14

Battle is joined

THE TRIAL BEGAN on 13 September 1982. It was to last nearly eight weeks. There had been changes of counsel on both sides. The Chamberlains were now represented by John Phillips QC, a Melbourne barrister destined to become the author of a book entitled Advocacy with Honour, the Victorian director of public prosecutions and, ultimately, chief justice of the Victorian Supreme Court. He was a specialist in criminal law, and was well regarded by his colleagues. He was reputed to have an almost encyclopaedic knowledge of criminal law and procedure. If he had a flaw, it lay in his gentlemanliness, and the fact that he did not hail from the Territory. Andrew Kirkham was to be his junior.

The case for the prosecution would be presented by Ian Barker QC. Barker was the local boy made good. He had been the solicitor-general of the Northern Territory and, when he left to practise at the bar in Sydney, his former partner, Brian Martin, had taken over as solicitor-general in his stead. He was later to defend the only justice of the High Court of Australia ever to stand trial in a criminal court. Like Phillips, he was an effective cross-examiner, and had a good knowledge of the law. He was renowned for his dry sense of humour. Perhaps the most telling quality was his intuitive grasp of practical psychology. Barker was assisted by Des Sturgess and a Darwin barrister, Tom Pauling.

Mr Justice Muirhead had the Chamberlains arraigned, and the barristers settled down to the task of empanelling a jury. A jury panel is supposed to be representative of the community. Doctors and some other professional groups are exempted, whilst convicted felons are excluded; but, in theory at least, one is left with a wide range of people who will bring a diversity of experience and common sense to their task. The procedure for the selection of individual jurors is at best a haphazard one: names of jurors are drawn from a box. Challenges may then be made by either the defence counsel or the Crown prosecutor, but they must be made before the juror takes his or her seat in the jury box.

Counsel are given no background information, and have no right to ask potential jurors questions to determine whether or not they harbour any bias concerning the case. They must rely upon general impressions formed as people rise from their seats in the public gallery and walk forward in answer to their names. Clothing and badges may influence such impressions, but often there is nothing to go by except facial expressions and general demeanour. In this instance, the task was particularly difficult. The Chamberlains had their supporters but, in general, the climate of public opinion was against them. A few seconds’ appraisal seemed pathetically inadequate to enable one to be confident that one had rooted out any jurors likely to be guided by prejudice and presupposition, rather than a fair appraisal of the evidence.

A newspaper cartoon published some months before the trial began had depicted an old hobo sitting in the shade of a cactus in the middle of the desert. He looked up quizzically at the two sheriff’s officers bending over him and asked, ‘Lindy who?’

‘Only eleven to go,’ one officer said, with evident satisfaction.

That seemed to say it all. The whole of Australia seemed to have formed some pre-judgement about this case.

The judge was as concerned as Phillips about the potential effect of rumour and publicity. He explained that juries must act only on the evidence and appealed for fairness:

If you were on trial for a serious offence, how would you feel if you found that jurors had been influenced by matters not mentioned in the court, by matters heard outside the court, under circumstances where neither you nor your counsel could explain it or challenge it? That, ladies and gentlemen, is why it is so vital that you keep your eyes entirely on the evidence. Your job in this case is to administer justice according to law, not according to rumour, not according to preconceived notions. You will hear much of this, ladies and gentlemen, for the simple reason that possibly the publicity concerning this matter has been without precedent in our lifetime.

Yet even in the courtroom itself were ever-present reminders that this was no ordinary trial. The judge pointed out two video cameras silently focussed on everything that occurred:

I do not want you to feel that as you sit here you are more or less being directly telecast to Australia or that there is any direct broadcast of these proceedings. That is not so. They were put in for the convenience of the press to avoid overcrowding, to enable the press to observe these proceedings in another place close by if they wished to do so. So, do not get the idea that you are erupting to stardom or something because you are not.

The formalities complete, Barker rose to address the jury of nine men and three women. It was a masterful opening:

A baby was killed at Ayers Rock on 17th of August 1980 during the evening between eight and nine o’clock. It was a Sunday. The child was just under ten weeks old, having been born on the eleventh of June. She was called Azaria Chamberlain, and was the daughter of the accused Michael Leigh Chamberlain and Alice Lynne Chamberlain. The body of the child was never found but, having heard the evidence concerning the baby’s disappearance, you will have no difficulty determining that she is dead, and that she died on the night she disappeared. As to the manner and the cause of death, one cannot be precise because the body was never found. However, what will be proved, largely upon scientific evidence of the baby’s clothes, is that the child lost a great deal of blood, in all probability from injury to the major vessels of her neck. She died very quickly because somebody had cut her throat.

