Marie Shaw QC and I have had an odd relationship. In 2002 she was one of five lawyers suing my program for defamation over the report we’d done on the missing assets of convicted paedophile magistrate Peter Liddy. I had always admired Marie Shaw. She was the driving force behind the Splatt Royal Commission and had always been a tenacious and ethical advocate. I suspect she didn’t think much of me as I was easy to characterise as an enemy of the legal profession. She’d also been an admirer of the plain-speaking Paul Rofe and has always held me responsible for his demise.
It was a considerable surprise some years later, in 2006, to receive a call to say Marie Shaw, now a District Court judge, was seeking to meet with me. I thought I must be again in strife. Fortunately, her ascension to the bench caused her to discontinue any action against Today Tonight. We met at Channel Seven offices one morning. She had with her a rough diamond by the name of Don Anderson. Marie explained that one of her teenaged daughters had lost her way but found a rather unusual safe harbour: she had joined an ice hockey team. This somewhat obscure sport had provided her with a challenge, enjoyment and made her part of a team, positively impacting on the direction of her life. Marie hoped it could help others.
Her plan was to introduce the idea as a trial in a high school, specifically targeting kids who were troubled, threatening to drop out or already headed for the courts. Over her career she had seen enough squandered lives in that arena.
Don Anderson had been down that track himself, but now worked with a group of at-risk kids at Parafield Gardens High School, one of the tough northern suburbs schools. Don was the perfect man for the job. He spoke the kids’ language, understood their issues but he took no nonsense. He had agreed to test the project for a ten-week term. The kids were to sign up for the course, learn to ice-skate, learn how to play ice hockey, form a team and play one competitive game against an experienced side. The deal was that they could not skip classes or cause trouble at school. Marie asked if I was prepared to film the process and produce a fly-on-the-wall-style documentary on the experiment.
Marie wasn’t to know I’d spent ten years teaching in secondary schools prior to my career in journalism. I immediately thought the idea had huge appeal and was worth a shot. The result was an outstanding success. There were plenty of setbacks and some kids fell off the wagon a number of times, but when they finally scored a goal in the last minute of their competitive match it was like they’d won gold at the Olympic Games. Pandemonium. The documentary went to air and it was the beginning of a relationship with Marie which has now been going for well over a decade. During that time countless kids’ lives have been saved by the Ice Factor program and around 20 schools have now taken it on.
During most of those first ten years Marie and I didn’t speak about the law. In 2009, after four years on the bench, she quit as a judge and went back to her defence advocacy. Just twice did she ask me about the Keogh case. The first occasion was shortly after the Medical Tribunal had made its crushing finding. I expressed my frustration that there had been major breakthroughs which had simply hit brick wall after brick wall. Her view was that those involved appeared to have declared war on the system and it was always going to respond badly. I knew by then that was true.
The second occasion was in mid-2012. By that time I was certain some radical action was required and I would probably need to take a leading role. My experiment of introducing fresh voices from afar had proven unworkable. My problem was that if I took the bold step of recommending to Henry Keogh he replace Borick and Hegarty, who would be prepared to take it on? There were few, if any, who would care to endure the wrath likely to come their way, even if they believed the case could be won. The other obstacle was the enormous amount of work required to get across the detail, with little or no prospect of getting paid. I had already canvassed a number of the large law firms who are required to devote a certain percentage of their time to pro bono work, but with no takers. While I still had the commitments of Byrne and Crowley, it also required someone who lived in South Australia and understood the local legal culture. It was then that Marie said, ‘If you need any help, let me know.’ I put the phone down and sat in my office pondering the next step. For me it was a big one. It meant I would finally impose myself on the way the case would be fought. No more luxury of distance.
A few weeks later I called Marie and asked her whether, if I could get instructions from Henry Keogh to replace Kevin Borick and appoint her as senior counsel, she would be prepared to take it on. She said she would, but there would be conditions. Firstly, if having looked at the details she believed it was worth fighting, she would want Sam Abbott, whom Bob Moles and Sheehan had both approached years earlier, on board as her junior counsel. We would also need a solicitor to do the research and lodge documents. Marie suggested a young civil solicitor, Ross Richards, who had set up a legal practice in Unley, just outside the city. After some discussion Ross, who greatly admired Marie, agreed to join the team. It was a huge undertaking for a small firm working predominantly on civil cases.
The next condition involved me. Marie said that she would have nothing to do with any case that was also being run in the media. If she took this on it would be run her way, on purely legal lines and without any whiff, intentional or otherwise, that influence was being exerted by the media. This was going to hurt me more than anyone else, but I couldn’t see any other solution. Marie Shaw was the best in the business and this was a once-only chance. I agreed, but said I could not control the others. She understood. I assured her that Joe Crowley and Michael Byrne would be only too willing to help if she felt it useful.
