Ladies and gentlemen, presenting… the computer operation, displayed on a projector. Photographs scanned live to the jury. Correction of distortions. Demonstrations of layering techniques, one photo on top of another. Photographic terms: negatives, prints, low and high resolution. The jury has the screen right in front of it, following everything as he speaks. The public gallery and the press can also see it.
The original negatives, Garner tells Byrne, were of such excellent quality they were considered gold, by today’s standard. So good, they were able to glean an enormous amount of information from them that wasn’t visible in 1985. The photographs that were printed then were poor quality and underexposed, resulting in loss of tonal quality and information contained in the picture.
The jury is leaning forward, intent on the show. What is that information?
The photos, Garner says, were first printed to achieve the best quality reproduction and then scanned. And there it was. The second bite mark, never seen before.
Garner has the jury in his hand, a triumphant showman. He had hoped they would be computer literate, so they could comprehend what he is saying. They do. His preparation has been impeccable. His rehearsals have paid off.
Raymond Carroll is also absorbed in Garner’s show. He knows a lot about computers, and, on the whole, would rather spend time with them than with most people he has met.
Garner is explaining the G-scale used in the original photos and some of the problems in the scaling. ‘Now,’ he says, ‘by odd coincidence, I happen to have one for the benefit of the court that I managed to find in an old file somewhere.’ The jury smiles – always a good sign for the Crown – and Byrne grins. Garner is a character. All that is missing in this performance is the drum roll and a rabbit out of a hat.
Outlining problems in the scaling, Garner then moves on to show the wax scraping and ink-immersion techniques to the court.
Davis is singularly unimpressed with the theatre. Garner, he pounces, has no experience in matching teeth to dental models? He would agree that was Dr Forrest’s domain? Yes. Davis continues. These methods were entirely new, developed as they went along. Isn’t this the first time the ink-immersion system has been used in an actual case, the first time drag marks have been shown, and, as for this elaborate device for the second bite mark, isn’t it the first time he has ever done that?
Garner nods. ‘Yes.’
But he does not look the slightest bit crestfallen by the defence’s negative response. Davis has wheeled out a book written by the expert witness they intend to call from the United States, forensic odontologist Dr Raymond Bowers. Unbeknown to them, Garner has recently read the book and disagreed with propositions Bowers has made about scaling. It degenerates into light entertainment for the jury. ‘Why are you laughing?’ Davis asks, gruffly. Garner grins at him. ‘I am not laughing. I am most interested in what you are saying.’
Garner knows that the Crown has the back-up of Dr Peter Adams, a mathematical expert the prosecution intends to call. But he doesn’t share this with Davis, who goes in hard to discredit Garner’s evidence.
It is obvious to the Crown that the defence is going to challenge on the second bite mark, developed through the technology. The US expert Bowers’s advice to the defence is that the technology of comparing the bite mark using computer-imaging is total rubbish and would not work. Byrne has called their own expert witness, Dr Peter Adams, into his chambers for a conference and asks Adams what he thinks of the report. ‘It’s OK,’ he says, ‘but there’s just a few problems with it.’ Byrne asks him what they are, and he points to the graph the American had drawn. ‘See this? It’s a little bit out.’
Byrne quizzes him further. ‘What do you call a “little bit out?”’
‘Oh, 50 per cent,’ Adams says.
He demonstrates what he means and Byrne nearly falls over.
Byrne calls Adams on a Friday, when everyone is preparing to wrap for the week. The likelihood of defence wanting to cross-examine at this end of the week is slim. What he tells the court blows them out of the water. He demonstrates, using mathematical evidence, that Bowers is wrong. Adams is a complete natural on the stand, and as soon as he’d finished, Davis calls Byrne aside and asks, ‘Is this bloke fair dinkum?’
‘Of course he’s fair dinkum!’ Byrne tells him.
‘Right,’ Davis says ‘I’ll be making a phone call tonight to call off our bloke from America.’
