Henry Keogh’s lawyers want their $1.85m fees paid following $2.57m government payout
Lawyers who were pivotal in having Henry Keogh’s conviction for murdering his fiancee Anna Jane Cheney quashed are contemplating legal action to recoup $1.85m in unpaid fees.
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LAWYERS who were instrumental in the quashing of suspected killer Henry Keogh’s conviction and securing his freedom claim an agreement they would be paid from any payout he received has not been honoured.
Kevin Borick, QC, and solicitor Michael Hegarty are contemplating legal action to recover $1.85 million they are owed.
The development comes after the State Government awarded Mr Keogh $2.57 million to compensate him for the 21 years that he spent in prison after being wrongfully convicted of the murder of his fiancee, Anna Jane Cheney, in 1994.
Mr Borick, Mr Hegarty and a host of other legal and medical experts worked for Mr Keogh for almost a decade and were pivotal in obtaining the legislative change that resulted in his conviction being quashed in the Full Court in 2014.
Mr Hegarty on Friday told The Advertiser he had an agreement with Mr Keogh that would see himself and Mr Borick compensated for their work in the event Mr Keogh ever received any compensation.
Since February, the pair had been attempting to ascertain from Mr Keogh’s current lawyer, Frank Barbaro, if any claim for compensation had been launched by Mr Keogh — but with little success.
Despite their repeated written requests to Mr Barbaro to determine this — in order for their fees to be submitted with any compensation claim — they only learned of the ex gratia payment to Mr Keogh when it was announced by Attorney-General Vickie Chapman on July 2.
Of the $2.57 million paid to Mr Keogh, $70,000 was for legal fees, but neither Mr Borick nor Mr Hegarty have been paid despite their accounts being sent to Mr Barbaro.
Henry Keogh was released from prison in December 2014 after serving two decades behind bars following his conviction for drowning Ms Cheney in her bath in 1994.
His conviction was quashed in 2014 because of flawed forensic evidence and a retrial ordered, but Director of Public Prosecutions Adam Kimber, QC, subsequently dropped the murder charge because key witness Dr Colin Manock was too ill to testify.
Mr Hegarty said the payment agreement was struck with Mr Keogh during their first meeting at Port Augusta Prison when he was engaged in 2004.
“I discussed with Henry what I was prepared to do, I handed him a terms of engagement which set out what I was prepared to do and informed him we would wait until any compensation moneys, which was pretty well a longshot at that stage. The object was that we would pay for our fees out of any compensation.’’
Mr Hegarty said Mr Keogh verbally agreed, but did not return the terms of engagement document signed.
“I think the verbal agreement is enforceable,’’ he said.
“In my view, Henry would not be out now were it not for the work that myself and Kevin Borick and others did in establishing the baseline for the change of the law and getting the evidence against Dr Manock and his incompetencies.’’
Mr Borick said he also “firmly believed’’ Mr Keogh would still be in prison if not for the work he, Mr Hegarty and others had completed on his behalf.
“We tried for all those years to get a petition before the court, we went to the High Court and it said you have to get the law changed so we did — he could not have gotten anywhere without us,’’ he said.
When contacted by The Advertiser on Friday, Mr Barbaro declined to comment.
“I will not comment on matters passing between my client and I. Such matters are privileged,’’ he said.
Mr Keogh could not be contacted for comment.
In a letter Mr Hegarty wrote to Mr Barbaro in February, he details the work completed by various lawyers and asks to be advised of “ … the current status of Mr Keogh’s claim for compensation.’’
He states Mr Borick “estimates his account to total $1.5 million’’.
“This is not an excessive charge given the work undertaken by Mr Borick QC in over 10 years of active representation and furtherance of Mr Keogh’s fight against what has been clearly shown to be a miscarriage of justice,’’ he states.
“My own claim is around $350,000 for all work done in my practice since 2007 in support of Mr Keogh.
“Clearly, we are entitled to claim reasonable fees for the enormous amount of professional time involved, given that we were unable to earn our regular fees during the time spent working on Mr Keogh’s case.’’
As part of his efforts to recover unpaid fees, Mr Borick wrote to Law Society of SA president Tim Mellor on April 11 to request assistance.
Mr Borick said he had put his mind to seeking payment from Mr Keogh when he abruptly terminated his services in August, 2011.
Mr Hegarty was also terminated several months later.
“As the matter developed and we got the right of appeal for him, I became even more determined I should be paid,’’ Mr Borick said.
He said Mr Hegarty had written to Mr Barbaro seeking details about any claim Mr Keogh was making against the state because he wanted their accounts included in any such claim. There was no response to their request.
“I think it is unacceptable,’’ he said.
Mr Borick said the only redress he and Mr Hegarty now had was to take civil action against the state for payment of their legal fees. He has taken legal advice from two barristers indicating he has a case.
“I was put through an enormous amount of work to prove fraud existed in this case and there were serious miscarriages of justice based on the fraudulent conduct … and in my view, I am entitled to sue the government for my costs,’’ he said.
Mr Borick said despite the fact the Keogh case had been finalised, he still believed there was a need for a full inquiry into every case Dr Manock was involved with.
“I think it is clear there has never been anything like this in any criminal justice system in the world,’’ Mr Borick said.
He said it was his view the government may have believed compensating Mr Keogh without a civil trial “was the quickest way out’’ of the dilemma it faced involving Dr Manock.
“It gets rid of the basic problem which is before the people because the falsity of Dr Manock has never been put before the people,’’ he said.
If Mr Keogh had launched civil action for compensation, all evidence involving him in the case would have been closely examined. Similarly, any wider inquiry into Dr Manock’s conduct would reveal the full exposure the government faced.