Supreme Court of South Australia

R v Henry Vincent Keogh 1995 SASC 5397

22 December 1995

Matheson, Millhouse and Mullighan JJ
Counsel for Keogh: Michael David QC with Stephen Ey
DPP P J L Rofe QC with Rebecca Gray

Matheson J

Keogh was convicted of murdering his fiancée, Anna Cheney, on 18 March 1994. The jury must have accepted the Crown case that Keogh killed Anna by deliberately drowning her in the bath at their home. It was never seriously suggested that Anna had committed suicide or that a third person had been involved. The defence case was that the bath was very slippery Anna was tired and affected by alcohol she slipped or fainted and accidentally drowned. There is no complaint by Keogh about the trial Judge's directions to the jury which were a model of thoroughness, clarity and fairness. The grounds of appeal are:

1: The trial judge erred in admitting the evidence of the witness Ms A; [name suppressed]
2: The trial judge erred in admitting the evidence of the witness Ms B; [name suppressed]
3: The trial judge erred in not permanently staying the trial because of irreparable unfairness due to pre-trial publicity;
4: The verdict of the jury was unsafe and unsatisfactory.

Much of the evidence was un-contradicted. At the time of her death, Anna was 29 years of age. She was a legal practitioner, and was then working as the Acting Director of Professional Conduct of the Law Society of South Australia. Keogh was 39 years of age and employed by Baker Young the stockbrokers. He had been employed by the State Bank until January 1994. He had been married and he had three daughters. Keogh's relationship with Anna started in 1989. He left his wife in June 1991 and they were divorced in May 1992. In late 1991, Keogh moved into a house with Anna at Parkside. There was then a break in their relationship in about March 1992.

Ms A gave evidence that she met Keogh in the early part of 1991. They saw each other every few months. They had a meeting at the Oxford Hotel on 18 March 1992 in the course of which Keogh first told her about Anna. He said that they had been living together for some time, but that he was going to end the relationship. He said Anna loved him very much and wanted to marry him and have children, but he did not want to remarry. He also said he had had a vasectomy, and he did not want to have it reversed. He said that he was going to break off the relationship gradually. He said I'm going to wean her off me. She said that she and Keogh subsequently saw each other more often. They first had sexual intercourse on 17 July 1992. It occurred very regularly thereafter until she broke off the relationship on 17 December 1992. At some stage during this period Anna and Keogh had resumed cohabitation. Keogh says it was in August. They became engaged on 14 November 1992. Ms A said that she continued to see Keogh from time to time after 17 December 1992. He invited her to lunch on 14 February 1994, St Valentine's Day. He asked her if she was involved with anybody and she said that she was not. She asked him the same question, and he said that he was not so involved. In fact Keogh and Anna had set their wedding date for 24 April 1994. Anna had made a booking for a wedding reception at Ayers House on 15 April 1993, and her father had paid a deposit of $500. On 13 November 1993 Anna had ordered her wedding dress. On 1 February 1994 she had booked a wedding photographer.

Keogh took out five insurance policies on Anna's life between February and April 1993. He was the sole beneficiary of those policies on her death and stood to benefit by more than $1,125,000. He forged her signatures on the proposals and on cheques and debit authorities used to pay the premiums. It was partly this evidence that prompted the DPP to say that by killing his fiancée, Keogh obtained his freedom and the means to enjoy it. In April 1993 Anna and Keogh had a holiday together in Hong Kong. Prior to leaving, they both executed wills prepared by Nyland Haines, solicitors, for whom Anna then worked. Keogh mentioned in his will 4 insurance policies which he bequeathed to his three daughters in equal shares. He left his residuary estate to Anna. She made no mention of insurance policies in her will. She left $30,000 to  her father and her residuary estate to Keogh.

Ms B gave evidence that she met Keogh in mid 1992. They were both then working at the State Bank. They first went out together to a restaurant on the 21 October 1992. She said that the relationship developed both in frequency of meetings and in intimacy. She said that the relationship was continuing in the week of Anna's death. Some of her evidence was denied by Keogh. Ms B was unaware of the relationship between Keogh and Anna until early February 1994 when she rang Keogh at the State Bank because he was running late for their dinner engagement, and the telephonist thought she was Anna. Ms B said that she asked Keogh who Anna was, and he replied She is an ex-girlfriend who is obsessed with me and wants to marry me.  He said he would never marry her. On the Thursday before St Valentine's Day 1994, Keogh visited her and said that his children wanted him to return home, and his ex-wife had approached him saying she wanted to give their relationship another try. He said to Ms B that he was confused because he was falling in love with her and did not want to lose her. Ms B said she encouraged him to have a meeting with his ex-wife. He subsequently told her on St Valentine's Day that the meeting had not taken place. They exchanged cards, and Keogh gave her a rose. He said to her I'm all yours and you are all mine, and she said there were lots of hugs and kisses.

Ms B said that Keogh continued to visit her almost every day until 18 March. On one of these visits, he told her again that he had decided he would try to go back to his ex-wife because he thought it was best for every one.

On the night before her death Anna and Keogh attended at the house of a wedding celebrant and signed a notice of intention to marry. Early on the following evening, they met at the Norwood Hotel after work. They had about 3 or 4 glasses of white wine and returned to Anna's house at Magill, both arriving about 6.40 pm. Anna then rang her sister-in-law, Susan Cheney, about a prior arrangement to exercise their dogs. She then drove to Susan Cheney's house in Burnside, and together they went to a park at Erindale, and walked the dogs for 20 or 30 minutes. Susan Cheney said that Anna was happy, not affected by alcohol, and that they discussed the wedding. Anna dropped her home, and left there at about 8 or 8.05pm. It takes about eight to ten minutes to drive from Susan Cheney's house to Anna’s home. Anna was not seen alive again by any person other than Keogh. The Crown called Keogh's mother Mrs Eileen Keogh. She lives about two kilometres away from Anna's house. She said that Keogh came to her house between 8.15 pm and 8.25 pm, and left at 9.15 pm or a little after.

