Herpich’s offsider, Detective Bob Hitch, is quickly dispatched to locate her. It doesn’t take long to find her.
Desley Hill opens the fly-wire door and squints as Hitch shows her his ID. It’s a stinking hot March day and her chubby, round face is flushed and sweaty. How this policeman has found her out here, at Lee Creek in South Australia, she doesn’t have a clue. Come all this way just to talk to her about Raymond Carroll.
Desley strikes Hitch as credible. ‘Gawd,’ she says, ‘fancy after all this time, Raymond’s name coming up again. Fancy.’
Hill talks in a flat voice. She knew Raymond had been charged with the baby’s murder in 1985, she tells Hitch, but she reckoned if the police wanted to ask her anything then, they’d have found her, wouldn’t they? She is happy to talk about Raymond, and Hitch helps jog her memory, taking her through the years. It was all such a long time ago.
She tells her story. Raymond had visited her at the unit where she lived with her parents, but they’re dead now. Yeah, she can remember when it was. She was pregnant to a bloke who took off when she told him about the baby, and she was waiting for the cot to be delivered the next day. Well and she got a real shock because she hadn’t seen Raymond in a long while and here he was. Then the news come on, about the dead baby they found in the park only that morning. She’d never seen Raymond shitty or moody before but he just took off, real quick, said he had to go home because his mother was sick.
Hitch has been around long enough to know a thing or two about appraising a witness. Desley probably didn’t have the best education, but she seems honest. If her story is true, it’s dynamite.
Garner knows it is, too, when he hears back from Hitch. ‘But,’ he says to Forrest, with whom he regularly bounces around ideas, ‘Desley is only a silver medal. She puts Carroll at her unit in Brisbane the day after Deidre’s murder. It’s the gold medal we need. Where was he on the night of her murder?’
The defence team jumps as soon as they hear about Desley Hill. Preparation for a trial of this magnitude is lengthy and intense. Both prosecution and defence have a huge amount of groundwork to cover, checking witness statements, tying off loose ends, looking for holes in opposing pre-trial arguments.
Based partly on the unreliability of a jailhouse confession made 16 years before and the lack of opportunity for Carroll to test Desley’s allegations, they argue in a voir dire – a hearing where the admissibility of evidence or the competency of a witness is tested – for a stay of proceedings. A stay, which halts any further action by order of the court, may be temporary or permanent, pending further legal argument or until certain regulations are met.
The trial judge, Justice Muir, rules that exclusion of Swifte’s evidence would likely result in the prosecution not proceeding. It does not, he states, appear to him that a stay should be ordered on this ground. He also rules Desley Hill’s evidence admissible and the digital evidence ‘plainly unobjectionable’. The application by the defence is rejected.
It is decided that Graham Bradshaw would not be called as a witness at the Supreme Court hearing. No records can be found of Carroll ever attending Point Cook, though this meant little, according to John Reynolds. RAAF personnel move around all the time and Carroll didn’t have to be stationed there. He might have just gone in for a day or so. The RAAF records were never the strongest point of the murder trial, so it meant nothing to Reynolds that any possible visit there by Carroll wasn’t recorded or kept. Bradshaw was a strong witness, because in that he never changed his story. He was adamant that Carroll spoke to him at Point Cook, and not at any other base.
Carroll is equally adamant that he never spoke to Graham Bradshaw anywhere. ‘I do not know who this man is,’ he writes to his solicitors as a rebuttal in May 2000.
I have never seen him before except at the Committal and under no circumstances have I ever approached him and said words to the effect that ‘I have just committed a murder’. I have never been stationed at Point Cook and I have never received any training – all electrical fitting training was always conducted at Wagga – there was no provision for it at Point Cook … there is no record of me ever being there and no reason why I should have been …
Peter Davis, Carroll’s barrister, believes that no records of Carroll ever being at Point Cook indicates a credibility problem for Bradshaw and that he would be slaughtered by the defence if he appeared. The Crown was wise to jettison him as a witness.
