Keogh v The Queen A5/1996 [1997] HCATrans 313 (3 October 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A5 of 1996 and No A31 of 1997

B e t w e e n -

HENRY VINCENT KEOGH

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

BRENNAN CJ

TOOHEY J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 3 OCTOBER 1997, AT 9.30 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC: If the Court pleases, I appear for the applicant with my learned friend, MR S.J. ODGERS. (instructed by Sykes Bidstrup)

MR P.J.L. ROFE, QC: If the Court pleases, I appear with my learned friend, MS R.C. GRAY, for the respondent. (instructed by the Director of Public Prosecutions (South Australia))

MR GAME: If the Court pleases, there are before the Court two applications for special leave. The first relates to the initial judgment of the Court of Criminal Appeal and it raises, in particular, the question concerning how the court dealt with the submission relating to the question whether or not the verdict was unsafe and unsatisfactory. That question, in turn, resolves into an examination of the forensic evidence and, in particular, that of Dr Manock.

The second application relates to the application that was made to the court to reopen the appeal after the application for special leave had been filed but before the special leave application had been heard. That application, in turn, relates to a series of events following the handing down of a decision by the Coroner two days after the verdict in this case in which, to say the least, extremely adverse findings were made in relation to Dr Manock.

TOOHEY J: Is that correct, Mr Game? In fact one of the things that rather puzzled me about the application book was that there is no record of the findings of that inquest.

MR GAME: The findings of the inquest are an exhibit to the documents which have been filed in this Court with the Coroner's findings but they are not in the application book because they take some 80 pages or so. But we have summarised, in the petition, the particular matters which we say emerge from the Coroner's findings and that does appear in the application book.

TOOHEY J: That is not quite what I was putting to you; not what might emerge from the Coroner's findings so much as whether there were findings that particularly bore upon the evidence of Dr Manock.

MR GAME: Yes, your Honour, there were findings and the findings, in effect - as I said, the findings appear - we have summarised, at page 235, the critical findings that were made by the Coroner, namely, that in relation to the three inquests, he failed to make observations that should have been made; saw things that were not there - - -

TOOHEY J: Just a moment, before you leave that. That is expressed in terms that what was put by counsel assisting the Coroner, is that right?

MR GAME: Yes, but the Coroner found, at page 236, that his:

finding as to the cause of death.....was unsustainable.

That he:

failed to carry out routine examinations -

and those examinations included the very kind of examinations that we are concerned with in this case including histological examinations. So, they go to the very same type of questions. It is "opinions as to the likely mechanism for the cause of injuries", likewise, his opinion as to the cause of injuries lies at the very heart of this case because it was his theory as to the mechanism of how the death occurred which really lay at the heart of the Crown case as it was ultimately presented and, in particular, as the Court of Criminal Appeal ultimately determined.

TOOHEY J: Would any of this assist you in relation to the first application were this question was not advanced?

MR GAME: Yes, your Honour, all of it was.

TOOHEY J: What, under the general heading of "unsafeness"?

MR GAME: Your Honour, it would all assist us as fresh evidence before the first Court of Criminal Appeal had it been raised on the appeal.

BRENNAN CJ: But it was not, was it?

MR GAME: It was not raised, that is true.

BRENNAN CJ: We have to decide what the first court should have done.

MR GAME: Your Honour, we submit that the decision of counsel not to use the material on the appeal was an incompetent decision. We submit that counsel failed to appreciate the significance of the material and that is clear from the affidavit of Michael Sykes. We submit that the material could be utilised in three distinct ways: one, as to credit; two, as to whether or not he had the expertise he said that he had; and, three, there is a line of cases which says, in effect, you can use the evidence as similar fact evidence to show that the doctor has conducted himself in a particular way in other cases.

TOOHEY J: That overlooks the fact that the criticisms that were being advanced of the doctor during the inquest were actually canvassed between the applicant and his legal advisers not only before the appeal to the Court of Criminal Appeal but actually during the conduct of the trial itself.

MR GAME: Yes, and his lawyers told him that it was of no significance.

BRENNAN CJ: On that basis, we should grant special leave?

