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Justice In Jeopardy

Page 27

by Debi Marshall


  He affords himself a sly chuckle. The Crown, he says, would like the jury to believe that the person Nugget Carroll saw on the veranda was not the same person who abducted Deidre. And, if that was the case, ‘Mrs Borchert’s underwear must have really been in demand on that night.’ The jocularity disappears as suddenly as it came. It is the defence’s contention that the man Nugget Carroll saw on the veranda was, in fact, the same person who killed Deidre Kennedy.

  The Crown, he scoffs, have dredged up witnesses 27 years after the event. Twenty-seven years. His client’s neighbour had sat proudly in the witness box and said he didn’t know whether Raymond had gone home that weekend. The court hadn’t heard boo from Dr Ken Brown. Why not? If the Crown could organise a video-link from London for a witness, surely Adelaide was not too much of a stretch? ‘Well,’ Davis says, opening his arms in an expansive gesture, ‘the reason you haven’t had the benefit of hearing from Brown … is that he just doesn’t fit with what the Crown now wants to say. Because Brown, of course, gave his opinion and he had the bite marks positioned upside down to what the present experts positioned them …’

  The doorknocks are lost. All gone. ‘That evidence, you may think, might have completely exculpated my client; it may very well have been that the doorknocks would have shown my client was not there. It would certainly have shown who was living around my client’s address at that time and those witnesses could have been found. But all that evidence is now just gone.’ And what of the RAAF records? Funnily enough, he says, those that are still in existence – kit records and course records – seem to suggest that Carroll was in Edinburgh at the time but other RAAF records – travel and general movement – were all gone.

  He targets the prison records. Cameron Herpich, he says, was asked a series of questions as to when Carroll was released from Boggo Road and he said the prison records were gone. ‘That was his answer.’ In effect, he says, frowning, Detective Herpich was quite happy for them to believe the prison records showed Carroll going into the prison, but … he was bailed the next day and released from the Ipswich Magistrate’s Court. So what opportunity did Swifte have to speak to his client?

  Where are the missing witnesses, like the canteen lady to back up Ferguson’s claims? And why haven’t they heard from the man who would have had to consider any application for compassionate leave?

  He zeroes in on Keith Kennedy. On his darker side. ‘We know that in 1970 he was found not guilty by reason of insanity of … biting a three-and-a-half year old girl on the vagina …’ You might also like to think, he suggests, that the description Nugget Carroll gave more readily fits Keith Kennedy than it did his client. Davis’s voice remains smooth, easygoing. ‘The Crown has called 30-odd witnesses in order to prove my client wasn’t in South Australia and to desperately get him in the right state, let alone in Ipswich, let alone in Limestone Park. We know that Keith Kennedy was in Auchenflower …’

  He quickly skates over Whittaker’s evidence. Doctors Craig, Bamford and Forrest have all said that the gap in Keith’s teeth precluded him from being the biter but, while Whittaker said it was unlikely – he leaned hard on the word – he had said he could not be excluded. Exoneration of Keith Kennedy is, Davis says, not a matter for the police, but for the jury. ‘It’s clearly raised here that Keith Kennedy could have perpetrated this offence; the Crown says he didn’t do it, that it’s Mr Carroll. Well, let them prove it. How was Keith Kennedy exonerated? Was it alibi, was it fingerprints or other scientific evidence? What was it that the police did in order to come to the conclusion that it wasn’t Keith Kennedy? Was it that sort of investigation that exonerated Keith Kennedy? We’ll never know. They will just simply say to you, don’t worry about it, and I say to you, worry about it. You should worry about it.’

  He tears apart the Crown’s case regarding special leave for RAAF recruits. There is, he says, a whole body of evidence that a recruit had to have a relative on death’s door or actually in the coffin in order to get compassionate leave.

  He completely discredits Desley Hill’s evidence, that it was during her second relationship with Carroll that they saw the Deidre Kennedy story on television. ‘It just couldn’t have happened the way she said that it did …’ He reminds the jury of what Desley said at the committal hearing. ‘She said she remembered going to the toilet and then having a lay down. It must have been a very memorable trip to the toilet, one would think, to remember it for 27 years.’

