Meanwhile, a more indirect strategy was slowly working its way forward. Being a registered medical practitioner meant Dr Manock came under the jurisdiction of the Medical Board of South Australia, which monitored the profession’s standards. As such, any concerns about the quality of the Cheney autopsy could form the basis of a complaint to the board. Sadly, like the Legal Practitioners Conduct Board, to whom I had complained about Kourakis’s article about Today Tonight in the Advertiser, and the various other so-called official watchdogs, the Medical Board was captive to sections of the profession it was empowered to oversee. It was yet another artefact of the ‘old boys’ network’ which decreed who was ‘in’ and who was ‘out’.
In many ways the Medical Board acted more like the Australian Medical Association than a body set up to maintain professional standards and protect patient interests. Numerous complainants would attest to endless delays only to be fobbed off on some obscure point of order. The frustration was exacerbated because in most instances the complainants were either sick or they were in grief from having lost a loved one through what they considered medical negligence. These vulnerable people were regularly being asked to prosecute their own complaints, where that was the duty of the Registrar. To add to the difficulty, most of this process was conducted under a cloud of secrecy, with the complainants blocked from accessing information, including their own medical files. It was not easy to get people to talk publicly about these very personal experiences, as they are often suffering loss or illness and may be threatened with penalties for breaches of confidentiality and even legal action.
In 2003 I came across a case which to me epitomised the failure of the Medical Board to perform its public duty. It was a classic case of choosing the interests of the profession, and ultimately itself, over those of patients seriously damaged by a medical practitioner. I spotted a newspaper report of a court case in which the Medical Board had appealed to the Full Bench of the Supreme Court to block a number of complainants accessing records essential to their case. No names were included. After many inquiries and dead ends I managed to make contact with a couple of the victims.
The original complaints were into the conduct of former Sydney doctor Stephen Rabone: a drug addict who, time and again, was allowed to return to practising and, time and again, would reoffend. His final placement in South Australia was in the Riverland town of Barmera, where under supervision he was permitted to work at the district hospital. Even when he was supposed to be closely monitored he continued to feed his habit by injecting himself with his patients’ prescribed painkillers, fentanyl and pethidine. At times he administered the narcotic to himself and then used the same needle and syringe to inject the remainder into his patients, or he would substitute a saline solution for them so he could record they had been medicated. By this time he had contracted hepatitis C, which he passed on to about a dozen patients.
Within a year people with none of the risk-related behaviours were being diagnosed with the potentially fatal disease. The only thing they all had in common was that they’d been in the local hospital and attended by Dr Rabone. It was the tip of a scandalous iceberg, in which the victims, one of whom was a 14-year-old boy, suffered an incurable and life-threatening disease. Eventually, after combining forces, they launched a class action against the Health Department and the hospital. In their attempt to mount a claim for compensation they needed to access the Medical Board’s file on Dr Rabone. They found themselves in a fight against one of the most privileged and impenetrable cartels in the state.
I met with two of these people: Val Elliot, a grandmother in her sixties, and Tony Fisher, a father in his forties. Both had endured debilitating symptoms after having to answer humiliating questions about how they contracted the disease, the most common risk factors being intravenous drug use and unprotected anal sex. In 1999 Fisher’s lawyers had sought discovery of the file through the Magistrate’s Court. The application succeeded but the board appealed. The matter went before the Full Court, who sent it back to the Magistrate’s Court. The board’s argument in withholding most of the file was ‘public interest immunity’: releasing it, they claimed, was not in the public interest.
Rabone’s counsellor and supervisor over a number of years was psychiatrist Professor Ross Kalucy, who had also been the President of the Medical Board for over a decade at the time the case was being reviewed. I called Kalucy and requested an interview on the subject of treating drug-affected doctors, to which he agreed.
