‘That’s me,’ Carroll told them. ‘But I didn’t do it.’ Carroll’s only comment to the journalist was ‘no comment’ and the basis of the breathless ‘Exclusive’ tag was simply a letter from his solicitor denying allegations that his client had confessed to two people.
The hysterical hype continues, with a mother of three with whom Carroll works reportedly asking to go on stress leave when she realises who he is.
The one-man detective outfit is upgraded to a full team after the second phone call. Herpich, assigned to head the investigation, is convinced that the fresh leads are worthwhile. He believes that while it wasn’t a confession, per se, it certainly indicated some guilty knowledge by this person, alleged to be Carroll, to Graham Bradshaw. But from the start police look at the legal implications of what they can do even if they did find something that can support Bradshaw. They look at the grounds on which the Court of Appeal had overturned the verdict and how they can identify why the appeal ran. Herpich zeroes in. Determined. Meticulous. Dots the i’s and crosses the t’s. He was 11 years old when Deidre was murdered; now in his early forties, a sturdy, serious man with a thick-set oval face, brown hair streaked with grey cut severely short, and dark eyes that glower suspiciously when he is annoyed, Herpich appears as hard as granite. It is not a side he will show to Faye.
‘May I speak to Faye Kennedy, please?’
‘Speaking.’
‘Faye, this is Cameron Herpich from the Homicide Branch of the Queensland Police Service. I’m about to turn your life upside down.’
Married with three young children, from the start Herpich becomes Faye’s protector, building an emotional moat around her. She has been hurt enough, and he will not allow anyone to trespass on her emotions. He is the buffer between Faye and the outside world. And she trusts him. From the moment he made that phone call, warning he was about to turn her life upside down, Faye has trusted him.
There have been promises made. He will keep her informed of every step of the investigation. She shall never ask him a question if she doesn’t want to hear the answer. And he will try, within the boundaries of what he has to work with, to bring her daughter’s killer to justice.
Herpich has no sympathy for Deidre’s Kennedy’s killer. In his career he has seen some stone cold people and others who have caused a death, and he feels sorry for them. He doesn’t feel sorry for this person. It is a case that has stuck in people’s minds and that they remember more than anything else. Not just because it was bizarre, but because Deidre was completely defenceless.
Trevor Swifte’s hands tremble as he picks up the phone to call Detective-Superintendent Barron. He introduces himself, a preliminary that is unnecessary. In and out of jail all his adult life, Barron knows him by reputation only too well. Known as a character, one of the old-time crims, police simply refer to him as ‘Swifty’. It seems fitting: whenever he lags on someone, they muse he may be, to quote a colloquial Australian expression, ‘pulling a swifty’.
‘I’ve got some information that may be of some benefit to you …’Swifte tells the Superintendent. He seems to be half-whispering, as if he imagines his walls have ears. And he is talking flat out. ‘… About an ex-crim who was inside with me at Boggo Road Jail. Name of Raymond John Carroll.’
Swifty is a grass. A snitch. Perfect fodder for police information, if his evidence could be deemed reliable. Cameron Herpich does not waste time, tape-recording an interview with him on 12 March. On 19 July, five weeks before he is due in the District Court for yet another appearance, this time for receiving, Swifte gives a written statement to Herpich. ‘I am a married man, 38 years of age and reside with my family at an address known to Police …’ It is an innocuous start to what will colloquially become known as the ‘jailhouse confession’.
