The appeal to the High Court

WITH THE FEDERAL COURT’S DECISION to dismiss the appeal, Lindy’s bail expired. She was promptly taken back into custody and returned to Berrimah Penitentiary. Little Kahlia was five months old. She was to be without her mother for three years. On 2 May 1983, the High Court of Australia declined to intervene and grant her mother bail pending the hearing of an application for special leave to appeal. Sir Gerard Brennan did not doubt that she would answer bail when required, and observed that ‘the poignancy of her return to custody and the traumatic disruption of family life that that involves needs no elaboration’. But bail is not usually granted after a person has been convicted, and since the verdict had already survived an appeal to the Federal Court, it could not be said that it was likely to be set aside.

Yet many people clearly thought that she had been wrongly convicted, and a groundswell of protest was building.

On 16 August, a Sydney newspaper, the Daily Telegraph, reported that ‘one of Australia’s most distinguished judges’ had expressed doubts about the verdicts. Sir Reginald Sholl had said that he did not discount the claim that a dingo had taken Azaria Chamberlain and that he believed there was a ‘genuine probability’ of her parents’ innocence. The case had left him with more doubt in his mind than any other trial he could remember. He believed that the trial judge ‘had summed up the case in favour of the Chamberlains but the jury had gone against him’.

On 31 August, the Tasmanian Examiner printed a letter by ‘True Justice’ asserting that a significant percentage of Australians were not satisfied that fair and impartial legal process had led to Lindy’s conviction, and believed that she may been the victim of a miscarriage of justice. It called for a public inquiry. A week later, the paper carried a further letter. ‘How could I fail to respond to the rational letter penned by “True Justice” (Aug. 31) which so accurately sums up the plight of the Chamberlain family? Without wishing to disclose any evidence in public, I fully endorse the comments made.’ It was signed by Greg Lowe.

On 23 September, the Darwin Weekend Star quoted a prison source describing Lindy as ‘the model prisoner’. The report said that:

When the command is snapped, ‘Chamberlain, clean the toilets’ she does so without fuss. The female warder says Lindy is quiet and humble, but always courteous. She regards herself as just another prisoner … There are no frills or fancy requests. If anything, she keeps requesting to help other prisoners, despite how minute their problems might be. There are several people on the staff in this institution who firmly believe Lindy did not kill her baby, Azaria.

Of course, one did not need to be overly cynical to suggest that the opinions of other prisoners or even their warders were less than compelling. But they were not the only ones expressing disquiet.

On 20 November, the Sun Herald carried a headline, ‘80,000 sign plea for Lindy’. The article also made it clear that it was not only Lindy who was suffering as a consequence of what more and more people seemed to be seeing as a tragic mistake. It reported that:

Aidan is a very disturbed little boy and the younger one wakes up in the middle of the night looking for his mother. He sleepwalks and goes around looking behind furniture for Lindy. Kahlia has been well looked after by a lovely lady who weaned her own child so she could breastfeed her, she was in such a state when she was taken from her mother.

And on 24 November, evidence emerged that provided substantial support for the steadily increasing expressions of concern about the Chamberlains’ convictions. A scientist named Les Smith revealed that the spray on the steel plate under the dashboard of the Chamberlain car was not blood, whether infant or adult — it was sound-deadening material called Dulux Dufin 1081. The Crown had apparently proved that a mixture of paint and bitumen had come from the severed artery of a baby.

Smith had examined about forty Holden Toranas, and had found four others with a similar spray pattern on the same plate. More were to come to light. There had been no suggestion of an epidemic of people cutting babies’ throats in the front passenger seat of that particular model. Hence, it seemed reasonable to suspect some other explanation. Smith extended the line of the individual spray marks back towards their origin, and found that they had emanated from a point approximately 200 millimetres in front of the bracket. He also noted that the spray had always hit the bracket at an angle of about twenty-two degrees from the side of the car. From these observations, it was possible to pinpoint the source of the spray: a plenum drain hole from the wheel arch of the car. Sound-deadening material had been sprayed into the wheel arches to deaden the sound of stones thrown up by the tyres, and it appeared that overspray would sometimes come through the hole and leave a pattern on the plate under the dashboard.

To confirm this theory, Smith removed some of the material from the spray pattern on a plate, and compared it with material removed from the wheel well of the same car using infrared spectroscopy. He reported that ‘this technique, which is somewhat akin to chemical fingerprinting, showed that the two materials were the same’. He also examined the spray pattern from the Chamberlain vehicle under a microscope, and found that yellow flecks of paint overspray were uniformly distributed over the bracket and the spray material. Consequently, the spray material must have been deposited on the bracket before the car was painted. He found the same overspray on the other four brackets.

