In 2001 the public were rocked by the conviction of the state’s longest serving magistrate and former Chair of the Police Disciplinary Tribunal. Peter Liddy had been found guilty of numerous counts of sexual abuse involving junior lifesavers. The aftermath involved me in a long and complex hunt for the antiques and collectibles Liddy had hidden, following his conviction, to defeat his victims’ chances of claiming compensation. During that investigation I came to know a number of police officers who had been running their own inquiries, partly on information I had provided them. One of the things they would raise in conversation from time to time was that I should check into a high-ranking state prosecutor who spent much of his day gambling at the TAB instead of at his desk. That person was none other than the Director of Public Prosecutions, Paul Rofe QC.
Paul Rofe was a member of the Catholic faction of the legal community, had attended Saint Ignatius’ College and was a champion sportsman who could have played Australian Rules Football at the highest level. After he graduated from the Adelaide Law School he worked as the associate to Supreme Court Judge George Walters and then Chief Justice John Bray. Rofe was later counsel assisting the Coroner, before joining the Office of the Crown Prosecutor, which marked the direction of his career from then on.
Rofe was appointed to be the state’s first Director of Public Prosecutions in 1992, a position he retained until his resignation in May 2004. He was the subject of some controversies. In 1996 he had to publicly apologise after he was convicted of drink driving with a blood alcohol reading of 0.178. Anywhere else it’s likely that would have been the end of his career as chief prosecutor, but not so for Paul Rofe. In South Australia the notion that a personal weakness might impact on professional duties or the efficacy of the system was seldom countenanced. Not only were those in positions of power protected but they were seen as one with the bulwarks of social order.
When the police I was dealing with pressed me to put a camera in Pirie Street, the narrow inner-city thoroughfare in which the DPP’s office is located, and follow Paul Rofe for a day I didn’t take them seriously. I ignored them for almost 12 months. It sounded like scuttlebutt. I didn’t think it was the level on which I wanted to deal with the state’s most senior prosecutor. The rumours, however, continued.
By February 2003 I decided I should see for myself. There had been stories circulating since the mid-1990s about Paul Rofe’s gambling habits, including his alleged appearance in Adelaide Casino’s high-roller rooms and the enormous debts he had accumulated. None of that had ever gone beyond the gossip stage but I felt obliged to see if gambling was part of his daily routine. I employed a young man, Andy, to stand with a camera at the ready on the opposite side of the road to the high-rise building that housed the Office of the DPP. His instructions were simple. If he saw Paul Rofe, follow him and record what he did.
Andy came back to the office about 5.30 pm complaining he’d been run off his feet. On that very first day, which was a Friday, the Director of Public Prosecutions had made 12 separate visits to a TAB situated a few hundred metres east of his office. In addition he made five trips to a local deli which sold lottery and scratchie tickets. On each occasion he either laid a bet or purchased a roll of tickets. We kept the surveillance up for a fortnight to ensure this wasn’t some anomalous Friday indulgence. It wasn’t. On average he made ten gambling visits every day. I decided it was now time to call him and ask for an interview.
I made the call and tentatively began my introduction only to have him come over the top of me with a brusque, ‘Okay, when?’ We agreed to meet the following morning at 9.30. My critics may scoff at this, but I was not looking forward to what was to follow. Employing the brute force of the media did not come naturally to me. By this time in my TV career I knew how devastating it could be.
When I arrived at the Office of the Director of Public Prosecutions Paul Rofe was standing smoking on the elevated apron which overlooked Pirie Street. He was wearing his customary dark suit and the official red, blue and yellow tie of his much-loved Adelaide Football Club, of which he was a board member. We spoke briefly about football while my TV crew set up for the interview. I had arranged for a two-camera shoot, one on him, one on me. This was a precaution, assuming I would not be in there long and would have no time to reset a camera for any of my questions, routinely something that is done at the conclusion of an interview. When things were ready we walked into what he described as the ‘war room’. On every wall there were shelves of lever-arched folders, hundreds of them. These were the prosecution files for the upcoming Snowtown murder trials. It was a complex and unspeakably gruesome case involving 12 terrible murders uncovered in 1999. Charged were four men accused of hacking up their victims and placing eight of them in large black plastic barrels of acid. It was part of a prosecutor’s job that no one would envy.
