When I first walked into the bathroom of the Magill property, in July 2004, I was surprised by how compact it was. It was difficult to imagine a man with a bad back drowning a fit young woman without extreme difficulty and without leaving evidence of a violent struggle. Bathrooms are hazardous environments: hard, slippery surfaces, sharp corners and pipes sticking out of walls.
Valerie Armfield had been thinking the same thing. With the aid of her husband, John Lewis, she planned to challenge another aspect of Dr Manock’s evidence. John is semi-retired, but ran trucking and bus companies over many years and is a tough, pragmatic, old-school self-made man. He is devoted to Valerie and, though frugal by nature, is generous in his support for the things she holds dear, not the least of which was her belief in Henry Keogh’s innocence.
Over the years John ran his own style of campaign, having a huge sign painted and mounted on a truck trailer calling for a fair trial for Henry Keogh. He took delight in driving around town and parking in front of Parliament House whenever he had the opportunity. John would even sit on the median strip of West Lakes Boulevard as AFL fans streamed past in their thousands on the way to Football Park to see their beloved local teams do battle. Beside him he would erect a sandwich board imploring people to support a case review. He copped his fair share of abuse, but most people couldn’t help saluting his commitment to the cause.
On a more scientific front Valerie also asked him to help fund a controlled re-enactment of the method of ‘murder’ proposed by Dr Manock. The expert asked to oversee and assess this experiment was Professor Maciej Henneberg, an internationally renowned forensic anthropologist. Professor Henneberg had been a leading academic in Poland then became active in the 1980s Solidarity movement. He involved himself in organising strikes, removing reactionary staff members and replacing the academic board at his university, with an aim to restore the country’s academic system, he was detained in December 1981 and incarcerated for 100 days without trial under martial law. By 1984 he was effectively exiled from Poland.
Professor Henneberg continued his illustrious academic career in the US and South Africa before taking up a position at the University of Adelaide as Professor of Anthropological and Comparative Anatomy. He has distinguished himself in numerous high-profile criminal investigations where anatomical reconstructions were needed to aid identification. Aside from his immense experience and expert knowledge, Professor Henneberg, as you’d imagine from his history, is a fierce free thinker: the perfect person to cast an eye over the plausibility of the Dr Manock’s mechanism of ‘murder’.
Having gained the permission of the new owners of the Magill residence, Valerie, Professor Henneberg and Kevin Borick set up the re-enactment on 21 November 2001, adhering as closely as possible to the demonstration Dr Manock had given in court. Instead of an empty bath with no ‘victim’ Valerie employed a young model of Anna-Jane’s proportions. As one of the team knelt on the floor the young woman stepped into the bath and slid into the water. With water splashing around the crowded bathroom they went through all the possible combinations of left hand, right hand and gripping of the left leg from below and above. Each scenario was recorded on video.
Slippery legs, a weak grip and the ability to twist and turn and grab handholds in such a small bath made the exercise almost impossible without applying such force that would leave substantial injuries on both the ‘victim’ and the ‘attacker’. Professor Henneberg summed up what he’d observed in a later affidavit:
The upper limbs of a person sitting in a relatively shallow bathtub, upon being attacked by a grip on a leg, would easily be abducted away from the torso and lodged against edges of the bathtub, thus preventing any attempt at sliding the head under water. Even if, impossible as it is, the head was pulled under water, the upper limbs would be free to move upwards with hands gripping the edges of the bathtub or hitting the attacker. It would not be correct to say that the arms would be trapped by the sides of the bath as Dr Manock has suggested.66
Valerie now had something very tangible to offer those who scoffed at her misgivings about Keogh’s conviction.
There was considerable public indignation following the Four Corners report in October 2001. Many believed it was irresponsible of the media to even hint that Henry Keogh was not precisely where he deserved to be. Even more vociferous were the protests raised in sympathy for the Cheney family. How heartless to put those still grieving through further torment. Where was the decency in further antagonising the victims or the public, for the sake of a killer?
However, Valerie Armfield would not be dismissed. The dramatic video of her re-enactment in the very bath where Anna-Jane died, showing the improbability of Dr Manock’s hypothesis, was likely to be of interest to a content-hungry media. It was certainly enough to catch the attention of a journalist with the Sunday Mail. Experienced reporter Peter Haran was well aware of the controversy surrounding Dr Manock’s career and Valerie Armfield had made numerous attempts to interest him in the story. Peter had a fascinating background: he had seen service in Vietnam when he was just 19 and was one of the country’s first tracking-dog handlers. In 1972 he joined the Sunday Mail, where he worked for 25 years. While he was a tough, no-nonsense journo he wrote with compassion and empathy. Haran was keen to see the video. Unfortunately, the fallout from the resultant story was to be a disaster for everyone involved, most of all for Henry Keogh, who again was powerless to intervene.