Davis, in private practice but paid by Legal Aid to represent Carroll at the perjury trial, cannot recall seeing Brown’s report. Brown did not forward it directly to him. The prosecution team did not offer it, which they were not obliged to do. ‘And Herpich,’ Davis wrote to me when questioned, ‘never offered anything to me. Ever.’
Prosecution and defence jockey into position for the start of the trial. The case will be heard in a blaze of publicity, the lawyers’ expertise under the spotlight. There is not long to go now, before it starts.
PART FOUR
Perjury Trial: October 2000
‘Dental identification is as old as the Bible. The first mention was in Genesis. It had to do with a woman, a serpent and an apple.’
Dr Bernard Sims, Senior Lecturer, Forensic Odontology, University of London
34
‘Arraign the accused.’.
Indictment: that on the eighth day of March 1985 at Brisbane in the state of Queensland in the judicial proceedings, namely the trial of Raymond John Carroll, you murdered one Deidre Maree Kennedy and knowingly gave false testimony to the effect that you did not kill the said Deidre Kennedy and the false testimony touched a matter which was material to a question then pending in these proceedings.
Plea?
Not Guilty.
35
In the days leading to the start of the trial, Michael Byrne ticks off the strengths and weaknesses of the Crown case. To bring a new case against Carroll requires the Department of Public Prosecution to have substantial new evidence not available at the original trial. Byrne sees the inefficiencies in the first trial as being the expert dental evidence – corrected now, he thinks by the digital technology and the discovery of the new bite mark that had not previously been documented. Interpretation of that evidence in light of the mechanics of biting is also a feature, producing evidence that has not been recognised before.
The evidence of Joy Meyers, thrown out at the first appeal, has been re-admitted. The Crown now also has evidence of Carroll’s presence at Edinburgh, bolstered by a new photograph that showed he wasn’t there. They did not have this photo at the first trial. There is the jail confession, for what it is worth, by Swifte. Byrne takes that with a grain of salt, knowing jail confessions are easily manufactured, but he has the impression from Swifte that he is being truthful. And they have Carroll’s former girlfriend, Desley Hill.
Mindful that a perjury charge can only be pursued on the condition they have fresh evidence and satisfied that they have fully tested whether that evidence breaches double jeopardy rules, the prosecution team is confident their case is strong enough to carry it through to a jury verdict in favour of the Crown.
Byrne strides across George Street to the Supreme Court of Queensland, pin-stripe suit under wig and gown. The DPP is ready to go.
Byrne is to face off against Peter Davis. Forty-year-old Davis had graduated in law with honours and was admitted to the Bar in August 1990. Known for his rapier wit and decimation of weak witnesses, he is a resolute and worthy opponent for Byrne, who is regarded as one of the state’s sharpest prosecutors.
Like Byrne, he was only a young man when he first heard the Deidre Kennedy story – 13 years old, in Year Eight, numbed with horror at hearing a baby had been tossed on top of a toilet block. For the young teenager, it was a turning point in his understanding of human nature, but also the time, he now believes, that Queensland – sunny, perfect Queensland – lost its innocence.
Everything is in order, Court 14 packed on this twenty-seventh day of October 200
0 for the opening of The Queen v Raymond John Carroll. The public, vying for the best seats in the house amongst the smattering of lawyers and students, settle into position. Monitors to display the digital evidence are provided to the judge, legal teams and jurors, and a projector with large white screen centred so expert evidence can be shown to the court.
It is a rectangular room, green carpet, seats set against cream walls and sombre dark wood-panelling. The dock, in front of the public seating at the back of the court, has a high glass back and a wooden rail in front. The jury is seated on the left, so close to the defence team they can smell their nerves and a small media table accommodates the press at the back left-hand section of the court.
Lawyers sip water and adjust their wigs, silently preparing their thoughts. Davis has his own theory, even before proceedings start: the Crown’s evidence is ludicrous, the trial is an absolute circus, and the only living victims are the Kennedys.
Justice John Muir, dark-haired and of medium build, has presided over many controversial cases. Highly intelligent, he is skilled in the delicate handling of witnesses, lawyers and jurors and sympathetic to the needs of Faye Kennedy and her family. Muir is also extremely switched on with respect to technical equipment, capable of quickly picking up on inherent inaccuracies. Given the computer technology shown during the trial, it is a skill for which Forrest and Garner will be thankful.
