Having been appointed by Henry Keogh in early 2013, Marie Shaw and Sam Abbott met with me and I provided a number of folders containing the relevant texts and transcripts along with a summary of aspects of the case most likely to fit the definition of ‘fresh and compelling’. After that, it was up to the experts. In November 2013 Marie arranged a meeting with the Solicitor-General, scheduled to take place on 5 December. Whatever magic Marie Shaw possessed, it was powerful enough to have Martin Hinton pull a hand grenade out of his bottom drawer. What he handed Marie was a report on the autopsy of Anna-Jane Cheney compiled by forensic pathologist Professor Barrie Vernon-Roberts AO, who’d had an illustrious career; he was at the time the head of the Institute of Medical and Veterinary Science, now known as SA Pathology, and by definition was completely independent.
In October 2004 Chris Kourakis had sought Vernon-Roberts’ advice while considering Keogh’s third petition. On 30 November 2004 a meeting was conducted which included the Solicitor-General, research assistant Aditi Rao, Professor Tony Thomas, Professor Maciej Henneberg, Dr Harry Harding, Kevin Borick, solicitor Michael Sykes and later that day Professor Vernon-Roberts. When Vernon-Roberts made his appearance in the afternoon the two lawyers were excluded. Whether those who remained were prohibited from keeping notes I don’t know; however, Harry Harding’s otherwise detailed recordings document that, ‘No notes were taken of the remainder of the afternoon session which involved a phone hook-up with Byron Collins (in the presence of KVB and MS) and discussion with Vernon-Roberts in the absence of the lawyers.’10 According to Harding, when nine years later the 16-page written report from Vernon-Roberts surfaced, he’d never known of its existence. He says at no stage during any of these discussions did Kourakis reveal that he was in possession of Vernon-Roberts’ review, dated 22 November 2004 and stamped ‘Highly confidential’.
I recall Borick mentioning Vernon-Roberts’ name in a discussion we had in my office. I remember I said, ‘Wouldn’t he be worth listening to?’ Borick was quick to dismiss him as part of the establishment and therefore, if consulted, unlikely to be sympathetic to Keogh’s circumstances. I don’t know if Borick was offered the report but in a December 2013 letter to Keogh’s new solicitor Ross Richards, who was working with Marie Shaw, he denied knowledge of such a document.11
In an interview with me in 2016, Marie Shaw recounted the fateful meeting with Martin Hinton: ‘He asked me whether I’d like to see that report, I said I did, I had no idea what was in it but felt that Mr Keogh had nothing to lose at that stage.’12 Of her reaction to the report, she said, ‘I was convinced at that stage that the forensic evidence was flawed and that Mr Keogh was wrongly imprisoned on the basis of it.’13
Marie arranged for me to see the report. I glanced through it on a Friday night before going to bed. The next morning she phoned me, more excited than usual, asking what I thought. By this stage my expectations were non-existent. I thought they would just dismiss it as they had every other pathologist’s opinion. On one hand it said all the right things, the same things that Professor Thomas had said, the same things that collectively Dr Collins, Professor Cordner and Professor Ansford had all said. On the other hand they had been either ignored or dismissed. Why would this document be any different? Marie was quick to set me straight. This was very different. This was the Crown’s own advice from their own chosen expert. They were stuck with this advice and they had a duty to disclose it. I was not seeing this through the eyes of a criminal lawyer who had just been handed a smoking gun.
The very existence of the report raises serious questions about the decision-making process over the third petition. What we do know now is the report is dramatically at odds with what the Acting Attorney-General Kevin Foley told the media, the public and the parliament when rejecting the Keogh petition in 2006. The government’s unequivocal message had been, ‘It is not arguable that there has been a miscarriage of justice.’14
Vernon-Roberts’ conclusions were detailed and dramatic. He wrote:
My preference as an hypothesis for the events leading up to Ms Cheney’s death is that she lost consciousness after having sustained an initial fall in blood pressure due to a blockage of a small artery or during a faint. While falling backwards from an erect position she struck her head on the bath before sliding under the water and drowning while unconscious.15
He finished with, ‘I believe that there is a lack of essential pathology findings to sustain the hypothesis that Ms Cheney drowned as a result of a person gripping her lower legs forcibly to apply traction leading to immersion of her face.’16 There it was, the advice of the Crown’s own expert to Chris Kourakis and, by association, the Attorney-General. It is not credible to think this would not have been discussed. By the time it was handed to Marie it had been in the Crown’s possession for nine years.
I rapidly recovered from my stupor and realised this signalled a genuine turning point.