MR GAME: No, your Honour, the application was made - one of my arguments relates to the first court. One of my arguments relates to the failure of the first court to address the medical controversy that was before it. Your Honour, what I say about it is this: firstly, what, in effect, has happened to this applicant is he has fallen between a series of different stools, in effect. His lawyers have incompetently failed to advise him on the importance of the material. The Crown has failed in its obligation to inquire and put the material to the defence. We submit it is quite unrealistic to assume that in days of legal aid constraints that the defence would, in effect, have somebody running an inquiry in relation to what was going on in the coronial inquest.

TOOHEY J: No, but that, with respect, misses the point a bit because the applicant says, on page 275, in paragraph 3 of his affidavit, that this matter was, in fact, canvassed. He uses the expression:

the criticism apparently being made, according to the press reports, of Dr Colin Manock in the Coroner's inquiry.

So, it was a matter not only of public record, but a matter which had come to the attention of the applicant and his legal advisers.

MR GAME: Yes, your Honour. I would make two points about that. Firstly, what is going on in the press is one thing. The findings that bring it all together is an entirely different thing.

TOOHEY J: The findings were not known until after the trial had been concluded.

MR GAME: Yes. That is the first thing. The second thing is, he says, on page 276:

I was given to understand from that advice that the Finding would not assist my case any further.

TOOHEY J: Yes, I understand what you are saying. You are putting it on the basis of incompetent advice, but all I am drawing to your attention is that this was not something, as it were, that came out of the woodwork subsequently. It was known during the trial; the findings of the Coroner had been delivered after the verdict but before the appeal to the Court of Criminal Appeal, and the matter was simply not raised before the Court of Criminal Appeal.

MR GAME: That is true, your Honour. The system is an adversary system and the system assumes that those on either side will properly represent their interests and we submit that in this case both sides failed in their duties.

I am really dealing with the second application first because I have some submissions about the first but the Court of Criminal Appeal, on the application to reopen, treated the matter as being an incompetent appeal. Now, we submit that that in itself is in legal error. We submit that there are so many exceptions to the principle in Grierson, and we wish to ventilate whether or not Grierson should in fact be followed. There are now conflicting decisions in different States. Lapa, in this State, treats the question as being whether or not there has been a miscarriage of justice, giving full regard to the principle of finality. Allen in Queensland has gone behind the principle in Grierson in a case where a ground of appeal was overlooked by an unrepresented accused. So that there are conflicting authorities between the States.

BRENNAN CJ: You had better show us those.

MR GAME: Yes, your Honour. Lapa 80 A Crim R 398 at 405, is in the bundle of cases, and if I could take the Court to the long paragraph:

For my part there are two considerations which lead me to conclude that, accepting that the power of the court to vary a judgment cannot be enlivened, absent any relevant rule.....considering the matter. The fundamental consideration which should determine whether a court of criminal appeal should reconsider its judgment is whether the failure to do so might lead to a miscarriage of justice. To put it another way - - -

BRENNAN CJ: But you have left out the relevant part, have you not:

after the judgment has been perfected it does have power to remedy an oversight - - -

MR GAME: Yes, sorry:

it does have power to remedy an oversight where application is made before that has occurred, notwithstanding that the judgment is perfected while the court is considering the matter.

BRENNAN CJ: That is "accepting that the power".

MR GAME: Yes, but his Honour said elsewhere that he was not prepared to regard the fact that it was perfected as being necessarily determinative of the matter at all.

BRENNAN CJ: Where does he say that?

MR GAME: I will just pick that up, your Honour. I thought it was in that passage. I am sorry, I cannot find the passage but, in any event, even on that passage there what he is saying is that even though the judgment was perfected after the argument but before the judgment was delivered - - -

HAYNE J:

where application is made before -

and that is not this case, is it?

MR GAME: That is not this case, your Honour. But if you accept that exception, then it cannot be a question of power.

BRENNAN CJ: Where are the conflicting decisions?

MR GAME: The other case is the Queensland case of Allen (1991) 1 Qd R 526. Now, in that case the Chief Justice dissented but in that case the court dismissed the appeal. After the appeal was dismissed the court reserved its reasons and then realised that there was a ground of appeal which had not been argued which would lead to the upholding of the appeal. In that case the court concluded that it had power to reopen the appeal. It is in the judgment of Justice Dowsett at pages 329 to 330.

