REFERENCE UNDER s.433A OF THE CRIMINAL CODE BY THE ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA OF CONVICTIONS OF ALICE LYNNE CHAMBERLAIN AND MICHAEL LEIGH CHAMBERLAIN No. CA2 of 1988 Courts and Judges - Criminal Law - Statute

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REFERENCE UNDER s.433A OF THE CRIMINAL CODE BY THE ATTORNEY-GENERAL FOR THE      
NORTHERN TERRITORY OF AUSTRALIA OF CONVICTIONS OF ALICE LYNNE CHAMBERLAIN AND
MICHAEL LEIGH CHAMBERLAIN
No. CA2 of 1988
Courts and Judges - Criminal Law - Statute
COURT
IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA
Asche C.J.(1), Nader(2) and Kearney(3) JJ.

CWDS
  Courts and Judges - Role of appellate court under Criminal Code s.433A -
role of criminal court in trial.
  Criminal Law - reference under Criminal Code s.433A(1) - fresh evidence -
approach to quashing of conviction - degree to which appellate court must be
satisfied of miscarriage of justice.
  Criminal Law - reference under Criminal Code s.433A(1) - when factual
findings of Commission of Inquiry may be adopted - relevant considerations.
  Criminal Law - significance of verdict of "not guilty" - effect of
presumption of innocence - role of criminal and appellate courts.
  Statute - Criminal Code s.433A - origins.
  Cases applied:
    Chamberlain v The Queen (No. 2) (1983-84) 153 CLR 521
    Ratten v The Queen (1974) 131 CLR 510
  Cases referred to:
    Craig v The King (1933) 49 CLR 429
  Counsel for the Attorney-General   : M.F. Adams QC,
                                       E.L. Fullerton
  Solicitor for the Attorney-General : Solicitor for the NT
  Counsel for the Chamberlains       : J.S. Winneke QC,
                                       R.G. Kaye
  Solicitor for the Chamberlains     : Brennan Blair and
                                       Tipple

HRNG
DARWIN
#DATE 15:9:1988

ORDER
  1.  Conviction of Alice Lynne Chamberlain on 29 October 1982 of murder of
Azaria Chamberlain quashed, and verdict and judgment of acquittal entered.
  2.  Conviction of Michael Leigh Chamberlain on 29 October 1982 as accessory
after the fact to murder of Azaria Chamberlain quashed, and verdict and
judgment of acquittal entered.

JUDGE1
  I agree with the reasons of His Honour Nader J.
2.  I wish to add these short observations.  By s.433A(1) of the Code -
      "... where a person has been convicted of a
    crime or an indictable offence and the prerogative of
    mercy has been extended to the person in respect of that
    conviction, the Attorney-General may, at the request of
    the convicted person if the Attorney-General is
    satisfied it is in the interests of justice so to do,
    refer the case to the Court to consider or again
    consider whether the conviction should be quashed and a
    judgment and verdict of acquittal entered".
3.  By sub-sections (4), (5) and (6) of s.433A the Court is given powers
greater than would normally be allowed to a Court of Criminal Appeal under s.
410 of the Code. Sub-section (5), for instance, which allows the Court to
dispense with the rules of evidence and "inform itself in such matters as it
sees fit" would seem a clear departure from the traditional adversary process
and vests the Court with inquisitorial powers i.e., power to make its own
investigations irrespective of evidentiary rules or the way in which the case
may be presented or argued by the Attorney-General or by such parties as the
Court may give leave to appear pursuant to sub-section (3).  I see great
difficulties in a procedure which allows the Court to become some sort of
investigative tribunal gathering its own material.  The proper role for a
Court in this country as in any country governed by the common law system is
to keep above the conflict and rule only upon such material as may properly be
produced by parties properly interested in a particular dispute.  I
acknowledge that this section could apply only in exceptional cases; but
exceptional cases may become precedents for extension of powers to less
exceptional cases and I would not wish this process to be later justified
because the Court had previously accepted it without protest; and I make that
protest now.
4.  However this Court takes the view that it is not necessary or proper to
indulge in that procedure in this case because it is given the power to
receive in evidence, or adopt to such extent as it sees fit, the report of the
Commission of Inquiry.  That in itself is a departure from the normal
functions of a Court of Criminal Appeal because much of the material the
Commissioner received might not ordinarily have been admissible before a Court
of Criminal Appeal.  But the Commission has obviously been conducted fairly in
accordance with the rules of natural justice; and the Commissioner is a judge
of the Federal Court with a high, and if I may say so with respect, eminently
deserved reputation.  It is therefore only sensible to give great weight to
the findings and conclusions of the Commission. That is not to say that the
Court must necessarily adopt those findings without exercising its own
discretion. Indeed counsel for the Attorney-General has submitted that in some
measure we should differ from them.  I would concede that in a report which
goes into great detail it would be strange if one agreed totally with
everything that the Commissioner said.  That is not to the point provided that
the substance of the Commissioner's findings and conclusions are acceptable;
and to my mind they provide ample basis to conclude, on the new material
investigated with such great thoroughness and care by the Commissioner, that
the result of the original trial is now attended with sufficient doubt to
justify this Court, on that material, in quashing the convictions.
5.  I would not therefore agree with the submissions on behalf of the
Attorney-General that we should so substantially differ from the findings of
the Commissioner as to conclude that the material he relies on is not
sufficient to support the conclusion at p 342 of the report that "there are
serious doubts and questions as to the Chamberlain's guilt".  That conclusion
is clearly open to the Commissioner and in my view follows from the material
he has assessed.  In those circumstances the only way in which this Court
could challenge that conclusion would be to examine anew the whole of the
material before the Commissioner including in that exercise the calling of
witnesses. Having regard to the view I have just expressed that the conclusion
expressed by the Commissioner is appropriate on the material before him that
would be a fruitless and unjustified exercise.
