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 ding