The analogy is drawn from the civil cases with particular reference to the slip rule. We would make the submission, also drawing from the civil cases, that when one looks at cases such as De L v The Director-General, that the power to reopen in civil cases is now accepted in exceptional circumstances; that it requires an analysis of the particular content of any particular case to determine whether or not the court should reopen.

Just going back to Lapa, it cannot be a question of power if the court has power to reopen - if the order is finalised before the judgment of the court is given. Now, the Victorian case of McNamara applies Grierson, the South Australian cases of Oliverio and the decision in this case apply Grierson. The case of Pantorno acknowledges a power to reopen in circumstances where there has been a denial of natural justice even, it would seem, if the order has been perfected. Now, we submit that once one acknowledges that exception, it cannot be a question of power. We submit that what has occurred in this case bears a close analogy to a denial of natural justice.

The ultimate question in a criminal appeal is whether or not there has been a miscarriage of justice. One demonstrates a miscarriage of justice in a criminal appeal by, in the particular instance, demonstrating that there has been a denial of natural justice.

Grierson itself relied upon the civil cases and the civil cases have gone a long way since then. So, we submit that it would be appropriate for the Court to reconsider the decision in Grierson and to consider what the nature and extent of the exceptions are. We would urge upon the Court the good sense of the observation made by Lord Atkin in 1934 that "finality is a good thing but justice is a better".

Now, in this case, if there is no power of this court to receive fresh evidence, if there is no enforceable obligation upon the executive to give reasons for the refusal to refer the petition back to court, if there is no curial examination of that process, if there is no process under section 369 of the Criminal Law Consolidation Act 1903 in South Australia by which the matter can directly go to court, then there is no curial process by which the importance of those matters going to Dr Manock's ultimately demonstrated incompetence, there is no way that that can be reviewed or examined in any court.

BRENNAN CJ: Mr Game, the issues that you say this evidence would go to must surely have been at the heart of the controversy at the trial.

MR GAME: They were, your Honour.

BRENNAN CJ: Issues at the heart of the controversy, evidence called from four witnesses.

MR GAME: Yes, your Honour.

BRENNAN CJ: A decision taken on the Court of Appeal not to raise this issue.

MR GAME: Yes, your Honour.

BRENNAN CJ: And you say that on that basis we should grant special leave in order to reconsider Grierson?

MR GAME: Yes, your Honour.

BRENNAN CJ: I mean, it is scarcely an attractive vehicle, is it?

MR GAME: Your Honour, my time is up, but I have not even - - -

BRENNAN CJ: No, your time is not up yet.

MR GAME: Your Honour, I have not even addressed the Court in relation to the serious problems that we say exist with the way in which the court dealt with the submission that the verdict was unsafe and unsatisfactory. If I could turn to that, because we say that that in itself raises the significant and important issues that the court failed to examine the medical evidence in the way that it was required to do, having regard to the decision in Chamberlain v The Queen, that it ultimately relied upon evidence which it should not have relied upon, coming from Dr Manock.

Now, if I could take the Court - as I said, and I am sorry, this part of the case itself raises complex issues that require analysis of what was said by the medical witnesses in that case because we say that the court failed to appreciate the nature of the controversy between the defence witnesses and the prosecution witnesses and, in fact, did not examine the controversy. If I could go firstly to page 215, firstly the reference to the evidence of Dr Manock who was said to have done 9,000 autopsies.

Then there were two aspects of his evidence that are referred to on page 216. Firstly, he was of the view that the bruises were consistent with a hand print. Now, this was an aspect of his evidence which was - the defence witnesses said that is possible but they said all sorts of other things are possible and ultimately their concession that it was a possibility was no more than the medical concession as to the inevitable- I think I have found that quote from Lapa that I was looking for, if I could come back to that in a minute, your Honours. In Lapa, the passage I was looking for was at page 403 where his Honour doubted that the taking out of the order should affect the rights of the parties so drastically:

by the administrative actions of a court officer?