By the end of 2001 I was very much aware of the case. Today Tonight had been approached by Robert Sheehan in 2000 with evidence he thought exposed a miscarriage of justice. Those were the early days and he spoke to one of my most experienced staff, veteran reporter Frank Pangallo. No one was quite ready then to commit to a public media campaign, though I’d seen the Four Corners program and knew anecdotally of Dr Manock’s curious history.
When I opened up the Sunday Mail on the morning of 16 December 2001 I was stunned. The headline read ‘Bath murder video’. Underneath was a large photograph taken above a bathtub showing a dark-haired man in a crisp white business shirt forcing a young woman under the water while gripping her raised legs. Even as a seasoned TV producer there was a heart-stopping split second where I thought somehow a camera had caught the actual crime. The fine print on the same page read, ‘This graphic image from a videotaped re-enactment of the 1994 murder of Adelaide lawyer Anna-Jane Cheney has put the spotlight back on the accuracy of some forensic evidence in SA court cases.’67
The article over the next couple of pages described the method of drowning proposed at the trial and then provided five sensational freeze-frames from the re-enactment video to indicate how unlikely the method was. The story was, however, loaded with qualifications, insisting this was not a ‘bid’ to free Henry Keogh but an attempt to generate interest in other cases involving Dr Manock. Nor were those ‘interested’ behind the experiment seeking to have Keogh ‘released’.
The very DNA of the article made clear the fear the newspaper had of being seen to suggest Keogh might be innocent. Despite the extraordinary photos and the headline on the front page the text was swayed emphatically towards a condemnation of Henry Keogh himself. The subheading running across the centre of the page screamed, ‘Sexual predator who schemed and killed’. Not even the prosecution had described him in such repugnant terms. There, staring po-faced out of page two, were Paul Rofe QC and the Attorney-General Trevor Griffin under the shared chorus line of ‘nothing new’.
The editor of the Sunday Mail was Kerry Sullivan who, like many Murdoch editors, wielded significant power in the city and ran Adelaide’s only Sunday newspaper for 25 years. The sales for that edition did go through the roof, but so did their readers, and even worse, his News Limited masters. The first order Peter Haran received on Monday morning came from the company’s Adelaide Managing Director Peter Wylie: ‘Boardroom at nine o’clock!’
Haran, Sullivan, Deputy Editor Mike Pilkington and chief of staff Sean Whittington trailed into the expansive wood-panelled room in ‘The Advertiser’ tower on Waymouth Street. For one hour they received the full force of News Limited’s wrath. The Cheney family, who knew how to shake the right branches, had gone to the top of the tree, the News Limited Chief Executive in Sydney John Hartigan. At the end of the meeting Wylie gave three very clear instructions. Any photos or images used in the story, including those of Anna-Jane, were to be sealed, never to be accessed without Wylie’s express authority. The four journalists were to leave the boardroom forthwith, get on the phones, call every single person who’d rung the newspaper to complain, and personally apologise. There were hundreds of calls to be made. The majority of readers conceded the content of the story was perhaps excusable but the front page was unforgivable. The last of Wylie’s directives was that in next Sunday’s edition a fulsome apology would be published as would every letter to the editor complaining about the coverage. Kerry Sullivan would announce his retirement in the months to come and slip quietly from public life.
The ‘Letters to the Editor’ column the week following the publication was swamped with protests from outraged family and friends of the Cheneys and members of the public. They occupied two full pages; all were critical. The newspaper issued its apology and when a complaint was lodged with the Press Council by Anna-Jane’s mother, Joanne Cheney, the publishers made little effort to defend their actions. The council ‘unreservedly and unanimously condemned’ the publication and described it as ‘a serious lapse in editorial judgement and should never have occurred in the first place’.68 While accepting that the accuracy of forensic evidence was of public interest they added a serious ‘but’, saying, ‘it was clearly inappropriate to base most of the investigative report of this issue on a rehearsal of detailed evidence presented at one particular trial, and on the antics of the persons who commissioned and videotaped the murder re-enactment.’69
After the furore subsided and the Keogh case was again relegated to the ranks of the ‘un-coverable’, Dr Manock sued the newspaper. He knew he had the tide of public opinion behind him. His action was extremely narrow and selective in order to make any defence as difficult as possible. He limited his claim of defamation to the criticisms of his work in murder trials alone. He was aided in this by reference to a much earlier article by the same paper entitled, ‘Was murder trial evidence always reliable?’,70 which also referred to Dr Manock’s work. It was a cunning strategy because the cases that had progressed to trial had either ended in convictions or acquittals. It was easy to argue that if the prosecutions were successful then Dr Manock, as the forensic pathologist involved, probably did his job. To prove otherwise would require re-running the entire trial. If the accused had been acquitted, it’s unlikely anyone was going to complain about the process. By focusing his pleadings on ‘murder trials’ Dr Manock managed by the use of a legal strategy to avoid the evidence from the baby deaths inquest being used against him in defence. He would also manage to sidestep the excoriating criticisms of his work from the High Court in the Emily Perry case, in which the charge was ‘attempted murder’, not murder.
