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Murdered Toddler Deidre Kennedy
The ashes of murdered toddler Deidre Kennedy have been stolen from her family's home west of Brisbane.
Police will hold a press conference today in a bid to recover the girl's remains after they were taken from the Laidley home during a break-and-enter on Sunday.
Faye Kennedy's 16-month-old daughter was murdered in Ipswich, west of Brisbane, in 1973 after being taken from her cot.
Her body was found on top of a toilet block in Ipswich's Limestone Park. She'd been beaten, sexually assaulted, dressed in women's underwear and had bite marks on her thigh.
Her murder was the catalyst to overhaul Queensland's double jeopardy rule.
Ms Kennedy led a fierce campaign against the double jeopardy rule until the state government passed a private members bill in 2007, which enabled an acquitted person to be retried if “fresh and compelling” new evidence emerges in a murder case.
The man accused of the toddler’s murder more than 30 years ago, Raymond John Carroll, was twice found guilty by a jury and twice acquitted on appeal.
When new evidence arose in 1990 linking Carroll to the crime, he could not be charged again.
Carroll, who has maintained his innocence, had a perjury conviction in 2000 overturned on appeal partly because it breached double jeopardy.
Ms Kennedy has widely criticised the bill, saying it did not go far enough because it was not retrospective.
Police say yesterday’s theft at the Kennedy’s household occurred between 1.30pm and 8.15pm yesterday.
It's believed the thief gained entry to the house via a rear sliding door.
Relief at double jeopardy reform
Faye Kennedy, whose toddler was brutally murdered 34 years ago, yesterday welcomed Queensland's decision to reform its double jeopardy laws, although it will not help to identify her daughter's killer.
The state's Attorney-General, Kerry Shine, said the Beattie Government would support a private member's bill from independent MP Peter Wellington to allow people to be charged twice with the same offence.
However, Mr Shine agreed only after Mr Wellington dropped the bill's retrospectivity clause, which would have allowed the Kennedy case to be reopened.
In April 1973, 17-month-old Deidre Kennedy was sexually assaulted and murdered before her body was thrown on to an Ipswich public toilet roof.
Raymond John Carroll was found guilty by a jury of her murder in 1985, but the conviction was overturned on appeal. When new evidence emerged later, he could not again be charged with murder because of the double jeopardy rule.
Mr Carroll was charged in 2000 with perjury - that he lied at his murder trial - and found guilty by a second jury, but the conviction was again overturned on appeal.
Mr Carroll has always insisted he is innocent.
Ms Kennedy said yesterday that the move to reform the Queensland double jeopardy law had vindicated her long campaign for change.
"Yesterday was the 34th anniversary of the day Deidre was cremated and we had her funeral," she said. "April is always a difficult month for us. At last, I feel everything hasn't been in vain and that we have achieved something worthwhile."
Ms Kennedy said she was disappointed the change was not retrospective, as it had been in NSW - the only other state to have overhauled the double jeopardy provision.
"The main thing is there's going to be change, and I know this can help someone else in a similar situation," she said.
Mr Shine's move follows a decision by the Council of Australian Governments last week to have the states and territories implement the recommendations of a COAG working group to overhaul the laws on double jeopardy.
COAG agreed the scope of reforms could vary between jurisdictions.
Mr Shine said Mr Wellington's bill was a balanced and reasonable reform and an adequate response to community concerns about the 800-year-old double jeopardy rule.
Kill suspects to face retrials
NOT likely to be retried ... it was Raymond John Carroll's infamous trials and appeals that may well lead to Deidre Kennedy's law
being enacted to enable those accused of murder to stand trial more than once if new, compelling evidence is found.
People accused of murder could be tried twice for the same crime in a landmark overhaul of the double jeopardy laws.
In a long-awaited move, the Beattie Government is set to back a private members' Bill from Independent MP for Nicklin Peter Wellington that would enable an acquitted person to be retried if "fresh and compelling" new evidence came to light in a murder case.
A retrial also could be granted if the original acquittal was found to be "tainted" through perjury.
But the Police Commissioner, Director of Public Prosecutions and Court of Appeal would need to support a retrial before it could go ahead.
If passed, the new laws would not be retrospective, applying only to acquittals that occur after they take effect and there would only be one retrial allowed in each case.