The mathematical and scientific evidence is hard going, and the court adjourns at 11. 25 for a 15-minute break. At 11.52, the court resumes. Justice Muir is impatiently tapping his fingers, waiting for Davis to arrive and he is clearly agitated when he does. ‘Mr Davis,’ Muir reprimands, ‘15 minutes doesn’t mean 20 or something else.’
‘I’m sorry, your Honour. I thought I was back in a lot of time. I made a mistake. I very much apologise.’
Red-faced, Davis takes his seat and Michael Byrne chalks one up. Anything that unsettles the defence, works for him.
Alexander Stewart Forrest outlines his credentials: lecturer in Oral Biology at the University of Queensland, employed by the John Tonge Centre as a forensic odontologist. Master of Dental Science with a Graduate Diploma in Education. Worked as a consultant since 1994 and performed cases under his mentor, Dr Kon Romaniuk. He is the same in the witness box as he is socially: an intriguing mix of seriousness and excitability, given to using formal expressions to explain his theories. One must acknowledge … One has a view … One needs to postulate …
He tells the court how he makes impressions of teeth, using material that sets like jelly in a representation of their exact shape. Once the model is ready, he scans it on the computer, corrects any distortions and then scans a photograph of a suspect’s teeth over the top of the model. Davis is already rolling his eyes. This technology is designed to make teeth fit. Any teeth.
Forrest is describing Carroll’s teeth – the uppers stick out with respect to the lowers – and explaining to the jury the mechanics of biting, scanning, scaling and wax scrapings. It is sounding like a lecture to dentistry students. Eight teeth in each quadrant … The tooth closest to the centre is known as tooth one, the next tooth two … Occlusal is the biting surfaces of back teeth, mesial any tooth closest to the midline … A journalist, bored with listening to odontologists holding forth ad nauseum on dentistry, shifts in his seat and yawns. Forrest is posing a question: in examining a wound, what do odontologists ask? Is it a bite? Is it human? The journalist nudges a colleague and passes him a note. Is it a bird? Is it a plane? Is it nearly over?
The position of the teeth and the arch, Forrest tells the jury, has left clues behind. The bite was taken slightly from the side, not head-on and the immersion techniques are a guide to how the teeth would have made contact with the tissue: in effect, a contour map. A contour map. Davis groans to himself. What next?
In testing their theory, Forrest continues, he and Garner had taken 25 sets of randomly selected teeth of people of similar ages – including sets of teeth from Faye and Barry Kennedy – and had digitally recorded them. It proved their point: it was unlikely that a randomly chosen set of teeth would produce the same mark. There was no match at all.
It is his opinion, he tells the court, that the drag marks seen on Deidre’s leg were made by the teeth of the accused and that both arches in bite mark one matched Carroll’s teeth. The second bite mark, he says, was also a match. Ragged edges in the wound were consistent with Carroll’s fractured teeth in 1973.
Have you, Byrne asks, attempted to reverse the teeth marks in bite mark one – to put the lower set of teeth where the uppers are placed, and vice versa?
‘Yes,’ Forrest nods. ‘We found no correlation.’
They adjourn for the day, spilling out into the bright late-afternoon sunlight. The journalist who had grown increasingly tired of the dental evidence grunts as he checks his watch. He hasn’t got long to write his copy for tomorrow’s edition, and he’s now got the added unpleasant task of trying t
o explain inconsistencies between dental evidence in the first and second trial and the challenge of making it interesting for the average reader. He imagines the headline: ‘Odontologists Don’t Know Which End is Up’. He grumbles as he thumps along the footpath back to the newsroom. He doubts his editor will find it funny.
Day 10. Barry Kennedy is recalled for cross-examination on his cousin Keith. He looks pitifully uncomfortable, desperate to get out of the witness stand. The exhibit goes up again, and Byrne has a simple question. In 1973, were his cousin Keith’s teeth the same as that? Can he say?
‘Yes. I think so,’ Barry replies. ‘As far as I can tell, yes. They don’t appear to have changed at any time.’