We both took seats facing each other across a carpeted floor laced with the spaghetti of power cords and camera and microphone cables. I began as I had indicated on the phone, by asking him about the role of a chief prosecutor. After some time spent on that subject I quizzed him about a number of contentious cases including the Keogh case. I’d hoped that following our coverage of the story he may have been more amenable to making good the promise to look at what I believed was the new evidence. He wasn’t hostile but was still of the view that there was nothing to convince him that there was anything wrong with the overall process. I told him the case would not go away but he just shrugged. It was time to move to more personal matters.
The best way to describe what happened next is simply to go to the transcript of the interview:
GA: Okay, what about the personal burden of the pressures of this job – what are they?
PR: They can be stressful.
GA: But your health has suffered at times. I know you are a heavy smoker, you like a drink – is that a product of the job?
PR: I think I was doing that before I started the job.
GA: What about the gambling?
PR: I don’t regard it as a problem.
GA: Because there are also rumours that you had lost large sums at the casino …
PR: Yes, I’ve heard those rumours.
GA: They’re not true?
PR: No.
GA: But you do like a flutter on the horses?
PR: I do.
GA: But then it’s actually a bit more than a flutter.
PR: I wouldn’t call it more than a flutter.
GA: We checked out the stories and one day recently you took 12 visits to the TAB in one day in a working day and five visits to the newsagency to buy scratchies. Seventeen gambling stops in one working day is rather a lot, isn’t it?
PR: I wouldn’t say so – no.
GA: You don’t think that that reflects a bit on the amount of time and thought you’re putting into the job?
PR: No, I don’t think so.
GA: I mean, on a weekly average you go about ten times a day, to either buy scratchies or go to the TAB.
PR: If you say so, I don’t know – I don’t keep count.15
Before the story went to air I received an avalanche of faxes from just about every criminal lawyer and barrister in town based on the promo. They all emphasised what a true professional Paul Rofe was, how much he was admired and that whatever we planned to put to air had better show the appropriate respect. The Law Society even issued a press release headed ‘Legal profession supports DPP’, saying:
Mr Rofe is regarded by those lawyers who practise in the criminal jurisdiction as being a Director of the highest integrity, sound judgement and of always acting in the interests of justice. He has fulfilled his role in an outstanding manner.16
He was of course the only director they had ever known. I was amazed at the solidarity of the profession when it came to one of their own. I’d expected some backlash, the odd call here and there, but nothing as widely felt as this.
The segment, which ran the night of 17 February 2003, raised questions about the health of the justice system generally. The fact the former magistrate Peter Liddy could abuse children in courthouses and suburban jails, that Dr Manock could continue for nearly 30 years without the appropriate qualifications and that the state’s prosecutors had continued to rely on him. Alarming, too, was that few in the law appeared to think the DPP, with his daily gambling, was doing anything particularly wrong. They all knew what had been going on, but there was no sign that anyone had objected. Collectively it seemed to me to point to a deep-seated problem within our justice system.
It was my reference to the Keogh case that really outraged the profession. Perhaps it was a way of diverting attention from Rofe and finding fault with the messenger. In retrospect I consider it was a mistake to have mixed the two together. I enabled those wanting to claim the stalking of Rofe was payback for him not conceding faults with the prosecution of Henry Keogh. That wasn’t the case, though I can see it was an easy conclusion to draw. I felt, after much agonising, that if I didn’t investigate the gambling rumours I wouldn’t be doing my job; simple as that.
