The High Court played a role on both occasions when jury findings against Raymond Carroll in relation to the death of toddler Deidre Kennedy were overturned on appeal. In 1985, Carroll’s conviction for Kennedy’s murder was quashed by Queensland’s Court of Criminal Appeal, relying in part on the High Court’s judgments in Chamberlain (to hold that the jury should have been directed that it should not rely on forensic evidence that his teeth matched a bite on the toddler’s body unless satisfied of that fact beyond reasonable doubt) and Markby, Perry and Sutton (to hold that ‘similar fact’ evidence of Carroll’s alleged biting of another child was inadmissible). Each of these High Court judgments have since been qualified by later High Court judgments (Edwards and Pfenning) and (in some states) legislation. More importantly, in 2002, the High Court ruled that Carroll’s subsequent conviction for perjury (for allegedly lying at the 1985 trial when he denied murdering the toddler) was an abuse of process because of the rule against double jeopardy. Following England’s lead, most Australian states and territories have since enacted exceptions to the rule against double jeopardy.
Yesterday, the Queensland Attorney-General announced an extension to the state’s existing exceptions to the double jeopardy rule that has particular implications for Raymond Carroll:
Sadly, the former Labor Government left Queensland behind when it made changes to the double jeopardy rule in 2007. Queensland was the only jurisdiction in Australia to not make its amendments retrospective. Hypothetically, it meant a criminal who got away with committing a serious crime years ago would not face justice, even if new forensic techniques and technology pointed the finger at him or her. We are going to remove that barrier to justice for victims and their families.
The media has been quick to suggest that the change will allow (and may have been designed to allow) a fresh prosecution of Carroll for Kennedy’s murder. However, any new prosecution would still face three significant barriers.
First, assuming the other constraints on Queensland’s double jeopardy exception remain, the prosecution will have to point to ‘fresh and compelling’ evidence of Carroll’s guilt. (The case reportedly lacks any DNA evidence, the usual example of such evidence.) Second, both of Carroll’s earlier acquittals were also based on appellate determinations that the evidence at both the 1985 and 2002 trials was insufficient to sustain a guilty verdict. (In its 2002 decision, the High Court did not need to consider whether those appellate rulings were correct.) Third, the over 40-year gap since the death of Kennedy almost certainly means that Carroll faces a massive forensic disadvantage due to the unavailability of evidence, such as a reportedly lost pubic hair on Kennedy’s body, the death of a witness who likely saw the offender, and the unavailability of the original bite mark witnesses. The High Court’s Longman decision will demand a stern warning to the jury that it would be dangerous to convict Carroll in those circumstances. (Queensland remains one of only two Australian jurisdictions to have retain the especially stringent common law version of that warning.) These matters all count against a judge approving a fresh trial for Carroll, a jury convicting at any trial and any conviction being upheld on appeal.