The media and the legal system are ill-fitting halves of the world of due processes and justice being seen to be done. There are times when the two are totally at odds. When it comes to the imposition of suppression orders, which by nature are anathema to unfettered disclosure, the media will inevitably protest about secrecy and special treatment. On the other hand the courts are ever critical of the media’s sensationalism, even when the facts of the case might be truly sensational. Many of those in the legal system abhor the media’s apparent selective reporting and disregard of context. Yet many lawyers see the value of having the media on their side or that of their clients. They will leak information that might be detrimental to their opponents, or alert journalists to hearings in which they put on histrionic or quotable performances from the bar table.
Kevin Borick was one of those who could see value in media exposure. It’s a matter of record that almost every wrongful conviction that’s been overturned has been accompanied by and dependent on a campaigning journalist, author or media organisation. Certainly Borick had become accustomed to intense media exposure, wanted or otherwise, in cases such as that of Van Beelen and Szach. These experiences had accustomed him to the ways of the media.
Perhaps, too, it was a result of his marriage. Borick’s wife, Sue, was a family court lawyer but also the daughter of Bill Davies, the inaugural General Manager of Channel Nine Adelaide, the city’s first TV station. Nine in those days was owned by Rupert Murdoch, and Davies was a highly regarded newspaper executive before he turned his hand to the brave new frontier of television. It was through those contacts that Borick became a close friend of John Singleton, the legendary adman and radio network mogul.
While Sam Abbott and Marie Shaw deliberated on where next for Henry Keogh, Borick swooped in. He convinced a largely powerless Henry Keogh to make changes to his legal team around May 2000, and place himself at the head. Then he sought the advice of Singleton, who believed the case needed media exposure as there was no obvious avenue back into court. Who better to advise him on a media strategy than Singleton?
The advice was good. It was best to seek national coverage, which would bring an entirely new audience to the case, one which was uncontaminated by the prejudicial publicity that meant Keogh’s hopes were almost irredeemable in South Australia. The decision was to take the case to the ABC’s Four Corners program, which had a strong reputation for investigative journalism in Australia. Their report went to air on Monday 22 October 2001.
Four Corners journalist Sally Neighbour focused her attention on the scandalous record of Dr Manock. Neighbour and her assistants spent three months on the research and contacted all of the key players.
They immediately struck the wall of silence that so typified any threat to disturbing the existing order. There was no incentive for anyone to be a lone voice lifting the lid on three decades of potential scandal. Because Neighbour was from a respected program they preferred not to show her the entire cold shoulder, but few would go on the record. Dr Manock refused any contact.
Prepared to front up to the cameras were those who had been shocked by the deaths of the three babies and those who had broader misgivings over the case history of Dr Manock. Among them were a small number who believed the same errors had been repeated in the conviction of Henry Keogh. Nothing, however, could compare with the injustice that no one had been held accountable for the atrocities inflicted on the three infants. The doctors who had witnessed the injuries couldn’t rid their minds of those images. Dr Terry Donald was the head of Child Protection Services at the Women’s and Children’s Hospital and produced the X-rays which graphically showed the extent of the physical injuries. In his words Dr Manock’s failure ‘just doesn’t add up. It doesn’t make sense at all.’48
One of the experts who spoke out was former Forensic Science Centre employee Dr Harry Harding. In 1971, while completing a PhD in protein chemistry, Harry had worked with the defence team, led by Kevin Borick, on the case of Frits Van Beelen. Later, Harding experienced harsh treatment at work. The Forensic Science Centre was revamped under the directorship of Professor Bill Tilstone, and it was shifted out of the Royal Adelaide Hospital into new purpose-built premises at Divett Place in the city. Harding was given a position at the new facility but declined when he discovered he’d be working in the same section as Dr Colin Manock. Management asked him to reconsider if they were to separate his section from that of histopathology and if he answered to a different manager. Harry agreed and began work in 1975. Unfortunately, in time the two sections were merged and he found himself working more or less alongside the man he wished most to avoid.