  Davis crucifies Swifte. He tells the jury that the man is simply an alcoholic with his own agenda: to cut a sentencing deal with authorities. Joy Meyers is an ex-wife with an axe to grind. And the odontology witnesses? The evidence was more like a presentation, a show. ‘You’ve got the very inexperienced Forrest, you’ve got the quite experienced Craig and you’ve got the fairly experienced Bamford, and the three experts can’t actually agree on which teeth made which marks … the forensic evidence really doesn’t assist you at all because it is obvious at the end of the day that that photograph and others like it are so bad that the experts can’t come to a conclusion.’

  This, Davis concludes, is a dreadful case. ‘It’s a hideous crime, this murder, and all of us would like to be able to say we can solve it, put poor Mrs Kennedy out of her misery, let her close the chapter, but you can’t do that by convicting him just because he’s there and he’s the only one who’s there; you really have to look at all the evidence and the vast majority of it is just junk. It’s science gone a little bit crazy in a mad attempt to solve this horrible, horrible crime … The photographs: how could you possibly identify someone off that photograph of that bite mark? And what is left after that? An ex-wife, an ex-girlfriend and a criminal, Swifte …’ If the jury approaches its evidence dispassionately and with intellectual honesty, he says, they would realise that the Crown had not gone within cooee of proving anything against his client, and would acquit him.

  Justice Muir starts his summing-up to the jury mid-afternoon on 30 October. It would conclude hours later on day 18 of the trial.

  ‘Members of the jury,’ he begins. Carroll’s family are watching him intently, eyes darting between the judge and Raymond, motionless in the dock. ‘It is my duty now to sum up the case before you …’The accused, he says, comes before them clothed with the presumption of innocence. They must, Muir warns, disregard anything they may have seen, read or heard in the media, as pieces of evidence looked at in isolation from others can present a distorted and sometimes erroneous view. Their verdict has to be arrived at uninfluenced by external considerations.

  With the passage of time, he says, memories fade and documents that may have been able to corroborate or disprove other evidence have been lost or destroyed. Witnesses who gave evidence in the first trial are now dead so their evidence is frozen in time. They should not allow any prejudices to colour their decision, he says, and must not allow the cruel nature of her murder to influence the way in which they approached their task. ‘Remember the sole question that you are required to decide is the serious one of whether the accused, on the evidence before you, is guilty beyond reasonable doubt of the charge brought against him … If he did kill Deidre Kennedy, you may think it plain that that was something well known to him. If you conclude that this is not established beyond reasonable doubt, it follows that it has not been proved that the accused gave false testimony and the verdict must be not guilty …’

  Muir deals carefully with Swifte’s evidence, as he has advised Byrne and Davis that he would. ‘He has been involved in unlawful and dishonest conduct throughout the whole of his adult life … For all of those reasons, it would be extremely dangerous to convict in reliance on Swifte’s evidence alone and I … direct you also that his evidence should be treated with extreme caution.’ As to the recruits: ‘… some of the course members do not remember any member being absent at any time, or cannot recall …’

  The documentary evidence, he continues, is not all in the Crown’s favour. ‘There are air-force records which support the a
ccused’s contention that he was at the course at the time of the graduation. There is his individual kit records which bears the date 17 April 1973 with a signature against it which appears to be his … The first leave recorded was between 22 December 1973 and 6 January 1974… There is thus not one official record put in evidence which supports the Crown’s case that the accused was absent from the course in about the last week or, at least, from some time on 12 April …’

  Reiterating the evidence of Meyers and Ferguson, he cautions that Desley Hill’s account ‘has some obvious difficulties’. Is it possible she is mistaken? Turning to the expert evidence, he notes that at this trial the conclusion was that the marks were made by the lower teeth – the opposite of what was said at the first trial. ‘The consequence of the difference of opinion about which teeth caused the marks is that the two sets of experts, in effect, regarded the marks making up bite mark one as having been caused by teeth of markedly different shapes, sizes and characteristics … Dr Josephson … found only one bite mark as did Romaniuk, Sims and Brown. Bite mark two, as it has been called in this case, was not identified by any of those persons and one may infer that they … took considerable care with their observations.’ He says that the jury should not put blind faith in the evidence of any expert. While Forrest, Bamford and Whittaker had been confident in their evidence in relation to bite mark identification, Dr Craig had not.

