Justice In Jeopardy

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Justice In Jeopardy Page 30

by Debi Marshall


  Many messages, like the letters and cards sent to Faye’s home, are personal. ‘Our hearts, prayers and support go to Faye and her family.’ ‘My deepest compassion to the Kennedy family. I salute their bravery.’ ‘For Faye to have gone through two trials with such outcomes is outrageous.’ ‘As an Australian, I would like to apologise to the Kennedys for the unimaginable pain that they must carry with them.’

  Angelo Vasta, who entered the double jeopardy debate afer the High Court decision, says that whilst our law states that a person shall not be twice convicted for the same offence, Carroll wasn’t. The issue in the second case was, did he swear falsely that he did not kill the baby? The double jeopardy concept, he says, stems from the fact that if a person is tried by a jury of their peers and found not guilty, they ought not be re-tried by a jury in an identical matter. But when a not guilty verdict is entered by a court on appeal, the same constitutional sanctity does not apply. The High Court has made that plain in a number of cases but, in this case, it was not reminded of that. The term ‘miscarriage of justice’, he adds, generally applies to a person who has done a long stint in jail for murder, which it is ultimately found he didn’t commit. But, he asks, is this also a miscarriage of justice?

  But Vasta believes that even if changes in the law are made retrospective, and if new evidence was to emerge, Raymond Carroll should not face court again. He thinks if that happened, the feeling would be that it was more persecution than prosecution. Fair is fair. Enough is enough.

  In April 2003 former policeman and Federal Member for Dickson in Queensland, Peter Dutton and Faye Kennedy circulate a petition asking Queenslanders to sign for an overhaul of the double jeopardy rules. The petition is called ‘Deidre’s Law’and their expectations are modest. They hope for 10,000 signatures in 12 weeks.

  ‘Deidre’s Law’ petition is distributed predominantly in Brisbane and south-east Queensland. It reaches way beyond its target: beyond all their expectations, more than 33,000 people put their signatures on the petition. It is the second-largest petition ever tabled in the Queensland Legislative Assembly.

  The support for her petition has given Faye Kennedy confidence that the justice she wants might one day be served.

  Late in the afternoon of 8 September 2003, Dutton delivers his grievance debate on double jeopardy to the Queensland Legislative Assembly. It is not the first time Dutton has spoken in the House on the issue and the need for reform. Referring directly to the Kennedy case, he says: ‘The presence of this law in our states’ legal systems in its current form has resulted in at least one grave injustice and certainly has the potential to create many more … My message today to the Queensland Premier, Peter Beattie, and his Attorney-General, Rod Welford, is that you need to have the courage to make a commitment and a decision, just as New South Wales has … that double jeopardy will be reformed … I can tell you that there is no doubt in the mind of Mrs Kennedy or anybody with knowledge of this case that the evidence proves the suspect’s guilt – no doubt at all. Yet, 30 years after the crime, this killer is allowed to walk free … In my view it is a travesty that advances in forensic technology mean nothing in this case because double jeopardy prevents a retrial to prove the suspect’s guilt … I share a view with Mrs Kennedy that there is something basically and fundamentally wrong with a legal system that allows a child killer and rapist to walk free …’

  Outlining the petition, he says it is not about challenging the rights of the defendants or the finality of the justice system; it is about providing justice to those who have had the most horrific circumstances inflicted upon them. About creating a system to put serious offenders in jail when the evidence proves they committed the crime.

  Political media advisers keep track of public opinion on double jeopardy laws, which is, on the whole, scathing. A Queensland Times editorial rages:

  It’s about time that the general public woke up to the corrupt and out-of-date Common Law system, imported from England when Australia was first settled. The whole edifice is rotten from the top to the bottom. Probably a daunting task, though long overdue, for an overhauling commission without replacing the whole system which the Law Society feeds off like seagulls following fishing boats or vultures seeking out carrion … People power and citizens rights are now on the move with the Deidre’s Law petition which will overthrow lawyers – in democracy, not a totalitarian regime – giving them the message that the 800-year-old law has no relevance today and to stop trying to hoodwink the public taxpayers.

