32

And so it went on

ON MONDAY 25 MAY 1987, Morling called upon the administrator of the Northern Territory to present him with a copy of his report. The Commonwealth had agreed to withhold publication until it had been tabled in the Northern Territory parliament. The government announced that this would occur on 11 June; but when it was realised that this would be Azaria’s birthday, it was brought forward by two days.

One might have thought that the Chamberlains would have been immediately informed of Morling’s conclusions, if not his reasons. They had endured great hardship and strain throughout the previous seven years. Another family in a similar predicament might have been able to change cities and start again, but their names and faces were known throughout Australia, and there was no escape for them. The case had gone well, and they were optimistic, but there was still the nagging fear that the truth might again be shrouded in the swirling mists of expert opinion. Common decency surely demanded that they be liberated from the agony of suspense at the earliest possible opportunity, but representations for an advance copy of the report were rejected; they were told only that they could come to Sydney and be ‘locked up’ with the report two hours before it was tabled, and that this could not occur any earlier because the report had to be printed.

Within a week, the general nature of Morling’s findings had been leaked to a Sydney journalist and announced on Channel 9 television. This provoked outraged threats of prosecution. Bob Collins then called for the report to be tabled on the first day of the next session of parliament rather than a week later, and the impossible was achieved: the reports were printed in time to be tabled on 2 June 1987. Stuart Tipple was allowed in to read it at 9.00 a.m., but the press again had priority: journalists were admitted an hour earlier.

In tabling the report, the attorney-general referred to Mr Justice Morling’s conclusion and commented: ‘Mr Speaker, the finding is that the Chamberlains would not be convicted beyond reasonable doubt on the basis of the evidence which is now available. Accordingly, the government has advised the Administrator that each should be pardoned, and he signed orders to that effect this morning.’

The report was received with sympathy in many quarters. Many fair-minded people were prepared to admit that they might have been wrong. Some were even moved to publicly express regret for the manner in which they had judged the Chamberlains. But this response was by no means universal. Television stations reporting the Northern Territory’s decision to pardon the Chamberlains were besieged by telephone calls from people insisting that, no matter what new evidence might have come to light, the Chamberlains must have been guilty. And this response was echoed throughout the country. It quickly became obvious that the beliefs of many people had become so entrenched that facts were impotent to dislodge them.

Some clung to rumours that had been thoroughly investigated and proven to be false years earlier. Even now, I occasionally hear someone talking about the name Azaria meaning ‘sacrifice in the wilderness’, or some other wholly misconceived nonsense that in their minds ‘proved’ that Lindy had murdered her baby. Others dogmatically asserted that Morling was wrong.

When an earlier version of this book was published in 1987, I was invited to answer questions on talkback radio about the then recent exoneration of Lindy and Michael Chamberlain. One caller began by announcing that he was an ‘old bushie’, and said that I couldn’t tell him that a dingo had gone in and out of a tent without leaving tracks. I told him that the dingo had left tracks. ‘Oh yeah?’ he scoffed. ‘Who saw them?’ I explained that they had been seen by many people, including the chief ranger, his deputy, the local police, a number of searchers, several Aboriginal trackers, and two more senior police officers who had arrived early on the morning after the baby’s disappearance. ‘Well, you’ll never convince me!’ he rejoined stoutly.

Despite my exchange with this irascible character, I still thought that most people would accept that the Chamberlains were innocent when the truth had been revealed by such a thorough judicial enquiry. This assumption was short-lived. On the following day, a senior journalist interviewed me about the case. She began by telling me that there was a ground rule for the interview: ‘As far as I am concerned, that bitch is guilty, and I don’t want to know I’m wrong.’

Then there were those who seemed to accept reluctantly that Lindy might have been innocent, but whose animosity towards her remained. Another radio interview began with the aggressive challenge, ‘Look, whether she was guilty or not, you’ve got to admit the taxpayers would be ten million dollars better off if she’d kept the kid in Mt Isa!’

Both Lindy and Michael had protested that they wanted to have their convictions quashed, and the Northern Territory Government agreed to amend the Criminal Code to enable the case to be referred to the Supreme Court. They assumed that this would be done by consent but, when the matter was listed for hearing, counsel for the attorney-general announced that Morling’s findings would be challenged. The court made an order requiring the provision of written submissions, and adjourned the proceedings for oral argument at a later date. Judgment was finally given on 15 September 1988.