On 17 February 1984, Swifte had been remanded in custody in the special protection yard at Boggo Road Prison. Designed for the special protection of prisoners such as paedophiles, informers or those deemed a suicide risk, he was placed in there for his own protection because he was a grass. He had been warned that Aboriginal inmates were wanting to ‘knock’ him – jail slang for kill. Carroll, he writes, was marched into the protection area by five screws sometime after Swifte had gone in, and his entrance was accompanied by a lot of racket. ‘I spoke to one of the screws through the cell window and asked what all the commotion was about,’ Swifte alleges. ‘He said something like “Just another scum”.’ The next day, Swifte approached Carroll’s cell. ‘I looked in and saw him looking toward me. I recall that he looked at me as if to say “What are you fucking looking at, cunt?”… There were a number of crims in the next yard – H yard – who were always at the fence wanting to know about Carroll or to give messages to other crims …’ Either ‘the next day or a couple of days after’, Swifte claims he approached Carroll again and asked him what he had been pinched on. ‘The murder at Ipswich … a dozen years ago,’ Carroll allegedly told him. Some ‘over-zealous military copper’ had got him, he added. Swifte remembers Deidre’s murder. Then 15 years old, he was incarcerated at a boys’ home for delinquents and police had made inquiries there as to whether any of the juveniles had absconded that night.
‘I think it was the next day,’ Swifte continues in his statement. ‘I was in the jail surgery with Carroll … He said, “What do you know about teeth marks?” I said to him, “They are as good as fingerprints … and you’re a shot duck …”’ Carroll, he says, went quiet but appeared to be mumbling to himself. Later, Swifte pressed Carroll to tell him more. ‘What went wrong?’ he asked him. Carroll, he claims, was pacing up and down his cell. ‘He held his arms out to the side of his body with the palms up and said “Those fucking bite marks … I used to go snowdropping and I was pinching women’s underwear and it all just got out of hand.”’
Swifte claims he collared a prison officer, Denzil Creed, through the steel gate of the SOBS yard and told him what Carroll had said. He asked Creed to get hold of the investigating police officer who was working on the case. The message never got through.
‘Creed said words to the effect, “Don’t worry, they’ve got him cold,” and I said, “Fuck, he looks the part.”’
Swifte allegedly spoke to Carroll again afterward, asked him why he did it. ‘It got out of hand,’ he claims Carroll said. ‘It wasn’t meant to happen.’ Swifte kept pressing. How did he get the kid out of the house? ‘Through the window.’ Carroll, he says, then ‘mumbled something about a van, said he dressed her up in woman’s underwear and sexually abused her.’ Swifte, who did not want to go into details about the sexual abuse, offered Carroll help on the proviso that he tell him what happened. ‘I’ve always had a fetish about women’s clothing,’ Carroll allegedly ventured, adding he strangled Deidre with pantyhose and left her on the toilet block.
There was a ruckus behind them from ‘H’ block fence, a prisoner screaming to get Carroll’s attention. ‘You fucking mongrel dog,’ he shouted at him. Any minute, the whole prison could erupt. A powder-keg at the best of times, prisoners held in the protective yard are prime targets for violence and abuse. Swifte, an ‘old head’ who knew his way around the system, ignored it and kept digging. ‘Are you into raping women?’Carroll shook his head. ‘No, it’s easier to get a pro.’ He became agitated when the bite marks were mentioned again, hurled off, according to Swifte, with a stream of expletives. Swifte was distracted by another prisoner speaking to him. ‘You had better give that prick a miss otherwise you’ll get yourself into trouble. They’ll think that you are buddying on with him.’
‘Not fucking likely,’ Swifte replied, and walked away. ‘About a week after this,’ Swifte continues in his statement, ‘I was moved to “H” wing … but after the warning from the crim, I kept away from Carroll.’ Moved to another prison, Swifte again encountered Carroll when he was transferred back to Boggo Road after Carroll was sentenced for the murder. Carroll, then in ‘H’ wing, was hosing the yard. ‘I walked up to him and said, “You got your right whack, cunt.”�
� Carroll, Swifte writes, did not recognise him and turned his back.
I can’t remember seeing Carroll around the jail after this occasion. In June 1985 I was discharged from Boggo Road jail and travelled around Australia. The next thing I can recall about Carroll was when I read in the paper that he had been acquitted of the murder. This was earlier this year [1997]. I contacted Police at the Homicide Squad … Everything that I have said in this statement is true and correct.
He signs it ‘Trevor Jonathon Swifte’ in a tremulous hand.
