Justice In Jeopardy

by Debi Marshall

  Joy has finished her evidence, but RAAF canteen worker Diane Ferguson backs up her story, telling the court that Carroll had introduced his wife to her as Joy and his child as Deidre. On another occasion, she says she noticed Kerry-Ann had bruises all over her body, from her torso and thigh to her buttocks and soles of her feet. When she had asked Joy what had happened, she replied the child had fallen downstairs.

  On another occasion, she claims she asked Carroll, in front of another woman, what had happened to the baby? He responded that the dog had bitten her. Ferguson’s rejoinder was swift. ‘I said it doesn’t look like dog bites, and he said, “I think some kids have been biting her.”’

  Ferguson says she tackled him after Joy left Darwin. ‘“Raymond, how could you do such a thing to your own child?” He shrugged his shoulders and said “Oh well” and seemed really indifferent about it. And that was the last time I had spoken to him.’

  Ferguson will not be swayed by the defence. There were definitely bite marks on that baby. She saw them.

  Initially unaware that Carroll had been charged with murder, Ferguson read in 1985 that he had been acquitted. She then went to Ipswich Police Station and made a statement that she had seen the bite marks.

  Why, Byrne asks her, didn’t she raise the matter at the time?

  She did, she says, but the service police did not go to interview her and, shortly after, she transferred with her husband to Malaysia. Her pudgy fingers caress the surface of the witness box as she waits for Davis’s onslaught, which comes hard and fast. But she does not break under his cross-examination. There were bite marks on that baby, she insists. Adult bite marks.

  Defence has been unable to locate the other woman who had allegedly been with Ferguson in the canteen and Davis turns it to his advantage. It was all such a long time ago. How very convenient.

  After particularly gruelling evidence, Faye stumbles outside to get some air. Herpich has warned the trial could take up to six weeks. There’s a long way to go.

  Every day, Faye and Derek have come to listen and watch, Derek, now 26, missing only one sitting when he could no longer stomach the evidence. Fury and disgust rise within him when he sees the photographs, the terrible, terrible photographs of a sister he never knew, her plump little legs and exposed bottom frozen cold on a black-and-white picture. He has stared at Carroll hard, unflinching, willing him to stare back, do something – anything – that will help him understand. But Carroll has not obliged, stares straight ahead. On the rare occasions they make accidental eye contact, Carroll looks away, down to his feet.

  Carroll would later admit he studiously avoided the Kennedys in the adjournments, but they could not always avoid passing in the corridor. No words were ever spoken between them. Ever.

  Every day, Derek has waited for a sign, anything to help him understand. But there is nothing but the pomp and palaver of a Supreme Court proceeding, as though a dark play is being enacted, quiet and sinister while the world turned outside. Derek earns his living lopping trees, and is used to fresh air, bird calls and peace. This is way outside his comprehension.

  It is as though the image is in front of him still. Dr Josephson, who had originally attended at Limestone Park, takes a wavery breath and recounts from memory. The teeth marks against the pale, fair skin of the baby were ‘very clear’, he says, ‘and they did not look like perfectly symmetrical teeth’. Josephson recognises the photographs from the post-mortem, studies one in particular. ‘The actual bite marks were much clearer than this photo would indicate. Much clearer.’ The photos are handed around the jury and a female jury member looks as though she will break down, stifling her distress with a hand over her mouth and Byrne allows them time to view them. A good lawyer knows a picture speaks a thousand words. He finally rises. ‘That’s all I have, thank you, your Honour.’

  Davis slides in. A few quiet questions, ingratiating, gentle, before he takes the first kick. ‘You only saw one bite constituted by two bite marks; is that right?’

  ‘Yeah … there were marks of upper and lower teeth.’ Josephson adds that other marks appeared to be insect bites.

  So, Davis continues, if the bite mark was inflicted when the leg was bent, and then the leg was straightened, the mark would be distorted?

  Josephson nods his head. ‘In general, you are absolutely correct, Sir. Yes.’

  It is immediately obvious what Davis is leading to. If the actual mark was distorted, how the hell could the Crown purport to prove it was his client’s dentition that had made that mark?