  Lost evidence, he concludes, does not help, including ‘some prison records … missing … which show when Mr Swifte left the area at Boggo Road in which he was in with the accused.’

  On 2 November 2000, the jury retires just after 1pm. The judge indicates to them that he will not take their verdict after 6 o’clock that night, leaving those left behind in the court with the heightened sense of nervousness that always precedes a verdict. Many stay until 6pm, when it is obvious there will not be a verdict today.

  Looking rested and confident, the jury returns to the courthouse the next morning. Faye is not rested; neither she nor the rest of her family have managed a wink of sleep.

  Near noon, the bailiff knocks. The jury has reached a verdict.

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  The judge’s associate addresses the foreman. ‘Members of the jury, are you agreed upon your verdict with respect to Raymond John Carroll?’

  ‘Yes, we are.’

  Raymond Carroll, his posture immutable, gazes straight ahead. Faye peers down at her lap and kneads a handkerchief between her hands, her mouth parched and her stomach turning somersaults. Ilma Carroll’s eyes are fixed on the foreman, in a silent, desperate plea for the jury to let her son walk free.

  ‘Do you find the accused, Raymond John Carroll, guilty or not guilty of perjury?’

  It falls from their mouths, each juror in unison, each with the same verdict. ‘Guilty.’

  Faye, seated next to Cameron Herpich, throws her arms around him before dissolving into a paroxysm of sobs.

  ‘So says your foreman, so say you all?

  ‘Yes.’

  Ilma Carroll’s sobs resound throughout the courtroom.

  Herpich remains ashen-faced. He doesn’t cry; it is unmanly to cry. He is happy for Faye that they’d got a guilty verdict. He feels as if there is an angel in court, the way things have just clicked into place.

  Justice Muir pauses before thanking the jury. ‘The trial was a long and difficult one and it was plain to me that you followed the evidence with utmost care …’Another brief pause. ‘I call on the accused.’

  ‘Raymond John Carroll,’ the associate intones, ‘you have been convicted of the charge, indictment that on the eighth day of March 1985, at Brisbane in the state of Queensland in the judicial proceedings, namely the trial of Raymond John Carroll, you murdered one Deidre Maree Kennedy and knowingly gave false testimony to the effect that you did not kill the said Deidre Kennedy, and the false testimony touched a matter which was material to a question then pending in these proceedings.

  ‘Raymond John Carroll, do you have anything to say as to why sentence should not be passed on you?’

  Carroll seems not to hear and Davis responds. ‘My client has nothing to say, your Honour.’

  Carroll, now 45, stands as his prior convictions are aired to the court. The first in Brisbane, 19 June 1987. Break and enter a dwelling house with intent in the night time and break and enter and doing wilful damage. A further conviction in the New South Wales local court at Leeton on 28 February 1992 for remaining on enclosed lands and offensive behaviour.

  The defence objects that the offences have little relevance to this matter, but Michael Byrne outlines the break-in at the WAAF. ‘The purpose was stealing of women’s underwear and the accused was convicted, his fingerprints having been found on photographs belonging to one of the female service personnel … female underwear was taken and the wilful damage relates to the parts of the bras relevant to the nipples being cut from the bras and the parts relating to the vulval area and the underpants being cut from them. It was that matter which, of course, brought him to the attention of police in respect to the present matter.’ He agrees that the offence in New South Wales does not bear a great deal of relevance to the present circumstances.