  The terms of sentencing whittled down by Machiavellian lawyers is another area of vociferous public disquiet and disgust …

  In early September 2003, the Model Criminal Code Officers’ Committee – a national body of criminal law experts – raises concerns that the pressure to secure a conviction in the Deidre Kennedy case had precipitated a number of Premiers and former Chief Justices to support the partial abolition of the double jeopardy principle. ‘What this would seem to indicate,’ they write, ‘is that in a high-profile case the pressure to push for a re-trial after an unsuccessful prosecution would be enormous. It also seems unlikely that the presumption of innocence could be retained at a re-trial. Though we clearly do not want criminals set free, we surely do not want innocent people incarcerated. Removing the double jeopardy provisions could well result in this.’

  Some commentators suggest that Australia could learn much from the Scottish judicial system. That country has three verdicts: guilty, not guilty and not proven. The latter makes provisions for a case to be re-opened if new evidence is found.

  The Hon. Justice Michael Kirby writes a lengthy paper on the subject, in which he concludes:

  As to the rule against double jeopardy in Australia, we can truly say, with Churchill, that we are not at the end of the story; nor, even at the beginning of the end. We are simply at the end of the beginning.

  48

  Snow is drifting about Hobart’s Mount Wellington, shrouding her in flakes of tears on this wintry Tasmanian morning. Clouds scud across a threatening sky, dark and foreboding. Nature’s mood reflects my own; sombre, reflective. Researching and writing about a murdered baby is now exacting a toll. Sound sleep evades me and my thoughts are consumed with questions. How could this have happened? How could any parent possibly cope with the unbearable grief of losing a child? Would there ever be any answers about this murder?

  Deidre wakes me hours before dawn and plays on the periphery of my subconscious. Sometimes I hear her giggle, the childish, delighted giggle of a girl at play, or see her totter toward me with uncertain steps. Sometimes I imagine I hear her cry: a muffled, mournful cry, and I reach out to soothe her but she retreats. Sometimes, she taps on my shoulder and I turn, expecting to see her face. I wake stunned and in tears when I see instead the face of my own daughter. I lie rigid, tormented by maternal fear, by the horror, the random and obscene senselessness of it all.

  More than ever, now I want to know: who killed Deidre?

  I wonder how many tears Faye Kennedy has shed, wonder at the depth of her sorrow. And what of Raymond Carroll’s mother, Ilma? What has she had to endure? She has never spoken to the media, so no one will ever know.

  I watch the next morning as flames lick a fresh log of wood tossed into the fireplace and a thought occurs to me. Maybe it is worth a try to get the family to speak? Anything is worth a try.

  There are quite a few Carrolls in the Ipswich area and I take pot luck, leaving a message on an answering machine in the hope it is Ilma’s telephone and that she returns my call. Her daughter, Sandra, rings back the same day, almost hangs up when I tell her why I had called and what I want. No, no chance, she says, firmly. Her mother is frail and emotionally depleted. There is no way in God’s earth, she repeats, that anyone in her family will talk to me.

  ‘Will you talk to me, then?’ I ask. ‘Tell your family’s side of the story?’

  She gives a bitter laugh, one that is underlined with unfathomable sadness. There’s not a journalist in this
country, she says, who has even tried to understand what her family has been through. They don’t trust the press. The things that have been written about her brother, even though no reporter has ever spoken to him? No way.

  I ask her to at least think about it. ‘I will write it as you tell me. The interview will be taped, and you can tape it also. Talk to your brother; see if he will speak to me. It’s a good opportunity to have your say. Please, at least consider it.’

  Sandra’s attitude has softened, and she sounds close to tears. She speaks after a long pause. ‘I’ve often wondered if our family should give our perspective on events. We’ve been through so much, too.’ She promises to consider my request, and hangs up.

  Two hours later, my phone rings. It is Sandra. The family, including Raymond has agreed to talk to me. Raymond works outside Ipswich and they will meet me in two week’s time. Can they, she asks, see what I write before it goes to print?

