Barry Kennedy is outside court with Faye, Stephanie, Derek and the police. He declines the opportunity to join them for a celebratory drink, muttering that he would have a drink with his brother instead. It sounds thoughtless, and he is sorry for that. But the truth is he has no interest in sharing this private moment with Cameron Herpich, whom he believes has treated him with utter disdain by not keeping him up to speed on an investigation about his own daughter.
Barry walks along George Street in the opposite direction.
The prison van is leaving the Supreme Court, a grim Carroll hunched in the back cage. The vehicle is heading to the Arthur Gorrie Correctional Centre, where his classification will be assessed in the remand area. Camera crews film the van as it leaves the court precinct, and a handful of people mingle to give him a send-off. ‘Filthy bastard! I hope you burn in hell!’ a woman screams out.
‘Don’t worry, hell is where he’s headed,’ a bloke mutters. ‘He’ll be bashed senseless as soon as he gets there.’
The Queensland Times, in simple language, covers the verdict on its front page. ‘LIAR.’ Lauded by the popular press as a victory of common sense over the law, one journalist sounds a note of caution.
Thwarted on the murder charge, the prosecution nailed [Carroll] through the back door charge of perjury. It was a salutary reminder to those of a criminal bent – and their allies – that the justice system has a multitude of weapons in its arsenal. But the perjury option is a weapon of limited value while accused people cannot be compelled to give sworn testimony. Our system, of course, is not always about finding out the truth …
The perjury option is good enough for Faye, who speaks gently to Deidre before she goes to sleep that night. ‘It’s over at last, Dee Dee darling. We’re free of it now.’
PART FIVE
Perjury Acquittal: October 2000
‘Appeal. In law, to put the dice into the box for another throw.’
(Ambrose Bierce 1842-1914)
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Peter Davis and Liz Wilson are vigorous in attacking the Crown’s evidence and they prepare numerous grounds for appeal. Identification using bite marks was inadmissible and should have been excluded. Forensic odontology had not reached a stage of scientific development that enabled identification of an offender by comparison of a cast of the suspect’s teeth with a photograph showing diffuse bruising. The evidence of the witnesses Hill, Ferguson, Grinter, Gnezdihoff and Swifte was inadmissible, unsafe and unsatisfactory. It was an abuse of process based on the double jeopardy principles. Much of the evidence was circumstantial. The judge should have stayed the prosecution as no fair trial could be achieved due to time delay and lost evidence.
Davis knows from the outset his case is strong. A jury will hang a man on emotion; the Appeals Court only sees fact and logic.
Carroll has been in Wacol for nine months. Liz Wilson has now opted out of the case and Carroll’s new defence barrister, Milton Griffin, with Peter Davis as his junior, is arguing it before the Queensland Court of Appeal. Griffin, admitted to the Bar in 1975, is known as a fine legal intellectual with extensive experience in criminal law. He took silk in December 1999, 10 months before his appearance for Carroll, funded by Legal Aid.
His client’s conviction, he tells the court, may not be legal because it was predicated on the Crown effectively running a second murder trial. He had been acquitted of murder, was immune from other trials on that charge and should be released from prison immediately. Michael Byrne rises to argue the contrary. Carroll, he says, had given false testimony. The perjury conviction should stand and Carroll’s sentence increased on the grounds that it is manifestly inadequate.
Justice Glen Williams errs on the side of the defence. He writes in his judgment:
It really was a retrial for murder rather than a perjury trial … the indictment identifies the lie as being that he hadn’t killed her, and that seems to me the very thing a jury wasn’t entitled to do – to retry on that particular issue.
The only real issue is whether Carroll had told a lie when in that trial he said he did not kill Deidre Kennedy.
And what was the prosecution’s case? Opportunity. Hill’s evidence. The appellant’s propensity – supported by canteen worker Diane Ferguson – for biting small children. Odontological evidence. The jail confession to Swifte.
In his written judgment, Justice Williams launches straight into an attack on the witnesses’ ‘new evidence’. Hill’s and Ferguson’s statements, he notes, did not amount to proof that Carroll had perjured himself at his murder trial. At best, he concedes, it might ‘strengthen a circumstantial case … that he was responsible for the death, but that was not the main issue at this trial’.
He tears Swifte’s evidence apart; critically, his claim that he had spoken to Carroll at Boggo Road over a couple of days, the time when he said he had cautioned him he was a ‘shot duck’ because bite marks were as good as fingerprints. He questions, also, Swifte’s failure to reveal the confession between February 1984 and the trial in February 1985. Swifte’s decision to ignore the advice of the prison officer who had told him to speak to someone else about Carroll’s confession comes under fire. By the time of the perjury trial, the officer to whom he had allegedly spoken was dead. And Swifte’s reason for ignoring the advice – because he did not want to get involved – was not, according to Williams, a satisfactory explanation.
The vision of the child at the end of the bed was quickly dispatched; whether caused by delirium tremors or a true apparition, it had earned him a reduction in his prison sentence. Williams criticises the trial judge for not referring to some of Swifte’s assertions in his summing-up, including his claim that his conversations with Carroll had taken place over a number of days.