The main judgment was delivered by Justice Nader. He began by citing the relevant provision of the Criminal Code and explained that:

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.

The attorney-general had previously made the point that, whilst Morling had found that there was a reasonable doubt about the Chamberlains’ guilt, he had not specifically found that they were innocent or that a dingo had taken the child. However, the judge went on to explain that:

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 categorize that doubt as a grave doubt.

This was as far as the law and judicial protocol permitted. Lingering scepticism based upon Morling’s failure to expressly find the Chamberlains innocent had been misconceived. If a videotape of the dingo taking the baby had been produced, the finding could have been no different.

Chief Justice Asche and Justice Kearney both agreed with this judgement, with the chief justice adding that:

[T]he 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 … to my mind [the Commissioner’s findings] 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 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 [rather than leaving the verdict to the jury]. That is a matter which individual judges might consider debatable on the whole of the evidence. But ... I am satisfied that the verdict is, by reason of the new material examined by the Commissioner, both unsafe and unsatisfactory.

In February 1986, the attorney-general had agreed that, as ‘a matter of principle’, people who had been wrongly convicted should be compensated. But the Northern Territory government proved remarkably reluctant to apply this principle to the Chamberlains. They did receive compensation, but not until 25 May 1992 — fully five years after they had been effectively exonerated by Morling’s report. The total amount they shared was reported to have been $1.3 million but much of that went to the Seventh Day Adventist Church, which had advanced massive sums for legal fees. A further payment by the government for this purpose had been woefully inadequate and, even with the contribution from the Chamberlains’ own compensation, the church wrote off a substantial amount. It is true that Lindy, at least, also received some fees for interviews, but neither of them emerged from this harrowing saga wealthy.

There was a further legal postscript in 1995 when the Chamberlains’ understandable desire to correct the record concerning Azaria’s death led to a third inquest. It was a ‘paper inquest’ rather than one involving a full hearing of the evidence, and the coroner quoted some passages from Morling’s report. He was not satisfied on the balance of probabilities that the baby had died at the hands of Lindy, or that Michael had any involvement in her death; but, having regard for what he apparently thought was the inherent unlikelihood of a dingo attacking a child in such a manner, returned an ‘open finding’. I thought that the evidence led at the royal commission had been compelling. But, as the coroner pointed out, Morling had not made a specific finding that Azaria had been taken by a dingo.

In any event, evidence of dingo attacks continued to mount, and the Chamberlains were determined people. In 2003, a study by Beckman & Savage evaluating ‘dingo education strategy and programs’ for Fraser Island in Queensland revealed that between 1996 and 2001 there had been 279 ‘incidents’, 39 of which had been ‘major’ and one of which had been ‘catastrophic’. Education materials relating to dingoes had been provided since 1989, and a ‘Be Dingo Smart! ‘campaign between 1998 and 2000 had led to some reduction in the incidence of attacks, but the incident described as ‘catastrophic’ occurred in 2001 when two dingoes killed a nine-year-old boy. The report also referred to another ‘recent’ incident when two dingoes had killed a young horse. And the attacks continued. As recently as January 2011, a woman was surrounded and bitten repeatedly by a dingo pack.

A fourth inquest began on 24 February 2012, before Ms Elizabeth Morris SM. On this occasion, counsel assisting the coroner, Rex Wilde QC, told the court that, ‘Even the evidence that existed back in 1995 was already balanced in the favour of a dingo attack.’ New evidence had since been provided of further attacks, almost all of which occurred after the third inquest, which demonstrated that there had not been an inherent unlikelihood of such an attack, as the third coroner had thought. Wilde described how other children — including a five-year-old girl who had suffered gaping wounds to her eyes, ears, throat, arms, chest, and legs — had been bitten by dingos. And at least two more had died since the tragic death of the nine-year-old boy on Fraser island in 2001. In December 2005, a two-year-old girl in New South Wales had died from from blood loss and shock from cranio-cervical injury; and in December 2005, a 22-month-old girl in Victoria had died of chronic respiratory failure at least partially attributable to blood loss. Both deaths had occurred after attacks by dingo cross-breeds.

The coroner handed down her findings on 12 June 2012 and, like her predecessor, Dennis Barritt SM, who who had presided over the first inquest, she permitted them to be broadcast live. She reviewed the findings of the royal commission and cited crucial aspects of the case, including Mrs Lowe’s evidence of hearing a baby cry from the tent, the account given by both Mr and Mrs West of hearing the growl from the direction of the Chamberlain’s tent just before they heard Lindy cry out, the evidence concerning the tracks and the cloth imprints in the sand, and the fact that Azaria’s blood had been found inside the tent.