6.  I might not, with respect, agree that, if the evidence before the
Commission had been given at the trial, the trial judge would have been
obliged to direct an acquittal.  That is a matter which individual judges
might consider debatable on the whole of the evidence. But "a Court of
Criminal Appeal may interfere with a verdict which is unsafe or unsatisfactory
even if there is sufficient evidence to support it as a matter of law"; see
Chamberlain v The Queen (No. 2) (1983-84) 153 CLR 521 at 531 (per Gibbs C.J.
and Mason J.).  I am satisfied that the verdict is, by reason of the new
material examined by the Commissioner, both unsafe and unsatisfactory.
7.  It must be emphasised that the conclusion this Court has reached proceeds
on the basis of the fresh evidence investigated by the Commissioner.  There is
not and cannot be a finding that the jury in the original trial could not have
come to the verdict it did on the evidence before it.  That question has been
conclusively decided by the High Court which, by majority, ruled in
Chamberlain v The Queen (No. 2) (supra) that on the evidence then presented
the verdict was one open to the jury and was not unsafe or unsatisfactory.
(See the judgment of Gibbs C.J. and Mason J. at p 569).  Nor am I prepared to
find, as the submissions on behalf of the Chamberlains invite me to find, that
the Report of the Commissioner "constitutes a thorough condemnation of the
case made by the Crown against the Chamberlains at their trial"; nor do I
accept comments such as appear in p  8 of that submission about the "highly
contrived and improbable nature of the Crown case".  In my view such
criticisms as the Commissioner makes about the presentation of the Crown case
fall far short of this. It must be remembered that the case was conducted
before a highly experienced and respected Judge whose fairness during the
trial has never been called into question; and counsel for the Chamberlains
were counsel of great repute and ability.
8.  In those circumstances it is most unlikely that a "highly contrived and
improbable case", would have got to the jury; or that counsel for the defence
did not apply all their considerable ability in properly attacking any
weaknesses in the Crown case as presented.
9.  Although this case has been subject to enormous media attention and
although s.433A is an extension of the usual powers and functions of a Court
of Criminal Appeal, essentially this Court has indulged in an exercise not
greatly different from that frequently asked of a Court of Criminal Appeal;
that is, to determine on fresh evidence, if that evidence is allowed on the
appeal, whether it would in the circumstances be unsafe to permit a verdict to
stand. Courts of Criminal Appeal throughout Australia have so ruled on many
occasions; and will continue to do so whenever circumstances warrant it.  That
is in no way a criticism of the jury system but rather a guarantee that in
appropriate cases and on evidence not before a jury a sufficient doubt is
raised to justify quashing of the verdict.  If a verdict of guilty is quashed,
then, as Nader J. has pointed out in his reasons, the person previously
convicted is entitled to the presumption of innocence with which the law
clothes all persons unless and until their guilt has been proved beyond
reasonable doubt.

JUDGE2
  This is a Reference to the Court of Criminal Appeal of a case arising from
the convictions on 29 October 1982 of Alice Lynne Chamberlain of murder, and
of Michael Leigh Chamberlain of being an accessory after the fact to murder.
The Reference is made under section 433A of the Criminal Code (NT).  Although
the section is expressed in general terms, its enactment was occasioned solely
by the 'Chamberlain Case'.  After the publication of the report of the
Commission of Inquiry, some publicity was given to a movement to influence the
Parliament to quash the Chamberlains' convictions by legislation.  The
government, rightly, with respect, considered that such a step would be an
unwarranted intrusion by the legislature into the domain of the judiciary.
The solution devised was to enact section 433A.
2.  The Parliament has empowered the court to adopt the findings of a
'commission of inquiry': subsection 433A(6)(b).  The word 'finding' is
expressed in the singular, but that is of no moment.  Moreover, although
couched in terms of general application, as I have already said, the
particular occasion for the conferring of the power was to enable the
Chamberlain case to be referred to the court.  The provision enables the court
to make some or all of the relevant findings of a commission of inquiry its
own.  In such a case, the court does not have to generate its own findings but
may adopt those of the commission of inquiry.
3.  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.
4.  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.
5.  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.
6.  It is necessary to understand that, in referring to the findings of the
Commission, I am referring to its conclusions respecting the nature and
existence of facts. By a finding of fact, I mean a conclusion of fact together
with the more primary facts from which it may have been inferred.  A
conclusion of fact includes a conclusion that a doubt exists with respect to
the existence of a fact.  I would not adopt the Commissioner's opinions on law
or on matters of mixed fact and law, not because they may not be correct, but
because it is unacceptable that a court should abdicate to a commission of
inquiry the task of ascertaining the applicable law.
7.  Mr Winneke QC, for the Chamberlains, used many generalities and much
emotional rhetoric in his submissions. It was permissible for him to do so.
However, for my part it should be understood that acceptance of his submission
that the findings of the Commission should be adopted is not an uncritical
acceptance of his less temperate submissions. For example, he said that the
report 'exposes an extraordinary number of evidentiary irregularities which
occurred at the trial, any one of which would lead a Court of Criminal Appeal
to quash the convictions.'  Such a submission tends more to the excitement of
others than to the assistance of the court.  We were also urged by Mr Winneke
to adopt the report and the finding and decisions and the reasons therefor to
be found in the report.  Those words are taken from subsection 433A(6).  The
language of the subsection lacks precision, but I think the word 'decision' is
more apt to refer to the 'court' referred to in the subsection than to a
'commission of inquiry' like the Chamberlain Commission which, as far as I can
tell, made no 'decision' in the generally accepted meaning of the word, or any
decision different in kind from a finding.  It is enough in the present case
if the court adopts certain findings of the Commission.  The adoption of
findings includes by inference the adoption of the Commission's reasons for
those findings.
