Experts called by the Crown in 1985 and again at this trial, he says, have made contradictory statements on which teeth had caused which marks, and the 27-year-old black-and-white photograph of bite marks on Deidre Kennedy is so bad it could not possibly be used to identify her killer. The defence, he says, will call Dr David Whittaker, a bite mark expert from Wales. Whittaker will explain that the photographs of the bite marks used by the Crown experts were of such poor quality that they should never have been used and that the bruising shown in the photographs is so diverse it is impossible to match the bites with a cast made of Carroll’s teeth. ‘The Crown assumption that the teeth marks can be matched to Carroll is flawed,’ Davis says. Defence will also call Raymond Carroll’s mother, Ilma.
Ilma Carroll, now 70 years old, is bewildered and scared on the stand, her eyes flicking around the court, searching for familiar faces. No one else in her family has been called to give evidence. She avoids looking at Faye Kennedy, torn between the sadness she feels at Faye’s loss and the maternal anger that her son has been dragged into a second trial. Over the decades, her own tears have worn creases in her face, sliding down her cheeks like a waterfall on rock. Ilma’s answers to questions are often confused, born of extreme nervousness. Being in this witness stand is a hideous ordeal.
After Raymond joined the RAAF, she says, she did not see him again until May 1973 when she was staying with her sister and youngest three children at Casino in New South Wales. He just showed up, out of the blue, and she remembers his visit because it was the Mother’s Day weekend. After he married Joy Meyers, the couple lived with her until they were posted to Darwin. She never noticed any abnormal injuries on Kerry-Ann when they were living with her, but she remembers the day Deidre went missing. ‘It was such a horrific thing. Everybody knew about it. It’s not something that you forget very easily.’
Her health was good, as was the children’s, except for normal colds and flus. Certainly nothing significant enough to warrant calling Raymond home from recruit course. Peter had to be hospitalised a month after Deidre disappeared to stop his nosebleeds, but that was all. Nothing significant. The house was visited by police when they did the doorknock, but she told them there was only one male living there at the time. Peter.
Ilma is cross-examined by Byrne, who dispatches her quickly. Would she agree that after her husband died in 1971 she had told the first trial that Raymond effectively had become the head of the family? Yes. Does she recall taking the children, Leanne and Peter, to the doctor’s clinic? Well no, she says, but if that’s what she said last time, then that must have been what she did.
‘Do you remember saying that last time, that you don’t remember what you took them there for?’
‘Probably for a check-up, they might have had colds; I don’t know.’
Byrne is now uncustomarily blunt. ‘I’m not interested about probably – can you recall or not?’
‘No, I can’t.’
‘That’s all I have; thank you, your Honour.’
The court clerk is asking if Senior-Sergeant Garner could take his position again, please? Garner moves to the computer with light steps. He is ready when the good doctor is.
Whittaker’s resume spans 30 years. Doctor of Forensic Dentistry, Oral Biology and Philosophy at the University of Wales. Bachelor of Dental Surgery, University of Manchester. Fellow of the Royal Society of Arts … Puffed-up, but pleasant.
Whittaker has been involved in 223 bite mark cases. He has used the computer overlay technique, he says, in more than 100 cases and believes it should simply be an aid to the whole process of bite mark analysis, not used in isolation. Identification cannot be made just from diffuse bruising; there must be marks that identify features of individual teeth, teeth marks, shapes, twists.
Davis looks pleased. This absolutely contradicts the evidence of the Crown’s dental experts. And when, later, Davis asks, ‘Can you throw any light on whether the top row of bruises was likely to have been caused by a top or bottom set of teeth?’, he had even further cause to smile.
‘From studying the photographs alone,’ Whittaker announces in his thick Welsh accent, ‘I concluded that this question was not possible to answer with 100 per cent certainty because there is insufficient information here to be absolutely sure. I concluded the top arch was more likely to have been produced by someone’s lower teeth.’
