Chamberlain, Re Conviction of
September 15, 1988 Asche CJ, Nader and Kearney JJ M F Adams QC and E L Fullerton, for
the Attorney General. 15 September 1988 Asche
CJ. I agree with the reasons of his
Honour Nader J. I wish to add these short
observations. By s 433A(I) of the Criminal Code (NT): "… where a person has been
convicted of a crime or an indictable offence and the prerogative of
mercy has been extended to the person in respect of that conviction,
the Attorney-General may, at the request of the convicted person if the
Attorney-General is satisfied it is in the interests of justice so to
do, refer the case to the Court to consider or again consider whether
the conviction should be quashed and a judgment and verdict of
acquittal entered.” By subs (4),
(5) and (6) of s 433A the court is given powers greater than would
normally be allowed to a Court of Criminal Appeal under s 410 of the
Code. Subsection (5), for instance, which allows the court to dispense
with the rules of evidence and "inform itself in such matters as it
sees fit" would seem a clear departure from the traditional adversary
process and vests the court with inquisitorial powers that is, power to
make its own investigations irrespective of evidentiary rules or the
way in which the case may be presented or argued by the
Attorney-General or by such parties as the court may give leave to
appear pursuant to subs (3). I see great difficulties in a procedure
which allows the court to become some sort of investigative tribunal
gathering its own material. The proper role for a court in this country
as in any country governed by the common law system is to keep above
the conflict and rule only upon such material as may properly be
produced by parties properly interested in a particular dispute. I
acknowledge that this section could apply only in exceptional cases;
but exceptional cases may become precedents for extension of powers to
less exceptional cases and I would not wish this process to be later
justified because the court had previously accepted it without protest;
and I make that protest now. However, this
Court takes the view that it is not necessary or proper to indulge in
that procedure in this case because it is given the power to receive in
evidence, or adapt to such extent as it sees fit, the report of the
Commission of Inquiry. That in itself is a departure from the normal
functions of a Court of Criminal Appeal because much of the material
the Commissioner received might not ordinarily have been admissible
before a Court of Criminal Appeal. But the Commission has obviously
been conducted fairly in accordance with the rules of natural justice;
and the Commissioner is a judge of the Federal Court with a high, and
if I may say so with respect, eminently deserved reputation. It is
therefore only sensible to give great weight to the findings and
conclusions of the Commission. That is not to say that the court must
necessarily adopt those findings without exercising its own discretion.
Indeed counsel for the Attorney General has submitted that in some
measure we should differ from them. I would concede that in a report,
which goes into great detail, it would be strange if one agreed totally
with everything that the Commissioner said. That is not to the point
provided that the substance of the Commissioner's findings and
conclusions are acceptable; and to my mind they provide ample basis to
conclude, on the new material investigated with such great thoroughness
and care by the Commissioner, that the result of the original trial is
now attended with sufficient doubt to justify this Court, on that
material, in quashing the convictions. I would not
therefore agree with the submissions on behalf of the Attorney-General
that we should so substantially differ from the findings of the
Commissioner as to conclude that the material he relies on is not
sufficient to support the conclusion (at 342) of the report that "there
are serious doubts and questions as to the Chamberlain's guilt". That
conclusion is clearly open to the Commissioner and in my view follows
from the material he has assessed. In those circumstances the only way
in which this Court could challenge that conclusion would be to examine
anew the whole of the material before the Commissioner including in
that exercise the calling of witnesses. Having regard to the view I
have just expressed, that the conclusion expressed by the Commissioner
is appropriate on the material before him, that would be a fruitless
and unjustified exercise. I might not, with respect, agree
that, if the evidence before the Commission had been given at the
trial, the trial judge would have been obliged to direct an acquittal.
That is a matter which individual judges might consider debatable on
the whole of the evidence. But "a Court of Criminal Appeal may
interfere with a verdict which is unsafe or unsatisfactory even if
there is sufficient evidence to support it as a matter of law": see Chamberlain
v The Queen (No 2) (1984) 153 CLR 521 at 531, per Gibbs CJ and
Mason J. I am satisfied that the verdict is, by reason of the new
material examined by the Commissioner, both unsafe and unsatisfactory. It must be emphasized that the
conclusion this Court has reached proceeds on the basis of the fresh
evidence investigated by the Commissioner. There is not and cannot be a
finding that the jury in the original trial could not have come to the
verdict it did on the evidence before it. That question has been
conclusively decided by the High Court which, by majority, ruled in
Chamberlain v The Queen (No 2) (supra) that on the evidence then
presented the verdict was one open to the jury and was not unsafe or
unsatisfactory: see the judgment of Gibbs CJ and Mason J (at 569). Nor
am I prepared to find, as the submissions on behalf of the Chamberlains
invite me to find, that the Report of the Commissioner "constitutes a
thorough condemnation of the case made by the Crown against the
Chamberlains at their trial"; nor do I accept comments such as appear
at 8 of that submission about the "highly contrived and improbable
nature of the Crown case". In my view such criticisms as the
Commissioner makes about the presentation of the Crown case fall far
short of this. It must be remembered that the case was conducted before
a highly experienced and respected judge whose fairness during the
trial has never been called into question; and counsel for the
Chamberlains were counsel of great repute and ability. In those circumstances it is most
unlikely that a "highly contrived and improbable case", would have got
to the jury; or that counsel for the defence did not apply all their
considerable ability in properly attacking any weaknesses in the Crown
case as presented. Although this case has been subject
to enormous media attention and although s 433A is an extension of the
usual powers and functions of a Court of Criminal Appeal, essentially
this Court has indulged in an exercise not greatly different from that
frequently asked of a Court of Criminal Appeal; that is, to determine
on fresh evidence, if that evidence is allowed on the appeal, whether
it would in the circumstances be unsafe to permit a verdict to stand.