8.  I would adopt the findings of the Commission at pp 322 to 342 and the
reasons expressed therefor, with the exception of those I have enclosed in
square brackets.  For convenience of reference the text of the report
containing the adopted findings is set out hereunder:
      "There were two broad strands in
    the Crown's case against the Chamberlains.  The first
    was comprised of the evidence from which the jury were
    invited to conclude that during her short absence from
    the barbecue Mrs Chamberlain took Azaria to the front
    passenger seat of the car and cut her throat.  In this
    part of its case the Crown alleged that after the murder
    Azaria's body was initially secreted in the car and
    later the same evening buried in the sand on the nearby
    dune.  It was further alleged that the Chamberlains or
    one of them subsequently disinterred the body, removed
    the clothing and placed it where it was found, having
    first cut it so as to simulate dingo damage.  The jury
    were invited to find that Azaria's blood was not shed in
    the tent, but was transferred there on Mrs Chamberlain's
    person or clothing after the murder.
      The second strand in the Crown's case was comprised
    of the evidence from which the jury were invited to
    conclude that a dingo did not take the baby.  It was
    alleged that Mrs Chamberlain's story of having seen a
    dingo at the tent was a fabrication.  This part of the
    case depended upon the proposition that if the jury were
    satisfied beyond reasonable doubt that a dingo did not
    take Azaria, they were entitled to accept the only other
    explanation for her disappearance, which was that she
    had been murdered by her mother.
9.  The new evidence, whether in relation to the first or second strand came
for the most part from witnesses with high scientific qualifications. Most of
them have not been identified with the Chamberlains' cause.  There is no
reason to suppose that their judgment has been affected by preconceptions as
to the Chamberlains' innocence or guilt.
10.  Although it is convenient to consider the two strands in the case
separately, much of the evidence is relevant to both strands.  Of course the
jury had to consider the evidence in its entirety when reaching their
verdict.
The first strand - effect of new evidence
11.  As to the first strand, I invited counsel for the Crown to indicate a
place, other than the front seat of the car, at which the murder might have
occurred.  He was unable to suggest an alternative location but submitted that
it was not incumbent upon the Crown to specify and prove the particular place
where Azaria was killed.  I agree, but the trial was conducted upon the basis
that the child was murdered in the car.  That this was so is abundantly clear
from the Crown Prosecutor's address to the jury, reference to which is made in
Chapter 5.  In these circumstances, it would be unrealistic to think that the
jury might have concluded that Azaria was not murdered in the car, but at some
other unspecified place.
12.  The effect of the new evidence on the first strand in the Crown's case is
to leave it in considerable disarray.  The new scientific evidence casts
serious doubt on the reliability of all the findings of blood in the car.  The
evidence leads me to conclude that if there were any blood in the car, it was
present only in small quantities in the area of the hinge on the passenger's
seat and beneath.  It has not been established that any such blood was
Azaria's.  The blood shed by Mr Lenehan could well have been the source of any
blood stains in that area.  The finding most damaging to Mrs Chamberlain was
that of the alleged blood spray, such as might have come from a severed
artery, on the metal plate under the dash.  There is compelling evidence that
the spray was made up of a sound deadening compound and contained no blood at
all.
13.  The new evidence casts similar doubt on the reliability of the evidence
at the trial that there was baby's blood on some of the contents of the car.
At the trial Mrs Kuhl gave evidence that there were indications of baby's
blood on the scissors found in the console of the car.  It was virtually
conceded before me that Mrs Kuhl's tests did not confirm the presence of blood
of any kind on the scissors.  Indeed, on the evidence, it would be impossible
to find that the scissors were even in the car when it was at Ayers Rock.  The
evidence at the trial was that there was also baby's blood on a towel, a
chamois and its container found in the car and on the camera bag which had
been in the car.  I am satisfied that the presence of baby's blood or of any
blood on these articles has not been established.
14.  As the case went to the jury, they would have been entitled to find that
there was a significant quantity of blood in the car when it was examined in
1981.  However, there was general agreement between the expert witnesses who
gave evidence to the Commission that only a very small quantity of blood was
found in the car, if any was found.
15.  Taken in its entirety, the evidence falls far short of proving that there
was any blood in the car for which there was not an innocent explanation.  It
is plain that great reliance was placed by the Crown on the findings of blood.
The real dispute in this part of the case at the trial was whether the blood
came from a baby.  The question whether there was any blood in the car went
almost by default.
16.  The doubt cast by the new scientific evidence on the findings of blood is
made greater by evidence from Senior Constable Graham, who was not called at
the trial.  His failure to observe any sign of blood in the car,
notwithstanding a thorough inspection of it, lends additional weight to the
defence case on this issue.
17.  It is true, as Brennan J. observed (153 CLR at p 596) that the jury may
have rejected the scientific evidence led by the Crown to prove the allegation
that the blood found in the car came from Azaria, and yet found the
Chamberlains guilty on the other evidence and on the impression they formed of
them in the witness box.  Nevertheless, as his Honour said, if the jury were
indeed satisfied that the blood in the car was Azaria's, the guilt of the
Chamberlains was "virtually demonstrated".  If the jury did conclude that the
Chamberlains' guilt was virtually demonstrated by the scientific evidence,
that conclusion, without more, would have destroyed any chance Mrs Chamberlain
had of giving a favourable impression to the jury. Consequently, any
difficulty the Crown may have had in proving beyond a reasonable doubt that a
dingo did not take the baby was greatly diminished, if not entirely overcome.
18.  The doubt cast upon the findings of blood in the car is of more general
importance than might first appear.  It is beyond dispute that Azaria's blood
was found on some of the articles in the tent.  The Crown relied on this fact
in two ways. First, it claimed that more blood was found in the car than was
found in the tent.  Secondly, it claimed that the blood found in the tent was
transferred from the car to the tent on Mrs Chamberlain's person or clothing.
