ALICE LYNNE CHAMBERLAIN and MICHAEL LEIGH CHAMBERLAIN v THE QUEEN

ALICE LYNNE CHAMBERLAIN and MICHAEL LEIGH CHAMBERLAIN v THE QUEEN

NORTHERN TERRITORY DISTRICT REGISTRY ) No. NTG 23 of 1982

ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

Amendments to the judgment of The Honourable Mr. Justice Jenkinson

ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

ALICE LYNNE CHAMBERLAIN and MICHAEL LEIGH CHAMBERLAIN

Ll. The motion to strike out grounds of appeal numbered

3. James John Jolliffe, Sheriff of this Court, take Alice rr F

Lynne Chamberlain into his custody and deliver her to

Superintendent Frederick Mercer, Officer in Charge, Darwin Prison,

Berrimah in the Northern Territory, as soon as this can

ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

ALICE LYNNE CHAMBERLAIN and MICHAEL LEIGH CHAMBERLAIN

Criminal Law - Appeal against conviction for murder and

conviction for being accessory thereto ~ Whether verdicts against the evidence and the weight of the evidence - Directions regarding conflicting expert evidence - Directions regarding

Appeal - Motion to strike out some grounds of appeal -

Federal Court of Australia Act 1976 ss.24, 27 and 28.

Northern Territory Supreme Court Act 1961 s.47. Rules of Court - Order 56 r.18(1).

ALICE LYNNE CHAMBERLAIN and MICHAEL LEIGH CHAMBERLAIN

IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY

ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

BOWEN C.J., and FORSTER J.: These are appeals from the Supreme

Michael Leigh Chamberlain have each appealed against the verdict

of a jury given on 29 October 1982 whereby Mrs. Chamberlain was

found guilty of the murder of her child Azaria and Mr.

Chamberlain was found guilty of being an accessory after the

The first matter argued before this Court was whether an order should be made striking out grounds 3,4,5,6 and 22 in the composite notice of appeal, a notice of motion to this effect

having been filed and served by the Crown. The motion seeks to strike out these grounds "as being incompetent and not grounds known to the law". Order 52 r.18(1) was referred to. This

"A respondent may move on notice at any time for an order dismissing an appeai as incompetent".

We consider this rule is appropriate in the case of a motion for an order dismissing an appeal. It 1s not directed to

the striking out of particular grounds leaving the appeal on foot. We would dismiss the motion. Nevertheless, the parties wished to deal with the questions raised as a preliminary issue,

if possible. Accordingly we heard argument on these questions.

At that stage we decided to defer our decision on the preliminary questions raised and to hear argument on the appeals, including argument on the basis that the challenged grounds were still in the notice of appeal.

challenged grounds of appeal. They are as follows:-

The learned trial Judge erred in rejecting submissions by counsel for each of the accused that at the end of the evidence the case against each of the accused was so tenuous that even with a proper direction 1t would be unsafe to let the cases go to the jury.

The learned trial Judge erred in rejecting submissions by counsel for each accused that the jury be advised at the conclusion of the evidence that it was unsafe to convict either accused.

The verdict was against the evidence and the weight of the evidence.

(c) dangerous or unsafe in the administration of the criminal law;

By reason inter alia, and without restricting the generality of the foregoing, of the following matters...." (Then follows a list of ywonty-nane matters, which need not be set out).

permitted the Crown case to go to the jury insofar as same related to evidence adduced by

(1) evidence adduced by the Crown concerning its allegation that foetal blood was found behind the underdash of the torana Motor Vehicle (Reference and Engine No. 8C77RG J 588763X) was unreliable in that it failed to establish beyond reasonable doubt that such blood was foetal blood from the body of Azgaria Chamberlain;

(i2) the evidence adduced by the Crown in relation to the scissors (Exhibit No. 56 at Trial) was of such a nature as to be unrellable in respect of the Crown allegation that there was found to be present thereon foetal blood from the body of Azaria Chamberlain".

As to ground 3, it will be noted that it does not assert that on the evidence as it stood the accused could not lawfully be convicted. Rather it picks up the practice which has grown up aun England since the passing of the Criminal Appeal Act 1966 (Eng.) s.4(1)(a). That enactment required the Court of Appeal to allow an appeal if it was of opinion that the verdict should be set aside on the grounds that "under all the circumstances of the case it is unsafe or unsatisfactory" (see now Criminal Appeal Act 1968 (Eng.) s.2). Thereafter in England the practice grew up of inviting the judge, at the close of the Crown's case, if there was some evidence but it was of a tenuous character, to say that it would be unsafe (or sometimes unsafe or unsatisfactory) to convict on the Crown's evidence and on that ground to withdraw the case from the jury. It was held that in such a case the judge might properly stop the case, 1f£ he came to the conclusion that the prosecution evidence, taken at its highest, was such that a jury properly directed could not properly convict on it. On the other hand, it was held that where the prosecution evidence was such that its strength or weakness depended on the view to be taken of a witness's reliability or on other matters generally speaking within the province of the jury and where on one possible view of the facts there was evidence on which a jury

could properly come to the conclusion that the accused was

guilty, the judge should allow the matter to be tried by the jury

(R v Galbraith (1981) 2 All. E.R. 1060 cf. Falconer-Atlee (1973)

58 Cr. App. R.- 348 at p.357; Rv Barker (1975) 65 Cr. App. R.

287 and R v Mansfield (1977) 1 W.L.R. 1102 at p. 1106). In the States of Australia, which have copied the

provisions of the Criminal Appeal Act 1907 (Eng.) though not the

1966 or 1968 English provisions, the practice seems to have

varied (see Article "The Insufficiency of Evidence to Raise a

Case to Answer" by Mr. Justice Glass (1981) 55 A.L.J. 842 at

p. 845). In the Northern Territory neither the provisions of the

Criminal Appeal Act 1907 nor the 1966 English amendment have been

adopted. In these circumstances, as at present advised, we see no warrant for adopting the English practice in the Territory.

In the present cases, there was a substantial body of evidence for the Crown and a substantial body of evidence for each of the accused. There were conflicts between these bodies of evidence the resolution of which would necessarily depend upon the assessment of the reliability of witnesses and other matters generally speaking within the province of a jury. We are of opinion that it would have been wrong for the learned trial Judge to have taken the matter away from the jury.

As to ground 4, it was explained to us that this ground meant not that the jury should have been directed that 1t was unsafe to convict, but that the learned trial Judge should have advised the jury 1n the sense of informing or suggesting to them it was unsafe to convict. In our view the course suggested would necessarily involve a prejudgment as to what evidence ought to be accepted before the trial Judge could reach a position in which

he felt he could give such advice. The question what evidence

should be accepted 1s pre-eminently a question for the jury. In

our opinion the trial Judge was correct in leaving the matter to the jury and in refraining from giving any such advice.

As to ground 5, from one point of view it may be said this involves two grounds first, that the verdict is against the evidence and secondly, that the verdict is against the weight of

the evadence (see Raspor v The Queen (1958) 99 C.L.R. 346 at

pp.351-352). So regarding the ground it may be said the second limb raises a matter which is particularly the province of the jury. However, 1t 1s not unusual to see the two expressions used almost as if they were inter-changeable (see Phillips v Martin

(1890) 15 App. Cas. 193 at p.194; cf. Metropolitan Railway Co. v

Wright (1886) 11 App. Cas. 152), or used together, as they are in

ground 5, as if they constituted one ground (Hocking v Bell

(1945) 71 C.L.R. 430 at pp.440-441; (1947) 75 C.L.R. 125 at pp. 131-132). It 1s considered that involved in ground 5 is the notion that the verdict is one which viewing the whole of the evidence reasonably the jury could not properly find. This is not a ground which should be struck out as incompetent or as not being a ground known to the law. It was a ground on which control of verdicts by granting new trials was first assumed. It does not depend upon the widely enacted Criminal Appeal Act provisions regarding miscarriage, which, as has been mentioned, are not in force in the Northern Territory. It appears to us that it is within our power under ss.24, 27 and 28 of the Federal Court of Australia Act 1976 to act upon such a ground in an appropriate case. We will discuss later, whether the present

case is an appropriate one in which we should exercise the power.

As to ground 6, it has been decided by a Full Court of

this Court in Duff v The Queen (1979) 28 A.L.R. 663 that on appeals from the Australian Capital Territory 1t is not open to

the appellant to argue that 1t is "unsafe" or "unsatisfactory" to

allow the verdict to stand. Duff's Case was followed in Erich v

The Queen (1980) 31 A.L.R. 123 and referred to in passing as stating the law in Collins v The Queen (1980) 31 A.L.R. 257 at p-261 an appeal from the Northern Territory.

Sections 24, 27 and 28 of the Federal Court of Australia Act 1976 apply, of course, to appeals from both Territories. Furthermore s.47 of the Northern Territory Supreme Court Act 1961

which was in force when the Federal Court of Australia Act was passed, 1s, in relevant respects, similar to s.52 of the Australian Capital Territory Supreme Court Act 1933. We see no basis for distinguishing Duff's Case in relation to appeals

from the Northern Territory. Appeal is a remedy given by statute (Commissioner for

Railways N.S.W. v Cavanagh (1935) 53 C.L.R. 220 at p.223) in this

case by the Federal Court of Australia Act. Uninstructed by Duff's Case in construing the Federal Court of Australia Act we would at first blush have been inclined to accord some weight to the fact that when the Federal Court of Australia Act was passed an appeal lay direct from the Supreme Court of the Northern Territory to the High Court, which by reason of the terms of s.47(1)(c) of the Northern Territory Supreme Court Act 1961 and

s.36 of the Judiciary Act 1903 had, in-effect, power to entertain

and give effect to the "unsafe" or "unsatisfactory" ground. When

s.24 of the Federal Court of Australia Act was passed it converted a right to appeal from a Supreme Court of a Territory anto "a corresponding right to appeal" to this Court (s.24(4)). Moreover, it still preserved a right to appeal direct to the High Court with special leave of the High Court given on or after the commencing day or with leave or special leave of the High Court or the Supreme Court given before the commencing day (s.24(2)). The jurisdiction and powers exercisable by this Court are given an general terms. There is no indication in the legislation that in converting a right to appeal to the High Court to a right to appeal to this Court, the legislature intended to alter the nature of the appeal and to take away one of the available grounds of appeal or that it intended the converted High Court appeals and direct appeals to this Court to be dealt with differently. Nor is there any indication that in reserving the alternative appeal to the High Court with special leave after the commencement of the Federal Court of Australia Act, the legislature was preserving 4 channel of appeal in which a different ground of appeal would be available from those available in this Court. Looking at the general words of ss 24 and 28 of the Federal Court of Australia Act in the light of the legislation then in force, 1t might have been thought it was left to this Court to determine e.g. under s.28(1)(f£) what grounds were "appropriate" (cf. Kovac v R (1977) 15 A.L.R. 637 where this Court laid down the grounds on which it would, on appeal, review a discretion exercised in sentencing). On the other hand 1t may

be argued that by reason of the provisions of the Federal Court

of Australia Act there may in any event be some difference between the appeal in the Federal court and the appeal in the High Court. Thus the Federal Court has power to hear further evidence (Federal Court of Australia Act s.27). It seems the High Court hearing an appeal from a State court has no power to hear further evidence Davies and Cody v The King (1937) 57 c.L.R. 170 at p.172. Whether in view of the terms of s.47 the High Court would have had power to hear further evidence in an appeal from the Northern Territory Supreme Court may be open to question. It may be noted that s.47 has since been repealed (Northern Territory Supreme Court (Repeal) Act 1979).