Courts of Criminal Appeal throughout Australia have so ruled on many
occasions; and will continue to do so whenever circumstances warrant
it. That is in no way a criticism of the jury system but rather a
guarantee that in appropriate cases and on evidence not before a jury a
sufficient doubt is raised to justify quashing of the verdict. If a
verdict of guilty is quashed, then, as Nader J has pointed out in his
reasons, the person previously convicted is entitled to the presumption
of innocence with which the law clothes all persons unless and until
their guilt has been proved beyond reasonable doubt. Nader
J. This is a Reference to the Court of
Criminal Appeal of a case arising from the convictions on 29 October
1982 of Alice Lynne Chamberlain of murder, and of Michael Leigh
Chamberlain of being an accessory after the fact to murder. The
Reference is made under section 433A of the Criminal Code (NT).
Although the section is expressed in general terms, its enactment was
occasioned solely by the Chamberlain case. After the publication of the
report of the Commission of Inquiry, some publicity was given to a
movement to influence the Parliament to quash the Chamberlains'
convictions by legislation. The Government, rightly, with respect,
considered that such a step would be an unwarranted intrusion by the
legislature into the domain of the judiciary. The solution devised was
to enact section 433A. The Parliament has empowered the
court to adopt the findings of a "commission of inquiry": ss
433A(6)(b). The word "finding" is expressed in the singular, but that
is of no moment. Moreover, although couched in terms of general
application, as I have already said, the particular occasion for the
conferring of the power was to enable the Chamberlain case to be
referred to the court. The provision enables the court to make some or
all of the relevant findings of a commission of inquiry its own. In
such a case, the court does not have to generate its own findings but
may adopt those of the commission of inquiry. Whether to adopt any of the
findings of the Chamberlain Commission is a threshold question. By
adopting the Commission's findings the court relieves itself of the
task of duplicating the Commission's work, if it were possible for it
to do so. But, that fact alone ought not to impel the court to adopt
the Commission's findings if it were not otherwise proper. When would it be proper to adopt
the findings of a commission of inquiry? The Criminal Code does not
say. In the absence of externally imposed criteria, the court itself
must answer the question judicially in the circumstances of the
particular case. In this case, there are several
considerations that are relevant. The Commissioner is a judge of a
court. He has the experience and skills of a judge in evaluating
evidence. The Commission conducted its inquiry in public over a long
time, accompanied by much publicity. It heard many witnesses, including
experts. One can be confident, bearing in mind all that had happened
before the Commission was instituted, that no significant evidence was
not given to and considered by the Commission. Everyone who had a
legitimate interest in the outcome of the Commission was heard. The
Commissioner was assisted by experienced counsel. He had the
inestimable benefit of observing the witnesses. The court would be at a
significant disadvantage in this respect: one, which it could not
overcome without, in substance, conducting the inquiry again, even if
that were possible. The findings of the Commission are reasoned
conclusions drawn from findings of primary fact, which were open to the
Commissioner on the evidence. The report itself is cogent and
internally consistent. There is nothing about the report that would
cause concern that adopting its main findings may lead to error. For
these reasons, I consider that the chief findings of the Chamberlain
Commission should be adopted. It is necessary to understand that,
in referring to the findings of the Commission, I am referring to its
conclusions respecting the nature and existence of facts. By a finding
of fact, I mean a conclusion of fact together with the more primary
facts from which it may have been inferred. A conclusion of fact
includes a conclusion that a doubt exists with respect to the existence
of a fact. I would not adopt the Commissioner's opinions on law or on
matters of mixed fact and law, not because they may not be correct, but
because it is unacceptable that a court should abdicate to a commission
of inquiry the task of ascertaining the applicable law. Mr. Winneke QC, for the
Chamberlains, used many generalities and much emotional rhetoric in his
submissions. It was permissible for him to do so. However, for my part
it should be understood that acceptance of his submission that the
findings of the Commission should be adopted is not an uncritical
acceptance of his less temperate submissions. For example, he said that
the report: "exposes an extraordinary number of evidentiary
irregularities which occurred at the trial, anyone of which would lead
a Court of Criminal Appeal to quash the convictions." Such a submission
tends more to the excitement of others than to the assistance of the
court. We were also urged by Mr. Winneke to adopt the report and the
finding and decisions, and the reasons therefore to be found in the
report. Those words are taken from ss 433A(6). The language of the
section lacks precision, but I think the word "decision" is more apt to
refer to the "court" referred to in the section than to a "commission
of inquiry" like the Chamberlain Commission which, as far as I can
tell, made no "decision" in the generally accepted meaning of the word,
or any decision different in kind from a finding. It is enough in the
present case if the court adopts certain findings of the Commission.
