At 3 am on 19 August 2001, Sunday morning, two young women called their friend Paul Habib Nemer to tell him they planned to walk home from town having spent the evening at a city nightclub. It was a fair hike, around five kilometres from Hindley Street in the city, but they’d run out of money and couldn’t afford a cab. Nemer, who was 19, tried to dissuade them from walking. Two young women on foot through Adelaide’s southern parklands, on the rim of the city, weren’t safe. Paul was at home with a few friends at his plush Springfield address, with his parents out of town. Nemer invited the girls to come over but they preferred to head home.
It was a chilly evening so they walked briskly but their high heels proved impossible; they removed their shoes and kept going. An hour later the phone rang again at the Nemer house and was answered by one of Paul’s friends. On the other end was a 90-year-old woman, a resident of Arthur Street, Unley, informing him she was sheltering two young women who claimed they were being stalked.
As they had left the CBD precinct the pair became increasingly concerned they were being followed by what appeared to be a bearded male with a beanie driving a white van. Eventually, in panic they knocked on the nearest door as the van passed slowly down the narrow street they had just entered. After the panic call to the Nemer household the elderly woman then rang triple zero. Having taken the distress message Nemer reached under his parents’ bed for the Browning 9 mm handgun and ammunition. It had belonged to his grandfather, who was once a competitive shooter; Paul says he discovered its existence by accident.
When he arrived in Arthur Street the girls pointed out the white van, which had done a circuit of the street. Oblivious to the drama around him, local newsagent Geoff Williams was going methodically about his rounds delivering the morning Sunday Mails by casting them into the front yards of those on his list. He was enclosed in the warm capsule of his cab on just another morning round, as he’d done for years. The quiet hum of his engine was shattered by a loud crack; shattering glass hit him and he was stunned by a dull thump in the head. Geoff slumped to one side, bleeding profusely from the left eye. Outside Paul Nemer, who ran towards Williams’ van, had come to an abrupt halt and was standing just metres away holding a smoking gun.
A few days after the shooting Nemer, who’d quickly fled the scene, surrendered himself and was charged with attempted murder. It would later emerge that before the pistol was handed to police someone had changed the barrel and firing mechanism so neither matched the bullet. His family hired the best legal defence the state had to offer. One of those was David Edwardson, and the other was Lindy Powell QC, a tough defence counsel and a long-time drinking pal of Paul Rofe. Following a committal in April 2002 it was ruled that Paul Nemer should stand trial for attempted murder, wounding with intent to do grievous bodily harm and endangering life. The case was listed before the Supreme Court.
In a move to circumvent the trial, however, Edwardson and Powell began negotiations with the DPP for a plea bargain on behalf of their client. When the court finally sat, in July 2003, it wasn’t to proceed with the trial, but to announce a deal had been struck with Paul Rofe which the appointed judge, Justice John Sulan, had accepted, following Nemer’s willingness to plead guilty to the lesser charge of endangering life. Justice Sulan released Paul Nemer from the Adelaide Remand Centre and announced he would go free with a three-year $100 good behaviour bond.
The shock the Williams family felt was echoed around the courtroom and out into the street. Paul Rofe defended his position to assembled reporters on the steps of the court by posing the question, ‘Is it better to have kids with no previous convictions, even if their offences are serious, in jail? Or is it better to have them becoming proper members of the community?’64 It was an interesting point but the media was having none of it, and reflected the public outrage. The Advertiser’s page-one headline read, ‘An eye for $100 – justice on the cheap’.65 It was clear this was not going to end quietly. Premier Mike Rann would see to that.
Mike Rann was still in a precarious political position nearly a year and a half after the election and he knew how scathing the public were about courts, lawyers and soft sentencing. Geoff Williams was the perfect victim: clearly blameless, of humble origins and bearing the uncovered badge of his suffering, an opaque and sightless eye, ruined by Nemer’s bullet. Here was Rann’s chance to pull from his holster his ‘law and order’ peace-maker special, point it squarely at the justice system and let everyone know he meant business. He demanded an inquiry into the plea bargain process; the factual basis upon which Justice Sulan accepted the deal and arrived at his sentence; and whether the DPP was comfortable with those facts. Rann also wanted to know if the DPP planned to appeal the sentence. The answer to that came relatively promptly. After three days of deliberation, Rofe declined.