We do not regard this Court as being bound by its previous decisions. However, we will normally follow an earlier decision unless convinced that it is wrong. It was argued that Duff's Case was wrongly decided. It was a closely reasoned decision. We are not persuaded it is wrong. We consider we should follow it. We therefore consider that ground 6 cannot be entertained as a ground of appeal in the present proceedings.

As to ground 22, it seems to claim that the learned trial Judge should, in the light of the conflicting evidence of the experts on blood tests called on behalf of the accused, have held the evidence of the experts called by the Crown to be unreliable in the respects stated and as a consequence should have withdrawn from the jury 1ssues concerning blood samples. It is not revealed how he could do this and in any event it calls for an impermissible intrusion by the Judge into the function of

the jury. It is not a tenable ground of appeal. I1t may be noted

that counsel for the accused at the trial did not ask the Judge to take the course suggested. It 1S necessary to refer next to an application on

behalf of the appellants to tender further evidence on the

hearing of the appeal. Under s.27 of the Federal Court of Australia Act this Court has power in its discretion to receive further evidence. Under its Rules the Court requires any such application to be made by motion on the hearing of the appeal without filing or serving a notice of motion. Any evidence necessary to establish the grounds of the application and the evidence which the applicant wants the Court to receive has to be given by affidavit (Order 52 r.36).

In the present case, the grounds and the evidence were

set forth in the following affidavits sworn by the deponents on

Arthur Derek Roff 20 December 1982 Robin Wayne Carrell 31 December 1982 Barry Boettcher 12 January 1983 Stuart Graeme Holden 12 January 1983 and Tipple 22 February 1983

In reply the Crown filed an affidavit by Michael Daniel O'Loughlin sworn 24 February 1983.

Mr. Roff was a Ranger at Ayers Rock. He was familiar with the habits and capabilities of dingoes. On 17 August 19806

the night Azaria Chamberlain disappeared he attended the camp

site at about 8.20p.m. and assisted in organizing the search. On

24 August 1980 he attended the scene where the child's clothing

was found a short time after it was discovered and was able to observe the clothing and the surrounding vegetation. He was called as a witness at the first inquest held December 1980 and February 1981 and gave evidence about the search. He was not asked about his observations on 24 August 1980 of the clothing

and the surrounding vegetation. He was not called as a witness

at the second inquest. He was called as a witness at the trial but again was not asked about his observations on 24 August 1960.

"On the 24th August, 1980 I observed the clothing lying on some low green vegetation which was flattenedd and depressed in an area approximately 4' x 2' and this was consistent in my experience to an area where a dog or dingo had laid".

We refused leave to tender Mr. Roff's evidence on the appeal. It was not fresh evidence in the accepted sense.

{Ratten v The Queen (1974) 131 C.L.R. 510; Lawless v The Queen

(1979) 142 C.L.R. 659). It is true that the Federal Court may consider further evidence although 1t does not qualify as "fresh" evidence. It will consider the further evidence together with all the evidence at the trial to see whether innocence or a reasonable doubt is established. In doing this 1t will pay regard to the facts as the jury having regard to its verdict may

reasonably have found them to be (Ratten v The Queen supra). In

our view the new evidence of Mr. Roff lacked cogency in the

Professor Carrell is Professor of Clinical Biochemistry, Christchurch Clinical School, University of Otago, New Zealand. He has high qualifications concerning haemoglobin stability and abnormalities of haemoglobin and plasma proteins. His evidence would challenge certain evidence given for the Crown by Mrs. Kuhl, un particular her evidence regarding the comparative stability of foetal and adult haemoglobin, and her evidence regarding the margin of error in diluting denatured blood samples. In general he would be critical of her testing and her conclusions.

The issues to which Professor Carrell's evidence was directed were issues of which the parties were or should have been aware well in advance of the hearing. The issue regarding the comparative stability of foetal and adult haemoglobin was one which was first raised as a result of the questioning of Mrs. Kuhl in cross-examination. The accused at the trial called other expert evidence in answer to Mrs. Kuhl on the various points sought to be dealt with by Professor Carrell's evidence. We formed the view that Professor Carrell's evidence was not "fresh"

evidence but was further evidence, the admission or rejection of which would depend upon a consideration of all the relevant material before the jury at the trial. Accordingly, we deferred a decision on the application to tender this evidence until such time as we had been taken through the trial evidence. Having now

considered the evidence at the trial, we are of opinion that the

proposed evidence of Professor Carrell 1s, in the relevant sense, lacking in ccgency. We conclude that the application for leave

Professor Boettcher is Professor and Head of the Department of Biological Science at the University of Newcastle. He is the author of many scientific papers on genetics, blood-group genetics, immunology and reproductive immunology. He had used the tests applied by Mrs. Kuhl, namely the tube precipitin test, the Ouchterlony test and the cross-over electrophoresis test in laboratory research projects and was familiar with the principles involved. At the trial he gave evidence critical of Mrs. Kuhl's tests and her conclusions. in particular, Mrs. Kuhl gave evidence that a band which appeared in one of her test plates was an artifact. (Exhibit 103E - and see photograph No. 9 of Exhibit 102). Two experts called for the Crown, Professor Baxter and Mr. Culliford, agreed with Mrs. Kuhl. Professor Boettcher gave evidence at the trial contrary to the opinion of these three witnesses. Since the trial Professor Boettcher has obtained anti-foetal haemoglobin serum from

Behringwerke, and has conducted further tests. He says he has:-

+++eeproduced a specific precipitin band between the anti-foetal haemoglobin serum and the adult

blood which was close to and intercepted the well containing anti-foetal haemoglobin and was offset

from the line adjoining the mid points of the two wells".

"eee this result establishes that under experimental conditions similar to those produced

by Mrs. Kuhl in producing test plate Exhibit 1035

• a specific precipitin band formed which 1s

analogous to that produced in test plate Exhibit 103E without any damage occurring to the well".

It should be mentioned that Mrs. Kuhl had obtained the serum, which she used, from Behringwerke. The evidence did not indicate whether Professor Boettcher's serum was from the same batch.

We formed the view that Professor Boettcher's evidence was not "fresh" evidence. It was further evidence the admission or rejection of which would depend upon a consideration of all the relevant mater1al before the jury at the trial. Accordingly, we deferred a decision on the application to tender this evidence until such time as we had been taken through the trial evidence. Having now considered all the material we are of opinion that the further evidence of Professor Boettcher is in the relevant sense, lacking in cogency. We -conclude that the application for leave to tender it should be refused.

We turn now to the substantive argument on the appeals. It will be convenient to deal with each of the grounds stated in the notice of appeal.

"The learned trial judge erred in rejecting submissions by counsel for Michael Leigh Chamberlain that the jury should be directed as a Matter of law to find him not guilty in that the jury properly directed could not on the evidence convict him".

A submission, in relation to this ground together with

submissions in relation to grounds 3 and 4, was made to the

learned trial Judge by written memorandum submitted to him at the

close of the evidence. No oral argument was presented to him in

support of any of these grounds. On the hearing of the appeal it was not argued that there was no evidence to go to the jury. Rather this ground was subsumed under the argument on the general grounds 5 and 6. In our opinion, there being substantial evidence for the Crown and substantial evidence for the accused, it was for the jury to decide what evidence they accepted and it

would have been wrong for the trial Judge to have given the direction suggested.

Grounds 3 and 4 fail for the reasons already given.

Ground 5 raises a question which lies at the heart of these appeals. We will deal with it separately after expressing our conclusions on the other grounds.

