Twelve days after the order for Carroll’s release, reasons for the judgment are delivered. Three judges – Chief Justice Dormer Andrews, Justice George Kneipp and Justice Tom Shepherdson – had presided and each agreed with the rulings given by their brothers. Their findings were:
(1) That a reasonable jury could have been satisfied beyond reasonable doubt from the evidence presented by the Crown witnesses that Carroll was not on the RAAF base at Edinburgh when Deidre was murdered, but that there was no direct evidence that he was in, or near Ipswich at that time.
(2) That the similar fact evidence of his first wife, Joy Meyers, was not sufficient to outweigh its prejudicial effects and ought to have been excluded.
(3) A jury must have entertained a reasonable doubt as to Carroll’s guilt based on the odontological evidence of Romaniuk, Sims and Brown.
The similar fact evidence given by Carroll’s ex-wife, Joy Meyers, had afforded the three appeals judges much grief. Andrews had pondered whether to order a new trial or simply to quash the conviction, but was satisfied that the alleged biting of Joy and Raymond’s own child, Kerry-Ann, and the fetishism shown by Deidre’s killer was not sufficient to prove identity. For these reasons alone, he said, he had been able to come early to the decision that the verdict could not stand. Kneipp and Shepherdon were equally adamant. There were, Kneipp argued, not sufficient similarities between the alleged physical abuse of Joy and Raymond’s own child and that occasioned to Deidre.
It was suggested for the Crown that it could be supposed that the alleged acts of the accused in relation to his own child did not go further because of the circumstances in which they took place. That may be so; but one cannot build a sufficient series of similar acts on mere speculation. In my view … it should not have been admitted.
Shepherdon noted that Meyers’s evidence did not in any way suggest that Carroll was a man who had a fetish for putting adult female clothing on a baby or of sexually interfering with the baby – both elements that were present in the Kennedy murder.
It was also ruled that Joy Meyers’s evidence of Carroll biting his daughter could not justify its admission into evidence. The most it went to prove – if, they wrote, it were true – was a propensity to bite a 12-month-old child’s leg. It did not show a striking similarity to the Kennedy killing. And, as for Joy Meyers’s evidence that Carroll had allegedly wanted to call their unborn baby Deidre, this was nothing more than a highly prejudicial invitation to the jury to speculate that, because Carroll had mentioned the name Deidre in 1974, then that showed he must, beyond reasonable doubt, have been the killer of Deidre Kennedy.
What of Carroll’s alibi? Kneipp was satisfied that a jury, notwithstanding conflicts in the evidence, could find beyond reasonable doubt that Carroll was not at Edinburgh Air Base at the time of Deidre’s murder. But that was not enough. This, in itself did not necessarily place him in Ipswich and there was not any direct evidence that he had been there. The other judges backed this opinion. Carroll had not been seen in Ipswich and his family had said he was not there. There was conflicting evidence as to his presence in South Australia and RAAF records did not reveal whether he was absent or otherwise. Denials regarding his guilt were persistent and consistent. He had cooperated with police. And ‘Nugget’ Carroll’s eyewitness account? Carroll did not fit the description Nugget gave police the day following Deidre’s murder.
But it was the evidence of the forensic dentists – the linchpin of the Crown case – that came under the most savage attack. Kneipp noted that, apart from the evidence of Mrs Meyers, the only evidence available to the Crown as to identity was that put forward by the dentists.
It cannot be said that there was not any evidence on which to find in favour of the Crown. Each of them qualified as an expert, and as has been said, each expressed the view that the marks on the child’s body were made by the teeth of the appellant …
But this was not the end. ‘In the present case, there were not any lacerations or indentations and … one can only have serious reservations as to its reliability where there are bruise marks only,’ Kneipp had noted.
Romaniuk’s earlier assessment, that the individual bruises caused by the bite were not sufficiently defined to enable one to arrive at any definite conclusion, was also highlighted. His change of opinion, between 1973 and 1985, was not adequately explained, the judges ruled.
