In June 2015 there was another significant announcement, this time about the case of Adrian Drummond. Adrian, a father of three, had been convicted for attempted child abduction. A 15-year-old schoolgirl had accused him of trying to drag her into his car on his route home from work one afternoon in November 2010. The case against him was thin: there were no witnesses, no injuries to either party and Adrian had no criminal history. But the prosecution called a witness from Forensic Science SA who gave misleading evidence about DNA samples. With the amendment to Section 353A the challenge was to find evidence a court would accept as ‘fresh and compelling’. When Adrian sought permission to appeal from the Full Court in April 2014, the misleading DNA evidence was his only hope.
Adrian waited over a year to hear if his appeal was successful or not. In the meantime he had been released from prison but continued to suffer the humiliation of home detention. Escaping the blighted wormhole of G-Division was a blessing but he was still a criminal and those who lived around him treated him as such. Aside from his strong and loyal wife, Tracey, and her uncle, who’d stood by him, he had no one else. Adrian wrote to me regularly while he’d been in prison. I had no doubt from what I read that he was at extreme risk of suicide. The truth is I couldn’t continue reading his letters. I can’t do what I do and carry home to my own family that kind of emotional burden. I had to distance myself, as I’d done with Henry, in order to function.
I sat alone in court to hear the judgement. Borick was there of course and the prosecution, but no one else. Tracey had to look after the children. Adrian was required to stand in the dock, as he’d done in blank bewilderment during his trial. The three judges slid into place. Two agreed the evidence was fresh and compelling and that there had been a substantial miscarriage of justice. Adrian’s conviction was quashed and, as with Keogh, a retrial was ordered. By this time I was prepared to accept one out of two wasn’t bad. The judges disappeared from court. I overheard the prosecutor approach Borick to say any written submission by the defence about not proceeding would be given serious consideration.
I was suddenly confronted by Adrian asking me what all of this meant. His face was contorted by anxiety and confusion. I said, ‘It’s all good, you are no longer a criminal. You’ve never been one and you should call Tracey immediately and tell her.’ He then said plaintively, ‘But have I been cleared?’ What could I tell him? ‘Adrian, it’s over,’ I said. ‘They haven’t acquitted you, but the conviction no longer stands.’ I explained that they were not prepared to acquit him because all the evidence had not been reviewed, but I was confident they wouldn’t trouble him again. I left court thinking that the new legislation had already proved its worth, with the first two applications leading to quashed convictions.
Of course it wasn’t entirely over for Adrian Drummond. Three months later, in September 2015, I was back in the court, as was he. Again he was required to stand in the dock as an accused man, waiting for whatever fate those who administer the law had in mind. The DPP’s representative announced, ‘Your Honour, the Crown is entering a nolle prosequi.’ They had decided not to proceed with the attempted abduction charge. No reasons are required and it still remains open to pursue Adrian in the future, but that is unlikely. Borick had nothing to add. That was that, except for one last detail. Adrian was still standing to attention in the dock. The judge dismissed Adrian with the order, ‘You’re no longer required.’ Adrian just stood there for a moment before he realised the court had moved on to the next case, signalling that at last he was permitted to pick up his life. What he’d lost would stay lost. But those things that remain are the only things of real value. I believe he sees it like that.
Henry Keogh had no certainty of what was to remain of his life. The first battle was with the Legal Services Commission over the funding of his legal defence. They refused to fund two senior counsels, albeit many thousands of dollars below the market rate. They then insisted Marie and Sam use one of the commission’s solicitors. Marie’s titanic work regimen, very often going through to three or four o’clock in the morning, was inconceivable to nine-to-five public servants. There would be trouble. I had become something of a ‘go-to guy’ for information on the case because of the length of time I’d been compiling and storing documents. Even the Legal Services lawyer emailed me for some material and then was stunned when I delivered what he wanted by return email within 20 minutes. After a number of after-hours requests from Marie and Sam he quit, suffering from stress. Fortunately, lawyers Frank Barbaro and Ben Thilthorpe again stepped up to act on Henry’s behalf.
One question which had weighed on Henry Keogh was whether he should elect for the case to be heard by a jury or by a judge alone. Initially Marie Shaw was keen for a jury as she maintained great faith in the jury system. Facing a third jury didn’t have much appeal for Henry. According to Marie, that decision could not be made until the DPP provided particulars of the method allegedly used by Henry Keogh to murder his fiancée, the actus reus. The DPP in turn insisted this was not something that impacted on the decision. The Crown’s position, stated by Kimber in the directions hearing, was ‘that Mr Keogh drowned the deceased. I’m not obliged to be and nor can I be today, nor I expect at trial, any more specific than that.’45 Henry asked me what I thought about electing for a trial by judge alone. I had no hesitation in saying that if it were me, I’d take the judge. Juries are likely to be swayed by emotion, pity for the victims and the idea that if he was innocent he wouldn’t have had all this trouble. I was quick to say that I couldn’t make that decision for him. At the next hearing Marie Shaw confirmed the election for a trial by judge alone.