That is at page 403, point 8, and that is the passage that I was looking for. I should say that in New South Wales since Lapa and in cases such as Reid - there have been others - the question has been treated as one as to whether or not a miscarriage of justice has been demonstrated. So that in New South Wales, as a practical day-to-day matter, since Lapa the principles have been considerably relaxed.

BRENNAN CJ: You have a few more minutes.

MR GAME: Yes, your Honour. Firstly, the bruises - what the doctor said was that they were consistent with a hand print. Now, he gave a second opinion. He expressed a theory as to the mechanism by which the death occurred. This ultimately came to be treated as a very significant piece of evidence in the case. I mean, in effect, it became a strong circumstantial fact in the case which put together the combination of the different bruises and gave them sense. Objection was taken in the first trial to this evidence - was before the same judge - and although it is not essential for this case, we say that it should never have been admitted but we say that the Court of Criminal Appeal should have put it to one side.

HAYNE J: Is not all this essentially the question or a question that the jury had to consider? What is the point of principle that you wish to elicit from it?

MR GAME: There is a point of principle, firstly, with respect to whether or not any weight should be given to speculative theories of this kind and that is a matter of considerable importance because what it is is speculation mounted upon supposition and in circumstances where the experts questioned each of the assumptions along the way, including the very findings upon which it was based.

TOOHEY J: But that is commonplace in a way, is it not? An orthodox method of cross-examination of expert witnesses is to take the assumptions upon which the opinion is based and seek to destroy those assumptions.

MR GAME: Yes, your Honour, except that when the Court of Criminal Appeal carries out its function - and all we say the Court of Criminal Appeal ultimately did appears at page 225. All it did was to say that:

Bruising found on the deceased.....pointed to the modus operandi demonstrated by Dr Manock.

It did not and there is an important ellipses there because all that was said was that it was consistent, and this is the heart of the reasoning of the decision. Secondly, it is said that:

The opinions of Drs Manock and James supported such a modus operandi -

Dr James did not even comment on it. And then it said:

neither Dr Ansford nor Professor Cordner rejected it.

Well, they both did reject it. Now, the point is that the court has failed to conduct the examination that is required of it.

If I could say this, your Honours: section 35A(b) of the Judiciary Act contemplates cases where the administration of justice requires that the Court grant special leave. This case is probably the most notorious case that has been in South Australia for maybe 50 years. The controversy relating to the evidence of Dr Manock will not be put to rest until such time as there is some curial examination of it. We would submit that having regard to the unsatisfactory way in which the Court of Criminal Appeal has dealt with this aspect of the case, coupled with what has subsequently occurred, and the fact that the appellant himself has made no reasoned decision upon what he would do, we would submit that it is appropriate for the Court to grant special leave.

TOOHEY J: What is the fate of the petition if special leave to appeal were refused?

MR GAME: The petition has been dismissed; has been rejected. He could make another application but there is nothing to suggest that the application would be supported. More importantly, as I have said before, no reasons are given; none can be compelled, so he is left with no remedy whatsoever in relation to this question. He is entirely reliant on the executive and our very argument is that what this requires is some mode of curial examination.

BRENNAN CJ: I think you have probably exhausted your time, Mr Game. Mr Rofe, we only want to hear from you on the question of whether the Court of Criminal Appeal misdirected itself or misconceived the situation in relation to the medical evidence on the hearing of the first application.

MR ROFE: If the Court pleases. The situation at trial was that whilst Dr Manock was the pathologist who performed the post-mortem on the deceased and took photographs, made observations with notes, the Crown also called Dr James, who was the other government pathologist who disagreed with Dr Manock on one aspect, namely, whether a loss of consciousness due to a blow on the head would produce physical signs. The defence called two pathologists, Dr Cordner from Victoria and Professor Ansford from Queensland.

The case then, as was presented, the pathology evidence was part of the circumstantial case but it was clearly not, although a conclusive part, as the judge said in his summing up, and that is reproduced in my summary of argument at pages 308 and 309, with the references back to the earlier passages in the application book, the pathology evidence was just one part of the circumstantial case which included, amongst other things, forged insurance policies totalling over $1 million, his relationship with two other women at the time, and statements he made subsequent to the death in relation to those insurance policies to members of the deceased - - -

BRENNAN CJ: Yes, but if you address what was said at page 225 and say whether that was a misconception of him.