The Office of the Director of Public Prosecutions was established in 1991 following the lead of other states and replacing the old Crown Prosecutor’s Department, which could easily be mistaken for an arm of government. The Act establishing the Office of the DPP enshrined its independence from government, ensuring cases were assessed by the rule of law and not according to the whims and aspirations of politicians. The immediate reaction from the legal establishment to Rann’s intervention was outrage: the view was that politicians should keep their noses out of the workings of the courts.
In any deal struck by a public authority there needs to be a level of scrutiny to ensure that the accused is acting in good faith. That is primarily the responsibility of the DPP but can be tested by the judge. It’s true that the criminal justice system would collapse under the weight of the volume of cases if every one went to trial. The plea bargain system has been around for a very long time as a safety valve, trading reduced sentences for guilty pleas. No doubt it serves a valuable purpose not only in saving resources but in encouraging remorse. However, the factual inconsistencies in the Nemer case were not unique.
Mike Rann was onto a winner with the Nemer case. In August 2003, he committed to having the case reviewed by the Solicitor-General and for good measure threw in two others. Neither of those cases had the political appeal of Nemer. In a press conference he threw down the gauntlet:
If the people don’t like what we have done they can throw me out at the next election – that’s ultimately what the test is … I’m accountable and what I am trying to do is to make the law fraternity accountable.66
The Solicitor-General – who would be reviewing these cases – was another one of the men of good standing who rose to prominence during this period, Chris Kourakis QC. Chris was born on a pig farm near Port Lincoln as one of ten children, his mother referring to him as ‘the first of the second litter’.67 He was schooled in Port Lincoln and studied law at Adelaide University. He was involved in radical politics of the far left while a student, a set of beliefs he inherited from his mother. When he graduated he was articled with Johnston Withers McCusker and, like Kevin Borick, worked under Elliott Johnston, known for his communist activism. He became the President of the Law Society in 2001.
In January 2003 Michael Atkinson had appointed Kourakis to the role of Solicitor-General, his most senior legal adviser. A month later parliament was informed by the opposition that Kourakis had done pro bono work for the Attorney-General in Atkinson’s defamation spat with former deputy ALP leader Ralph Clarke over comments he made on a late-night talkback radio show. While eyebrows were raised to the possible conflict of interest, the appointment was made. Later, in August 2008, Kourakis was appointed to the Supreme Court bench as Justice Kourakis and was elevated to the role of Chief Justice in June 2012 aged 54.
Chris Kourakis, it has been said, has been harshly treated by the media. In my case I believed it cut both ways. In July 2002, as President of the Law Society, he wrote an article in the Saturday edition of the Advertiser entitled, ‘Prime example of bad news driving off good judgement’.68 It was an attack on Today Tonight for the allegations we’d raised over the whereabouts of the treasure trove of assets belonging to former Magistrate Peter Liddy following his conviction for child abuse. His victims had launched a civil suit seeking the liquidation of his assets as a source of compensation. The District Court had ordered an injunction prohibiting the sale or movement of all his assets until a comprehensive inventory and valuation was completed. Under the nose of the court many of the choice items disappeared.
In summary, Kourakis lambasted us for not being able to accurately present the complex legal matters involved. He maintained there was no evidence to suggest that Eric Van Kruyssen, the valuer appointed to the task, who was also a lawyer, had done anything but his ‘honest best’.69 But I had uncovered evidence of Van Kruyssen attempting to sell off three of Liddy’s antique Kentucky rifles overseas. These firearms were among numerous other items that, on close inspection, were not included in his valuation. Three years later we discovered almost two dozen antique Colt .45s Liddy had hidden and documents which showed the lawyers in charge of securing his assets helped him relocate his most prized possessions. In 2006 Van Kruyssen was charged with the theft of a member of antique rifles belonging to Liddy. The police later dropped the charge.
Chris Kourakis advised us, in his article, that if we’d contacted the Law Society we would have been set straight on the facts. Ironically, he didn’t take his own advice and call me to ensure his story was balanced and accurate. What irked me was that Kourakis had once acted for Liddy, a fact he didn’t disclose. But the real rub was that, at the time of writing, he was acting for Channel Seven as senior counsel in a defamation case arising from a story Today Tonight had done about the efficacy of engine coolants. The barrister paid by Seven to defend our broadcast, attacking us in the most read edition of the local paper, while wearing his Law Society President’s crown.