The Crown does not venture to suggest any reason or motive for the killing. It is not part of our case that Mrs Chamberlain had previously shown any ill will towards the child. Nor do we assert that the child was other than a normal healthy baby. The Crown does not, therefore, attempt to prove motive, nor does it invite speculation as to motive. We simply say to you that the evidence to be put before you will prove beyond reasonable doubt that, for whatever reason, the baby was murdered by her mother.

With a handful of deft sentences he had encapsulated the essence of the Crown case, acknowledged but brushed aside the obvious difficulties in his path, and created not only interest but a sense of expectancy. He took two further sentences to dispose of the alternative, his economy of language subtly conveying the message that the Chamberlains’ protestations could be brusquely dismissed:

Shortly after the event, the mother asserted, and thereafter continued to assert, that the dead child had been taken from the tent by a dingo. The Crown says that the dingo story was a fanciful lie, calculated to conceal the truth, which is that the child Azaria died by her mother’s hand.

The case against Michael was etched in with equal brevity:

The Crown case against Michael Leigh Chamberlain is that he actively and knowingly assisted his wife to dispose of the child’s body, to mislead the police about the circumstances of the child’s disappearance, to attempt to have the police and the Coroner believe that the baby had been killed by a dingo, and in other ways in attempting to conceal the fact that murder had been committed. At the close of all the evidence I will invite you to find, beyond reasonable doubt, that Michael Leigh Chamberlain is guilty of the crime of being an accessory after the fact to the murder, by his wife, of his child Azaria.

Barker then began an exposition of the evidence to be called, tracing the background of the holiday, the arrival at the camping area, and the events leading up to Azaria’s disappearance. He made the point that ‘the only witness to the killing was the accused, Alice Lynne Chamberlain,’ and that there was ‘no evidence beyond her statement’ to establish Aidan’s whereabouts during ‘those few terrible minutes’.

He then dealt with the seizure of the car in September 1981 and its subsequent examination. That examination, he said, revealed that attempts had been made to clean up the blood in the car, but that even the residue was ‘far greater in amount than all the bloodstaining found in the tent’. Furthermore, the blood in the car was ‘free blood from the victim,’ whilst the bloodstains in the tent had been transferred from ‘bloodstained hands or clothing of the child’s mother’.

At this stage, the other scientific opinions remained trumps in his hand to be played later in the game, but the time had come to disclose the joker. Mrs Kuhl, he told them, had found that the blood in the car was the blood of a baby under six months of age. The blood had been in the car for not less than twelve months, nor more than two years.

The discovery of foetal blood in the car is a critical part of the Crown case. It would be preposterous to suggest that the dingo took the child from the tent and into the car, and we will submit that the discovery of Azaria’s blood in the car destroys the dingo attack explanation given by Mrs Chamberlain, whatever else there may be to support such explanation, and the Crown says there is almost nothing.

So, ladies and gentlemen, this is a case of simple alternatives. Either a dingo killed Azaria, or it was homicide, because the child could hardly have inflicted injuries upon herself. If she was killed in the car, one can at once forget the dingo.

When the court adjourned at 4.27 p.m., Barker had still not finished. Overnight, the defence team reviewed the transcript of his address. It was obvious that the case he intended to present was quite different from the one put forward by Sturgess at the second inquest. That had involved an apparently premeditated murder, committed perhaps as some kind of sacrificial rite during the course of the afternoon, probably in some concealed area adjacent to Uluru. Now it was apparently an unpremeditated killing for an unknown motive, committed in the car at about 8.00 p.m. Perhaps the body was in the camera bag; perhaps only the clothes had been. In either event, one might have wondered where the camera gear had been put. The body was said to have been buried, disinterred, and reburied. The car was said to have been cleaned up. The clothes were said to have been cut, and placed near the Rock. Yet when? It was all so vague. It was like shadow-boxing. There was little of substance that you could pin down and try to refute.

The second day’s hearing was delayed while Phillips again raised the problem of people wearing ‘The Dingo is Innocent’ T shirts, and of the press photographing and filming them. The judge announced that he regarded the publication of photographs of that type of inflammatory material as likely to interfere with the calm deliberations and objectivity of the jurors. He later returned to the issue, castigating ‘the fools’ responsible, and warning that he had requested the sheriff and the police to ‘take such action as may be appropriate’.