Like the Rofe interview over his gambling habits, I guessed this was not going to end well when I got around to Professor Kalucy’s oversight of Dr Rabone. Along the way he had expressed confidence that the current procedures not only worked effectively but avoided throwing highly valued professionals onto the scrap heap:
In the old days, if someone came to us with a drug problem they were off the register, but people like myself didn’t think that was reasonable, so we started a new program which offers a doctor the chance to get well, be rehabilitated and be productive.90
It sounded commendable in principle, and it gave me the opportunity to narrow down the subject matter. I had in my hand numerous letters written by Professor Kalucy to Dr Rabone in his role as his board-appointed counsellor; when I produced the letters Kalucy froze.
At Kalucy’s urging, I asked the cameraman to switch the camera off. Professor Kalucy complained that I had said the interview was to be about methods of dealing with doctors who self-medicated. My response, before the crew and I were ushered off the premises, was that I had covered the subject but it was all hypothetical unless we examined specific outcomes. Having witnessed Kalucy’s denials, in my view the board’s claim to ‘public interest immunity’ was not about the interests of the public, or really even those of Dr Rabone. It was about the interests of the board and protecting it from the devastation to which it had contributed.
The first Keogh complaint to the board was lodged in September 2002. The matter was anything but straightforward. Asking them to intervene in such a politically sensitive case involving the daughter of a fellow medico was always going to be a stretch. The Registrar would not accept the complaint because of the time that had elapsed since the autopsy had been conducted. Dr Manock immediately engaged lawyers, who argued the complaint was frivolous and vexatious and that it was contrived to achieve a collateral purpose.
Kevin Borick was able to argue that one of the Registrar’s duties was to lodge complaints on behalf of the public and that therefore the delay was partly his responsibility. Borick maintained the complaint was as legitimate as any other about the conduct of a medical practitioner. It took over two years to finally get the matter before a panel of experts representing the board.
The hearing was set down for the first week in November 2004, and it took three days. The members taking part were almost all respected Adelaide specialists whose reputations gave me hope the matter would be treated seriously. That said, they were adamant that no evidence from any other of Dr Manock’s work, except for the Cheney autopsy, was to be introduced. That order meant no reference could be made to the baby death cases on the basis of relevance. Again the findings of the Coroner were deemed a no-go zone. Both Dr Manock and Dr Ross James were called to give evidence. Both dropped bombshells.
Those who had been passionately advocating for Keogh eagerly anticipated the upcoming hearing. It was the first official hearing into any aspect of the case since the unsuccessful leave-to-appeal hearing before the High Court in October 1997. When it came to the day the Medical Board had some other protocols they insisted be followed to guard against ‘media leaks’. The medical records of Anna-Jane were provided to Professor Tony Thomas, who was acting as an expert witness for Keogh’s team, in a private room at the Medical Board’s headquarters but he was not permitted to take notes. The photographs taken of the autopsy were made confidentially available to Keogh’s lawyers, but no copies were permitted. These measures meant the Keogh side had little opportunity to assess what they were being shown.
Outside the Victorian villa that had been converted into the genteel offices of the Medical Board gathered Bob Moles, Robert Sheehan, Dr Harry Harding and John Lewis. I was the only TV journalist present and as we were ushered in through the front door I overheard an Advertiser reporter confess to his Australian newspaper colleague that he was only there because he thought someone from the Oz might turn up.
A series of affidavits and answering affidavits were lodged before the hearing got underway in a cramped chamber unaccustomed to hosting a gallery of spectators. A panel of five men sat at the far end of the room at a long table. In the centre was Sydney lawyer Richard Evans, the Presiding Officer of the group, there to see that the appropriate legal protocols were observed. The rest were members or nominees of the Medical Board. To Evans’s left were Dr Mark Coleman and Professor Peter McDonald. On the right were Professor Ian Maddocks AM and psychiatrist Professor Ross Kalucy. It was an august group.