  Defence and prosecution both make admissions to shorten the trial. Byrne tells the jury that no fingerprints recovered from any of the crime scenes were found to belong to Raymond John Carroll. And he has another admission. ‘The accused was arrested on 24 February 1984, a Friday, on a charge of murder and stealing Mrs Borchert’s underwear. He was held initially at the Ipswich watch-house. He appeared in the Ipswich Magistrate’s Court on 27 February 1984. He was received into … Boggo Road … the same day, a Monday at a time unknown. He was transported from prison to the Ipswich Magistrate’s Court on 28 February 1984 at a time unknown prior to 4pm. He was released from the Ipswich watch-house on 28 February 1984 at a time unknown and he was not returned to custody prior to this trial in 1985.’

  Carroll had been in Boggo Road the first time for no more than 24 hours.

  Davis appraises the next witness as he takes the stand. No suit. Hard life, judging by the lines on his face and his bleary eyes. Trevor Jonathan Swifte is one of the prosecution’s star turns, but, with Byrne’s admission of Carroll’s entry and exit times into and out of Boggo Road Prison, Davis hopes to annihilate him.

  38

  ‘Do you know the person Raymond Carroll?’ Michael Byrne is leaning over the bar table toward his witness, a slight smile flickering around his mouth.

  ‘Yes I do.’ Swifte is skittish, alternately sitting on his hands and then wiping them on his knee. He talks fast, but his diction is clear.

  ‘And, in February 1984, were you … remanded in the Brisbane prison, Boggo Road?’

  ‘That’s correct.’ He adds that he was in there from January until September. In February, he was held in the Special Observation Unit – SOBS – for protected prisoners because he had been threatened by Aborigines that when he got to the jail he would be killed or seriously hurt for something that had happened years before. He was an old head – been in and out of the system all his life – and authorities had agreed to keep an eye on him in SOBS.

  All Swifte’s sentences are punctuated at the end with yeah. ‘How many cells were there in the SOBS yard?’ Five or six, yeah. How long had Carroll been there when he came in? No longer than a day or two, yeah.

  Swifte asked Carroll what he was ‘pinched on’.

  Justice Muir interrupts, looking perplexed. ‘Pinched on?’

  ‘Meaning what are you arrested on, yeah.’

  Shot duck. Old head. Pinched on. Screws. Michael Byrne suppresses a smile. He hopes the jury understands jail slang. ‘Now,’ he continues, ‘did you have another conversation with him?’

  ‘Yeah, I spoke to him over the couple of days.’ He gets the days and times mixed up, he says, but he can distinctly remember talking to him over different periods. ‘I asked him what he was arrested on and he said, “The murder at Ipswich of the baby.” I said, “I remember that … I was in a boys’ home at the time and the police had come in to find out whether anyone had absconded …”’

  He is rambling, and Muir again interjects. ‘What Mr Byrne is trying to get from you, Mr Swifte, is what you recall, if anything, of the conversation with the accused.’

  ‘Yeah. I’m sorry. When we spoke, he spoke about the murder.’

  ‘What did he say?’

  ‘He murdered the baby.’

  Sandra shifts angrily in her seat.

  Swifte continues. ‘… Like he’d been out all night and … he found a window open … Told me that he been out pinching women’s items, looked in and see
n the baby … took her out, abused her and murdered the child. It was as simple as that.’

  ‘Did you speak to him about taking women’s clothing?’

  ‘Yeah.’

  ‘Did you speak to him about any connection between those clothing and the killing of the child or the abuse of the child?’

  Yeah, Swifte replies, when he told him he had taken the baby, abused the baby and then dumped the body, he said he should have put the baby back.

  ‘Did he tell you how he killed the child?’

  ‘That he strangled the baby.’

  ‘Did he tell you where he put the child after that?’

  ‘He said he took it to a van. I don’t know whether he said a van or a caravan; he took the baby to a van and he took her back. He should have put the baby back, he said.’

  ‘Did he tell you where the child was left?’

  ‘The toilet block, but I do remember, I did remember, the child was found on the toilet block roof.’