  Byrne argues that Carroll should get the maximum term as it is impossible to imagine a worse case. ‘What the prisoner has done is to falsely swear under oath on his own trial for murder to avoid a sentence of life imprisonment and, indeed, he has achieved through various means that result. The verdict of the jury makes it clear that they found, as the trial was litigated, that he was guilty of the murder of Deidre Kennedy … Of course he cannot be punished for that but the submission is the circumstances of the offence, its result, the effect it has had – part of which is reflected in the victim impact statements your Honour has just read upon the family.’

  ‘Yes,’ Justice Muir agrees, ‘but of course it hasn’t had that effect; the murder has had that effect.’

  Davis points out that the victim impact statements effectively concentrated on the damage done by the murder, and, while he agrees that there is no doubt that the Kennedy family has suffered shockingly, that damage has not been caused by the perjury. ‘That damage is caused by the death of the child and Carroll does have the benefit of that acquittal.’ He submits that a jail term of between seven to 10 years would be appropriate for his client, not the maximum sentence.

  It is done; verdict in, submissions over. Justice Muir glances up at Carroll as he delivers sentence. ‘Raymond John Carroll, you have been convicted by a jury on the charge that on your trial for the murder of Deidre Kennedy you knowingly gave false testimony to the effect that you did not kill Deidre Kennedy. In short, you perjured yourself in an attempt to secure your acquittal.

  ‘In the event, your perjury achieved no result. The jury disbelieved you and your perjured evidence did not lead to the appellate courts decision to quash that conviction. Perjury offences are regarded as serious offences. Generally, they are hard to detect and to prove and they have an obvious tendency to undermine the whole basis of the administration of justice … This is a very serious instance of perjury for two reasons: firstly, because it was committed in a trial for murder, the penalty for which is life imprisonment and for the purpose of attempting to avoid a conviction; secondly, the false evidence concerned the very issue in the murder trial.

  ‘It is necessary to bear in mind that the sentence being imposed is for perjury, not for murder. It is important not to let the horrific nature of the crime perpetrated on Deidre Kennedy, and its profound impact on the lives of her family, divert attention from that fact … Although, as I have said, this is a very serious instance of perjury, in my view there are categories which may be regarded as more serious … with those considerations in mind, I sentence you to a term of imprisonment for 12 years.’

  Faye cries with relief when the sentencing is finished, but part of the judge’s statement will echo in her ears forever. Although, as I have said, this is a very serious instance of perjury, in my view there are
categories which may be regarded as more serious … What, she thinks, could be more serious than this?

  Carroll is allowed a five-minute audience with his wife, Marilyn, as he stands in the dock. Her face is awash with despair, and she huddles into herself as she walks out past the Kennedy family, after Carroll is led away. They have only been married seven months.

  The Kennedys sit in court, hugging Reynolds and Herpich. Faye manages a small smile for the cameras as she walks from court, the first time in many years she can remember feeling a sense of relief. It is, one journalist notes, a smile that replaces the stressed, haunted, sad appearance she has worn as she has run the media gauntlet at Carroll’s two long trials.

  Desperately shy and private, it has been excruciating for Faye to be in the media limelight. As they lead Carroll away, she thinks, I damn you to hell. He is going to jail, where he belongs, and she hopes he never gets out. And for her family, it is now a chance to try and get back to normal, out of the glare of the press.

  Faye looks at Herpich. Like John Reynolds before him, he has never given up, worked at it as if he was a man possessed. She will never forget what he and the prosecution team have done and affords herself a quiet smile. She likes to think of Deidre as inspiration to help obtain justice for other little children who have been victims of evil.

  Peter Davis goes straight down to the cells to see Carroll after sentencing. He is gutted at the verdict, thought the trial had gone well, that the jury would acquit. He thanks Davis for his hard work.

  When he leaves the courthouse, Davis heads to his office. Within two hours, he and Liz Wilson have drawn up the grounds for appeal.

  John Reynolds pumps Herpich’s hand, tells him that when they were first introduced, he thought he was a pompous little prick. The new style of policeman, who doesn’t bend the rules at all. Dots the i’s, crosses the t’s before he makes his next move. But he shakes his hand and congratulates him, tells him he’s done a bloody good job. But Reynolds can’t resist adding a cheeky rider. ‘We’d have got the same result.’

 

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