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The Queen v Carroll [2002] HCA 55
is a decision of the High Court of Australia which unanimously upheld
a Queensland appellate court’s decision to stay an indictment for
perjury as the indictment was found to controvert the respondent’s
earlier acquittal for murder. The court held that charging Raymond John
Carroll with perjuring himself in the earlier murder trial by swearing
he did not kill the baby Deidre Kennedy was tantamount to claiming he
had committed the murder and was thus a contravention of the principles
of double jeopardy. The case caused widespread public outcry and prompted
calls for double jeopardy law reform.
Background
In October 1983 Carroll was interviewed by the police in relation to the
murder of Deidre, a baby whose body had been found on the roof of a toilet
block in Ipswich, Queensland, in April 1973. A post-mortem at the time
had determined Diedre died of strangulation. During the post-mortem bite
marks and bruises were noted on the baby's legs and it was these marks
which led police to charge Carroll over the murder, as odontological evidence
matched the marks with Carroll's teeth. Carroll was charged with murder.
The murder trial started
on 18 February 1985. The prosecution's case was that the teeth marks on
Deidre's body were made by Carroll, that he had a propensity for biting
small children on the legs and that his alibi was false. Carroll claimed
he was at an RAAF base in Edinburgh at the time of Dierdre's death. The
jury found him guilty of murder, but the conviction was quashed on appeal.
The court of appeal found that the prosecution had led no evidence to
disprove Carroll's claim that he was not in Ipswitch at the time of the
death, that the evidence relating to Carroll's propensity to bite children's
legs was prejudicial and inadmissible and that a jury must have entertained
a reasonable doubt as to the odontological evidence presented by the prosecution.
Perjury trial
By 1999 the police had received substantial new evidence in relation to
the case. A witness had come forward who placed Carroll in Ipswich at
the time of the killing, another witness claimed Carroll had admitted
to him in jail that he had killed Deidre and further evidence relating
to the teeth marks was obtained. Carroll was charged with perjury on 12
February 1999. The indictment presented against Carroll claimed he had
perjured himself at the 1985 murder trial by swearing he did not kill
Deidre Kennedy. In November 2000 a jury convicted him of perjury. Carroll
appealed against this conviction.
Supreme Court
of Queensland - Court of Appeal
The Queensland appeal court upheld Carroll's appeal. They found the perjury
trial was in essence a re-trial of the original murder trial and that
the prosecution case amounted to an abuse of process that contravened
principles of double jeopardy. While the court applied an earlier decision
by the Queensland Supreme Court, R v El-Zarw, which held that a prosecution
such as this would not be an abuse of process if there was substantial
new evidence, they found that the evidence presented by the prosecution
in the perjury trial was not substantial. The prosecution appealed against
this decision.
High Court
of Australia
The High Court dismissed the appeal, finding that a conviction for perjury
would inevitably controvert Carroll's previous acquittal for murder and
was thus inconsistent with double jeopardy principles. The High Court
also ruled that this principle applied whether or not substantial new
evidence had come to light, overruling Queensland authority to that effect.
Public response
There was widespread public outrcy following this decision. The general
perception was that a person who had been found guilty by two juries of
murdering a baby had 'got off' on a 'legal technicality' . The Queensland
premier Peter Beattie state that 'there was an injustice done in this
case' (The Australian, February 11, 2003), the New South Wales premier
Bob Carr began a law reform process and the Victorian attorney general,
Rob Hulls canvassed the possibility of legislative change.
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