Before the next hearing Supreme Court Justice Malcolm Blue was appointed as the trial judge and set a trial date for March 2016. It was before Blue that Sam Abbott tackled the difficult issue of how the prosecution was to select and ‘proof’ their witnesses. Sam had written to the DPP requesting a list of witnesses they might call and asking that the ‘historical’ witnesses might be required to give a statement before being provided with transcript of their evidence given 20 years ago. The idea was that the test of witnesses should be on their current memories, not those artificially refreshed in advance. Aside from the inherent risk of ‘coaching’ the witnesses, their memories are likely to have been tainted by the publicity that surrounded the case over two decades. The only way of distinguishing between memories past and present is to document their current recall. Adam Kimber rejected that suggestion.
At the first hearing before Justice Blue this was addressed briefly but the DPP said there were more pressing matters to settle first. The defence had raised the possibility of what’s called a Basha inquiry, which means giving the accused the right to cross-examine witnesses before the trial.46 Normally that would be done in a committal hearing or voir dire, but that was not a feature of the retrial process. The problem facing Keogh’s defence was that six months out from trial they had no idea of who would be called by the Crown or what they would be saying. The DPP assured the judge that if witnesses said they couldn’t remember certain things the prosecution would disclose that. Sam Abbott argued that if the witnesses were first shown their original transcript there would be no way of gauging what they genuinely could and could not remember.
The other application the defence made was for a permanent stay of the charge on the grounds that the prosecution was ‘foredoomed’ to fail. The DPP wanted to have that question postponed until closer to the trial when they had a better idea of the witnesses and evidence. Abbott insisted it would not take long to debate and would save both sides an enormous amount of work if it succeeded. Kimber then raised another issue. The sudden ill-health of a key prosecution witness meant the Crown might need to rethink their approach. The fate of that matter would not be known for some time.
The defence were facing dilemmas of their own. They had just been informed of the withdrawal of Professor Derrick Pounder, who had been so influential in the appeal. Derrick’s wife had developed cancer and he was retiring from all professional duties to care for her. Finding someone of his equal was well-nigh impossible. I spoke with Henry regularly during this period. He was always superficially pragmatic. There wasn’t much I could do aside from continue to provide moral support. Faye was concerned for his mental health. He had been remarkably strong so far, but this was like facing a firing squad from which he could see the bullets travelling towards him in slow motion.
I tracked down a woman who was something of an expert on ‘tombstoning’, the practice of using names from cemeteries for the creation of phoney insurance policies. The moment I heard her speak on the radio about this practice in the insurance industry I thought of Henry. Her point was that insurance rules allowed brokers to create false policies in order to generate commissions and create the impression of healthy sales. Not all the individuals whose lives were insured needed to be dead. This was exactly the practice Henry said he’d employed, and which had so badly worked against him in the trials. My view was that the DPP, following the demolition of the forensic evidence, had to be resharpening their swords for an assault using the ‘infidelity’ and insurance evidence which had been so influential in the original conviction. I still couldn’t see how they could get around the absence of physical evidence of a crime. Perhaps they planned to reinvent the meaning of the forensic evidence. Marie Shaw and Sam Abbott were as puzzled as the rest of us as to how the prosecution would overcome its own hurdles.
Meanwhile, Bob Moles and Kevin Borick refused to relinquish their attachment to the legal aspect of the case. They proclaimed the need to appeal the Full Court’s order for a retrial. They believed that the Full Court had unanimously erred and the case should proceed to the High Court to challenge that part of the judgement.
The argument over the best way to proceed was reconvened in September. The DPP wanted more time to recalibrate the prosecution case in the possible absence of the key witness. Sam Abbott was concerned about the wastage of time. He pressed for more clarity over how the witnesses would be ‘proofed’, the manner of death and if the ‘foredoomed to fail’ argument could be heard sooner rather than later. Justice Blue decided the first two should be the subjects of the next hearing.
