Byrne was in Grade 12 when the first trial ran, but he still vividly remembers the story. How it impacted on the public because of the bizarre nature of the murder. Such a sad, stark image: a dead baby with bite marks, dressed in women’s underwear. And it is because he remembers the story that he will prosecute it with zeal.
It is the pictures that finally convince him. Alex Forrest and John Garner move through their area of expertise, showing Byrne the computerised images they are sure will persuade him to run with the case. ‘Look at the bite marks through the digital imaging,’ they say. ‘Then tell us you’re not sure.’
It is a pivotal moment for Byrne. He knows it is a high-profile case that will be closely followed by lawyers, a challenge with inherent difficulties – not the least of which is the time since the murder and the death of some key witnesses, such as ‘Nugget’ Carroll.
Fuelled by a passionate belief in justice, Byrne knows he needs to bypass the double jeopardy laws and avoid any vestige of this being a re-trial for murder. The evidence had to prove that Carroll had lied when he gave evidence at the murder trial that he did not kill Deidre Kennedy.
30
Dr Ken Brown has carefully stored the two sets of Carroll’s dental casts – one given to him from John Reynolds in November 1983 and the other by Kon Romaniuk after he had made his modifications – at the Forensic Odontology Unit at Adelaide University. He shakes his head, mystified that the original casts needed for corroboration of Romaniuk’s modification had simply disappeared.
Housed in the old medical school at the end of a labyrinth of corridors, the Odontology Unit – the first in Australia established in 1980 – has the quiet, faintly musky air of scholarly research, its walls adorned with charts of cases where forensic odontology has triumphed over crime. Even here, two stories above the medical laboratory where bodies offered to the University for scientific research lie on the slab in bloated degrees of embalmment, the dead seem to speak louder than the living.
Brown has retained all the material he had used at the first trial. On 24 April 1997, he hands to Herpich two sets of upper and lower casts of the teeth of Raymond John Carroll. He wants to use his casts, as the originals have been lost. He also asks for photocopies of any relevant material Brown has.
Garner assumes that the jury will know nothing about computers and that he will need to explain the equipment they will use. When he gets this to court, it must be clear that no wizardry or sleight of hand has been used.
They use the standard, commercially available software program Adobe Photoshop to compare scanned images taken on a flat-bed scanner. When a photograph or any other object is scanned, it distorts and stretches and every scanner introduces some degree of error. He will explain how to correct those errors in simple language. But the second bite is trickier; he will need to use a more elaborate comparison method to twist the image to match the photograph, at the same time keeping it in scale with the original.
In the months leading up to trial, there is a constant development of technology, though Garner has some practical problems to sort out first. Photographs taken at the time of the initial investigation – aerial shots of Ipswich, street orientations, houses – have been glued together, damaged by floodwaters that had seeped into Gundelach’s basement. Garner has to separate them as best he can, in order to present originals. Many photographs need reprinting, and some are beyond repair.
To maintain impartiality, Garner and Forrest start from scratch, untainted by evidence given in the first trial. They know their evidence will have to stand up to scrutiny, not just by experts in Australia but also overseas. They decide to check the digital evidence they have with the three experts from the original trial.
Kon Romaniuk, disabled by his head injuries, is unable to be of assistance. The next person on their list, Dr Bernard Sims, lives in the UK and it takes six months to get clearance from the Queensland Police Service to go to London. By early September 1997, Herpich and Garner are on their way to speak with Sims and show him their new technology.
Genial as ever, Sims is happy to share his expert opinion on the Deidre Kennedy case. Then he makes an unheralded announcement. He rather likes the technology, he says, but in his opinion they have the teeth upside down. Because Garner and Forrest have deliberately not looked at the earlier evidence, this is the first time they realise that the way the odontologists had aligned it in the first trial was opposite to their orientation. Garner questions him further about what was said at the first trial.
Sims’s response shocks Garner. He wasn’t asked, he tells Garner, about which way was up. It can go either way – right side up or upside down, he says. It doesn’t make any difference. It will make the same mark.
Garner looks at Cameron Herpich, who has turned deathly pale. They thank Sims for his time, and hastily depart. Back at their hotel room, Herpich is ready to write off the case. He is less than impressed that, having taken months to get clearance to come to London and interview the world’s leading authority on bite marks, Sims, was now telling them they had the teeth upside down. Herpich is more than just nervous; he can see his entire career sliding down the tubes.
But if Herpich is concerned at what Sims has just told them, Garner is amazed. ‘Think about it,’ he tells Herpich. ‘How can a set of teeth make the same mark from both directions? It is anatomically impossible.’
In the hotel room, Garner demonstrates the method they had devised in Australia. ‘The basic failure in the original Crown case,’ he tells Herpich, ‘was that Sims thought the teeth would make certain characteristic marks, without testing to see if this concept was valid. I’m going to prove to you by demonstrating that his notion could not be right.’
Garner sits back after the demonstration and grins at Herpich. ‘See? It’s anatomically impossible.’
Sims had also advised them to show the computer imaging to the Director of the Met in London, which they do shortly after. He says little when the demonstration ends.