The Crown’s response is to get Keith Kennedy in and have a look at his teeth, but Byrne is warned that was a bit hard. He is dead. It doesn’t faze Colin Bamford; told that Keith is buried in New Zealand, his response is immediate, ‘No worries. Dig him up.’ Fortunately, it doesn’t come to that. The very clear, close-up family photograph that shows Keith smiling, and his teeth in all their glory. There is, Bamford says, no way in the world that those teeth could have made the marks on Deidre’s thigh.
Davis also has a couple of questions. ‘In that photograph, he is shown to have blond hair. He has always had blond hair?’
‘Yes.’
‘And how tall does Keith stand?’
‘He’d have to be about 5 foot 10. He’s slightly shorter than me.’
Justice Muir smiles benignly from the bench. ‘Thank you, Mr Kennedy. You’re excused.’
Alex Forrest is back the next day, refreshed from rest and keen as a boy scout to continue his evidence. He, too, is shown the photograph of Keith Kennedy. Could his teeth, Byrne asks, have caused the bruise in bite mark one?
‘No,’ Forrest answers. ‘His diastema would exclude him totally.’ And he most certainly does not agree that the bruising on the photograph is so diffuse that he would not be able to discount him as having inflicted the bite. It is his opinion, he concludes, that there is sufficient information in these bite marks to allow the implication of the specific individual.
‘And that is?’
‘That is Raymond John Carroll.’
Davis is ready for Forrest, comparing his experience in bite-mark cases with that of the expert witness Dr Whittaker, who the defence intends to call. Forrest: eight bite mark cases at time of the time of committal, 16 by trial; Whittaker, more than 200. Byrne knows what is going to come next, that wordless moment before the defence pounces.
Did he, Davis asks, take the evidence given at the 1985 murder trial into account? Did he think it relevant?
‘I believe very much one has to take that into account, yes.’
Is Forrest aware, he asks, that all three odontologists at the murder trial gave the opinion it was Raymond Carroll who had left the bite mark, but that all of them said, on oath, that the higher bruise mark shown on the photograph was left by the top row of teeth? Yes, Forrest says, he is aware of that. And would he agree that all three men are vastly more experienced than him in bite mark analysis? Sims and Brown, yes. Romaniuk, no.
‘Well, all three of them have, in effect, got the bite upside down?’
‘We believe that to be true, yes.’
Davis pours scorn on Forrest’s comparison of photographs of the bite marks with other people’s casts of teeth. ‘So really, aren’t they just simply randomly selected people from the public who happened not to have killed Deidre Kennedy?’
Davis affects a puzzled look before Forrest answers his question. That is correct, he says, but it is relevant, because it demonstrates the unlikelihood of making a comparison by accident.
The other mark, Forrest reiterates, was made by the suspender-belt clip. On cue, Garner moves the digital imaging over the top of the photograph to show the jury. Byrne affords himself a brief glance at the jury. They understand. They believe. They can see it. If this continues, it will be like convincing non-believers of a miracle Resurrection.
Davis won’t be won over. It is pure speculation, he asserts. Just pure speculation. ‘You are very proud of this computer-imaging, aren’t you?… And in presenting this technology, you have got to overcome the opinion of Sims, Brown, Romaniuk, Whittaker and indeed the people who did the post-mortem.’
‘I accept that completely.’
By day 11, Davis is telling Forrest that his analysis is fundamentally flawed, that it is anatomically impossible to line up the marks as he has done. The so-called drag marks are just bruises. The whole area is just a heap of smudgy bruises. Forrest has simply picked at certain features in order to uphold his hypothesis.
Tempers are starting to fray. Byrne has asked Forrest a question in re-examination and Davis is fed up. ‘Your Honour, I ask my learned friend to lead this witness carefully on issues that have arisen in cross-examination, rather than just to invite a lecture. Now I have forgotten what the question was. He has been going on for about 10 minutes …’
Overruled.
When Forrest steps down from the witness stand, Garner grins at him. Carroll’s eyes follow Forrest as he leaves the court, but his head remains still.