The adoption of findings includes by inference the adoption of the
Commission's reasons for those findings. I would adopt the findings of the
Commission (at 322-342) and the reasons expressed therefore, with the
exception of those I have enclosed in parentheses. For convenience of
reference the text of the report containing the adopted findings is set
out hereunder: "There were two broad strands in
the Crown's case against the Chamberlains. The first was comprised of
the evidence from which the jury were invited to conclude that during
her short absence from the barbecue Mrs.. Chamberlain took Azaria to
the front passenger seat of the car and cut her throat. In this part of
its case the Crown alleged that after the murder Azaria's body was
initially secreted in the car and later the same evening buried in the
sand on the nearby dune. It was further alleged that the Chamberlains
or one of them subsequently disinterred the body, removed the clothing
and placed it where it was found, having first cut it so as to simulate
dingo damage. The jury were invited to find that Azaria's blood was not
shed in the tent, but was transferred there on Mrs.. Chamberlain's
person or clothing after the murder. The
second strand in the Crown's case was comprised of the evidence from
which the jury were invited to conclude that a dingo did not take the
baby. It was alleged that Mrs. Chamberlain's story of having seen a
dingo at the tent was a fabrication. This part of the case depended
upon the proposition that if the jury were satisfied beyond reasonable
doubt that a dingo did not take Azaria, they were entitled to accept
the only other explanation for her disappearance, which was that she
had been murdered by her mother. The new evidence, whether in
relation to the first or second strand came for the most part from
witnesses with high scientific qualifications. Most of them have not
been identified with the Chamberlains' cause. There is no
reason to suppose that their judgment has been affected by
preconceptions as to the Chamberlains' innocence or guilt. Although it is
convenient to consider the two strands in the case separately, much of
the evidence is relevant to both strands. Of course the jury had to
consider the evidence in its entirety when reaching their verdict. The
first strand - effect of new evidence As to the first
strand, I invited counsel for the Crown to indicate a place, other than
the front seat of the car, at which the murder might have occurred. He
was unable to suggest an alternative location but submitted that it was
not incumbent upon the Crown to specify and prove the particular place
where Azaria was killed. I agree, but the trial was conducted upon the
basis that the child was murdered in the car. That this was so is
abundantly clear from the Crown Prosecutor's address to the jury,
reference to which is made in Chapter 5. In these circumstances, it
would be unrealistic to think that the jury might have concluded that
Azaria was not murdered in the car, but at some other unspecified
place. The effect of
the new evidence on the first strand in the Crown's case is to leave it
in considerable disarray. The new scientific evidence casts serious
doubt on the reliability of all the findings of blood in the car. The
evidence leads me to conclude that if there were any blood in the car,
it was present only in small quantities in the area of the hinge on the
passenger's seat and beneath. It has not been established that any such
blood was Azaria's. The blood shed by Mr. Lenehan could well have been
the source of any bloodstains in that area. The finding most damaging
to Mrs. Chamberlain was that of the alleged blood spray, such as might
have come from a severed artery, on the metal plate under the dash.
There is compelling evidence that the spray was made up of a sound
deadening compound and contained no blood at all. The new
evidence casts similar doubt on the reliability of the evidence at the
trial that there was baby's blood on some of the contents of the car.
At the trial Mrs. Kuhl gave evidence that there were indications of
baby's blood on the scissors found in the console of the car. It was
virtually conceded before me that Mrs. Kuhl's tests did not confirm the
presence of blood of any kind on the scissors. Indeed, on the evidence,
it would be impossible to find that the scissors were even in the car
when it was at Ayers Rock. The evidence at the trial was that there was
also baby's blood on a towel, a chamois and its container found in the
car and on the camera bag which had been in the car. I am satisfied
that the presence of baby's blood or of any blood on these articles has
not been established. As the case
went to the jury, they would have been entitled to find that there was
a significant quantity of blood in the car when it was examined in 1981. However, there was general agreement between
the expert witnesses who gave evidence to the Commission that only a
very small quantity of blood was found in the car, if any was found. Taken in its
entirety, the evidence falls far short of proving that there was any
blood in the car for which there was not an innocent explanation. It is
plain that great reliance was placed by the Crown on the findings of
blood. The real dispute in this part of the case at the trial was
whether the blood came from a baby. The question whether there was any
blood in the car went almost by default. The doubt cast
by the new scientific evidence on the findings of blood is made greater
by evidence from Senior Constable Graham, who was not called at the
trial. His failure to observe any sign of blood in the car,
notwithstanding a thorough inspection of it, lends additional weight to
the defence case on this issue. It is true, as
Brennan J observed [153 CLR 521 at 596] that the jury may have
rejected the scientific evidence led by the Crown to prove the
allegation that the blood found in the car came from Azaria, and yet
found the Chamberlains guilty on the other evidence and on the
impression they formed of them in the witness box. Nevertheless, as his
Honour said, if the jury were indeed satisfied that the blood in the
car was Azaria's, the guilt of the Chamberlains was 'virtually
demonstrated'. If the jury did conclude that the Chamberlains' guilt
was virtually demonstrated by the scientific evidence, that conclusion,
without more, would have destroyed any chance Mrs. Chamberlain had of
giving a favourable impression to the jury. Consequently, any
difficulty the Crown may have had in proving beyond a reasonable doubt
that a dingo did not take the baby was greatly diminished, if not
entirely overcome. The doubt cast
upon the findings of blood in the car is of more general importance
than might first appear. It is beyond dispute that Azaria's blood was
found on some of the articles in the tent. The Crown relied on this
fact in two ways. First, it claimed that more blood was found in the
car than was found in the tent. Secondly, it claimed that the blood
found in the tent was transferred from the car to the tent on Mrs.