At 9.32 pm Keogh rang the St John Ambulance, and said My fiancée has had an accident in the bath. I think she has drowned. Keogh said in evidence that he attempted to resuscitate Anna before the ambulance arrived. He said he had received St John Ambulance training fifteen years or so before. Two ambulance officers, namely Murgatroyd and Stevenson, arrived at Anna's house at 9.38pm. There was no sign of forced entry or of any struggle. The bath was about three quarters full of tepid water. Anna was lying on the floor between the bedroom and the bathroom with her head on the bedroom carpet, and her feet in the bathroom. They said that the area of carpet around the head was dry. The body was dry, although her hair was wet. The bathroom floor was dry. They commenced resuscitation. They immediately expelled water from her mouth and subsequently gastric contents. The Crown alleged that there had been no attempt by Keogh to resuscitate his fiancée prior to the arrival of the ambulance. Anna's blood alcohol was about 0.1% at the time of her death.

Uniformed police soon attended, including woman police officer Tyson. She took a short statement from Keogh. He told her that he returned home from his mother's and found Anna completely submerged in the bath. He pulled her out and commenced resuscitation measures. He was unable to get her to breathe. He then called the ambulance and recommenced resuscitation. I will return to the facts later.

I propose to consider Ground 3 relating to pre-trial publicity first. Prior to the first trial there had undoubtedly been enormous media interest in the case. Mr David QC, counsel for Keogh, called it ghoulish interest. He spoke of media saturation, and of the case being the talk of Adelaide.

The jury retired to consider their verdict on Friday 10 March 1995, spent that night in a hotel and continued their deliberations on the Saturday morning. That morning the Advertiser published an article which impermissibly referred to evidence given at the voir dire hearing prior to the commencement of the trial. The article was published before the jury was discharged (because it could not agree upon a verdict), and thus it was published at a time when it was possible that there might have to be a retrial. The DPP did not dispute that portions of the article were highly prejudicial to Keogh. The article was boldly headed "A Tale of Treachery". It prompted Keogh to apply for the following orders:

1. An order prohibiting the Informant from any further proceedings upon the said Information.
2. In the alternative, an order that the proceedings upon the said Information be permanently stayed on the ground that the said proceedings and Information constitute an abuse of the process of this Honourable Court.
3. In the further alternative, an order dismissing the Information laid by the Informant against Keogh.

On 4 May, Duggan J refused the orders sought, but decided to adjourn the trial until August. The second trial in fact commenced on 8 August 1995, very approximately 5 months after the article appeared and the first jury was discharged. Before the jury were empanelled, his Honour made the following statement to the panel:

Ladies and gentlemen in the jury panel, in a moment the jury for this case will be empanelled; but in accordance with our usual practice, I'll ask the Director of Public Prosecutions in a moment to read you the names of the witnesses he proposes to call in the case. If you know any of the witnesses or if you know something particular about this case or for any other reason you consider that it might be inappropriate for you to sit on the case as a juror, would you be kind enough to stand in your place after the names are read and I'll ask you to come up and I'll speak to you and we'll discuss the particular problem which you have. In addition, I should also make mention of the fact that there has been a considerable amount of media publicity in relation to this case and no doubt that has engendered a good deal of discussion in the community about the case. I want you to consider whether in the light of that discussion and in the light of that publicity, you are able to bring an open and independent mind to this case. If any of you considers that you cannot bring an open, independent mind to the case because of the publicity or any community discussion which you've heard or for any other reason, then please also stand in your place and I'll ask you to come forward and discuss that aspect with me.

We were informed that some jurors came forward, and some were excused, but of course these conversations with the judge were necessarily private. In the course of his summing up his Honour said:

I repeat: It is your decision, not anyone else's. It is a decision which must be based on the evidence, not anything you may have heard or read outside the court. I repeat my warning, ladies and gentlemen, about previous publicity in this case or anything which you might have heard in relation to it. There has, in the past, been a considerable amount of publicity in relation to the case. No-one is better placed at this stage to assess the evidence and to answer the ultimate question which is to be posed to you than the 12 of you. You have heard every word of the evidence and I must direct you, although it is a matter that no doubt appeals to your common sense and no doubt you have already made up your minds in the light of my previous warning that you propose to proceed in this way, but I must direct, as a matter of law, that you are not to regard anything you have heard outside the courtroom about this matter, but to deliver your verdict upon the evidence.

The leading case on the effect of media publicity is Murphy v The Queen (1988) 167 CLR 94. Mason CJ and Toohey J said: It is fundamental that, for an accused to have a fair trial, the jury should reach its verdict by reference only to the evidence admitted at trial and not by reference to facts or alleged facts gathered from the media or some outside source. However, the might of media publicity in 'sensational' cases makes such a pristine approach virtually impossible. Recognizing this, the courts have used various remedies such as adjournment, change of venue, severance of the trial of one co-accused from that of the others, express directions to the jury to exclude from their minds anything they may have heard outside the courtroom and the machinery of challenge for cause.

In R v Glennon (1992) 173 CLR 592, Mason CJ and Toohey J in a joint judgment said:

Apart from the unique case of Tuckiar v The King (1934) 52 CLR 335, there has been no other instance in the judicial history of this country of an accused's conviction being quashed and a verdict of acquittal then entered on account of the potential prejudicial effect of pre-trial publicity.

A footnote summarised the case of Tuckiar's thus: After the prisoner was convicted, his counsel made a public statement in court that confessional evidence admitted against the prisoner was correct. An appeal having been allowed, a verdict of acquittal was entered because, in the view of this Court, the prisoner could not justly be subjected to another trial at Darwin and no other venue was practicable. Brennan J said: Of necessity, the law must place much reliance on the integrity and sense of duty of the jurors. The experience of the courts is that the reliance is not misplaced. See also R v von Einem (1991) 55 SASR 199.

I would over-rule this ground of appeal. Although the publicity was unfortunate, the learned trial Judge's grant of an adjournment substantially minimised any risk of prejudice, and he gave appropriate directions during the trial as to the importance of the jury deciding the case solely on what they heard in the court room. In my opinion, there is no proper reason to suspect that the jury was prejudiced against Keogh or that the publicity has produced a miscarriage of justice.

I propose to deal now with Grounds 1 and 2 relating to the admission of the evidence of Ms A and Ms B. The learned trial Judge admitted their evidence as evidence tending to show the true relationship between the appellant and Anna, and in particular the perception of Keogh of that relationship. It was conceded by the Crown that the evidence had some prejudicial aspects, but I agree with his Honour that these were outweighed by its probative force. It is convenient to mention here that it is obvious that, whatever was the perception of Keogh, Anna was infatuated by him and that her love was blind.

