11

The second inquest

THE ACCEPTED PRINCIPLES OF JUSTICE provide certain basic safeguards for an accused person: no one is liable to be punished for a serious crime unless he or she has been convicted by a jury of his or her peers; the Crown carries the onus of proving guilt beyond any reasonable doubt; an accused has no obligation to prove his or her innocence, or to offer any explanation; and he or she may decline to answer questions from the investigating police, and may choose to sit silently in the dock while the Crown case unfolds and then simply rely upon a submission that the Crown has failed to discharge the onus of proof.

Over the years, there have been some legislative incursions into these safeguards. Difficulties of proving cases against drug peddlers, for example, have led to statutory presumptions that a person who possesses more than a prescribed quantity of a prohibited drug had it in his or her possession for the purpose of supply to others. And in recent years there has been a spate of politicians trying to portray themselves as ‘tough on crime’ by ill-considered laws likely to cause unintended harm. In the main, however, these safeguards have been respected, and with good reason. They reflect long-standing principles of British justice, and undergird the rights and freedoms that all citizens enjoy in the so-called ‘common law’ countries such as England, America, and Australia.

Those charged with major criminal offences such as murder normally face ‘committal proceedings,’ which are preliminary inquiries before magistrates, conducted with a view to ascertaining whether there is sufficient evidence to warrant a trial. Whilst the Chamberlains were unaware of it, the Northern Territory police had gathered an impressive body of scientific evidence suggesting that Lindy might have been guilty of murder and that Michael might have helped her cover up the crime. In the normal course of events, this would have resulted in them being arrested and charged. Yet, from the police point of view, such a course had one serious disadvantage: it permitted the Chamberlains to remain silent and to evaluate the case against them. If they could be inveigled into the witness box before they found out about the scientific evidence, a skilled cross-examiner might get them to admit potentially significant facts without understanding their significance. There might also be emphatic denials or other statements which the scientific evidence could later expose as untrue. The problem was: how to spring the trap?

The answer to this dilemma was to be found in the normal coronial procedure. If no charges were laid, the Chamberlains could be called as witnesses. An inquest is simply an inquiry into a person’s death. Witnesses are not left entirely bereft of protection — they may tell the coroner that they object to answering questions on the ground that to do so might tend to incriminate them. But if the Chamberlains wanted to make such a statement, knowing it would be reported to a suspicious Australian public, let them! Not even the most rabid punter would have put any money on them exercising this right. They would feel constrained to give evidence, and one of the major safeguards available to accused people would have been successfully circumvented.

Their new solicitor, Stuart Tipple, began to get some inkling of what was in store when he sought copies of the scientific reports, and his request was flatly refused. He was surprised by the refusal, because counsel assisting coroners normally adopt a very open and co-operative attitude. The matter was subsequently raised with the new coroner, Chief Magistrate Gerry Galvin, when the hearing date was announced in early December, but he said that he had no power to intervene.

The second inquest began on 14 December 1981. The Chamberlains were again represented by Phil Rice QC, but another barrister, Andrew Kirkham, had been added to the team. Even before the case began, they raised the matter of the withheld scientific reports with Des Sturgess, a Queensland barrister who had been briefed by the Crown to assist the coroner. He told them that the matter was out of his hands. ‘I’ve got my instructions and I can’t help you.’

The hearing began formally with an opening address by Sturgess in which he outlined the evidence given at the earlier inquest and proceeded to tender, one by one, the various items which had been exhibits. Two videotapes were screened, and the tape recording of Lindy’s interview with Inspector Gilroy was played to the court.

On the second day, Sally Lowe was called. She was asked to identify a statement she had made to the police on 19 September 1981, and a copy was passed to Phil Rice. He seized the opportunity to object to the cloak of secrecy. Sturgess told the coroner that he would see what he could do and acceded to a request that Sally’s evidence be interrupted for an hour or two so that the fresh statement might be digested.

