TRANSCRIPT: Chloe Murphy might never have justice

MELISSA DOYLE: Hello. I'm Melissa Doyle. And welcome to Sunday Night. We begin tonight with a staggering tangle of injustice. Melbourne baby Chloe Murphy died from horrific injuries sustained while she was in the care of a babysitter. A criminal trial saw that babysitter found not guilty of child homicide. Then a coronial inquest declared she was most likely responsible for Chloe's fatal injuries. But the law means she is unlikely to face trial again. Tonight, Chloe's parents speak exclusively and for the first time about their harrowing ordeal. The unfairness of being cross-examined multiple times while the babysitter wasn't. And their dogged determination against the odds to get justice for their little girl. But Denham Hitchcock's investigation begins with another first, a crucial account from an expert witness convinced baby Chloe was brutally killed.

DENHAM HITCHCOCK: (OVER PHONE) Lori, it's Denham.Can you hear me OK?

DR LORI FRASER: Yes. Yes. Fine.

DENHAM HITCHCOCK: Doctor, thank you very much. I'm going to ask you a couple of specific questions. Is there any doubt that Chloe was shaken violently?

DR LORI FRASER: No.

DENHAM HITCHCOCK: Is there any doubt that she was picked up or grabbed violently?

DR LORI FRASER: No.

DENHAM HITCHCOCK: Is there any doubt that she was thrown onto a hard surface?

DR LORI FRASER: No.

DENHAM HITCHCOCK: Is it possible that she sustained these injuries through some sort of fall down those stairs?

DR LORI FRASER: No.

DENHAM HITCHCOCK: Is there any doubt that Chloe was murdered?

DR LORI FRASER: No.

TONY: Basically my entire faith in this system is gone. It's just let us down so badly.
It's let down my daughter so badly.

DENHAM HITCHCOCK: Anthony and Kat are Chloe's parents. And this is an important day. The coroner is about to give her findings into the violent death of their baby girl. They are hoping for some answers.

TONY: We're just your typical Australian family. I just wanted to take my wife out to dinner. We leave her at a babysitter and this has happened. I just can't stomach that.
I really can't stomach that. Why should my daughter be denied justice? It's just not right.

DENHAM HITCHCOCK: Tony and Kat are torn between extreme anger and devastating anguish. But to start with, they just want to tell you about their little girl, Chloe.

ADELE: # Whenever I'm alone with you... #

TONY: Before you have kids, you think you understand love and you think you understand what love feels like. But when you see your little baby girl sort of open her eyes and look at you, it's just indescribable.

(CHLOE GURGLES)

TONY: It just melted me. So beautiful.

ADELE: # You make me feel like I am whole again... #

TONY: Such a beautiful, gentle soul. She was just gorgeous. She knew how to wrap me around her little finger, anyway.

DENHAM HITCHCOCK: She had you worked out already?

TONY: Oh, she had me worked out from day dot. (CHUCKLES)

DENHAM HITCHCOCK: Kat, I can see you holding on to that bunny there.

KAT: Yeah.

DENHAM HITCHCOCK: Whose bunny was that?

KAT: Uh, it's my daughter, Chloe.

DENHAM HITCHCOCK: Tony give me for Easter, the first year we met. And I just gave it to her.

DENHAM HITCHCOCK: This tiny, gurgling bundle had turned them into an instant family. And soon Kat was preparing to go back to work.

TONY: Kat put a notice up on a website.

DENHAM HITCHCOCK: A website to find a nanny.

TONY: Basically, yeah.

DENHAM HITCHCOCK: OK. And who responded to that?

TONY: Uh, Ketapat Jenkins.

DENHAM HITCHCOCK: This is a video posted online by Ketapat Jenkins...

KETAPAT JENKINS: # I remember when you used to tuck me in at night... #

DENHAM HITCHCOCK: ..a 26-year-old married mother of two who had been living in Melbourne for three years. And the first time that she looked after Chloe, what was that like?

TONY: Well, basically the whole night we received running commentary, you know, of what she was doing. She was feeding Chloe, how much she ate. She cried, everything.
If she went to sleep. If she cried.

DENHAM HITCHCOCK: Which made you feel comfortable.

KAT: Yeah.

TONY: Basically, yeah.

DENHAM HITCHCOCK: December 3, you take Chloe around so she can look after her for a second time. What was the reason for that?

TONY: I just really wanted to take Kat out to just go see a movie, have some dinner, just relaxand enjoy an evening together.

