He swallows hard. ‘We’ve lost, Faye. It’s all over.’
He reaches out to catch her as she collapses.
The written judgment has been presented in the stiff language of the judiciary. No jury here to cringe when they see the exhibits. No witnesses to cast doubts. No family members to weep as they hear the evidence. Five justices, examining points of law.
In a joint judgment, Chief Justice Gleeson and Justice Hayne say the Court of Appeal was right in staying the indictment for perjury. The issues at both trials, they argue, had the same focus: did Raymond Carroll kill Deidre Kennedy? Justices Mary Gaudron and William Gummow find the laying of the indictment constituted an abuse of process and was, simply, an attempt to relitigate the earlier prosecution. The Court of Appeal was correct as a matter of law. Justice Michael McHugh finds that the Crown’s appeal should be dismissed because the charge of perjury against Carroll undermined his acquittal of murder. The Crown’s appeal based on the new evidence has not been analysed by the High Court; its finding on the abuse of process, it says, did not make that necessary.
It is a judgment Carroll celebrates at his Ipswich home by punching the air and hugging Marilyn. They can never take his freedom away again.
For Faye Kennedy and her family, the findings mean only one thing: there are no avenues left.
Cameron Herpich wants to get Faye away from the media that has now surrounded them at the Federal Court building. Peter Davis is shocked when he sees Faye’s reaction. He thinks she is going to die, has never seen anyone that distraught, before or since. He feels terrible for her, but angry too that it had come to this in the first place.
Granite-jawed and distressed, Herpich holds on to her as they walk out through a side building. Weeping uncontrollably, a hand covering her mouth, Faye is bent over, crippled with emotional pain. The press is following them, and Herpich shepherds Faye into a restaurant, the only place they can seek refuge. He speaks to the journalists as he bars their entrance at the door. ‘Listen, enough is enough. You can see the state Mrs Kennedy is in. She has endured so much. Please leave her alone.’ The media retreats back down the street, already formulating their stories in their heads.
The press releases the story under headline banners and the letters to the editor pour in. No one understands the decision.
Devastated at the outcome, Michael Byrne is, at the same time, pragmatic. The Crown had done the best it could. It had a second go at Carroll. It had failed.
No one, he says, will ever know if Deidre’s sexual assault descended to rape, because the technology just wasn’t available to determine that at the time of her murder. At the first trial, evidence was led that the hairs found were similar to Carroll’s – that was the extent of the technology. By the time the second trial was being worked up, mitochondrial DNA testing had become widely used. It hadn’t been done in Queensland before, and the John Tonge Centre attempted to do it. Sadly, Byrne says, the hair was destroyed. There is absolutely no doubt in his mind that that evidence would have secured the truth of the killer’s involvement. But he recognises the irony that even if that had been proven to be Carroll’s pubic hair, the double jeopardy ruling would still have overturned that.
On the law, he says, it was found prior to trial that this was not double jeopardy. Carroll was tried and convicted for the murder and later acquitted, and the Crown didn’t go behind that. Eight years later he was tried for having told a lie in the witness box at his murder trial. Carroll didn’t, he says, have to get in the witness box; he didn’t have to tell a lie; but he did. If he hadn’t got in the witness stand, there wouldn’t have been a perjury prosecution. And that to Byrne is the greatest irony of all. What the High Court has said is that anyone has immunity from perjury. A person can take an oath, or an affirmation, to tell the truth and can do so without any sanction apart from biblical. And that doesn’t make any sense to him at all.
A comment by journalist Tony Koch in Brisbane’s Courier Mail encapsulates the public’s feeling:
The British legal system has served our type of democracy well for centuries. There is no argument that the appeal process is necessary and myriad examples exist where appeal judges have overturned injustices. But in the case of baby Deidre, the question will forever be asked how it came about that two separate juries – decades apart – could find a person was guilty in regard to her murder, but the verdicts never stood. Justice, in its most intricate exactness, might have been afforded Raymond John Carroll. But what justice has Deidre Kennedy – aged 17 months – ravaged and murdered and then thrown lifeless on to a toilet block, received?
PART SEVEN
Double Jeopardy
Nemo debet bis puniri pro uno delicto
(No man ought to be punished twice for one offence)
47
Following the High Court decision, in 2003 the Australian newspaper, under the stewardship of its editor-in-chief, Chris Mitchell, explores the legal option of bringing Carroll before a civil court. Unlike the legal system in the United States, which successfully – and spectacularly – re-tried OJ Simpson in a civil case, such a move is unprecedented in Australia. The legal fraternity is divided between the opinion that justice has not been served, and those who claim that bringing a civil action would be tantamount to persecution, not prosecution.
Mitchell, a former editor-in-chief of Brisbane’s Courier Mail, is well aware of the emotion generated in Queensland at the mere mention of the Kennedy story. A feeling of frustration, even resentment in that state, that two jury decisions were overturned. People, he muses, do not necessarily understand the technicalities of the law; all they want to know is, has justice been served, and, if not, is it going to be served?