The challenge in his pleadings went further. He required the newspaper to prove that his incompetence was so significant that the verdicts in those murder trials ought to be quashed, setting the challenge for the defence very high. What judge, in a defamation case, was likely to come to the view that the evidence presented would lead them to declare murder convictions, all of many years standing, to be fatally flawed, even on the balance of probability?
Defamation law in Australia for a defendant is like walking backwards through a field of rakes. No matter where you step something unexpected is likely to whack you from behind. Litigation is an endless series of pleadings and appeals in which the plaintiff tries to pare down the defence to the very minimum allowable arguments and evidence. The plaintiff gets to define the meaning, or ‘imputation’, contained in the words or pictures they find defamatory. The defendant then needs to justify their broadcast or publication on the basis of that meaning. It doesn’t matter if that interpretation had never occurred to the defendant.
The paper knew that to have any hope of a successful defence they needed to be able to refer to the official findings of the Coroner in the baby death cases. Considering the offending articles ranged over much of Dr Manock’s work, including the baby deaths and the subsequent inquest, it seemed reasonable that they should not be limited by the plaintiff. Supreme Court Justice Besanko, however, wasn’t persuaded. News Limited had little option but to appeal the matter to the Full Court.
The lead judge on the appeal was John Doyle QC, the state’s Chief Justice. John Doyle was educated at the Catholic Saint Ignatius’ College, the same school that so many other members of the bar attended, including the DPP Paul Rofe. It was also Henry Keogh’s alma mater. Doyle was appointed the Solicitor-General of South Australia in 1986 and was elevated to the Supreme Court in 1995.
In his role as the Solicitor-General John Doyle had already encountered the work of Dr Manock. In 1994 Doyle had been required to advise on the case of David Szach, otherwise known as the ‘body in the freezer’ murder. The 1979 killing was one of Adelaide’s most bizarre. Derrance Stevenson was a flamboyant criminal lawyer, at the time a conspicuous part of the city’s recently liberated gay scene. His 19-year-old live-in lover David Szach was convicted of shooting him in the back of the head and was sentenced to life in prison. It is a crime that to this day he claims he had no part in and had no reason to commit.
David Szach was raised in the northern Adelaide suburb of Surrey Downs. During Szach’s fourth year of high school, when he was just 15, he took a day off from his plumbing apprenticeship due to a minor leg injury. He and his friend Raymond decided to visit the city. There, by chance, he met a man who would change his life forever: the chiropractor Gino Gambardella, a known procurer of young boys for himself and his well-to-do friends. He immediately targeted Szach and introduced him to Derrance Stevenson.
Szach had had no sexual experiences before meeting Stevenson but became his lover almost immediately. Szach moved in to Stevenson’s avant-garde home, which gave the appearance of a very large, partially collapsed tent, on the edge of the city’s southern parklands. The power rested with the older man and although he appeared to treat Szach well, Gambardella continued to introduce new boys into the group. For Szach all of this came to a terrible halt when one night Stevenson suffered a single rifle shot to the back of his head which ended his life. The next day his absence at court became a source of concern and his body was found late that afternoon in the foetal position in his own chest freezer, buried under frozen food. The lid had been superglued shut. Szach, on the evening of the shooting, had departed for Coober Pedy in central South Australia, where Stevenson had opal mining connections. He had driven Stevenson’s flashy red Nissan coupé and was put up by mutual friends. Some days later he was charged with the murder.
Szach’s defence counsel for trial was Kevin Borick QC. The prosecution was based on a combination of circumstantial evidence, tenuous eyewitness testimony and the expert opinion of Dr Manock. After a four-week trial David Szach was convicted and sentenced to life in prison for his crime. He was just 19 years old.