  It is a common question and one I had anticipated. Often, it is the one question that can spell the end of a possible interview, but it is a chance I have to take. ‘No, I’m afraid not. You will have to trust I will do as I say and give you a fair hearing.’

  ‘Trust? Our family is a bit light on that.’ There is another lengthy pause before she continues speaking. ‘There are stipulations.’

  ‘Yes, OK. What are they?’

  ‘You don’t divulge my address or phone number to anyone and you come on your own. You take no photographs, and you can meet Mum but not interview her at length. You may ask any questions you wish, but we will end the interview if we feel you are putting Raymond on trial again. My brother has been acquitted twice. He is a free man. Are you happy to go ahead on these terms?’

  ‘Yes, I am. Thank you. I’ll see you in a fortnight.’

  It is a brisk late July morning as the bus pulls into Ipswich station. It had cruised along the River Bremer and past Limestone Park, virtually deserted this time of day. Sandra has met me, and we are heading to her unit.

  Raymond Carroll’s 74-year-old mother, Ilma, is tall, grey and fretful. Her family has asked her to meet me, but not to stay around as it is too distressing for her. Carroll’s third wife, Marilyn, smiles and says hello, a little shyly. She will tell me, later, that she, too, was nervous and that she is permanently on anti-depressants to quieten her trembling nerves.

  Sandra’s ex-husband and Raymond’s best mate, Roger, a knockabout bloke with an easygoing disposition, is here for a show of support. Carroll is sitting, his long legs spread-eagled under the kitchen table. Tall, but unprepossessing when he stands to greet me. Body firm in jeans and a casual shirt but starting to show just a hint of thickening, compliments of middle age. He is 47 now.

  The Carrolls appear a close, affectionate family. Painfully normal.

  Sandra takes a seat and the family jostles into position for the duration of the interview, ashtrays for the cigarettes they will chain-smoke at the ready. It is, they know, going to be a long day.

  Ilma Carroll is emotionally frail, but angry, too. It is her family’s support that has given her the strength to keep going, what stops her from lashing out at her son’s accusers. ‘I believe that everything happens for a reason. But I will never be able to explain how I feel, the heartache I have gone through.’ She rubs her fingers behind large gold-rimmed glasses, dollops of tears wet on their tips. ‘I’m 74 years old, and this has hung over me for more than 20 years of my life, like a dark shadow. I feel such sadness for Mrs Kennedy, but …’ She falters to find the word. ‘… But the cost to our family has been so high.’ Ilma is an emotional wreck, trapped by circumstances beyond her control. She has had little sleep the night before, she says, fretting about the interview, worrying she will say too much. She stands to leave and shakes my hand. Her grip is firm and her gaze steady. ‘Thank you for coming,’ she tells me. ‘I’m very glad I met you, and I am sure you will be fair.’ She hugs Raymond farewell, a warm bonding of mother and son against the world, and I turn away, feeling like a voyeur. Ilma turns at the door. ‘He didn’t do it, Debi,’ she says. ‘He didn’t do it. My son is innocent.’

  Carroll’s life reads like a drover’s travelogue. Crisscrossing from Queensland, New South Wales and the Northern Territory four times, disgruntled at the lack of purpose in his life, he is now a farmhand, a long fall from his job in the air force as an aircraft electrical fitter. ‘I riz to the rank of corporal,’ he says, ‘and after that I became a licensed household electrician in New South Wales.’ He counts the jobs he has had on his fingers. Factory work. Food processing. Farm work. Contract harvesting. But he needs more than two hands to count the jobs that he’s lost when his employers or co-workers have recognised him. Pack your bag, sport, they tell him. We don’t need your type ’round here. He needs more than two hands to tally how often he has slammed a door behind him and jumped into his car, his face scarlet with fury. Seems like everywhere he goes, he has to drink from his own poisoned well. He is never sacked because his work isn’t up to scratch, and he doesn’t tell them about his past when he applies for positions. But they find out soon enough. He can’t hold down a job: his notoriety follows him like a frightening shadow.

  There is so much to get through, we launch straight in. ‘With all the adverse publicity, why do you stay in Ipswich?’