The man put forward by the Law Society to cut me down to size was high-profile barrister Michael Abbott QC. Abbott had gained a public profile while representing Edward Splatt in the 1984 royal commission. The sensational result – Splatt being pardoned due to errors in the forensic science that led to his conviction, an almost unprecedented result – also cemented Abbott’s reputation as one of the state’s most skilled barristers, the counsel of choice for the big end of town. He demanded I apologise to Paul Rofe for linking his gambling to the handling of the Keogh conviction. I declined his invitation by pointing out the two were not connected.
It wasn’t just the lawyers who were incensed by the story. The good ol’ boys of the sporting world who’d fraternised with ‘Rofie’ over the years were also indignant. The Advertiser sports columnist Geoff Roach was outraged. His article carried the heading, ‘“Yellow press” taints keen legal mind’.17 Roach took up Michael Abbott’s theme, accusing the pro-Keogh activists of continuing ‘to pursue every avenue they can to overturn the considered verdicts of a jury and judges – it might well be thought that this was the crux of the set-up’.18
The fallout from the story was significant, but a secure lid was placed on any serious repercussions when the Attorney-General Michael Atkinson said it wasn’t a sacking offence. Once again Paul Rofe QC kept his job.
There were really three politicians who called the shots in the Rann Government. All three knew that the best way to keep the public onside was to repeatedly punch the buttons that stirred their emotions and which the opposition couldn’t oppose. The type of kneejerk jingoism in easy reach was always the ‘tough on crime’ mantra.
The first of the triumvirate was Mike Rann himself, who preferred to let others do the really dirty stuff, unless there was some kudos in it for him. Another was the ‘bovver boy’ of the Cabinet, Treasurer and Deputy Premier Kevin Foley. The third was Michael Atkinson.
Foley was playfully known as ‘Barney Rubble’ because of his stocky stature and flat head, but he was an effective Treasurer and a man who achieved a lot while in parliament. He was something of a brawler and liked to present a tough-guy image. His attitude towards those incarcerated in our prisons and the overcrowding that was occurring under Mike Rann’s regime was typically unsympathetic. ‘Rack ’em, pack ’em and stack ’em’ was his infamous solution to the problem.
But it was Atkinson, as Attorney-General, in whom the Cheney family was to find an ally.
Part of the law-and-order formula was to show no mercy to those already convicted of serious crimes. None in that contemptible community were more despised than the ‘lifers’, those whose dreadful crimes demanded the heaviest penalty. While ‘life’ means life behind bars, they were entitled to apply for parole after 25 years; some even had the opportunity to do so earlier with various dispensations. Rann decided that the Parole Board could not be trusted with the responsibility of releasing our worst offenders. The law was changed to shift the authority to the Executive Council of government. No one was getting out without Rann’s say-so.
While our justice system has its faults, it aims to be transparent and impartial. Not so politics. It is precisely what’s wrong with the petition-for-mercy process. The same arbitrary decision-making was to be imposed on lifers. No reasons for the rejection of parole would be required or provided. Without these reasons, for prisoners there was no hope, no compass point for redemption; life inside was made truly meaningless. With such political decisions could come inconsistency, favouritism and vindictiveness.
The unprovoked fatal attack on Lance Patrick in 1991 was unforgivable. He was a down-and-out drinking buddy of 28-year-old Michael Webb and 23-year-old Veronica Hay. After an extremely heavy session the two, for reasons that are unclear, set upon Patrick, bashing and kicking him and stamping on his throat. Webb and Hay were arrested when it was discovered their footwear matched the marks on their victim’s body. Both were sentenced to life in prison with the judge offering some final consolation: ‘The effect of what I have ordered is that with remissions for good conduct you will both be eligible for release … after about 13 and a half years.’19
However, being ‘lifers’ under the Rann regime, their fate was in the hands of politicians. Veronica Hay happened to have influential friends in the Indigenous community. With that came the support of the Minister for Aboriginal Affairs and member of the Executive Council, the late Terry Roberts. In 2004, having served 13 years, Hay was paroled on time. Webb, who was a model prisoner, had his parole applications rejected time after time. In an unusual move the sentencing judge wrote to the Correctional Services Minister in protest, ‘I respectfully suggest that the situation is not only unfair but it is also unjust.’20 Three years later Michael Webb’s name appeared in a media release from Atkinson in which he bragged about the murderers the government had kept behind bars. No reference was made to the release of Veronica Hay.