When Ms A was giving evidence, his Honour explained to the jury the use to which her evidence and that of Ms B could be put, and the use to which it could not be put. In his summing up, his Honour said in a lengthy but carefully crafted passage: Keogh and Anna had a long standing relationship. It is appropriate, therefore, that you should be supplied with information relating to the nature of that relationship so that you can understand it properly. If there is a loving relationship between two people, if they are devoted to one another, if there is obvious distress when one of them dies in circumstances such as those in the present case, then that is appropriate material to take into account. Nevertheless, the material that was led relating to Keogh's relationship with these other women is also material which you are entitled to take into account, but only for a very limited purpose. The prosecution case is that there is an element of financial gain involved in this case and I have discussed that with you. That is really the main basis as to why the Crown says that Keogh killed Anna. But, if the evidence which you accept discloses an attitude which differs from the loving attitude suggested by the other evidence, and raises doubt about Keogh's intention to marry Anna, this is one circumstance, along with others that you are permitted to take into account.

I make no suggestion as to whether the evidence of these relationships led by the Crown, if accepted, supports this sort of inference. That, as with all factual considerations, is a matter for you. But Mr David is quite correct in the submission that he makes to you, that this evidence of relationship, insofar as it concerns Ms B and Ms A, is evidence which should not overawe you. It must not be given more importance than it possesses. It is no more than one of the circumstances you are asked to consider.

Sharon Tonkes said she was present at the Bull and Bear when Keogh and Anna met back in 1989. She said they commenced going out together from that time and Keogh, himself, said in evidence that they fell in love over a period of 6 to 8 weeks after that first meeting and, in effect, became lovers in the physical sense after that period of time. Emma Marinucci said Keogh was joint owner of a house at Parkside and Emma lived in it with Anna for a time. The witness said she and Anna moved into this house in about September 1990. Keogh stayed at the house from time to time and then started to live there. Emma moved out in September 1991 and, for a week or so, early in 1991, there was a short break in the relationship between Keogh and Anna.

It was an agreed fact that the keys to Homes Avenue were handed over to Anna on 1 May 1992. Dr Cheney said he thought that Keogh moved into Magill within 4 to 6 weeks of Anna taking up residence. Marc Cheney was of the same view. Keogh said the relationship was broken off in March 1992 for a time, but gradually they got together again. He said he stayed nights at Magill, but he said he didn't move into Magill until August 1992. The engagement was announced on 14 November 1992, and that there was an engagement party in January of 1993. They went off on a holiday overseas at the end of April and they executed mutual wills before they left. The wedding was planned for 24 April 1994, and you have heard of various preparations and bookings that were made concerning that.

That is a brief outline of the period over which this relationship took place and some of the things which happened during it. I come, then to Keogh's involvement with Miss Ms A and Miss Ms B. Viewed in the light of some evidence you may have heard in this case, and through the eyes of some people, the relationship between Keogh and Anna at the time of the alleged offence was a happy and loving one. It is the Crown case that Anna also viewed it in that light, and you may think the evidence as to her attitude in this respect was overwhelming. If both Keogh and Anna thought in this way, the question that may well be asked is why would Keogh put an end to the relationship in this terrible way? Indeed, that is one of the basic questions posed by the defence in this trial.

But the prosecution argue that, from Keogh's viewpoint, this was not the true nature of the relationship. It is said that the relationships with the two women, Ms B and Ms A, are incompatible with the genuine desire on the part of Keogh to form a permanent relationship with Anna and to marry her; that comments he made during the relationships reveal an inclination, an intention, not to marry Anna ; that Keogh had little of the feeling for Anna which he professed when she was alive and still professes at this trial. Of course, if the Crown argument is correct, there is no suggestion that proves the case by itself, or goes anywhere near that result. It is simply, as I have already pointed out, one of the circumstances to take into account.

I have explained that the only way in which the evidence can be used is the extent to which you find it throws light on the relationship between Keogh and Anna, and, particularly, Keogh's perception of it. You must not  reason that he behaved in an unfair way, that he told lies to deceive her and others, and that such conduct is, in some way, relevant to whether he murdered her. That statement only has to be made to indicate how illogical it is. Not only would that sort of reasoning be illogical, and not only is it illogical, it is contrary to law, and I direct you that you must not reason in that or a similar manner. Conduct of this nature, if it does take place, does not predispose people to murder one another, and Mr David made that point very effectively in the course of his address. I say again, it is not relevant in that way. It may be relevant in assisting you with the complete picture of the relationship as seen through Keogh's eyes.

If you think that Keogh was lying about his relationship with Ms B, then that must not be used as evidence pointing to guilt. As Mr Rofe pointed out, people have all sorts of reasons for lying, and, if Keogh was lying about that relationship, it might well be because he is embarrassed about revealing the relationship with Ms B, as it had taken place at a time when he was supposed to be preparing for marriage to Anna. Whatever the reason, ladies and gentlemen, you must not use the fact of the lies as evidence pointing to guilt, if you came to the view beyond reasonable doubt, indeed, that was the truth of the matter.

I now summarise that evidence and direct you that before you can act upon it, you must find it proved beyond reasonable doubt. For example, you cannot use the evidence of intimacy made by Miss Ms B in relation to Keogh unless it had been proved to your satisfaction beyond reasonable doubt that relationship had taken place, and, when I say relationship, I mean the relationship as deposed to by Ms B, involving some sexual content.

His Honour then fairly summarised the evidence of these two witnesses, and pointed to the evidence of Keogh where it was in conflict with their evidence, and in particular that of Ms B. He concluded his remarks on this topic: Well, ladies and gentlemen, in the case of each of these two witnesses the Crown says that the liaisons with them indicate that Keogh was not totally devoted to Anna, and, particularly by reference to the Ms B relationship, that he was not genuinely preparing for marriage.

That being the case, he might more readily succumb, so it was said by the Crown, to the lure of this very substantial financial enrichment from the insurance policies which the Crown claimed was the main motive. In addition, it is said that there were conversations with each of these women which might give some indication of his attitude towards Anna. You will remember what I said about the possibility of equivocality in that area. The broad nature of the relationship with Ms A is not in dispute, but you, nevertheless, have to consider what inferences you are prepared to draw from it and assess the extent to which those inferences are relevant to the relationship between Keogh and Anna.