The new evidence shows that it cannot be safely concluded that more blood was
found in the car than was found in the tent. Moreover, the Crown's inability
to prove that there was any of Azaria's blood in the car leaves the hypothesis
that the blood found in the tent was transferred from the car without any
factual foundation.
19.  In the light of the new evidence, the opinion expressed by Professor
Cameron at the trial that the pattern of blood staining on the jumpsuit was
consistent only with a cut throat cannot be safely adopted, nor can it be
concluded from the pattern of blood staining on the clothing that Azaria's
throat was cut with a blade. Further, Professor Cameron's evidence that there
was an imprint of a hand in blood on the back of the jumpsuit has been
weakened, if not totally destroyed, by new evidence that a great deal of what
he thought was blood on the back of the jumpsuit was, in fact, red sand.
20.  There are other respects in which the first strand of the Crown's case is
weakened by the new scientific evidence.  The evidence at the trial led Gibbs
C.J. and Mason J. to say (153 CLR at p 567) that it could be inferred with
certainty that Azaria's clothing had been buried.  No doubt this statement was
based to a large extent on the evidence of Professor Cameron.  The new
evidence before the Commission discloses that Dr Andrew Scott, the first Crown
expert to examine the jumpsuit, did not see any indication that the clothes
had been buried.  He was not asked about the question of burial at the trial.
As I conclude elsewhere, although Azaria's clothing may have been buried, the
quantity and distribution of sand on it might well have been the result of it
being dragged through sand.
21.  Further, the evidence at the trial justified the Crown in putting to the
jury that the characteristics of most of the soil in the jumpsuit could only
be matched in soil found in certain places, that one of those places was under
bushes on the dune to the east of the Chamberlains' tent, and that this was
the most likely place of origin of the soil.  This evidence supported the
Crown's allegation that the Chamberlains buried the child somewhere on the
sand dune.  Before the Commission it became much clearer that a reasonable
match of the soil found in the jumpsuit can be found in soil under bushes
which are widespread in the sand dune country and under desert oak trees which
grow both in the dune country and on the plains at scattered points throughout
the Ayers Rock region.  Moreover, the new evidence concerning plant fragments
on the clothing is consistent with the clothed body of the baby being dragged
through low vegetation of kinds which grew in the dune country and on the
plains between the camping area and the Rock. In the light of the new
evidence, it is difficult to conceive how Azaria's clothing could have
collected the quantity and variety of plant material found upon it if it had
been merely taken from the car, buried, disinterred and later placed near the
base of the Rock. It is more consistent with the new plant and soil evidence
that Azaria's clothed body was carried and dragged by an animal from the camp
site to near the base of the Rock, rather than that it was buried on the dune
and later carried there.
22.  The matters to which I have referred are sufficient to demonstrate the
considerable disarray in which the first strand in the Crown's case is left as
a result of the new evidence.
The second strand - effect of new evidence
23.  I turn now to consider the second strand in the Crown's case, namely,
that a dingo did not take Azaria. While the new evidence is not as destructive
of this part of the Crown case, it greatly diminishes its strength.  I shall
refer briefly to some of the new evidence which produces this result.
24.  Mr Roff's evidence at the trial of having seen the tracks of a dingo
carrying a load which may have been Azaria's body is corroborated by Mr
Minyintiri.  He did not give evidence at the trial but there is no question of
his evidence being recent invention.
25.  The Crown's expert has conceded that the hairs found in the tent and on
the jumpsuit which were said at the trial to be probably cat hairs were either
dingo or dog hairs.  Dog hairs are indistinguishable from dingo hairs.  The
Chamberlains had not owned a dog for some years prior to August 1980.
26.  The evidence given at the trial by Mrs Chamberlain that she saw marks on
the space blanket is now supported by plausible new evidence.  It is
impossible to say whether the marks she claimed to have seen were made by a
dingo.  However, having regard to all the evidence there is only the most
insecure basis for the accusation made by the Crown at the trial that her
claim to have seen the marks was made only for the purpose of supporting a
false story that a dingo took Azaria.
27.  The new evidence negates some of the most cogent evidence relied upon by
the Crown at the trial to support its claim that the damage to the purple
blanket which had covered Azaria in the bassinet was caused by moths.  Mrs
Chamberlain's claim that the damage to the blanket was caused by a dingo is
more credible as a result of the new evidence.
28.  The quantity and distribution of blood in the tent has been shown to be
at least as consistent with the dingo hypothesis as it is with murder.
29.  As I have observed in dealing with the first strand of the Crown's case
it is more consistent with the new plant and soil evidence that Azaria's
clothed body was carried and dragged from the camp site to near the base of
the rock rather than that it was buried on the dune, disinterred, and later
carried there.
30.  At the trial there was no evidence from a textile expert disputing
Professor Chaikin's view that the jumpsuit was cut, probably with fairly sharp
scissors, and that the severances on the clothing were not caused by a dingo.
Professor Chaikin conceded that the opinion he expressed at the trial that
dingoes do not produce tufts when they sever fabric with their teeth was
erroneous. The professor said at the trial that the presence of such tufts on
Azaria's jumpsuit was "the strongest evidence" that it had been cut.  From the
great volume of new expert evidence as to the possible causes of the damage to
Azaria's clothing it cannot be concluded beyond reasonable doubt that the
damage to it was caused by scissors or a knife, or that it was not caused by
the teeth of a canid.
31.  There is no reason to doubt that when Azaria disappeared she was wearing
the matinee jacket discovered in 1986.  The jacket would have covered much of
the jumpsuit worn by the child.  The failure to detect dingo saliva on the
jumpsuit is made more explicable than it was at the trial.