When I called the Advertiser to demand a rebuttal of equal length and prominence my request was refused. The best they could do was to offer me the right to have a ‘Letter to the Editor’ published in the following Saturday’s paper, on the condition it was checked by their lawyers and shown to Mr Kourakis. He later revealed:
I was given the opportunity to effectively veto publication of the letter by the Advertiser but told them I would not sue the Advertiser for publication of the letter. It was my view I had engaged in public debate about a matter of public interest.70
My letter was published, and in it I wrote, ‘the President has expressed publicly his clear preference for his fellow lawyers and his client [Liddy] who was a member of his Law Society, albeit a paedophile. Well Chris, consider yourself sacked.’71
Sometime later I put a complaint to the Legal Practitioners Conduct Board arguing that he had not acted in the best interests of his client, Channel Seven, and this may have been a breach of the Legal Practitioners Act 1981. The Conduct Board finally concluded that the Society President, in writing the article, was not acting as a legal practitioner but as a commentator. Hence he escaped the obligations of the Act. Kourakis and I were to come up against each other again but this time he in the role as prosecutor and me as the defendant.
It wasn’t long after this episode that the DPP Paul Rofe was also to face some searching criticisms from Chris Kourakis, who had by then been elevated to the position of Solicitor-General.
In the midst of the Nemer controversy, Michael Atkinson was obliged to step down as Attorney-General. He was facing allegations that the settlement of his defamation case with former party deputy Ralph Clarke had been brokered with the offer of government board positions. It was an accusation all parties denied, but the police Anti-Corruption Branch were sent in to investigate. The Premier’s chief adviser, Randall Ashbourne, was later charged with abuse of public office, but was eventually acquitted. In July 2003, while all of this was unfolding, Mike Rann jetted into Adelaide after an overseas trip.
I rang the Premier’s media adviser to say I would like to attend the press conference on his return and was told it would be at the State Administration Centre on the following Sunday morning. As I approached the building I noticed other members of the media trickling in. At the door a security guard informed me my name was not on the list, a list I hadn’t been told about. I remained on the pavement, a persona non grata. It was a tactic straight out of the playbook of Don Dunstan, who made a practice of snubbing recalcitrant reporters.
Two days later, on 8 July 2003, Mike Rann wrote to my boss in Sydney, Peter Meakin, complaining that I had been ‘acting with malice’ towards him.72 No doubt there had been a number of other stories I’d done on child abuse and justice issues in which I’d pointed out the government’s various shortcomings. The usual response I’d received was to attack the messenger and ignore or ridicule the message. In a recent segment I had fired one back, saying, ‘so for Media Mike … it’s another case of smothering a problem with speeches … putting politics before people … careers before conscience.’73 It appeared to touch a nerve as my impertinent comment was referred to in the Premier’s letter. What was most instructive in his complaint to Meakin was this:
Today Tonight Adelaide has a clear belief that the justice system in South Australia is somehow fatally flawed and it has set about building a case to vindicate its theory, which appears to be a personal crusade of the program’s Graham Archer. The program has failed to inspire any other media in South Australia to follow their cause.74
If the Premier was prone to embarrassment these words very soon after ought to have been ringing in his ears.
In mid-August 2003 Chris Kourakis came back with his finding that there were grounds to appeal Justice Sulan’s sentencing of Nemer. Paul Rofe, who’d already taken the position that he wasn’t going to appeal, effectively against himself, refused to act. The task then fell to the government’s own legal gunslinger, Kourakis.
The South Australian Bar Association reacted by invoking the quaint notion of amicus curiae, meaning ‘friend of the court’, demanding they should be a party to the leave-to-appeal hearing. They intended to argue the government was acting illegally by interfering with the independence of the DPP. Rann responded with a blistering message:
To me, amicus curiae means enemies of the victims, enemies of the public. My message to the lawyers is this: I have accused you of being a club and I have been criticised for that. If ever there was an example of a club in action trying to defend its own business then here we have this proposal to actually step into the Supreme Court to try to stop the Nemer appeal against the sentence. The question I would ask of the legal fraternity is this: when are you going to stand up for the victims of crime?75
I followed this with intense interest but a fair degree of cynicism. Such passion, such indignation! The very month after Mike Rann had criticised me and Today Tonight for our belief that the justice system was ‘fatally flawed’ he called the state’s ‘club’ of lawyers ‘enemies of the public’ and instructed Chris Kourakis to supplant the DPP in challenging Justice John Sulan’s lenient sentencing of Paul Nemer. Such is the ebb and flow of political pragmatism when it comes to ‘justice’.