‘I now call Michael Leigh Chamberlain,’ Sturgess announced. This time it was Kirkham who took the objection. He referred to the privilege against self-incrimination, and foreshadowed relying upon some unreported decisions of the Victorian Supreme Court, before outlining the real thrust of the objection:

Inasmuch as they have the choice, it can only be a real choice if it is known what evidence is going to be called. We don’t know the nature or extent of the fresh evidence to be put before you, and neither of the parties we represent is in a position to effectively exercise their rights without knowing the nature of the evidence to be called. The fairer course would be to call the evidence, then call the Chamberlains and allow them to make an election, or to make submissions as to their rights, on the basis of what has gone on before.

Sturgess remained unmoved. ‘I am subject to Your Worship’s direction but, apart from that, I control who shall be called, and when they shall be called, and the order in which the evidence is presented, not the witnesses themselves.’

Galvin adjourned the proceedings pending further argument, and the Chamberlains met with their lawyers in the conference room to consider their position. They were told that a radio station had already reported that Michael Chamberlain had refused to give evidence to avoid incriminating himself.

‘We want to give evidence,’ Lindy said decisively. ‘We don’t want to look as if we have got something to hide.’

The situation was too important to be resolved so peremptorily, and Rice insisted on explaining their rights and the potential dangers: if you don’t realise the significance of things, you might fail to provide crucial qualifications or explanations. But the decision had been made.

Before Michael’s evidence began, Rice rose to object again, his voice tinged by anger and frustration. ‘Your Worship, we repeat our submission regarding Mr Chamberlain being called at this stage. We have no control over his being called now. We would have thought it far fairer to have called him after other evidence which the authorities have, which they claim changes the aspect of things. I merely mention this, because we cannot in any way control the time when Mr Chamberlain, or Mrs Chamberlain, can give evidence. And to that extent I rise in protest, knowing that I am impotent to do anything about it.’

Sturgess began to cross-examine Michael, leaving Rice and Kirkham trying to deduce the nature of the still-undisclosed scientific evidence from the form of the questions. The cross-examination was wide ranging. It dealt with the bloodstained sleeping-bag taken to the drycleaners, the possibility of more bloodstaining on a towel, the number of people who might have bled in the car at various times, and the camera bag that had been taken to Uluru. Later, when Sturgess was questioning Michael about his conversation with a journalist from the Adelaide Advertiser, Rice again objected, and there was a heated exchange.

‘But is my friend alleging the commission of some sort of offence by Mr Chamberlain?’ Rice demanded. ‘You see, we know nothing! He has gone into the witness box at this early stage without any notice to us at all. Now, we have been very patient. But I do object. If my friend is going to suggest that he has committed some offence, why has he not been charged? And the normal processes of justice allowed to proceed, instead of putting him in the witness box and cross-examining him — under the guise of an inquest — with a view to building up a case when presumably this other evidence, this other undisclosed evidence, does not seem to have the fibre?’

The cross-examination continued, with Rice fighting a rear-guard action and interjecting from time to time to remind the court that this was not a trial and that Sturgess should not assume the role of prosecuting counsel.

The next witness was Alice Lynne Chamberlain. Sturgess covered much of the same ground he had covered with Michael. When he came to the bunny rug, he put it in Lindy’s hands and asked her to identify it. His questions were soon interrupted. Lindy broke down, her shoulders shaking with sobs, and there was a short adjournment.

Sturgess then reminded her that Charlwood had asked her if she had killed her child. Why, he demanded, had she replied, ‘What are the implications if I tell you?’

Lindy was no longer tearful. Now her blood was up. ‘Because I had told him that our legal advice was not to give an interview. And although I have learned very fast how far to trust the police, I was still expecting them to honour their word. And I was not sure what he considered an interview and what he didn’t. And as I had no legal advice there, I was asking him the question. Unfortunately, I was given the wrong advice.’

He suggested that there had also been a conversation in which Charlwood had asked her to give him handprints and she had agreed, but said that she wanted to talk to her solicitor first.