DENHAM HITCHCOCK: A few hours to themselves - that's all they wanted. So they placed Chloe into the car to bring her around and drop her off at the babysitter's house. It's Friday night and they turn into this street at 7:30pm.

TONY: Had the music on and Chloe was humming away to the music in the back. It was just so cute. She was just oblivious to anyone watching her. She was just humming away to it. Got there, and... so begins the nightmare, I guess.

(KNOCK AT DOOR)

TONY (ACTOR): Hello.

KAT (ACTOR): Hello.

KETAPAT (ACTOR): Hi. How are you?

TONY (ACTOR): Good to see you. Come in. Come in.

KETAPAT (ACTOR): Good to see you.

DENHAM HITCHCOCK: Do you remember if you said anything to Chloe before you left?

TONY: I just said, "Goodbye, my little princess. Be a good girl."

DENHAM HITCHCOCK: Tony and Kat felt Chloe was in good hands as they headed off on their date night. So, dinner and a movie, a nice few hours just for the two of you.

TONY: Yeah, it was good. It was good just to...just relax.

DENHAM HITCHCOCK: No messages. No calls.

TONY: No, nothing.

KAT: Nothing.

DENHAM HITCHCOCK: So, you were driving back. What time is this?

KAT: After the movie finished, about...nearly 11:00.

TONY: Gave her a call. Didn't get an answer. So we knocked at the door. She opened.

TONY (ACTOR): Hi. How are you? Good to see you.

KETAPAT (ACTOR): Hello.

TONY (ACTOR): Hey, Chloe. How are you, sweetie?

TONY: She had a phone in her hand, which kind of struck me as really odd. And she was holding Chloe, like, as if she was asleep, sort of cradling her. Her demeanour was just completely calm. Like, you wouldn't think there's anything remotely wrong at that point.
It was only when she said, "Why didn't you tell me your child has asthma?" Both of us, "She doesn't have asthma. What are you talking about?" She was barely breathing. She was really struggling for every breath. Absolutely no control of her body at all.

DENHAM HITCHCOCK: hey were distraught over Chloe's condition and shocked by the lack of concern
from the babysitter.

TONY (ACTOR): Sweetie? What's wrong?
KAT (ACTOR): What's wrong?

BOTH: (ACTORS): What happened?

KAT: Her neck was like a newborn baby. Could not control at all.

TONY: And there was just absolutely no response. Basically at that point I just said to Kat, "You know we need to go to hospital."

KAT: We said we were going to go to hospital and she said, "Are you sure? She's sleeping." We said, "No, we're going to go." She said, "No, she's asleep."

KAT (ACTOR): Tell me what happened.

TONY (ACTOR): Let's go.

DENHAM HITCHCOCK: Tony and Kat know something is wrong. They rushed her to hospital.

TONY (ACTOR): Honey, is she alright?

KAT (ACTOR): Chloe.

DENHAM HITCHCOCK: So, you're leaning over the passenger seat.

KAT (ACTOR): Yeah. I just tried to wake her up and call her, but no response.

KAT (ACTOR): Are we at the hospital now?!

TONY (ACTOR): I know. I know. I know. I'm just coming in here, straight in here now.

KAT (ACTOR):Wake up.

DENHAM HITCHCOCK: The Royal Children's Hospital is less than two kilometres away. It's a few minutes at most. They arrive here at 11:30pm. Chloe is still unconscious. They have no idea why.

TONY: Picked her up and just bolted for the emergency. Had to run down some corridors. I just ran. I get to the emergency section and I didn't know what to do so I just ran to the front. And she took hold of her straightaway. And the second she took her
she's gone, "Oh, shit." And just rushed straight out the back to the treatment area.

DENHAM HITCHCOCK: And they must be asking you a lot of questions about what happened and...

TONY: I didn't know what happened. I just said to them, "You know, we just picked her up from the babysitter. "We don't know what's happened."

DENHAM HITCHCOCK: Doctors were desperate to find out what was wrong with Chloe. It could be a blocked airway. It could be an allergic reaction. Finally, a scan was taken of Chloe's head. It showed massive brain damage.

TONY: To hear those words come out of the doctor's mouth, it just blew me away.
That was the last thing on earth I was expecting.

DENHAM HITCHCOCK: Chloe was rushed into surgery. She'd already been revived twice.

TONY: Every step of the way it just got worse and worse and worse and worse.

DENHAM HITCHCOCK: The damage to a 10-month-old baby is so horrific, hospital staff contact police and they tell them this. "We have an infant in a critical
condition with suspicious injuries. "We are keeping her alive, but she's going to die."
(MACHINE BEEPS) Chloe never stood a chance. But the final decision had to be made by Mum and Dad.