While the warring sides battled over the system’s integrity they ignored its deeper failings. When the hostilities ceased the plea bargain process was tinkered with to include consultation with police and victims. The show was largely over. While it helped assuage the public, the media and the victims lobby, there was no interest or appetite for cases that fundamentally challenged the performance of the justice system.
A year later, in a conversation with journalist Jennifer Byrne for The Bulletin magazine, Rann expanded on his disdain for lawyers in general:
The legal fraternity is very much a club, a closed-shop club, incredibly snobbish about itself. And I think the smaller the place, the worse that is. The Law Society decided to wage public guerrilla warfare … I walked into a café just round here the other day, between the Hilton and the market, all the barristers were there, you could see them with their bibs and wigs on and I felt like dandruff. Dandruff’s back in town, you know … I don’t mind that because I’m quite happy to take them on. And electorally, it’s good to take them on, isn’t it? Who loves lawyers? They clearly do.76
It would be fair to say Rann and I shared some of the same beliefs about the sense of entitlement that appeared to pervade legal circles in South Australia.
The way the Supreme Court dealt with the Nemer appeal is a study in the way our judiciary balances public and political pressures while attempting to maintain a position of neutrality. This government, with its tabloid-tuned Premier and his like-minded Attorney-General, meant trouble for the legal oligarchy, which was run jointly by the judiciary, the Law Society of South Australia and the Adelaide Law School. It’s not that Rann et al. had any grand plan for the way the legal system should operate, but they did see it as a powerful political tool.
The Chief Justice, John Doyle, faced a balancing act as the government clearly had public sentiment on their side and it would be a reckless Chief Justice who would put the system on a collision course with public confidence. Doyle needed to find a way to position the court system in this oncoming blizzard.
Chief Justice Doyle sat on the bench to hear the application for judicial intervention lodged by Nemer’s defence counsel Lindy Powell, which challenged the Attorney-General’s right to give directions to the DPP and the application for leave to appeal the sentence. Doyle was joined on the bench by Justices Prior and Vanstone. Rann’s man, Chris Kourakis, swept into court taking the place of the deposed Paul Rofe, who had on principle refused to take directions from the politicians. The Chief Justice’s finding was consistent with that expressed by the legal fraternity. He rejected the direction from the Attorney-General to appeal, which had the effect of keeping faith with the profession. The majority opinion of the court, however, favoured the government’s position. A fortnight later the Court of Criminal Appeal heard the argument over the disputed facts which had so outraged the public. Nemer’s sentence was amended from a good-behaviour bond to a jail term of four years and nine months with a non-parole period of one year and nine months, not suspended. Paul Nemer was off to jail and Mike Rann was off to check the opinion polls.
All of this might seem a long way away from the case of Henry Keogh but it paints a bleak portrait of the hostile environment in which those concerned with wrongful convictions had been trying to chart a compassionate course. Lawyers and criminals sat in roughly the same leaky boat. Politically, the idea of giving convicted murderers a second chance was unpalatable. It was within this context that Henry Keogh’s third petition for mercy was being assessed.
There were only two options available to me as a journalist and neither of them promised any hope. The first was to attempt to embarrass the government and raise public awareness for the need of a fairer system to examine these cases in much the same way Stewart Cockburn of the Advertiser had done when he had campaigned against the conviction of Edward Splatt, which had led to a royal commission 20 years earlier. The second option was to play the supplicant and attempt to ingratiate goodwill and favours, which had no appeal because of the absence of good faith among the palace plotters. Even the bulk of the opposition members were hostile. The former option would almost certainly further entrench the antagonism of Rann and Atkinson. Neither approach was likely to help Henry Keogh. While pressing forward with the fraught petition process I decided that fresh and reputable voices from outside South Australia might help modify the debate.
In March 2004 I produced a story which included a cast of interstate pathologists, lawyers, a former Supreme Court judge and an ex-Scotland Yard criminal investigator. All agreed that there was now sufficient uncertainty in the safety of Keogh’s conviction for it be an appropriate candidate for judicial review. Queensland civil rights advocate, lawyer Terry O’Gorman, summed up the dilemma facing those concerned for the fate of Henry Keogh: ‘in this country you can get law and order, increased police powers, increased powers for prosecution at the drop of a hat … try to do something about miscarriages of justice, you might as well go and sing in the wind.’77
Retired Northern Territory Supreme Court Judge John Nader QC voiced his concerns:
I have been shown a number of affidavits from very eminent forensic pathologists who question the conclusions reached by Dr Manock … they are so eminent and so numerous that it is hard to understand, unless there is other evidence that I don’t know about that would have a countervailing effect … it is hard to understand why an Attorney-General would not without hesitation direct an appropriate enquiry into the matter.78
Thankfully, public curiosity about the case was steadily on the rise. Our audience ratings for these stories were some of our strongest and the calls we received began to change in their tone and nature. It was encouraging to know that ordinary people who had otherwise been convinced that Keogh was a murderous schemer were now prepared to at least question if there were some things they hadn’t been told. Most of my colleagues still thought I was mad. Unfortunately, the promotion of that story, which ran as the last item on the Friday night prior to the Monday broadcast, was to mean years in court and cost the Seven Network a fortune.