Shepherdon noted that whilst the jury had only to accept the evidence of one of the experts, he was still left with an uneasy feeling. The altered plaster cast did not accurately reproduce the state of Carroll’s dentition as it was in April 1973, and it was this cast that was one of the basic pieces of evidence on which each of the three experts founded his opinion. ‘Admittedly,’ Shepherdon conceded, ‘Dr Romaniuk has become more experienced with bite marks since 1973. This, however was his first bite mark case and … he stated [in 1973] that “it would be impossible to establish with any degree of certainty as to who would be responsible for this bite mark to the dead child …”’
Recognising Dr Sims’s eminence in his particular field, Shepherdon noted that his sense of unease was caused by discrepancies between the dentists on identification of certain bruise marks with certain teeth. ‘I accept that each man was concerned with only the pattern of bruising.’ Then, he added: ‘I am conscious also that I must be careful not to let myself become an expert by viewing the exhibits and substituting my opinion for those of these three men.’
The odontology evidence, the judges reasoned, could not safely support the jury’s verdict. Though they reached the same conclusion, the different way they achieved that result was cause for concern. On their evidence, the judges decided, a properly directed jury must have a reasonable doubt as to Carroll’s guilt. In conclusion, Shepherdon noted that even if there were no errors made in the summing-up, and assuming the jury was properly directed on circumstantial evidence, on that which was properly admissible, any verdict of guilty would be such that it would be unsafe and unsatisfactory.
Dormer noted:
The matter has given me a great deal of difficulty. But in the end result I have concluded that a properly instructed jury, properly considering the matter, could not be satisfied beyond a reasonable doubt on this evidence that the accused was guilty. I would allow the appeal, set aside the verdict and quash the conviction.
The Appeals Court conclusion was final: the prosecution had not led any reliable evidence to identify Raymond John Carroll as Deidre Kennedy’s killer. He was a free man.
Dr Brown is initially deeply shocked at the outcome of the appeal. When he reads the reasons for it, his shock turns to disgust. He perceives that it simply came down to legal issues, doesn’t think the judges had any understanding of what the odontology evidence was all about. The fact that the odontologists disagreed on which teeth made the bruise marks was not relevant. What Sims meant was that he had enough evidence with the three teeth and he wasn’t interested in the others. That, according to Brown, didn’t contradict what Romaniuk said at all. He seethed that although the odontologists used different dental terms, they all meant the same thing. The same thing. They just used terminologies recognised and understood by dentists everywhere, but the appeal judges didn’t clarify that point.
In Brown’s view, those judges are wrong, very wrong, in their decision.
John Rowley, living in Malaysia where he was posted with the RAAF, is incredulous when he hears the news. He thought the murder case had finally been put to rest and can’t imagine how the Kennedy family must now be feeling. He thinks this is a sad, sad decision for them.
For weeks after the appeals decision, Faye Kennedy wanders aimlessly around her house, withdrawing into a torpid stupor and sitting quietly on the bed where Deidre’s doll has pride of place.
When she ventures out again in Ipswich, where they are now re-posted, she can feel the anger, the simmering resentment about Carroll’s acquittal. For months afterwards, total strangers, stunned at the decision, would approach her
on the street, offering to take the law into their own hands. One bloke from a bikie group tells her that if she ‘wants the job done, to just say the word’. Another woman says she owns a transport company, and that Carroll will need to be careful on the road. Faye shakes her head at every suggestion. Thanks for the offer, but no thanks.
She is concerned about Barry. From the moment the acquittal decision came down, he has become increasingly withdrawn, going to the pub and staying there for hours. She frets for him, and for their marriage.