1994 was the year the first murder case in the state employing DNA analysis was set to go to trial. It was also the end of Dr Harding’s career. His undoing was not that he didn’t understand this brave new science, but that he knew it too well. The body of a 75-year-old woman known as Mrs Pitt was found on the back porch of her home in January 1992. It was apparent she’d been sexually assaulted and murdered. The accused was a contractor, David Jarrett, who had cleaned and painted the deceased’s roof in late 1991. Police had spoken to as many as 17 men who had visited the house for various reasons prior to Mrs Pitt’s death. Blood samples were taken from each in the hope a DNA match would eliminate the innocent and incriminate their single suspect, Jarrett. Once collected the blood was then taken to the Forensic Science Centre for analysis. Dr Angela Van Daal did the analysis and her work was peer-reviewed by Professor Tilstone.
However, during the trial that evidence was challenged by the defence counsel Gordon Barrett QC on the basis that the method used didn’t meet with the standards needed to ensure its accuracy. Barrett called upon the expertise of Finnish molecular biologist Dr Antti Sajantila, who had worked on DNA analysis in Finland and Germany since 1986. He was critical of the protocols used by Dr Van Daal and was of the opinion that they would compromise the accuracy of the findings. Dr Harding was then called into the fray. He was unaware that Professor Tilstone, his boss, had peer-reviewed the work, but was asked by Barrett to conduct his own assessment of the methodology. Harding found himself shadowed by other employees who were reporting back to Tilstone about his progress. Harry finished his review, which made criticisms of the original work, and by implication of Tilstone’s support of Van Daal’s opinions. After a lengthy voir dire the judge, Ted Mullighan, found the evidence of Dr Van Daal admissible. The outcome of the case was determined by facts other than the DNA evidence but the exercise had a fatal effect on Harry’s career.
He was henceforth prohibited from providing expert opinions and was then cut off from doing any further meaningful scientific research. He would turn up to the Forensic Science Centre and effectively be shunned, left to languish at some basement desk while his colleagues went about their duties around him. It was an intolerable situation and yet it was he who felt guilty about taking his salary while doing nothing to earn it. In 1996 he resigned. He eventually got contract work with the University of Adelaide, but his life and his future had been forever marred. There had been a rule at the Forensic Science Centre that prohibited colleagues giving conflicting opinions. It had been exposed during the Splatt Royal Commission, but it appears that some rules take a long time to die.
Despite his time in the wilderness Harry Harding maintained his friendship with Kevin Borick and continued his interest in cases where he believed the version of science relied on had faltered or failed. Coincidentally, through an acquaintance of his wife, Harry was introduced to Robert Sheehan. Perhaps the Keogh case offered him the chance to expose those in the system whom he felt had betrayed the real purpose of science.
Four Corners also broadcast the story of the conviction of Emily Perry, which occurred more than a decade before Henry Keogh but which has some intriguing similarities to his case. In 1981, aged 54, she was convicted of the attempted murder of Kenneth, her third husband. Having been unwell for years, Ken was admitted to hospital around 1980 with suspected arsenic poisoning. This diagnosis boded ill for Emily, whose first husband and brother both died allegedly from the effects of heavy metals. Emily’s second husband had also passed away prematurely – from a possible overdose of barbiturates. After Ken’s condition was reported, suspicion fell on Emily and the police began raking over the details of the previous three family deaths. Like Henry Keogh, the motive for these unexplained deaths was suspected to be the insurance policies Mrs Perry had taken out over the lives of two of her dearly departed.
Another common element in the two cases is the part played by inference and perception. There was no direct evidence to show Mrs Perry had administered poison to any of her husbands, intentionally or otherwise. The prosecution’s argument was based on establishing a ‘course of conduct’ that would mount suspicion upon suspicion until it overwhelmed a jury. Without doubt Mrs Perry, who was charged with two counts of attempted murder, did have an unfortunate history. Her second husband, Albert Haag, was reported as having died of arsenic poisoning in March 1961. Indeed Emily had benefitted from insurance taken out over his life. True, there were marital problems and like Henry Keogh she was accused, by the police, of making false statements over her knowledge regarding the insurance. But the defence argued his death may have been an act of suicide or the result of weed killer sprayed on sweet corn grown in the back garden. Nevertheless Mrs Perry was said to have both access to the poison, the opportunity to have administered it to her husband and to have gained a benefit from his death. An inquest was held but no charges were laid.