Chamberlain's person or clothing. The new evidence shows that it cannot
be safely concluded that more blood was found in the car than was found
in the tent. Moreover, the Crown's inability to prove that there was
any of Azaria's blood in the car leaves the hypothesis that the blood
found in the tent was transferred from the car without any factual
foundation. In the light of
the new evidence, the opinion expressed by Professor Cameron at the
trial that the pattern of blood staining on the jumpsuit was consistent
only with a cutthroat cannot be safely adopted, nor can it be concluded
from the pattern of blood staining on the clothing that Azaria's throat
was cut with a blade. Further, Professor Cameron's evidence that there
was an imprint of a hand in blood on the back of the jumpsuit has been
weakened, if not totally destroyed, by new evidence that a great deal
of what he thought was blood on the back of the jumpsuit was, in fact,
red sand. There are other
respects in which the first strand of the Crown's case is weakened by
the new scientific evidence. The evidence at the trial led Gibbs CJ and
Mason J to say [153 CLR at 567] that it could be inferred with
certainty that Azaria's clothing had been buried. No doubt this
statement was based to a large extent on the evidence of Professor
Cameron. The new evidence before the Commission discloses that Dr
Andrew Scott, the first Crown expert to examine the jumpsuit, did not
see any indication that the clothes had been buried. He was not asked
about the question of burial at the trial. As I conclude elsewhere,
although Azaria's clothing may have been buried, the quantity and
distribution of sand on it might well have been the result of it being
dragged through sand. Further, the
evidence at the trial justified the Crown in putting to the jury that
the characteristics of most of the soil in the jumpsuit could only be
matched in soil found in certain places, that one of those places was
under bushes on the dune to the east of the Chamberlains' tent, and
that this was the most likely place of origin of the soil. This
evidence supported the Crown's allegation that the Chamberlains buried
the child somewhere on the sand dune. Before the Commission it became
much clearer that a reasonable match of the soil found in the jumpsuit
can be found in soil under bushes which are widespread in the sand dune
country and under desert oak trees which grow both in the dune country
and on the plains at scattered points throughout the Ayers Rock region.
Moreover, the new evidence concerning plant fragments on the clothing
is consistent with the clothed body of the baby being dragged through
low vegetation of kinds which grew in the dune country and on the
plains between the camping area and the Rock. In the light of the new
evidence, it is difficult to conceive how Azaria's clothing could have
collected the quantity and variety of plant material found upon it if
it had been merely taken from the car, buried, disinterred and later
placed near the base of the Rock. It is more consistent with the new
plant and soil evidence that Azaria's clothed body was carried and
dragged by an animal from the camp site to near the base of the Rock,
rather than that it was buried on the dune and later carried there. The matters to
which I have referred are sufficient to demonstrate the considerable
disarray in which the first strand in the Crown's case is left as a
result of the new evidence. The second strand - effect of new evidence
I turn now to
consider the second strand in the Crown's case, namely, that a dingo
did not take Azaria. While the new evidence is not as destructive of
this part of the Crown case, it greatly diminishes its strength. I
shall refer briefly to some of the new evidence, which produces this
result. Mr. Roffs
evidence at the trial of having seen the tracks of a dingo carrying a
load which may have been Azaria's body is corroborated by Mr.
Minyintiri. He did not give evidence at the trial but there is no
question of his evidence being recent invention. The Crown's
expert has conceded that the hairs found in the tent and on the
jumpsuit which were said at the trial to be probably cat hairs were
either dingo or dog hairs. Dog hairs are indistinguishable from dingo
hairs. The Chamberlains had not owned a dog for some years prior to
August 1980. The evidence
given at the trial by Mrs. Chamberlain that she saw marks on the space
blanket is now supported by plausible new evidence. It is impossible to
say whether the marks she claimed to have seen were made by a dingo.
However, having regard to all the evidence there is only the most
insecure basis for the accusation made by the Crown at the trial that
her claim to have seen the marks was made only for the purpose of
supporting a false story that a dingo took Azaria. The new
evidence negates some of the most cogent evidence relied upon by the
Crown at the trial to support its claim that the damage to the purple
blanket which had covered Azaria in the bassinet was caused by moths.
Mrs. Chamberlain's claim that the damage to the blanket was caused by a
dingo is more credible as a result of the new evidence. The quantity
and distribution of blood in the tent has been shown to be at least as
consistent with the dingo hypothesis as it is with murder. As I have
observed in dealing with the first strand of the Crown's case it is
more consistent with the new plant and soil evidence that Azaria's
clothed body was carried and dragged from the camp site to near the
base of the rock rather than that it was buried on the dune,
disinterred, and later carried there. At the trial
there was no evidence from a textile expert disputing Professor
Chaikin's view that the jumpsuit was cut, probably with fairly sharp
scissors, and that the severances on the clothing were not caused by a
dingo. Professor Chaikin conceded that the opinion he expressed at the
trial that dingoes do not produce tufts when they sever fabric with
their teeth was erroneous. The professor said at the trial that the
presence of such tufts on Azaria's jumpsuit was 'the strongest
evidence' that it had been cut. From the great volume of new expert
evidence as to the possible causes of the damage to Azaria's clothing
it cannot be concluded beyond reasonable doubt that the damage to it
was caused by scissors or a knife, or that it was not caused by the
teeth of a canid. There is no
reason to doubt that when Azaria disappeared she was wearing the
matinee jacket discovered in 1986. The jacket would have covered much
of the jumpsuit worn by the child. The failure to detect dingo saliva
on the jumpsuit is made more explicable than it was at the trial. There was more
evidence before the Commission than was before the jury as to the
ability of a dingo to remove Azaria from her clothing without causing
more damage to it than was found. Although it would have been very
difficult for a dingo to achieve this, it cannot be concluded that it
