kevin Borick QC. The son of a publican who ran a small city hotel on the unfashionable western fringe of the city, Borick didn’t share the privileged background of many of his peers. When Moles met Borick he was impressed that a senior counsel of Borick’s experience was interested in taking on the troubled Keogh case.
Kevin Borick QC had been involved in some controversial cases in his career. He’d had his share of important victories, including an appeal to the High Court establishing the principle that people facing federal charges can only be convicted by the unanimous agreement of the jury.
I’ve found that people rarely involve themselves in causes like that of Henry Keogh with the solitary purpose of seeing justice done. While there’s nothing necessarily sinister in multiple motives they can eventually derail things. The underlying motivation for Kevin Borick’s involvement in Keogh, it seemed to me, was to convince the legal establishment that he was not just a worthy advocate but could triumph in the battles that seemed the most quixotic. Kevin has a fatal attraction for unpopular causes, which may in part define the occupation of defending criminals. Some of the reasons this case came to obsess him could be found in his own professional history.
A widely acknowledged victory for Borick was his successful defence of a woman charged with false imprisonment and grievous bodily harm with intent, on the grounds that she was diagnosable as a ‘battered wife’. In March 1991 Erika Kontinen used a shotgun to shoot dead her violent ‘lover’. She had lived, with another woman, Olga Runjanjic, under the tyrannical fist of Edward Hill, who routinely abused and beat them for failing to obey his bizarre orders. Having brutalised the two women he forced them to work as prostitutes and run a fantasy phone line while he took drugs and watched TV. Hill was equally inhumane with four-year-old Archie, the son he’d fathered with Olga. The three of them couldn’t eat or sleep unless he did, and he even had the women wear pagers so he could maintain control over their every move. The women were forced to work on Hill’s secluded rural property bagging firewood while he watched over them, rifle in hand.
Their treatment mentally, physically and sexually became more and more unspeakable. Hill forced them to have sex with his friends while he watched and would later beat them for their infidelities. In July 1989 he ruptured Olga’s spleen and broke Erika’s jaw. They were often beaten in public but when they rang 000 the police didn’t come. Even after they escaped – for example, Erika managed to get as far away as Sydney on one occasion – he would track them down and haul them back. All this horror came to a head one Sunday night in March 1991 when, after another beating, Hill informed Erika he was going to sleep ‘and all youse three will be dead when I wake up’.46 All she remembers after that was standing in the hallway holding a shotgun, hearing the roar as it discharged, the smell of cordite and gun smoke filling the empty spaces around her: ‘I shot Hilly, because I had to’47 was all she could manage to mumble to Olga when she staggered outside.
The verdict of Erika’s first trial was overturned on an appeal run by Kevin Borick on the basis that expert testimony asserting the psychological existence of ‘battered wife syndrome’ had been excluded from the evidence at trial. Borick won the right to use the condition as part of his client’s defence. The acquittal of Erika Kontinen made legal history and established the legitimacy of pleading the defence of ‘battered wife syndrome’.
Borick had an affection for legal pariahs. Few of his clients were more pariah-like than Andre Chad Parenzee, a former South African who was charged in 2005 with endangering life by having unprotected sex with partners having not disclosed to them he was HIV positive. Parenzee’s alleged victims included his ex-wife and two other women he met following his divorce. While none contracted HIV, in January 2006 he was convicted on three counts of endangering life.
Parenzee claimed there had been a miscarriage of justice because the experts he’d wanted to call, who would present evidence to show there was no scientific proof that HIV actually existed, were denied the chance to take the stand. With no provable disease, there could be no provable crime. It was a truly bizarre proposition, which relied on proving the entire scientific community wrong. The two experts, Eleni Papadopulos-Eleopulos and Valendar Francis Turner, were part of an organisation called the Perth Group, whose members are HIV deniers. Justice Sulan found the two witnesses lacked the qualifications or the scientific experience to claim the status of experts and that the group they represented would take any opportunity to promote discussion of its radical values and beliefs.
Borick’s passion for the case was particularly bizarre as at that very time, by 2006, he would be fighting a long battle to have both Dr Manock and Dr Ross James prosecuted for having failed in their duties as expert witnesses.
The opportunity for Borick to expose Dr Manock’s failings and reclaim his own reputation had enormous appeal. Borick had been defence counsel during the controversial Frits Van Beelen murder case. Van Beelen was an unemployed carpenter who was at a seaweed-strewn beach on a wintry July afternoon in 1971 around 4.00, the same time schoolgirl Deborah Leach had taken her dog there. Her body, which showed evidence of rape, was found early the following morning discarded in a pile of seaweed. The only time Van Beelen had no alibi for was between 4.00 and just after 4.30 pm, when he left for Adelaide to collect his wife from work. Using only the partially digested contents of the victim’s stomach, Dr Manock narrowed down the time of death to include that brief period which implicated Van Beelen. He was convicted of murder and spent 17 years in jail protesting his innocence.
Borick had also defended David Szach, whose murder conviction was sealed by Dr Manock’s time-of-death calculations. Szach was sentenced to life in prison.
Another of Borick’s former clients, Indigenous man Derek Bromley, has at the time of writing spent 34 years in jail for the drowning murder of 21-year-old Stephen Docoza in 1984. Again it was Dr Manock’s evidence on the timing and the nature of the injuries to the body, despite it having been submerged in the River Torrens for five days, which helped secure Bromley’s conviction. Keogh provided Borick with a chance for redemption.