The Australian looks to a British campaign by the Daily Mail newspaper that ultimately led to changes to the protection afforded by double jeopardy rules. It was a story all too familiar in a Britain riven by racial tensions. In 1993, 18-year-old black student Stephen Lawrence was stabbed to death by five white youths, all of whom were arrested. Whilst charges against two were dropped, three proceeded to trial where the jury was ordered to acquit. Under the terms of the double jeopardy principle, this ruled out any further charges being brought against them. The Daily Mail’s ‘Justice for Stephen Lawrence’ campaign was designed to lure the youths into suing for libel, which would entice them back into court. Bold headlines above their photographs carried a simple message. ‘Murderers.’
In February 1997, the Coroner’s Court ruled Stephen Lawrence’s death an unlawful killing and, five months later, the government established the McPherson Inquiry into the investigation and the culture of racism in the police force. By early 1998, the Blair government agreed to recommendations of the McPherson Inquiry; three years later, the Law Commission recommended that the rule against double jeopardy be changed with regard to murder, which it has been since.
Mitchell has little patience with civil libertarians who publicly denounce further legal options against Carroll as harassment or who claim an offer to fund any action is no more than a publicity stunt. Newspapers, he says, have an important role to play in exposing injustice and campaigning against it, whether that be at a personal or systemic level. The concept of double jeopardy does not apply in civil cases. The burden of proof is also markedly different: where the test in a Supreme Court is ‘beyond reasonable doubt’, a civil case turns on the balance of probability. Could a civil action be successful? It would first have to get to court, and their advice is that this case is right on the outer limits. But if it was given the green light, the Australian has been told that the chances with a civil jury are positive.
On behalf of the Australian, Queensland’s then Crime Commissioner, Tim Carmody, looks at the options to back a civil action. There are obvious problems. One was the time constraint, Mitchell says. In Queensland, the statutory limitation to bring such an action is between three and six years. Deidre Kennedy was murdered in 1973 – 31 years ago – so that would need to be addressed. In ef
fect, the Supreme Court would have to grant a time extension and that is by no means a given. The goal would also need to be realistic: what outcome is Faye Kennedy hoping for? It is not money – Carroll has none and this is not about money for Faye – so the basis of the action would likely be on the grounds of emotional distress. Because Carroll has been acquitted of both murder and perjury, then the best option may be to push the civil case on the grounds of the baby’s abduction.
Carmody finds that despite many obstacles, Faye Kennedy has grounds to take Carroll before a civil court and that if he could get it to a civil jury, he is optimistic about the possible outcome. He recognises that the High Court does not need to consider the strength of the evidence against Carroll on perjury, having already decided that to even bring the perjury charge into a criminal court amounted to a relevant abuse of process. That is the end of it; the strength of evidence is irrelevant. But civilly, Faye could take action for the delayed onset of nervous shock, which could override Queensland’s usual statutory period of limitation for a civil prosecution.
The office of Raymond Carroll’s solicitor, Peter Russo, is a short block from police headquarters: handy, as he spends half his working life there trying to keep his clients out of the nick.
Russo has a big voice, honed from years of snapping at police heels. He is a character, passionate to the point of obsession. You put two and two together, he says of the Carroll case, and what do you come up with? A mess.
The tensions against the defence, he says, were palpable in the Carroll case. Hysteria and media hype didn’t help. He admits people have ice in their veins if they aren’t moved by the story but would warn that one must look at the facts, not gut feeling.
Russo describes the evidence against Carroll as a whole heap of hocus-pocus. In his opinion, the teeth evidence was no better at the second trial than it was at the first, even with the advanced technology. He has his suspicions about why the police and the Crown pushed so hard: he thinks promises had been made to Faye Kennedy and they followed it through from there. The police, he says, always believe that they’ve got their man, but the reality is, they don’t always have. It’s just the way the system works.
Russo says the problem was the length of time between when the offence was first committed and when they ultimately charged Carroll. It added up, he believes, to a lost opportunity to solve something, making it more difficult to piece it all together.
Just because Carroll is a loner, he says, does not qualify him as a psychopath. And there is a quantum leap between mutilating female underwear, however distasteful that might be, to doing what they reckon Carroll did. He admits his advice to Carroll is to ignore the stories written over the years, insisting on his guilt despite two acquittals.
The media, he believes, have set traps for him, taunting him, go on, sue us for defamation. But the minute he sues, the shoe is on the other foot, and he then has to prove the case again, that what they said was not true. He doesn’t have the resources to take anyone on. It’s expensive to run a civil challenge and he can’t get Legal Aid for that.
Russo can’t understand why the police did not follow the description given by Nugget Carroll and says the other point police always want to gloss over is that it was total bedlam the day after it happened. This was not an inner city, densely populated area where it is easy for someone to hide. Everybody knows everybody else; you go into town, people know if there’s a stranger around and they know the kid who’s gone away to join the RAAF and come back for the weekend.
Props, make-believe, the law as theatre. The magician pulls a rabbit out of his hat. Sim-sala-bim. Smoke and mirrors. But there was no magic in Carroll’s appeal win. It’s not every day, Russo says, that the appeal courts interfere with a jury verdict. By his reckoning there was no magic in that, no trickery. The evidence was simply not sustainable.