On reinspection there is something else in the Vernon-Roberts report that made it even more devastating. When discussing the contentious thumb bruise on the inner left leg of Anna-Jane, the professor wrote, ‘It is important in my opinion to confirm that intracellular brown pigment found on the biopsy from the left leg is haemosiderin by staining the tissues for the presence of iron. This will be straightforward.’17 What this meant was that if haemosiderin was present then the bruise, if there ever was one, would have been historical, made days or even months before the time of death. The Solicitor-General Chris Kourakis doesn’t appear to have taken Vernon-Roberts’ advice to have that testing done. When it was conducted by Professor Tony Thomas, almost a decade later in January 2014, sure enough he found traces of haemosiderin. Nine years had gone begging and Dr Manock’s time-of-death claims regarding the bruising were now scientifically shot to ribbons.
It was a torment for me, as a journalist, having a copy of the Vernon-Roberts report and being unable to do anything with it. Here was the Holy Grail I’d been searching for, evidence that the Crown’s advice was consistent with the opinions offered from almost every independent source. Yet it had gone unheeded.
With the report in their hands Keogh’s new team were ready for action. The appeal amendment meant they had to seek permission from a single judge in order to get to the Full Court. An entire week was spent in court on this process. The judge, Justice Kevin Nicholson, was the epitome of openness, but the new DPP, Adam Kimber SC, and his junior, Emily Telfer, challenged at almost every step of the way.
Kimber, who became DPP in 2012, was another graduate of the Catholic Saint Ignatius’ College. Kimber had been close to Paul Rofe. In a Sunday Mail article after his appointment as DPP, he recalled how, in 1995, as a first-year solicitor, he received a phone call from Rofe offering him a job as a prosecutor in his office:
After some indecision he jumped and although oblivious to its potential at the time, embarked on a career that has just seen him reach the pinnacle of his profession as South Australia’s Director of Public Prosecutions – the most senior prosecutor in the state.18
The DPP’s charter is not to prosecute at all costs; the idea of an independent DPP is he or she is not a puppet of the Crown. Sitting in the courtroom I struggled see how that aligned with the DPP’s wish to have the Vernon-Roberts report ruled inadmissible. In the nine years that had elapsed Vernon-Roberts had been struck down by dementia. The DPP argued if they couldn’t cross-examine him on the matters contained within, then they wanted his report thrown out. Kimber also challenged the professor’s qualifications to offer an expert forensic opinion, a reservation clearly not shared by Solicitor-General Kourakis when consulting him at the time he was considering Keogh’s petition. When Marie Shaw introduced a report from inter nationally eminent forensic pathologist Professor Derrick Pounder which supported Vernon-Roberts’ findings and his credentials, the DPP wanted that also declared inadmissible.
The Crown’s position became more tenuous when one of their own expert witnesses, Dr Peter Ellis, the Director of Forensic Medicine at Westmead Hospital in Sydney, gave evidence via video link. He, too, was critical of almost all aspects of Dr Manock’s autopsy and a number of the propositions he’d put to the juries during the trials.
On the afternoon of the first day, 18 February 2014, a collective gasp parted the silence when it was announced that Forensic Science SA had destroyed all the remaining pathology specimens from the autopsy. After seeking an assurance from the DPP that they would investigate if this was really the case, the judge added, ‘It’s an interesting proposition, given the evidence we heard yesterday about the importance of retaining this sort of material, virtually indefinitely.’ Adam Kimber responded simply, ‘Indeed.’19
The rules within the State Records Act 1997 required the permanent retention of all records and physical evidence for the following: ‘Cases of homicide, missing persons and cases of considerable judicial or public debate, or sustained questioning in Parliament, extensive media coverage or were subject of major external review e.g. by Royal Commission.’20 In 2008 the Attorney-General’s Department, under Michael Atkinson, took over the control of Forensic Science SA and the retention of records was revised downwards. Even so, evidence like tissue blocks from post-mortems needed to be retained for 30 years and required permission from police, the Coroner and Forensic Science SA before destruction.
The man in charge of the samples at the time of destruction was Pathology Manager Noel Sims, later Assistant Director Operations at Forensic Science SA. In response to an inquiry from the DPP’s Emily Telfer, Sims wrote, ‘The records show the disposal of biological samples occurred on 12 December 2012 … Details of the individual samples disposed of are not available; however, none of the samples taken for toxicology testing remain.’21 All gone.
I lodged a freedom-of-information request for the details of how these critical items could have been discarded. A letter written by Mr Sims offered the following:
The disposal protocol was not followed in relation to the samples from Ms Cheney and disposal occurred without notification from SAPOL [SA Police] and without approval of Forensic Science SA management. My enquiries lead me to the conclusion a misunderstanding on the part of a Forensic Science SA Officer resulted in the inclusion of samples from Ms Cheney in a batch of cases identified for disposal.22
He hastened to add the tissue blocks, histology slides and photographs, such as they were, still remained at Forensic Science SA. It wasn’t quite accurate because Professor Tony Thomas had custody of them and Justice Nicholson had been adamant that’s where they should stay, considering this was still at the preliminary stage of seeking leave to appeal.
