Keogh free: Royal Commission needed

Henry Keogh and daughter Alexis as he walks from the court just before Christmas 2014, free for the first time in nearly 20 years. (SBS TV)

Henry Keogh and Anna-Jane Cheney, about 1993 (photo supplied)

Alexis Keogh and Henry Keogh, taken in Yatala Prison, Adelaide, in 2010 (supplied).

The Keogh case in SA will eventually produce rather major changes in the legal system around Australia, starting with Tassie in 2015, we expect. This article refers this Tasmanian Times article, here. Keogh has been freed under the new Right To Appeal law that Tas AG Vanessa Goodwin has promised will be introduced in Tas in 2015. She has apparently been waiting for the final, formal words of the ruling on the Keogh case to help determine the precise words of the Right To Appeal legislation in Tassie.

Shortly after 4pm on Monday December 22, 2014, an innocent man walked free from the Supreme Court in Adelaide after nearly 20 years in jail.

Henry Keogh’s conviction for murdering Anna-Jane Cheney had been set aside by the Court of Criminal Appeal in South Australia.

Keogh’s bail application was not opposed by the state: he walked out of the court as a free man, presumed innocent.

The SA Court of Criminal Appeal ruling allows for the possibility of a retrial, but it is virtually impossible for that to occur, given that the two principle witnesses for the prosecution said during the recent appeal process that the forensic evidence was inconsistent with a murder hypothesis.

In other words, there never was a murder. No crime was committed.

A man has served nearly 20 years in jail because of bad forensic science.

Keogh’s is the first case in Australia to get into court after passage of a new, breakthrough “Right To Appeal” (R2A) law in South Australia* in mid-2013. Before the R2A law, prisoners who had been convicted, then had a second chance at a Supreme Court appeal and possibly a High Court hearing as well, could only have their case reviewed if they went through an archaic “Petition for Mercy” (PfM) process. The PfM was made to the State Governor: in reality, it went to the Attorney-General to decide, becoming a political as much as a judicial issue.

At least one PfM, fully documented, sat on the desk of an Attorney-General for more than three years. In another case, it appears an Attorney-General’s “expert shopping” overseas has produced an opinion the AG chose to prefer over the opposite opinion of two Australian experts, one from the AG’s home state.

Many convicted prisoners want to, and deserve to, get a new hearing. There are usually a number of reasons why their conviction is unsafe or unsound, to use the legalese words.

• faulty or illegal police investigation (such as taking evidence statements poorly or only taking statements from preferred people, or not following up on other possibly guilty individuals);

• incompetent or illegal processes in the Department of Public Prosecutions (not disclosing all information to the defence counsel, as required by law);

• inappropriate or wrong forensic evidence in court by designated “experts” who are merely making guesses, sometimes based on science but often just on personal opinion (rapidly developing forensic techniques also frequently make more accurate assessments possible, such as in the Lindy Chamberlain dingo-took-my-baby case); and

• mistakes and inappropriate behaviour in court (wrong rulings as to evidence admissibility by the judge, inappropriate behaviour by the prosecutor, or jury misbehaviour).

The Henry Keogh case had its fair share of the above problems. Worse though, the problems were known to the state of SA for more than a decade, and the state refused to act.

There is an overwhelming case for the SA government to establish a Royal Commission into why it has taken so long to recognise the Keogh case as a miscarriage of justice, when it was so obvious at least 13 years ago (see below).

The Royal Commission, Civil Liberties Australia hopes, will morph into an inquiry into the state of justice in Australia, as illustrated by the demonstrated problems in SA. The same injustices inflicted on Henry Keogh have occurred – and are occurring today – elsewhere in Australia.

Civil Liberties Australia is calling for all arms of the legal system in Australia to actively promote a positive ‘Better Justice’ campaign for the next decade.

As a developed nation, with a refined legal system, we deserve better than we have now.

Hospitals and doctors learn from rigorous inquiries into their mistakes, as does the aviation industry when a plane crashes…but the legal/justice system rarely holds introspective inquiries and never translates any findings in one state into a better police, legal and justice system in all states and nationally.

The Henry Keogh case is just one of many cases around Australia where the establishment – politicians, judges, lawyers, forensic experts, police, academics and organisations like ours as well – have let the states and territories, and the nation, down.