32.  There was more evidence before the Commission than was before the jury as
to the ability of a dingo to remove Azaria from her clothing without causing
more damage to it than was found.  Although it would have been very difficult
for a dingo to achieve this, it cannot be concluded that it was impossible for
it to have done so.
33.  The dingo experts disagree as to whether the arrangement of the clothing
when discovered was inconsistent with dingo involvement.  While Mr Roff did
not consider the appearance of the clothing was inconsistent with dingo
activity, Dr Corbett and Dr Newsome were of the view that it would have been
more scattered if a dingo had removed Azaria from it.
Are there doubts as to the Chamberlains' guilt?
34.  I must now answer the question whether, in the light of all the evidence,
there are doubts as to the Chamberlains' guilt.  In my opinion this question
must be answered in the affirmative.  (I do not think any jury could properly
convict them on the evidence as it now appears.)
35.  I have referred in earlier chapters to the evidence at the trial and to
the significant new evidence that is before the Commission.  It is apparent
from what I have already written in this chapter that the effect of the new
evidence is to greatly weaken the case presented against the Chamberlains at
the trial.
36.  The jury must have disbelieved Mrs Chamberlain's story about the dingo.
No doubt, in concluding that her story was a fabrication they had regard to
all the evidence in the case, as they were entitled to do.  Some of the most
damaging of that evidence has been shown to be either wrong or highly suspect.
Other important parts of it have been shown to be open to serious question.
The effect on her credit of her inability to explain the presence of blood in
the car and how the alleged spray of blood came to be on the plate under the
dash cannot be known with certainty, but was probably disastrous.  If the jury
accepted the Crown's evidence on those matters and on the alleged imprint of a
hand in blood on the jumpsuit it must have regarded her story as unbelievable
and not worthy of consideration.
37.  I have referred elsewhere to the unsatisfactory features in Mrs
Chamberlain's account of having seen a dingo at the tent and I do not
underestimate their importance.  It can fairly be said that there are
inconsistencies and improbabilities in her story and in the various versions
she has given of it.  However, as I point out in Chapter 15, there are
possible explanations for many of the apparently unsatisfactory features of
her evidence.
38.  On the other hand, the obstacles to the acceptance of the Crown's case
are both numerous and formidable.  Almost every facet of its case is beset by
serious difficulties.  Some of these must now be mentioned.
39.  The Crown is unable to suggest a motive or explanation for the alleged
murder.  The undisputed evidence is that Mrs Chamberlain was an exemplary
mother and was delighted at Azaria's birth.  She did not suffer from any form
of mental illness nor had she ever been violent to any of her children. She
had spent the day with her family on 17 August and had not exhibited any sign
of abnormal behaviour or of irritation with Azaria. She was not stressed when
she took Azaria to the tent for her expressed purpose of putting her to bed.
40.  If Mrs Chamberlain left the barbecue with the intention of killing Azaria
it is astonishing that she took Aidan with her.  It would have been easy for
her to have left him at the barbecue with his father.  Having taken Aidan with
her, it is even more astonishing that she should have murdered Azaria, on the
Crown case, a few feet from where he was awaiting her return to the tent.  It
was a great coincidence that Mrs Lowe not only thought she heard Azaria cry,
but also thought she heard Mr Chamberlain or Aidan say that he had heard the
same cry.  It is surprising that Mrs Chamberlain did not attempt to bolster
her story by saying that she also heard the cry.
41.  If Mrs Chamberlain did not intend to murder Azaria when she left the
barbecue, it is difficult to understand why, for no apparent reason, she
should have formed that intention almost immediately after she left it.  There
is nothing in the evidence which could account for the formation of such a
sudden intention.
42.  It seems improbable that Mrs Chamberlain, having murdered Azaria in the
car or elsewhere, would have returned to the tent with so much blood on her
person or clothing that some of it dripped on to the articles upon which it
was found in the tent.  Unless she did, there is no explanation, except the
dingo story, for the blood found in the tent.  Such conduct on her part seems
inconsistent with her donning the tracksuit pants (as the Crown alleges) so as
to avoid tell-tale signs of blood.
43.  It is extraordinary that the persons present at the barbecue area at the
time of and immediately after Azaria's disappearance accepted Mrs
Chamberlain's story and noticed nothing about her appearance or conduct
suggesting that she had suddenly killed her daughter, and nothing about Mr
Chamberlain's conduct suggesting that he knew that she had done so.  She must
have been a consummate actress if, having killed her daughter, she was able to
appear calm and unconcerned when she returned to the barbecue a few minutes
after the murder.
44.  The short period during which Mrs Chamberlain was absent from the
barbecue made it only barely possible that she could have committed the crime
alleged against her.  On the Crown case, in the 5-10 minutes she was proved to
have been absent from the barbecue she must have -
    - returned to the tent;
    - done whatever was necessary to ensure that Aidan
      did not follow her;
    - donned her tracksuit pants;
    - taken Azaria to the car;
    - possessed herself of a murder weapon;
    - cut Azaria's throat;
    - allowed sufficient time for Azaria to die;
    - secreted the body;
    - done at least some cleaning-up of blood in the car;
    - removed her tracksuit pants;
    - obtained a can of baked beans for Aidan;
    - returned to the tent;
    - entered the tent and done whatever was necessary for
      several articles in it to be spotted with blood;
    - collected Aidan;  and
    - returned to the barbecue.
45.  The length of time which, on the Crown case, must have elapsed between
Azaria's throat being cut and her death is of some importance.  It seems
probable that if Mrs Chamberlain murdered the child she would not have
returned to the tent before she was satisfied the child was dead.  If both
Azaria's carotid arteries were severed it probably would have taken about 2-3
minutes for her to have died. The minimum time would have been half a minute.
It would have taken much longer, up to 20 minutes, for her to have died if her
jugular vein, and not her carotid arteries, were severed.  The blood staining
on the jumpsuit indicates, according to all the experts, an absence of
arterial bleeding.