Paul Rofe had always been wary about sharing Anna-Jane’s medical records. We know that Dr Manock made no reference to her medical history in his autopsy except to say, ‘There was no evidence of significant natural disease’23 and her general practitioner at the time gave a cursory one-page statement to the police. The Cheney family had also raised it as a no-go zone because they considered it an invasion of privacy. The DPP agreed.
Tony Thomas was of the firm view that a complete assessment of the cause of death required an in-depth analysis of any underlying medical conditions. In January 2000, through the lobbying of Robert Sheehan and MP Frances Bedford, he was permitted to see the Medicare claims history of Anna-Jane from 1989 to her death in March 1994. Why the period was limited to just five years is not known. In that period she’d had 37 consultations. That was the extent of what Thomas was entitled to see, and while the item numbers gave a clue as to the nature of the consultations they were hardly insightful. What’s more, he couldn’t tell anyone what he’d found as the number or nature of the visits had not been raised in either trial.
When reporter Rohan Wenn asked about the number of doctor appointments in an interview with Paul Rofe in 2002, Rofe said, ‘Well, it depends who you are. I don’t go to the doctor very often, but people I know might …’24 The moment he persisted Rofe’s assistant, Rebecca Gray, stopped the interview. There is a note in the transcript of that exchange which reads, ‘Interrupted with explanation that visits were a result of sexually transmitted thrush and for them to explain it’s just another thing the family have to deal with.’25 While I can appreciate those sensitivities, I don’t think they should be allowed to stand in the way of a thorough forensic examination of the medical condition of the deceased.
Something else emerged by chance from those consultations. One of the item numbers indicated a pregnancy test conducted during the time Henry and Anna-Jane were a couple. Henry Keogh had had a vasectomy after the birth of his third child. During the trials much had been made of Keogh’s infidelity, though the confessed affair with B. was during the period he and Anna-Jane had temporarily parted company. Anna-Jane’s reputation on the other hand had been protected, her image of the loyal loving innocent preserved. However, there was something vastly more intriguing yet to be revealed in her medical history.
It wasn’t until 2004, immediately prior to the commencement of the Medical Board hearing, that Thomas was permitted to see the medical notes. He was still restricted:
I was not allowed and specifically prohibited from taking any notes and I was prohibited by the then Medical Board from discussing those medical notes with any party other than Mr Borick who was also present. I have not seen the medical notes since.26
At the Medical Tribunal in May 2009 Professor Thomas was permitted to view the notes, again behind closed doors. Having done so he informed the tribunal that, ‘there is a history of allergy in this case’.27 There is an entry in the records on 13 November 1993 in which the word ‘chronic’ is used. Unfortunately, the following word was illegible. What Thomas could read was a reference to the prescription of a drug called Hismanal (astemizole) made on 19 August 1992. As he wasn’t a toxicologist the drug meant nothing to him. When he later researched the product Professor Thomas discovered it to be a non-sedating antihistamine. The Australian Prescription Products Guide advised that prescribing doctors should review patients after six months of usage. It also emerged that Hismanal had been withdrawn from the US market in 1999 because in rare cases it could cause ‘serious cardiovascular adverse events including death’.28
When the Keogh case came before the appeal court in February 2014, under the new law, the media interest was spectacularly rekindled. What had been an unreportable story for so long was now one everyone was jostling to cover. Early into the hearing reference was made to Hismanal and its suspension in the US. This immediately had the court reporters in a flurry. It was something fresh and though, as yet, there was no proof it played any part in Anna-Jane’s death, there was the potential it did. The answer to the question of an adverse reaction to this drug had been sitting in the Forensic Science Centre since the weekend Dr Manock conducted his autopsy. The blood sample taken at the time held the key, yet it had been destroyed in 2012, two years short of its possible moment of truth. The disposal closed off what was perhaps a critical line of inquiry. Henry Keogh seemed eternally doomed by the conspiracy of circumstances beyond his control.
The only hope left was to check for the kind of toxicology testing originally ordered by Dr Manock as a part of the autopsy. It was a long shot. Again Mr Sims examined the record and a broad screen test had been undertaken. He concluded, ‘that the testing conducted on Ms Cheney’s post-mortem samples would not have detected therapeutic use of pharmaceutical Hismanal’.29
At the end of the week the DPP argued that some evidence was perhaps ‘new’ but not ‘fresh’, ‘new’ but not ‘compelling’, and had not resulted in a ‘substantial miscarriage of justice’. Justice Nicholson was extremely prompt with his judgement. Despite ‘the problematic issue concerning the proper construction of 353A’30 he agreed it was reasonably arguable that there had been a ‘substantial miscarriage of justice’. He then referred the matter on to the Full Court to decide both the question of permission to appeal and the appeal itself. Though it was a faltering step, it was a huge leap forward given the previous court history of the case. Henry Keogh was back in the system.