MR ROFE: I am sorry, your Honour.

HAYNE J: Your contention apparently being, at 308:

All three -

pathologists -

conceded the possibility that death could have occurred in the manner described by Dr Manock.

Is that right?

MR ROFE: That is right. So, it became simply a question of possibilities and what the court said at page 225, that:

Bruising found on the deceased.....pointed to the modus operandi demonstrated by Dr Manock -

was correct. That was the basis of his opinion that death was caused in a manner by grabbing the leg of the deceased and - - -

BRENNAN CJ: Is that correct in relation to Dr James?

MR ROFE: It is correct then in relation to - Dr James thought that a likely possibility to explain the positioning of the bruising on the leg of the deceased, and both Professor Cordner and Dr Ansford conceded the possibility that it could have occurred that way and simply raise for the consideration of the jury other ways in which the bruising may have occurred. So, in that sense the approach of the Court of Criminal Appeal, in my submission, was correct.

BRENNAN CJ: Have you any access to transcript in relation to Dr James' evidence?

MR ROFE: No, I am afraid I do not. My friend has referred to the summary that they produced which is contained from pages 250, annexure C, as it is called, through to 272. Dr James, page 250 of the application book, the bruising on the left shin.

TOOHEY J: Dr Manock was the only medical witness who actually saw the deceased.

MR ROFE: That is so, your Honour.

TOOHEY J: And there seems to have been some problem with the photographs in relation to the bruise that Mr Game has spoken of. When I say "some problem", not a particularly clear photograph, it would seem.

MR ROFE: There were clear photographs of three - bruising on the outer aspect of the left leg consistent, on all accounts, with fingermarks. The bruising that there was not a photograph of or was produced later in the trial was of a corresponding bruise on the inner aspect which Dr Manock said, in his opinion, corresponded with a thumb pressure mark, and that lead him to the opinion.

The evidence of the other three pathologists - Dr James falling somewhere in between Dr Manock and the two defence pathologists - was whilst they conceded the possibility, said there are other explanations for that: a fall, bumping your leg against any sort of object. So, I would have to rely, in answer to your Honour the Chief Justice's question, on those summaries that are reproduced at 250 to 254.

HAYNE J: I wonder whether you may not also take some comfort from the accused's address at page 66 of the application book, lines 20 and following. At least, at first blush, it appeared to me that the accused addressed on the basis that the medical evidence was to the general effect as described by a fall.

MR ROFE: I thank your Honour for that reference. That was certainly the way the trial was conducted on competing possibilities with four experts at varying levels of confidence in varying theories that were advanced. All of them acknowledged the fact it was most unusual for a fit, healthy 27-year-old person to drown in a bath as a result of anything other than some intervening force, either the way the Crown put it or as the defence put it, "a slip and a fall", and that really came down to the contest as to the pathology evidence. The prosecution position was simply that is one item of circumstantial evidence, and when you look at it in the context of forged insurance policies for over $1 million, his relationship with other women at the time, and demonstrable untruths that he told subsequent to the death to members of the deceased's family in relation to the insurance policies, it took the reasoning process to beyond reasonable doubt. But the pathology in itself was - it was always the Crown contention could not prove the case in isolation.

So, in my submission, the Court of Criminal Appeal, on the first appeal, did perform their function as required by M and did do an independent assessment and came to the right conclusion that there was no reason to apprehend a miscarriage of justice in respect of it or that a jury should have entertained a reasonable doubt on the evidence as presented. If the Court pleases.

BRENNAN CJ: Mr Game.

MR GAME: Firstly, at page 66, in my submission, the Crown can take little comfort from what defence counsel said because he questioned whether or not you could:

say beyond reasonable doubt that that is consistent with a grip mark -

Dr Ansford says he has - - -

HAYNE J: "grip mark at the exclusion of everything else?"

MR GAME: "at the exclusion of everything else", I beg your pardon, your Honour.