Barker’s address wound up shortly before the morning-tea adjournment:

Ladies and gentlemen, where does this all lead? A ten-week-old baby girl is last seen alive when she is taken in the direction of her parents’ tent and car by her mother. A week later, her bloodstained clothing is discovered some four kilometres away. It had been buried, with her body in it, dug up, and cut by human hands, using scissors. In the car is found the blood of a baby under the age of six months, and the clearest evidence that an attempt has been to clean the blood up.

Apart from the container of the chamois, foetal blood is found in a number of places in the car, on a towel, on a pair of scissors, on the black camera bag and in the camera bag the tufts of thread, each of which were cut and must have come from the jumpsuit or a similar garment.

Now the Crown says, and we say it again, that this is a case of simple alternatives. Either a dingo or dog killed that child or the child was murdered. It is very difficult indeed to see room for any intermediate state of affairs. We will be putting to you that there is no reasonable explanation for the presence of the foetal blood and the tufts of fabric unless deposited on the night the child was killed. What was found in the car is connected with and very much part of the story of the child’s disappearance. No dingo could have taken the child into the car and killed her there; only a human being could have done it. The baby could hardly have inflicted injury upon herself. The Crown says it must have been a case of homicide and the account of the child’s disappearance given by Mrs Chamberlain must therefore be false.

After the morning-tea break, the judge again referred to people wearing clothing containing messages or other material relating to the trial, and threatened to charge them or anyone photographing them with contempt of court.

Barker’s junior, Tom Pauling, rose to call the first witness.

‘If Your Honour pleases, I call Sally Coral Lowe.’

From a prosecutor’s point of view, it was good strategy to call Sally Lowe first. If her evidence was accepted, the Crown case was destroyed. She had heard the baby cry when, on the Crown case, it had to be dead. Yet prosecutors have an ethical obligation to call any apparently credible witness able to give relevant evidence about the case. There was no way around this impasse. She was an apparently truthful woman who had enjoyed no prior contact with the Chamberlains, and she had no reason to lie. It also seemed unlikely that she could have been mistaken. She was a sensible and articulate young mother, well attuned to the cries of young babies. In the stillness of a desert evening, a baby’s cry would carry with penetrating clarity, and Sally had been only twenty metres from the open flaps of the tent. There were no other babies in the camping area that night, and earlier suggestions of confusion due to the cry of an owl or some other ephemeral nocturnal creature seemed fanciful.

Had she been called at the end of the scientific evidence, she might well have carried the day. Territorians pride themselves on their practicality and their ‘down to earth’ attitude to people. The commonsense approach of this young mother might have seemed far more reliable than the convoluted and hotly disputed esoteric propositions advanced by the scientists.

Some of the other witnesses like the Wests who had heard the menacing growl shortly before the alarm was raised, and the Whittakers who provided such a graphic description of Lindy’s emotional state, were equally threatening. When their evidence was considered in conjunction with that of others such as Derek Roff and Murray Haby, there seemed a strong likelihood that the jury would believe this group of obviously decent people describing what they had seen and heard. The scientific evidence might be dismissed as too theoretical or even silly. One could well imagine the jury being dubious about the opinions of an English odontologist brought to the Territory to pontificate about dingoes, especially when his evidence appeared to contradict the views of the rangers.

Timing, it seemed, provided the key. The opening address could imply that these people would be called, but what they said would be overborne by the really important evidence to come. Mrs Lowe’s account of hearing the baby cry was foreshadowed, but dismissed as ‘impossible’. The dingo tracks were mentioned, but dismissed as ‘a red herring’. In the face of the expectations so engendered, a jury might accept this evidence only provisionally, and the weight jurors did give to it initially would be eroded as the weeks passed and the struggle to understand the complexity of the scientific evidence mounted. By the time nearly two months had passed, there might be an air of it having been overtaken by events, of them being merely views people held before the scientists discovered what really happened. And having the most junior of the prosecution barristers lead Mrs Lowe through her evidence also seemed to subtly devalue its importance.

Her evidence, when it came, was short and to the point. It was a baby’s cry, not some creature of the night. It was ‘quite a serious cry but, not being my child, I didn’t sort of say anything. Aidan said, “I think that is bubby crying” or something similar. Mike said to Lindy, “Yes, that was the baby; you had better go and check.” Lindy went immediately to check.’