TONY: To actually say the words that basically end your child's life... ..physically say,
"Yes, turn the machines off," that was one of the hardest things I've ever had to deal with. I told her I loved her. I'd see her again one day. I'll love her for the rest of my life. And I'll get justice for her. Watching them take the tubes away
and turn the machines off..most horrible moment in my life. And just to feel her little body just stop.

KAT: No parent want to see their child die before them.

DENHAM HITCHCOCK: Chloe passed away on a Sunday, only two days after Tony ran through those doors. And from that day on, it became a homicide investigation. There is only one suspect.

DR LORI FRASIER: She was found to have very severe retinal haemorrhages. The brain injury was called a subdural haematoma. It was a large subdural haematoma. It was bleeding that was compressing the brain.

DENHAM HITCHCOCK: Dr Lori Frasier is one of the world's leading experts on child abuse. Authorities requested she review all Chloe's medical reports.

DR LORI FRASIER: She also had an injury to her arm that consisted of three fractures to her arm. It's really unusual to see this combination of arm fractures and head trauma.

DENHAM HITCHCOCK: How long was it before they had a suspect?

TONY: Well, next day, they went around to her house and...

DENHAM HITCHCOCK: The babysitter's house?

TONY: Babysitter's house. They took her away for questioning.

DENHAM HITCHCOCK: Miss Jenkins, it's Denham from Sunday Night. When was the first time that you knew that there was something wrong with baby Chloe?

KETAPAT JENKINS: I'm sorry. I don't have anything to say, OK? I'm really sorry.

DENHAM HITCHCOCK: When we found and questioned Ketapat Jenkins, she didn't have much to say. Police didn't get a lot of information either, and they interviewed her twice. Critically, she claimed she only noticed Chloe had trouble breathing when she checked on her in bed. So police started gathering evidence. Listening devices were planted at Ketapat's home and in her car. Incredibly, she continued to work as a babysitter. Here, she describes a child she was caring for.

REPORTER: Is there anything you'd like to say?

KETAPAT JENKINS: No comment, thank you.

DENHAM HITCHCOCK: The investigation took 15 months, but on 7 March 2012, Ketapat Jenkins was charged with child homicide. There was no coronial inquest. Police and the public prosecutor were confident they had a strong case, so the matter went straight to trial at the Supreme Court. From day one, Ketapat Jenkins exercised her right to remain silent.

DAVID GALBELLY AM QC: The state must prove beyond reasonable doubt the guilt of an accused person. Because of that, the accused doesn't have to say anything. A person has the right to silence and they may decide not to say anything for a number of reasons, and it does not necessarily mean that they decide not to say something because of a consciousness of guilt.

DENHAM HITCHCOCK: Forensic pathologist, Dr Byron Collins was hired by Ketapat's defence team. His assessment - no single scenario explains what happened to Chloe.

DR BYRON COLLINS: A simple shaking would be unlikely to produce the brain damage. It certainly wouldn't have produced the skull fracture, because that is a, um...
that requires blunt-force trauma basically to that area of the skull. A complicated fall down stairS could have produced it.

DENHAM HITCHCOCK: The trial lasted five weeks. The accused remained silent. The jury took three days to reach its verdict.What's your first reaction?

TONY: To get to that point and hear "not guilty", I was just devastated. I basically went through the full range of emotions, from being completely inconsolable to just..angry, like, unbelievably angry.

DENHAM HITCHCOCK: That anger, their desperation to find the truth kept them going.
They requested a coronial inquest. They hoped and prayed that this time Ketapat would be forced to testify under oath.

TONY: When I wrote the letter to ask for a coronial inquest, I asked that she take the stand and at least, if nothing else, be cross-examined for it. You know, hear her side of things.

DENHAM HITCHCOCK: But when the inquest began in February this year, the coroner ruled that Ketapat be excused from giving evidence because she may incriminate herself.
To be clear, she had beaten a homicide charge, and now, in this new process, she was excused from giving evidence because she might say something that could reveal her guilt.

TONY: It's just infuriating. And I've had to take the stand three times. My wife, Kat, has had to take the stand twice. Why should she be excused from that? I just don't understand it.