  Swifte did not see Carroll again, he says, until after he had been convicted. Carroll was hosing the yard when Swifte approached him. ‘I told him, “You’ve got your right whack, cunt.”’According to Swifte, if Carroll heard what he said, he didn’t respond. He just kept hosing.

  Swifte repeats what he had written in the statement to Cameron Herpich: that he only found out Carroll had been acquitted when he was reading the paper, and a week later, he rang the police. The only person he had told of Carroll’s conversation in Boggo Road was prison officer Denzil Creed. But Creed was now dead.

  It is now the defence’s turn to question Swifte, and Davis immediately goes on the attack. ‘By an “old head,” what you mean is that you’ve been in the system, the jail system, for a long time?’

  ‘And boys’ homes a long, long time. That’s correct.’

  ‘In fact, your criminal history, your adult criminal history, goes back to 1976.’

  ‘That’s correct.’

  ‘And of course you’ve been convicted of literally dozens of offences since that time, haven’t you?’

  ‘That’s correct.’

  Davis outlines his offences through the seventies and eighties and Swifte agrees to them all. Offences of dishonesty? Numerous counts of stealing? Numerous counts of breaking and entering? Convicted of being armed with a gun in 1976? Breaching probation? False pretences? Yep. Yep. Yep. ‘Consider yourself an honest person, do you?’

  ‘No, not at all.’

  It is not the sort of witness testimony the jury expects to hear, but it isn’t over yet.

  Stealing and false pretences, 1980? Robbery, 1984? Stealing, 1984? Stealing, 1992?

  There is sniggering in the public gallery, and Swifte has had enough. ‘I’m not denying my criminal history so I don’t know why you are going to keep harping on about it, champ; you know what I mean?’

  ‘I shall make it clear in a moment. Stealing again in 1993?’

  ‘Yeah.’

  ‘Break and enter a dwelling house with intent in 1994 –’

  ‘Yeah, my own home.’

  ‘Broke into your own house, did you?’

  ‘Bit of an argument with the missus. No dramas.’

  ‘You did community service for 240 hours for breaking into your own house, did you?’

  ‘Yeah.’

  Outright laughter has now erupted from the public gallery, and Justice Muir silences it with a scathing look. ‘And you were ordered by the judge to submit to medical psychiatric or psychological treatment, weren’t you?’

  ‘That’s right.’

  Davis is still on his feet. ‘And you knew, in 1997, that if you assisted police with their investigation in relation to matters, the fact of your cooperation could be mentioned to a court that’s sentencing you … You knew that in 1997, didn’t you?’ An old head knows his way around the system, knows how to manipulate its benefits.

  ‘Known that since day one.’ With a 24-year criminal history, grassing to police is just one of the rules of the game.

  ‘As of March 1997, were you facing any charges yourself?’

  ‘Yes, I was, as usual, arrested about every six months and … my mother’s house burnt down and it was an electrical item found there, and I pleaded.’

  Is he, Davis asks, telling the court he pleaded to something he didn’t do?

  ‘I left the fish-fingers on the stove; the house burnt down. My brother said to me, “You wear the pinch?” and I said, “No dramas.”’

  Byrne shoots a nervous sideways glance at his junior, Sharon Loder. This is becoming farcical.

  Davis suggests that Swifte contacts police in order to cut himself a deal in relation to this charge, but Swifte shakes his head, furiously. He never asked for nothing, he says. All he did was just mention that he might be in the nick when this come up.

  ‘So the reason you contacted the police in the first place was not to get yourself any benefit in relation to your upcoming sentence; is that right?’

  Swifte looks briefly at Faye before he answers. ‘I will tell you why I did it. Because I woke up and seen a child sitting at the end of my bed one night and I went into horrors for two days, and I said, “no, no …”’

  Michael Byrne was thinking the same thing. Oh, no. This is not going to go down well with the jury.

  Davis has found Swifte’s Achilles heel. ‘Well, when you say you woke up in the horrors and you saw the child at the end of your bed, you’re a chronic alcoholic, aren’t you?… Has it been the case that, from time to time during your criminal history, psychological reports have been tendered describing you as an alcoholic?’

  ‘Not a chronic alcoholic. I’ve had a lot of problems.’