The double jeopardy rule prevents people being tried twice for the same crime.
"I have tried to draw the balance between the two principles that the guilty should be convicted and that acquitted persons should not live the rest of their lives under threat of retrial," Mr Wellington said.
"I think if it gets passed it will become known as the Deirdre Kennedy laws."
However, the changes will not impact on the Kennedy case because it is not retrospective.
The Deirdre Kennedy case has been the catalyst for moves to overhaul the double jeopardy rule.
Raymond John Carroll was convicted of the 1973 rape and murder of 17-month-old Deirdre, but acquitted on appeal.
He was later convicted of perjury after new evidence showed he had lied at his original trial.
But he was again acquitted on appeal on the grounds the perjury trial triggered the double jeopardy rule.
Attorney-General Kerry Shine yesterday said the Government was expected to support the reforms following discussions with Caucus.
"The Bill represents a balanced and reasonable reform and response to the community's concern," he said.
"It is the intention of the Government to support reforms of the double jeopardy rule."
Mr Wellington has been pushing for the reforms for more than a year but the Government has previously said any changes needed to occur at a national level.
However, a Council of Australian Governments meeting last week agreed that states could adopt their own laws, paving the way for the changes.
The Courier Mail (20-4-2007)
Child Murder Accused May Be Retried
THE man accused but twice acquitted over one of Australia's most brutal child sex murders could be retried under proposed changes to the law of double jeopardy.
Queensland Premier Peter Beattie said yesterday the national working group created last week to review the laws would consider making the changes retrospective, meaning past cases could be retried.
It had been thought that changes to the current double jeopardy law, which prevents people being tried twice for the same crime, would only apply to future cases.
But moves to make any amendments retrospective would allow Raymond John Carroll to be brought before the courts again over the sex assault and murder of toddler Deidre Kennedy 33 years ago.
Mr Carroll was twice found guilty of charges relating to the murder but was cleared on appeal each time.
"Any change would obviously involve retrospectivity," Mr Beattie's spokesman said.
"If you are going to expect that people be charged twice, it means charging them over something that's happened in the past. If the review is to decide the law should be changed, that means going back to an earlier time if someone is to be charged again."
Queensland Attorney-General Linda Lavarch had earlier insisted to The Australian that retrospective law changes were "unlikely".
In one of Queensland's most shocking crimes, 17-month-old Deidre was sexually assaulted and strangled in 1973 after being taken from her bed at home. Her body was left on the roof of an Ipswich toilet block.
Mr Carroll was convicted of her murder in 1985 but was cleared on appeal. When new evidence arose later linking him to the crime, he could not be charged again with murder because of double jeopardy. Instead, he was charged with perjury over his evidence at the murder trial. He was convicted but again was cleared on appeal.
Deidre's mother, Faye Kennedy, has been campaigning for double jeopardy reforms similar to those introduced by Britain, which allow murder and other serious charges to be brought against a defendant more than once if "fresh and compelling" evidence arises.
Mrs Kennedy last night welcomed Mr Beattie's comments.
"I have always believed Mr Carroll would walk free, but I am very pleased this might be looked at again," she said.
"It would be painful if we had to go through another trial. If it means we have to go to court again, then of course we will do that because we want to see justice done."
The Council of Australian Governments meeting in Canberra last week agreed to establish the working group to report within six months on double jeopardy reforms.
Double jeopardy has already been discussed by the Standing Committee of Attorneys-General, which referred the issue to the Model Criminal Code Officers Committee.
Federal Revenue Minister Peter Dutton, a strong supporter of Mrs Kennedy's campaign, said it was clear the changes needed to be retrospective.
"Any ideas that Mrs Lavarch might have had that Queensland would not make retrospective changes would be an insult to Faye Kennedy and to all Queenslanders," he said.
Mrs Lavarch has told lawyers privately that she supports double jeopardy reforms to allow fresh trials when juries are found to have been tainted, but not to admit new evidence for serious crimes.
However, Mr Beattie is understood to have decided Queensland should follow NSW, Britain and New Zealand by extending reforms to evidence.
Mr Carroll, who has denied responsibility for the crime, could not be reached for comment yesterday.