Now it is Garner’s turn to smile; the eminent overseas doctor is agreeing with their orientation of the mark. But Whittaker has not finished. ‘I concluded it is a rather poor representation of what I do believe is a bite mark.’
Poor enough, Davis hopes, to prevent any definite identification by the jury of who caused the mark.
The court adjourns for the day and everyone appears relieved. It really is becoming heavy weather.
Davis continues his evidence-in-chief of his witness the following day.
‘Now, doctor, yesterday we spoke about …’Whittaker smiles confidently at Davis, lifts the bottom of his tie and lets it flutter back into position. He is relaxed, as though he is about to attend a gentleman’s lunch at an exclusive club instead of being an expert witness at a perjury trial. ‘… The suggestion that the photograph would enable a positive identification of a person. What do you say about that?’
‘When I examined this photograph and when I examine it now, I would say that it would be impossible to, with certainty, identify a person making that injury from teeth.’ It is to get worse. Romaniuk’s replication of Carroll’s teeth, in his opinion, was not an accurate representation and there was no way of telling what position the teeth were in before the dentist had started his work.
Whittaker perceives dangers in the immersion layer technique, agreeing with the defence argument that it was subjective, depending on how far the operator decided to tilt the teeth. And, he opines, the bruising also suggests the biter has a gap between his front teeth. Garner knows exactly what he is driving at. Davis will undoubtedly return to this.
And what, Davis asks, does the doctor make of the Crown’s hypothesis about how bite mark one was inflicted?
‘No one can open their mouth to this extent and swing to that extent physically. It is impossible.’ Whittaker lists the points that suggest Carroll is not the biter. He would have to have moved his jaw into an anti-clockwise position to make the mark. The gap in the bruise mark needs to be explained in greater detail. There is not enough detail in the cluster of bruises to separate one tooth from another. There is no apparent gap between the very light bruise at the left of the lower arch and the main bruise. ‘I believe,’ he says, ‘there are so many negatives in this situation that it is unsafe to conclude that Carroll made this bite …’ He cannot see any drag marks, cannot make any identification from bite mark two.
Davis moves back to Keith Kennedy. ‘The Crown witnesses have said that the existence of that diastema excludes him as the biter. What do you say about the proposition?’
‘Not in itself, I wouldn’t accept that.’
Here it is. Based on his past form and unusual diastema, it is the defence’s intention to put Keith Kennedy, now deceased, squarely in the frame for the abduction and murder of his niece Deidre.
Byrne turns slightly in his chair, speaks quietly to his junior, Sharon Loder.
The defence is indicating they have no further questions and Byrne stands, steering straight to an attack on Whittaker’s credentials. ‘Can we just go back … you gave evidence that you were the doctor of both forensic dentistry and oral biology at the University of Wales?’ Whittaker agrees. ‘And my learned friend asked you how long you had held that position and you said you had held it in various formats for 30 years … What you are saying is you have been an academic for 30 years?’
‘Yes.’
‘You have been a doctor for how long?’
Whittaker now looks abashed. ‘I have been a doctor in that department for about three months.’
Byrne lets the statement float in the air for the jury to cat
ch.
He is now reading from a report Whittaker prepared for the defence. ‘You say, “It cannot be assumed that the bite mark was perpetrated by the same person who killed the child.” What do you mean by that?’
What he means, Whittaker replies, is he has seen cases where a bite mark has been independent of death. And he hadn’t been briefed on the details leading up to Deidre’s abduction.
‘See, Doctor, I don’t want to be critical,’ Byrne finally says, with a touch of ice in his voice, ‘but you seem to be raising new material every time I get you to a point …’
Whittaker doesn’t know how Deidre was dressed. He doesn’t know if a clip made the mark. It seems a reasonable proposition that it did, but, beyond that, he just can’t say.
