When he was South Australia’s Solicitor General (2003 – 2008), Chris Kourakis made “a disturbing, incorrect decision, which resulted in [Henry] Keogh’s continued incarceration,” wrote Adelade University legal academic Bob Moles. In fact it cost Keogh 10 more years in prison … until his acquittal in December 2014.
When Henry Keogh walked out of jail just in time for Christmas 2014, he had served 10 extra years in prison because new forensic evidence that would have cleared him of murder was kept from him in 2004. “Detailed criticisms of the autopsy were specifically identified by Professor Vernon-Roberts in 2004. This information was not known by defence counsel until late 2013 when it was made available to them,” according to the Appeals Court judgement.
In what was a wholly circumstantial case, the prosecution had argued that Henry Keogh murdered Anna-Jane Cheney by grabbing her by the ankle as she was lying in the bath, forcing her head under water. Forensic pathologist Dr Colin Manock gave evidence that marks on her legs were grip marks that supported the prosecution’s speculation (or drove it).
The possible presence of haemosiderin was first identified in the 2004 report of Barrie Vernon-Roberts. Tissue taken from a lesion on the medial aspect of Cheney’s left leg contained haemosiderin. As a consequence, if the possible lesion was in fact a bruise, the conclusion could be safely drawn that it had been sustained at least 24 hours before death. “The consequence of such a finding is that Dr Manock’s opinion as to the mechanism of murder is materially undermined.”
The 2004 Kourakis report had been the basis of the former Labor Government’s decision to reject a petition for mercy by Keogh, this despite the fact that it included that vital finding by the state’s then head of pathology, Barrie Vernon-Roberts, which was in fact exculpatory, upending Dr Colin Manock’s erroneous forensic testimony that put Keogh in jail. Indeed, this information was the basis for Keogh’s successful appeal in 2013/4.
The contents of the Kourakis report – and why it had not been revealed – had been sought years ago, by then Attorney General, The Hon Vickie Chapman, when she was Deputy Leader of the Opposition. Her many attempts to find out why the exculpatory information was not revealed to Keogh were all left unanswered.
After Kourakis became Chief Justice of South Australia, Bob Moles concluded that his position “is now untenable”. He was Chief Justice from 2012 to February 2026, when he was appointed to his current position as Royal Commissioner into corruption in the Victorian building industry.
There is another legal issue here that I think deserves attention because it goes beyond the question of whether the Kourakis advice was right or wrong.
The really important question is what happens when material obtained by the Crown in the course of considering a petition for mercy contains information capable of undermining the conviction itself.
The Vernon-Roberts report was obtained by the then Solicitor-General in the course of advising the Attorney-General on Keogh’s petition. Yet it contained a finding capable of materially undermining the prosecution’s forensic case. That report was not disclosed to Keogh’s lawyers until 2013, and it subsequently became important to the successful second appeal.
That raises a difficult legal distinction between legal professional privilege attaching to government legal advice and the Crown’s obligation to disclose material that may assist an accused.
The later South Australian courts were quite clear about the breadth of the prosecution’s disclosure obligation. In the subsequent Keogh proceedings, Blue J stated that the prosecution’s duty includes material that tends to weaken the prosecution case or assist the defence, and that the obligation can require reasonable inquiries rather than being confined simply to material already sitting in the prosecutor’s file.
The interesting question, therefore, is not simply whether Kourakis’s advice was legally correct. It is whether the fact that the material came into existence during a mercy process, rather than during the original prosecution or appeal, created a legal blind spot in which potentially exculpatory material could remain outside the ordinary disclosure process.
There is an additional twist. The legal professional privilege attaching to Kourakis’s advice itself became the subject of later litigation. The South Australian Ombudsman ultimately determined that privilege had been waived following the Acting Attorney-General’s public disclosure of details of the advice, and that decision was subsequently considered by the Supreme Court.
That makes the Keogh case particularly significant from a rule-of-law perspective. It is not merely a question of whether an individual made a bad decision. It raises the much broader question of whether the legal system had an adequate mechanism to ensure that material capable of demonstrating a miscarriage of justice could not remain hidden simply because it was obtained while government was considering a petition for mercy.
And that, arguably, is one of the most important legal lessons to come out of Keogh.
Yes, this analysis seems correct. Withholding of the exculpatory information in the process of the Solicitor General’s advice to the Attorney-General re the Appeal actually prevented Keogh’s exoneration.
Kourakis is from a well known family of Greek communists and leftists in Pt Lincoln. He knows how to deliver the result wanted by Labor party operatives in Vic.
People should be jailed for this miscarriage of justice
FYI – If the withholding of the report was deliberate and the information was material to a prisoner’s appeal or petition, later discovery can support professional-misconduct proceedings under the Legal Practitioners Act 1981 (SA), an integrity investigation — ICAC where the conduct is a corruption offence, otherwise the Ombudsman — removal from office, and a criminal charge of attempting to pervert the course of justice only if that intent is proved.