  ‘People often wonder about that. I’ve had to change me life twice, right? I had a perfectly normal life up until 1985. I’d been 12 years in the air force; another eight years to go and I could have retired on a full pension. Everything set up the way I want it, at the age of 37. Right? Then I’m arrested in 1985; I’m automatically discharged. I was strongly advised to move out of Queensland by me lawyers, otherwise I’d just be hounded by the media. I went to New South Wales, stayed down there for quite a while, had to start all over again and try to find work. But the weather wasn’t beneficial to me health. I moved back to Queensland to be with me family.’

  ‘I mean to say,’ Marilyn says, ‘like, he’s been saying that he’s not guilty all along, and that, and then these people are trying to put it onto him that he did do it, so whenever he gets jobs or that, they don’t actually say that he’s fired, but …’ She has run out of words. Now it’s Sandra’s turn.

  ‘Everyone in the family has been to hell and back over this,’ she says. ‘We were warned when Raymond was convicted that he could expect at least three good bashings in the first week in jail, because of the type of crime. If he survived them, he would be all right until he was transferred to a new jail where it would start all over again. But it didn’t happen.’

  ‘Why not?’Raymond has asked her the question, but he surely knows what her answer will be?

  She must have said this before. ‘Because they knew you were innocent.’

  Raymond Carroll often bumbles through sentences, clumsily joining words together. But he seems street-smart, well able to handle himself. ‘Look, it’s a very horrendous crime,’ he says. ‘I know that. Any crime against a child is wrong and horrendous. I sympathise with Mrs Kennedy; I empathise with her. I can’t imagine what she’s been going through.’

  It’s obvious already that the interview is going to take its own path. I may as well follow its twists and turns.

  I ask was he aware, after the first acquittal, that the police stopped Barry Kennedy from taking the law into his own hands?

  ‘Nup, but I have no doubt about that at all. I’d do the same thing.’ He recounts a story from his time at Boggo Road. ‘Swifte said to me, “You’re guilty, gotcha,” and I said, “So you think I’m guilty too?” I took him to my cell, showed him the photos of me daughters through the window. “Any bastard,” I told him, “and I mean anybody, touches them and they’re dead.”’

  ‘So you did have a conversation with Swifte?’

  ‘Yeah, but it was after I was convicted. He claimed it was when I went in on remand, just after I was arrested.’

  ‘Did you ever ask him what happens with bite marks – ’

  ‘No …’
His answer is whispered.

  ‘… and he said, you’re a shot duck?’ A long, uncomfortable pause follows the question. ‘OK,’ I say. I am treading a fine line between asking questions and being inquisitorial. They can pull the switch on this interview at any time. ‘Had you ever been in Short Street, in Ipswich?’

  Carroll shakes his head, repeats the name as if he is hearing it for the first time. ‘Short Street? Nup. Never went there. I lived in Quarry Lane.’

  ‘But didn’t you know Ipswich well? You spent time there as a child.’

  Sandra is clearly annoyed. ‘We lived in every side of Ipswich possible, but it doesn’t mean we knew every street.’

  ‘That’s right. It’s like me saying to you, “You come from Tasmania – that’s a small place; you must know Joe Blow”,’ Carroll counters. ‘But of course you don’t.’ He says he has never been to the Borchert house next door, or the units where the Kennedy family lived. ‘The only time I have seen them was when the jury went out for a viewing. Just because I was in the RAAF doesn’t mean I knew about all the married quarters.’

  Sandra is at pains to point out that their childhood was normal. No sexual or physical abuse. A normal, close, loving family. ‘Raymond was examined by a psychiatrist after his first conviction and he was found to have normal patterns. The CAT scan they gave him was normal.’

  ‘I asked Copley, my defence lawyer for hypnosis,’ Raymond counters. ‘I asked for a lie-detector test. He said that after all the accusations that had been put to me, that under hypnosis it might come out that I admit to it, subconsciously or however he put it. He said that would be detrimental to me so he advised against it. Same thing with the lie-detector test, but I’ll still go through with one. Bloody oath I will.’

 

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