Ground 7 1s formal, recording that the appellants seek

leave to amend the grounds of appeal after the Judge's charge

Before we deal with grounds 8 to 10 inclusive and 12 to 16 inclusive, each of which complains of errors or misdirections aun the learned trial Judge's summing up and grounds 17 to 19 inclusive which complain of the wrongful admission of certain evidence, we should mention that when asked by his Honour at the end of the summing up, "Is there any further direction?", senior counsel for the appellants answered, "No, I have no submissions". It should also be pointed out that the summing up as a whole was favourable to the appellants as was conceded by senior counsel

for the appellants before us, who was not the same counsel as

appeared at the trial. The failure of counsel at the trial to

seek a redirection, some amendment or addition to the summing up and his failure to object to the admissibility of evidence, cannot lead inevitably to the dismissal of an appeal based on alleged imperfections 1n the summing up or the wrongful admission of evidence. It is nevertheless a relevant factor to be considered. If experienced senior counsel at the trial 1s not moved to seek redirection or to object to the admissibility of evidence, his failure to do so carries a strong suggestion that 1n the atmosphere of the trial at which he was present, no

miscarriage of justice occurred or was likely to occur because of

matters later complained of. The matter is clearly put in the judgment of Connor and ,

Franki Jd. in Taylor v R (1978) 22 A.L.R. 559 at p.618:-

"It has often been laid down that it is the duty of counsel for the accused to be present during the summing up and seek any redirection or further direction at its conclusion ~- see, for example R v Croft (1933) 50 W.N. (N.S.W.) 56. If some aspect of the summing up is made a ground of appeal, appellate courts regard it as of great importance that an experienced defence counsel failed to object to it at the trial. Such an omission points strongly to the conclusion that in the atmosphere of the trial itself there was nothing about the summing up calculated to lead to a miscarriage of justice - see generally Rv Sorlie (1925) 42 W.N. (N.S.W.) 152, Rv Caplin (1933) 50 W.N. (N.S.W.) 189; R v Smith (1956) 73 W.N. (N.S.W.) 539; Rv Malas (1978) 21 A.L.R. 225 and Stirland v DDP [1944] A.c. 315; [1944] 2 All E.R. 13. The cases show, however, that where the appellate court 1s satisfied that a miscarriage of Justice occurred the appeal will be allowed, despite the failure of counsel to object at the trial. Examples of this, where the appellate court was satisfied that there had been a miscarrige of justice because the jury may have considered the evidence on a wrong principle, are R v Kalinowski (1930) 31 S.R. (N.S.W.) 377 and Rv Gaffney [1968] v.R. 417". ~

See also Jones v Dunkel (1959) 101 C.L.R. 298 at p.315; Fontaine

v R (1976) 11 A.L.R. 507 per Barwick C.J. at p.515; and, Rv

Lavery (1979) 20 S.A.S.R. 436, per Wells J. at pp.436 and 437.

jury as to the appropriate standard of proof and as to what constituted a reasonable doubt.

9. That His Honour misdirected the jury in law by instructing them that, if the Chamberlains' evidence left them to conclude that there was a reasonable possibility that they were not guilty, they were to act on that".

The first thing to be said on the question raised by these grounds is that it is the summing up as a whole which must be looked at when one is enquiring whether the members of the jury could have been misled into thinking that their duty was other than to be satisf1red beyond reasonable doubt of the guiit of each appellant before convicting him or her. It should be taken as a whole and as a jury listening to 1t might understand it (La_Fontaine v R (supra) per Barwick C.J. at p.515). It is the overall effect of the summing up on the jurors' minds which must be considered. For instance, 1t would no doubt be a misdirection if the learned trial Judge gave the jury the impression that it was only 1f the appellants' evidence led them

to conclude that there was a reasonable possibility that they

were not guilty, then they should so find them. Counsel for the

appellants directed our attention to a passage in the summing up which, on one interpretation, could be read as equating reasonable possibility with reasonable doubt, but in view of the many clear directions put to them in different contexts that they were not to convict unless they were satisfied of guilt beyond reasonable doubt, we consider that the members of the jury could not have understood that reasonable possibility was the same thing as reasonable doubt.

Again, towards the end of the summing up, the learned

trial Judge said, "Stick of course to your basic convictions, but

remember that there are twelve of you there for the purpose of working together and to decide the guilt or innocence of this woman". This reference to guilt or innocence was no doubt a mistake and the words should not have been used. However, the

Crown in its opening and his Honour, in a clear and quite lengthy

passage, pointed out that the verdict of not guilty does not

"Ladies and gentlemen, a verdict of not guilty under our law is not a proclamation that the accused are people innocent of the crime charged, it means you as a jury are not satisfied as to guilt; nothing more. All I am saying is, ladies and gentlemen, a finding that' it is more probable that Mrs. Chamberlain slew her child than the alternative that it was killed by or by the intervention of a dingo, is not alone sufficient to justify verdicts of guilty. You will not convict unless you are satisfied beyond reasonable doubt that Mrs. Chamberlain murdered Azaria, and that of course means you must reject as a fabrication, the version she has put forward from first to last, of a dingo emerging from the tent;

Azaria immediately thereafter found to be missing".

It seems to us that the jury could not have been misled by the reference to innocence in the context of the entire summing up. It should also be noted that defence counsel at the trial sought no redirection and that in at least one respect the summing up was more favourable to the accused than it strictly needed to have been when it suggested that the jury must be satisfied beyond reasonable doubt on all evidentiary issues before it could convict. Grounds 8 and 9 in our opinion fail.

"10. That the trial Judge misdirected the jury in law by instructing them that they could not convict unless the circumstances were such as to

be inconsistent with any reasonable hypothesis other than the guilt of an accused person.

ll. That the trial Judge erred in law by giving the jury the standard Peacock direction which is contrary to the fundamental rule that the Crown must prove its case beyond reasonable doubt". These grounds question what 1s described as the standard Peacock direction, a reference to Peacock v R (1911) 13 C.L-R. 619. See also Barca v The Queen (1975) 133 C.L.R. 82 at p.104. These grounds were not argued before us and were, we understand, included in the notice of appeal because the appellants wished to

be in a position to argue them before the High Court, if it

law by informing them:sthat merely because they could not fully understand the techniques and methods employed in modern scientific research did not mean that they could not act on the evidence resulting from such scientific enquiry.

13. That the trial Judge erred in law in instructing the jury that in the long run 1t would depend on their assessment of the scientific witnesses as to how he or she appealed to you".

"Now, ladies and gentlemen, to the forensic evidence. It plays an important part these days when skilled methods of detection and analysis are available in the battle with crime, and people who have proved expertise in given fields are permitted in a court of law to express their opinions to a jury. This is in contrast to the situation of a lay witness ~ the police witness - who can speak only of what he or she saw or observed, or perhaps what people said to them.

A jury is entitled to act on those opinions, if of course, and only if, 1t finds them acceptable and convincing. So it 1s that when we are dealing with questions of the human body; physiology, ballistics, the identification of blood, hair, soll, material and the like, the jury 1s entitled to hear and in its absolute discretion, to utilise the opinions of people qualified by education or experience to think of these things.

There 1s no magic about the opinions of experts because they, like any of us, can make errors; not only because they may work on theories that others may not share, but also because an opinion can only be as good and valid as the facts on which it is based. So factual error, ladies and gentlemen; error in theory; error in methodology may invalidate an opinion, however persuasively given.

When we are dealing with matters and methodology which are to a large extent beyond the comprehension of the average juror - and I must say, the average judge - 1t 18S an area where

special care is required. You and I can quite easily comprehend the evidence of the person who saw old Tom Jones bust that plate glass in the Mall I spoke of earlier, but when we listen to the evidence of the experts who detected glass powder ain his T-shirt; when we hear his microscopic examinations and his comparative analyses carried out with the aid of advanced techniques and scientific knowledge, our ability, ladies and gentlemen; your ability and mine, to comprehend that evidence and the criteria upon which it 1s based, is of necessity, limited.

And so, 1£ another expert 1s called in Tom Jones' case for the defence, who says that in his opinion the powder in the T-shirt was fibreglass, not

plate glass, the complexion may change, and it is the function of the jury to decide before they act on opinion evidence, to know where accuracy and truth lies. If a jury cannot do this, well then a jury cannot act on that evidence because it can only act on proved facts.

So I tell you, ladies and gentlemen, you are not in this case bound to act on the evidence of experts. Your approach to their evidence is the same as your approach to the evidence of other witnesses. If you find their opinions compelling and convincing to the extent that they dispel lay evidence or other expert evidence to the contrary, for goodness sake act on them. If you are left with a reasonable doubt as to the accuracy of opinions, well, just do not act on them.

A jury may reject the evidence of experts for a number of reasons. FPirst of all, if you can't understand the conclusions, you won't act on them any more than you won't act on any other evidence you don't understand. If all the evidence leaves you with a doubt as to the scientists' approach, as to methodology, then you will not act on those opinions. If you believe the samples they are analysing may not be associated with the alleged offence, you will not act on their views.

You would adopt the same approach, I suggest, if you considered the samples in question - be they blood, glass, fragments of a bullet - have been subject to change or to interference or to ageing to an extent that it would be unsafe to accept or rely too far on the opinions.

Ladies and gentlemen, you and I can't, during a trial, beccme qualified as biologists, pathologists, as experts in fields of science. It'd be very dangerous to assume we can, and it is simply for this reason the law says that you may act on the opinions of experts in those fields.

Merely because you can't fully understand the techniques and methods employed in modern scientific research, doesn't mean you can't act on the evidence resulting from such scientific enquiry. Of course, you can. In the long run, it wlll depend on your assessment of the witness as to how he or she appeals to you in the course of your enquiry, and you are therefore entitled - like you do with any other witness - to look at the demeanour, the manner in which the evidence was given, and utilize your commonsense judgment

as to the extent, if any, you rely on this evidence.

And you may say, we accept that evidence as reliable and helpful to us in this trial, or we don't accept it. So, please remember those. In this case we have hundreds and hundreds of pages of transcript occupied with expert evidence. Some of it 1s not in dispute. Much is hotly contended. The rejection of some does not, as Mr. Barker said, mean the Crown case crumbles, or the defence case for that matter. If you are not satisfied with Mrs. Kuhl's opinion that the blood she analysed had a foetal content you are still entitled and must examine all the other evidence".

It seems to us that the jury would understand from this passage that it was not necessary for them fully (our emphasis) to understand the techniques and methods in order to accept and act on scientific opinion evidence. They would also understand that, if they did not know where accuracy and truth lay with respect to opinion evidence, then they could not act on it. We draw attention also to the passage "1f you can't understand the conclusions, you won't act on them any more than you won't act on

any other evidence you don't understand. If all the evidence

leaves you with a doubt as to the scientists' approach, as to

methodology, then you will not act on those opinions". This, it seems to us, makes 1t clear that the jury has been told that it is not necessary for it fully to understand the methods in the way that another scientist would but that nevertheless 1f£ 1t has a doubt as to methodology or does not understand the conclusions,

it must not act upon them. We would reject grounds 12 and 13.

"That the trial Judge misdirected the jury by instructing them that, even 1f they had a doubt as to whether blood found in the family car was foetal blood, they were sti1l entitled to ask how the blood came to be there".