DENHAM HITCHCOCK: At the inquest, all nine medical experts agreed the injuries occurred in the babysitter's house. They all agree there are five possible scenarios. One - Chloe falls from the first floor. Her carer grabs her by the arm and tries to save her, but fails. Two - Chloe is picked up by the arm and thrown over the edge. Three..she could have fallen down the stairs. But those injuries would only have occurred if she was in the arms of her carer. Fourth - Chloe could have tumbled down the stairs by herself in a walker. The final scenario, and the most likely, is also the most upsetting of all.

DR LORI FRASIER: Sometime during that... 8:00 to 10:30, 11:00pm period, something triggered the caregiver to become very, very violently angry with this little child. I believe that she was violently shaken, her arm was grabbed and she was thrown down against a hard surface.

DR BYRON COLLINS: Everybody agreed that the amount of force, as we mentioned before, had to be severe.

DENHAM HITCHCOCK: Dr Byron Collins was one of those nine medical experts at the inquest. Remember, he was working for the team defending Ketapat Jenkins. I've got your report here - the report that was agreed to by the nine, including yourself. It says here, "The first scenario was that Chloe was crying and upset. "The carer was unable to settle her, grabbed her forearm and twisted it "and possibly grabbed her around the chest,
"shakes her and throws her onto the floor or wall."

DR BYRON COLLINS: No, that's not my report.

DENHAM HITCHCOCK: But this was submitted to the coronial inquiry...

DR BYRON COLLINS: Ah, that we all agreed, yeah, yeah.

DENHAM HITCHCOCK:..as part of the hot tub.

DR BYRON COLLINS: Yes, yes. Yes, that's one scenario.

DENHAM HITCHCOCK: OK, but I assume you agreed to this.

DR BYRON COLLINS: Yes, we do. Yeah. As I said, there are multiple scenarios.

DENHAM HITCHCOCK: But you agreed that this was the most likely scenario.

DR BYRON COLLINS: Well...yes, I do.

DENHAM HITCHCOCK: Three weeks ago and two long years after Ketapat was acquitted of child homicide, Coroner Jacqui Hawkins found that on the balance of probabilities, Ketapat caused the injuries that led to Chloe's death.

TONY: I can't fathom how, with a finding this strong, that nobody can do anything about it and that the person responsible is walking free. Extremely frustrating that findings this strong have come out and yet it seems like there's not much they can really do about it. Look, I'm just a bit dumbfounded by the whole process.

DENHAM HITCHCOCK: In Victoria, under the law of double jeopardy, a person cannot be tried for the same crime twice - that is, unless there is a compelling new development.
Can they be retried for the same offence?

DAVID GALBELLY AM QC: You can be retried for the same offence, providing there is new and fresh evidence - that's evidence that was not available at the time of the first trial.

DENHAM HITCHCOCK: How often, in your experience, does fresh and new evidence come up?

DAVID GALBELLY AM QC: It's very seldom that fresh or new evidence arises.

DENHAM HITCHCOCK: It's unclear if Ketapat Jenkins is still babysitting. However, she was looking after children when we found her. The parents would just like a couple of things answered. You know you've been acquitted, so there's no problem answering questions.

KETAPAT JENKINS: No, I don't know. I'm sorry.

DENHAM HITCHCOCK: Do you believe she fell down the stairs?

KETAPAT JENKINS: I don't know. I'm sorry. Um, can I just go?

DENHAM HITCHCOCK: When did you first know there was something wrong with her?

KETAPAT JENKINS: I'm sorry, OK?

DENHAM HITCHCOCK: A series of medical experts said the injuries were non-accidental.

KETAPAT JENKINS: Oh, I don't know.

DENHAM HITCHCOCK: What does that say about the care that you provide? Can you tell us what happened?

KETAPAT JENKINS: I'm sorry. I can't... Just please, please... Yes. I've got to get in the car.

DENHAM HITCHCOCK: Are you still working as a nanny?

TONY: No doubt that she's done it. I've got no doubt in my mind that if they brought her back to court, there'd be a completely different outcome. And that we'd finally..get justice for Chloe.

DENHAM HITCHCOCK: The coroner has referred the case back to the Office of Public Prosecutions for further consideration. In your opinion, did the law fail Chloe Murphy?

DAVID GALBELLY AM QC: I think, tragically, it would appear that Chloe Murphy has been failed in this instance. But we have to look at and hope. that a new and fresh piece
of evidence does emerge so that the matter can be retried.

DENHAM HITCHCOCK: Doctor, in the case of Chloe Murphy... ..did someone get away with murder?

DR LORI FRASER: Yes.

MELISSA DOYLE: Denham Hitchcock reporting. The producer was Alex Garipoli.We'll keep you updated on any developments.

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