Double Jeopardy – Raymond John Carroll
By Calvin Gnech, Criminal Lawyer and Legal Practice Director at Gnech and Associates 13 May 2020
The cases involving Raymond John Carroll have caused perhaps the biggest legislative reforms in Queensland’s legal history. Legal principles of aurfious aquit and aurfious convict (double jeopardy) have been around for more than 800 years. They say that a person acquitted of a crime cannot be retried for the same offence.
On 13 April 1973, 17-month-old baby Deidre Kennedy was taken from her cot while her parents slept in their Ipswich home. Hours later, her tiny body was discovered on the roof of a nearby park toilet block.
Deidre had been bashed, sexually assaulted and strangled. She was dressed in a pair of women’s step-ins. The horror was taken a step further with the discovery of teeth marks on her thighs.
At the time, the people of Queensland had not seen or heard of a crime of this nature. At first, police could not identify a motive, and it would be ten years before an arrest was made.
Breakthrough
The breakthrough came when Detective John Reynolds ran into a couple of RAAF police officers in Toowoomba. One of the officers told him about an electrician, Raymond John Carroll, who had broken into the women’s quarters at the Amberley airbase.
Detective Reynolds was told how Carroll attacked the clothing on the line, cutting the nipples out of bras and the crotch out of pants, and the genital and breast area of dresses.
Detective Reynolds interviewed the 29-year-old over Deidre’s murder. Dental impressions were taken of Carrol’s irregular teeth and it was found that his bite mark matched the one found on Deidre Kennedy.
Murder Trial
In October 1983, police interviewed Carroll in regard to Deidre’s death, and he was ultimately charged with murder. The prosecution case was based on three factors:
- odontological evidence which matched the bite marks on Deidre’s legs to Carroll’s teeth;
- Carroll’s propensity for biting small children on the legs; and
- Carroll’s false alibi. Carroll worked at the RAAF base in South Australia.
Carroll’s murder trial commenced on 18 February 1985 before Justice Angelo Vasta, and went on for 19 days. Vasta would later become the first judicial officer in Queensland to be dismissed as a result of the Fitzgerald Inquiry. At Carroll’s trial, Justice Vasta allowed in the propensity and odontological evidence. Carroll was found guilty.
Court of Appeal (Murder)
The Court of Appeal found that the prosecution had not led any evidence to disprove Carroll’s claim that he was not in Ipswich at the time of the death. The Court of Appeal also held that the evidence relating to Carroll’s propensity to bite children’s legs was prejudicial and therefore inadmissible, and that a jury must have entertained a reasonable doubt as to the odontological evidence presented by the prosecution. The conviction was quashed.
Perjury Trial
In 1999, police obtained new evidence in regards to the case. A witness came forward and placed Carroll in Ipswich at the time of Deidre’s murder. Another witness, a prison mate of Carroll, claimed Carroll had admitted to him in jail that he did kill Deidre. As a result, more advanced evidential techniques were acquired to analyse the odontological evidence.
Carroll was charged with perjury on 12 February 1999. Perjury (section 123 Criminal Code) carries a maximum sentence of fourteen years imprisonment. The perjury trial commenced in November 2000 – the charge was particularized on the basis Carroll had perjured himself at his 1985 trial for murder by swearing he did not kill Deidre Kennedy. Again, a jury convicted Carroll. However, again the Court of Appeal quashed the conviction.
Court of Appeal (Perjury)
The Queensland Court of Appeal found that the perjury charge was in essence a re-trial of the original murder trail at which Carroll was ultimately acquitted. The Court of Appeal found the prosecution case amounted to an abuse of process that contravened principles of double jeopardy.
The court considered the Queensland Supreme Court decision of R v El-Zarw [199412 Qd R 67; (1991) 58 A Crim R 200. This case held that a prosecution of the nature of this perjury charge would not be an abuse of process if there was substantial new evidence. The court found that the evidence presented during the perjury trial was not substantially new.
High Court
There was again community outrage in regard to the Queensland Court of Appeal’s decision, and it was appealed to the High Court. The High Court did not consider the merits of the evidence against Carroll for the perjury charge, and simply found the very laying of the charge of perjury controverted Carroll’s previous acquittal for murder, and was therefore inconsistent with the double jeopardy principles.
The High Court went even further and overturned R v El-Zarw by holding it was irrelevant if new substantial evidence existed or not – the double jeopardy principle remained via a strict application.
Legislative Reform
Public outcry demanded change in this area of the law. The question was being asked: how could a person found guilty by two separate juries decades apart remain free? NSW Premier at the time, Bob Carr, commenced legislative reform on the topic. Victoria followed and then in 2007, through the Criminal Code (Double Jeopardy) Amendment Act, 2007 Queensland also commenced reform. Chapter 68 Criminal Code now governs circumstances where double jeopardy does not apply.
Current Queensland Law
Double jeopardy does remain in Queensland via section 17 Criminal Code.
17 Former Conviction or Acquittal
It is a defence to a charge of any offence to show that the accused person has already been tried, and convicted or acquitted upon an indictment on which the person might have been convicted of the offence with which the person is charged, or has already been acquitted upon indictment, or has already been convicted, of an offence of which the person might be convicted upon the indictment or complaint on which the person is charged.
However, there are exceptions;
Note- This section does not apply to the charge mentioned in section 678B
(Court may order retrial for murder – fresh and compelling evidence) or
678C (Court may order retrial for 25 year offence – tainted acquittal).
Under section 678B, the Court of Appeal, upon application from the Director of Public Prosecutions, can order a retrial of a person previously acquitted of murder if there is fresh and compelling evidence against the accused, and it is in the interest of justice to do so.
Under section 678C, the Court of Appeal, again upon application from the Director of Public Prosecutions, can order a retrial of a person previously acquitted of a 25-year offence if the acquittal was a tainted acquittal and it is in the interests of justice to do so. The legislative reforms did not allow a retrial on the merits of Raymond John Carroll for the murder of Diedre Kennedy.
There does not appear to have been any applications by the Director of Public Prosecutions under the new double jeopardy provisions since its introduction in 2007.
Australian Story – Double Blind
On 7 April 2003, the ABC program, Australian Story, aired ‘Double Blind’, a feature surrounding the murder of Diedre Kennedy and the 30-year legal battle to find justice. Former Supreme Court Justice Angelo Vasta (Trial Judge for the murder charge told the Journal:
Angelo Vasta: In this case, it’s one of the rare cases where I think the law has been over-technical, and in those circumstances I think that justice has not been done. People know that Carroll is responsible for this death when twenty-four people have said, in a properly constituted court, that he is guilty. The tentacles of justice just can’t reach him.
Investigating officer, Detective Inspector Cameron Herpich
Importantly, whilst there was some new evidence, it was the advancement of the odontology (world first technology developed by Senior Sergeant John Garner and Professor Alex Forrest Qld University and backed up by world renowned odontologist Dr. Colin Bamford in London) that allowed us to have a further shot at Carroll.
Prior to taking this step, I knew that we could not charge Carroll with murder (or a derivative of it), but believed that perjury was open due to the fact that Carroll got into the witness box and gave evidence on oath.
To prove perjury we had to prove the offence took place and that he lied. The format of the case was laid out in 592 application and Justice Muir agreed with this process after I convinced both Royce Miller QC and Michael Byrne QC that this was both a logical and admissible process. Royce Miller then assigned Michael Byrne QC to prosecute the matter through the courts.