  ‘There’s a distinction?’ Davis can no longer contain his sarcasm. ‘Do you often see these sorts of delusions, Mr Swifte? This something that happens to you regularly?’

  ‘It wasn’t a delusion. I woke up …’

  ‘There was no child at the end of the bed, was there?’

  ‘Yes, there was. I got up and the missus asked me what was wrong and I went in the horrors for two days, thinking I can’t believe I seen that.’

  Well then, Davis asks, did you contact police in the interests of justice, to be a good citizen?

  ‘Well, if you want to put it like that, no, I didn’t put it down to be a good citizen. I am sorry, I would have had the morals of a gutter rat if I hadn’t have.’

  Davis hooks his fingers into his robe. ‘It was in the interests of justice generally, rather than to get yourself some sort of benefits for your upcoming plea of guilty to receiving?’

  ‘No. It was for the parents, OK?’

  ‘The parents? I see.’

  ‘For the family. All right? Not for my sake.’

  But didn’t he receive a benefit, a suspended sentence? Davis inquires. In his sentencing in August 1997 for receiving stolen goods, didn’t the judge indicate that he would have been sent to jail but for the fact he had cooperated with police?

  I am not sitting here denying that, Swifte retorts, with a touch of petulance in his answer.

  How many times, Davis later asks, did Swifte speak with Carroll in jail? ‘Three, four times, perhaps over different days,’ he tells Davis. Time means nothing in jail.

  ‘I put it to you that you did not have conversations with Mr Carroll in the prison where he spoke of the murder of Deidre Kennedy?’

  ‘Well, you’re wrong, champ.’

  ‘What you’ve done is, you’ve made this up in order to get yourself an advantage in the system. That’s so, isn’t it?’

  ‘I think I would have gone out of my way then – the trouble I was in at the time then – to make a story up to get out of trouble then. I wouldn’t have waited 16 years.’

  Byrne rises to rescue his witness. ‘Mr Swifte, you’ve been asked … about benefits and advantages in assisting police; that is, giving evidence or offering to give evidence against other prisoners. In your experience in the system, are there any negative or down sides in giving evidence aga
inst other prisoners?’

  Swifte nods vigorously. ‘Bad news if you do. I’ve seen people being murdered in jail over it.’

  ‘You were aware of that at the time you approached police?’

  ‘That’s right.’

  ‘Nothing further, your Honour.’

  Peter Davis is dismayed and disgusted at the next day’s headlines announcing Trevor Swifte’s evidence. ‘Baby Killer Confesses to Man in Jail’. How’s that for unbiased reporting? he thinks.

  John Reynolds reads his record of interview with Carroll to the jury and Davis shows him no mercy. His client, Davis rages, had fully cooperated. He had volunteered samples for testing. And it must be evident, must it not, from Reynolds’s own searches, that the doorknocks were lost sometime between 1973 and 1984? Yes.

  Davis has hit the mark. A female juror in her early forties, dimpled cheeks flushed from the warmth of the courtroom, picks at imaginary dust on her shirt and frowns. It is evident what she is thinking. More stuff lost.

  39

  It is time for the prosecution to showcase its new techniques, to use computer-imaging to prove to the jury beyond reasonable doubt that the bite marks were inflicted by Raymond Carroll’s teeth. To prove to the jury that the expert witnesses in the first trial got it wrong, that they had the bite marks upside down. To prove that the upper row of bruises were made by the lower teeth, and the lower made by the uppers.

  His full name, he tells the court in booming voice, is John Frederick Garner. Senior-Sergeant John Garner, with more than 20 years experience in crime scene and forensic photography. Vastly experienced in the field of forensic art – drawing an image description given by a witness; creator of the Comfit Facial Identification system currently in use in four Australian states; lecturer in his field; has studied computer-imaging techniques in America and Scotland Yard. Garner exudes confidence; experienced with the presentation of electronic evidence in court this, finally, is the moment he and his colleagues have worked toward for years. He races through his qualifications with such speed, Justice Muir has to pull him up. ‘Senior-Sergeant, could you slow it down a little bit?’ Garner smiles, My apologies, your Honour, with not a hint that he feels chastened. Let the show begin.