R v Van Beelen

[2016] SASCFC 32

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v VAN BEELEN

[2016] SASCFC 32

Judgment of The Honourable Chief Justice Kourakis

22 March 2016

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - HEARING OF APPEAL - PROCEDURE

PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - IN GENERAL - REASONABLE SUSPICION OF BIAS

The appellant filed an application for directions seeking an order that the Chief Justice recuse himself on the basis of apprehended bias.

The appellant has brought a second appeal against his conviction of 12 July 1973 on a count of murder.

The appellant alleged that when the Chief Justice was the Solicitor-General, he made serious errors in judgment in providing advice to the Attorney-General of South Australia in relation to Henry Keogh’s Third Petition for mercy with specific reference to the findings he made relating to the competence and reliability of Dr Manock’s professional judgments. The appellant relied on a press release made by the then Attorney-General.

Dr Manock was a forensic pathologist who gave evidence in the trials of Mr Van Beelen and Mr Keogh.

Held per Kourakis CJ, dismissing the application, declining to recuse himself:

1.    The press release of the Attorney-General is not the entirety of the advice the Solicitor-General gave;

2.    The fair minded lay observer acting reasonably would appreciate the advice to the Attorney-General was framed in the context of the material presented on the Third Petition of Mr Keogh;

3.    Even if it were shown that the Solicitor-General mistook the significance of the report in the context of the Third Petition, any error of fact in giving the advice cannot lead reasonable to an apprehension of bias;

4.    The press release itself purports to repeat an acknowledgement in the Solicitor-General’s advice that some of the criticism of Dr Manock’s conduct of the autopsy may be valid;

5.    The lay observer could not reasonably apprehend bias on the question of Dr Manock’s competence in the face of that acknowledgment.

Criminal Law Consolidation Act 1935 (SA) ss 353A, 369, referred to.
R v Keogh (No 2) (2014) 121 SASR 307; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, considered.

R v VAN BEELEN
[2016] SASCFC 32

Court of Criminal Appeal:  Kourakis CJ, Vanstone and Kelly JJ

1. KOURAKIS CJ:         Mr Van Beelen (the appellant) has brought a subsequent appeal pursuant to s 353A of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) against his conviction on 12 July 1973 on a count of murder. On 4 March 2015 the appellant filed an application for directions seeking an order that I recuse myself from the hearing of the appeal on the basis of apprehended bias. The ground on which the appellant relies is that when Solicitor-General for the State of South Australia, I made ‘serious errors of judgment in providing advice to the Attorney-General of South Australia in relation to Henry Keogh’s Third Petition for mercy with specific reference to the findings [I] made relating to the competence and reliability of Dr Manock’s professional judgments’.

2. Dr Manock is a retired forensic pathologist who gave evidence for the prosecution on Mr Van Beelen’s trial.  The primary disputes over Dr Manock’s evidence at trial were the time of death of the victim, Ms Leach, which Dr Manock estimated from the quantity and nature of her stomach contents, and whether drowning was the cause of her death.  

3. Dr Manock also gave evidence in the two trials of Henry Keogh.  On the second of those trials Mr Keogh was convicted of the murder of his fiancée Ms Cheney.  Ms Cheney’s body was found by Mr Keogh in the bath of their home.  Dr Manock’s autopsy report referred to extensive bruising he found on Ms Cheney’s body.  The timing and possible causes of those bruises were at issue in Mr Keogh’s trial.

4. Mr Keogh presented what was his third petition for mercy (the Third Petition) to the Governor when I held the office of Solicitor-General.  The Third Petition was referred to me to provide advice to the Attorney-General. 