"You are, if you are satisfied that blood was found

in the family car, still entitled to see where it leads you, even if you have a doubyt that due to denaturation or to her methodology, her opinion that it was foetal blood, does not stand up, you're still entitled to ask yourselves how that blood, even though you are not convinced it had a foetal content - and to say it may or may not have

• how that blood came to be there. Is it explained by Mr. Lenehan's bleeding in that car, near Port Douglas on 17 June 1979.

If you find becuase of the location of blood in the car, that it cannot be so explained, you can still consider whether it was Azgaria's blood - that is the only explanation after you - after considering the other evidence. Or, ladies and gentlemen, you must also consider that it was a family car, and the evidence of people sustaining injury 1n the car, and questions of projectile vomiting, bloody-noses and the like".

It should be noted that it 1s not really disputed tht the stains found in the car were of human blood but it is disputed that that blood has been shown to include foetal haemoglobin. If Mrs. Kuhl's tests were not found to be

satisfactory so that the jury could not be satisfied that foetal haemoglobin was present, and if this lack of satisfaction was due

to denaturation or unsatisfactory testing, the blood being human

blood could still be that of the child Azgaria. Whether it could

or could not, 1t seems to us not to be in any way a misdirection to tell the jury that it was still entitled to ask how the blood

"That the trial Judge misdirected the jury in law in relation to the evidence of the appellants by

instructing them that 1t was not the sanctity of the oath which in these days weighed heavily but

« the fact that they had exposed themselves to cross-examination".

The passage complained of occurs in the following paragraph. After explaining the right of the accused to say

nothing or to make an unsworn statement, his Honour went on in

"So, with all those very substantial rights behind them, with all the material that they've already supplied to the authorities, because it couldn't have been said by anyone that you had no opportunity to know what they had to say about the matter - of course you would've; you had all those records of interview, statements to police, statements to Inspector Gilroy; all that was

before you. But with that background and with those rights, they elected to give evidence on oath. It's not the sanctity of the oath which in

these days weighs heavily; 1t is the fact that they thereby exposed themselves in front of you,

the jury to cross-examination by the Crown prosecutor".

An experienced trial Judge may well take the view that for many, if not most, of the people who give evidence in court nowadays, the oath has little or no significance but that the fear of giving evidence and of subjecting themselves to cross-examination and questions from the bench is very real. His Honour in this case, however, was dealing with a man of professed Christian principles, a pastor in good standing in The Seventh-Day Adventist Church and his wife. If 1t would ever be wise for a trial Judge to express the view which he did, we have no doubt that it was an unwise mistake in this case. However, we do not think that the jury could have taken his Honour's remarks as in any sense a direction but rather an observation based on past experience. It would have been better if the remarks had not been made. However, we do not consider that his Honour's observations in the context of the summing up as a whole, and in the passage, the general effect of which was favourable to the appellants, would have had any prejudicial effect on the minds of

the members of the Jury. We would reject this ground.

"That the trial Judge erred in law in not putting the sworn evidence of the accused to the jury".

The learned trial Judge in his summing up examined the evidence issue by issue, put the Crown case and then put the defence case on each issue as he dealt with 1t. Then at the end of the summing up he digested the arguments of counsel put in their final addresses. It is argued that this was not sufficient and that some aspects of the defence case were not dealt with by his Honour adequately. We point out once more that on this issue there was no complaint from the experienced senior counsel who represented the appellants at the trial. He at least, it may be assumed, saw no defect in the summing up in that the sworn evidence of the appellants was not put again as a separate entity which the appellants' counsel now says should have been done in addition to the piecemeal putting of the defence case issue by issue. It is conceded by counsel for the appellants that when his Honour put to the jury a summary of the appellants' counsel's address that it was "a fair summary", "a fairly accurate summary in shorthand". It should be noted that the complaint now is not that the defence case was not put to the jury but that the sworn evidence of the appellants was not put as a separate entity. Rv Veverka (1978) 1 N.S.W. L.R. 478 is said to be an authority for the proposition that as well as an adequate putting of the defence case, the sworn evidence of the accused must also be put as a separate entity. We are unable to accept that that case 1s an authority for any such proposition. It 1s another in the comparatively long line of cases which says that "a summing up must contain an adequate presentation of the defence case to

enable the jury from the terms of the summing up itself to

comprehend and understand what the defence case is". (per Street C.J. at p.482). In that case the court concluded that for such an adequate presentation it was necessary for the trial Judge to have read the unsworn statement of the accused or at least to have given a digest of it. In the present case the learned trial Judge did what might be thought to be even better. He gave a fair and accurate summary of the closing address of the appellants' counsel at the trial. What is required in any Jury trial of a criminal case is that the defence case be fully, fairly and accurately put to the jury in the summing up. Just how this is dorie will depend on the nature of the case, how it has been run by both sides and the atmosphere of the trial. Having re-read the summing up and the many references to the defence case contained in it, we consider that the defence case was fully, fairly and accurately put. This ground is rejected.

Grounds 17, 18 and 19 all have a somewhat similar basis.

"17. That His Honour erred in law in admitting the evidence of F.B. Cocks.

18. That His Honour erred in law in admitting the evidence of B. Sims.

19. That His Honour erred in law in admitting the evidence of Professor Cameron as to whether injuries inflicted by a dingo could have caused the blood found on Azaria Chamberlain's jumpsuit and as to the effects of injuries to the head of a child caused by a dingo".

Grounds 17 and 18 are stated in very wide terms but it

emerged in argument that what was objected to was that these two

witnesses were permitted without objection, except in one matter, to give some opinion evidence which was outside the strict area of their expertise.

Sgt. Cocks is a most experienced police officer in the

South Australian Police Force. He has been engaged in forensic police work for more than twenty years. He has received in-service training in other police forces. He has' some

qualifications granted at the University of Adelaide and at the South Australian Institute of Technology at which latter institution he gained a science technician's certificate in forensic science after a three year part-time course. He has been taught the techniques of crime scene investigation, the preservation of materials which may be exhibits and he lectures at the Department oof Further Education in crime scene examination, footprints and tool mark comparisons and police photography. At the time of the trial he was the current president of the South Australian branch of the Australian Forensic Science Society. He passed Botany I at the University of Adelaide which included taxonomy.

Various pieces of evidence given by Sgt. Cocks are now objected to. First, he said, that when he examined the jumpsuit he observed the presence of particles of green vegetation. he expressed the opinion that the vegetation on the fabric had got there by the fabric being rubbed directly on to vegetation

because of the way in which 1t had become enmeshed in the fabric.

He also said that vegetation on the inside of the back of the

Jumpsuit could not have got there when the baby was in the

jumpsuit. Whether or not Sgt. Cocks' study of botany made him enough of an expert to express the first opinion may be a matter of doubt, but similar evidence was given by kKuchel, the experienced botanist. And as to the second opinion, this was more a matter of common sense. Had the baby been inside the jumpsuit the inside of the back could hardly have been rubbed on vegetation. This evidence may be technically objectionable but it was telling the jury nothing it did not already know. Second, Sgt. Cocks gave evidence about the cuts or tears in the jumpsuit. He said that he had spent a good deal of his working life investigating tool marks on various materials including fabric and that part of his experience has been the investigation of marks made by scissors and-knives. He examined the damage to the left sleeve microscopically. He said that because of the fact that the fibres in the thread had stayed together and were the same length, his opinion was that 1t had been cut. He went on and said that he had tried cutting similar material on a hard surface with a razor and a scalpel but obtained a result different to the damage to the sleeve. He was only able to duplicate this damage with the use of scissors. He gave his opinion that scissors had been used similar to the curved bladed scissors found in the appellants' car. He was able to duplicate the damage to the left sleeve by folding the material of a similar jumpsuit and cutting with curved bladed scissors. Sgt. Cocks conceded that he was not an expert on fabrics and did not

know that the fabric of the jumpsuit was composed partly of

cotton and partly of nylon threads. It seems to us that Cocks

clearly might give evidence of what he did by way of experiment. The weight of this evidence 1s no doubt another matter. He was possibly qualified to give evidence that in his opinion the damage to the jumpsuit consisted of cuts, but even 1f he was not, his evidence was confirmed by that of Professor Chaikin, the acknowledged fabric and fibre expert, whose opinion evidence is not complained of. In any event the learned trial Judge in his

summing up dealt more than adequately with Cocks' position:-

"Before I conclude my remarks as to expert witnesses, I refer only generally to the evidence of Sergeant Barry Cocks. You may think he was a very experienced police oficer, employed for years in the forensic section of the South Australian police force, and no doubt, ladies and gentlemen, he has experience in many fields of forensic investigation into crime; he may be regarded as a most experienced crime scene investigator. He has been trained as to what to look for and what to do with the materials he finds. Primarily, his evidence was called to prove the receipt of the clothing on 16 September 1980, the vacuuming of soll, the presence of soil in the booties, the removal of apparent plant fragments and vegetation, the general appearance of the damage to the jumpsuit, his microscopic examination of fibres, which he said - and I'll mention this in a

moment - were consistent with being cut. He also gave evidence that in September 1961 he received the scissors from the family car. He described

their condition, and he proffered an opinion that the garment had been cut at a time when there was no body in them.

He demonstrated to you on a Bonds garment how it was possible to simulate the damage to Azaria's jumpsuit by cutting with scissors. The residue of tiny fragments he demonstrated, matters such as that. He told you how on 16 October 1981 he received vacutmings from the front and rear components of the car and from its mats. He found white dust (sic) tufts and loops from the driver's front compartment. He told you also how he sent to Professor Chaikin as he did with the litle particles of tufts and loops he vacuumed from the

camera case which he received from Dr. Scott on 20 September 1981, some of which he said were familiar in appearance to the fragments of his experiments 1n cutting a similar jumpsuit in his laboratory. he gave evidence of removing apparent

insect cocoons from blankets and the like with Dr. Scott.

Ladies and gentlemen, it 1s for you to decide how much weight you place on the evidence of Sergeant Cocks, but I wish to say to you that he is not scientifically qualified as an expert in fabrics or pathology. He may have a good working knowledge. The main function of his evidence was to show his lay observations, his collection of material and his dispatch of same. I would merely suggest to you in your consideration of his evidence, particularly when we get to the highly difficult area of fibres and the like, that you should not regard him as a scientific expert in this field. Your attention must on such issues, be directed to the evidence of Professor Chaikin. I suggest to you that in considering Sergeant Barry Cocks' evidence you should be hesitant to act on opinions which you know fall into scientific fields. You certainly may act on his evidence to observations, collections and his action".