was impossible for it to have done so. The dingo
experts disagree as to whether the arrangement of the clothing when
discovered was inconsistent with dingo involvement. While Mr. Roff did
not consider the appearance of the clothing was inconsistent with dingo
activity, Dr Corbett and Dr Newsome were of the view that it would have
been more scattered if a dingo had removed Azaria from it. Are there doubts as to the Chamberlains'
guilt? I must now
answer the question whether, in the light of all the evidence, there
are doubts as to the Chamberlains' guilt. In my opinion this question
must be answered in the affirmative. [I do not think any jury could
properly convict them on the evidence as it now appears.] I have referred
in earlier chapters to the evidence at the trial and to the significant
new evidence that is before the Commission. It is apparent from what I
have already written in this chapter that the effect of the new
evidence is to greatly weaken the case presented against the
Chamberlains at the trial. The jury must
have disbelieved Mrs. Chamberlain's story about the dingo. No doubt, in
concluding that her story was a fabrication they had regard to all the
evidence in the case, as they were entitled to do. Some of the most
damaging of that evidence has been shown to be either wrong or highly
suspect. Other important parts of it have been shown to be open to
serious question. The effect on her credit of her inability to explain
the presence of blood in the car and how the alleged spray of blood
came to be on the plate under the dash cannot be known with certainty,
but was probably disastrous. If the jury accepted the Crown's evidence
on those matters and on the alleged imprint of a hand in blood on the
jumpsuit it must have regarded her story as unbelievable and not worthy
of consideration. I have referred
elsewhere to the unsatisfactory features in Mrs. Chamberlain's account
of having seen a dingo at the tent and I do not underestimate their
importance. It can fairly be said that there are inconsistencies and
improbabilities in her story and in the various versions she has given
of it. However, as I point out in Chapter 15, there are possible
explanations for many of the apparently unsatisfactory features of her
evidence. On the other
hand, the obstacles to the acceptance of the Crown's case are both
numerous and formidable. Almost every facet of its case is beset by
serious difficulties. Some of these must now be mentioned. The Crown is
unable to suggest a motive or explanation for the alleged murder. The
undisputed evidence is that Mrs. Chamberlain was an exemplary mother
and was delighted at Azaria's birth. She did not suffer from any form
of mental illness nor had she ever been violent to any of her children.
She had spent the day with her family on 17 August and had not
exhibited any sign of abnormal behaviour or of irritation with Azaria.
She was not stressed when she took Azaria to the tent for her expressed
purpose of putting her to bed. If Mrs.
Chamberlain left the barbecue with the intention of killing Azaria it
is astonishing that she took Aidan with her. It would have been easy
for her to have left him at the barbecue with his father. Having taken
Aidan with her, it is even more astonishing that she should have
murdered Azaria, on the Crown case, a few feet from where he was
awaiting her return to the tent. It was a great coincidence that Mrs.
Lowe not only thought she heard Azaria cry, but also thought she heard
Mr. Chamberlain or Aidan say that he had heard the same cry. It is
surprising that Mrs. Chamberlain did not attempt to bolster her story
by saying that she also heard the cry. If Mrs.
Chamberlain did not intend to murder Azaria when she left the barbecue,
it is difficult to understand why, for no apparent reason; she should
have formed that intention almost immediately after she left it. There
is nothing in the evidence, which could account for the formation of
such a sudden intention. It seems
improbable that Mrs. Chamberlain, having murdered Azaria in the car or
elsewhere, would have returned to the tent with so much blood on her
person or clothing that some of it dripped on to the articles upon
which it was found in the tent. Unless she did, there is no
explanation, except the dingo story, for the blood found in the tent.
Such conduct on her part seems inconsistent with her donning the
tracksuit pants [as the Crown alleges] so as to avoid telltale signs of
blood. It is
extraordinary that the persons present at the barbecue area at the time
of and immediately after Azaria's disappearance accepted Mrs.
Chamberlain's story and noticed nothing about her appearance or conduct
suggesting that she had suddenly killed her daughter, and nothing about
Mr. Chamberlain's conduct suggesting that he knew that she had done so.
She must have been a consummate actress if, having killed her daughter,
she was able to appear calm and unconcerned when she returned to the
barbecue a few minutes after the murder. The short period during which Mrs.
Chamberlain was absent from the barbecue made it only barely possible
that she could have committed the crime alleged against her. On the
Crown case, in the 5-10 minutes she was proved to have been absent from
the barbecue she must have:
The length of
time, which, on the Crown case, must have elapsed between Azaria's
throat being cut and her death, is of some importance. It seems
probable that if Mrs.. Chamberlain murdered the child she would not
have returned to the tent before she was satisfied the child was dead.
If both Azaria's carotid arteries were severed it probably would have
taken about 2-3 minutes for her to have died. The minimum time would
have been half a minute. It would have taken much longer, up to 20
minutes, for her to have died if her jugular vein, and not her carotid
arteries, were severed. The blood staining on the jumpsuit indicates,
according to all the experts, an absence of arterial bleeding. Young though he
was, it is very difficult to accept that Aidan did not notice that his
mother took Azaria away from the tent and returned without her and did
not comment on that fact when his sister was found to be missing. It was indeed
fortuitous that a dog or dingo should have been heard to growl and a
dingo should have been seen not far from the tent very shortly before
Azaria disappeared, and that on the night of 17 August a canid's tracks
should have been found hard up against the tent. It is
surprising that, if Mrs. Chamberlain had blood on her clothing, nobody
noticed it in the hours after Azaria's disappearance. If Azaria's body
was left in the car after the alleged murder, it was foolhardy for
Mrs.. Chamberlain, in the presence of the Demaines and their dog, to
open the car door and give the dog the scent of Azaria's clothing. The
risks involved in the Chamberlains burying and disinterring Azaria when
there were so many people who might have observed them were enormous.