Kevin Borick was there to represent Henry Keogh, and Dr Manock had his own legal team, paid for by the government, ready to defend his reputation. First called to give evidence was forensic photographic expert Professor Gale Spring, who had also appeared in the Four Corners program. He was one of the few permitted to view the photographic records, supplied in small ‘proof sheets’, or thumbnails of each photo, the same size as the 35 mm negative they were scanned from. Not ideal. When it came to the scant number of black-and-white autopsy photographs Spring was more colourful than his subject matter:
In the procedure of photographically documenting an autopsy, you definitely start when the body walks in the door – or doesn’t walk in the door – and finish up with the final result along with other things that you might discover on the body. That’s not evident at all.91
When Dr James’s turn came, Kevin Borick didn’t endear himself to a panel that from the outset looked like they would have preferred to be somewhere else. Borick directed Dr James to his correspondence with Paul Rofe back in 2001 about the ‘thumb bruise’ on Anna-Jane’s inner left leg. It seemed James had chosen, in the course of the two trials, not to share his actual opinion that the tissue taken from that part of her body contained no sign of a bruise. Before the Medical Board, he confirmed those observations: ‘I wouldn’t call that one a bruise, but the others are bruises.’92
KB: Why didn’t you explain that to the jury?
RJ: I didn’t think it was particularly relevant.93
If, listening to this, squeezed into the back of the room, I thought that admission was extraordinary, what came next struck me as almost unbelievable.
KB: If you’d got into the witness box and said to the jury, ‘Look, there is no proof of a bruise on the inside of the leg and therefore there is no proof of a grip.’ The jury would have to say there is no proof of a grip, wouldn’t they?
RJ: No. Indeed, I think these are grip marks, with or without the mark on the inside of the leg.94
Dr James continued, ‘You haven’t corroborated the thumb mark. It doesn’t mean the other marks are not from fingers.’95 He further asserted, ‘In this case, my view is that the marks on the legs should be regarded as grip marks until shown to be otherwise.’96 Whatever caused Dr James to join in on Dr Manock’s highly strained forensic conclusions, it was now apparent he was determined to defend them. The feeling among the Keogh camp was that now they were getting to the crux of the case.
Dr Manock was next in the witness box. There was considerable excitement about his first appearance since Keogh’s second trial in August 1995, over nine years earlier. He lived up to expectations. His performance was at times bizarre. At one stage of his cross-examination Kevin Borick quizzed him about the misgivings his employers had expressed during the Industrial Court hearing in the late 1970s over his lack of specialist qualifications. In those proceedings it was shown that Dr Manock had confided to his immediate boss, Dr Barrie Vernon-Roberts, that he regretted not having undertaken the required study. In answering Kevin Borick, Manock admitted this was true, but blamed others for his predicament:
The regret was that, in the circumstances, I was working with a hostile senior laboratory manager, and if I was qualified in surgical histopathology, I would have told him to get lost, and I would have left, and I would have made four times as much money in private practice. It would also send me mad looking down a microscope all that time.97
All Borick could manage in response was a perplexed ‘I’m sorry?’98 It was probably a mistake not to pursue this further, but the real show stopper came with what Dr Manock disclosed about his microscopic observations of the ‘thumb bruise’ on Anna-Jane, which he said he could see on the inner left leg with his naked eye:
KB: If the mark you saw was a bruise, then histopathology should support it because you saw it from the very mark?
CM: That’s right.
KB: And the histology doesn’t support it?
CM: No it doesn’t.
KB: Well then how can you …?
CM: It doesn’t exclude it, it just means that it hasn’t proved that it is.99
Kevin Borick’s questions ranged over other aspects of the autopsy process, including the inadequate number of tissue samples taken from various organs and the failure to record the weight of the lungs in the autopsy document. Dr Manock explained that regrettably the figures were accidentally wiped off the whiteboard before they had been recorded. He was also asked about his claim during the second trial that differential staining of the aorta was a ‘classical sign of freshwater drowning’:
KB: There is absolutely no reference in any of the textbooks over three decades to staining of the aorta being – whether associated with the pulmonary artery or not – associated with diagnosis of drowning?