40
Dr Colin Bamford is gravely ill. No longer the robust, solidly built man who dominated the committal hearing, his wafer-thin flesh sags on his 180cm frame and his once thick mane of sandy hair is now just a combover of pitiful wisps. Aged in his late fifties, within months he will be dead from the cancer that is gnawing at him. His doctors advised him against this trip, but he was determined to fly from the United Kingdom, to see this case to its close.
Bamford is well placed to give court evidence. In a Kiwi accent laced with cockney, he outlines his impressive credentials. Degree in dental surgery and Diploma of Forensic Odontology. Bachelor of Laws, with Honours. Membership of numerous dental associations.
Byrne is keen to show that his amiable and brilliant witness is highly experienced in identification using teeth. As ill as Bamford is, his laidback style impresses the jury. He is easy to like. ‘In terms of identification by dental means, I’ve been involved in quite a few mass disasters,’ he tells the court. He lists them, a litany of lost lives. The Herald Free Enterprise, a car ferry that sank in the English Channel with 150 dead as a result. London’s Underground Rail disaster. Identification of the 60 Chinese illegal immigrants who had tried to enter the United Kingdom in the back of a container and in which 58 died in the attempt.
He has given expert dental evidence on various criminal matters. Child abuse. Rape. Murder. Bite marks in inanimate objects such as cheese or apples. A murder case where the killer was identified by teeth marks in a Mars Bar. An armed robbery and murder where the defendant had chewed the plastic butt of a car key, and left his signature in the dental marking.
He reiterates to the court what he told Garner and Herpich when they visited him in London: that there are two clearly evident marks and that it was plain which were made by the upper and which from the lower, by the size and pattern of the marks.
‘How,’ Byrne asks him, ‘would he make identification from the material they had?’
‘I would actually do an acetate tracing of the dentition … which is very useful in eliminating anybody as a preliminary measure. This new digital technology,’ he adds, ‘is actually a refinement of this technique.’
He identifies the teeth responsible for upper bite mark one. The biter’s upper and lower teeth don’t meet, he explains. It is a non-uniform arch, and there is evident crowding in the mouth from some teeth. A normal dentition could bite a tissue paper and tear it apart. This dentition could not. The back teeth would have to be used to bite and chew –
‘And how,’ Byrne interjects, ‘do those bruises match the dentition that you have there?’
‘They correlate very nicely with the lower front teeth.’
Bamford scoffs at the idea, raised earlier by the defence, that black-and-white photographs, used in this trial, are of little benefit. ‘Colour is more graphi
c, obviously in terms of bruising and ageing, but, in the identification of individual marks, there is nothing wrong with black and white.’ He argues that the photo seems to have been taken at the correct angle, perpendicular to the skin and the mark.
Of the lower bite mark one, Bamford says that the marks match the dentition, including the shape of the arch. He considers the match to be of a very high standard.
He is a perfect witness – fluid, easy to understand and believable – and he has the jury’s full attention. For Byrne, he is manna from heaven. ‘Now, Doctor, we will see that not all the teeth on that dentition have left bruising. Does that cause you any concern?’
‘No. It is well known that you are not going to get a mark if no tooth exists but the same is not true in converse. You can often get a break in the injuries that have been left, even though the tooth does, in fact, exist.’
‘Why is that?’
‘Possibly the angle from which the dentition struck the skin, or it could be caused by different levels of teeth, which would be an obvious reason for it not to show up. But, nevertheless, you still get wounds where one or other teeth do not actually make an imprint or mark.’ He explains that this is the case even if there is an angle in the bite.
The second bite mark, he opines, though not as clear as the first, also matches the dentition. ‘I think,’ he says, ‘this dentition has caused that mark.’
‘What do you say to a proposition that the bruise is so diffuse as to not allow an identification to be made?’ Byrne asks quietly, gently adjusting his gown as his question tapers off.
‘I would disagree.’
‘Why is that?’
‘I think there is plenty of definition there.’
Justice In Jeopardy Page 24