It is difficult to explain how the variety of plant material found on
Azaria's clothing could have got there if she had been murdered. It
seems improbable that, the murder having been so cleverly accomplished
and concealed, the clothing would have been so left as to invite
suspicion. If Mrs..
Chamberlain told her husband that she had killed Azaria, it was
extraordinary conduct on his part to leave his two sons, the younger of
whom was aged only 3 years, in her sole custody on 18 August. Mr. and Mrs.
Chamberlain's conduct at Ayers Rock on 18 August was strange whether or
not Azaria had been murdered. Their conduct upon their return to Mount
Isa is inexplicable if she had murdered Azaria. For instance, it is
almost incredible that she should have told people there was blood on
her shoes if she had murdered her daughter. Further, it was bravado of
a high order for Mr. Chamberlain to tell the police at Cooranbong that
they had taken possession of the wrong camera bag if Azaria's body had
been secreted in the one, which he then produced. The Crown has
no direct evidence of the Chamberlains' guilt to overcome the
cumulative effect of all these formidable obstacles. Even so, their
guilt would be established if, in spite of so many considerations
pointing to their innocence, the conclusion was reached that it had
been proved beyond reasonable doubt that a dingo did not take the baby.
In the light of all the evidence before the Commission, I am of the
opinion that such a conclusion cannot be reached. I shall state
in summary form the effect of the evidence that leads me to hold this
opinion. In doing so, it will be necessary to recapitulate some of the
matters to which I have already referred in order to give a complete
picture of the material (save for the Chamberlains' own testimony)
which is directly relevant to this part of the Crown's case. It is also
necessary to keep in mind that, under ordinary circumstance [sic], it
would be highly unlikely that a dingo would enter a tent, take a baby
from it, carry it several kilometers to a den and there consume the
body leaving the clothing in a position similar to that in which
Azaria's clothing was found. But the question of Mrs.. Chamberlain's
guilt or innocence is to be determined on the evidence and against the
background of the circumstances, as they existed at Ayers Rock in
August 1980. It is not to be determined on the basis of preconceptions
as to the likelihood of unusual animal behaviour. Before August
1980 dingoes in the Ayers Rock area frequented the camping area. At
that time there were many dingoes in the area, some 18-25 of which were
known to visit the camping area. A number of attacks were made by
dingoes on children in the months preceding Azaria's disappearance. In
none of these did any child suffer serious Injury. About twenty
minutes before Azaria disappeared Mr. Haby saw and photographed a
dingo, which walked towards the Chamberlain's tent. A few minutes
before the alarm was raised the Wests heard a dog growl. On the night of
17 August dog tracks were observed on the southern side of and very
close to the Chamberlains' tent. The same night Mr. Roff and Mr.
Minyintiri, both experienced trackers and familiar with dingo behavior,
saw tracks of a dog carrying a load which they believed to be Azaria.
It was within the bounds of reasonable possibility that a dingo might
have attacked a baby and carried it away for consumption as food. A
dingo would have been capable of carrying Azaria's body to the place
where the clothing was found. If a dingo had taken Azaria it is likely
that, on occasions, it would have put the load down and dragged it. Hairs, which
were either dog or dingo hairs, were found in the tent and on Azaria's
jumpsuit. The Chamberlains had not owned a dog for some years prior to
August 1980. The quantity
and distribution of the sand found on Azaria's clothing might have been
the result of it being dragged through sand. The sand could have come
from many places in the Ayers Rock region. The sand and plant fragments
on the clothing are consistent with Azaria's body being carried and
dragged by a dingo from the tent to the place where it was found. It is
unlikely that, if the clothing had been taken from the Chamberlains'
car, buried, disinterred, and later placed where it was found it would
have collected the quantity and variety of plant material found upon
it. It would have
been very difficult for a dingo to have removed Azaria from her
clothing without causing more damage than was observed on it. However,
it would have been possible for it to have done so. Mr. Roff, the chief
ranger at Ayers Rock and a man of great experience, thought that the
arrangement of the clothing when discovered was consistent with dingo
activity. Other dingo experts disagreed. I think it is likely that a
dingo would have left the clothing more scattered, but it might not
have done so. The blood found
in the tent was at least as consistent with dingo involvement in
Azaria's disappearance as it was with her murder in the car. The
patterns of blood staining on the clothing does not establish that the
child's throat was cut with a blade. The absence of
saliva on Azaria's jumpsuit, which was not conclusively proved at the
trial, is made more explicable by the finding of the matinee jacket,
which would have partially covered it. The fact that no debris from the
baby's body was found on the jumpsuit is also made more explicable by
the finding of the jacket. There is a
great conflict of expert opinion as to whether the damage to the
clothing could have been caused by a dingo. It has not been shown
beyond reasonable doubt that it could not have been. There were marks
on plastic fragments of the nappy similar to marks made by a dingo on
another nappy used for testing purposes. However, there was no blood on
the nappy. There was a
dingo's den about thirty meters from the place where the clothing was
found. There is no evidence that the existence of the den was known to
the Chamberlains or, for that matter, to anybody else and in fact it
was unknown to the chief ranger and his deputy. It is
impossible in the above summary to capture the whole effect of the
voluminous evidence given on the matters, which bear upon the dingo
hypothesis, but, taken in its entirety, it falls far short of proving
that Azaria was not taken by a dingo. Indeed, the evidence affords
considerable support for the view that a dingo may have taken her. To
examine the evidence to see whether it has been proved that a dingo
took Azaria would be to make the fundamental error of reversing the
onus of proof and requiring Mrs.. Chamberlain to prove her innocence. I am far from
being persuaded that Mrs.. Chamberlain's account of having seen a dingo
near the tent was false or that Mr. Chamberlain falsely denied that he
knew his wife had murdered his daughter. That is not to say that I
accept that all their evidence is accurate. Some of it plainly is not,
since parts of it are inconsistent with other parts. But if a dingo
took her child, the events of the night of 17 August must have been
emotionally devastating to Mrs. Chamberlain. Her ability to give a
reliable account of the tragedy may have been badly affected by her
distress. The inconsistencies in her evidence may have been caused by
her confusion of mind. Where her evidence conflicts with the Lowes'
account of what she said and did in the few seconds after she commenced
to run back to the tent, it may be the Lowes' recollection, not hers,
that is at fault. The belief that people might unjustly accuse her of
making up the dingo story might have led her, even subconsciously, to
embellish her account of what happened, and this may explain some of
its improbabilities. Her failure to see Azaria in the dingo's mouth is
explicable if, as is quite possible, there were two dingoes, not one.