While the judge had warned that Swifte’s evidence should be treated with ‘extreme caution’, Williams has gone further:
What the jury were not told … was that [it] was highly unlikely to be true (perhaps more likely to be untrue) because the appellant had been in Boggo Road for no more than approximately 24 hours. There was clearly no time for Swifte to have had the series of conversations he swore to over a ‘couple of days’. The underlying premise in Swifte’s evidence is that it was not on the first occasion they met in Boggo Road that the alleged confession to murder was made. That came at a later date …
Williams then delivers his coup de grâce.
[Swifte’s] evidence should have been excluded. It could not meet the test of being substantial new evidence … Not only was it not excluded at trial, but it went to the jury on that basis that they could, subject to a mild warning, accept it as direct evidence of a confession …
The jury decision, he writes, was ‘unsafe and unsatisfactory’ – sufficient, in his view, to set the conviction aside.
He then turns to opportunity. The evidence at the perjury trial, he notes, was substantially the same as that at the murder trial, save for Desley Hill’s assertions. Her parents – the two people she said were at the house when Carroll visited on 14 April 1973 – were dead and her story could not be checked. Hill, he continues, had been approached by a police officer in March 2000 and she had admitted he had jogged her memory. ‘It seems clear that some input from the police officer was necessary in order for the witness Hill to be able to place the events in question in point of time.’ The judge criticises her placing of the date in context with her pregnancy. ‘Her evidence immediately runs into problems because there is no doubt [Carroll] … was on the Edinburgh base …’ Hill, he notes, was able to pinpoint the date she saw Carroll by the news item of Deidre Kennedy’s murder, but was unclear about other events around that time. Her evidence, he concludes, did not positively place Carroll in Ipswich, was not new and significant, and did not substantially point to perjury.
The time lapse between April 1973 and November 2000, Williams writes, clouded clear recollections of RAAF witnesses. Relevant RAAF documents had been lost. And the photograph?
It is correct that on th
e murder trial, [Carroll] gave evidence of where he was standing at the material time. True that [it] shows some part of the general area referred to by the appellant. But that does not prove he was not there; he could have been just outside the area shown …
After making a logical, objective assessment of the entire evidence, on 21 September 2001 the three justices of the Court of Criminal Appeal – President Margaret McMurdo and Justices Williams and Holmes – deliver their unanimous decision. Appeal allowed. Conviction set aside and accused acquitted. Appeal by Attorney-General against sentence dismissed.
Carroll knows the decision is going to be handed down today, goes around to the blokes in the yard with a cocky jaunt, and says, ‘See you later.’ A short time after, he is called up to the office, told, ‘You’re outta here. Go and pack.’ He goes up to the visiting area, yells out ‘Yes!’ and throws all his gear together.
Raymond has been in jail for his first wedding anniversary. All the time he was inside, Marilyn cried. He had gone down for 12 years, a long time to be without him. The solicitors ring her at their home in Ipswich and tell her he’s been acquitted. Her first question is, ‘Can I go get him?’ She rings the prison and they say no, because they haven’t got the paperwork. After phone calls back and forth, it is nearly five o’clock, but finally she gets a call that says she can go and pick him up now. She gets in the car and drives as fast as she can get there.
Garner and Forrest are poised for the appeal decision, and decimated by it. Their new evidence had not passed the scrutiny of the appeal court, but they stand by it. ‘There is no question in my mind who produced those bite marks,’ Forrest comments. ‘I can’t say that Raymond Carroll is the person who murdered Deidre but the odds are so high that he was the biter as to make no difference from certainty. Because circulation was still occurring to produce bruising, I am confident she was alive when these marks were inflicted. Also, there was no evidence of bite marks on her before she went missing, which led us to this conclusion.’
They subjected the second bite, he says, to the same analysis as the first and again reached the same conclusions. ‘The balance of probability was that they were Carroll’s teeth. Two bite marks, analysed separately and independently, with the same patterns. Add the number of similarities and the case is very strong.’
Davis is pleased at the outcome. It speaks for itself. The basis of the Court of Criminal Appeal’s decision was that there was insufficient evidence in the Crown case to identify his client as Deidre Kennedy’s killer. He believes there were aspects of the evidence that had gaping holes. For example, he says, Cameron Herpich understandably wanted to bolster Swifte’s evidence by proving that Swifte and Carroll had been in jail together. That was obviously why the gate book was put into evidence. But, the book showed the day on which Carroll went into custody but not the date he came out and prison files apparently didn’t show when he came out. But, he says, everyone knew that Carroll had bail during the first trial so he would have thought that it was a simple task – which the defence actually did – to search the Supreme Court files and obtain a release date. The defence never produced documents substantiating the bail situation, because they were shown to Byrne who then made an admission to the jury about Carroll’s release. Swifte said the confession occurred after he and Carroll had been together for five days, but the Crown admitted they were only in jail together for about 24 hours. Davis has another thought. Isn’t it rather odd, that evidence was right under their nose in the legal centre of Brisbane – George St – but not looked at for the release date from Boggo Road? Yet, they can go halfway around the world, to London, to find incriminating evidence against Carroll? The bottom line, he ruminates, is this case should never have been re-opened. Right from the start, with those newspaper articles that were popping up like mushrooms about new witnesses, etc – it should have stayed closed. It only served to gut Faye and her family and was doomed to failure. In his opinion the evidence, quite simply, did not stack up.