In the case of Ms B, you must be satisfied beyond reasonable doubt that there was a relationship of the type claimed by Ms B before even using her evidence for any purpose. Keogh has denied such an intimate relationship. If you accept her version beyond reasonable doubt then you can go on to consider the extent to which it assists you in determining the relationship between the accused and Anna in the sense which I have explained. Mr David has put to you that the evidence of both of these women is simply a red herring. He  said it has no relevance to the case. He pointed out that the Ms A relationship ended shortly after Keogh and Anna were engaged. He said there were good reasons for you to reject the Ms B evidence. He put to you what he suggested were highly unsatisfactory features of her evidence which lacked credibility generally. He referred to such matters as the unlikelihood of intimacy taking place outside the Rose Park premises and he referred to the unlikelihood as to sexual aspects in the alleged relationship as deposed to by Ms B. Even if it were true, he said, that there was some relationship with Ms B, which is denied by Keogh, it has no real relevance to the issues you have to decide.

Toward the end of his summing up, he again reminded the jury of what he called the restricted use to which the evidence of these witnesses could be put. In his opening and closing addresses, the DPP also discussed this evidence, and its correct and incorrect use. There is ample authority to support the ruling of the learned trial Judge. In Wilson v The Queen (1970) 123 CLR 334, (where the contest was between accidental death and homicide) Barwick CJ said at p337: It is quite apparent that the nature of the current relationship between the applicant and his wife was relevant to the question to be decided by the jury. Evidence of a close affectionate relationship could properly have been used by the jury to incline against the conclusion, which might otherwise have been drawn from the circumstances, that the applicant killed his wife. Equally, evidence that there had developed mutual enmity could be used to induce the conclusion that he had killed his wife and that his story of an accidental shooting lacked credibility.

In R v Hissey (1973) 6 SASR 280, the Full Court said: Evidence of this nature is not to be led as evidence of bad character ... Such evidence is admissible for the purpose mentioned by the learned trial Judge, namely that of showing the relationship existing between the accused and the deceased (Wilson v The Queen) (1970) 123 CLR 334. We think that it was relevant and indeed important for the jury to know the general terms upon which the parties were living. If evidence of this nature were to be excluded as being technically inadmissible, then equally it would be technically inadmissible for evidence to be tendered to the jury which might be favourable to an accused person, for example of a man having lived with his wife on  terms of affection and harmony over a long period of years; and we think that such evidence would clearly be relevant and indeed important. When evidence of this kind is admissible it is admissible not only to prove the intent of the accused, but also the fact of the crime: R v Ball (1911). See also Plomp v R (1963) 110 CLR 234, and R v Price (1982) 8 A Crim R 403.

In my opinion, these grounds fail. Indeed, I consider his Honour could have gone further than he did, and said the evidence had other uses, such as helping the jury determine whether death was deliberate or accidental.

I come now to focus on the final ground that the verdict of the jury was unsafe and unsatisfactory. There have been several High Court decisions in point, but it is sufficient to refer to M v The Queen (1994) 181 CLR 487. Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations...

I will start by referring to the evidence of the 4 very experienced forensic pathologists who were called, Drs Manock and James for the Crown and Dr Ansford and Professor Cordner for the defence. His Honour gave the jury a correct direction about how they should regard opinion evidence, including the need to assess such evidence against the whole of the evidence in the case. The usual direction about the jury's capacity to accept a witness' opinion wholly or in part was also given. The actual post-mortem was performed by perhaps the most experienced of the four pathologists, namely Dr Manock. He has been a forensic pathologist for thirty-three years and has performed over 9,000 autopsies. Over the last 7 or 8 years he said that he had done about one hundred autopsies where the cause of death was drowning and some of those resulted from domestic bath situations. In those cases, he said there had been a further identifiable reason for the person to drown in the bath such as drugs, brain tumour, epilepsy or alcohol. He said that when drowning in fresh water occurred, water enters the air passages and forms a mechanical obstruction which prevents air reaching the lung tissue so that the person dies of asphyxia. The time it takes varies slightly, but it is something of the order of three minutes. He said actual loss of consciousness can occur very rapidly indeed, within a second or so of becoming submerged.

Dr Manock performed the autopsy on Anna on Sunday 20 and completed it on Monday 21 March. He said that she appeared internally to be a healthy young woman. On the left shin towards the lateral side, he noted 3 faint bruises on the calf and a single bruise on the medial or inner side of the left calf. On the right shin he noted 7 small circular bruises in a vertical line along the anterior border of the subcutaneous part of the right tibia. He was asked if it was possible if the bruises on the left leg appeared to be consistent with a particular cause and he answered: Yes. It was possible to cover the bruises by putting a hand over the leg and a thumb approximating to the bruise on the inner aspects of the left leg and the three forefingers would encompass the bruises on the right aspect. That is if the right hand is placed beneath the calf and the thumb then comes on the inside of the calf ... The little one may have been there, but it usually hasn't sufficient force to leave a bruise.

He said that if the leg were held in that position, that would be a cradling of the back of the leg in the hand. He said that the bruising on the legs was sustained at or about the time of death or at the earliest 4 hours prior to death. Near the centre of the scalp, there was a diffuse bruise approximately three centimetres in diameter, which appeared to have occurred shortly before death. Partially overlapping this bruise was a further bruise of a similar size, but of less intensity. He also found two further bruises on the back of the neck where the neck muscles adjoin the base of the skull. He described the two bruises on the back of the neck as oval, each two centimetres by one centimetre. He was unable to discern which came first. They were relatively faint which was one of the reasons he thought there were sustained at about the time of death. He said they were consistent with the head striking a flat surface or a flat surface striking the head. The amount of force required would be very slight. There was no corresponding internal damage.

On the basis of the external injuries he observed and his opinion that the cause of death was fresh water drowning, Dr Manock said:

If the person is sitting at the plug end of the bath and an arm is put underneath both legs to grip the left calf, either by simply lifting or lifting the leg and pushing the head, then the head could slide under the water. At this time, the edge of the bath could cause bruising to the back of the neck or the muscles attached to the base of the skull. If the movement is then continued and the legs are folded over entirely, this would have the effect of trapping the arms by the sides of the bath and the top of the head would then be against the top of the bath and that would give a flat surface that could cause the bruising to the top of the head. The left leg has been gripped. However, the right leg is merely encompassed by the arc of the arm and can move. If it thrashes around, it will bang itself against the edge of the bath and may produce bruising along the border.