She then continued: ‘In considering now all of the evidence, I am satisfied that the evidence is sufficiently adequate, clear, cogent and exact, and that the evidence excludes all other reasonable possibilities, to find that what occurred on 17 August 1980 was that shortly after Mrs Chamberlain placed Azaria in the tent, a dingo or dingoes entered the tent, took Azaria and carried and dragged her from the immediate area.’ The findings as to her death were succinct:

• Azaria Chamberlain died at Uluru, then known as Ayers Rock, on 17 August 1980.

• The cause of her death was as the result of being attacked and taken by a dingo.

And like Barritt, she concluded with a note of humanity. She said: ‘Mr and Mrs Chamberlain, Aidan and your extended families, please accept my sincere sympathy over the death of your dear and loved daughter Azaria.’

More than 31 years after Barritt had effectively exonerated the Chamberlains, his most crucial finding had at last been restored. And, again, it was a bittersweet moment. The pain of their daughter’s death had been rekindled, and they knew that some people would never admit that they might have been wrong. No court could guarantee that the climate of suspicion and hostility had been forever dispelled. But the truth had been revealed; there was now an authoritative pronouncement that a dingo had taken their baby daughter, and the coroner had arranged for amended death certificates to be issued. The record has been be corrected, and is there for any fair-minded person to see. Future generations will know that Lindy and Michael had been innocent people who had suffered the tragic loss of a beloved child and had then fallen victim to our system of justice. Of course, the years cannot be rolled back, nor the trauma retrospectively erased; there may be lingering pain and regret whilst ever they and perhaps their children live. But they now have the satisfaction of this terribly belated vindication, and perhaps will be free to find the peace so long denied them.

No one could fairly describe the Chamberlains as lucky people. Mothers had been putting their babies to sleep in tents for countless centuries, yet Lindy had lost her baby from a tent erected in a government-run camping area in a country substantially free of natural predators. And whilst there had been sympathy and emotional support from many people, so many had reacted with suspicion and hostility, if not hatred. The spate of vicious rumours and her arrest, trial, conviction, and imprisonment had all been the product of misconceptions, prejudice, and scientific errors. The consequences had been devastating. Lindy had been imprisoned for more than three years, and the whole family had been forced to endure great emotional hardship. It had taken a heavy toll on them all.

Yet their God of mercy had permitted fortune to smile upon them in ways that were later to prove significant. A number of people who had flocked to comfort them or to take part in the searches for their baby were to prove impressive witnesses. Had the Chamberlains been camping alone or amongst people who were as vague about detail and prone to confusion as most of us, their position, even before the royal commission, would have been more precarious. The Chamberlains were also fortunate in having the support of the Seventh Day Adventist Church. The church provided them with a home at Cooranbong in the midst of a community of people willing to offer them not only shelter, but also protection and comfort. They may have felt like refugees in their own country, but at least they had a place of refuge. Even after their convictions, the church continued to demonstrate its faith in the Chamberlains by advancing them hundreds of thousands of dollars for legal fees and other expenses. The church had borne some of their ignominy, but remained willing to share their burdens.

The Chamberlains were also fortunate in having so many people from varying walks of life prepared to champion their cause. The much-maligned Professor Boettcher had been willing to sacrifice much of his academic career to a cause he believed to be just. Bob Collins had been prepared to speak out on their behalf in the face of a mounting storm of criticism, not only from his political opponents, but from his own party. He was ultimately asked to resign as leader of the Northern Territory Labor Party because his colleagues perceived that his decision to champion the cause of the Chamberlains had been ‘electorally damaging’. And he admitted that they were right; the hostility towards the Chamberlains was so great that no one who constantly defended them could expect to be elected as chief minister. Smith and Chapman, the Sanitarium health-food scientists who demonstrated that the under-dash spray was made of sound-deadening material, and that dingoes’ teeth could produce tufts, decided to ‘take on’ the scientific establishment only because of their faith in the Chamberlains. And there were others, such as Betty Hocking, Guy Boyd, and Sir Reginald Sholl, who campaigned vigorously on their behalf.