Longstanding program host Leigh McClusky read the words, ‘Coming up on Monday night, the new Keogh facts. The evidence they withheld. The evidence changed from one court to the next. The data, dates and documents that don’t add up. A special Today Tonight investigation.’79 An image of Dr Manock appeared in the studio TV screen over her shoulder. It was enough to have Dr Manock’s lawyers launch a defamation suit. They weren’t interested in attacking the 20-minute story which the promotion had anticipated, only the 20-second promo.
By April 2004 Chris Kourakis QC completed the report he’d been directed to undertake on the plea-bargaining deals involving the Nemer matter and two murder prosecutions. ‘Inept’ was the damning description Kourakis used for Rofe’s handling of the Nemer case. The second was that of Darren Schmidt, in which, ‘The agreed facts were inconsistent with the evidence’,80 meaning the plea bargain required ‘more careful consideration’.81 In both instances there was a failure to properly consult with the police, the victims, the family members and the facts. Kourakis found it hard to see how the public interest had been served by supporting the manifestly inadequate penalties that were agreed to in each case. The third was potentially the most damaging to the reputation of the Office of the DPP. Because it was smothered in suppression orders, it remained more or less a secret and almost impossible to report on.
The murder under investigation was of a young man by a police informant in a drug-fuelled rage. The culprit, with the aid of an accomplice, also a police informant, set up an innocent man to take the blame for the killing. The fall guy was a simple alcoholic who was convinced by the other two villains that in a drunken stupor he’d committed the terrible deed. Confused and with no defence he offered to plead guilty to manslaughter but the DPP, in this instance, rejected the plea and decided to press on with the murder charge. Prior to the trial the real murderer confessed to police, who then passed details of the incriminating conversation to a prosecutor in the DPP’s office. Somehow that memo was lost or overlooked and they proceeded with the trial of an innocent man. Something clearly had gone horribly wrong or someone was lying. What’s more, the star witness for the prosecution was the one who should have been in the dock.
Many of the other witnesses would not give evidence unless their identities were suppressed because both police informants had threatened them with violence. These men were afforded the same protection as those they had threatened because they were registered with the police. When the defence counsel, Marie Shaw QC, finally discovered through cross-examination of a police officer that the prosecution had known about the murder confession all along, their case fell apart. This information had not been disclosed to the courtroom prosecutor, who did not oppose the charges being dropped. The accused was released, but the suppressions remained in place to protect the two men complicit in murder. Both walked free, ensuring there would be little or no scrutiny of the police or the prosecution’s conduct. The parents of the deceased were gagged from speaking publicly. The crime went unpunished.
Chris Kourakis’s assessment of this matter in his report was simply, ‘As important as this case is it does not fall within the ambit of this enquiry.’82 The Attorney-General’s media release mentioned only that the case didn’t fit the brief. Kourakis’s account of the handling of the Nemer case contained a candid insight into what can only be described as nod-and-a-wink arrangements being struck between opposing lawyers. In the original sentencing submissions there was a clear disparity between Geoff Williams’ sworn statement of what had occurred and the unsworn version the defence planned to submit on behalf of Paul Nemer. The way to settle this ought to have been for Rofe to require Nemer to enter the witness box and face cross-examination. No such demand was made. During his investigations the Solictor-General asked Rofe to explain his reasoning:
PR: Well, maybe I thought that would have been contrary to what had been agreed but I mean you are very consciously seen as … trust and … between prosecution and defence, you’re not seen to go back on your word …
CK: Well, I didn’t understand whether there’d been agreement about this – about the facts?
PR: There wasn’t, but –
CK: So what part of the agreement might that [calling Nemer as a witness] have been contrary to?
PR: I think it might have been the understanding of the agreement more than the agreement itself.