These considerations afford at least as convincing an explanation for
the apparently unsatisfactory parts of her evidence as does the Crown's
claim that she was lying to conceal her part in the alleged murder.
Having seen Mr. and Mrs. Chamberlain in the witness box, I am not
convinced that either of them was lying. In reaching the
conclusion that there is a reasonable doubt as to the Chamberlains'
guilt I have found it unnecessary to consider the possibility of human
intervention (other than by the Chamberlains) in the time between
Azaria's disappearance and the finding of her clothes. It is difficult,
but not impossible, to imagine circumstances in which such intervention
could have occurred. It is not inconceivable that an owner of a
domestic dog intervened to cover-up its involvement in the tragedy or
that some tourist, acting irrationally, interfered with the clothes
before they were later discovered by others. There is not the slightest
evidence to support either of these hypotheses but the possibility of
human intervention is another factor, which must be taken into account
in considering whether the evidence establishes the Chamberlains' guilt
beyond reasonable doubt. It was so recognized in some of the judgments
given on the appeal to the High Court. Conclusion (I am conscious
of the fact that the Chamberlains' convictions were upheld in the High
Court. On the evidence as it appeared at the trial, two of the five
members of the Court thought that the convictions were unsafe. I am
confident that the appeal would have succeeded if the evidence had been
as it now appears.) The question
may well be asked how it came about that the evidence at the trial
differed in such important respects from the evidence before the
Commission. I am unable to state with certainty why this was so.
However, with the benefit of hindsight it can be seen that some experts
who gave evidence at the trial were over-confident of their ability to
form reliable opinions on matters that lay on the outer margins of
their fields of expertise. Some of their opinions were based on
unreliable or inadequate data. It was not until more research work had
been done after the trial that some of these opinions were found to be
of doubtful validity or wrong. Other evidence was given at the trial by
experts who did not have the experience, facilities or resources
necessary to enable them to express reliable opinions on some of the
novel and complex scientific issues, which arose for consideration. It
was necessary for much more research to be done on these matters to
determine whether the opinions expressed at the trial were open to
doubt. (The failure of
the defence to put in issue some of the scientific opinions expressed
at the trial may have been due, in part, to lack of access to the
necessary expert witnesses. However, this does not account for the
failure to call Dr Lincoln, who was in a position to dispute Mr.
Culliford's opinion that blood was present in some of the samples taken
from the car. Again, with the benefit of hindsight, it is unfortunate
that the defence did not become aware of the chemical composition of
the spray found on the metal plate removed from under the dash of a
Torana car similar to the one owned by the Chamberlains. If this had
been ascertained, it seems likely that the defence would have been
alerted to the possibility that all the findings of blood relied upon
by the Crown might be suspect. On a less technical and less important
matter it is surprising that the Demaines' evidence was not called at
the trial, although both the prosecution and the defence appear to have
been aware that it was available to be called.) Counsel for the
Chamberlains submitted to me that the manner in which the Northern
Territory Police conducted the investigation into Azaria's
disappearance prejudiced their trial. I am not persuaded that it did.