Almost ten years into his prison term Szach asked his lawyer Andrew Dudek to contact Melbourne forensic pathologist Dr Byron Collins in the hope that he might challenge Dr Manock’s time-of-death calculations, which were critical in Szach’s conviction. Collins was asked if it was possible to undertake a complex experiment requiring the use of real cadavers and, ideally, the actual freezer in which the victim was entombed.
The idea was to test Dr Manock’s figures, which he had claimed in court were based on a British method called the Fiddes-Patten formula, first published in 1958. The purpose of Fiddes’ and Patten’s research was to help assess the approximate time of death of victims caught in storms, avalanches or other misadventures in extreme locations. The cadavers used in the research were subject to complete freezing under strictly controlled conditions and the temperature measurements were taken rectally. This work was further developed by Professor Tom Marshall of Leeds between 1962 and 1974. In cross-examination Kevin Borick questioned Dr Manock about the caution issued in one of Marshall’s publications, from 1966, to those adopting his methodology:
A warning was given, lest the accuracy obtained under experimental conditions be thought to extend to a practical situation where the investigator has to contend with errors which will affect the results of any temperature formula, no matter how accurate it is. Do you agree with that statement?71
Dr Manock simply replied, ‘Yes.’ Derrance Stevenson’s curled-up body in a domestic freezer bore no similarities to the methodology used in the study.
Regardless, Dr Manock had arbitrarily adjusted the formula by 40 per cent to allow for the fact Stevenson’s body was doubled-up rather than prone. Nor had Stevenson’s body, surrounded by frozen chickens and a bags of peas, been completely deep-frozen before it was discovered. Manock’s calculations, after some adjustment, had put the time of death within the critical period Szach was alleged to have been alone with Stevenson at the premises.
Dr Collins agreed to take on the challenge and hoped to gain permission from the Victorian Coroner to conduct an exacting study using real cadavers. He also sought access to the freezer unit from Stevenson’s house. In his letter to Andrew Dudek, Dr Collins concluded by saying, ‘There is, in my opinion, no scientific basis whatsoever upon which Dr Manock has based his estimation of time of death and I am confident my experiment will verify this.’72 Unfortunately, the experiment into the ‘body in the freezer’ did not proceed as the Victorian Coroner withheld permission.
Five years later, in 1994, an informal application for a review of the case was lodged with the Attorney-General Trevor Griffin by Dudek. The basis of the request was that there was ‘fresh’ evidence from two independent experts, who challenged the scientific credibility of Dr Manock’s time-of-death calculations. Dr Collins had also sought the opinion of the esteemed British forensic pathologist Professor Bernard Knight, who wrote of Dr Manock’s ‘very speculative and tenuous calculations [using] some rather old ideas about body cooling which have been discarded in recent years’.73
The proposition put to the Attorney-General was that if the evidence was shown to be unreliable it removed the direct link between Szach and the killing. As in the case of Henry Keogh the circumstantial evidence entitled the police to be suspicious, but the evidence of Dr Manock had given the jury a solid scientific basis on which to rest their deliberations. There were other suspects who were not as thoroughly investigated; for example Gino Gambardella, who was initially charged as an accessory but, after the charge was dropped, returned to his native Italy.
Having received the application from Szach’s lawyer, the Attorney-General referred it to John Doyle, the Solicitor-General, and convened a meeting on 21 December 1994. In February 1995, on the eve of Henry Keogh’s first trial, Doyle provided his advice to the Attorney-General, Trevor Griffin. Doyle’s view was that Dr Manock’s evidence, lengthy and detailed though it was, had little or no bearing on the outcome of the case and that the plea of Szach’s lawyer should be rejected.
If Doyle was correct, questions about the admissibility of Dr Manock’s evidence ought then to have arisen. If his testimony was judged to be effectively irrelevant from an evidentiary perspective, then equally it must be seen as capable of misleading the jury. Certainly, it formed a vital part of the prosecution’s timeline in establishing Szach as the killer. The Crown Prosecutor, Brian Martin QC, had informed the jury that Manock’s time-of-death evidence was critical to the proposition:
In his opinion it [the body] was in the freezer between 5.45 and 9.45. They are his outer limits – 5.45 and 9.45. But remember, ladies and gentlemen, that he told you that … the time of death, in effect, would be an hour at the most before being put in the freezer. That brings you back to the time of death between … 4.45 and 8.45. That is Monday evening.74
Martin went on to observe that ‘the objective and scientific evidence means that he [Stevenson] was dead by 6.40, and the accused [Szach] was there’.75 The jury’s time of death was based, as the prosecution put it, on Dr Manock’s science.