CM: That’s quite correct.
KB: You were aware of that when you decided to come to your diagnosis?
CM: Yes.
KB: That, in other words, the rest of the world thought differently to you?
CM: No, the rest of the world hadn’t caught up.
KB: Your ego is extraordinary.
CM: No more than …100
At this point Dr Manock’s lawyer intervened before things descended into a schoolyard scrap.
To the lay observer, the mistakes and omissions unearthed not only suggested the autopsy had failed to achieve an acceptable standard, but who could excuse two Crown pathologists admitting to have not disclosed all they knew to the jury? How could such a process be deemed to have delivered a credible result? We had to wait another seven months to know if the Medical Board would arrive at the same conclusion.
During this time, in the early 2000s as I became more involved with the Keogh case, I had spent many hours talking with Robert Sheehan, ‘the Ferret’. Sheehan had the bulk of the documentation in his possession and he, like I, was hoping to find the smoking gun, a piece of fresh evidence that no one could refute. The phoney thumb bruise, and the misleading testimony given about it at the trials, ought to have been adequate, but so far it had failed to have any impact. Sheehan became obsessed with the photographs taken by a police photographer on the night of Anna-Jane’s death. Twelve photographs of the 42 taken inside and outside the house had been exhibited at the trials. They were the only fragments of objective evidence left from that night. There was nothing else retained as evidence except Anna-Jane’s body, and that no longer existed.
From time to time Sheehan would come to my office with a plastic bag or cardboard box of documents. One photograph in particular intrigued him. The Magill house had an open carport which, when viewed from the footpath, was on the left-hand side of the property. A photograph had been taken from Homes Avenue on the night of Anna’s death which showed Henry Keogh’s gold Volvo parked in the driveway. Keogh’s account was that he’d swung in behind Anna-Jane’s car when he returned from visiting his mother. The way the photo was taken, even when studied under a large magnifying glass, showed no sign of Anna’s car parked under the carport in front of Henry’s vehicle. To Sheehan this was highly suspicious. If her car was missing, then had someone taken it? If that was true it meant another person had been at the house before Henry Keogh had returned home. Perhaps it was the real killer, or an ‘insider’ who had interfered with the body?
I decided to check his hypothesis, as nothing else seemed to be working. I hired two identical Volvos and engaged a professional photographer to see if the mysterious ‘missing’ car would ‘disappear’ with the two cars in place. With the permission of the current owners of the property we drove the vehicles into position using the police photograph of Henry’s car as our guide to measure as precisely as possible where they had been parked. Our photographer, who was familiar with police photographic cameras and lenses, proceeded to shoot from a range of positions in the street. In the photographs that we considered best matched the one taken by the police, the side panels and roof pillars of the second car could clearly be seen under the carport. So, was Anna-Jane’s car there or not? This exercise proved nothing, but when we included this enigma in the next Today Tonight story it did attract a lot of public interest. At least people were curious.
That was not the only photograph in which Sheehan found the seeds of conspiracy. Another displayed the pine dressing table in the bedroom on which there rested a shallow, translucent plastic jewellery tray. Among the rings, necklaces and bangles was a gold wristwatch with tan leather strap lying face up. The watch’s frozen hands pointed to 11.10 pm, the time the photograph had been taken. He believed this was at odds with witnesses’ statements about the photographer’s arrival and the time other things had happened at the scene. I thought that, fascinating as it seemed, this inconsistency added nothing to our knowledge of what actually brought Anna-Jane’s life to an end.