Some years later, Marie said she decided to have a look at the case because I had supported the Ice Factor program:
Ice Factor is the closest thing to my heart, helping at-risk youth; it means everything to me and I had the view that I would help you, because I knew you had this passionate interest in Mr Keogh’s innocence, by at least having a look at whether or not it had merit. So when I took it on I did not intend at that stage to carry it through.1
This was a big move. I knew I had to cut my ties with Borick, Harding and Moles, at least for the duration, if the case was ever going to progress. Before I withdrew I told each one that Marie Shaw was prepared to have a look at the case. She would only act if she thought it had a reasonable prospect of success and only if she was left to do so in her own way. Beyond that it was Henry Keogh’s call as to who would represent him.
There was movement on another front. The Legislative Review Committee considering Ann Bressington’s CCRC Bill tabled its report to parliament on 18 July 2012. Their first recommendation was: ‘That a Criminal Cases Review Commission not be established in South Australia at this time.’2 Bob Moles’ dream had bitten the dust. The committee also rejected the proposal of a national version.
However, it wasn’t a total defeat; far from it. The committee did see some changes to the existing appeal process were required. They recommended that the law:
be amended so that a person may be allowed at any time to appeal against a conviction for a serious offence if the court is satisfied that the conviction was tainted (or) where there is fresh and compelling evidence that may cast reasonable doubt on the guilt of the convicted person.3
It was the most that could have been hoped for. A CCRC was never going to fly, but the debate had been crucial. It was now up to the government to decide how to proceed.
I had met with the Attorney-General, John Rau, a couple of times over coffee to discuss the Bill before the committee. A few months before the committee released their report, he agreed to a television interview on the subject, which was aired on 27 March 2012:
GA: Can you imagine what it must be like to be convicted of a crime you didn’t commit?
JR: It must be terrible.
GA: If we have people who may be wrongly convicted and we have no mechanism for them to demonstrate that then we have a problem.
JR: If you accept the premise of your question, that is, people wrongly convicted, I’d accept if they had no way they can have that dealt with that does warrant some consideration and as I’ve said I am thinking about that.4
He agreed that he would watch the debate closely, and while he didn’t support a standing body as existed in the UK, he would take seriously what the committee proposed. It was the most encouraging thing I’d heard from the government in a decade.
John Rau was as good as his word. The committee recommended a change to the law, allowing for second and subsequent appeals under strict conditions. The Attorney-General put forward the Statutes Amendment (Appeals) Act 2013 to amend Section 353A of the Criminal Law Consolidation Act, allowing for second and subsequent appeals if ‘there is fresh and compelling evidence’, and if the Full Court ‘thinks there was a substantial miscarriage of justice’.5 Rau supported the amendment through cabinet and in his second-reading speech compared what was proposed to the petition process:
It is very important … to bear in mind that the present process for people who have been convicted and exhausted their repeal rights is very, very mysterious. It is mysterious because what happens is that they are languishing in gaol, they have no right of appeal. None of that process occurs in any way in a public forum. It is all happening behind closed doors as it must involve the Governor. However, what we are doing here is bringing that to a public forum, which is a court … and we have that marvellous disinfectant of sunshine just covering the whole circumstance – magnificent. I am starting to feel warm about it right now.6
The gathering in the parliamentary visitors’ gallery to watch the historic vote was just as warm. Keogh supporters were joined by an assortment of victims or the families of victims of other perceived injustices. Spontaneous cheering burst out and there were hugs, handshakes and broad smiles all round.
While it was a great leap forward, it set the bar incredibly high, with the need for ‘fresh and compelling evidence’ and recognition of ‘a substantial miscarriage of justice’. The amendment also interposed a process of seeking permission from a single judge before the appellant could proceed to the Full Court. Keogh and others now had two paths out of the darkness: the petition process and a second appeal application. Both could be run concurrently, if they wished.
As predicted Kevin Borick was furious he had been replaced. He wrote to the Bar Association lodging a professional complaint against Marie Shaw. The complaint didn’t proceed. In the meantime Bob Moles had taken primary credit for the amendment and was extolling its virtues. An article published in the West Australian news paper in April 2014, which was particularly flattering to Bob and his wife, Bibi, noted, ‘Dr Bob Moles set about changing the system and lobbied Parliament to legislate to give South Australians a new statutory right of appeal.’7 Borick exploded and wrote to the newspaper’s editor demanding a correction: Moles had ‘in fact lobbied Parliament to legislate to give South Australians a Criminal Cases Review Commission’.8 That proposal had been rejected. Borick was correct on that score. His complaint was that Bob had allowed his role to be conflated so he appeared as the single author of this breakthrough in justice. Borick claimed credit himself, saying the suggestion of the amendment was contained in the submission he, Harding and Phillip Scales had provided to the committee. Evidence of this is contained in the letter he had written to Henry Keogh in May 2012 and another to the Attorney-General in December 2012, which concluded with the offer, ‘We would … be pleased to make ourselves available to discuss with you our proposed amendment should you wish.’9
While all this might seem petty it’s the stuff reputations are built on and the individual or individuals whom history credits for this legal landmark. The fact is, one without the other may not ever have achieved what appeared for many years impossible. It was an example, however, of why I had made the decision to salvage the legal case from these internecine battles. The wisdom of changing the guard was about to strike like lightning from a clear sky.