It’s likely that Doyle, in reviewing the Szach application, sought advice from those people responsible for the conviction. There’s no evidence Doyle went back to Dr Collins or Szach’s lawyer to ask for more detail. The offer was there in Professor Knight’s letter. He wrote, ‘If you or the legal representatives of the convicted man wish any more detailed critique of Dr Manock’s evidence we would be glad to give it, but at this stage I think a general expression of disbelief in his unwarranted claims to accuracy is sufficient.’76
By the time Doyle had framed his response to Trevor Griffin the Coroner, Wayne Chivell, was deliberating on his findings following the baby deaths inquest. It is hard to believe that even what had been reported thus far in the press about Dr Manock’s performance had not come to the attention of the Attorney-General. It’s equally hard to believe that the Coroner had not taken him into his confidence about what the outcome of his inquest was likely to be. Griffin was the state’s chief law officer and such matters were likely to have a significant bearing on the credibility of the Crown’s ability to provide expert forensic advice.
What the Attorney-General’s decision appears to have been, with the aid of John Doyle’s advice, is the earliest attempt to write Dr Manock out of the script in any case that might be seen as problematic. Exactly the same reasoning was later used to quarantine the baby deaths findings from all of Dr Manock’s other work by saying he wasn’t a paediatric pathologist and that therefore the autopsies had no relevance beyond that context. That distinction of skills hadn’t been made in the previous three decades during which he and other pathologists had conducted countless post-mortems, regardless of the age of the victims.
In the same year, 1995, John Doyle, considered by all who knew him as a good and ethical man, was promoted to the position of Chief Justice of the Supreme Court of South Australia. A decade later it was he who was sitting in judgement on the Sunday Mail’s application to use the baby deaths findings to aid in their defence of their publication about the bath re-enactment.
In March 2005, when the findings were published, it was Doyle who wrote the lead judgement.77 The other two Supreme Court judges, Justices Vanstone and White, signalled their concurrence with just one sentence each. The Chief Justice rejected the newspaper’s appeal on all counts. He reasoned that Dr Manock was entitled to limit his case to his work in ‘murder trials’. Though the defendants argued that every post-mortem had the potential to deliver a finding of homicide, that was rejected. The notion that charges of murder over the deaths of the three babies were rendered impossible because of Dr Manock’s inability to come close to an acceptable standard also failed to impress the court. The Coroner’s observation that, ‘the post-mortem examination basically achieved the opposite of its proper purpose in that it closed off lines of investigation rather than opening them up’,78 fell on deaf ears. It seems axiomatic that the degree of skill and professionalism ought to be of the same order in every autopsy, but the findings favoured Dr Manock’s right to limit the scope of his claim.
The newspaper, with a unanimous judgement against it, had run out of options. Going to the High Court was expensive and was likely to fail. They were forced to settle with Dr Manock, pay his legal bills and write him a substantial cheque. The benefit to the state of South Australia was that his reputation remained intact and there would be no pressure to review any of those almost 10,000 autopsies he’d conducted. If News Limited had already suffered the ire of its readership, this hit to the bottom line must have further consolidated their view to leave anything to do with Henry Keogh well alone.
Having seen the Four Corners report denounced in parliament as ‘mischievous’ and ‘misleading’ and having witnessed the disastrous handling of the story by the Sunday Mail the Keogh supporters began to grasp how hard the task they had set for themselves really was. In early 2002, they came to Channel Seven’s nightly public affairs program Today Tonight.
I had watched the Keogh case with interest and I liked involving the program in matters weightier than might normally be expected of a nightly commercial current affairs program. Of course, it always had to be a balance between what was likely to maximise audience numbers and what, as journalists, we really wanted to pursue. I had a longstanding passion for stories where the individual, once wronged, must then do battle with some remorseless bureaucracy that was almost incapable of admitting to error. Legal failings are immensely difficult to correct. I’d read about the case but of course all the mainstream media reports were so condemning of Henry Keogh that there seemed little room for salvation.
The second approach, the first having been made tentatively by Robert Sheehan two years earlier, was more desperate, and initiated by Dr Bob Moles. Rohan Wenn, a young reporter who’d come to us from Brisbane, was keen to take up the story of Henry Keogh from where others had left it. The truth was we had at that time close to four times the viewers of the ABC and our viewer demographic was different, so we had a new and largely uninitiated audience. I gave Wenn the nod. It was the beginning of a battle that was to last well over a decade and alter my entire understanding of how political, legal and judicial power operates.