It was abundantly clear that a television program alone was not going to shift this great barnacled hulk forward; every move so far had ended in the shallows. Frustrations were building among those who had tried to pilot their way through the ever-narrowing channels. Disagreement intensified about which course to take, and who should lead. Members of Keogh’s family shook their heads, no longer certain of where to put their faith.
Meanwhile, Kevin Borick and Harry Harding ploughed on, having lodged a fourth petition. The first version was dated January 2009 but it had undergone substantial rewriting and by November 2010 had swollen to four telephone-book-sized volumes. Borick and Harding had included an impressive amount of detailed information in the four books. While enormous work had gone into its preparation, it ran the same risks which had plagued the third petition. Not only would it take an age to digest, the density of the document could cloud the precise legal argument it sought to deliver. And the greater the detail, the greater wriggle room it provided. Borick had written in his perhaps hyperbolic covering letter:
The prosecution as it was presented at trial no longer exists. Every single feature of that case has been either withdrawn, in some instances totally altered and in other instances completely demolished. That, in itself, is a unique situation. You will find no other reported case in which this has happened.51
I felt something had to change or the same old battles would be refought over and over, and the outcomes would not change. I had until this time attempted not to become involved at too personal a level despite the public perception of my involvement. Only Henry Keogh really knew the distance that I had maintained, but in many ways it had proved pointless.
The fact was that I thought no one else had the contacts and no one else was able to offer a serious and effective alternative to Keogh’s existing legal representation. It was a delicate manoeuvre. I had already tried to involve respected voices from outside South Australia in the stories I’d produced in the hope that it might lend some objectivity to the argument. I had been anxious for some time to source a high-profile barrister from elsewhere who might team up with Borick and take on the role of external advocate. I had hoped Kevin would see the sense of a fresh voice, uncontaminated by past conflicts and agendas. Tom Percy QC from Perth had expressed a willingness to act but Borick blocked every move to get him involved. Percy had excellent credentials in the area of wrongful convictions. He had worked on the quashing of the convictions of John Button, for the manslaughter of his girlfriend, and Darryl Beamish, a deaf mute man who was handed a death sentence which was commuted to a life sentence and who had to wait 44 years to be cleared of murder.
I had long been concerned about the schism that steadily widened between Bob Moles and Kevin Borick. Bob Moles had for a number of years been proposing the naïve but attractive idea of making an application to have the conviction reviewed and quashed on the basis of fraud: in other words, based on a proposition that Dr Manock had presented fraudulent evidence and the conviction was unsafe as a result. One obstacle to such an application was a High Court decision from 1938 known as Grierson. Though it had its legal weaknesses the decision prevented the reopening of cases that had already been determined on their merits. The Full Court had little interest in revisiting ‘perfected’ convictions and the High Court was of the view that the petition-for-mercy process was adequate to deal with any situation where ‘new’ evidence might later arise.
To me the problem with Bob’s fraud proposition was that since 2005 the Medical Board had been prepared to exonerate Dr Manock, even when confidentially all its experts found his autopsy incompetent. The Medical Tribunal had exonerated Dr Manock in the face of candid admissions and evidence of failure. Justice Debelle had written a judgement absolving Dr James, with the Chief Justice supporting him with an opinion that was carried unanimously. So how likely was it that the Supreme Court would take on a fraud application based on Dr Manock’s false evidence, even if they could get back into court? It was clear to me something else had to be done to change the operating dynamic. It was that or admit defeat.
In 2010, while I was filming in Queensland with Debi Marshall, she introduced me to a friend, Michael Byrne QC. Having been Queensland’s Deputy Director of Public Prosecutions and now working as a defence counsel, he understood things from both sides. Michael was working on the case of Dr Jayant Patel, at that time probably the most despised defendant in Australia. Patel, dubbed ‘Dr Death’, was accused of fabricating part of his résumé and had been practising in the country hospital of Bundaberg following a chequered career in the US. Patel’s patients underwent needless surgery and, worse, they began to die following their operations. He was linked to 87 deaths but his convictions for manslaughter were eventually quashed and he was set free in late 2013.
In his former role as prosecutor Michael Byrne had represented the Crown in the contentious case of baby Deidre Kennedy, who was abducted from her bed and murdered in 1973. Deidre’s body was found on the top of a toilet block in a public park in Ipswich just a few hundred metres from the family home. The tiny infant had been strangled, some of her clothing replaced with adult underwear stolen from a nearby clothesline and bite marks were found on her left thigh. In March 1985 Raymond Carroll was convicted of the murder. Carroll worked for the RAAF at the Amberley airbases and had been investigated by military police on the suspicion of photographing and stealing the underwear of female recruits. What distinguished Carroll was his prominent teeth and it was believed they matched the bite patterns on baby Deidre. However, after his conviction Carroll successfully appealed and was acquitted in November 1985. The problem then was that as new, compelling evidence emerged the double-jeopardy rule prohibited the relaying of the murder charge. Carroll remained a suspect but was legally untouchable. In the year 2000 the Crown had another crack at Carroll, this time charging him with perjuring himself in the first trial when he was asked if he had killed Deidre Kennedy. This move allowed the second trial to canvass much of the evidence of the first in addition to introducing new expert evidence and an alleged confession Carroll gave to an inmate while in custody. Again Carroll was convicted. Again he appealed and the Queensland Full Court acquitted him. The case remains unsolved.