Dr Ansford says he has a problem with it. Dr Cordner says it could be either.

If you look at the summary of what Dr Cordner said, at page 251:

I don't have any difficulty in thinking that there might be accidental explanations for that number and distribution of bruises.

Now, it was the defence case, and it was Dr Cordner's evidence that the bruising was - and the defence counsel, in fact, put to the jury that what it was was "bruising consistent with the fitting involved with dying." Now, there is nowhere in the Court of Criminal Appeal's judgment that that argument is addressed.

Moreover, my friend says it was only part of the case, but he put the case to the jury on the basis that it was conclusive. He said:

if that is a grip mark, it is almost in itself conclusive, providing you accept that it was applied at or about the time of death.

That appears in the summary at page 251. Now, it is perfectly clear that both Dr Ansford and Dr Cordner were accepting a theoretical possibility in saying there were other possibilities. It does not take the case anywhere in terms of circumstantial evidence to say that it is possibly a grip mark. It has to be something more.

Dr Manock himself only said that it was consistent and, as I said, the Court of Criminal Appeal's - with respect, my friend, the Crown Prosecutor, according to my reading of the transcript, wrongly quoted Dr Manock at page 254 when he said:

"that is consistent with a grip mark and I can't think of anything else it could be".

I cannot find that anywhere in the transcript. All he said was that it was "consistent with".

TOOHEY J: Mr Game, if you look at the passage on page 308 which is a passage from the trial judge's direction to the jury, the pathology evidence is not put at the forefront of the Crown case. The trial judge says to the jury:

it is accepted on both sides.....that the pathology evidence, by itself, does not solve this case for you.

It is hard to see it as being critical to the conviction of the applicant, at least on the basis of what the jury were told.

MR GAME: Your Honour, the two other strands to the Crown case where the relationship evidence and that was not put as motive evidence, although the Court of Criminal Appeal treated it as such, (a); and (b), the insurance policies. Now, without establishing that there was a deliberate grip mark to the leg, it is difficult to see how you could be satisfied beyond reasonable doubt that this was a deliberate killing by the accused. But, in any event, the Court of Criminal Appeal treated the question as being one - in effect, they said "the bruising pointed to the modus operandi." That is the problem with their reasoning.

The other point I was going to make related to the theory. The theory is, in substance, accepted (a) as a hypothetical possibility by the defence witnesses. It is rejected. Dr Cordner was saying, in effect, it should not have been expressed. So, in our submission, one cannot really dispose of the case by, in effect, reducing the significance of the evidence to the case.

With respect to the question that your Honour Justice Toohey asked: that bruise to the left leg was only mentioned in the course of the second - there was an assertion that it was observed but it was only mentioned in the course of the second - the photo was only produced and it is a photo of the other shin and that tiny little blot there is the only real evidence that such a bruise existed. That is on the inner side of the left shin. So, the Court of Criminal Appeal has not even addressed those problems or each of the problems relating to the stages involved in the process.

TOOHEY J: But they were problems that the medical witnesses were alive to.

MR GAME: Yes, your Honour, and they addressed.

BRENNAN CJ: The application for special leave to appeal against the first judgment depends on an alleged failure by the Court of Criminal Appeal to address fresh evidence that was not advanced before that court. It was a conscious decision on the part of counsel for the applicant not to advance that evidence. The fact that it is now submitted that counsel was in error is no ground for the grant of special leave.

The argument that the Court of Criminal Appeal did not properly consider whether the verdict was unsafe and unsatisfactory does not present any issue of general public importance that would warrant a grant of special leave. Nor are we satisfied that there is any reason to grant special leave under paragraph (b) of section 35Aof the Judiciary Act (Cth).

The application for special leave to appeal against the second judgment is said to warrant a reconsideration of Grierson v The King [1938] HCA 45; (1938) 60 CLR 431. Even if it were desirable to grant special leave to reconsider Grierson, the nature of the fresh evidence that the applicant seeks to tender shows that this case is not a suitable vehicle for the grant of special leave. For these reasons, special leave will be refused in respect of both matters.

AT 10.11 AM THE MATTER WAS CONCLUDED