Herpich and Garner next want to speak to British forensic scientist Colin Bamford who works at New Scotland Yard, helping police identify victims and criminals from dental evidence. The Yard is near Westminster Abbey and Britain is in preparation for the funeral service of Princess Diana. The streets near the palace are awash with flowers, and Garner and Herpich’s initial conversation with the brilliant scientist and barrister concerns only the princess’s sudden death. But now they need to get to work. They do not mention the real reason for their visit, that they are re-examining the Deidre Kennedy case. As Garner would later admit, they had to con him to get in his door. They ask to take some of his time to show him an interesting program they put together and for his opinion as to its value. They start with facial reconstruction and superimposition.
Bamford is underwhelmed. ‘If we can get a family photograph of a deceased, we can superimpose the soft tissue onto the skeletal remains,’ he tells them. ‘This is certainly a good program, but nothing new in the UK. Do you have anything else?’
‘We’ve also got a program we’ve been working on in relation to bite marks,’ Garner volunteers. ‘We’d like to show you that.’
The presentation takes the entire afternoon, and this time Bamford is impressed. ‘It’s certainly more advanced than anything I’ve seen to date. The computer technology is very good.’ The odontologist still uses the tracing method.
Garner senses the time is right, hands him a photograph. ‘Can you tell us what this is?’ he asks.
‘Yes, of course. It’s a bite mark.’
‘Animal, mineral or vegetable?’
‘It’s human all right.’
‘OK.’ Garner draws an unsteady breath. ‘This is actually a case which is up and running now. Could you please tell us which are the upper teeth and which are the lower?’
Bamford immediately orientates the mark. ‘The top bruise has been left by the lower teeth, the bottom bruise by the upper.’
Garner can’t believe what he is hearing. �
�Are you sure? You can clearly see that?’
‘Um … yes.’ Bamford raises a quizzical brow. One of few scientists in the world experienced in bite mark identification, he was clearly perplexed at the questioning. ‘Why do you ask?’
‘Well, that’s how we read it, too.’
‘Well, there is no other way to read it. Why are you so concerned about the orientation of the teeth?’
Garner looks at Herpich. It is time to come clean.
Bamford listens and shakes his head. ‘Sorry, but it is absolutely impossible for teeth to go either way. And the way I’ve just told you the mark is oriented is the right way. Look, what’s this all about?’
‘We should perhaps have mentioned this at the start,’ Garner admits. ‘We didn’t, because we wanted a completely independent judgment. It’s about a little girl who was murdered in Queensland –’
Bamford cuts him off. ‘Deidre Kennedy? You’re working on the Deidre Kennedy case?’
Garner nods vigorously, a habit he has when he is excited at a turn in an investigation. Bamford keeps talking. ‘Every time I go into court that story is raised. It put bite mark cases back into the dark ages. There’s not a forensic odontologist in the world who doesn’t know about that baby.’
Impressed with their digital technology, Bamford provides Garner and Herpich with a statement for court purposes about how he orientated the bite marks and a copy of a British Court of Appeal judgment given against Sims, relating to an earlier misdiagnosis he had made. He will, Bamford assures them, make himself available to fly out to Australia to give evidence any time he is required.
31
A month after returning to Australia from London, Cameron Herpich, Detective Fredericks (now working on the case), John Garner, Dr Alex Forrest and Dr Davies attend a meeting of the International Association of Cranio-Facial Identification at Melbourne University. Dr Ken Brown was a founder of that association and intended going to the meeting, but a last-minute phone call about his gravely ill mother has forced him to cancel. She dies the next morning.
The team has organised to show people at the meeting a presentation of their new computer imaging and Dr Brown is outraged when he hears about it later. They called each person in separately, he says, showed them the new evidence and then got each to sign a document to say they agreed with it. People with no expertise whatsoever in bite marks were presenting what he describes as this so-called ‘new evidence’.
The atmosphere at the meeting is decidedly tense and Garner soon finds out why. This case is extremely controversial and their efforts are seen by many as a direct attack on Dr Brown. Every expert in that room knows that Brown’s alignment at the first trial was similar to Sims, and so the new technology is perceived as a direct challenge to Brown, known in dental circles as the ‘father of forensic odontology’ in Australia. To their discredit, Garner says, many at the meeting simply refused to even look at the evidence, because they were seen as a major threat to the Forensic Odontologist ‘order’ and created factions within it. But, Garner argues strenuously, that is not what they were about. They were just trying to get to the truth about Deidre’s murder.
Dr Brown’s daughter-in-law, Jane Taylor – also a forensic odontologist – has attended on Brown’s behalf and is horrified by what she sees. She refuses to sign anything.
Statements are provided by five dental experts from around Australia and overseas, including a Dr Pamela Craig who works at the Melbourne University dental school. These doctors, Garner says, gave precisely the same information relating to the teeth and the bite mark match as he and his colleagues had aligned it. The importance of this was that there would be no grounds on which the Court of Criminal Appeal decision could be repeated.