He went on to say that action such as that just described would produce rapid unconsciousness. He said that during drowning there is a quiescent period before death, and then there is a further muscular spasm. A person may lose consciousness and remain relatively quiescent for a period, and then have a final struggle. He said Anna would have had little chance to shout. This was significant because a near neighbour did not hear any noise, although she did have the television on. Dr Manock said there may have been a little bit of banging on the sides of the bath by the arms or the hands. He did not think that would produce any visible bruising because the presence of the water would restrict the speed at which the limbs would move and so reduce the violence by which they could strike the side of the bath.

Dr Manock said that a blood alcohol as high as 0.1% is not the sort of blood alcohol that he would expect to cause a person to lapse into unconsciousness as a result, for example, of postural hypotension, to such an extent that that person would not revive if water struck the vocal chords, resulting in coughing or spluttering. He agreed that a person standing up suddenly in a warm bath could suffer a loss of consciousness, but he would expect some injury to be sustained perhaps to the head which would render the person unconscious. He saw nothing in the physical examination to indicate a predisposition to fainting. He said he found insufficient evidence to support a loss of consciousness caused by trauma to the head. He said that he would expect some signs of a blow as a result of a fall within the bathroom. On this aspect of his evidence, his Honour gave the jury the following clear direction:

There is one further view expressed by Dr Manock with which all the other pathologists disagreed. He said, in effect, that if a person was rendered unconsciousness by some trauma before entering the water, for  example a knock on the head, then you would find evidence, perhaps externally, but certainly internally when you were doing your post-mortem examination, that there had been such a knock; a knock of that severity to cause unconsciousness. Dr James disagreed, as did the other pathologists. The phrase used by Dr James, I think it was, was that 'concussion has no pathology', meaning if there was concussion or  unconsciousness in this way you wouldn't necessarily see it when you examined the body at a post-mortem examination. So, you have a clear preponderance of views against that proposition by Dr Manock and that is an important matter to take into account on that issue.

Mr David pointed out that the DPP did not concede at the trial that Dr Manock's view was wrong on the aspect discussed in the part of his Honour's direction just quoted, and argued in the circumstances that the jury might have been influenced by that particular view in reaching their verdict and that that in itself made the verdict unsafe. I am satisfied, however, that his Honour's direction adequately covered any anxiety one might otherwise have felt.

Dr James was asked to review the work of Dr Manock as a result of the latter's absence overseas for some time. He said that given Anna's blood alcohol level that the possibility of her falling asleep and drowning in the bath was not a realistic one. He said he had never seen a case where drowning in the bath had been precipitated by such a low alcohol level. He also agreed that the body has a mechanism which comes into play when the airway is immersed into water resulting in coughing or choking and an adrenalin surge which will wake the person up. He said he thought that if warm baths and alcohol levels of the sort here represented a significant threat, such deaths would be seen commonly in all departments. He said he had never seen such a case. He said that when people faint they usually fall over.

He was asked to comment on Dr Manock's opinion about the bruising on the left lower leg. He said that gripping by a hand was the most likely explanation. He said that bruising on the right shin was easily caused because there is no soft tissue underneath it. He said the row of 7 bruises down the front of the right shin could represent grip marks from individual fingers. He also thought the bruises were caused at or about the time of death and that 3 to 4 hours was probably the outer limit. He did not think that the bruising on the top of the head and the back of the neck could be caused by one blow. Nor did he think that all the bruising could be caused by a simple fall in a confined bathroom. He said if drowning were to result from a fall in a confined bathroom causing loss of consciousness, the body would have to be submerged in such a way as to cause drowning. In cross-examination, he reiterated that he did not think a simple fall in the bath could accommodate the pattern of bruising that was seen. He said that there would have to be a rather complex choreography to accommodate the bruising to the top of the head and the bruising on each side of the neck being sustained at or about the same time. He could not exclude the possibility of unconsciousness before drowning by itself as a medical opinion. He reiterated his opinion that if the bruises on the left ankle resulted from grip marks, then an assumption that the bruising on the right shin was caused in the same way was logical. He said that the absence of a fourth finger bruise did not cause him any concern. He said it may be that the nature of the grip was such that the thumb applies pressure, anchoring the pressure from the main three fingers, and the small finger, for instance, might apply minimal pressure, or insufficient to leave a resultant bruise.

The first forensic pathologist called by the defence was Dr Ansford. He agreed that the explanation of the marks on the left leg given by Dr Manock, and apparently accepted by Dr James, was possible, but he said that his experience of finger bruises was that they all tended to be the same size. In cross-examination, he said the difference in intensity and shape of the 3 bruises on the outer aspect could be explained by a difference of pressure being exerted by the 3 fingers. He said he saw no reason to doubt Dr Manock's observation that the bruises all appear to have been about the same age. As far as the 7 bruises on the right leg were concerned, he could not see how they could be produced by one application of force with a flat object, but he had less difficulty with visualising it jerking against the side of the bath. He said that medically and forensically speaking, he could not exclude accident as a cause of drowning whether or not it resulted from a slip in the bath. He suggested that although there was no history of epilepsy or myocarditis, either could have caused a loss of consciousness. He agreed that if death in this case was occasioned by a slip and a fall, it would have to be a complex fall given the injuries that were observed, and that it would be necessary for the body to fall in the bath so that the airway was submerged under water. It would also be necessary for the person not to revive after being submerged. He did not think that a faint as a result of postural hypotension was a likely cause of death on its own.