Ilma Carroll’s phone is ringing, and a stranger is on the line. Cold, detached. ‘You can’t protect your son forever,’ the voice says. ‘We’ll get the bastard.’ The phone line goes dead. She has come to dread the voiceless callers who ring, say nothing and then hang up. And, day after day, the death threats continue – so many, she is forced to change to a silent number. It is an extremely traumatic time for the whole family. They hear that people want to distribute Raymond’s photo with the caption ‘Baby killer lives here’ accompanied by his address. People just cannot accept that Raymond Carroll has been acquitted.
John Reynolds has not been able to accept the acquittal, either. He had been confident that Carroll would lose the appeal. Nearly all of the people in the jury that found Carroll guilty have called him, wanting to know how the hell their decision has been overturned.
He was out of Brisbane when the Appeals Court announced its decision. His then wife rang and said she had just had a phone call from the Commissioner’s office. ‘Carroll has been released and your instructions are not to talk to the media under any circumstances,’ she told him. Confident that Carroll would lose the appeal, Reynolds went right off.
Shortly after news of the acquittal, Reynolds receives a phone call from a nurse who had worked at Wagga Base Hospital. She tells him that Kerry-Ann had been brought into hospital with a broken arm when she was six months old.
Carroll would later remember the incident. He was, he says, giving Kerry-Ann her bottle and her arm was behind him on his back. He says he went to sit her up and she suffered a green stick break. Joy wasn’t at home when it happened. He was on his own with Kerry-Ann.
Carroll, Jennifer and kids move to Jennifer’s home town, Leeton, in New South Wales. His lawyers had been blunt with their advice. Get out of Ipswich for your own safety, they warned him. The public is baying for your blood.
26
If Carroll was hoping the law would leave him in peace once he left Queensland, he was mistaken. The Attorney-General, Mr Harper, ordered a High Court appeal as soon as Carroll was freed. Tony Fitzgerald, QC, would head the Crown legal task force, his juniors Adrian Gundelach and Philip Nase. The Director of Public Prosecutions, Des Sturgess, lodged the motion for special leave to appeal.
The Crown does not just want the jury conviction restored. It is seeking a re-trial.
The High Court appeal is heard in June 1986. John Reynolds and Carroll’s family are present. Fitzgerald has based his appeal on the grounds that the Criminal Court of Appeal had made an error in principle. Discrepancies in dental experts’ evidence had not been considered, he argues, and nor had Carroll’s false alibi that he was on a course at Edinburgh at the time. The court had misunderstood the expert evidence and, even if Joy Meyers did not give evidence again, there was enough for a re-trial.
Chief Justice Sir Harry Gibbs peers at Fitzgerald. Could he please tell the court what principle was broken? Yes, Fitzgerald replies. The court was required to consider the whole evidence and not certain aspects of it.
Ruling there is no question of an error in principle, Chief Justice Gibbs says Carroll did not know there was a baby in the Kennedy household and evidence showed he was not in Ipswich when she was abducted and murdered. Nugget Carroll’s statement had identified the man who stole the clothing from the line as having long hair; Carroll had short back and sides.
Fitzgerald has taken an hour to outline the Crown case: it takes the five judges of the Full Court just 10 minutes to reach their decision. They refuse to grant the Crown special leave to appeal. It is all over.
Ilma Carroll and her daughters, Sandra and Debbie, loiter outside the courtroom just long enough for Reynolds to see their smiles.
Since the murder trial, Adrian Gundelach has kept much of the evidence pertaining to the Kennedy case packed and boxed in the basement underneath his house. It has seemed as good a place as any to store it, but, with the Full Court decision in, he thinks it best it be returned to Homicide Branch. He speaks to an officer at the desk, asking that it be picked up from his place. With Carroll’s full acquittal, it is now, essentially, an open inquiry again.
‘We know who did that murder,’ the cop says yawningly.
Eventually returned to Homicide and discarded into an exhibit room with little organisational care, the boxes of evidence are not in prime condition. A flood that had gone through Brisbane after 1985 had caused water damage to Gundelach’s basement and damaged some photographic exhibits. It would fall to the police photographer in the next trial to try and mop up some of that damage.