The Australian (19-7-2006)
A Review Of The Deidre Kennedy Murder Case
'Body Of Evidence'
HE'S grown a full beard and longer hair. Faye Kennedy sees him often enough, sauntering by her Woolworth's checkout in his creased T-shirt and shorts. She would recognise the freed killer of her baby girl anywhere. It's the teeth, she says. They've always given him away.
Uneven and protruding, those teeth were exhibit one in the Crown case against Raymond John Carroll.
But there was even stronger evidence against the former RAAF electrical fitter never put before the two juries that convicted him of murder and perjury respectively, or the appellate judges who overturned both verdicts.
It was a single pubic hair, taken from the crotch of 17-month-old Deidre Kennedy's bruised and sexually abused body, and it almost certainly contained the DNA of her killer.
The prosecution believed it would have identified Carroll beyond any shadow of doubt. But, as The Weekend Australian reveals today, this critical evidence was destroyed by a laboratory bungle.
That, and the appeal courts' application of the so-called double jeopardy rule, means Carroll, 46, is at liberty to drive his white Magna around Ipswich and to turn up at the supermarket where Faye Kennedy works. The High Court held last December that he can never again face criminal trial over Deidre's murder.
The case has prompted a political storm, with NSW Premier Bob Carr backing calls from former High Court chief justices Harry Gibbs and Anthony Mason for a review of double jeopardy. Broadly, this maintains that a person cannot be tried twice for the same crime.
The Australian is exploring on Kennedy's behalf the feasibility of retrying Carroll in a civil court. Such a move is unprecedented in this country and has provoked disquiet from civil liberties groups and legal commentators.
Editor-in-chief Chris Mitchell argues that the role of newspapers is to expose and campaign against injustice, be it at the personal or systemic level. The Carroll case involves both, he says. As for the acquitted man's rights, he'd have more sympathy for Carroll if he wasn't harassing Kennedy at work.
"I was aware that a lot of people in Queensland felt the second trial [for perjury] was a chance for Mrs Kennedy to get some justice," says Mitchell, a former editor-in-chief of Brisbane's Courier-Mail."I guess I felt awkward about a jury's decision being overturned twice, and that's compounded by the mishandling of the DNA evidence."
Still, any civil action against Carroll will be far from straightforward. Former Queensland crime commissioner Tim Carmody SC, now practising at the Brisbane Bar, is finalising a detailed report to Mitchell on Kennedy's options. Without pre-empting this advice, he admits aspects of the case are a "stretch".
Understandably, Kennedy is desperate to proceed. In her mind, there is no doubt that Carroll murdered her daughter. "Two juries found that," she says. "And no judge will ever convince me they were wrong".
She doesn't want monetary damages from Carroll; she accepts there is little if any cash to be had from him. The verdict is what counts. Acknowledgment that he is guilty as charged all those years ago. "I can't get back what he took away," she says, "but people need to know that you can't do that kind of thing. It's wrong."
Running in her favour is the fact that double jeopardy does not apply between the two fields of law. But civil actions do have constraints. In terms of statutory limitations: in Queensland the maximum in most instances is either three years or six. Given that Deidre died almost 30 years ago, Carmody accepts Kennedy is almost certainly out of time.
The court— and it would most likely be the civil branch of the Queensland Supreme Court —would first need to be persuaded to grant a time extension. Assuming it did so, a cause of action would have to be established, along with whether damages, however notional, could be recovered from Carroll.
As most of Deidre's legal rights did not survive her death, Kennedy might be best served seeking damages for her own suffering, culminating In the renewed emotional distress caused by the High Court decision three months ago. This is another tricky legal point.
One strategy Carmody is exploring would be to argue Carroll was civilly liable not for Deidre's murder, but for her kidnapping. Not wanting to raise the family's hopes too high, he says the case is "right on the outer limits". But if he can get it back into court, he likes the prospects with a civil jury.
For a start, the standard of proof would be substantially lower than the beyond reasonable doubt test applicable in criminal trials. A civil jury could find on the balance of probability— "51 per cent as opposed to near certainty", Carmody says.
As in the criminal trials, much would turn on the forensic evidence concerning the bite marks identified on the outside of Deidre's left leg, just above the knee.