Henry Keogh, too, would one day be destined to crash into this inscrutable wall. The hostility directed towards his crime gave him no reason for optimism. He was to see firsthand what the erosion of hope does to men who have lost everything else. He wrote, after 14 years in prison:
I abhorred the idea of dying in goal. Now it would be a release. I now know three guys who were never going to get past Rann’s policy. The latest was as recent as Saturday morning up at Mobilong Prison. Roger was a sad, sad case for whom I genuinely believe it [his suicide] was a release.21
The suffering of victims of crime runs deep and rarely embraces forgiveness. I had hoped that if I could show the Cheney family that their child had not been betrayed by the man she had loved, it may bring them some relief. There have been no signs that they could see any comfort in that possibility. The Cheneys sought the support of Michael Atkinson to chastise and silence Today Tonight, after a broadcast on 17 March 2003. The story, which I produced, attempted to dispel a series of inaccuracies and popular myths about the Keogh case. Our audience was beginning to show more curiosity and appetite for detailed information. There was the usual outrage, with the Cheney family leading the charge. Even so, nearly 230,000 people sat and watched the entire segment.
The House of Assembly, the lower house in South Australian Parliament, sits in a lofty chamber with massive fluted pillars supporting a ceiling festooned with elaborate brass light fittings. A filtered light falls gently on the rich green leather benches. Up front is the intricately carved oak Speaker’s chair. On 1 April 2003 Michael Atkinson rose to make a special ministerial statement. His mission was to answer the allegations contained in my 17 March broadcast.
I was in my office around 5 pm that afternoon when the phone rang. This was the busy part of the day. Stories from interstate came in late and frequently required editing; to get the best of our local stories we always came down to the wire; there were legal issues to check and promos for the next day to write. The call was from an Advertiser journalist asking if I had any response to the attack on Today Tonight in parliament by the Attorney-General. I was informed Atkinson had savaged the program’s credibility over our coverage of the Keogh case. He’d accused us of heartless cruelty towards the victim’s family.
The journalist offered to fax me a copy of Atkinson’s speech. As all seven pages sputtered out, I grabbed each one and scanned it with growing dismay. This was a hatchet job, an ambush, and I was furious. But what could I say to balance the record? I rang the journalist back. She had little background on the case, aside from Atkinson’s diatribe in parliament. She was ticking the box marked ‘calling the other side’. Fair enough.
Michael Atkinson had started his speech with, ‘First, let me apologise to the Cheney family for the hurt that has been done to them.’22 He was scaling the emotional and moral high ground from which his arguments would become practically unassailable. He continued, ‘I met with Anna-Jane Cheney’s mother and brother the week before last. They have had to live with the campaign to release the murderer of Anna-Jane for nine years.’23 In fact, there had been no ‘campaign’ to ‘release’ anyone, and the disquiet over the evidence had only been raised, publicly at least, within the previous two years. ‘Mrs Cheney asked whether I could do anything to make sure the whole story was told, to make sure the distorted version of events did not go unchallenged. I gave Mrs Cheney my commitment that I would do so.’24 It was difficult for me to imagine that he could turn a dispassionate mind to the case, having made such a commitment.
The Attorney-General’s sources for his rebuttal were those whose reputations might suffer most if the case was found to have miscarried. Paul Rofe and Dr Ross James were consulted and expressed the view all had been done properly. Notably no reference was made to seeking advice from Dr Manock for Atkinson’s statement. The dissenters, Rofe and James assured the Attorney-General, were a small group of marginal malcontents given voice by the tabloid Today Tonight. The bulk of his monologue followed the same path as that of his predecessor Trevor Griffin. It was predictable enough given his sources were identical. After two trials and numerous appeals in which the emphasis on the pathology and the circumstantial evidence shifted back and forth depending on what best suited the moment, it is easy to select suitable quotes. This was an opportunity to grandstand on the platform of victims of crime and in doing so use the privilege of parliament to smear the dissidents.