What if all this support had not been available to them? What if they had merely been a normal couple, unable to capture public sympathy or imagination, and unable to find any financial support for the immense legal battles to come? Even with all these advantages, the normal processes of our law failed the Chamberlains. It was only by the exertion of immense public pressure that they were able to obtain a judicial inquiry and, ultimately, public exoneration. Without this support, the scientific evidence led by the Crown would probably not have been adequately challenged, and the Chamberlains would have remained convicted after a trial that had apparently left little doubt of their guilt. Thereafter, any appeal would have been doomed to failure, and there would have been none of the scientific investigation or public pressure that led to the decision to appoint a royal commission. Lindy might have been left to languish in prison for the balance of her life sentence, and the pall of guilt would have remained over this young family.

Such has been the fate of others who have had to sit in a cell, year after year, hoping that the truth would eventually be revealed. At the time of Azaria’s disappearance, a man named ‘Ziggy’ Pohl had already been doing that for seven years. He had been convicted of murdering his wife, and was to serve more than a decade in prison. Like the Chamberlains, he had been convicted on the basis of circumstantial evidence and, like them, he had protested his innocence in vain. His appeal had been dismissed, substantially on the grounds that the murder had occurred in his home within a narrow time frame during which he could have been present, and that someone had later altered the condition of the house, apparently to conceal evidence. Hence, in the words of the Court of Criminal Appeal, ‘the possibility of a casual intruder being the killer is rationally excluded’. In fact, the casual intruder so rationally excluded was to walk into a police station 17 years later and confess that he had killed Pohl’s wife. Pohl was finally exonerated, and the real killer was sent to prison.

Of course, there have been other noted miscarriages of justice, both before and since the Chamberlain trial — and even these are probably just the tip of the forensic iceberg — but, as I mentioned in The Quest for Justice, there were interesting postscripts to this case. In 2006, a summary of the evidence was reviewed by 78 undergraduates attending a law class, after which 59 per cent of them found Mr Pohl guilty. A similar review undertaken by 108 schoolteachers examining the same summary of the evidence resulted in 60 per cent finding him guilty. This suggests that Pohl did not simply fall prey to a group of unusually cynical or judgemental jurors; most people in their position would have delivered the same verdict. A web of apparently suspicious circumstances may condemn the innocent, even after a fair trial.

This risk arises not only when people act improperly or even negligently. Even the most fair-minded witnesses can be honestly mistaken, and some procedures intended to avoid mistakes may, paradoxically, give rise to further risks. For example, the use of identification parades or boards containing photos of several different people is undoubtedly more fair than the former practice of simply asking someone whether the person in the dock was the culprit — but even these innovations may lead the witness to subconsciously associate any vaguely familiar face with the crime. It is easy to assume the worst, easy to scoff at protestations of innocence, and easy to condemn. And, despite the aura of infallibility generated by television programs such as CSI, inferences drawn from scientific tests may sometimes be misleading.

Then, when an injustice is finally revealed, there is often a quest to find someone responsible. The police may be accused, if not of fabrication, then of having conducted a biased or incompetent investigation. If the scientific evidence is proved to have been misleading, there may be a shocked demand for someone’s head to roll. And there are some cases in which serious misconduct or incompetence is revealed, but it would be unrealistic to expect every police detective to have the deductive genius and objectivity of a real-life Sherlock Holmes, and every forensic scientist to be worthy of a Nobel Prize. It may be tempting to react to instances of injustice by asking ‘Who was to blame?’ But that may merely distract one from a more important point.

Whilst some investigations are not undertaken with a sufficiently open mind or due rigour, serious errors can occur merely because something was overlooked or unknown. (To take but one example from the Chamberlain case, who would have suspected that a chemical used as a screening test for blood would give a similar reaction when applied to copper dust?) Scientists, like Mrs Kuhl, can scarcely be criticised for acting on accepted dogma or following standard procedures used in their laboratories, even if these are subsequently shown to have been inadequate. And the reliability of their conclusions is often dependent on matters outside their control, such as the manner in which the items submitted to them have been handled, stored, and identified.

The barristers who prosecute and defend such cases also vary widely in experience and ability. And juries — a lucky dip of people, as we have seen, with no requisite qualifications other than adulthood and the absence of a criminal record — may be ill equipped to resolve disputes between experts in esoteric disciplines. Serious mistakes can be made, and injustices caused, without substantial fault on anyone’s part.