"As I've said, Sergeant Cocks, you may think, is an experlenced police officer, but I don't want you to regard him as a forensic expert on fibres. He observed the suit under microscope; he observed what he interpreted as a cut, but I ask you to treat his evidence as that of a lay observer, albeit a trained observer, just as you, ladies and gentlemen, when you go to the jury room, may look at that suit and after considering all the evidence, 1f you are able to do so, draw your own conclusions".

As to ground 18, Sims 1s an experienced theoretical and practical forensic odontologist who has had some experience with dog bites on humans. These were domestic dogs and he has had no experience with dingo bites nor indeed has any other witness. It seems not to be an area of specialized knowledge. Having examined many dingo skulls, he says that the dentition of dingoes and of domestic dogs are substantially the same. He has seen live dingoes at the Yarrawonga Zoo and has examined and measured

the capacity of the jaws of a live anaesthetized dingo. He said

that there was very little difference between the dental anatomy

of a dog and a dingo. "It is just a member of the normal canine family". Speaking of a dingo skull which was an exhibit he said, "And we have here what 1s a normal dog skull in fact". No

complaint 1s made so far but 1t 1s said that Sims went outside his area of expertise when he spoke of dingoes. "Normally a dog will catch and snatch and it is stated the dingo will catch and twist and so instead of just having normal round punctate would which are the correct distances of the ~ in relation to the canine teeth it will also drag and tear the wound; so there was always a drag and tear wound". True 1t is that Sims is not an expert about dingoes in particular but in fact he has described something. not dissimilar to what Mr. Harris, the dingo expert, said when he described a dingo seizing its prey and giving a vigorous shake to break the animal's neck. The shake described by Harris 1s not unlike Sims' twist. It 1s Sims' evidence as an

expert on the dentition of dogs that such a shake or twist will

cause a hole and tear and we consider that he must be permitted

to say that. Later when speaking of dogs, Sims says that only trained dogs will bite and grip. Other dogs will bite and tear or twist. Harris, on the other hand, says that dingoes will grip and shake but not let go. Sims may speak about dogs and Harris about dingoes and each 1s properly qualified to do so. When asked whether there was anything about the damage to the jumpsuit

"In my opinion no, because there are none of the typical hole and tear marks which I would expect to find in the relationship of 4 canine teeth. To the arm, that is not the sort of shape one would expect to have a dog bite. One would have, as I say, at least 2 canines or 4 canines going in and causing a dragging and it wouldn't be as regular an outline as that".

The dentition of dogs and dingoes are said to be similar. So, as it seems to us, Sims may express that opinion. We note in passing that Orams, a reader in dental medicine and surgery and a dental pathologist, called by the defence, with little more experience of dingoes than Sims, was permitted

Sims gave his opinion that, 1f there had been a ripping of the throat by a dingo, there would have been copious bleeding. This might be thought to be outside the expertise of an odontologist even though Sims said he was familiar with the physiology of the neck and the blood supply to it. This opinion was not objected to and is in agreement with Professor Cameron who was plainly entitled to give it. Even if his Honour should have excluded this evidence, it was confirmed from another proper source, and we consider that little, 1f any, prejudice occurred

Later, without objection, Sims expressed the opinion

that if a dingo fastened its teeth into a child's facial tissues and tried to carry 1t or drag it away, the weight of the child would be too much for the strength of its facial tissues and the dingo would have to find a more secure grip. This opinion was perhaps objectionable as being outside expertise but could, in our view, have done little harm to the case of the appellants as it is the sort of conclusion to which any juror or other layman might have come. It is complained that Sims said, in answer to a question by his Honour, that there were no marks on the back of the jumpsuit consistent with canine teeth. As an expert in canine dentition, it seems to us that he was qualified to give this opinion. During the course of his examination-in-chief the

"To carry a child, would the dog have to have a firm purchase?

ae teteatentan! It would have to have a firm purchase on something secure; the back of the neck certainly where there's a good bone structure which it could

------ I would expect in the first instance that there - there might be a - beginnings of a struggle but ----

MR. PHILLIPS: Your Honour, we submit this is going right into the realm of speculation. This witness is a forensic dentist. He is being asked

a series of leading questions and we submit we have now gone beyond the area of his expertise and getting into an area of speculation, and we submit there ought to be a limit to it".

After this objection the question was not pressed. Almost

immediately afterwards, the following passage occurs:-

"HIS HONOUR: Can I just ask you this, you are assuming in your evidence, are you, Mr. Sims, that a dingo in consuming something will necessarily bite and tear? --- Yes.

Or in an aggressive situation will bite and tear such as when it bites me or something like that? ---- Yes.

What about a dingo who is more or less selecting its meal, be it a lump of meat or a buffalo bone,

to carry to another place? You would not necessarily get the tearing of the canine teeth in that situation, would you? ---- Not in that

Situation, no, not - the dingo I witnessed taking a buffalo bone away, with finesse gripped the - the meat at the end of the bone with its front teeth and dragged it off".

H2s Honour has here almost nullified the possible adverse effect of Sims' previous answer that a dingo would bite and tear and thus spill a lot of blood because Sims' answer makes it clear that if a dingo were selecting a meal to take to another place to eat, it would bite and grip.

It 1s also complained that Sims gave his opinion that the saliva of dingoes would contain amylase and later conceded that he might be mistaken. His expertise does not extend to the salivating of dingoes and he should probably not have been permitted to give the evidence. The prejudice in the case of the appellants was negligible. As we mention later, when considering the evidence of Dr. Scott, we do not regard the negative

assertion that during selective tests Scott did not find saliva

as of any significance. Finally, 1t 1s complained that Sims

should not have been permitted to give his opinion that the head of the child would not fit between the jaws of the dingo. In view of the experiment conducted by Harris with a doll's head and an anaesthetized dingo, that opinion of Sims was probably wrong,

but his expertise and his having measured the jaws of a dingo at Yarrawonga qualified him to give the opinion even if it was later proved to be incorrect. We would reject ground 18.

As to ground 19 Professor Cameron is a forensic pathologist of vast experience. Early in his evidence-in-chief,

"Now, could you tell me this please ~ tell the jury, speaking generally - in your view is there any evidence on those articles of clothing, or about those articles of clothing which suggest to you that the child was attacked and killed by a dingo? ----- I saw no evidence on any of these garments to suggest that any member of the canine family was involved. I cannot say anything about dingoes. I speak about the canine family in general.

In your opinion, is there evidence suggesting to you that the child was not killed by a member of the canine family? ----- There 1s evidence to suggest it was killed in another method.

And what, 1n your view, does the evidence suggest? cocc- It suggests that there was an incised would of the neck - in other words, a cut throat.

----- I can see no evidence to support an animal theory.

What do you see evidence of? ----~ Evidence of a pattern consistent with an incised wound of the neck".

It seems to us that Professor Cameron was well qualified to give this opinion, limited as 1t is to the canine family in general. In cross-examination, further and more definite answers were elicited from him, for instance, that in his opinion a dingo could not have attacked the child. The appellants can hardly be heard to complain now that their counsel obtained unsatisfactory answers 1n cross-examination.

It is further objected that Cameron had no expert knowledge of the attacking and grasping habits of dingoes and nor did he. Nor an fact did any other witness except Harris, the Dingo Foundation president. Cameron expressed an opinion that if a dog or dingo had bitten the child about the head and face while the child was in the bassinet, he would have expected quite a large amount of blood to flow. Cameron is an expert in the physiology of a child's head and in our view was well qualified to give this opinion as he was to give his opinion that the staining on the jumpsuit was more consistent with a cut throat than with a wound or wounds to the head. The evidence was not objected to and Dr. Plueckhahn, also inexperienced with dingoes, was permitted to give contrary evidence. We would reject ground 19.

Ground 20 in view of the decision not to allow the introduction of further evidence from Mr. Roff, it is unnecessary to deal with this ground.

his charge to the jury in that he failed to issue warnings that ain respect to the evidence

based upon acceptance of such evidence they had to be satisfied beyond a reasonable doubt that the only inference that could be drawn

from the scientific evidence was that blood alleged by the Crown to be foetal blood was in fact foetal blood from the baby Azaria Chamberlain;

(ii) the evidence adduced by the Crown in relation to the spray sample taken from the underdash of the Torana motor vehicle Engine Number 8C77RG J 588763X was of such a nature as to be unreliable in respect to the allegation by the Crown that it was foetal blood of the baby Azaria Chamberlain;

(iii)the evidence adduced by the Crown in relation to the scissors (Exhibit No. 56 at trial) was

of such a nature as to be unreliable in respect to the allegation by the Crown that foetal blood from the baby Azaria Chamberlain

Ground 21(i) as drawn appears to make little sense. The scientific evidence on both sides was directed to the issue as to whether various blood stains contained foetal haemoglobin but was not, and indeed could not, have been directed to the further issue as to whether or not such blood containing foetal haemoglobin was that of the child Azaria. We propose to treat the ground as if the words "from the baby Azaria Chamberlain" were deleted. It does not appear to us that the suggested direction was one which the learned trial Judge was required to give. Again, this ground seems to us not to go beyond ground 14 which has already been dealt with. We would reject it. Grounds

21(ii) and 21(iii) seem to us to have no substance. His Honour

dealt adequately with the evidence as to the spray pattern and

the blood stains on the scissors and it was for the jury to

decide what weight, if any, they put on that evidence. In our opinion no further warning was required. We would reject both grounds.

Ground _23(i) was abandoned. Our decision refusing to allow the tender of the further evidence of Dr. Carrell and Professor Boettcher renders grounds 23(ii), (iii) and (iv) inapplicable.

Ground 5 remains to be dealt with. This is as follows:-

As we have said, we consider this ground to be open to the appellants. It requires consideration of the question whether either verdict was one which the jury, viewing the whole of the evidence reasonably, could not properly find. This question lies at the heart of the appeals. It is a question, to which we have devoted very careful consideration.