When Faye hears the news of Carroll’s successful appeal and acquittal, she doesn’t go anywhere; instead sits in the gathering dark and stares into space. She does not move until daylight. In Longreach, Barry wanders about, stunned. This has become a nightmare, from which there now seems no escape.
PART SIX
High Court Appeal: 2002
‘We’ve lost, Faye. It’s all over.’
Detective-Sergeant Cameron Herpich
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Prosecutors immediately flag a High Court challenge, and John Reynolds demands one. ‘How can two juries be wrong … what the hell is happening to our judicial system?’ he fumes when he hears the decision. ‘I don’t think anyone can believe it, and it is just devastating for the family.’
In October 2001, Faye sends a letter to the Hon. Ron Welford, the Attorney-General of Queensland and the Minister for Justice. She calls it ‘A Mother’s Plea’. Setting out the details of Deidre’s story, she writes:
It seems to me that the Justice system has failed in every aspect. How can this person be found guilty by two separate juries and be allowed to walk free? It is my understanding that the reason we have juries in our Justice system is to make the decision as to guilty or not. How can a judge overrule this decision … Why do we bother with a jury? What is wrong with our Justice system or do we have one at all?… The Justice system most certainly needs to be revisited and a better system put into practice, or our laws need to be changed. I hereby beg you, Mr Welford, to grant us the opportunity for the Crown to take this case to the High Court so that justice can be served.
It is a big ask. Notoriously difficult to receive an audience with judges who sit on the Full Bench, the highest court in the land is riddled with stiff convention and concerned only with the minute detail of legal principles. Lawyers call it the toughest gig in town, where even the slightest blemish in their argument will send them packing. Make a mistake in front of those justices, they say, and lawyers are hosed, wigs and all out of court.
In March 2002, two judges failed to make a decision on whether the Crown should have special leave to appeal and refer to a full High Court. Faye’s wish is granted.
As homage to Deidre, the High Court is filled to capacity when it convenes three months later to hear legal submissions. Faye, Stephanie and Derek are flanked by Reynolds, Herpich, Forrest and Garner. Barry is in Longreach. Derek turns to see if Carroll is in court. He is not.
Michael Byrne addresses Chief Justice Gleeson and his four fellow justices. It is, as always, dressed in legalese. Byrne has two main grounds: that the Court of Appeal was wrong in its findings on the new evidence presented at trial and that it was wrong in finding the trial was an abuse of process.
Senior Counsel Milton Griffin and Peter Davis again appear for Carroll and argue that the question of whether he murdered Deidre has already been resolved by the Court of Appeal. The perjury trial, Griffin says, had simply added an extra ingredient – that he had told a lie – and was essentially no more than a relitigation of the central issue.
The High Court invites further submissions on aspects of Queensland’s Criminal Code and reserves its decision on whether the principle of double jeopardy has been breached.
The story is receiving blanket media coverage. Peter Davis sighs: here is yet another request from a television outlet to talk about the case. They seem to think that because Raymond Carroll and his family won’t talk, his lawyers are the next best chance. Davis won’t come to the party.
‘I am in receipt of various communications from you wherein you have advised that you are preparing to air a story on Mr Carroll’s case and inviting comment from those representing him,’ he replies to a journalist. ‘It is obvious from media reports since Mr Carroll’s acquittal in the Court of Appeal that some of those involved as witnesses for the prosecution of Mr Carroll are willing to discuss the case. That, of course, is a matter for those persons. Those defending Mr Carroll (myself included) take the view that it is inappropriate to ventilate, in
detail, aspects of the case until all litigation is concluded. Unfortunately, if you do not share this view then, given some of the Crown witnesses’ eagerness to speak about the matter, any report of yours will necessarily only tell one side of the story …’
The same people who attended the High Court hearing are waiting at Brisbane’s Federal Court building for the decision. Saying little, mute with tension, their hope is that if the outcome goes in their favour then Carroll could possibly be tried for a third time.
It is three weeks before Christmas, 29 years after Deidre’s death. The Full Bench of the High Court is handing down its judgment in Canberra and Byrne nervously keeps checking his watch. It shouldn’t be too much longer. Herpich’s hands are thrust deep into his pockets, his hands clenched into anxious fists.
A television journalist is walking toward Faye, a camera crew trailing in her wake. ‘I’m so sorry about the decision, Mrs Kennedy. It’s tragic.’
‘What decision? Has it come in?’
‘Oh. Haven’t you heard?’The reporter is visibly embarrassed, whips her head around to stare at Michael Byrne. ‘You haven’t heard yet?’ She is trying to back away. ‘Look, it hasn’t been confirmed. I’m sorry. Really sorry.’
Cameron Herpich feels it like a kick deep in his guts. Faye is looking at him, her face haunted with despair. ‘What does she mean, Cameron? What does she mean?’
Justice In Jeopardy Page 28