The next death in the family was Emily’s brother, Francis Montgomerie, who passed away a year later, in April 1962. Again arsenic poisoning was claimed to be the cause and was found in the body during the autopsy. The deceased was an alcoholic with serious psychiatric problems, and the woman he’d lived with had deserted him two days before his death following his attempts to strangle her. Mrs Perry’s sisters had purchased weed killer not long before their brother’s death which was stored at their mother’s home. Again Emily was said to have had both the opportunity and access to poison, which implicated her in Francis’s death. Suspicion was further aroused because Emily, when first questioned by police, gave her surname as Hulse, that of her first husband. The motive for the killing was said to be to free the family from the intolerable and increasingly unpredictable problem of her brother’s mounting violent behaviour. Again a post-mortem was conducted but Emily was not charged.
Emily then moved to Adelaide with her new de facto partner, Jim Duncan, a heavy drinker who suffered poor health. Jim met an untimely end in March 1970, and was thought to have suffered from an overdose of barbiturates. The two had lived together for three years and Mrs Perry had taken out insurance over Jim’s life in 1968. It was later argued that he had endured arsenic poisoning for some time, yet none of the medicos who examined him had diagnosed any sign of poisoning from heavy metals.
It was at this point that Dr Manock entered the scene. He conducted Jim Duncan’s autopsy, ordering no tests for heavy metals and recording no evidence of heavy metal poisoning. Yet Manock later concluded the symptoms were ‘consistent with’ lead arsenic poisoning, though ‘not specific’ to it.49 Following the autopsy the body was cremated, as Anna-Jane’s was, eliminating any chance of a thorough independent review of the forensics.
Emily’s troubles were exacerbated when a doctor treating Ken Perry in hospital in 1979 sent his case notes to Dr Manock, who expressed the view that the symptoms were consistent with poisoning and who recommended the matter be sent to the police. On the basis of Dr Manock’s suspicions and his findings in the post-mortem of Jim Duncan, Emily was charged with two counts of attempted murder. In her trial the Crown’s Chief Prosecutor Brian Martin put to the court that each death taken individually would not invite a charge of murder, but collectively they were significant and incriminating. Dr Manock’s contribution was to give weight to the prosecution’s proposed cause of death. Further, he implied that Ken Perry, though he survived, was being deliberately poisoned. Dr Manock made his observations having never met or physically examined Ken or having visited the workshop to examine the conditions under which he had pursued his passionate hobby of restoring and tuning pianolas.
Ken was one of the few people who believed his wife was innocent. They made an odd couple, the accused murderer and her alleged surviving victim steadfastly walking arm in arm to and from the court, always polite and accommodating even when surrounded by a media throng. The case ensured great copy. Colourful phrases such as ‘the black widow’ and ‘arsenic and old lace’ littered the stories and scripts covering the trial. Emily Perry was found guilty and sentenced to 15 years hard labour.
Her defence team applied to the Court of Criminal Appeal in South Australia but their challenge was dismissed. The only hope was a plea to the High Court. Fortunately it was one of those rare occasions when special leave was granted. The nation’s top court heard the arguments of both sides. The judges unanimously overturned the conviction. The High Court’s criticisms went considerably further than just the verdict. Justice Lionel Murphy, the former federal Attorney-General, was scathing of the expert evidence provided by Dr Manock. He had attributed Mr Perry’s running nose to the presence of lead arsenate, when in fact it was a symptom of rhinitis which had afflicted him long before he’d known Mrs Perry. Furthermore, a second pathologist had conducted a test on the body of Emily’s previous partner, Jim Duncan, and ruled out the existence of arsenic poisoning. Justice Murphy was withering:
The evidence, particularly in relation to Duncan, but also of the other alleged poisonings including that of Mr Perry, revealed an appalling departure from acceptable standards of forensic science in the investigation of this case and in the evidence presented on behalf of the prosecution.50
The court quashed the conviction and sent it back for retrial. The High Court’s crushing assessment of Dr Manock’s work in the case appeared to bounce off the shell which encrusted the South Australian justice system. Among Justice Murphy’s concluding statements was that:
If the expert assistance available to the prosecution in this case is typical, then the interests of justice demand an improvement in investigation and interpretation of data and presentation to the court by witnesses who are substantially and not merely nominally experts in the subject which calls for expertise.51
Nothing appears to have been done. Harry Harding summed up Dr Manock’s role in the following way in the Four Corners report: ‘He was very close to the police, very much involved with the police, and basically seemed to be, if not even said to be, the police forensic pathologist.’52 For anyone in the forensic science business it ought to have been a humiliating criticism.