It has been necessary for us to consider the whole of the evidence, bearing in mind that the jury saw and heard all the witnesses being examined and cross-examined and making due allowance for this advantage which the jury enjoyed.

We have taken the view that we are obliged to act on

that view of the facts which in our opinion the jury were

entitled to take having seen and heard the witnesses. In this

respect the case does not appear to us to differ in principle from a case where an appeal court is empowered by statute to auntervene "if it thinks that the verdict should be set aside on the ground that it 1s unreasonable or cannot be supported having regard to the evidence". (See Hayes v The Queen (1973) 47 A.L.J.R. 603 at pp.604-605).

We have also taken the view that it would be wrong for us to reconsider the evidence and resolve apparent conflicts between witnesses, whether expert or not, without bearing in mind that 1f there is a body of evidence on each side of a question which is prima facie credible, the jury 1s entitled to prefer one body of evidence to another. Of course, on a particular issue, one body of evidence may emerge from the printed page as so clearly to be preferred to another, that this Court could conclude that the jury should have accepted one rather than the other.

A further point which must be borne in mind is that a jury do not have to be satisfied beyond reasonable doubt that the Crown case on each issue of fact that arises in the course of the trial is made out. What is required before they can properly convict is that, at the end of the day when considering the case as a whole, they are satisfied beyond reasonable doubt as to the guilt of the accused even though they may not be so satisfied on every evidentiary issue that goes to make up the Crown case as a whole. The matter was put in the following way by Pollock C.B. in summing-up to a jury in R v Exall (1866) 4 FP. & F. 922 at

"Tt has been said that circumstantial evidence is to be considered as a chain, but that is not so, for then, if any one link broke the chain would fall. It 1s more like the case of a rope composed of several cords. One strand of the cord might be insufficient to sustain the weight, but three stranded together may be quite of sufficient

(See R v van Beelen (1973) 4 S.A.S.R. 353; Thomas v The Queen (1972) N.Z.L.R. 34 at p.38). In so far as it may be regarded as the task of this Court to consider whether or not it entertains a reasonable doubt as to the appellants' guilt (see Ratten v The Queen (1974) 131 C.L.R. 510 at p.517) it is the effect of the case as a whole which 1t must consider and not particular issues taken in isolation. Of course the case as a whole is made up of a number of particular issues of fact, each of which must be considered. For example, if this Court felt that it could not be satisfied beyond reasonable doubt that traces of foetal blood were found in various parts of the Chamberlains' car, an important issue in the case, it does not necessarily follow that it could not be satisfied beyond reasonable doubt that the appellants are guilty. A reasonable doubt entertained on many issues or on one important issue may lead to a lack of satisfaction beyond reasonable doubt as to the whole, but as a matter of logic it need not necessarily do so.

We apprehend that there will be relatively few cases in which there was adequate apparently credible cogent evidence put

before a Jury and an appeal court should interfere with its

verdict of guilty (See Hayes v The Queen supra at p.605). It is

The only two hypotheses to account for the disappearance

and death of the child Azaria which were put to the jury were 'that put by the Crown that she had died by having her throat cut

by the first appellant in the front passenger seat of the family car and that put by the defence that she had been taken by a dingo and carried off by 1t. The defence expressly disavowed the possibility that one of the other Chamberlain children might have killed the child and indeed there was no evidence to support that hypothesis. The evidence was wide-ranging and complex and was almost entirely circumstantial. In view of the learned trial Judge's careful direction as to the treatment of circumstantial evidence, the jury must have considered that they could not accept the only hypothesis reasonably consistent with the first appellant's innocence, that 1s, that the child was taken from the tent by a dingo.

One question which arises is, were the jury wrong to be satisfied beyond reasonable doubt, as they must have been, that the dingo story was not reasonably possible? In order to be so satisfied, the jury must have concluded that both appellants told lies in important matters and must also have disbelieved some at least of the evidence called by them on the basis that the witnesses were either mistaken or untruthful. It will be convenient to deal with the evidence issue by issue and then consider it as a whole.

Blood in car. A crucial question in the consideration

of the whole matter is that of blood stains found in the

appellants' family car and on various articles found or known to

be in the car at the relevant time. The discovery of blood

stains occurred some thirteen months after the night of the @isappearance of the child Azaria. There were positive presumptive indications of the presence of blood found by the ortho-tolidine screening test in various places in the car. The prosecution asserted that many of these blood stains, when tested, revealed the presence of foetal haemoglobin and this was one of the foundations of the hypothesis advanced by 1t that the child Azgaria had her throat cut by the first appellant in the front passenger seat of the car. This assertion of the presence of foetal haemoglobin was based on the evidence of Detective Metcalfe, Mrs. Kuhl, Dr. Baxter and Mr. Culliford concerning the discovery of the stains and the tests performed by Mrs. Kuhl on extracts of the stains. An attack was mounted by the defence on Mrs. Kuhl's evidence on the basis that her opinions of the presence of foetal blood were not founded on a sound scientific base. Her honesty was not attacked but simply her competence and the soundness of her methods and the mono-specificity of the anti-sera used by her. This attack was based on the evidence of Professors Boettcher and Nairn called by the defence.

In order to evaluate the evidence on this issue, it is necessary to understand the various tests used by Mrs. Kuhl which had the result, in her opinion, of indicating the presence of foetal haemoglobin. This, 1t 1s common ground, shows that the

blood is that of a child under six months of age and most

Mrs. Kuhl is a forensic biologist employed by the Health Commission of New South Wales with considerable practical day-to-day experience in the examination of blood stains although her experience in examining aged blood stains 1s considerably less than with relatively fresh stains. Mrs. Kuhl and Detective Metcalfe of the Darwin Police examined the appellants' motor car scme thirteen months, as we have said, after the night on which the baby Azaria disappeared. Mrs. Kuhl ""screened" the whole of the inside of the car apart from the engine by using the ortho- tolidine presumptive test. She aiso "screened" a number of articles found by her and Metcalfe within the car. The ortho- tolidine screening is carried out by the operator rubbing the area to be screened with a filter paper, then treating the filter paper with ortho~tolidine and later with hydrogen peroxide. The presence of blood causes the filter paper to go a turquoise blue colour. Some other substances such as rust will give a reaction when the two fluids are applied in succession to the filter paper but an experienced biologist, which Mrs. Kuhl is, should readily be able to identify such a reaction as being caused by something other than blood. Also, some substances will give a reaction to the ortho-tolidine alone but these by definition cannot be blood. No serious attack was mounted against Mrs. Kuhl's screening and the jury was quite entitled to accept her results in this regard as we must say we do.

Nineteen areas in the car, on its upholstery or carpets and on and under the front passenger seat gave positive results

to the presumptive test for blood. A ten cent coin found under

the front passenger seat, a chamois in a plastic container, a pair of scissors and a towel found in the back of the car also gave positive results to screening. An apparent spray pattern of staining underneath the glove box gave a negative result. This area of staining will need to be considered separately. Mrs. Kuhl also examined minutely a camera bag which had been conceded by the appellants to be inside the car on the relevant night. This bag also will need to be considered separately.

The assistance of the New South Wales Health Commission having been sought in the first place, Dr. Baxter, the Head of the Forensic Medicine Laboratory, gave the work to Mrs. Kuhl to do, instructing her to screen the car and its contents and, if possible, to test any areas which gave positive presumptive tests for the presence of foetal haemoglobin. Mrs. Kuhl complied with these instructions and in each case, when she obtained what she thought to be proof of the presence of foetal haemoglobin, she showed the tube, the ouchterlony plate, the crossover electro phoresis gel or the haptoglobin plate, as the case might be, to Dr. Baxter who, in each case, unprompted by her, came to the same conclusion.

Mrs. Kuhl used four different tests on the extracts made from the presumed blood stains. One test was used on most extracts, two tests on one extract, and three tests on two. The number of tests depended to a considerable extent on the amount of the extract available and the type of test used was a matter for Mrs. Kuhl's judgment. The four different tests were the tube

precipitin test, the crossover electrophoresis test, the

Ouchterlony test and the gradient gel or haptoglobin test. In order to understand the criticisms made by Professors Boettcher and Nairn it is necessary, briefly, to explain the nature of these four tests. It should be noted that the blood of a newborn

baby contains roughly 75% foetal haemoglobin and 25% adult haemoglobin. The blood of a child of the age of Azaria Chamberlain contains roughly 25% foetal haemoglobin and 75% adult haemoglobin.

The tube precipitin test is the simplest and quickest.

A very small diameter test tube has the appropriate anti-serum

placed in the bottom, in the present case anti-foetal haemoglobin

serum, then the extract being examined 1s very carefully layered

on top of it with a micro-syringe so that there is no mixing. In Mrs. Kuhl's words, "You must have an interface, a non-mixed interface". If there is foetal haemoglobin present in the sample

being tested, a definite white precipitation line 1s seen at the interface.

In the crossover electrophoresis test, wells are made in a flat plate of gel. The extract being tested is placed in a central well and in other wells various anti-sera are placed. An electric current is passed through the gel which stimulates the molecules in the test sample and the various anti-sera to migrate. When the molecules from the test sample and from the appropriate anti-serum meet, the molecules lock together and form

a band which can be seen by the naked eye. If a band is formed

between the well containing the test sample and the well

containing an anti-serum, this indicates that the test sample

contains the haemoglobin molecule appropriate to the anti-serum. If a band forms between the test well and the anti-foetal haemoglobin well, then the presence of foetal haemoglobin in the test sample is indicated.

In the Ouchterlony test, a small plate of gel once more has wells punched in it and the test extract is placed in one well and known anti-sera and controls are placed in other wells nearby. No electric current is applied to the gel. The plate is kept in a humid chamber in a refrigerator for twenty-four hours or more and the various fluids placed in the wells diffuse through the gel. If the appropriate antigen meets the appropriate anti-body, if, for instance, the test sample contains foetal haemoglobin, and the diffusion from this meets the diffusion from the well containing known anti-foetal haemoglobin serum, a band will form due to the interlocking of the molecules.

The plates used in these two latter tests can be stained so as to make the bands more clearly visible and preserve them.

It will be seen that 1t 1s of vital importance in these three tests, when looking for foetal haemoglobin as Mrs. Kuhl was, that the anti-foetal haemoglobin serum is mono-specific, that 1s, will react with no molecule other than foetal haemoglobin.