I explained to Michael the history of the forensic science scandal facing South Australia, the level of resistance and the details of the Henry Keogh case in particular. Michael offered to help if required. I felt here was a chance to elevate the case out of the awful quagmire of the dissenters versus the establishment.
Around that same time I became aware of a law lecturer and barrister, Joe Crowley, who worked at Bond University. The law faculty had taken an interest in wrongful convictions and Joe had most recently worked on the Graham Stafford case. Stafford had been convicted of the 1991 murder of 12-year-old Leanne Holland. Leanne was the younger sister of Stafford’s former partner. Her battered body had been found in bushland three days after she had disappeared from home, where Stafford was staying. A series of forensic errors and the possible fabrication of evidence by police eventually led to Stafford having his conviction quashed in December 2009. Though he was released in 2006 Stafford had spent 14 years in jail.
When I contacted Joe he was very willing to help, provided the existing legal team was comfortable with his inclusion. I had a great deal of the documentation photocopied and sent to Joe. I rang Borick knowing it was going to be a difficult call. I told him of my discussions with both Byrne and Crowley and that I believed an interstate legal presence would help put things on a national footing, and help neutralise the animosity. As I feared this wasn’t well received. I persisted and eventually Borick agreed to meet with Crowley, who arranged to fly to Adelaide to visit the Solicitor-General.
A new Solicitor-General, Martin Hinton QC, had replaced Chris Kourakis in 2008, following Kourakis’s promotion to the Supreme Court. The 2010 election had produced a shake-up in parliament: the government was returned but Michael Atkinson was replaced as Attorney-General by another member of the right, John Rau. With changes to both roles there was a glimmer of hope that old hostilities may be set aside. Early in his appointment Martin Hinton had conceded he was in an ‘invidious’ position when it came to Keogh, but perhaps that, too, might change. This was to be a test of how receptive he might be. Unfortunately, it wasn’t handled well. Borick used Joe’s presence to suggest the big guns from interstate were going to make life difficult for the local establishment. Joe later told me he believed the meeting served no purpose except possibly to alienate the otherwise open-minded Solicitor-General.
The second of Joe’s visits was arranged to coincide with a trip to see Henry Keogh, who by this time was in the low-security Cadell Training Centre, about 180 kilometres north of Adelaide. Joe felt he was belittled by Borick in front of the client. Joe was left to seriously question Borick’s interest in outside advice.
Kevin Borick and Harry Harding continued to add further elaborations to the fourth petition. They had introduced solicitor Michael Hegarty, a former police officer, into the ‘team’. From January 2009 to late 2010 they had sent Martin Hinton 13 updates, many of which restated what had already been submitted. Joe Crowley and Michael Byrne’s advice was to submit a simplified version of the petition comprising about half a dozen pages laying out the strongest legal arguments as to why the case should be referred back to the Supreme Court for review.
On 27 October 2010, desperate to move things along, I had taken a further step towards taking control of the way the case would proceed. I sent out an email saying:
We are at a critical point. Every day we delay, regardless of the reason, is a day Henry Keogh loses from his life. Just ask Alexis [Henry’s youngest daughter] about this … If we can’t agree to work together on this then we should cease immediately and stop playing with Keogh’s life … That’s my last word, any takers?52
I was furious: here we had skilled people from outside the state willing to give us their time and advice and our efforts to achieve justice had descended into a petty turf war.
The email prompted a phone call from Alexis Keogh. I explained to her my concern that Joe would not continue if he felt he wasn’t being listened to. She then followed up with an email to Bob Moles, saying:
I’m so confused as to where Kevin lost sight of what this is all about … I thought it was about my dad & and getting him out of jail as SOON as possible NOT about the person to do it. Ugh … I just want my dad in my life.53
She had hit the nail on the head. Joe Crowley was equally distressed and the next day he sent me a couple of messages, saying that Borick fundamentally disagreed with his approach.54 I told him to proceed with the notion of a single concise document and that, if necessary, Henry Keogh would have to decide which path he wanted to take. Another year had passed and we were hardly any further advanced.
Yet the progress of the fourth petition became even more chaotic. My email resulted in a voluminous and defensive response from Kevin Borick and Harry Harding. It would be impossible to accurately chart the direction of instructions and discussions flying around between the middle of 2010 and the end of 2012. There were delays on all sides, conflicting advice to Henry and contrary instructions to the Solicitor-General. Joe Crowley and Michael Byrne proposed an application for judicial review over the delay in dealing with the fourth petition, because a new High Court finding had opened up the way for that kind of action. Borick flirted with it but then switched his support to Bob Moles’ conviction-by-fraud scenario. If there had been any desire in the Solicitor-General’s office to delay the progress of the matter since the first tranche of the fourth petition had landed on his desk in January 2009, it was inconsequential when compared to the disruption caused by the turmoil in the Keogh camp.
Things went seriously awry in November 2011. Byrne provided a concise summary of the legal argument to justify having the case referred back to the Court of Criminal Appeal. In doing so he referred to a very select few documents contained within the lengthy fourth petition as supporting material. This would substantially lessen the Solicitor-General’s workload and simplify the legal side. After a series of miscommunications, word came back from Kevin Borick that the entire four volumes ought to still be used as references. The inability to speak with one voice effectively meant Hinton was sent back to start his deliberations all over again.