Professor Cordner agreed that Dr Manock's explanation for the bruises on the left leg was a possible one. He said I think that one is really only limited by one's imagination as to how else those bruises might have occurred. He said he thought there might be accidental explanations for that number and distribution of bruises resulting from the exigencies of walking around, standing in crowded rooms, getting on and off buses and trams, standing at a bar, slipping on a step, any one or a combination of those could lead to one or more of those bruises. He expressed the opinion that the deceased's death was consistent with unconsciousness before drowning. The possibilities that he said were open included the possibility that the deceased was feeling light headed as a result of the alcohol she had consumed, and that the alcohol in conjunction with being in a warm bath caused postural hypotension. In the absence of a history of epilepsy, epilepsy was not something that he would say was a likelihood here. He said obviously at some time, somewhere, someone is going to have their first epileptic fit in a bath, but he said you wouldn't, I suppose, want to put too much on that. He said the effects of postural hypotension could be increased by alcohol. He agreed that it was a most unusual experience to find a fit, healthy twenty-nine year old drowning in a bath. He agreed with Dr Manock that the marks on the left shin could have been caused by the grip marks of a hand. He agreed that the 7 bruises on the right leg could be caused by scraping the front of the right lower leg against the shoulder or edge of the bath. He said that there would have to be something else apart from simple loss of consciousness due to postural hypotension - either the rapid inflow of water or trauma to the head. He agreed that a person can rapidly lose unconsciousness with a sudden inflow of water into the airways. He said that the two bruises on the back of the neck could be caused by the neck striking the rim in the bath at the plug end. They could also be caused by an actual slip or fall, and by the same application of force.

When summing up, his Honour told the jury that the pathology evidence would not solve the case for them. However, I consider it substantially advanced the Crown case when considered with other circumstantial evidence, and I will revert to this evidence later.

There is another medical aspect to consider. The prosecution contended that there had been no attempt to resuscitate Anna. Obviously, on its case Keogh would not have attempted resuscitation. There was evidence from the 2 ambulance officers that were called that on their arrival at 9.38 pm (five to six minutes after Keogh's phone call), the bathroom was dry, the body was dry and the area of carpet around the head was dry and unstained. Their resuscitation attempts produced expulsions of fluid onto the carpet. However, the defence called a very experienced anaesthetist, Dr Edwards, who had lectured to ambulance officers for many years on resuscitation. The learned trial Judge summed up his evidence in this way:  

(Dr Edwards) said he saw nothing inconsistent as between what the ambulance officers saw and Keogh's description of his actions. He said that vomiting is a random event. It may or may not take place. He said that 60 ccs of water, about one-sixth of a Coca-Cola can, would escape if the patient were rolled on to her side. He said this could well dissipate and not leave any sign that it had been there. Mr David pointed out that vomiting only took place when the defibrillator was used by the ambulance officers. There was no contradiction of Dr Edwards' evidence in this respect by other witnesses. When I say his evidence on this aspect, I mean on the question of resuscitation.

Very early in these reasons, I mentioned the fact that Keogh took out five insurance policies on Anna's life between February and April 1993, all with different insurers, for a total of $1.125 million, and that he was the sole beneficiary of the policies on her death. He also took out two policies on his own life for a total of $700,000. The DPP suggested they might have been a diversion. He forged Anna's signature on all the proposals, and actually made an effort to simulate her signature. Each of the companies had a requirement that there be disclosure of other insurance policies. On the last four proposals, Keogh failed to disclose any of the other policies. If, for example, the fifth insurer became aware on studying the fifth proposal that there was already almost $1 million worth of insurance on Anna's life, it might have started asking for a medical examination despite the cover being under its limit. They set up a joint cheque account at the Magill branch of the State Bank at the end of January 1993, at least partly for the purpose of saving money for their trip to Hong Kong. Keogh forged Anna's signature on the cheques to pay the premiums. Keogh also forged her signature on a cheque to reinstate her pre-existing superannuation policy. He forged her signature on the cheques used to pay for his policies. He forged her signature on the direct debit authorities used to continue the payment of the premiums. The Crown argued that the insurance evidence provided a financial motive for her death based on greed, not need. It also alleged that he deceived Anna by keeping the policies under the limit that required a medical examination.

Keogh's answer was that he had agencies with the insurers involved, and that he was anxious to write business to keep those agencies alive in case he was retrenched from the State Bank. He said the policies, including the two policies on his own life, were devices, and were never meant to be claimed on. He further maintained that Anna had full knowledge of the scheme. Keogh said the reason for keeping the policies under the limit that required a medical examination, was that although Anna had agreed in general terms to the scheme, she had agreed on the basis that she did not want to be involved with paper work or medical examinations or HIV tests.

The Crown does not dispute that Anna must have known about some of the insurance. She said as much to several witnesses including her brother Mark Cheney before the trip to Hong Kong. She told him that her life was insured for $400,000. She mentioned two of the five insurers only, namely Tower Life and MLC. She told him that she was insured for $400,000 so that if she died, the mortgage on her house and her debt to her father could be repaid, and there would be something over for Keogh. She certainly never told anyone she had $1.125 million in insurance cover. When they were in Hong Kong, Keogh claimed he told Anna he had forged her signatures. He said she was very angry, and he promised not to do it again, but he did when he reinstated her superannuation policy.

After reviewing the evidence for and against the Crown case on the insurance policies, his Honour said to the jury: It is a matter for you to decide, of course, ladies and gentlemen, as to how much Anna knew about these policies and when. If you are satisfied beyond reasonable doubt that she did not appreciate the complete picture, and you must be so satisfied before using the evidence, you are entitled to ask why. If there is a reasonable possibility that she knew details such as how much her life was insured for, then the Crown case on motive is significantly reduced. A matter such as this is to be answered by looking at the whole of the evidence relevant to the issue, and you will no doubt take into account the respective arguments which have been advanced on the point.

The Crown also relied on what Keogh said to various witnesses after the death. Ms Donny Walford, who had been a colleague of Keogh at the State Bank, said she visited Keogh at Homes Avenue, Magill on the afternoon of Saturday, 19 March. She asked him if Anna had any insurance. He said she did not have any. Mrs Hepburn-Brown, who had a professional nursing business but had had dealings with Keogh at the State Bank, said she saw him on the afternoon of 23 March. She advised him to get a lawyer. He said he did not believe he needed a lawyer. She asked him if there was anything to inherit and if Anna had a will. Keogh told her that they had both taken out wills and life insurance policies prior to going to Hong Kong in 1993. He said that Anna was insured for about $400,000, and that he was insured for over $l million. Dr Kevin Cheney was the father of Anna. He deposed to a conversation that he had with Keogh on the evening of Sunday 20 March. Keogh told him he had no knowledge of any insurance policies, but then he recalled that she had a superannuation policy. He did not think it was worth very much, but he was adamant that he knew nothing of any other insurance policies. Dr Cheney further said that on the subsequent Wednesday or Thursday night Keogh came to his house about 8 pm, and told him there was no need to worry about any financial matters, that he had remembered that Anna had an insurance policy for $400,000, that they had taken this policy out at the time they went overseas, and that he had taken out an even larger insurance policy for $700,000.

