Henry Keogh retrial high bar to jump?

Writing in The ACT Bar Association Bar Bulletin, April/May 2015 edition*, Civil Liberties Australia’s Bill Rowlings explores decisions by various State DPPs, including South Australia’s Adam Kimber, who has announced a retrial of Henry Keogh for a murder which has been found to be more likely an accident by the appeals court late in 2014.

The Keogh case has more hooks and nooks than a shepherds’ convention. Cheney was 29 and head of professional conduct at the Law Society of SA when she died, so virtually all of SA’s now well-established legal establishment is “embedded” in the case…as of course are the SA Police and various forensic services.

The SA DPP, Adam Kimber, was appointed from the deputy position in April 2012. He has decided that Keogh should be re-tried.

In 2004, when considering Keogh’s third petition for mercy (5), the Solicitor-General commissioned a report by Barrie Vernon-Roberts, the then head of the Institute of Medical and Veterinary Services. This report was released to the applicant’s legal team in late 2013 in connection with the present proceeding.

In the nine years that SA legal authorities – Solicitor- General, Attorney-General, etc – had access to this report, they failed to provide it to Keogh or his defence team, and they failed to undertake a simple hemosiderin test to establish when bruises in the forensic argument had occurred.

When tested in 2014, the forensics proved that Keogh could not have been responsible for the bruising, which was alleged to be part of the method of killing by the state’s senior forensic officer, Dr Colin Manock, now retired.

In fact, in the 2014 Full Court of Criminal Appeal hearing, Manock’s evidence was blown out of the water virtually entirely. At least four eminent forensic scientists from Australia and from overseas believe
that Anna Cheney’s death was “probably” an accident. When DPP Kimber gets back before a judge, he faces the prospect of two former Crown forensic scientist witnesses being called to give evidence that no murder occurred, in their opinion, in all probability, and the death was an accident.

It is puzzling why a DPP would attempt to high jump such a significant bar.

Among the legal authorities mentioned above, who apparently failed to disclose publicly or to the defence the 2004 state-commissioned report, are the then S-G Chris Kourakis and, for some of those years, the then AG, Michael Atkinson.

Does the State of South Australian, and the legal establishment have skin in this game: you be the judge – Kourakis is now the Chief Justice of SA, and Atkinson is the Speaker of the Legislative Assembly. It is entirely possible these eminent gentlemen will be called to explain their actions, or inactions, in relation to the Keogh case between 2004 and 2013.

Oh, by the way, in the new SA trial, DPP Kimber has to go to court knowing the state’s forensic science laboratory destroyed its last remaining Keogh evidence 15 months before its own policy said it should.

* May 13, 2015: the ACT Bar Association Journal has taken down the article following complaints that it refers to current cases.

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