The fourth test used by Mrs. Kuhl 1s primarily used to ascertain the haptoglobin grouping of the blood sample. Two glass plates are taped together with a polyacrylamide gel sandwiched between them. Samples are placed in between the

plates at the top with a micro-syringe and the plates are

suspended upright and electric current 1s applied to the gel. The samples travel down through the gel overnight. The gel may be likened to a molecular sieve and when particular molecules travel as far as the diminishing holes in the gel will permit, the molecules will be held and form a band which can be seen with the naked eye. If the blood sample being tested contains both adult and foetal haemoglobin, the adult haemoglobin will form a band at the bottom of the gel and the foetal haemoglobin will form a band higher up. Haptoglobin activity will be seen higher up still, from which the haptoglobin grouping will be ascertained. The point of this test is that if foetal haemoglobin as well as adult , haemoglobin 1s present in significant quantities, the two bands will be clearly seen towards the bottom of the plate, but if only adult haemoglobin is present, only one such band will be seen. These plates can also be stained to preserve the bands and to make them more easily visible. It should be realised that the haptoglobin test 1s pramarily a blood grouping test and the presence of adult and

foetal haemoglobin bands 1s, in a sense, a by-product of that

Mrs. Kuhl's evidence was supported by that of Dr. Baxter and Mr. Culliford. Dr. Baxter oversaw her work and approved her mothods and resuits. He made no notes and by the time of the

trial he had no specific recollection of any of the tests except that he remembered clearly a haptoglobin test carried out on

flakes of dried blood found on the seat hinge and on the vinyl

contiguous to it and remembered the obvious two bands indicating

the presence of foetal haemoglobin. Mr. Culliford, a most

experienced practical forensic biologist who is Deputy Director of the Metropolitan Police Laboratory in London, has been a working forensic scientist for more than twenty-nine years. His services have been sought in many parts of the world. He is conceded by Professor Boettcher to be the world's leading forensic biologist. Having read her evidence and read her laboratory work notes, Mr. Culliford approved Mrs. Kuhl's methods and conclusions. He did not see the plates and gels as Dr. Baxter did, and neither did Professor Boettcher or Professor Nairn, as these things were destroyed shortly after being stained and read. This destruction was in the ordinary course of laboratory practice and any suggestion that 1t was done deliberately to avoid weakening the evidence of Mrs. Kuhl and Professor Baxter has been expressly disavowed by counsel for the appellants.

Professor Boettcher, with whom Professor Nairn agrees, does not criticise Mrs. Kuhl's laboratory technique but criticises her conclusions. Professor Boettcher 1s oa distinguished academic scientist and is at present Professor and Head of the Department of Biological Science at the University of Newcastle, New South Wales. As we have said, he has published many papers in scientific journals concerning genetics, blood grouping genetics and immunology. He has taught the principles involved in three of the tests used by Mrs. Kuhl. He expressed the opinion that it should not be concluded on the basis of the test performed by Mrs. Kuhl that foetal haemoglobin was present

Professor Boettcher criticises Mrs. Kuhl's evidence on a number of bases. Basing himself on Mrs. Kuhl's laboratory notes he says that she appeared to have observed more positive reactions by the serum to the test samples than those to a cord blood control. This is unexpected since the cord blood control would have a markedly higher proportion of foetal haemoglobin than the test sample, if this were indeed Azaria Chamberlain's blood. He next says that there was internal inconsistency in her results because of the lack of reaction of the samples with anti- haemoglobin serum, which reaction one would expect because the sample, 1f 1t were Azaria's blood, would have a fairly high proportion of adult haemoglobin. He says that the Ouchterlony

test on an extract from a pair of scissors should have worked 1f the anti-foetal haemoglobin serum was satisfactory. He also says that Mrs. Kuhl's explanation for the failure of some tests to work, that is, that it was due to a prozone effect, 1s unsatisfactory.

Professor Boettcher conducted a number of tests using anti-foetal haemoglobin serum from Behring Werke, the same source as Mrs. Kuhl obtained her anti-serum from. But it must be nated that this anti-serum was not shown to be from the same batch as

that used by Mrs. Kuhl. Boettcher's tests indicated that his

anti-serum reacted with something other than foetal haemoglobin and he says that this was a component of adult bicod, possibly adult haemoglobin. Professor Boettcher also criticises Mrs. Kuhl's interpretation of the demonstration Ouchterlony plate. In

this plate there was an unusual mark which Mrs. Kuhl says was an

artifact in which assertion she is supported by Dr. Baxter andé Mr. Culliford. Boettcher says, on the other hand, that 1t was a precipitin band indicating a reaction between anti-foetal haemoglobin serum and adult haemoglobin. He 1s supported in this by Professor Nairn. So far as the anti-foetal haemoglobin serum used by Mrs. Kuhl is concerned, she and Dr. Baxter both swore that it was tested for specificity when 1t was received as a matter of routine. Mrs. Kuhl also gave evidence that after the second inquest she tested the serum against more than two hundred samples of adult blood, some fresh and some less than fresh, without getting any reaction, thus, 1t was argued, proving its mono-specificity.

Also in the demonstration plate double bands are to be seen in four places where in ideal conditions one would only expect one indicating the presence of foetal haemoglobin in the sample. This double banding which occurred in four places is said by Professor Boettcher to indicate that the anti-foetal haemoglobin serum 1s not mono-specific as it should be. Kuhl, Baxter and cCullaiford say that the double banding 1s not Significant.

Boettcher also criticises Mrs. Kuhl''s gradient gel haptoglobin plate interpretation and says that such tests can be misleading because 1t is possible to see as two bands what 1s really only one band. He acknowledges, however, that he would expect that this phenomenon would be known by a competent biologist who would not be deceived. Mrs. Kuhl is such a

The guestion of the denaturation of blood which is aged and has been subject to humidity was much debated. The appellants' witnesses say that denatured blocd is difficult to deal wath and, in particular, difficult to dilute with any accuracy for the purposes of immunological tests. Culliford agrees that denatured blood is unpredictable but says that all that one can do is test it and see. He spoke of a ten to fourteen day old sample which gave no reaction and of a sample years old which had been subject to considerable heat which did.

Professor Nairn, also a most distinguished and qualified academic scientist whose speciality is immunology, supports Professor Boettcher absolutely. He has had little practical forensic experience but says that this does not matter because of his superior grasp of the fundamental theory of the tests.

In effect there are lined up on one side, Kuhl, Baxter and Culliford, practical and practised forensic biologists. Mrs. Kuhl is less experienced than the other two but nonetheless has: done a good deal of the work. On the other side are Boettcher and Nairn whose academic qualifications and eaperience are impeccable but whose practical forensic experience 1s negligible. We have seen and heard none of these witnesses being examined and cross-examined but we have a firm impression from reading the transcript a number of times that Mrs. Kuhl stood up to very long

and hard cross-examination very well and her evidence was not

mater1lally affected by it. Baxter and Culliford were not cross-

examined at such great length but emerged from such cross-

examination as they had relatively unscathed. Professors

Boettcher and Nairn both exhibited in the transcript a rather unbecoming arrogance and Boettcher in particular did not fare well in cross-examination. Had we seen and heard all the

evidence on this topic being given, we might have concluded

otherwise, but situated as we are, we have no doubt that the jury was entitled to prefer the evidence of one group of experts to that of the other group. A number of close examinations of the evidence on this topic and a consideration of the arguments and criticism of counsel for the appellants does not lead us to the conclusion that the evidence cf the appellants' experts 1s so strong that we could say the jury was wrong to accept the evidence of the Crown experts.

We deal now with the spray pattern under the dashboard and the camera bag. When Metcalfe and Kuhl examined the car in Sydney on 8 August 1981 they discovered a spray pattern under the dashboard and next to the glove box. Metcalfe touched one area of it and it felt sticky to the touch. Mrs. Kuhl tested the area of the spraying using the ortho-tolidine test and this proved

negative. The sticky area cculd not have been Azaria

Chamberlain's blood as blood dries in from fifteen minutes to two hours. Metcalfe thought it was probably soft drink and this seems likely. In view of subsequent results Mrs. Kuhl explains her failure to obtain a positive ortho-tolidine result by saying that the staining under the dash was probably contaminated. on 10 November 1981 the car, having meanwhile been moved to Alice Springs, was examined by Dr. Jones, a pathologist then employed

by the Northern Territory Government. He saw two patterns of

staining, one of which appeared to be a spray pattern and the other of which appeared to be splashed. Dr. Jones removed four of the spots and sent three to Mrs. Kuhl for further examination. The three sent to Mrs. Kuhl were tested by her by crossover electrophoresis which tests revealed, in her opinion, the presence of foetal haemoglobin. Dr. Jones later removed a metal plate from under the dash and sent to Mrs. Kuhl a sample of what appeared to be blood which came from the leading edge of it. This sample was also tested by crossover electrophoresis and a non-specific result was observed which, coupled with a first stage reaction to the ortho-tolidine test, led Mrs. Kuhl to the conclusion that the stain was not blood. It 1s argued for the appellants that of the three stained areas under the dash tested by Mrs. Kuhl, one is not unequivocally part of the spray pattern and the other two are unequivocally part of the splashed droplet pattern. However this may be, if Mrs. Kuhl's test results were accurate and her opinion correct, unexplained foetal haemcglobin was found under the dash. The Crown argues that it may properly be iunferred that this foetal haemoglobin came from Azaria, the spray coming probably from a cut artery in her neck. The jury was entitled to accept Mrs. Kuhl's evidence and to draw this inference. If they did so, we are unable to say that they were wrong. Another feature of the spray pattern 1s its angle. Professor Cameron and Dr. Jones both say that the spray came from

the front of the car towards the back and struck the plate and

the underdasn at an angle of about +45 degrees. This indicates that the source of the blocd was well forward under the

The camera bag, which at relevant times had been on the floor in front of the driver, was minutely examined by Mrs. Kuhl. She took four days to do so. A number of) the areas inside the varlous compartments and on the outside of the bag gave positive ortho-tolidine reactions. By crossover electrophoresis Mrs. Kuhl detected what was in her opinion foetal haemoglobin on the clasp of the zip of the front compartment, on the buckle on the outside of the bag and on the flap underneath this buckle. She detected the presence of human haemoglobin on the zip clasp of the middle compartment of the bag which does not necessarily exclude the possibility of there being foetal haemoglobin there. The jury were entitled to find that there were indications of blood in the compartments of the bag which gave a positive ortho-tolidine reaction and were entitled to find that there was foetal haemoglobin in the places found by Mrs. Kuhl. JI they did so, we are unable to say they were wrong.