Atkinson reiterated some audacious inaccuracies. ‘In 1994,’ he claimed, ‘it was the policy of the State Forensic Science Centre to take only black-and white-photographs’; to do so was a ‘good practice’.25 Then there was the quote from Dr James that ‘while the opposing [thumb] bruise will corroborate a grip mark the opposite is not true’.26 So, while the evidence that gave rise to the grip theory doesn’t exist, the theory should still stand. It all sailed through with minimal resistance.
What was to come can only be described as character assassination. It was the kind of conduct which has contributed to the parliament being known as ‘coward’s castle’. Professor Tony Thomas had stepped unwittingly into the mire when in 1999 he first agreed to review the histology in the case and found there was no thumb bruise to support the grip theory. This led him to a general assessment of the professional inadequacy of Manock’s autopsy. Suddenly, he went from being one of the state’s most respected and qualified pathologists to being labelled a heretic who must be silenced. The treatment he received is a scandal in itself and it was inflamed by Atkinson in his April 1st speech.
The Attorney-General began with, ‘Professor Thomas was not a forensic pathologist when he appeared on Four Corners and, I am told, had not carried out a post-mortem on a homicide case in South Australia.’27 The latter part simply wasn’t true but, regardless, the location of his work shouldn’t have mattered. Professor Thomas had conducted thousands of autopsies and was one of the consultants frequently brought in to check the work of other pathologists. This is precisely what he’d been asked to do in the baby death cases. His principal work was in histopathology, the skills he had used in re-examining Anna-Jane’s tissue slides.
The question of whether Thomas could be correctly described as a ‘forensic pathologist’ was really just semantics. ‘Forensic’ was merely a label for those whose work specifically led to appearances in the Coroner’s or criminal courts. Most of the cases that passed through the Coroner’s hands didn’t lead to criminal charges, but that was also the normal path for those that did. It was not Professor Thomas’s primary line of work, but he appeared in court when his specialisation was required. The Attorney-General, however, seemed determined to find some avenue of diminishing Thomas’s credibility. He was to use this somewhat arbitrary title to create the impression that Professor Thomas lacked the skills to act in a ‘forensic’ capacity.
Michael Atkinson went on to inform parliament of a case in 1998, in which Professor Thomas had given forensic evidence. He quoted part of Magistrate Baldino’s findings in which he’d said, ‘I formed the distinct impression that the Professor’s views, opinions and hypothesis were not entirely impartial and independent.’28 Atkinson extrapolated from that finding that Professor Thomas therefore had a ‘biased’ approach in the Keogh case. What Atkinson neglected to tell parliament was that Magistrate Baldino’s observations had been severely criticised by Supreme Court Judge Ted Mullighan during the appeal. Justice Mullighan’s view was, ‘The findings of the learned Magistrate reflect poorly upon him … His [Professor Thomas’s] observations and opinions appeared to have been recounted in an entirely appropriate manner.’29 Still, the magistrate’s version was all grist for Atkinson’s character-shredding mill. He completed his statement to the house with a crescendo of authority: ‘Justice was done to Henry Keogh, let it be done also to the deceased, Anna-Jane, and her family.’30
The Advertiser’s report in the paper the following morning was headlined ‘Atkinson attacks TV show’s ethics’31. The article was a fair reflection of what the Attorney-General had said:
To get their story to air it appears the producers of Today Tonight were prepared to show little respect for the rights of Anna-Jane’s family; instead they were prepared to pander to morbid curiosity. Contrary to their own ethics code those who put the story together chose to sensationalise a series of allegations that are neither startling nor new.32
I was given a couple of lines: ‘Mr Archer said, “We feel sorry for the Cheney family but there are genuine legal problems with the case that need to be addressed.”’33 The battle lines had been drawn.