Muir’s instructions to the jury are succinct: they must reach a verdict according to the evidence and put out of their mind anything they may have seen, read or heard about the circumstances of the case. Their decision must be made on the evidence alone and the onus of proof must be beyond reasonable doubt. It is for the jury to decide whether the witnesses are credible and truthful.
He explains how the trial will unfold. The Crown will open its case and call its witnesses. The defence, if they wish, can cross-examine each of those witnesses in turn and the Crown may then re-examine to clarify any confusion. The accused – Raymond John Carroll – can give evidence but is not under any obligation to do so. The onus of proof rests with the Crown and never moves from the Crown. The accused is innocent, until proven guilty.
Still regarded as being a no-flight risk, Carroll is to be bailed every afternoon until the jury starts deliberations at the end of the trial.
Michael Byrne has the air of a conservative, shy boy on his first day at boarding school, an illusion that is quickly dispelled when he launches into his ruthless opening address. Some male jurors lean forward, resting their elbows on their knees. The women sit back, hands locked in their laps.
‘Ladies and gentlemen. Deidre Kennedy was only 17 months old when she was abducted, sexually abused and brutally murdered. Her body, which had been grotesquely dressed in women’s clothing, was dumped on the roof of a toilet block in Limestone Park at Ipswich, which is just a short distance from the home from which she was abducted. The Crown says to you, and makes no bones about the fact that it says to you, that the person who did that to Deidre Kennedy is amongst us in this courtroom …’ He pauses for dramatic effect, glancing at Carroll. ‘The Crown alleges, and it’s central to the Crown case, that the person sitting in that dock, Raymond John Carroll, is the person who the Crown will prove, beyond reasonable doubt, murdered Deidre Kennedy …’
The jury – six men and six women – turn toward the dock. Carroll looks as immaculate in the dock as he had in his RAAF uniform. Ironed shirt, tie straight, hair slicked down. A model of respectability, a middle-aged father of four. Sitting quietly composed, staring at something only he can see in his mind’s eye. It is a memory that will always stay with Michael Byrne. He recalls Carroll had the persona of a man who was thinking, ‘what’s going on here? It doesn’t concern me.’ He behaved like a man of straw. Flat, emotionless. No smile. No frown. No nothing.
Her brother’s demeanour does not surprise Sandra. He has always been like this. In her opinion, the press again would misconstrue his body language. They always did.
Through the see-through plastic that separates Carroll in the dock from the rest of the courtroom, the jury can see Faye Kennedy seated behind him. The same hands that had ironed her husband’s air-force uniform into perfect creases and that had lovingly held Deidre as she snuggled against her shoulder, now kneads a handkerchief like worry beads in one small fist, her other hand grasped in Derek’s.
Byrne concludes his opening address and calls his first witness, Detective-Sergeant Cameron Scott Herpich. Peter Davis had wanted Faye and Barry up first, to save them the trauma of waiting, but Herpich had wanted to sit in court and hear evidence. He couldn’t do that until he had completed his own evidence, and it had been a tense moment the day before between him and Davis, who was adamant he should wait. Herpich won.
He moves to the witness stand, walking in deliberate, precise steps. It has taken more than three years to prepare this case for court and, as its chief investigator, he feels the pressure. Not just for himself, but for his team, and for Faye. Especially Faye. He clears his throat, and waits for Byrne’s first question.
Outlining how he was asked to re-investigate the case after Graham Bradshaw and, later, Trevor Swifte came forward following the Sunday Mail article, Herpich details his contact with Dr Bernard Sims and Dr Colin Bamford in London. Then, in response to Byrne’s queries, he moves on to what he had done in relation to Swifte. ‘I made inquiries in relation to the information that he told me … and I wanted to make sure that, in fact, Swifte and the accused were in jail at the same time.’
‘Did you obtain a gate book from Boggo Road to that effect?’ Herpich nods.