Shortly after the meeting, Professor John Clement of the School of Dental Science at the University of Melbourne, asks Garner and the team to leave the university. Garner believes it shows that the lines are now well and truly drawn between ‘the old and the new order’ of forensic odontology.
With Jane Taylor present, Garner and Herpich run through their presentation with Brown in Adelaide and offer him the chance to review it in his own time, using their computer if required. Dr Brown is far from impressed. He does not, he says, appreciate the way his opinion has been corralled. He tells them he doesn’t need to keep their computer, as they have been using the same system for 12 months, and that he will review what they show him and write a report about it. Knowing that a new charge against Raymond Carroll is imminent, Brown makes his feelings plain to Herpich and Garner. The odontology evidence as presented to him by them should never go to a second trial.
For a start, he says, they have the diastema – the space some people have between their two front teeth – wrong. About a week after their presentation, they phone and tell him that they have fixed up the problem and send him down a photo. In Brown’s view, they just do not know what they are talking about.
Brown asks them who else had seen the new evidence. They choose not to tell him, but they let enough slip for Brown to work out that they’ve been to London and spoken to Bernard Sims. He phones Bernard that night and, sure enough, his hunch is confirmed.
Brown asks his old colleague what he had thought of the evidence. There is a slight pause at the other end of the line. ‘I advised them to take it around to the Director of the Met laboratory in London, to see what he thought.’
‘And what did he think?’
Sims gives a grim chuckle. ‘Not much.’
In June 1998, Brown writes his blunt assessment of what he calls the ‘New Evidence in the Carroll Case’, which is intended for both the prosecution and defence to read at any subsequent hearing or trial. He sends a copy to the officer in charge of Queensland Police Forensic Services, Terry Stewart, John Garner’s inspector. According to Brown, Stewart agreed with his ideas completely and made it clear he had urged the police department not to support it. Brown also confers with a Doctor of Physics at the University of Adelaide, the former superintendent in charge of Forensic Sciences at the South Australian Police Department and with the DPP, Paul Rofe, who would later resign, under pressure from that office. He tells them the methods cause him no small concern, that it can impact not only on the Carroll case but on others where this technology can be used to review cases. Brown knows that his opinions will not go down well with Garner and Herpich. They are diametrically opposed.
Dr Brown’s paper leaves the reader in no doubt as to his opinion. ‘I had,’ he has written, ‘previously been informed by telephone that further investigation of the Carroll case had been initiated in the light of new evidence which, it was expected, would vindicate the original conviction which had been set aside on appeal …’ He barely contained his sarcasm, and reserved special criticism for the second bite mark.
In view of all these issues, he concluded that ‘… it would require a courageous decision by a prosecutor to proceed with a prosecution.’
Brown wonders how long it will take Cameron Herpich to ring and respond to his report. He doesn’t have long to wait. He rings and takes umbrage at what Brown has written. Brown is unperturbed. ‘You asked for my comments, I have made my comments and I stand by them,’ he tells Herpich.
John Garner has been using the QPS computer at the Photographic Section at police headquarters in Brisbane to work on digital imaging of the Kennedy evidence, but decides that the best way to continue to keep the material safe is in his own time on his home computer.
A benefactor gives Garner a powerful computer and high-resolution scanner, which allows him to re-scan all the images. The detail in the higher-resolution images allows superb detail.
From the time Garner starts using his home computer on the case, he and his associates each clock up more than 1000 hours of their own time.
The crown dental witnesses have made a breakthrough. Cameron Herpich has shown them a photograph of Deidre dressed in underwear, which clearly details the placement of the suspender clip. It will become central t
o their evidence: now, they will be able to demonstrate that the mark caused by the clip was independent of the toothmark, and part of bite mark number one.
32
12 February 1999. Marilyn, now living with Carroll as his de facto wife in Ipswich, is completely dumbfounded. Cameron Herpich, Peter Barron and other detectives she does not recognise are standing on her doorstep, summer’s unrelenting heat blasting through the open door. What do they want this time?
Herpich flashes his ID card. ‘Is Raymond John Carroll home?’
‘Yeah, he’s sick in bed. Why do you want him?’
‘Could we talk to him, please?’
She sighs, opens the door and gestures for them to come inside. Marilyn’s children are getting ready for school, fretting about why the police are here, and she hurries them across to a neighbour.
Marilyn – flame-red hair cropped into short spikes, mouth crinkled from heavy smoking and face the colour of chalk – speaks in a suburban patois, laced with frequent additions of ‘and that’. Herpich, she recalls with high dudgeon, sort of ‘storms in’, and when Raymond comes out, all they say is it’s about Deidre Kennedy and they ask him did he do it? Raymond says ‘no’ and they just say, right, you’ve gotta come with us.
The detective follows Carroll into the room while he dresses, and Herpich stays in the lounge room with Marilyn. She is highly agitated. ‘I’ve got a right to know what’s going on! Tell me!’
He won’t. Stock-still and stony-faced, he handcuffs Carroll and walks him out to the car. Carroll doesn’t know why they need to handcuff him. All part of the show, he supposes.
Justice In Jeopardy Page 19