46.  Young though he was, it is very difficult to accept that Aidan did not
notice that his mother took Azaria away from the tent and returned without her
and did not comment on that fact when his sister was found to be missing.
47.  It was indeed fortuitous that a dog or dingo should have been heard to
growl and a dingo should have been seen not far from the tent very shortly
before Azaria disappeared, and that on the night of 17 August a canid's tracks
should have been found hard up against the tent.
48.  It is surprising that, if Mrs Chamberlain had blood on her clothing,
nobody noticed it in the hours after Azaria's disappearance.  If Azaria's body
was left in the car after the alleged murder, it was foolhardy for Mrs
Chamberlain, in the presence of the Demaines and their dog, to open the car
door and give the dog the scent of Azaria's clothing.  The risks involved in
the Chamberlains burying and disinterring Azaria when there were so many
people who might have observed them were enormous.  It is difficult to explain
how the variety of plant material found on Azaria's clothing could have got
there if she had been murdered.  It seems improbable that, the murder having
been so cleverly accomplished and concealed, the clothing would have been so
left as to invite suspicion.
49.  If Mrs Chamberlain told her husband that she had killed Azaria, it was
extraordinary conduct on his part to leave his two sons, the younger of whom
was aged only 3 years, in her sole custody on 18 August.
50.  Mr and Mrs Chamberlain's conduct at Ayers Rock on 18 August was strange
whether or not Azaria had been murdered.  Their conduct upon their return to
Mount Isa is inexplicable if she had murdered Azaria.  For instance, it is
almost incredible that she should have told people there was blood on her
shoes if she had murdered her daughter.  Further, it was bravado of a high
order for Mr Chamberlain to tell the police at Cooranbong that they had taken
possession of the wrong camera bag if Azaria's body had been secreted in the
one which he then produced.
51.  The Crown has no direct evidence of the Chamberlains' guilt to overcome
the cumulative effect of all these formidable obstacles.  Even so, their guilt
would be established if, in spite of so many considerations pointing to their
innocence, the conclusion was reached that it had been proved beyond
reasonable doubt that a dingo did not take the baby.  In the light of all the
evidence before the Commission, I am of the opinion that such a conclusion
cannot be reached.
52.  I shall state in summary form the effect of the evidence that leads me to
hold this opinion. In doing so, it will be necessary to recapitulate some of
the matters to which I have already referred in order to give a complete
picture of the material (save for the Chamberlains' own testimony) which is
directly relevant to this part of the Crown's case.  It is also necessary to
keep in mind that, under ordinary circumstance (sic), it would be highly
unlikely that a dingo would enter a tent, take a baby from it, carry it
several kilometres to a den and there consume the body leaving the clothing in
a position similar to that in which Azaria's clothing was found.  But the
question of Mrs Chamberlain's guilt or innocence is to be determined on the
evidence and against the background of the circumstances as they existed at
Ayers Rock in August 1980.  It is not to be determined on the basis of
preconceptions as to the likelihood of unusual animal behaviour.
53.  Before August 1980 dingoes in the Ayers Rock area frequented the camping
area.  At that time there were many dingoes in the area, some 18-25 of which
were known to visit the camping area.  A number of attacks were made by
dingoes on children in the months preceding Azaria's disappearance.  In none
of these did any child suffer serious injury.
54.  About twenty minutes before Azaria disappeared Mr Haby saw and
photographed a dingo which walked towards the Chamberlain's tent.  A few
minutes before the alarm was raised the Wests heard a dog growl.
55.  On the night of 17 August dog tracks were observed on the southern side
of and very close to the Chamberlains' tent.  The same night Mr Roff and Mr
Minyintiri, both experienced trackers and familiar with dingo behaviour, saw
tracks of a dog carrying a load which they believed to be Azaria. It was
within the bounds of reasonable possibility that a dingo might have attacked a
baby and carried it away for consumption as food.  A dingo would have been
capable of carrying Azaria's body to the place where the clothing was found.
If a dingo had taken Azaria it is likely that, on occasions, it would have put
the load down and dragged it.
56.  Hairs, which were either dog or dingo hairs, were found in the tent and
on Azaria's jumpsuit. The Chamberlains had not owned a dog for some years
prior to August 1980.
57.  The quantity and distribution of the sand found on Azaria's clothing
might have been the result of it being dragged through sand.  The sand could
have come from many places in the Ayers Rock region.  The sand and plant
fragments on the clothing are consistent with Azaria's body being carried and
dragged by a dingo from the tent to the place where it was found.  It is
unlikely that, if the clothing had been taken from the Chamberlains' car,
buried, disinterred, and later placed where it was found it would have
collected the quantity and variety of plant material found upon it.
58.  It would have been very difficult for a dingo to have removed Azaria from
her clothing without causing more damage than was observed on it. However, it
would have been possible for it to have done so.  Mr Roff, the chief ranger at
Ayers Rock and a man of great experience, thought that the arrangement of the
clothing when discovered was consistent with dingo activity. Other dingo
experts disagreed.  I think it is likely that a dingo would have left the
clothing more scattered, but it might not have done so.
59.  The blood found in the tent was at least as consistent with dingo
involvement in Azaria's disappearance as it was with her murder in the car.
The patterns of blood staining on the clothing does not establish that the
child's throat was cut with a blade.
60.  The absence of saliva on Azaria's jumpsuit which was not conclusively
proved at the trial is made more explicable by the finding of the matinee
jacket which would have partially covered it.  The fact that no debris from
the baby's body was found on the jumpsuit is also made more explicable by the
finding of the jacket.
61.  There is a great conflict of expert opinion as to whether the damage to
the clothing could have been caused by a dingo.  It has not been shown beyond
reasonable doubt that it could not have been. There were marks on plastic
fragments of the nappy similar to marks made by a dingo on another nappy used
for testing purposes.  However, there was no blood on the nappy.
