Asche CJ, Nader and Kearney JJ

 

M F Adams QC and E L Fullerton, for the Attorney General.
J S Winneke QC and R G Kaye, for the Chamberlains. 

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:

• Returned to the tent;

• Done whatever was necessary to ensure that Aidan did not follow her;

• Donned her tracksuit pants;

• Taken Azaria to the car;

• Possessed herself of a murder weapon;

• Cut Azaria's throat;

• Allowed sufficient time for Azaria to die;

• Secreted the body;

• Done at least some cleaning-up of blood in the car;

• Removed her tracksuit pants;

• Obtained a can of baked beans for Aidan;

• Returned to the tent;

• Entered the tent and done whatever was necessary for several articles in it to be spotted with blood;

• Collected Aidan; and

• Returned to the barbecue.

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.
Solicitors for the Chamberlains: Brennan Blair & Tipple.