Swifte’s sentencing remarks on the receiving offence, heard in August in a closed court are placed in a sealed envelope, and the judge makes an order that they can only be opened by an order of the court. Carroll’s defence will successfully be granted disclosure to have the remarks opened.
John Garner and Dr Forrest are approached by Cameron Herpich who asks whether they would be willing to apply their new techniques to the Kennedy case. They agree and on 30 April 1997 they are given post-mortem photographs of Deidre and dental models of Raymond Carroll. Dr Forrest, Garner and later odontologist Dr Ian Davies examine the dental models. They believe that the new technology will enable a precise match to be obtained between these and the injury photographs and will dramatically reduce the reliance on expert opinion. Dr Kon Romaniuk, Cameron Herpich, Detective-Superintendent Peter Barron and Angelo Vasta’s son Sal Vasta – now a lawyer representing the DPP – are in the room when they do the preliminary match with the case photos. There is a sense of expectation, of growing excitement. The match comes in. The top bruise nearest Deidre’s knee is a match with Carroll’s lower teeth. The bottom bruise is a match with his uppers.
There is one person in the room who should know that the match – the top bruise caused by lower teeth – is vitally different from that which had been presented at the first trial. Kon Romaniuk. The three years since his accident has not reduced the trauma to his brain. Kon can’t even look down a microscope, let alone know what he is looking at anymore. From the time of his accident he scored very high on the dementia scale but he is bright enough to still occasionally fudge his way through situations if he needs to. He can appear lucid, but only for very short time.
This is not one of those times. John Garner is devastated to notice that Kon appears to be in a fugue state, staring vacantly out the window, lost in his own world. If the once brilliant odontologist noticed that there is a difference compared to the way he and his colleagues had oriented the teeth marks at the murder trial, he does not comment.
Herpich also contacts John Rowley and John Reynolds to ask if they are available to help with the investigation. They immediately agree. But Herpich – nicknamed ‘Bulldog’ by John Garner for his tenacity – faces major hurdles. All the exhibits relating to Deidre Kennedy, including the way she was dressed the day she was murdered and the hair samples found on her were missing. They had disappeared. John Reynolds doesn’t think anyone deliberately lost them; when police headquarters shifted, around 1990, things became messed up. He went in one day and found a box marked Deidre Kennedy. But as soon as he lifted the lid off the box, which was full of tapes, he knew it had absolutely nothing to do with that case. It was so frustrating. They had been put in the wrong box. The police were getting nowhere.
On the back of a rumour that evidence had been stored under Adrian Gundelach’s house after the first appeal, Reynolds calls him and asks whether Gundelach has any of the exhibits. His answer is indirect enough for Reynolds to assume that he had had them, but no longer did. Reynolds has tapped into an important question: what to do with evidence when a case hangs in limbo? Gundelach knew this case inside out, and Reynolds has no doubt that he thought taking it home with him would be the best course of action. The safest place, so it couldn’t get mixed up.
Herpich would find that missing evidence was not the only hurdle he would face.
Within a short time, Garner and Forrest have identified what they perceived as critical problems with the original bite mark examination by the police and odontologists. According to John Garner, the G-scale, which had been placed adjacent to the bite mark, had partially obscured some details of the mark. The acetate tracings made by Dr Romaniuk were also inaccurate and the scaling method used in the photograhy of the dental models flawed, which resulted in a scaling error. But it is what they find that has not been previously identified in the photograph that will prove explosive. The original photographs were under printed which resulted in a significant loss of detail in Deidre’s injuries. Careful photographic printing reveals what Sims, Brown and Romaniuk had missed: a second bite mark. It is this mark that is to become the cornerstone of the Crown’s new case and form the basis of the controversy that will irreconcilably divide expert dental opinion. The point is impossible to ignore: the possibility, Garner says, that these three eminent specialists could well have orientated the teeth the way he and and his colleagues did, if they had had the benefit of correctly printed photographs. And if that is the case, he believes, the failure of the first conviction can be attributed to the printing of the original negatives.