5. On 10 August 2006 the Acting Attorney-General, the Honourable Kevin Foley, issued a press release stating that Her Excellency the Governor had, on advice, declined to exercise the prerogative of mercy on the Third Petition. The press release also stated that the Acting Attorney-General had declined to refer the Petition to the Supreme Court pursuant to the s 369 of the CLCA. The Acting Attorney-General disclosed that in making that decision he had considered advice received from the Solicitor-General. He stated that on the basis of that advice he had formed the opinion that the Third Petition did not disclose any arguable basis on which the Supreme Court could find that there had been a miscarriage of justice. The press release of the Acting Attorney-General appears to quote from the report as follows:

   Nor does [the Petition] disclose any reason to doubt Mr Keogh’s guilt of the murder in 1994 of Anna Jane Cheney …

   It is important to understand that the case against Mr Keogh was never dependent on the pathology evidence alone …

   Rather it was the overwhelming strength of the whole of the circumstantial evidence against Mr Keogh that led, and still leads, to a conclusion of guilt.

   Some of the criticisms of the way in which Dr Manock conducted the autopsy of Ms Cheney may be valid.  However, those matters were known to the defendant’s lawyers or the expert pathologists they engaged at the time of trial.

6. In support of the application that I recuse myself, Mr Borick QC relied on the fact that the press release did not refer at all to a pathologist’s report which I, as Solicitor-General, had sought and received from Professor Vernon-Roberts.  Professor Vernon-Roberts’ report was subsequently disclosed to Mr Keogh in 2013.  Professor Vernon-Roberts criticised several aspects of the way in which Mr Manock had undertaken pathology tests on the autopsy and in particular the lack of histology testing of sections taken from sites of apparent bruising on the body of Ms Cheney. 

7. In particular, Professor Vernon-Roberts formed the opinion that:

   [T]he sampling of only one of seven “bruises” on the right leg and only one of the three on the left leg is, in my opinion, seriously inadequate as, taking account of Dr Manock’s subsequent conclusions as to the mode of death of Ms Cheney by assisted drowning and the importance of confirming the presence of bruising and assessing their age to sustain those conclusions each “bruise” on both legs should have been adequately sampled.  The tissues between each bruise should also have been sampled to ascertain whether there were separate bruises, possibly of different ages, or a single extensive bruise on one or both legs with variable discoloration of the skin.

8. Professor Vernon-Roberts also opined that:

   [T]he application of staining for the presence of iron in the cells should be undertaken on tissues from Miss Cheney’s medial left leg as confirmation of the presence of iron pigment would indicate bruising having occurred some days or longer prior to death.

9. After the report of Professor Vernon-Roberts was released to Mr Keogh’s legal representatives, the analysis he recommended was undertaken. It showed the presence of iron, haemosiderin, in a bruise on the medial aspect of Ms Cheney’s leg. That result showed therefore that at least one of the bruises was older than opined by Dr Manock and inconsistent with the prosecution case that it was caused at about the time of death. The report of Professor Vernon-Roberts and the subsequent discovery of haemosiderin in the section of the left leg medial bruise was a central consideration in Mr Keogh’s successful subsequent appeal brought pursuant to s 353A of the CLCA to this Court.[1]

   [1]    R v Keogh (No 2) (2014) 121 SASR 307.

10. The Court in R v Keogh also extensively discussed Professor Vernon-Roberts report on the adequacy of other aspects of the autopsy conducted on Ms Cheney and observed:

    The adequacy of the autopsy

    …

    It has been suggested that there are serious questions as to the adequacy of the autopsy.  These questions were first raised by Professor Vernon-Roberts in his report of 22 November 2004.  With respect to the sampling of bruising, the Professor concluded:

    Conclusion: the sampling of only one of seven “bruises” on the right leg and only one of three on the left leg is, in my opinion, seriously inadequate as, taking account of Dr Manock’s subsequent conclusions as to the mode of death of Ms Cheney by assisted drowning and the importance of confirming the presence of bruising and assessing their age to sustain those conclusions each ‘bruise’ on both legs should have been adequately sampled.  The tissues between each bruise should also have been sampled to ascertain whether there were separate bruises, possibly of different ages, or a single extensive bruise on one or both legs with variable discoloration of the skin. 

    (Emphasis added.)