Detective Senior Constable Mann and another detective told Keogh in a conversation at the Holden Hill police station on 22 March that they wanted details of Anna's financial position, insurance and wills. They later met Keogh at the Homes Avenue house. They were handed two wills in an envelope. He asked Keogh who was the beneficiary of the deceased's will, and he said he did not know. Keogh handed him a written document containing certain financial information, but it did not mention two of the relevant policies.

His Honour summed up Keogh's response to this evidence. He said:
The defence case is that this was a tragedy which affected Keogh to the extent that he was not thinking  straight over these days after Anna 's death and for this, and other reasons advanced by Keogh, such as the fact there were many documents in his file, that there was no deliberate intention to mislead.

Later he said: The Crown poses the question whether these various statements are straight out lies or half truths about the policies and the insurance position generally. Ladies and gentlemen, you will consider each of these situations. Did Keogh have each of these conversations with Dr Cheney, Miss Hepburn-Brown and Miss Walford? Did he tell lies or half truths to them? If he did, what was the purpose? Was it to cover up the true position with the insurance because he knew that if he told the truth it would tend to implicate him in Anna's death?

His Honour then gave the jury a correct direction on lies. Mr David argued that a careful analysis of some of the documentary evidence indicated that Anna knew of the existence of all the policies on her life. His Honour summarised that argument, the evidence in support of it and the DPP's arguments thereon in this passage:

There are also some documents which are relevant to this question of Anna's knowledge of insurance. Mr David places particular reliance on them. Mr Davies was the bank manager of the Waymouth Street branch of the State Bank in 1993. He took an application for a loan from Anna on 30 November 1993. That application is P66. Mr Davies filled in the weekly expenditure column and he wrote $36 in the life insurance box. The significance of this, according to the defence case, is that it is virtually the same figure as the total amount of the premiums in the five policies on Anna 's life. Mr Davies said he had no definite memory of filling in the amount. He said it could simply represent life insurance, or, he said, it could have been a figure inserted as motor vehicle expenses after the $17, which had originally been put down for motor vehicle expenses, had been crossed out. I think the effect of his evidence was that he just couldn't really remember the circumstances. Mr Bevan was the acting manager of the State Bank, Waymouth Street, in March 1994 and he said he filled out a later loan application for Anna and this is the document P37. He said he had the application P66 from the application to Mr Davies before him, when he made out the application, or assisted Anna in making the application out for this loan.

Attached to P66, which was the first application, was a summary of assets, liabilities and expenses under Anna's name. You will remember that it was a hand written document which was attached to the application. In particular, it had down $28 disability insurance, $45 house / health insurance. Mr Rofe has pointed out that these are fortnightly figures and if they are added together and divided by two to get a weekly figure they come to roughly $36. Furthermore, these amounts are not shown in any other part of the application; that is, there is no note under disability insurance or house / health insurance. There is no heading of that nature, or no note in the application, that these amounts were relative to those headings and so Mr Rofe says, well, perhaps it was a case of Anna using the combination of those figures to arrive at this figure of $36.

Mr Rofe also said that in any event Anna was not responsible for these five insurance policy premiums. On the other hand, Keogh has said they made loans to each other and there was a mixing of funds in this account from which the premiums were paid. Mr Bevan, who was helping fill in this second application, said he would simply ask `Are you paying any insurance?' and he would put the figure given to him in the box. If he had the previous loan application, he said he would have asked `Are you still paying $36 worth of insurance?' and if the answer was `Yes', then he would have put that down.

Well, ladies and gentlemen, Mr David argues that these documents have to be taken at face value. It says life insurance on the form and $36 is put in that box. He said the Crown has tried to wriggle out of that obvious conclusion by coming up with various implausible reasons as to why, what he says is the obvious, should not be so. He took you through each of the reasons given by the Crown and he criticised them. For example, he said medical insurance would not have been part of the figure because a dash was put against this heading in the form to suggest that there was no medical insurance.

Mr David also placed considerable reliance on the submission that if Anna knew that there was at least one policy, say for $400,000, as was the Crown case, then she would have to know that her signature was forged on at least that policy. He underlined that submission to you on a number of occasions in the course of his address. Finally, on the documentation aspect, ladies and gentlemen, there is the exercise book P72. It is in Anna 's handwriting, according to the evidence, and in an area in the book where she appears to have been working out the cost of her wedding, although it is on a separate page. She puts down monthly expenses, insurances $90. Mr Rofe points out that this would give a figure of less than $36 per week if the weekly amount is worked out.

Having now reviewed the evidence and his Honour's treatment thereof, I propose to draw the strands together as one must in a circumstantial case, (see Chamberlain and Another v The Queen (1983) 153 CLR 521 and Shepherd v The Queen (1990) 170 CLR 573). It was not disputed by the pathologists, nor by one's common experiences of life, that it would be unusual, if not extraordinary, for a fit, healthy, 29 year old used to drinking alcohol to drown in her bath after drinking several glasses of wine. Keogh clearly had the opportunity to drown her deliberately, either before he visited his mother (if he did) or after, and was the last person to see her alive. He had a motive, namely to obtain his freedom and the means to enjoy it. The evidence of Ms A and Ms B pointed to the drowning being deliberate. Bruising found on Anna, and in particular on the left shin, pointed to the modus operandi demonstrated by Dr Manock. The opinions of Drs Manock and James supported such a modus operandi, and neither Dr Ansford nor Professor Cordner rejected it. Epilepsy and myocarditis appear unlikely. A faint, whether or not due to postural hypotension, would be unlikely to cause the number and situation of bruises on Anna. Falling to sleep would probably have led to her coughing and awakening. The appellant has clearly told some lies. The jury saw him cross-examined in the witness box. Their verdict indicates they did not believe him, and I am not surprised. On the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that he deliberately drowned his fiancée. I think their verdict was correct. I would dismiss the appeal.

Millhouse J

I agree with the conclusion of the learned President of the Court. Because this is an appeal following a conviction for murder and in deference to the strong and persuasive arguments of both Mr Michael David QC for Keogh and Mr Paul Rofe QC the Director of Public Prosecutions, I write short supplementary reasons to show how I have reached the same conclusion as has Matheson J.