Byrne is struggling to keep the derision from his voice. ‘And were you being serious before when you suggested that the mark could be a rogue freckle?’ He is hoeing into him now. ‘Doctor, the point comes down to this: you make no mention in your report of any possibility of a diastema in respect to that mark?’ Surely, he demands, if there was such a suggestion, he would have mentioned it? Hadn’t he written a book, which he had omitted to tell the court had joint authorship, which read: ‘The condition [diastema] is sufficiently striking to be useful as an identification pointer?’
Yes, Whittaker says. He would agree with that.
‘See, doctor …’ Byrne now has the witness so far on the back foot, he is giving him no room to manoeuvre. Up goes the exhibit of Keith Kennedy’s teeth, again. ‘I suggest, with great respect, that experts in the field have testified that it is impossible for the teeth shown in that photograph to leave that mark, and I suggest, with great respect, you are simply not being objective?’
‘I haven’t said they could, I don’t think. I haven’t been asked that question, I don’t believe.’
‘I thought I had asked you that.’
‘I don’t believe I have been asked that question. I thought I was asked to describe that the teeth had a space between them.’
‘Well, I am suggesting to you those teeth could not make that mark.’
Davis is looking directly at his witness, as Whittaker starts to speak. ‘From what I can see here, which is limited …’Whittaker flicks at the photograph in front of him, ‘I don’t think they could. I don’t believe I have said they could. I have only just seen this and I haven’t really considered it.’
But wasn’t he shown the picture last week and given as much time as he needed to form an opinion? Is it now his opinion that they wouldn’t?
No, Whittaker retorts, it is his opinion that there just isn’t enough information in the mark to form an opinion.
‘But it is unlikely they did?’
‘It is unlikely.’
Davis’s re-examination is relatively brief, and, when he finishes, he inclines toward the bench with a slight tip of his head. ‘Your Honour, that is the case for the accused.’
John Garner doesn’t think much of Whittaker’s performance. They bring a bloke out from overseas because he’s supposedly better than the local guys, he thinks, and his evidence is all over the place about Keith Kennedy, until he finally admits it is unlikely he was the biter. He has also got up with a set of dental models – the ones taken in 1999 – and goes on and on about it. The jury picks up that he had the wrong set, and he continues to waffle on about details that weren’t there in 1985. Garner can see what is happening but can’t get the message across to the prosecutor. A doctor of dentistry has picked up the wrong set of teeth! How, he thinks, is that possible? How on earth is that possible?
43
It is almost over, the last scenes about to be played in a drama no one has wanted to watch. Faye is agitated, withdrawn, reserving her strength for what is to come. Derek is at breaking point, overwhelmed and disgusted by the evidence he has heard. Stephanie has arrived now from her home in Sydney, and Barry stays mostly silent, save for when someone speaks to him. Cameron Herpich has been a presence throughout, a constant buffer for Faye against unwarranted intrusions.
For all of the family, whatever the outcome, there will be no triumph. If the Crown loses, they will be back where they started. If they win, it will be a victory carved hollow by the reality that nothing can bring Deidre back. From now, the press seats will start to fill again, the story picking up pace and dominating newspapers and bulletins as it draws to its inevitable close.
The trial has lasted 19 days and Michael Byrne’s closing address is as lethal as his opening. Skipping lightly over the evidence of the controversial witnesses, he has the jury’s full attention as he outlines, again, the poignant, tragic story of baby Deidre and the evidence against Raymond Carroll. Direct. Forensic. Circumstantial.
If ever a jury is going to go watery, it is now. Weeks of listening to evidence, to different points of view; tired, possibly unsure … this is when the real pressure begins. This is the time to rein the jurors in, put the story in a succinct wrapper, reiterate what they have heard. The time to knock out any doubts, replace them with certainties, remind them that the onus of proof rests with the Crown and what the Crown believes is the truth. And what is that truth? That the accused, Raymond John Carroll, is charged before them with one count of perjury and is guilty of that charge. Byrne looks directly at the jury, resting momentarily on each face. The women look exhausted, distressed; the men upright, attentive. There is so much tension in the court, it is as though he can reach out and touch it.