    In respect of the possibility of a cardiac cause, Professor Vernon-Roberts concluded:

    ... [W]hile the probability of a cardiac cause for Ms Cheney’s death is likely to be somewhat lower than the 85% favoured by Professor Scally’s [sic] a cardiac cause for Ms Cheney’s death may not be ruled out as Dr Manock’s sampling of the heart for microscopy was inadequate and raises the question as to whether a thorough gross examination of Ms Cheney’s heart was performed by Dr Manock.

    ...

    ... [A]t the time of Ms Cheney’s autopsy thorough examination of the heart was common practice when the possibility of a cardiac cause for death was entertained and it was common practice to record the weights of the heart, liver and spleen with sampling of all three organs for microscopic examination. These procedures appear not to have been carried out during Ms Cheney’s autopsy.

    ...

    ... The sampling of the heart for microscopy was insufficient to be able to confidently exclude cardiomyopathy, miocarditis, scarring in the septum or a critically located small infarct.

    (Emphasis added.)

    In respect of the topic of purported bruising, Professor Vernon-Roberts concluded:

    ... [T]he lack of colour photographs of important external and internal features taken during the autopsy is a serious deficiency and prints of black and white negatives are needed before an opinion on them can be offered.

    (Emphasis added.)

    On the investigation of Ms Cheney’s lungs, Professor Vernon-Roberts concluded:

    ... [T]he sampling for microscopy of Ms Cheney’s lungs by Dr Manock was markedly inadequate.

    ...

    ... [I]t was common practice to weigh the lungs at the time of Ms Cheney’s autopsy and it is not clear as to who weighed or recorded the weights of the lungs in the autopsy file.

    ...

    ... [T]here was a need for comprehensive and thorough sampling of the lungs. Such sampling was not undertaken by Dr Mancok [sic].

    (Emphasis added.)

    On the topic of encephalitis and anaphylaxis, Professor Vernon-Roberts concluded:

    While it is not possible to completely exclude encephalitis or anaphylaxis as leading to Ms Cheney’s death, there is insufficient clinical or pathological evidence to favour either condition above a cardiac cause.

    …

    Observation and recording of the bruises which form the basis of the allegation of a homicidal assault is both deficient and inaccurate.

    (Emphasis in original)

11. It can be seen therefore that Professor Vernon-Roberts’ report was considered to be significant by the Court which heard Mr Keogh’s subsequent appeal.

12. Mr Borick QC has foreshadowed that, on the appeal, Mr Van Beelen will rely on the report of Professor Vernon-Roberts to argue that Dr Manock was not competent to perform post-mortem autopsies generally and in this case in particular.  Mr Van Beelen contends that Dr Manock’s opinions as a forensic pathologist cannot be relied upon generally or in this particular case.

13. On the application that I recuse myself Mr Borick QC contended that the failure of the advice I gave as Solicitor-General on the Third Petition to refer to the report of Professor Vernon-Roberts showed that I had formed a view that the report of Professor Vernon-Roberts was insignificant.  Mr Borick QC submitted that, with that knowledge, the fair minded lay observer might reasonably apprehend that I “might not bring an impartial mind to the conclusion and resolution” of the issue of Mr Manock’s competence raised on his appeal.[2] 

    [2]    Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ.

14. That submission must be rejected for several reasons.  First, the press release of the Attorney-General is, of course, on its face, not the entirety of the advice that I gave.  It is a summary of it.  The advice is privileged.  It cannot be known how the advice dealt with the report of Professor Vernon-Roberts.  Secondly, the fair minded lay observer acting reasonably would appreciate that advice I gave on the Third Petition about the significance or otherwise of Professor Vernon-Roberts’ report was framed in the context of the material presented on the Third Petition.  Thirdly, even if it were shown that I mistook the significance of Professor Vernon-Roberts’ report in the context of the Third Petition, any error of fact I might have made in giving that advice, cannot, in itself, lead reasonably to an apprehension of bias.  Fourthly, the press release itself purports to repeat an acknowledgment in the Solicitor-General’s advice that some of the criticisms of Dr Manock’s conduct of the autopsy may be valid.  The lay observer could not reasonably apprehend bias on the question of Dr Manock’s competence in the face of that acknowledgement.

15. For the above reasons I decline to recuse myself.