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."