Mr David led with the fourth ground set out in the Notice of Appeal – that the verdict of the jury was unsafe and unsatisfactory. He remarked that by canvassing the fourth ground first the Court would get an overview of the whole case. It is clear, indeed now trite, law that a Court of Appeal must make its own assessment of the evidence when considering whether the verdict of a jury is unsafe and unsatisfactory. A recent authority on what that assessment involves is M v The Queen. The majority of the High Court put the method in this way:
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

I emphasise the words, it was open to the jury to be satisfied ... Brennan J in his separate judgment, having referred to Dawson J in Chidiac v The Queen said (at 501-502):
... I respectfully agree with the explanation of the term by Dawson J. in Chidiac: was the jury, `upon the whole of the evidence ... bound to have a reasonable doubt'? That question defines the function of the appellate court's jurisdiction. The appellate court's function is to make its own assessment of the evidence not for the purpose of concluding whether that court entertains a doubt about the guilt of the person convicted but for the purpose of determining whether the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the accused.

With that guidance I consider briefly the pieces of circumstantial evidence upon which the Crown case depended. Duggan J in his summing up (it was not impugned in any way by either appellant or respondent) defined them in this way. ... the events surrounding the death itself, including the movements of Keogh and Anna around the time of that event; statements made by Keogh to various people shortly after the death; the evidence of what was found at the post-mortem examination and the opinions expressed by the pathologists, including the defence experts who gave evidence; Keogh's financial position; the evidence of the insurance policies including the applications for insurance, the actions of Keogh in arranging for the insurance and what he said on this topic after Anna's death; the evidence which the Crown has called to establish, as the Crown has argued it, the true nature of the relationship between Keogh and Anna, particularly as Keogh viewed it. This involves a discussion of the evidence of Miss Ms A and Ms B.

Matheson J has canvassed several  of these topics. There is no need for me to do so again (undoubtedly I would do it less well than he has). There is only one matter of controversy I shall mention - whether or not Anna knew about those insurance policies. This was a controversy hard fought at trial and debated at length on appeal. We looked at the exhibits. Do the exhibits shew that Anna by putting in the figure of $36.00 per week paid for insurance, knew about those five policies which Keogh took out on her life? Having listened to Messrs David and Rofe arguing persuasively pro and con and referring to one possible indication and another I have come to the conclusion that the evidence is equivocal. I could not decide whether Anna knew about all the policies, let alone whether she knew that Keogh would benefit by $1,250,000 from her death. On this point therefore the Crown has failed.

That prompts another question - what does it matter? What does it matter whether Anna knew or not that Keogh had taken out the policies? She was so besotted by Keogh that it is utterly unlikely that, if she did know, this would lead her even to the passing thought that he would do her harm to collect the money.

Yet leaving out that point the totality of the evidence is still strong against Keogh. Mr David tackled the points one by one reflecting on the strength of the evidence, arguing that on each piece of evidence there is a reasonable doubt. With respect, Mr David was not able to raise in my mind a doubt on any of them. Even if he had, it may not have mattered. It is the cumulative effect of the whole of the evidence which matters. As Dawson J said in Shepherd v The Queen 170 CLR 573 at 579-80:

... the prosecution bears the burden of proving all the elements of the crime beyond reasonable doubt. ... the jury may quite properly draw the necessary inference having regard to the whole of the evidence, whether or not each individual piece of evidence relied upon is proved beyond reasonable doubt, provided they reach their conclusion upon the criminal standard of proof. Indeed, the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence  separately.

In my view the strength of the evidence against Keogh was overwhelming. To use the words of the majority in M v The Queen, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.  To adapt the words of Brennan J, the jury, acting reasonably, should not have entertained a reasonable doubt as to the guilt of the accused.

That disposes of the ground Mr David first argued. I refer to the first and 2nd grounds together. They are:

Ground 1:  The Learned Trial Judge erred in admitting the evidence of the witness Ms A;
Ground 2:  The Learned Trial Judge erred in admitting the evidence of the witness Ms B;

Ms A and Ms B were two ladies with whom the appellant had affairs during the time he was living with Anna and well after he and Anna became engaged to be married, indeed in the case of Miss Ms B until just before Anna died. Keogh was two-timing Anna. Yet, Mr David argued, it is illogical to draw the conclusion from the two timing that Keogh was likely to murder Anna: the prejudicial effect of the evidence outweighed its probative value. The Crown had persuaded the learned trial Judge to admit the evidence on the basis that it showed the true state of the appellant's relationship with Anna, his perception of her. Keogh did not treat his relationship with his fiancée as a monogamous one, to the exclusion of all others - quite to the contrary. With respect, Duggan J was quite right to admit the evidence on this basis. I may say that in his summing up he emphasised many times that this was the only use to which this evidence could be put:  one could say he almost bent over backwards to do so. The evidence was properly admitted and the jury correctly directed as to its use. I therefore cannot accept Mr David's arguments on these two grounds.

The other ground was:

Ground 3:  The Learned Trial Judge erred in not permanently staying the trial because of irreparable unfairness due to pre-trial publicity.

The pre-trial publicity complained of was a rather long article in The Advertiser on Saturday 11 March, at a time when the jury in the first trial was deliberating. When the point was taken in May, a few days before the second trial was to begin, the trial was delayed until 8 August by which time about five months had passed since the article appeared. This allowed quite some time for it to be forgotten or at least recollections to dim. The awful occurrence of Miss Cheney's death has had a lot of publicity. In deciding on this ground the Court must balance two competing considerations: the requirement of a fair trial on the one side and on the other that it would be quite wrong if Keogh could take advantage of publicity to avoid being tried ever at all.

Jurors are not children. We are entitled to assume that they are decent people of average intelligence. Before the jury was chosen, the learned trial Judge directed members of the jury panel that they must keep an open, independent mind and decide on the evidence they saw and heard in Court. It was a quite adequate warning. It was followed by direction to the same effect in the summing up. There is no reason to assume that the jurors could not be trusted to take notice of the warning.

The last ground also fails. I suggest that the appeal be dismissed.

Mullighan J

I agree that the appeal should be dismissed for the reasons given by Matheson J.