Like the photographs, the trial transcript was a potential repository for stress fractures in the prosecution case. Sheehan found one smack in the middle of Dr Manock’s description of what he believed happened that night, and which was reinforced in Paul Rofe’s address to the jury. The precise scenario put to the jury was the die from which the conviction was cast. The proposition was that Anna-Jane had been on her back in the bath with her face staring upwards. This was the explanation for the bruise to the back of her head which Dr Manock maintained was the result of Keogh pushing her head under the water. Sheehan reasoned that for this to be effective as a fatal technique the water level in the bath had to be sufficient to submerge her nose and mouth with her face pointing towards the ceiling. It all came down to the depth of the water that had never been measured and was allowed to be drained on the night by Anna’s father.
I consulted the witness statements. All those who had been present on the night and had seen the bath estimated differently. The estimates were all made months after the event and ranged from half-full to three-quarters full. One of the photographs taken at the scene of the unemptied bath made it difficult to judge volume, as the photographer had taken it standing at the door of the bathroom, and the subject was clear water in a cream-coloured bath.
Sheehan consulted Professor Maciej Henneberg, who had worked on the bath re-enactment that had caused such a stir when images from the video of it were published in the Sunday Mail in 2001, for guidance on the distance between the back of Anna-Jane’s head and the base of her nose. Henneberg estimated the distance was 20 centimetres. When I interviewed him for a segment that went to air in July 2004, I put the following proposition to him, assuming the bath was just half-full of water:
GA: Considering that level, would it have been possible, according to the prosecution theory, would it have been possible to drown a woman like Anna-Jane Cheney, of her size, in that amount of water?
MH: If the head is kept straight facing upwards, certainly not … because the distance between the back of the head to the base of the nose is approximately twenty centimetres.101
This notion, I decided, required much more precision before it could be taken seriously. For me, there was no argument that Anna-Jane could have drowned in that bath, and probably did. The point is whether it could have happened in the way prosecution proposed, using the bruises to support their hypothesis. Once again I contacted the owners of the Homes Avenue house. To test this scenario it was not just a matter of taking photographs from the street; I needed to enter the house where the events I’d studied so intently had occurred. It was a strange feeling stepping through the door into someone else’s life, like passing through time. The furniture was no longer the same as in the photos but all else remained the same. The bathroom was the epicentre of this tragedy, and here nothing had changed.
Places have an atmosphere. Perhaps it is just what you carry in with you; perhaps it what is left behind by someone else. For me, I was trespassing but I was assured by the owners, who obviously knew the history, that the house contained no ghosts. I stared into the empty bath as if it was holding on to its secret. I was here to attempt to prise it free.
The square tiles in the bathroom provided a reliable grid against which to gauge the less basic geometrical objects in the room. However, while the specifications of the bath were available from the manufacturer, its curved and tapered shape made measurement more difficult. I got down on my knees with my tape measure and camera to record every detail. By placing a piece of wood across the span of the bath within the lip, I could measure the deepest point. The only article we had to simulate the submerged face was the head of a mannequin made of glass, which helped to demonstrate the point, but all this was merely an approximation.
Over a number of years we returned repeatedly to the notion of the depth of the water and Dr Manock’s demonstration in the court. In my research I discovered Emeritus Professor John Fryer, the former head of the School of Engineering at the University of Newcastle, who had spent 40 years specialising in surveying and photogrammetry, the science of judging heights and distances from photographs. Professer Fryer was fascinated by the challenge and offered to help. Because I had retained the measurements I was able to forward them to him, as well as my photographs and the police photograph of the still-full bath.
The professor, using the precise size of the tiles as a reference point, responded with a 13-page report which included details of a practical experiment he had conducted as well as the calculation base on the photographs. The crucial numbers were at the bottom of the document: ‘The depth of water in the bath at the plug-hole end with the upper half of a female body submerged was determined as 158 + 55 = 213 millimetres.’102 This was only 13 millimetres – the mere thickness of one’s finger – more than Henneberg’s estimation of the 20-centimetre distance between the back of Anna-Jane’s head and the base of her nose. If Anna-Jane had arched her neck, her nose and mouth would have been well above the water at this level. It was an interesting proposition but probably 14 years too late.