The report at the centre of South Australia’s scandalous miscarriage of justice in the case of Henry Keogh has finally been released, over 13 years after it was delivered by then Solicitor General Chris Kourakis (now Chief Justice) to then Acting Attorney General Kevin Foley. The report shows that Kourakis had made a disturbing, incorrect decision, which resulted in Keogh’s continued incarceration. Analysing the report, legal academic Dr Bob Moles* concludes Chief Justice Kourakis’ position is now untenable.
The report by the Solicitor-General is undated but clearly had been provided prior to the statement by the Acting Attorney-General who rejected the Keogh petition on 10 August 2006 based upon that advice.
It is clear that the opinion expressed by the Solicitor-General that a referral to the Court of Appeal by the Attorney-General would have no prospect of success was clearly incorrect. The subsequent appeal by Mr Keogh based substantially upon the same evidence that was before the Solicitor-General was in fact successful.
This is disturbing because the test which should be applied by an Attorney-General on a statutory referral application and that to be applied by the Court of Appeal are significantly different. In effect, the Attorney-General is considering an application for leave to appeal. At that stage, the applicant only has to show that his case is ‘reasonably arguable’.
If the Attorney makes the referral the Court of Appeal will have to consider the appeal. The test for the appeal itself is more demanding. At that stage it has to be shown that there has been ‘a substantial miscarriage of justice’.
So, how could the Court of Appeal find that there has been a substantial miscarriage of justice – and the Solicitor-General advise that the case is not even reasonably arguable – when they are considering substantially the same evidence?
The answer is that the Solicitor-General was applying the wrong test. He repeatedly discussed whether there was sufficient evidence to support a finding of Mr Keogh’s guilt. He repeatedly stated that he was satisfied that Mr Keogh was guilty.
“The combined weight of the circumstances are more than sufficient to prove Mr Keogh’s guilt” [para 16 SG Report] “..after considering all of the evidence I am satisfied, and advise you, that there is no reason to doubt the guilt of Mr Keogh.” [para 17 SG Report]
What he should have been considering was whether Mr Keogh had been given a fair trial.
After acknowledging that there had been significant errors in the conduct of the autopsy, and the way in which the evidence had been presented at trial, the Solicitor-General formed the view, in his advice, that the circumstantial evidence (insurance policies, affairs and lies) in conjunction with the forensic evidence as it then stood would be sufficient to support a conviction.
But the Solicitor-General should have appreciated that such considerations would be suitable for evaluation – by a jury – at a retrial. The recent High Court cases state repeatedly that it is not for the appeal courts (much less a Solicitor-General) to usurp the function of the jury. The job of the appeal court is to look back at the way in which the trial was conducted, and to ask whether any errors which may have occurred could reasonably have influenced the jury in arriving at their verdict. If they could have, then the verdict must be set aside.
The Solicitor-General in his report frequently acknowledged that there had been significant errors in relation to the autopsy procedures, and the way in which inferences as to the cause of death had been arrived at by Dr Manock. For example, the investigation as to other possible causes of death was woefully inadequate, and many of the inferences drawn by Dr Manock were without scientific support. As the Court of Appeal subsequently stated, Dr Manock had misled the jury, the court, the prosecution and defence counsel and the findings in relation to them had ‘changed the evidential landscape’.
In the proceedings before the Medical Board Dr Manock had actually recanted on significant aspects of the evidence he had given at trial. For example, whether the assailant had used a left hand or a right hand to grip the leg, or whether it could be said that the victim had been conscious at the time of the alleged drowning. The Court of Appeal subsequently accepted that those factors alone would justify the verdict being set aside as they placed the autopsy ‘in an entirely new light’.
Yet, the Solicitor-General had taken the view that those factors did not provide even a reasonably arguable case for the conviction to be reconsidered by the Court of Appeal.
It is a matter of grave concern that the forensic pathology report which was furnished to the Solicitor-General by Professor Vernon-Roberts was not even disclosed by him to Mr Keogh’s lawyers as it clearly should have been. The Court of Appeal acknowledged that it had been received by the Solicitor-General (in 2004) when considering his advice, but had not been disclosed to Mr Keogh’s legal team until 2013 when he applied under the new right of appeal. That was a disgraceful lapse in the duty of disclosure by the Crown, yet the duty to disclose was not mentioned by the Solicitor-General in his advice.
In addition, a further test (the haemosiderin test) was recommended by the Professor. Permission for that test was not given by the Solicitor-General. When it was subsequently undertaken on the instructions of the Court of Appeal, the results had a profound affect upon the consideration of the case. It showed that the bruising to the leg had occurred long before the night in question. The reasons for the Solicitor-General not granting that permission should be obtained.
The fact that the advice by the Solicitor-General and the subsequent findings of the Court of Appeal differ so markedly in the legal principles they applied to the consideration of this case give rise to grave concern. If the assessment by the Solicitor-General could have been so much at odds with the findings of the Court of Appeal, have there been other cases in which similar differences have occurred?
How is it possible that the Solicitor-General could have made such errors in his assessment of such an important case – especially when the correct legal principles have been so clearly established in High Court appeals which were obviously well known at that time?
Why was the report of the Solicitor-General not released earlier, when it was clear that the legal principles governing legal privilege were also well known and clearly favoured such release?
The Solicitor-General made it clear in his report that the circumstantial evidence along with the forensic evidence which remained clearly justified a finding that Mr Keogh was guilty of this terrible crime. If that were so, then after his successful appeal he would have been retried and found guilty. The fact that Dr Manock was not available to give evidence should not be determinative. Other experts could have come forward to explain the significance of his findings if they had been properly recorded. The fact that the DPP entered a nolle prosequi establishes conclusively that there was not in fact sufficient evidence to proceed to a further retrial.
The fact that Dr Manock’s evidence was not in fact admissible at all, because he was not qualified as an expert, had been acknowledged by the state in legal proceedings which delivered the judgment on his case in 1978. Curiously, the Solicitor-General did not make mention of that important issue.
The consequences of the advice given by the Solicitor-General could not have been more severe. Mr Keogh was denied the opportunity to put his case to the court where all of the factors could have been openly canvassed. If the new right of appeal had not been established, then Mr Keogh would never have had his case reviewed. The consequence of that is that he would have remained in prison for the rest of his life – it being a principle of parole applications in this state that applicants must admit guilt before being allowed to proceed. Such is the case of Mr Bromley.
In Canada and in the UK it is clearly established practice that the reasons for the rejection of an application for a review of a potential wrongful conviction are made available to the applicant at both draft and final stages. Yet here, it had to take years of legal wrangling to not only obtain the reasons for the rejection of this application, but also the evidence upon which it was based.
There has clearly been a fundamental failure of due process and the rule of law in this case. An independent judicial inquiry should be established to determine the reasons for the discrepancy between the reasoning of the Solicitor-General and that of the Court of Appeal here.
Now that Mr Kourakis has been elevated to the position of Chief Justice in South Australia, he has an obligation to maintain the integrity of the judicial system in South Australia. So, does he accept that the Court of Appeal on Mr Keogh’s appeal was correct to overturn the conviction? If so, he must accept that his decision not to refer the matter to the Court of Appeal was wrong. If he maintains that his position was correct, then by implication he is saying that the Court of Appeal decision was wrong. That is not a tenable position for a Chief Justice.
* Dr Bob Moles, Adjunct Principal Researcher, College of Humanities, Arts and Social Sciences, Flinders University of South Australia, has consulted on the Keogh case for several years.