Whilst Smith, like the Chamberlains, was a Seventh Day Adventist, these observations could not be disputed; the physical evidence was there for anyone with an objective eye to see.

This was obviously a potentially vital breakthrough, but the euphoria it kindled was quickly extinguished. McHugh advised that it could not be relied upon in the appeal before the High Court of Australia, and Stuart Tipple was subsequently condemned to sit in court, fuming in frustration, whilst the legal argument proceeded on at least one basis that he knew to be factually wrong.

In earlier years, the High Court had no permanent home, and the judges — some well over seventy — were obliged to travel around Australia from city to city, like so many horses on a merry-go-round. They are now accommodated in an angular building of concrete and glass perched on the edge of Lake Burley Griffin in Canberra. The ceiling of the main courtroom soars to the height of a seven-storey building. A stranger venturing into these august surroundings might be excused for thinking that the architect had catered for the possibility that God himself might decide to take part.

It was here that the Chamberlains’ final appeal began on 28 November 1983. This time, the legal arguments were confined to five days. They ranged over much the same ground as they had in the Federal Court, but the High Court judges were not bound by the earlier decision that had tied the hands of their judicial colleagues, and McHugh urged them to set the verdict aside on the ground that it was unsafe or unsatisfactory.

McHugh also challenged the proposition that the scientific disputes could not be effectively re-examined on appeal. It was not good enough, he suggested, to simply say that the jury had been entitled to consider such factors as the demeanour of the witnesses and the manner in which the evidence had been presented, and to apply common sense and judgement. The obvious problem was that the difficult theoretical issues might elude the jurors, leaving them to rely upon superficial matters of appearance and confidence. As McHugh put it, ‘Einstein might have had some trouble if he was trying to validate some of his theories as opposed to some slick professional witness who was used to giving evidence and was dogmatic and well-groomed and well-assured.’

It can be an interesting experience appearing before the High Court of Australia. The process may seem not too dissimilar to a private being simultaneously interrogated by five generals. Barker did not have an easy time of it. The questions were coming thick and fast. In the Chamberlain camp, hopes began to rise. There was no longer any suggestion of ‘kicking goals by moonlight’. The game was still very much alive.

When the court finally announced its decision on 22 February 1984, the five judges delivered four separate judgments.

Sir Gerald Brennan decided the matter upon the basis that the question was one for the jury and that an appellate court could not intervene:

In my opinion, this was a case where the question of ‘guilty’ or ‘not guilty’ turned entirely upon what evidence was accepted and what was rejected. That was pre-eminently a question for the jury and the jury alone. An appellate court possesses no superior ability to decide whether facts should or should not be found when they are facts of the kind upon which the verdict in this case depended or, in the circumstances of this case, to decide whether or not an inference of guilt should be drawn. In my opinion, as there was evidence before the jury which entitled it to find Mr and Mrs Chamberlain guilty of the crimes charged against them, and as there was no error of law affecting the conduct of the trial, there was no ground for interfering with the jury’s verdicts and the Federal Court was right to dismiss the appeal.

In a joint judgment, Sir Harry Gibbs and Sir Anthony Mason approached the matter somewhat differently. They stressed that an appellate court should not ‘usurp the function of the jury and disturb a verdict of conviction simply because it disagrees with the jury’s conclusions’. Nonetheless, they accepted McHugh’s argument that a verdict could be set aside if it was ‘unsafe or dangerous and that the jury should have entertained a reasonable doubt.’ They then embarked upon an examination of the evidence.

So far as the presence of foetal blood was concerned, they agreed with the view taken by Jenkinson in the Federal Court:

We do not doubt that if the question was whether there was evidence to support a finding that the blood in the car was foetal blood, the question should be answered in the affirmative. But when the question is asked whether such a finding could safely be made, it seems to us that the answer must be in the negative. The conflicting evidence should have raised a doubt in a reasonable mind ...

They also referred to ‘some obstacles to the acceptance of the Crown case’: Mrs Lowe’s evidence that she heard the baby cry and that she had heard Michael say that he had also heard it; the complete absence of motive or explanation for the crime; the position of Aidan in or near the tent; the fact that there was little opportunity available to Mrs Chamberlain to clean the blood from her hands or clothing; the difficulty of disposing of the body; the tracks suggesting that something like a knitted garment had been dragged or carried by an animal; and ‘the difficulty of understanding why Mr or Mrs Chamberlain, assuming their guilt, would have taken the risk of exhuming the body and leaving the clothes where they might be found’. These matters were undeniably important and ‘were such that they must have raised doubts in the mind of a reasonable jury’. However, in their opinion, ‘the other evidence in the case was sufficient to remove the doubts’.