Yes, Herpich replies, he did. And a reception register for mail that showed Swifte entered the jail on 17 February 1984 and that Carroll followed 10 days later, on 27 February.
Shortly after this, Peter Davis starts his cross-examination. ‘Your brief,’ he asks Herpich, ‘was to reinvestigate the matter and conduct a full review? And, when you commence an investigation, you commence it with an open mind, don’t you?’
Herpich agrees.
‘And normally you have no suspects in mind when you commence your investigation?’
‘I couldn’t agree with that.’ Herpich has anticipated the defence questions and is as steady as a camera on a tripod. Solid, determined. He answers that his job is to either prove or disprove what he had been told, to see whether a further prosecution is warranted. He agrees Mr Carroll was a central point in the investigation but not the whole focus. He denies he set out to nail Carroll. If evidence had turned up to clear him, he says, then that’s the way it would have gone.
Davis moves on to questions about fingerprints. Yes, Herpich says, he was aware that there were some identifiable, but not identified, prints taken from the Kennedy flat and that the fingerprints remained unidentified. He had asked the fingerprint bureau to run the prints against the national database again, but it was a huge task, with prints now piled up from 1973 to 1998. ‘It is not my job as a detective,’ he says with a hint of high dudgeon, ‘to go and rerun fingerprints or to identify people from fingerprints.’
Davis has got under his guard, and now suddenly moves back to Swifte. Did he not do some investigations at Boggo Road Prison to ascertain whether it was possible for Carroll to have had the opportunity to confess to Swifte? And doesn’t the reception book show when people are received into the jail, but not released from it? Correct. ‘When was Carroll released?’ Davis is waiting, poised.
‘His prison file has been archived, destroyed. I can’t tell you. All his release dates and so on would have been in that particular file.’ RAAF records are gone, too. It happened 27 years ago; documents were archived and later destroyed. ‘I can’t tell you what documents were actually destroyed because of the way the RAAF record the destruction of records …’ Herpich, his brown eyes set against a stern face that creases when he smiles, doesn’t smile now. No, he admits, he could not locate any RAAF document that would put Carroll at Edinburgh or somewhere else.
Police had 24 boxes of evidence relating to the murder. Twenty-four boxes that he meticulously went through, reviewing the old files with, he insists, no pre-conceived ideas about who was guilty. But he couldn’t check the doorknock evidence. All the 3500 males who were spoken to during the doorknocks were fingerprinted and their prints checked against those found at the flat and toilet block, but the doorknock evidence was missing. He is unsure in which floods it was destroyed. He knows there were floods in 1974, but doesn’t know if they went in the floods that followed, in the late seventies or early eighties.
Faye Kennedy trembles as she stands on the witness stand, close to tears as she identifies police photographs of Deidre’s bedroom. Gone is the open face and easy smile of the girl raised in the scrub, replaced with deep stress lines filled with sorrow. There is desperation in her answers, and Michael Byrne silently wills her to keep going, not to break. He wants this over, fast. Her heartache is unbearable to witness. The jury turns away when she falters, embarrassed at being voyeurs of her heartache.
It is Davis’s turn to cross-examine. She had checked the aluminium sliding window when she went into the girls’ room the second time that night, but did she, he asks, hear it click into a locked position? Does she know what happened? ‘I couldn’t say, yes, I did hear it click or no, I didn’t hear it click at this point.’ Davis pushes on. Wouldn’t it be her automatic action to push it closed until she heard it click? Slide and lock. And she has no reason to think that wasn’t what occurred on this particular night? Is that right? Mmm. Did she draw the curtains closed, for no other reason other than making sure the room would be as dark as possible in the morning so the girls wouldn’t wake too early? A sudden frown crosses Faye’s face, a look boardering on anger. ‘That was never a concern … I remember leaning across the bed and swishing the curtains across. As to how far they closed, I had no reason to go into my girls’ bedroom and lock it up as a fortress. It was just never in our upbringing.’ Davis is on shaky ground. The jury’s sympathy is firmly with Faye Kennedy and he senses it is an opportune time to back off. ‘I’m not for a moment suggesting …’ Right. Thank you.
Justice In Jeopardy Page 21