The great difficulties for the defence arose out of the scientific
evidence, and the police cannot be held responsible for the
deficiencies in it. It follows from
what I have written that there are serious doubts and questions as to
the Chamberlains' guilt and as to the evidence in the trial leading to
their conviction. (In my opinion, if the evidence before the Commission
had been given at the trial, the trial judge would have been obliged to
direct the jury to acquit the Chamberlains on the ground that the
evidence could not justify their conviction.)" It is not
necessary to consider the correctness of the Commissioner's concluding
opinion in square brackets. The fact is that the evidence referred to
by his Honour was not given at the trial. Moreover, his Honour's
opinion involves a controversial question of law, which has no bearing
on the outcome of this Reference. Unfortunately, much of Mr. Adams'
time was unnecessarily taken up submitting that his Honour's concluding
opinion was incorrect. His Honour may have overlooked the fact that he
was able to have regard to matters that may not have been admissible at
a criminal trial. The question for this Court is whether, considering
all the material now before it, it would be unsafe as a matter of
justice to allow the Chamberlain convictions to stand. In my opinion,
upon a consideration of the adopted findings, there is a real
possibility that Mrs. Chamberlain did not murder Azaria and, therefore,
the convictions of the Chamberlains ought to be quashed and verdicts
and judgments of acquittal entered. Not to do so would be unsafe and
would allow an unacceptable risk of perpetuating a miscarriage of
justice. Having said so much, I would like to
touch on a matter peripheral to this Reference. It may be thought that
the mere acknowledgment of a doubt about the guilt of Alice Lynne
Chamberlain is a half-hearted way for the matter to end. I would like
to examine that sentiment for a moment. It is rarely that a criminal
trial positively establishes the innocence of an accused person. If it
does so, it does so by accident. The task of a criminal court is to ask
and answer the question whether it is satisfied beyond reasonable doubt
that the accused is guilty of the crime charged. If it is not so
satisfied, the verdict should be one of "not guilty": that is, a
verdict of acquittal. From the point of view of a criminal court, a
verdict of "not guilty" signifies that the jury is not satisfied beyond
reasonable doubt of the guilt of the accused; it does not formally
signify a positive jury finding upon the evidence that the accused is
innocent. Such a positive finding is not the role of a criminal court,
nor of this Court. That is because under the criminal law a person is
presumed innocent until the contrary is proved. It is not the court's
function to establish innocence because, in the absence of a
conviction, innocence is presumed: no finding is required. If the
accused is not found guilty the presumption of innocence continues. So
it is here. I have expressed the opinion that doubt exists as to the
guilt of Mrs. Chamberlain. I would categories that doubt as a grave
doubt. The doubt has arisen as a result of considering fresh evidence,
in particular, the findings of the Commission. It is the existence of
that doubt that demands the quashing of the convictions and the
verdicts and judgments I propose. The convictions having been wiped
away, the law of the land holds the Chamberlains to be innocent.
Accordingly, I
would quash the convictions of Alice Lynne Chamberlain and Michael
Leigh Chamberlain and enter verdicts and judgments of acquittal. Kearney J. This is a
Reference under the Criminal Code (NT), s 433A(1). The jurisdiction
under that provision is somewhat extraordinary. It provides for the
post conviction post-pardon referral of a case to this Court "... to
enable the court to consider ... whether the conviction should be
quashed and a judgment and verdict of acquittal entered". In
considering the case the court is not bound by the rules of evidence
"but may inform itself in such manner as it thinks fit": s 433A(5).
Inter alia, the court may, by s 433A(6)(b): "adopt, as it thinks fit,
the finding, decision, judgment, or reasons for the finding, decision
or judgment, of a ... commission of inquiry... that are relevant to the
Courts consideration." The criteria
upon which the court should act in deciding whether or not to quash the
conviction are not spelled out. The reason for this Reference is
clearly enough the new materials placed before the Royal Commission of
Inquiry into Chamberlain Convictions and the Commission's analysis
thereof and findings thereon in its Report of 22 May 1987. On that
basis it appears to me that it is appropriate to proceed by
considering, as in the ordinary case of an appeal against conviction
under the Code, s 411 (1), based on fresh evidence, whether in the
light of that Report the Chamberlains' convictions of 29 October 1982
entailed a miscarriage of justice. The function
and power of the court under the Code, s 433A(l) is to consider whether
or not it should quash the convictions. In the case of an ordinary
criminal appeal involving fresh evidence a Court of Criminal Appeal
will exercise its power to quash a conviction, instead of ordering a
fresh trial, if "... the new material... convinces the court upon its
own view of that material that there has been a miscarriage in the
sense that a verdict of guilty could not be allowed to stand..." [My
Emphasis.]: Ratten v The Queen (1974) 131 CLR 5 10 at 520, per
Barwick CJ. I consider that that is the appropriate approach to adopt
upon this Reference. I note the
observations of Rich and Dixon 11 on the question of a miscarriage of
justice in the context of fresh evidence, in Craig v The King
(I933) 49 CLR 429 at 439: "It cannot be
said that a miscarriage has occurred unless the fresh evidence has
cogency and plausibility as well as relevancy. The fresh evidence must,
we think, be of such a character that, if considered in combination
with the evidence already given upon the trial the result ought in the
minds of reasonable men to be affected. Such evidence should be
calculated at least to remove the certainty of the prisoner's guilt,
which the former evidence produced. [My Emphasis.]" Those
observations were made in the context of whether a new trial should be
ordered. In the context of whether a conviction should be quashed, the
question is whether this Court is itself convinced that the result
ought to be affected, that the certainty of guilt is removed. I have had the
benefit of reading the judgment of Nader J. I respectfully agree with
his Honour for the reasons, which he gives, that the chief findings of
fact of the Commission which he sets out should be adopted by this
Court. On the materials placed before the Commission they were all
findings, which were reasonably open to be made even though on certain
matters, for example, the question of the damage to the jump suit,
other findings were also open. The findings, the materials on which
they were based, and the reasoning which led to those findings were,
with respect, cogent and plausible; they are directly relevant to the
issue of miscarriage of justice before this Court. I am convinced
by the findings of the Commission set out in the judgment of Nader J
that the certainty of the Chamberlains' guilt of the crimes of which
they were convicted on 29 October 1982 is removed. Their convictions
therefore constitute a miscarriage of justice and must be quashed. For that reason
I concur in the orders proposed by Nader J. I also concur in his
Honour's concluding remarks on the significance of the quashing of
convictions. Solicitor
for the Attorney General: Solicitor for the Northern Territory. |