When the death of Anna-Jane Cheney in her suburban Adelaide home hit the headlines in March 1994 I was working in Sydney as the Supervising Producer of Channel Nine’s Sunday program. Even at that distance it was clear this was a sensation touching a class of people rarely embroiled in public controversy.
The story appeared to have all the criteria necessary for ‘murder most foul’. There was the tragic death of a beautiful blonde lawyer from a well-to-do eastern suburbs family, who was highly regarded in Adelaide’s legal circles and who held a senior position with the Law Society. Drowned, it was claimed, while lying naked in her own bath. Her alleged killer was a divorced father of three, Henry Keogh, who was about to become her husband in just over five weeks’ time. He was accused of conducting at least two clandestine affairs and standing to gain over one million dollars from five secret insurance policies on which he’d forged her signature. At a glance it was a clear-cut case of love, greed, sexual betrayal and murder. Nothing more to be done but express horror at the cold-blooded calculation that led to the cruel death of a young woman with her whole life ahead of her.
But events conspired to make me take more than a quick glance. I became convinced that an error had occurred.
I have pursued the case for 13 years and produced more than 60 television stories challenging the fairness of Henry Keogh’s conviction. This was always going to be an unpopular undertaking, no matter how principled I might wish to argue it was. Family, friends and colleagues of the deceased had lost a loved one and with that comes shock, anger and despair. Grief reaches out for someone to blame. The overwhelming evidence presented publicly through the trials and the media suggested an innocent young woman with a bright future had been murdered. Her killer was judged to be the man she loved and whom she was about to marry.
The portrayal of Henry Keogh by newspapers, television and magazines was virulent. As he wrote later from prison, ‘My earliest press clippings almost had me believing I was a cross between Hannibal Lecter and David Hicks.’1
So why would anyone want to disturb the solution to such a heartless crime? That question, I hope, will be answered in these pages.
For those unfamiliar with the case, it is a long and complex one. Henry Keogh was first put on trial in February 1995 and faced a prosecution case which relied on forensic evidence to demonstrate human intervention in Anna-Jane’s death and circumstantial evidence to provide the motive. The first recital in this drama resulted in a hung jury. The encore performance began in August, and on the 23rd of that month Henry Keogh was found guilty and sentenced to life in prison.
In South Australia ‘life’ means life – after 25 years killers are entitled to apply for parole but with the implicit requirement that they accept their guilt and show contrition. For those who maintain their innocence, as Henry Keogh steadfastly has, it is an insurmountable obstacle. Even then, for Keogh the matter was not one decided by the Parole Board. Under Premier Mike Rann’s ‘law and order’ rule their recommendation to grant parole had to be ratified by the Executive Council, which included the Premier, the Attorney-General and senior cabinet ministers. Few governments see it as politically palatable to let murderers out of prison. With all his appeal opportunities exhausted, Henry’s future became a bleak cycle of sunrises and sunsets, promising nothing.
This is not an analysis of Henry Keogh the man. Until recently I had never met him, nor had I spoken to him or communicated directly with him. No contact of any kind over 13 years. It was a deliberate decision to ensure my interest could not be construed as personal rather than professional. One of the disadvantages of remaining at arm’s length for so long is the absence of a personal perspective on the key figure in the narrative. That said, in the last few months Henry’s companion of the last six years, Faye Hambour, gave me access, with his blessing, to letters he had written to her from inside prison. These provide an insight into his state of mind and personality that otherwise would have remained pure speculation. I have quoted from those letters where I felt it was helpful.
Having met Henry since his release, I sense a person who has built a protective shell around his true feelings. To survive 20 years in jail that may well have been necessary, but it was a trouble some defence mechanism for someone facing a murder trial. His emotional control didn’t fit with the public’s definition of a grieving fiancé. It was, in a way, a replay of the Lindy Chamberlain factor. None of this has any bearing on the facts of the case, but perception is the great persuader.
This book also does not present a legal analysis, but legalities are central to almost everything that’s unfolded during the past 20 years. In some instances I have nothing beyond court transcripts to rely on as I wasn’t present in the early days. My interest in this case has focused on the adequacy of our justice system and the right of everyone, regardless of guilt or innocence, to a scrupulously fair trial. Without that, we are all vulnerable. Without that, why bother with trials at all?
While the events leading to Keogh’s conviction began nearly three decades ago, the primary decade in this drama is the one between 2000 and 2010. It was a time of intense political involvement in the criminal justice system. Mike Rann, as South Australian Premier, was an adroit politician who knew exactly how to appeal to the ‘law and order gene’ in the community. He and Attorney-General Michael Atkinson knew justice could be a powerful political weapon. After all, where was the political risk in giving victims of crime a greater voice?
While it was furiously fought, the battle between populism and due process unleashed a turbulent sea that washed over the criminal justice system and seeped into the state’s politics. The Keogh case was like a cork pushing against the tide and its course cannot be understood without charting the currents flowing around it. I have attempted to provide context, which at times might seem remote.
Once a defendant is found guilty, great locks shift into place and they become increasingly difficult to undo. The built-in safeguards tighten. The community wants to believe the institutions of justice are infallible and incorruptible. All the good men and women in government or those anointed to run these instruments of power see the unfailing faith of the public as essential to social and political order. Should that falter, should cracks appear, or doubts arise, who knows what might be unleashed? It is the unstated pledge of all the good men to defend citizens against enemies at the gates. Errors, incompetence, conflicts of interest and acts of corruption are best refuted or rebuffed.
To ensure their constancy, these great edifices of public order are designed to move like glaciers. Individuals trying to change these institutions from the outside – which are difficult enough to reform from the inside – face a vastly daunting task. For a person in custody, with no money, no resources, no credibility and with limited opportunity to communicate with the outside world, the power imbalance is overwhelming.
When I began writing this, in 2011, there were almost no avenues by which a convicted person in South Australia who had exhausted the normal appeal options could have their case returned to court. Even if they were to discover new evidence capable of challenging their conviction, it was almost impossible to have it considered. The only avenue was to petition the Governor, which effectively meant appealing to the Attorney-General. That process, as practised in South Australia, has always been a political one. The Attorney-General makes determinations without any independent oversight. There is effectively no time limit for processing petitions, no chance for the public to access the reasons for decisions, which are protected by legal professional privilege, and, as a result of a Supreme Court decision in 1998,2 there’s no avenue of appeal. It confers a kind of ‘divine right’ on the Attorney-General to decide a person’s fate with the stroke of a pen. It’s a system that can be subject to abuse.
Remarkably, an alternative now exists, at least in South Australia, due to a change to Section 353A of the Criminal Law Consolidation Act 1935. It is the enduring legacy of the Henry Keogh struggle. Though it is crude and cumbersome as it stands, the amendment allows for second and subsequent appeals if there is ‘fresh and compelling evidence’ pointing to a ‘substantial miscarriage of justice’. Those who are erudite in criminal law will no doubt debate its implications, but it is by any measure an historic breakthrough that makes the herculean effort of numerous people involved in the Keogh case worthwhile. It is fitting that Henry Keogh should become the first beneficiary of this momentous change. Others have already followed.
This is not just my story, though it is told from my perspective. Nor is it the story of those who worked in their own ways to bring about change. This story belongs to those whose lives have been irrevocably altered by errors of legal processes. We will never know the number of such people. Some are yet to be given the chance to have their cases re-heard; others never will. The first happens to be Henry Keogh.
This is the story of a father stolen from his family for 20 years, daughters denied a normal upbringing and family members stigmatised by falsehoods and political opportunism. On a different day it could be the story of any one of us.