‘That’s right,’ Lindy said emphatically, ‘and he promised to contact us the following day. We haven’t heard from him since.’

Sturgess was clearly taken aback. ‘Steady on,’ he said. There was a pause before the next question: ‘Mrs Chamberlain, would you be prepared to give to the police your palm prints?’ Rice interjected, vigorously protesting at the unfairness of putting her on the spot in that manner without giving her the opportunity of taking his advice. There was a short adjournment while they discussed the matter. It was Kirkham who explained that it was a no-win situation. If her handprint proved to be too big, they could say it was only part of the hand. If too small, they could say the clothing must have been bunched when she held it. She went back into the witness box and gave her answer. ‘I told Sergeant Charlwood, and I say the same thing again, I would have been quite happy to provide my palm prints to them provided my lawyers agree. They do not agree that I give my palm prints at this stage. They know I am quite happy to give my palm prints.’

Sturgess’s last unfinished question was a masterpiece of disbelief. ‘You are not prepared to give to the authorities your palm prints so they can be compared with …’ He sat down.

The court adjourned to the police compound to examine the Chamberlains’ car. Constable Metcalfe pointed out areas where blood had been found. He drew particular attention to the inside hinge of the front seat on the passenger’s side. Then he held up a small steel plate about five inches square. He had cut this out from an area under the dashboard adjacent to the passenger’s-side wall of the vehicle. There was an unmistakable spray pattern on it. He climbed into the front of the car and lay on the floor looking up at the area from which the plate had been cut. He pointed upward. The implication was chilling.

It was Joy Kuhl, a forensic biologist employed by the New South Wales Health Commission, who had tested the stains found in the car. She had begun with a ‘screening’ test for blood using a chemical named orthotolidine. The test was relatively straightforward. One applied the chemical to a small white pad and rubbed it on the suspected area of carpet, then paused to see if anything happened before adding peroxide. A bright-blue reaction indicated the presence of blood. She explained that there were other substances which could give a ‘false positive,’ but that they gave a ‘first stage’ reaction easily recognisable by the formation of the blue staining before any peroxide had been added. She had obtained positive reactions to this test from the camera bag, the console in the car, the door handles, the seats, and the carpet.

DNA technology was still in its infancy, and adequate procedures had not been been developed for use in forensic-science laboratories, but she had then carried out a series of immunological tests, mainly using the ‘crossover electrophoresis’ procedure. This involved the use of an ‘antiserum’ which, in theory, would react only with foetal haemoglobin. One took a glass plate covered with a thin layer of agar gel and punched two rows of small holes or ‘wells’ in the gel. The antiserum was added to one row of the wells; a series of blood samples were added to the other row. One of those samples would be the one to be tested; the others were ‘controls’. An electric current was then applied to the completed apparatus, impelling the antibodies in the serum towards the opposite row of wells and, by a process of osmosis, dragging antigen from those wells in the opposite direction. If the sample contained foetal haemoglobin, the antigen and antibody would form a precipitin band.

The procedure was complicated by the fact that adult blood contains foetal haemoglobin, though in smaller quantities than would be expected in a baby, and that the blood of an infant contains some adult haemoglobin. Accordingly, the question was not whether foetal haemoglobin was present, but whether it constituted more than, say, 1 per cent of the total haemoglobin in the sample. To overcome this difficulty, the samples were diluted to the point where the small amount of foetal haemoglobin contained in adult blood would no longer be sufficiently strong to react with the antiserum. The controls consisted of one sample known to contain a large proportion of foetal haemoglobin, another sample of adult blood, and samples of various animals’ blood. If the test worked properly, a positive reaction would be obtained to the known foetal haemoglobin sample, and negative reactions to the other controls.