By the end of October, ten months into the retrial process, the parties fronted up again before Justice Blue. The first business was to reach an agreement, or seek an order, on proofing the witnesses. Marie and Sam continued to urge that they not be given access to their previous evidence or statements before being questioned on their memory of events 20 years prior. The second request was that the DPP clarify the prosecution position on the mechanism of Anna-Jane’s death, known as the ‘particulars’. The defence asked if the Crown was proceeding with the ‘deliberate drowning’ scenario in one form or another. The answer was ‘yes’, but with the qualification, ‘the Crown cannot establish the precise method’.47
Marie leapt on this vagary with venom. After two years of litigation since the appeal was lodged, all the expert evidence that had been given and the Appeal Court judgement, she said, the best the prosecution could offer was that:
all the balls are in the air, any hypothesis that you can come up with, that is of the act my client performed, he’s required to defend … He has to disprove that without the Crown nailing its colours to the mast.48
It summed up the task being set for the defence. The prosecution’s strategy had been to go back to Dr Lynch with a series of hypotheses and ask if the scenarios were possible. Marie contended these speculative questions would enjoy ‘the white-cloak effect by Dr Lynch’ as all he was likely to say to a list of hypotheticals, in the absence of evidence, was that all things are possible.49
Marie proceeded to tear to shreds the Dr Manock scenario, but said at least during the original trials the defence knew what it was facing:
There is no evidence to support a grip. Secondly, therefore there is no evidence to support the time at which any mark that was found on the deceased’s body was inflicted or caused innocently and thirdly, the basis upon which it was suggested she was forcibly drowned, namely, a brain injury, was recanted by Dr Manock and therefore has fallen away.50
There was lengthy argument, with the DPP using a range of previous legal examples which might have opened the door to their nebulous scenario of murder. Marie Shaw reiterated the central argument over and over again:
We have a body. We have an examination. We have opinions of pathologists … However, it’s inconsistent with the Crown’s case of guilt and that’s why the Crown is forced to say ‘The pathology is effectively meaningless but we want to embrace the pathologist to put forward these hypotheses.’51
On the question of proofing witnesses the DPP was equally unmovable in his views. Sam Abbott detailed at great length the prejudice likely to be suffered by his client in the method already begun by the prosecution. Kimber agreed to halt the process while the court deliberated, but he wasn’t budging in the Crown’s position. The DPP contended it was common practice that witnesses were entitled to refresh their memories from notes and previous evidence. The defence reasoned these were special circumstances considering the passage of time. After lengthy argument Sam Abbott summed it up in these terms before Justice Blue:
SA: We went to a mediation and, frankly, it was not mediation because the director was intractable.
MB: You can’t tell me what happens –
SA: I can, because it was not mediation, because the director said he wasn’t amenable to anything.
MB: I can’t determine whether it was mediation or not.
SA: Well, that’s my risk. The director has been intractable in his position – he says it’s a matter for his discretion and for him, in a way, to put onto us the responsibility and the blame for him not proofing witnesses is – we will not accept that.52
Justice Blue reserved his judgement.
The parties were brought back to court 12 days later by the judge to give them a draft of his decision on the matters debated, along with his reasons. His reticence in publishing anything at this point was because there had been interest expressed from the media. His ruling on the first matter, of whether the Crown had to provide details of what act was performed to drown Anna-Jane, was a blunt rejection. On the proofing of witnesses, the judge ordered that the prosecution should decide on a method which disclosed to the defence the ‘unrefreshed memory’ of all witnesses. Justice Blue adjourned proceedings and invited the parties to discuss which witnesses might be called.
Whenever I received a call from Marie Shaw I paid close attention. She would always remind me what she was about to say was confidential. The call I received on 12 November was a special one. She was ringing to tell me, out of courtesy, and in confidence, there would be a statement made about the case by the DPP the following day. Friday the 13th – I knew this was going to be big. Whatever way it went, this was something really, really important. It’s a tantalising feeling to be in possession of information few others have, and which you know will be of enormous significance. Still, I’d been given the benefit of a heads-up and it had my mind racing. I rang Henry, who was already aware there was to be an announcement. It didn’t take long for other media to learn something significant was about to happen.
Around 2 pm on 13 November 2015 the media began to gather in numbers on the pavement outside the Supreme Court. A directions hearing was scheduled for 2.15 pm. These hearings are closed to all but the direct parties. The wait was not a long one. The lawyers from both sides trickled from the court as they might on any other day.
Adam Kimber immediately had everyone’s attention as he strode through the sliding glass doors of the Sir Samuel Way Building. He came to a halt on the pavement, the same pavement Henry Keogh had crossed on his journey that ended with 20 years behind bars. Kimber informed the hushed assembly crowding in around him, cameras at every angle, that he wouldn’t normally make a statement about decisions taken on individual cases. Given the public interest in the Keogh matter, he felt obliged to read a statement. There would be no questions.
Following the setting aside of Mr Keogh’s conviction in December 2014 he had asked that the matter be relisted for trial, because, ‘I was satisfied there was a reasonable prospect of a conviction and that a retrial was in the public interest.’53 As he came to his ultimate point, the huddle appeared to grow tighter. In May an important witness became unwell and would not be able to give evidence. He continued:
I concluded that it was not appropriate to proceed without the witness giving evidence and being cross-examined. I concluded that essential matters would not be able to be proved unless the witness was called. I came to the view that there would be no reasonable prospect of conviction without the witness. As a consequence, I discontinued the prosecution today.54
Collectively the media pack understood exactly what that meant: the trials of Henry Keogh, almost 8000 days after the death of his fiancée, were now over.
The DPP’s penultimate words were, ‘Before discontinuing the prosecution I consulted with police and members of the Cheney family.’55 And one final pronouncement: ‘I do not propose to name the witness. They are entitled to privacy in respect to their health.’56
Perhaps so, but I disagreed. After all this time, after the torment and frustration Henry Keogh had been exposed to, after so many concerted efforts to keep this house of cards standing, he should be entitled to know the identity of the one witness so critical to the DPP’s case that they could not proceed to a third trial without. In fact, so did the public, who had to fund this fiasco.
And the name of this indispensable witness? Dr Colin Henry Manock.