As Deputy Director of Public Prosecutions since 1995, the task of re-examining the Carroll case has fallen to Michael Byrne. But he has misgivings. In his opinion, on the evidence before him, there are no prospects of conviction. To get this case before a jury – let alone achieve a guilty verdict – would be tantamount to convincing non-believers of a miracle Resurrection. He came into it on the basis of the first trial – that Carroll had been convicted on evidence that was all over the place. The challenge was how to resurrect that.
Byrne knows that double jeopardy laws prevent the Crown from pursuing Carroll for the offence for which he had previously been convicted and then acquitted: murder. He also knows that, within that law, it is the court’s discretion to not allow additional charges following an acquittal or conviction for different offences arising from the same behaviour or facts: this is known as an ‘abuse of process’. Byrne is a criminal lawyer, involved in the drama of human lives that plays out before him on a daily basis, and the starchy, dry arguments of double jeopardy, written on ancient pages and enshrined in British common law 800 years ago, leave him cold. To its detractors, it is a vestige of history that needs dusting off and has no place in the twenty-first century. To its supporters, it offers a safety net of balance between the power of the state and the individual accused of a crime.
Those who argue against the double jeopardy rule point to numerous problems with the law. It does not allow for a re-trial in response to the discovery of compelling new evidence, such as DNA not available when the case went to trial.
Another argument against the double jeopardy principle is that it does not allow for a re-trial in the event of a ‘tainted acquittal’, where jurors have been bribed or documents forged. Therefore, it is argued that the principle is biased in favour of the defendant.
There are further arguments against it. Once a defendant has been found not guilty, the rule prevents additional police inquiry, even if further incriminating evidence comes to light.
Those who argue in favour of the double jeopardy rule do so on the grounds that it prevents the persecution of defendants who have been afforded a ‘not guilty’ verdict. High Court Justices Gleeson and Hayne, who heard the Carroll case, argued that without safeguard, the power to prosecute could readily be used as an instrument of oppression. Finality, they say is an important aspect of any system of justice.
Innocent until proven guilty – the cornerstone of legal systems based on English law – would, critics claim, be threatened by changes to double jeopardy rules. The onus of proof beyond reasonable doubt lies with the Crown; changes to double jeopardy would burden the accused with having to re-establish innocence.
The centuries-old law, supporters note, also protects defendants who are uneducated and disadvantaged by the cost of legal representation. They voice other concerns. Protracted legal battles are expensive, and, without resources available to police an
d lawyers, it is often extremely difficult for a defendant to financially challenge DNA or other new evidence. Critics of change also argue that an overturning of double jeopardy would invite shoddy police work. If police didn’t get it right the first time, they say, they could be rewarded by knowing they could have a second crack at a case. They point to the Stephen Lawrence case in Britain as proof that failure to secure a conviction was largely due to sloppy police work. It would open the floodgates for arbitrary, malicious or careless prosecutions.
Former High Court Chief Justice Anthony Mason – an advocate of a review of the laws – has warned against opening the door to change too wide. That, he has said, would invite a way for the prosecution to retry an individual because the prosecution overlooked something at the first trial.
Opponents also warn of media hysteria backing calls for change. Civil libertarian Terry O’Gorman argues that the Carroll case is a classic example of the press pushing for a popular result in a case with an unpopular defendant.
Academics wade into the debate. Robyn Lincoln, Assistant Doctor of Criminology at Queensland’s Bond University, writes in February 2003 that justice agencies should not have the opportunity to keep coming back to try suspects afresh whenever they wish. The concept of finality in the criminal justice system, she believes, is under threat from proposals to scrap the double jeopardy rule and to introduce sex-offender notification laws, which operate in 45 United States jurisdictions.
Byrne works late into the night, considering how to get around the double jeopardy laws. The only charge the Crown could bring, he believes, is perjury: to somehow prove that Raymond Carroll had lied when he said he did not kill Deidre Kennedy. And to bring perjury, the Crown has to have fresh evidence.
Justice In Jeopardy Page 18