In this manner, Mrs Kuhl claimed to be able to ‘demonstrate’ the presence of foetal haemoglobin on the hinge of the passenger’s seat, underneath the seat, and on a number of items taken from the car. Two droplets had been removed from the spray pattern on the underdash plate and, although the surface of those drops had reacted negatively to the orthotolidine test, when she dug into the material removed she found that it, too, contained foetal haemoglobin. She concluded that the concentration of foetal haemoglobin necessary to produce these results could only have come from a child under three months of age.

She had also carried out tests to determine the grouping of the phosphoglucomutase, or PGM, of the blood tested. It was the same as the grouping of this particular protein in the blood of the Chamberlain family.

When she had attempted to reproduce the pattern of staining evident in the region of the hinge on the passenger’s seat, she had found that she needed five millilitres of blood, and that it would only run in the right direction if someone was sitting in the seat.

A South Australian policeman, Sergeant Cocks, had cut a baby’s jumpsuit with a pair of curved scissors to produce damage that he thought was similar to that found in Azaria’s jumpsuit. When he did so, he discovered that small tufts of material fell out. He had discovered similar tufts in the material vacuumed from the Chamberlains’ car, and three tufts in material vacuumed from the camera bag. The implication was plain enough, but it confronted one difficulty. As Cocks conceded in cross-examination, at least part of the damaged areas on Azaria’s jumpsuit were heavily stained with blood, but he had been unable to detect blood on any of the tufts recovered from the car or the camera bag.

Professor Cameron came to the witness box and expressed his conclusion that death had been caused by a cutting instrument, possibly encircling the neck. He was well prepared, with slides of photographs showing the staining, said to be handprints. He produced a transparency showing the outline of a young woman’s hand, and suggested that the magistrate look at it himself. The magistrate had difficulty in seeing it. He was not to know it at the time, but that difficulty would later be shared by several forensic scientists and a number of eminent judges.

‘Like beauty, it has to be in the eye of the beholder!’ Rice said contemptuously.

The scientific evidence continued to mount. An odontologist named Sims had been brought out from London to give evidence that he, too, had examined the baby’s clothes, and had found none of the characteristics he would have expected had the garment been damaged by the teeth of a dog. Sims was scarcely a dingo expert: he had had no experience with live dingoes, and his observations of their dentition had been limited to an examination of a single skull.

Professor Malcolm Chaikin was a textile expert who occupied a chair at the University of New South Wales. He gave evidence that the teeth of dogs and other canids could tear fabric, but could not cut it like scissors. He had examined the damaged areas of the jumpsuit both with the naked eye and with a scanning electron microscope. He had observed that the severed fibres ended in an approximate plane, which indicated that they had been cut rather than torn. More importantly, he had detected the presence of tufts, which, he explained, could not be produced by a tearing action. His conclusion was plain: the damage had been caused by scissors or some other cutting instrument, and not by teeth.

Charlwood gave evidence of his interviews with the Chamberlains and of other inquiries, including the search of the house. The proceedings were then adjourned over Christmas.

When they resumed on 1 February 1982, Joy Kuhl was recalled. Since giving evidence in December she had spent four days making a minute examination of the camera bag. She had confirmed the presence of blood in various positions and had ‘identified’ the presence of ‘foetal blood’ on the zipper clasp and part of the buckle.

Even before the addresses began, the result seemed a foregone conclusion. It remained only for Sturgess to articulate the allegations. The Crown case was to be that Lindy had taken Azaria to the car and cut her throat. The body had been secreted in the camera bag or otherwise concealed near the car until later in the evening when the opportunity presented itself for her to bury it. At some stage, she must have told her husband what she had done, and he must have co-operated with her in concealing the crime. Later, the body had been exhumed, and the clothing removed from it before it was re-interred. The jumpsuit had been cut by scissors in a manner calculated to simulate dingo damage. One or both of the Chamberlains had then jogged out to the little gully near Maggie Springs and left it there as if discarded by a dingo.

It came as no surprise when they were committed for trial — Lindy on a charge of murder, and Michael on a charge of ‘accessory after the fact’. The stage had been set for the most widely publicised and controversial trial in Australia’s history.