Byrne picks his moment before continuing in his deep, mellifluous voice. The criminal law, he says, like families and victims, can be patient and relentless. It relies on a jury to assess the evidence. And it is that evidence that will lead them to conclude that no other than Raymond Carroll abducted and murdered Deidre, and that he had lied when he said he did not. A smoking gun and a dead body are not direct evidence. It is circumstantial and the essence of a circumstantial case is fitting the pieces of evidence together, like a jigsaw puzzle. Add opportunity to lies, build it piece by piece, and there it is: an overwhelming case against the accused. And why did he lie? To cover up his guilt and fear of the truth coming out.
Byrne wants to remind the jury of an essential fact. ‘There is a tendency for people coming into an atmosphere such as this to think this is a special world. It’s a world where the players wear wigs and gowns and where the world behaves in a different way and you have to assess people when they give their evidence in some sort of special way. None of that is true. You must use your own common sense and experience of human nature when you assess witnesses. The basic fabric of our criminal justice system depends on that.’
What would anyone have to gain from lying about Carroll’s movements or his behaviour? The RAAF recruits were just young men off to their first posting, the start of their career. They had nothing to gain from lying. Memories fade, but photographs don’t, Byrne says. Carroll was not in the passing-out parade photo. And this is not just a family snapshot, but an official RAAF photograph. He is nowhere to be seen. Why? Because, the Crown says, he wasn’t there. And the women, his ex-wife Joy Meyers and ex-lover, Desley Hill? Are they really just harbouring festering resentments, all those years later? Hardly likely. The jury has heard them, seen them. It is hardly likely.
What of the other pieces of evidence – wanting to call his own daughter Deidre, and biting Kerry-Ann on the thigh? The jury, Byrne says, might think a person would be stupid to behave like that. ‘Well, killers aren’t necessarily that clever …’ He dispatches the rest of the evidence from the defence as no more than a red herring.
And Swifte? He had waited years to speak out. ‘Swifte is someone who knows that to manipulate the system is a two-edged sword. You can get a reduced sentence. But to be labelled a prison dog or informer can have its own consequences.’
The evidence to date, Byrne continues, is this. The Crown says it could prove the accused left Edinburgh on 12 April; was in Ipswich on 14 April; that he told deliberate, calculated and repeated lies to distanc
e himself from those two events; and that he was within walking distance of where Deidre Kennedy was abducted and her body left …
Byrne signifies that his address is finished, sits back in his seat. It’s over to the jury, now.
It is the defence’s turn to sum up. Davis reminds the jury that during the trial they have heard a lot of contentious evidence and that they must focus on the truth in relation to that evidence. But, he says, one thing was not contentious. ‘Although this is a perjury trial, the central issue here is a murder …’He reiterates the bare bones of the Crown case, addressing the jury as though they are well known to him. Old friends, with whom he can share intimate stories. ‘Quite often, people come up to me and say, “Oh, gee, you’re defending that bloke,” and they say, “Oh, he must be a monster.” Well, the answer to that, of course, is nothing’s been proven against him yet … the real issue is whether he did it. In order to come to grips with that, in my submission to you, the first thing you have to do is put aside the horror of it and look dispassionately at the evidence, otherwise you’ll just be taken away, swept up in the horror of it all, the emotion of it all. Remember, it is a dreadful thing for young Deidre Kennedy to have been killed, but it’s also pretty dreadful for a man, perhaps who is innocent to be accused of it, let alone to be convicted.’ This, he says, was the same man who volunteered samples to police – hardly the actions of someone who is acting out of a consciousness of guilt.
He slips into easy colloquialism. The description Nugget Carroll gave doesn’t come within cooee of matching that of his client. Nugget couldn’t identify even one of the photos as being the prowler. And, for that matter, where are those photographs? Is it the case that the police had a suspect as early as a day or so after the murder?
Justice In Jeopardy Page 26