Morling did not accept that the nature of the police investigation had prejudiced the Chamberlain’s trial; the potential for injustice had arisen from ‘deficiencies in the scientific evidence’. In fact, errors or misconceptions had occurred in no less than five scientific disciplines. As Chester Porter has recently remarked, ‘There never was a case with so much forensic evidence which was just plain wrong.’ And much of the problem was clearly attributable to the combination of unusual circumstances and the need for scientists to grapple with issues they had not previously encountered.

There have been considerable advances in forensic science since the Chamberlain trial. Most notably, the development of DNA technology has rendered substantially obsolete most of the testing regime which was relied upon by Mrs Kuhl and others. There has also been an increased focus on the need for uniform standards. Morling was not the first to recommend the establishment of a national forensic-science body, but the revelations in his report finally provided the necessary catalyst, and the National Institute of Forensic Science commenced operations in February 1992. The inaugural chairman of the institute’s Board of Control was the Hon John Phillips QC, who had acted for the Chamberlains at their trial. The establishment of the institute was clearly a significant step, but is not a panacea for all forensic ills. It will certainly strengthen the arm of forensic scientists and others in their quest for truth, but it should also be seen as a reflection of a continuing need for vigilance in protecting the rights of those who might be innocent.

Unfortunately, our politicians seem to have remained largely deaf to the note of caution that this case should have left ringing in the ears of all those concerned with the administration of criminal justice. Too many have seen votes in simplistic slogans about being ‘tough on crime’. Procedural safeguards enjoyed by earlier generations have been progressively diminished rather than enhanced, and we have seen a spate of new laws intended to introduce such evils as guilt by association and reliance upon ‘criminal intelligence’ — sometimes a euphemism for unsubstantiated rumours.

The traditional rights that protect people from the risk of wrongful conviction are not unnecessary anachronisms. Nor do they reflect a weak-kneed preoccupation with pandering to criminals. At the end of the day, we are all equal before the law. People who support legislation intended to whittle away the rights of suspected criminals often seem unable to understand that such laws also take away the rights of our children, our husbands and wives, our friends, and our neighbours. It may be comforting to imagine that if we do nothing wrong, we will have nothing to fear; but, as Lindy and Michael Chamberlain can attest, this can be a dangerous misconception. The finger of suspicion can fall on anyone. I once acted for a senior police officer who had railed against some of the procedural rules intended to protect people like those he arrested, but who had a change of view akin to St Paul’s experience on the road to Damascus when the tables were turned and he was wrongly accused himself. That is the problem with the ‘head in the sand’ approach urged upon us by those who would jettison long-standing principles that have undergirded our rights and freedoms for generations; we never know which of us might become the next Lindy Chamberlain.

As this case graphically demonstrated, our legal system is not perfect. The guilty may sometimes go free; the innocent may sometimes be condemned. But the oft-embraced mantra of toughness is not an adequate substitute for fairness and effectiveness. We need to be alert to the political opportunism and even hypocrisy underlying some of the clamour to take away legal safeguards, and to recognise that the problems said to justify such draconian measures are almost invariably due to inadequate investigations or a failure to effectively apply existing laws. We Australians pride ourselves on our fairness, a quality the Chamberlains would doubtless express in the ‘golden rule’: do unto others as you would have them do unto you. Yet it is increasingly denied to some.

At the time of writing, another mother is in a cell. She has not been convicted of any offence, and is being held only because she is a non-citizen subject to an adverse security report. Her husband and friends insist that she is a person of good character, and she had been accepted as a genuine refugee. Her children are understandably distraught. Yet she may be detained indefinitely on the suspicion of a nameless bureaucrat — perhaps even for the rest of her life. She has no right to a hearing of any kind, and no right of appeal. Our law does not require the government to even tell her the nature of ASIO’s fears, or the grounds for suspicion. If her incarceration is all due to some misunderstanding, it is one she is unable to correct. And, incredibly, we are told that the very criteria used for such assessments must also remain secret. If she has any consolation, it is that she is not alone; there are about 50 others in a similar predicament. Of course, all this violates international law, but we do not care.

Immediately after the fourth inquest confirmed that Azaria had been taken by a dingo, a prominent Australian comedian promptly published an apology, admitting that she had carried a ‘burning stick’ in the witch hunt against this mother accused of killing her baby. ‘What was I thinking?’ she wrote. ‘Such was the firestorm of hatred, all rationality was lost.’ Many of us may one day look back with a similar mixture of wonderment and regret.

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