62.  There was a dingo's den about thirty metres from the place where the
clothing was found.  There is no evidence that the existence of the den was
known to the Chamberlains or, for that matter, to anybody else and in fact it
was unknown to the chief ranger and his deputy.
63.  It is impossible in the above summary to capture the whole effect of the
voluminous evidence given on the matters which bear upon the dingo hypothesis
but, taken in its entirety, it falls far short of proving that Azaria was not
taken by a dingo.  Indeed, the evidence affords considerable support for the
view that a dingo may have taken her.  To examine the evidence to see whether
it has been proved that a dingo took Azaria would be to make the fundamental
error of reversing the onus of proof and requiring Mrs Chamberlain to prove
her innocence.
64.  I am far from being persuaded that Mrs Chamberlain's account of having
seen a dingo near the tent was false or that Mr Chamberlain falsely denied
that he knew his wife had murdered his daughter.  That is not to say that I
accept that all their evidence is accurate.  Some of it plainly is not, since
parts of it are inconsistent with other parts.  But if a dingo took her child,
the events of the night of 17 August must have been emotionally devastating to
Mrs Chamberlain.  Her ability to give a reliable account of the tragedy may
have been badly affected by her distress.  The inconsistencies in her evidence
may have been caused by her confusion of mind.  Where her evidence conflicts
with the Lowes' account of what she said and did in the few seconds after she
commenced to run back to the tent, it may be the Lowes' recollection, not
hers, that is at fault. The belief that people might unjustly accuse her of
making up the dingo story might have led her, even subconsciously, to
embellish her account of what happened, and this may explain some of its
improbabilities.  Her failure to see Azaria in the dingo's mouth is explicable
if, as is quite possible, there were two dingoes, not one.  These
considerations afford at least as convincing an explanation for the apparently
unsatisfactory parts of her evidence as does the Crown's claim that she was
lying to conceal her part in the alleged murder. Having seen Mr and Mrs
Chamberlain in the witness box, I am not convinced that either of them was
lying.
65.  In reaching the conclusion that there is a reasonable doubt as to the
Chamberlains' guilt I have found it unnecessary to consider the possibility of
human intervention (other than by the Chamberlains) in the time between
Azaria's disappearance and the finding of her clothes.  It is difficult, but
not impossible, to imagine circumstances in which such intervention could have
occurred.  It is not inconceivable that an owner of a domestic dog intervened
to cover-up its involvement in the tragedy or that some tourist, acting
irrationally, interfered with the clothes before they were later discovered by
others.  There is not the slightest evidence to support either of these
hypotheses but the possibility of human intervention is another factor which
must be taken into account in considering whether the evidence establishes the
Chamberlains' guilt beyond reasonable doubt.  It was so recognized in some of
the judgments given on the appeal to the High Court.
Conclusion
66.  (I am conscious of the fact that the Chamberlains' convictions were
upheld in the High Court. On the evidence as it appeared at the trial, two of
the five members of the Court thought that the convictions were unsafe.  I am
confident that the appeal would have succeeded if the evidence had been as it
now appears.)
67.  The question may well be asked how it came about that the evidence at the
trial differed in such important respects from the evidence before the
Commission.  I an unable to state with certainty why this was so.  However,
with the benefit of hindsight it can be seen that some experts who gave
evidence at the trial were over-confident of their ability to form reliable
opinions on matters that lay on the outer margins of their fields of
expertise.  Some of their opinions were based on unreliable or inadequate
data. It was not until more research work had been done after the trial that
some of these opinions were found to be of doubtful validity or wrong. Other
evidence was given at the trial by experts who did not have the experience,
facilities or resources necessary to enable them to express reliable opinions
on some of the novel and complex scientific issues which arose for
consideration. It was necessary for much more research to be done on these
matters to determine whether the opinions expressed at the trial were open to
doubt.
68.  (The failure of the defence to put in issue some of the scientific
opinions expressed at the trial may have been due, in part, to lack of access
to the necessary expert witnesses.  However, this does not account for the
failure to call Dr Lincoln, who was in a position to dispute Mr Culliford's
opinion that blood was present in some of the samples taken from the car.
Again, with the benefit of hindsight, it is unfortunate that the defence did
not become aware of the chemical composition of the spray found on the metal
plate removed from under the dash of a Torana car similar to the one owned by
the Chamberlains.  If this had been ascertained, it seems likely that the
defence would have been alerted to the possibility that all the findings of
blood relied upon by the Crown might be suspect.  On a less technical and less
important matter it is surprising that the Demaines' evidence was not called
at the trial, although both the prosecution and the defence appear to have
been aware that it was available to be called.)
69.  Counsel for the Chamberlains submitted to me that the manner in which the
Northern Territory Police conducted the investigation into Azaria's
disappearance prejudiced their trial.  I am not persuaded that it did. The
great difficulties for the defence arose out of the scientific evidence, and
the police cannot be held responsible for the deficiencies in it.
70.  It follows from what I have written that there are serious doubts and
questions as to the Chamberlains' guilt and as to the evidence in the trial
leading to their conviction. '(In my opinion, if the evidence before the
Commission had been given at the trial, the trial judge would have been
obliged to direct the jury to acquit the Chamberlains on the ground that the
evidence could not justify their conviction.)'
71.  It is not necessary to consider the correctness of the Commissioner's
concluding opinion in square brackets. The fact is that the evidence referred
to by his Honour was not given at the trial.  Moreover, his Honour's opinion
involves a controversial question of law which has no bearing on the outcome
of this Reference.  Unfortunately, much of Mr Adams' time was unnecessarily
taken up submitting that his Honour's concluding opinion was incorrect.  His
Honour may have overlooked the fact that he was able to have regard to matters
that may not have been admissible at a criminal trial.  The question for this
court is whether, considering all the material now before it, it would be
unsafe as a matter of justice to allow the Chamberlain convictions to stand.