CK: Right, well this is a concern they were expressing, so what is it that you thought their understanding of the agreement might have been that requiring Nemer to be called would contravene?
PK: Just the general underlying agreement that we wouldn’t go to evidence in the case.
CK: Well, when was that made?
PR: Oh, it wasn’t. I mean, I said it was underlying. I think this will require appreciation, if you like, of their appreciation of the situation. There was certainly no specific agreement … it was mostly implicit.83
There appears to have been nothing to safeguard the facts playing a part in the sentencing process. The Solicitor-General’s summation of the DPP’s performance as ‘inept’ had delivered Atkinson justification for the government’s action in the Nemer case. The other matters remained untouched.
The Kourakis report spelt the end for Paul Rofe. In the wake of such criticism the man who had been the DPP for 12 years handed in his resignation on 3 May 2004. Not long before Rofe’s resignation, Atkinson had told parliament,
In previous controversies about Mr Rofe’s tenure of the job of the DPP, when even members of the opposition were howling at him, I had maintained confidence in him at that time, when the opposition was working closely with Graham Archer of the Today Tonight program to try to discredit Mr Rofe.84
The morning after his resignation Michael Atkinson was on the front page of the Advertiser with his bicycle and helmet outside the DPP’s office appearing to wish Rofe farewell. The headline above shouted, ‘Get on your bike, Mr DPP’.85 The hunt began for a replacement.
Much lobbying went on to install Rofe’s deputy – Wendy Abraham QC, a known quantity to the local legal profession – in the position. Mike Rann had other plans. He used the search for a new director to maximum effect, saying he was looking for Eliot Ness. It was a problematic analogy because the Director of Public Prosecutions’ role is very different from that of a crime-busting cop. But it all sounded great coming from a Premier committed to the tough-on-crime mantra. Oddly enough, the man they chose had little in common with the swashbuckling, Tommy-gun-toting ‘Untouchable’.
Stephen Pallaras QC had specialised in criminal law and began practising in Victoria in 1975. He spent time as a Crown Prosecutor in Western Australia and a number of years in Hong Kong as Head of the Extraditions Unit in the Chambers of the Secretary for Justice. Pallaras’s real introduction to the South Australian media as the new DPP was in May 2005 when he spoke at a Press Club lunch after two weeks in the job.
It appeared that, rather than the crime-fighting buccaneer Mike Rann was promoting, Pallaras saw himself as the firm hand destined to save the state and his new office from a legal apocalypse. He admonished those who had been critical of the office and his predecessor. Pallaras particularly wagged his fingers at the media, sternly warning, ‘I am deeply concerned at the impact this will have on our people and our Office if this continues. But it can’t continue. It has to stop. Hear me well, it will cause irreparable damage.’86 Regardless of Rann and Atkinson’s penchant to beat their chests, the recent series of cases had been an affront to the public’s sense of justice. The media and the public were right to feel uncomfortable with the quality of work emanating from the DPP’s office.
Two months later, Pallaras was lamenting to the Australian newspaper that:
I’ve been ignored when I write to the Government. I’ve been abused over the phone by the Deputy Premier. I’ve been sledged by the Attorney-General’s cheap shots in Parliament. The Premier has effectively called me a liar. What’s next? Are they going to send the boys around to break my legs? Are they going to make me an offer I can’t refuse?87
I felt some sympathy for Pallaras because he was dealing with a pack of political bullies. But he did get some improved resources. The government couldn’t play the ‘law and order’ card without throwing a bit of cash his way.
Keogh’s petition for mercy sat in the in-tray of the Solicitor-General for close to three years. The Attorney-General referred to the length of the deliberation process as proof of the thoroughness with which he was preparing his advice. In early 2006 I flew to Perth to interview two respected QCs who had been involved with a number of celebrated miscarriage-of-justice cases. My hope was their voices might add some pressure to what seemed an intolerably slow process. Both Tom Percy and Malcolm McCusker, who later became the Governor of Western Australia, were horrified by what had occurred. Percy’s view was unequivocal: ‘I would think Keogh is not even a marginal case, it’s a case that begs to go back to the court and it begs to go back quickly.’88 When I asked McCusker about the length of time the petition process had so far taken, he shook his head and said:
Given the evidence of the lack of proper credentials of the pathologist and the uncertainty of the scientific approach I would have thought that could have been dealt with in a matter of three months. There is nothing very complex about the situation.89
Again, after this was put to air, there was silence from the Attorney-General.