The Full Court of the SA Supreme Court has been hearing the landmark further right to appeal case in the Henry Keogh matter for the last two weeks. Media coverage has, unfortunately, been limited. Attached is an article from The Advertiser from 24 September 2014 reporting on the expert evidence of Victorian senior forensic pathologist, Dr Matthew Lynch. His evidence indicated that Ms Cheney likely died accidentally after fainting and hitting her head on the bath she drowned in. Dr Lynch said a drop in blood pressure caused by standing up out of hot water could have caused a fainting episode, while an abnormal heart condition had also not been excluded as a cause. He pointed out that drowning was a "diagnosis of exclusion". He also said that there was no evidence to suggest bruising reported in an autopsy report on the left leg was actually bruising. Keogh's lawyers have claimed that allegations that Keogh drowned Ms Cheney in her bathtub by grabbing her legs and lifting them up over her head could not be supported by forensic evidence.
There was a fascinating feature article in Monday's Australian (29 September 2014) entitled "Genes on the Blue Line" (online access appears only available to subscribers). The article states that police see DNA as "invaluable". It refers to the DNA Back-capture Program where police are now empowered to take DNA samples from certain previous offenders. It is said that the program has been ramped up "exponentially" this year and Police Command in NSW have made it clear that the program has assumed a higher priority since it was introduced in the State in 2007. Police argue that the program is playing a crucial role in solving crimes. A NSW senior officer has stated that since January of this year alone, the program has thrown up links to murders, attempted murders, incidents of shooting with intent, dangerous driving, multiple armed robberies, multiple sexual assaults and more than 100 break and enters. The article also refers to the NSW Police Cold Case Justice Project.
Article from the Guardian - The Grisly History of Forensics - a new book by crime writer Val McDermid
Thanks to Kris Klugman OAM, President of CLA, for forwarding me details of this riveting book review on the gruesome history of forensic science which includes reference to "Blood-sucking flies, exhumed stomachs and DNA profiling". I was fascinated by the recount of the first solving of a crime in China through the use of insects! Would love to get my hands on a copy of Washing Away of Wrongs from 1247 which was a handbook for Coroners in China. This article outlines some of the really significant forensic cases from around the world, including the Brides in the Bath (often cited in relation to the Henry Keogh case in SA), the Phantom of Heilbronn (the ultimate DNA contamination case) and the Suzanne Pilley murder in Scotland (where no body was ever found but the man was convicted using mobile phone records, CCTV video and images etc.).
I have now had the opportunity to read the introduction to Bret Christian's 2013 book Presumed Guilty: When Cops Get it Wrong and Courts Seal the Deal (Hardie Grant Books).
I thought it would be interesting to look at the origins of the term "red herring" given the term was used extensively by the Prosecution in the trial of Sue Neill-Fraser in 2010. The Prosecution throughout the case accused the Defence of introducing “red herrings” and “setting off hares” or “laying a false trail” (see, for example, see the Court Transcript at pp. 1214, 1217, 1309, 1335, 1386 and 1395, 1399-1404, 1407-1411). At page 1214 of the transcript, the trial judge stated:
When I was in Peth earlier this month lecturing on Miscarriages of Justice at ECU, I also took the opportunity to speak with Tom Percy QC and newspaperman Bret Christian. Both have been very actively involved in MoJ matters in WA. Bret was kind enough to send me an autographed copy of his recent book Presumed Guilty : When Cops Get it Wrong and the Courts Seal the Deal which was published in 2013. The book is said to be the result of a lifetime's passionate search for the truth and a groundbreaking and often confronting exploration of how and why justice can go wrong.
Highly respected Former Governor of WA, Malcolm McCusker, calls for Independent review and investigation into Rayney Murder Case
There appears to be growing unease in WA about the integrity of the WA Police investigation into the Corryn Rayney murder. The former Governor, Mr Malcolm McCusker AO QC, well known for his passion in relation to miscarriage of justice cases prior to taking up the Governor role, has now come out pubicly calling for an independent review and investigation into the police investigation. He compares the case to other high profile miscarriage of justice cases in WA (such as Mallard and the Mickelbergs) and claims that the Lloyd Rayney investigation was also a case of tunnel vision and a case with "a dangerous loss of objectivity". McCusker stated:
The red jacket has been held out by police to be a critical piece of evidence in the case against Sue Neill-Fraser, including in the 2013 60 Mins story and the feature article by Andrew Rule in the Herald Sun on 3 March 2103. It was claimed to be yet another lie by Sue Neill-Fraser. This jacket is a significant point of contention from the Defence perspective. It seems from the evidence available that a long-sleeved ski-type red jacket was drawn to the attention of Constable Plunkett around 10.10 am on the morning of 27 January 2009 on the front fence of a house on the corner of Margaret Street and Marieville Esplanade, not far from the Royal Yacht Club of Tasmania and the beach where the Four Winds dinghy was normally launched (aerial photos would show that the jacket was found 165 metres from the regular launching point).
The Flinders University Centre for Crime and Justice Policy is organising a Miscarriages of Justice Symposium from 6 to 8 November 2014 in Adelaide. See http://netk.net.au/SymposiumHome.asp. There will be a free public lecture in the city from 6.00 pm on Thursday 6 November 2014 by Professor Kent Roach from Canada. That will be followed by the one and half day symposium on Friday and Saturday 7-8 November, also within the CBD. Documentary-maker Eve Ash, who produced Shadow of Doubt on the Sue Neill-Fraser case here in Tasmania, is likely to attend with a film crew. There is a list of symposium speakers from around Australia, including Associate Professor David Hamer and Professor Gary Edmond from NSW, Professor Stephen Cordner from Victoria, Dr Kris Klugman OAM and Mr Bill Rowlings OAM from CLA in the ACT, Lynne Weathered from the Innocence Project at Griffith University in Queensland and high profile defence barrister Tom Percy QC from WA. I have also been asked to speak and my abstract is available from the Networked Knowledge link above. I will be asking what lessons have we learned 30 years on from Chamberlain. A key focus of the forum will no doubt be the further right to appeal developments, particularly given the fact that Henry Keogh's case is currently before the Full Court of the SA Supreme Court. We will be privileged to hear from Dr Bob Moles and Dr Bibi Sangha from SA on this issue.
The Adelaide Advertiser has reported on day one of the Keogh appeal which is being heard by the Full Court of the Supreme Court. An overseas expert, Professor Pounder, has told the court that the standard of the autopsy report in relation to the victim, Anna-Jane Cheney, was "very poor". The autopsy report was said to be substandard and lacking in description and detail. See http://www.adelaidenow.com.au/news/south-australia/annajane-cheney-autopsy-report-inadequate-expert-tells-court-hearing-henry-keogh-appeal/story-fni6uo1m-1227066548718. Further report here: http://www.abc.net.au/news/2014-09-22/henry-keogh-appeal-of-fiancee-murder-conviction-underway/5760794