72.  In my opinion, upon a consideration of the adopted findings, there is a
real possibility that Mrs Chamberlain did not murder Azaria and, therefore,
the convictions of the Chamberlains ought to be quashed and verdicts and
judgments of acquittal entered.  Not to do so would be unsafe and would allow
an unacceptable risk of perpetuating a miscarriage of justice.
73.  Having said so much, I would like to touch on a matter peripheral to this
Reference.  It may be thought that the mere acknowledgement of a doubt about
the guilt of Alice Lynne Chamberlain is a half-hearted way for the matter to
end.  I would like to examine that sentiment for a moment. It is rarely that a
criminal trial positively establishes the innocence of an accused person.  If
it does so, it does so by accident.  The task of a criminal court is to ask
and answer the question whether it is satisfied beyond reasonable doubt that
the accused is guilty of the crime charged.  If it is not so satisfied, the
verdict should be one of 'not guilty': ie, a verdict of acquittal.  From the
point of view of a criminal court, a verdict of 'not guilty' signifies that
the jury is not satisfied beyond reasonable doubt of the guilt of the accused;
it does not formally signify a positive jury finding upon the evidence that
the accused is innocent.  Such a positive finding is not the role of a
criminal court, nor of this court.  That is because under the criminal law a
person is presumed innocent until the contrary is proved.  It is not the
court's function to establish innocence because, in the absence of a
conviction, innocence is presumed: no finding is required. If the accused is
not found guilty the presumption of innocence continues.  So it is here.  I
have expressed the opinion that doubt exists as to the guilt of Mrs
Chamberlain.  I would categorize that doubt as a grave doubt.  The doubt has
arisen as a result of considering fresh evidence, in particular, the findings
of the Commission.  It is the existence of that doubt that demands the
quashing of the convictions and the verdicts and judgments I propose.  The
convictions having been wiped away, the law of the land holds the Chamberlains
to be innocent.
74.  Accordingly, I would quash the convictions of Alice Lynne Chamberlain and
Michael Leigh Chamberlain and enter verdicts and judgments of acquittal.

JUDGE3
  This is a Reference under Code s.433A(1).  The jurisdiction under that
provision is somewhat extraordinary. It provides for the post-conviction
post-pardon referral of a case to this Court -
    "... to enable the court to consider
    ... whether the conviction should be quashed and a
    judgment and verdict of acquittal entered."
In considering the case the Court is not bound by the rules of evidence "but
may inform itself in such manner as it thinks fit"; s.433A(5).  Inter alia,
the Court may, by s.433A(6)(b) -
    "adopt, as it thinks fit, the finding,
    decision, judgment, or reasons for the finding, decision
    or judgment, of a ... commission of inquiry ... that are
    relevant to the Courts consideration."
2.  The criteria upon which the Court should act in deciding whether or not to
quash the conviction are not spelled out.
3.  The reason for this Reference is clearly enough the new materials placed
before the Royal Commission of Inquiry into Chamberlain Convictions and the
Commission's analysis thereof and findings thereon in its Report of 22 May
1987. On that basis it appears to me that it is appropriate to proceed by
considering, as in the ordinary case of an appeal against conviction under
Code s.411(1) based on fresh evidence, whether in the light of that Report the
Chamberlains' convictions of 29 October 1982 entailed a miscarriage of
justice.
4.  The function and power of the Court under Code s.433A(1) is to consider
whether or not it should quash the convictions.  In the case of an ordinary
criminal appeal involving fresh evidence a Court of Criminal Appeal will
exercise its power to quash a conviction, instead of ordering a fresh trial,
if -
    "... the new material ... convinces the
    court upon its own view of that material that there has
    been a miscarriage in the sense that a verdict of guilty
    could not be allowed to stand ..."; Ratten v The Queen
    (1974) 131 CLR 510 at 520, per Barwick C.J. (emphasis
    mine)
I consider that that is the appropriate approach to adopt upon this Reference.
5.  I note the observations of Rich and Dixon JJ. on the question of a
miscarriage of justice in the context of fresh evidence, in Craig v The King
(1933) 49 CLR 429 at 439:-
    "It cannot be said that a miscarriage
    has occurred unless the fresh evidence has cogency and
    plausibility as well as relevancy.  The fresh evidence
    must, we think, be of such a character that, if
    considered in combination with the evidence already
    given upon the trial the result ought in the minds of
    reasonable men to be affected.  Such evidence should be
    calculated at least to remove the certainty of the
    prisoner's guilt which the former evidence produced."
    (emphasis mine)
Those observations were made in the context of whether a new trial should be
ordered.  In the context of whether a conviction should be quashed, the
question is whether this Court is itself convinced that the result ought to be
affected, that the certainty of guilt is removed.
6.  I have had the benefit of reading the judgment of Nader J.  I respectfully
agree with his Honour for the reasons which he gives, that the chief findings
of fact of the Commission which he sets out should be adopted by this Court.
On the materials placed before the Commission they were all findings which
were reasonably open to be made even though on certain matters - for example,
the question of the damage to the jump suit - other findings were also open.
The findings, the materials on which they were based, and the reasoning which
led to those findings were, with respect, cogent and plausible; they are
directly relevant to the issue of miscarriage of justice before this Court.
7.  I am convinced by the findings of the Commission set out in the judgment
of Nader J. that the certainty of the Chamberlains' guilt of the crimes of
which they were convicted on 29 October 1982 is removed.  Their convictions
therefore constitute a miscarriage of justice and must be quashed.
8.  For that reason I concur in the orders proposed by Nader J.  I also concur
in his Honour's concluding remarks on the significance of the quashing of
convictions.