In cross-examination, Phillips read the relevant portion of Barker’s opening to Sally, and explained: ‘The Crown is saying that it is impossible you heard the baby when Mrs Chamberlain returned to the barbecue.’

‘I disagree with that,’ Sally said firmly.

‘Not only do you disagree with it, but you are absolutely certain that is the time you heard the baby? Are you not?’

‘Yes, all the Chamberlains — Aidan and Mrs Chamberlain and Mr Chamberlain — were present. My husband, myself and child. And we heard the cry.’

‘The cry came from the direction of the tent?’

‘It definitely came from the tent.’

‘Beyond any doubt?’

‘I’m positive.’

‘You know well, from your own child, the sound of a baby crying?’

‘Well, I come from a big family and [I am] used to babies. I can tell the difference between a baby and an older child.’

‘Apart from your own baby and rearing it through the same stages as Azaria Chamberlain, what other babies of that age had you had direct contact with, prior to 17 August 1980?’

‘I come from a family of nine, and they always seem to be having children. [I am] just familiar with babies and children.’

‘You are quite satisfied that the sound you heard was a baby crying out?’

‘Yes, positive.’

The cross-examination continued. Lindy had ‘a new mum glow about her. She was a little tired, but she still managed to be quite cheerful and happy.’ Mrs Lowe saw no blood on her; and until she and her husband moved to the motel at about ten o’clock, the Chamberlains were never out of her sight. They were ‘quite visible, because you could see them crying’. She never saw them trying to clean the car, or taking any object out into the scrub.

The cry was critical, and Phillips was determined that the jury were going to get the message.

‘Finally, as to the duration of the baby’s cry …,’ he asked, ‘the cry, as you listened to it, appeared to be cut off, did it not?’

‘That’s right,’ she said. ‘Going from experience with other babies, yes.’

‘It seemed to you to stop suddenly?’ he persisted.

‘Yes.’

‘And that was something you noted?’

‘Right,’ Sally concluded emphatically.

Greg Lowe was to say that he had not heard the baby cry. He had been ‘heavily involved in conversation’. But he had heard Michael Chamberlain make some comment about it, and saw Lindy go to check. He confirmed Lindy’s account of raising the alarm.

In cross-examination, Kirkham referred him to Barker’s allegation that Michael’s behaviour had ‘lacked urgency’. Greg confirmed what he had told the police.

‘Mike and I must have searched for about half-an-hour, and this was going at full pelt through the scrub. We kept covering different areas, and then coming to our tent to see if there was any news.’

Kirkham put the allegation bluntly. ‘Did he in any way, to your observation, lack endeavour in seeking his child?’

‘No,’ Greg said. ‘I must point out, though, that Mike did go back to console Lindy on several occasions.’

‘It is further suggested by the prosecution that there were opportunities for the Chamberlains, or one of them, to clean blood from the front of the car during the search. Did you see either of the Chamberlains engaged in any such operation?’

‘No, I didn’t,’ Lowe replied. ‘There were quite a lot of people around at that time at the tent site and I am sure if anything like that had happened it would have been noted.’

Judy West spoke of hearing Lindy’s cry, which ‘seemed to come fairly quickly after the growl of the dog’. The Chamberlains, she said, left the area of the car twice for approximately ten minutes on each occasion. On the first occasion, he had put his arms around Lindy and simply led her away. On neither occasion were they carrying the body of a child or a digging implement.

Amy Whittaker revealed that on the first of the two occasions when the Chamberlains had walked out into the scrub, they had done so at her suggestion. She vividly recalled Lindy’s agitation: ‘They’re not looking in the right place,’ she had said. On another occasion, she had said plaintively, ‘The baby is just out there, it must be out there, under the bushes somewhere, and they are not searching, and they should be looking in that area.’ Amy had taken Michael aside and said, ‘Look, take Lindy out there and let her see for herself that the baby is not there.’

She described Michael as ‘a man rigidly controlling some emotion that he thought may have been in danger of overcoming him’. Lindy ‘was certainly numb. And she certainly appeared to be rigid, motionless, and oblivious, to some extent, of her surroundings. Those signs would be consistent with a person in shock.’

She referred to the intermittent arrival of people and vehicles during the evening. ‘Every time they came, there was always the hope that maybe this time there would be something certain.’