Adrian Gundelach delivers lectures in America on a paper he wrote two years after the appeal decision came down, which focused on the problem forensic scientists repeatedly face in having their evidence accepted in court. It is a carefully prepared, caustic attack on the appeal decision.
A fact-finding tribunal, he says, is often required to understand the scientific detail of expert evidence even though it is uninitiated in that area of expertise. And if the tribunal cannot understand the conclusions it must, like St Thomas, remain a doubting tribunal and reject the evidence as inconclusive. Each juror becomes his own Sherlock Holmes.
Gundelach tells his audiences of scientists and police that the Court of Criminal Appeal had quashed a jury’s verdict of guilty because they were unconvinced of the reliability of three expert dental opinions that the marks on the murdered baby’s thighs had been caused by Carroll’s teeth.
Most of the police are drawn from outlying Midwest areas around Kansas, baked hard under severe blue skies. Appeals Courts and high-falutin’ legal decisions do not sit well with these officers; the way they see it, it takes enough time and money to round crims up in the first place, without watching them walk in one jail door and out the other.
Although Gundelach says the experts’ reasons for their conclusions did not coincide in all respects, these so-called ‘discrepancies’ did not affect the basis of their conclusions that Carroll was responsible for biting the deceased child’s thigh, and no other person gave evidence to the contrary.
The lesson, Gundelach concludes, is clear: that when expert evidence of three eminent scientists is rejected by an appeal court, it demonstrates the real danger of judges (or jurors) playing Sherlock Holmes in an area beyond their competence and expertise …
The lesson to expert witnesses? That unless their evidence is unshakeable and totally unanimous, judges and jurors may not feel inclined to accept it.
27
The Fitzgerald Inquiry. Regarded by many as long overdue, a cleansing of Queensland’s police corruption, money laundering and prostitution, its name would inexorably be linked with disgraced Police Commissioner Terry Lewis. By its conclusion, Terry Lewis, four politicians and several police officers would be charged and jailed. And Angelo Vasta would become the only judge in Australian history to be de-benched.
Many regarded the 1989 inquiry as little more than a blood letting, a witch-hunt carried out in an atmosphere of sensationalism and hysteria. Asked to provide a statement against Terry Lewis, Angelo Vasta refused. He went further, attacking the basic tenets of the Inquiry.
To speak out against the Inquiry, Vasta says, was tantamount to speaking out against motherhood and the Queen. He wanted a separate inquiry to prove whether any actions they were talking about had compromised his office.
Eventually given his inquiry, headed up by three fellow judges, it was more far-reaching than he had imagined. Accused of tax scams and unbecoming co
nduct, Vasta told the Queensland Parliament in June 1989 that he would go to his grave and to his God with a clear conscience, knowing that he had done no such wrong.
In his opinion, he says of the Kennedy appeal, two of the appeal judges were misguided, but genuine; and the other judge had a reputation for being over-technical. It was most unfortunate that there was this combination of judges; if it had been a different combination, he is certain there would not have been the same result.
John Reynolds had watched the unfolding Inquiry with interest. In the past, police officers were regarded as God, and that’s how corruption survived and flourished in Queensland. It worked on the MERIT system: Mates Elevated Regardless of Intelligence or Training. Reynolds was dismayed at the outcome for Angelo Vasta. He was known as a fair judge, but very tough when it came to paedophiles and other crimes against children. If the accused was found to be guilty he gave them a long custodial sentence – no ifs or buts – and it was a fact that the criminal element would do everything they could to avoid coming up before him. He was tough on lawyers, too, who might try to take the easy way out of cases.
Reynolds chuckles as he recalls a memorable exchange between Vasta who, during a trial, complained that he was tired of his opposing defence, Kevin Townsley baiting him. Townsley rose to respond. ‘Your Honour. I have been called a lot of things, but I have never been called a Vastabaitor.’
Justice In Jeopardy Page 16