As Crown prosecutor Michael Byrne QC points out, the DNA evidence would not have affected the outcome of the perjury trial: the Court of Criminal Appeal would still have thrown out Carroll's conviction and entered an acquittal on the basis of double jeopardy.
But it is worth thinking what the evidence might have meant in a civil case given its potential to bolster the surviving dental evidence, which remains compelling in its own right.
Deidre's body was found at dawn on Saturday, April 14, 1973, tossed on to the roof of a toilet block 500m from the Kennedys' two-bedroom flat in Ipswich. The infant was abducted sometime after 10pm the previous night while sleeping beside her sister Stephanie.
She had been sexually assaulted and strangled. The killer had dressed her in a woman's half-slip, panties and step-ins, all stolen from next door. A male relative of Kennedy's then husband, Barry, came under suspicion, but was soon cleared.
Police interviewed hundreds upon hundreds. They even declared an amnesty for local criminals: co-operate, provide your fingerprints and hair samples, and we won't use them in any other investigation. To no avail.
Then, in February, 1984, long after all concerned had given up hope, a detective sergeant named John Reynolds had a chance meeting in Toowoomba with two old friends. As a young constable, Reynolds had worked on the Deidre Kennedy murder hunt in Ipswich.
The men he had run into were former police who had gone into the RAAF as military policemen. They were investigating a sex case at the Amberley airbase. A real sicko who had been at some young woman's personal pictures and underwear. Name of Raymond John Carroll.
Reynolds decided to take a closer look He interviewed Carroll and obtained his permission to take hair samples and a cast of his teeth. In those pre-DNA testing days, hair could not yield airtight identification evidence. But dental matching was a different matter. Reynolds vividly remembers forensic odontologist Cornel Romaniuk telling him: "This is your killer."
The challenge, though, was to put Carroll in Ipswich at the time of the murder. He said he was on base at Edinburgh all week, preparing for the passing out parade on April 19. Eventually, Reynolds tracked down an instructor who said Carroll was not present for the parade, though he could not initially remember why, and a fellow recruit who recalled him being granted leave for a family medical emergency.
Yet no RAAF records could be found to verify this and, to further confuse the picture, another recruit said he had had morning tea with Carroll on the morning of the 19th. On the other hand, Carroll's estranged first wife, Joy Grinter, had provided a statement detailing his habit of biting their baby daughter's thighs and of their bitter arguments over him wanting to name the child Deidre.
When Carroll was asked under oath at the murder trial in February, 1985, whether he had killed Deidre Kennedy, he replied: "No, I did not."
The jury didn't believe him; he was convicted and given life imprisonment by trial judge Angelo Vasta. The critical evidence, undoubtedly, was that of Romaniuk and two other eminent odontologists, Kenneth Brown of Adelaide University and Bernard Sims of London University.
Speaking publicly of his evidence for the first time this week, Brown said he remained "very— very confident" that Carroll had made the bite marks on Deidre's body.
In addition to finding that Grinter's evidence should not have been admitted in the first place, the Court of Criminal Appeal put considerable weight on what it regarded as discrepancies in the dental experts' testimony.
True enough, they were working from photographs of bruise patterns caused by the bite, not actual tooth indentations, because none had been left.
The odontologists also gave varying evidence as to which tooth caused which mark. But as trial prosecutor Adrian Gundelach pointed out in a scathing paper in the Journal of Forensic Odonto-Stomatology in 1989, "these so-called discrepancies did not affect the basis of their conclusions that Carroll was responsible for biting the deceased child's thigh".
At the perjury trial in 2000— predicated on Carroll's sworn denial of the murder at his original trial —the jury was again persuaded by the forensic evidence, this time based on digital imaging and reconstruction of the bite marks. As before, the remainder of the prosecution case was broadly circumstantial.
However, the Court of Criminal Appeal found the trial amounted to an abuse of process because it had breached double jeopardy. Moreover, the verdict that Carroll was responsible for Deidre's death had been based on odontological evidence which was unsafe and unsatisfactory.
While Gundelach's critique was necessarily confined to the original murder trial his conclusions have much wider resonance.
"The outcome of this trial in which the expert evidence...was rejected by an appeal court demonstrates the real danger of judges [or jurors] playing Sherlock Holmes in an area beyond their competence and expertise."
The Weekend Australian (15-16 February, 2003)
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