‘Mr Chamberlain, on a number of occasions, approached vehicles coming up, to ask for news: is that so?’ Kirkham asked.

‘Yes. I saw Michael several times go towards a car. As it came down the road and stopped, he would go off to the car.’

Constable Frank Morris was then led through his part in the investigation. He confirmed that Lindy ‘appeared to be weeping, upset’. He also related the apparent inconsistency.

‘Mrs Chamberlain said that, originally, she was at the barbecue site, and she’d seen a dingo near the tent. It had what appeared to be something in its mouth.’ When he raised the matter with her some time later, ‘she said that the dingo had nothing in its mouth … I said back to her, ‘but you made the statement earlier that the dingo had something in its mouth,’ believing that the woman could have been upset because of the situation and could easily have made a mistake. She stated she did not recall making that statement earlier.’ Morris conceded, however, that he could not recall the exact conversations. ‘Not word perfect, no.’ He also confirmed that he had made no record of them until nine days later, after the discovery of the clothes which were to spark the suspicions of his superiors.

Murray Haby described the tracks he had found:

There were a lot of tracks down lower, but this track stood out because it was a little bigger than the others, and quite easy to follow, and came along to an area where obviously it had put something down, this dog or this dingo, and had left an imprint in the sand, which, to me, looked like a knitted jumper, or a woven fabric. And then it obviously picked it up, because it dragged a bit of sand away from the front and kept moving. And I followed it around past Anzac Memorial, to where a car park comes off that road to the south of the sand dune, and lost it in the carpark.

He said that the imprint had been about seven inches by about five or six, and roughly oval in shape, ‘and there was a drop of something there. Something moist. Like saliva had spilt there beside it.’

The chief ranger, Derek Roff, gave evidence of the tracks he had followed and of the drag marks with the depressions containing cloth imprints. Alan Barber, the manager of the Uluru Motel, said that Michael had told his mother that ‘our daughter Azaria was killed by a dingo last night and we don’t ever expect to find the body’. Inspector Gilroy was called to explain his part in the investigation. The dispute between Goodwin and Morris was canvassed, concerning the manner in which the clothes were found. Lenehan, the bleeding hitchhiker whom the Chamberlains had rescued from the side of the road, recounted how the good Samaritans had loaded him, not on their donkey, but into the back of their hatchback, with his head protruding forward toward the aperture between the front seats.

Whilst the evidence rolled continually onward, Stuart Tipple continued to work behind the scenes in an attempt to marshal the strongest defence case available. He had been gathering an impressive body of evidence concerning the behaviour of dingoes, and got wind of the fact that a little girl had been dragged from a car at Ayers Rock only a few weeks before Azaria disappeared. Roff’s deputy, Ian Cawood, had confirmed the truth of the story, but had been unable to provide any record of the family’s name or address. It was not until well after the trial that the Cranwells were to come forward and relate the full story of what had happened to their little daughter, Amanda. Phillips applied for leave to advertise in newspapers for witnesses of that incident , but the judge dismissed the application, commenting

There is an abundance of evidence as to dingoes, their capacity to get very friendly, and to get very vicious, to go into rooms, and to go into tents and upset rubbish bins and behave like pests. It seems that the jury will have to approach this case knowing that … It is not like saying the child was carried away by a wallaby, it could not happen, or it does not happen. The evidence is entirely the reverse in this case.

Barker foreshadowed tendering the transcript of the evidence given by the Chamberlains at the second inquest. When people have made as many public statements as the Chamberlains had, it is virtually inevitable that they will phrase things differently, omit details included in an earlier account, or otherwise create apparent inconsistencies. Whilst there were no damning admissions in that evidence or in any of their other statements, the defence was anxious to limit the scope for what Lindy would later describe as ‘nitpicking’. Phillips objected, pointing out that it had obviously been unfair to interrogate the Chamberlains publicly whilst the case against them was kept secret. After some discussion, the judge agreed. He acknowledged that Sturgess had acted ‘according to law,’ but said:

At this time, the accused were the focus of national interest and national curiosity. Counsel involved in the inquest must well have known the extent of that interest. In looking to the future, the possibility of prejudice to their clients by a refusal to answer further questions about a largely unknown subject matter was a very real, albeit almost a novel, consideration. What were the prospects of their clients receiving a fair trial, by an unprejudiced jury in the Northern Territory, according to law?