Chief Crown Prosecutor Brian Martin chose not to proceed with another trial. Eight months later Brian Martin’s name was added to Dr Manock’s CV as a professional referee.53 Was he still prepared to vouch for a man he’d heard the High Court say had demonstrated ‘an appalling departure from acceptable standards of forensic science’? All three prosecutors involved in that appeal – Graham Prior QC, Brian Martin QC and Ann Vanstone QC – went on to become Supreme Court judges. Not one appears to have foreseen the damage this man could do if he continued to give expert evidence on behalf of the Crown. As for Dr Manock, he also seemed to have escaped unscathed from his mauling by the High Court. He returned to the mortuary and continued his work.
Eighteen months later Brian Martin relied on Dr Manock as the sole expert witness in another murder trial where the forensics played a crucial role. Derek Bromley’s case is still percolating through the courts three decades after his incarceration on the basis of the evidence given by Dr Manock. Brian Martin was destined to become the Chief Justice in the Northern Territory and Prime Minister Malcolm Turnbull’s first pick as Royal Commissioner into the treatment of Indigenous youth in custody.
Emily Perry died in February 2012 aged 85, survived by her husband Ken. Even after her death he still felt obliged to defend his wife’s name. He objected to the Advertiser’s headline on their report of Emily’s passing, which read ‘My loving wife was no serial poisoner’.54 Ken believed it suggested there was still doubt about her innocence. The Press Council, to which he complained, agreed; it found the article focused on the allegations raised about her as a possible murderer rather than the exculpatory material which led to the quashing of her convictions: ‘In particular, it did not give due emphasis to the very grave doubts expressed by authoritative sources about the conduct of the pathologist in her case and many subsequent cases.’55 The Press Council upheld the complaint, but imposed no penalty.
The Four Corners program left until last the case of Henry Keogh. In 2001, he was only a quarter of the way through his sentence. This would be the first time his quandary had been taken up by the media in a way which actually challenged the forensics.
Professor Gale Spring is a Texan specialist employed as the Professor of Forensic Photography at Melbourne University. His expertise as a forensic photographer includes the proper documentation of autopsies and crime scenes in the US and Australia, so he was well equipped to review the photographic record from the Cheney autopsy. He was scathing about the sole use of black-and-white photography to record the evidence, most specifically the bruising. In his view it was almost impossible to confirm the existence of bruising from a monochrome image.
The real bombshell came with the appearance of Professor Tony Thomas. Until this time no public mention had been made of Thomas’s discovery that the existence of the crucial thumb bruise that completed Dr Manock’s grip theory was not supported by evidence. In a dramatic moment he revealed the results of his examination while holding in his hand the critical exhibit:
This is the slide that was labelled as coming from the bruise on the medial side of the left leg, which was said to be the thumb print. And when I look at it down the microscope, I just see fibro-fatty tissue which is from the subcutaneous tissue. But I see no evidence of bruising whatsoever, in that there is no extravasation or leakage of red cells into the tissues.56
Professor Thomas’s observations were backed up by Victorian forensic pathologist Dr Byron Collins, who had also examined the tissue slides.
What Professor Thomas was telling Australian audiences was that the jury had been misinformed. According to these experts, the evidence that underpinned the grip theory, the opposing thumb bruise, didn’t exist. If they were correct, the absence of the bruise meant that any tangible evidence of another person being present in the bathroom when Anna-Jane died was also absent.