Those other cases include:

• Robin David Macartney in WA, currently dying in jail of cancer with possibly only months to live, but with DNA evidence proving (according to two Australian forensic experts) that he cannot be guilty of the murder he was jailed for;

• Susan Neill-Fraser, in Tasmania, in the sixth year in Risdon Prison of an 18-year sentence for a murder she did not commit, with no body, no weapon, no admission, no eyewitness and no proof whatsoever beyond reasonable doubt that a crime was committed, or that she committed a crime;

• David Harold Eastman, recently released on bail but facing another trial in the ACT after spending about 19 years in jail, convicted on false forensic “evidence” and after information was withheld from his defence team by the prosecution.

It is fair to say there are probably at least a dozen other major cases where the wrong person has been jailed in recent years: there are cases in Victoria, NSW, Queensland, Western Australia and the Northern Territory. Estimates, admittedly rough, say that 2-3% of people jailed for the most serious crimes in Australia are possibly innocent of what they have been convicted of.

There are about 300 homicides in Australia each year: if 2% is a reasonable estimate of wrongful convictions, there are about six (6) people wrongly jailed for murder in Australia each year.

We need a better system for identifying which cases may be miscarriages, and for proving or disproving the fairness of the convictions. We need Better Justice…because what holds true at the murder and major crime level almost certainly is worse at lesser levels of the legal system, where there is not as much external monitoring and checking on how well the system is working, or not.

The Keogh case is a classic demonstration, though, of how hard it is to achieve justice. Even when it was outrageously obvious that Keogh had not had justice, the SA government failed to act, the ‘system’ closed ranks.

On 21 October 2001 – more than 13 years ago – the Adelaide legal, judicial and political establishment, including the then Attorney-General, were left in no doubt that numerous convictions involving former state forensic science head Colin Manock (left) were beyond unsound…they were dangerous. Prime amongst them was that of Henry Keogh.

Keogh has been forced to serve 13 more years in jail because the Adelaide establishment failed to act.

Excerpt from Australian TV’s ABC Four Corners program, October 2001:

Compere: Sally Neighbour But according to QC Kevin Borick, former detective Chris Patterson and law professor Bob Moles, reopening one case (the Keogh case) alone isn’t enough. They believe there’s a need for a far more sweeping review -– a review which would discomfort the legal fraternity no end.

Chris Patterson, former detective, Major Crimes, South Australian Police It seems to me that with the number of cases that have now become apparent, it creates a terribly difficult situation for the “establishment”, if I can use that word, in general because the question of verdicts, the question of investigations, are all likely to be aired and it can cause an enormous ripple and then a wave right through the establishment in South Australia as to how this could possibly happen without somebody questioning it.

Sally Neighbour Are you prepared to re-examine any of the cases where there are concerns about Dr Manock’s evidence?

Trevor Griffin (then) Attorney-General of SA Well, I don’t want it to be said that I am convinced that there is any case to be made as a result of the assertions that others are making about Dr Manock, but what I do want to, to assert is that I’ve got an open mind on all of these matters. If the proper processes are followed, if the evidence which is provided, raises a significant doubt about the safety of a verdict, of course it will be looked at. And everyone who makes applications to me as attorney-general can be assured that they will be properly looked at.

Dr Bob Moles, legal academic and justice campaigner It could lead to the reopening of a number of other cases.

Sally Neighbour Many, many cases, couldn’t it?

Dr Bob Moles Many, many cases indeed. But if that’s where we have to go, then I think that if we’re seriously concerned about the institutions of justice, then that’s where we have to go.

Sally Neighbour Dr Manock would not be interviewed and would not discuss the details of any case. So the bewildering questions about how he worked and how he reached his conclusions remain unanswered. What is clear is that there’s much more in question than one man’s competence. The much bigger question is how an entire system has let so many doubts go unresolved in so many cases for so many years.

Kevin Borick QC I think you have to lay the blame directly with the legal profession and with the judiciary. It was our responsibility to make sure something like this didn’t happen — and I include myself in the same criticism. It did happen. And now we have to put it right.

ENDS Four Corners transcript

No-one has yet had time to address the other “many, many cases” yet.

Bill Rowlings is CEO, Civil Liberties Australia. Civil Liberties Australia is actively campaigning, with Dr Bob Moles and his Networked Knowledge organisation, for the R2A law to be ‘mirrored’ in all states and territories of Australia, and federally. The Tasmanian government, through Attorney-General Dr Vanessa Goodwin, a criminologist, has already agreed to do so.

YouTube version of the Four Corners program:

Transcript:
http://netk.net.au/Media/2001-10-21-ABC4Corners.asp

See also: Today Tonight 4 July 2006:

• A really evocative article about what wrongful convictions mean to families; Alexis Keogh four years ago:

http://www.cla.asn.au/News/there-are-many-hidden-victims/