The day we meet, I tell Russo I would like to inverview Carroll.
He laughs. Course I would. People have wanted to interview him for more than 20 years. But there is nothing to be achieved by him talking to me, he says. That’s just the sad reality of the situation.
Will Russo at least ask him on my behalf?
He will do that. But he knows what the answer will be.
No.
Barry Kennedy is no crusader. A reserved, quiet man, he returned to his roots after the breakdown of his marriage to Faye, back to hot and dusty outback Longreach. Far from big-city legal decisions, scientific argument and police investigations. He has not much time for the circus that rolled on through convictions, appeals and High Courts and even less for the double jeopardy laws. Laws are all very fine, he thinks, but try understanding them when it is your daughter who has been murdered. Law-makers, Barry believes, should walk in the shoes of the victims and their families when they make weighty decisions.
Of all the murder cases in Australian legal history, it is the Deidre Kennedy story that has pushed for changes to the double jeopardy law, the one story that has inflamed and outraged public opinion. Festering through two appeals, the issue comes to a head following the High Court’s ruling. Across the country, talk-back radio is jammed with callers demanding answers, television airs the public’s disgust and disquiet, and newspapers afford the story columns of space. Double jeopardy is a hotly debated, emotive subject. In November 2002, an editorial published in the Adelaide Advertiser had seethed with indignation.
Let’s imagine, for a moment, that a person was acquitted of a murder 20 years ago. Evidence about blood samples was largely circumstantial and inconclusive and the jury had its doubts. The verdict must be not guilty. Today, DNA testing of those blood samples would prove beyond doubt what science could not prove 20 years ago. If police reopened the case they might be able to prosecute successfully. Under the present law they can’t.
The debate continues for months. The jury system, an editorial in the Queensland Times states in April 2003, is not perfect, but dumping its decisions on the basis of legal interpretations in no way enhances the delivery of justice.
The message from the punters and from the fourth estate is clear. The rights of the accused have usurped those of the victim. The law is truly an ass. With the chorus of protest pushing for change, the barricades have to fall.
Enter a politician.
Six weeks before the February 2003 State election, New South Wales Premier Bob Carr declares that, if re-elected, his government will overturn the double jeopardy rule. We owe it, he says, to the victims of these crimes to make sure the guilty are brought to justice. His sentiments echo that of British Prime Minister Tony Blair, when he had argued in favour of substantially reducing the double jeopardy rule in his country. We will, he says, rebalance the system emphatically in favour of the victims of crime, for offenders get away too easily.
On the back of Carr’s announcement, the Standing Committee of Attorneys-General of Australia, with the cautious support of the Federal Government, announces it will review the double jeopardy principle.
Carr keeps his promise. Returned to office in April, he reiterates plans for abolition of the ancient rule. But problems are already looming. Lawyers warn that New South Wales should not stand alone as a rogue state. It would be far preferable that there is a national approach from all states. Queensland and Western Australia support review, but Victoria drags its feet on fundamental change. Watching from the wings, Prime Minister John Howard indicates he will back changes to allow for retrials in exceptional circumstances.
The mooted changes to double jeopardy follow the British lead, arguing for a re-trial for serious offences such as murder, manslaughter, rape and firearm offences if compelling new evidence subsequently emerges indicating that the acquitted person is guilty. In Britain, the law operates retrospectively; defendants already acquitted will still be able to be re-tried. Many advocates for change hope Australia will also enact retrospective laws.
However, change to the law, no matter how minimal, is not going to be straightforward.
A letter to the editor of the Queensland Times in February 2003 made this point:
This archaic English law now works against the person on the street by allowing murderers, rapists and drug barons to remain at large. But with scientific advances of recent years, which can prove the guilt of an individual, it is unacceptable such new evidence cannot be used in a later trial …
In the first week of April 2003, the ABC television program ‘Australian Story’ airs an episode titled ‘Double Bind’. Introduced by Bob Carr, it proves to be one of the higher-rating programs for the year. Across five states, 1.14 million viewers tune in.
Tonight’s Australian Story is about a notorious murder case unsolved for 30 years, back in the news because of moves to change the law itself. At issue is the legal principle of double jeopardy … Late this week, Attorneys-General from around Australia will meet to look at this very question. But behind all the legal arguments is a human tragedy, the death of a baby called Deidre Kennedy.
The program does not pull any punches. With the main players from both trials – bar anyone from the Carroll family who declined to be interviewed – the message is blunt. Raymond Carroll had been acquitted because the law was over-technical. It concludes with stark words on the screen: ‘Faye Kennedy is now hoping to take civil action against Raymond John Carroll … Mrs Kennedy says she doesn’t want compensation but hopes for an acknowledgment from the justice system that Mr Carroll is responsible for Deidre’s death.’
Viewer comments pour in to the on-line forum after the show, overwhelmingly supporting change. ‘Double jeopardy is an anachronism.’ ‘This law must be changed to keep pace with changes in forensics and medicine.’ ‘I often wonder if our Appeal and High Court Judges have become techno-judges – worried more about the technical points of law rather than the law itself.’
Justice In Jeopardy Page 29