That evidence included the condition of the baby’s clothing when it was found, the quantity and the position of the blood in the tent and car, and the presence of the tufts of fabric in the car and the camera bag. They concluded that:

[N]one of these facts, regarded in isolation, would have entitled the jury to infer that Azaria had been murdered or that Mrs Chamberlain was responsible for the murder. When the evidence of all these matters is considered together, however, its probative force is greatly increased. When, in addition, one considers the evidence as to the presence of the blood on Mrs Chamberlain’s tracksuit and track shoes, the presence of the tufts and the conduct of the accused, including their statements which the jury were entitled to regard as false, the evidence as a whole entitled the jury safely to reject the hypothesis that the baby was removed from the tent by a dingo, and to be satisfied that the baby’s throat had been cut in the car by Mrs Chamberlain.

Mr Justice Murphy disagreed strongly, observing:

The error in this approach is that the jury’s view of the exculpatory evidence may well have been taken in the light of their acceptance of the scientific evidence as reliable, an acceptance contributed to by the trial judge’s summing up. Likewise with other adverse conclusions, and the finding of guilt itself. If, in accordance with the directions, the jury accepted the evidence that the blood was foetal, it was irresistible that they should then disbelieve Mrs Chamberlain and the other evidence pointing to her innocence ...

Once it is accepted that it was unsafe to conclude that there was foetal blood in the car, then the conviction of Mrs Chamberlain was unsafe ...

Not only for that reason, but because I am of the firm view that the rational hypothesis advanced by the defence was not excluded beyond reasonable doubt and that the presumption of innocence was not displaced, Mrs Chamberlain is entitled to a judgment of acquittal.

Sir William Dean said that the safeguard provided by trial by jury was not dependent upon any assumption of the infallibility of the verdict of a jury, and that it ‘would be foolish to deny that a jury may be prejudiced, perverse, or wrong’. His analysis of the case was revealing:

I have found the question whether the evidence failed to establish beyond reasonable doubt that Mrs Chamberlain murdered Azaria a difficult one. As the judgments in the Federal Court demonstrate, the circumstantial evidence against her was strong. There is much about the defence story of a dingo that strikes me as far-fetched. The Crown case against Mrs Chamberlain was, however, neither comprehensive nor, in itself, impregnable. The body of the alleged victim was never found. The evidence established no motive for the alleged murder; to the contrary, it was to the effect that Mrs Chamberlain was the loving mother of a normal child. Indeed, it would seem fair to comment that the Crown case was ... directed more to destroying Mrs Chamberlain’s defence of the dingo than to positively establishing her guilt. Much of the material upon which the Crown relied — camera bag, scissors, bloodstains on the tracksuit pants — was directly or indirectly volunteered by the Chamberlains. The evidence led by the Crown supported much of the Chamberlains’ own account of the context in which the attack on Azaria occurred: it established that Mrs Chamberlain was engaged in conversation at the barbecue area; that she was nursing Azaria ‘with a new mum glow about her’; that she left the area to put a sleeping Azaria to bed; that, within minutes, she returned to the barbecue area showing no sign of distress; that when she left and when she returned she was accompanied by Aidan, who was, apparently, also behaving quite normally; that when she returned she had a can of food in her hand for Aidan; that Mr Chamberlain — who was not suggested to have been other than an accessory after the fact — made a comment about Azaria crying; that Aidan, in subsequent conversations that evening, indicated that he believed his mother’s assertion that Azaria had been taken by a dingo. In that context the Crown case ... strikes me as being, in its own less spectacular way, almost as unlikely as is the story of the dingo. And there remains the clear evidence that the baby was heard to cry after, according to the Crown case, she was dead.

He referred to Mr Justice Jenkinson’s view that human intervention could not explain the damage to the clothes because there was no apparent motive for anyone to have intervened, but said that, ‘in this case of the bizarre’, he could not be satisfied of this. He concluded that the evidence did not establish beyond reasonable doubt that either of the Chamberlains had been guilty.

Four of the five judges had found that the jury should have entertained a reasonable doubt about whether foetal haemoglobin had been in the car. Yet, in the end, the Chamberlains had lost by the barest margin: three to two.