We should also deal briefly with the scissors which were found in the back compartment of the car. Positive ortho-tolidine reaction was obtained by Mrs. Kuhl on or about the handles and on one blade. Mrs. Kuhl managed to obtain a very small amount of extract from a stain on the cutting edge. She tested this by the Ouchterlony plate methed and obtained what she

described as not a strong result which she reported as an indication of the presence of foetal haemoglobin because there

were inadequate controls and she covld not be certain in a

scientific way that the result nad been obtained. The appellants

argue that this result should have been excluded. we are unable

to agree with this argument. The result was never said by Mrs.

Kuhl to be a definite one and she explained and qualified her

In the result it 1s Our view that the jury were entitled to find that foetal haemoglobin indicating the blood of a very young child was found in the various places on the various

objects listed below and if it did so find that finding should

One of the areas of the towel Same stain on towel Same stain on towel

Flakes suspended between hinge and seat Drivers side carpet near door

We now deal with other bleeding said to have taken place in the car as this was proffered as a possible explanation of the finding of blood stains. First, there is Mr. Lenehan who, having been involved in a motor accident, was picked up by the Chamberlains on 17 June 1979, some fourteen months before Azarla disappeared. Lenehan had a scalp wound which defied the Chamberlains' attempts to staunch the flow of blood. He climbed into the Chamberlains' car through the hatchback and lay with his head forward and his feet to the rear. The exact way 1n which he lay is not clear but his head must have been close to the back of the front passenger seat. [It 1s suggested by the appellants that Lenehan was the source of the blood stains found on or about the seat hinge and under the passenger seat. This suggestion is countered in a number of ways by the Crown. First, 1f£ the stains

contain foetal haemoglobin the blood could not have come from

Lenehan who was 20 years old at the time. Next, it is said that

Lenehan's blood had a different PGM grouping to that of one of the stains which was tested. Next, it was said that it would be unlikely that any of the blood stains were sufficiently old to

have come from Lenehan, not impossible but most unlikely.

Finally, it was said that Lenehan's head was nowhere near far enough forward to have been the source of the spray under the dash, 1£ indeed blood had been spraying from him at all which was unlikely as his wound was covered in bandages. If the jury rejected Lenehan as the source of the blood stains found in the

There was also evidence that Aiden and Reagan the Chamberlain children, had had nose bleeds in the front passenger side of the car. This evidence was not specific as to where the blood from these children maght have gone and in any event this blood would not have had any detectable foetal haemoglobin. It was also proved that Azaria sometimes vomited while sitting on her mother's knee on the front passenger seat. There was no evidence that the vomit ever contained blood although vomit may sometimes do so. If some of the stains contained foetal haemoglobin, it seems most unlikely, 1f£ not impossible, that the blood in Azgaria's vomit could have led to all the findings of foetal haemcglobin.

There was also evidence that children from a church group were frequently transported in the car and that sometimes they would have bled from minor injuries. These children were, however, too old to be the source of detectable quantities of

If Mrs. Kuhl's evidence 18 accepted, we think that Lenehan, the boy and the church group children are excluded as sources of blood in the car.

The baby's clothes. Some aspects of the baby's clothes

are of importance in the case as a whole. The jumpsuit, singlet,

booties and damaged nappy were discovered by Mr. Goodwin seven

days after the night on which Azaria disappeared. The singlet was inside out but placed inside the jumpsuit. Both garments were heavily bloodstained. There was soil staining on the

garments and a quantity of soil in each of the feet of the Jumpsuit. There were many plant fragments in and on the jumpsuit. There were cuts or tears in it. The Crown case was that the first appellant killed Azaria by cutting her throat in the family car and it says that the bloodstains on the singlet and jumpsuit tend to support this theory. At some time after the child's death, so the Crown case goes on, the first appeilant or both of them buried the corpse of the child still wearing the clothes at some place on the sandhills close to where the child was killed in the car. At some later time the child was disinterred and the body disposed of, the clothes less a matinee jacket, which the child was wearing and which has never been found, were taken by the appellants or one of them to the place where they were found in close proximity to a dingo lair, having first been cut with curved bladed scissors to simulate damage by the teeth of a dingo. It was also said that the jumpsuit was

rubbed by the appellants or one of them in vegetation before

being placed where they were ultimately found. The appellants'

case was that the child was taken by a dingo and that the blood stains on the singlet and jumpsuit came from wounds to her head or face or neck caused by the gripping and biting of the dingo. They say that the soll stains on the clothing and the soil present in the feet of the jumpsuit must have got there when the child was being dragged by a dingo. They also say that the cuts and tears in the jumpsuit were caused by the teeth of a dingo and that the plant fragments must have got on to the clothing when the dingo dropped or dragged the baby on or along the ground. The defence case says further that the dingo must have remcved the child from its clothing and devoured it and left the clothing near a dingo lair.

The important issues concerning the clothing are the interpretation of the blood-staining, the interpretation of the cuts or tears, the identification of the soil found in and on the jumpsuit, the identification of the plant fragments and their likely origin, and the interpretation to be placed upon the fact that the singlet was inside the jumpsuit but was itself inside out.

The blood stains on the singlet and jumpsuit were examined by Dr. Cameron and Dr. Jones called by the Crown and Dr. Plueckhahn called by the defence. Professor Cameron is Professor of Forensic Medicine at the University of London at the London Hospital Medical College. He has had a great deal of experience of pathology and has carried out some 56,000 autopsies including

quite a considerable number of examinations of the corpses and

clothing of persons who have died from having their throats cut.

He has also been associated with a number of cases, well into

double figures, of suspected dog bites on human beings. He has examined the clothing of persons suspected of having been bitten by a dog through their clothing. Cameron said that he could see no evidence on any of the garments to suggest that a member of the canine family was involved. He knows little of daingoes in particular as he has only examined one skull and seen two live dingoes in the Yarrawonga Zoo near Darwin. Cameron's opinion is that the blood-staining around the neck of the jumpsuit suggests that the wearer of the Jumpsuit had her throat cut. He says further that the pattern of staining indicates that the top studs of the jumpsuit were done up at the time the blood flowed or seeped on to 1t. He does not discount the possibility that some head injury may also have occurred but says that the main injury was a cut throat. He says that the staining 1undicates that the child was supine when it had its throat cut but was then moved into a sitting up or semi-sitting up position while the blood was flowing or seeping. He says that there was on the jumpsuit what appeared to him to be the ampression of a small adult hand in transferred blood with the impression of four fingers at the back of the jumpsu1rt and a thumb at the front as if the child were being held with a hand under its armpit, a natural way to hold a child. the blood-staining on the singlet indicates, Cameron says, that the singlet was worn right side out when the bleeding occurred and that the bleeding was from the outside in. He says that the transferred blood from the impression of the hand has

soaked through the jumpsuit on to the singlet. Ee discounts the

dingo theory. He says that because the child had lattle or no neck or a chubby neck a member of the canine family would not be able to wound the neck so as to produce the bleeding without damaging the neck of the jumpsuit in an irregular way if the suit was done up to the neck as the staining indicates that it was. Cameron was attacked on the basis that his opinion that a member of the canine family could not have taken the child and removed it from the jumpsuit was based in part on misinformation that, when found, the jumpsuit had only the top two buttons undone, but he says that this does not in any way affect his opinion that the child had its throat cut. There was also an attack mounted on the basis that he was told that the clothing was found in a neat bundle which Constable Morris demonstrated it was not when he set up the clothing to be photographed after he had roughly examined it. However, Mr. Goodwin, the finder of the clothing,

demonstrated in court during the trial how the clothing was when

he found 1t and his demonstration indicated a fairly neat pile. Once again Cameron says that whether or not the clothing was found in a neat pile, does not affect his basic opinion that the child had its throat cut. These attacks, as it seems to us, were inconclusive.

_ Dr. Jones, a forensic pathologist employed by the

Institute of Medical and Veterinary Science in Adelaide, also

examined the clothing. He was less experienced than Cameron or Plueckhahn. He considers that tne most likely injury to cause

the blood-staining was an injury to the neck damaging blood

vessels in that area. He postulates a lacerated or incised wound

to the front of the neck. He agrees with Cameron that the body was probably supine when wounded and was later elevated to a more upright position while blood was still fluid. He does noc

exclude the possibility of head injuries having contributed to the bleeding but favours the proposition that it was a neck injury.

A far more serious attack on Cameron's evidence was made

by Dr. Plueckhahn who has been Director of Pathology at the Geelong Hospital since 1954 and Senior Pathologist to the Geelong coroner during that time. He is highly qualified and

experienced. His experience 1s perhaps a little less than that of Professor Cameron because of the smaller population of Geelong compared with that of London. Plueckhahn has also seen corpses with their throats cut and examined their clothing. He said ina quite unequivocal way that Cameron's opinion of a cut throat is completely unfounded. He withdrew somewhat from this position but still maintained that the most likely cause of the blocd- staining on the jumpsuit and the singlet was from a head injury such as might be inflicted by a dingo crushing the head in its jaws and inflicting injuries with its teeth. He said finally in cross-examination that the blood-staining was consistent with heavy bleeding from the throat, head or neck. The extent of his disagreement with Cameron as to the source of the blood finally seemed to be that he disagreed with Cameron that the injury was a cut throat with the possibility of head injuries as well. He would say, we think, that the position was almost exactly

the reverse and that a head injury was just as likely, 1£ not

more likely, as the primary source of bleeding with a possibility

that an injury to the throat may have caused or contributed to it. As to Cameron's impression of the hand, Plueckhahn flatly disagrees. He says that all the blood-staining on the jumpsuit and singlet could be from direct flow and in any event says that having tried very hard to do so he cannot see anything which suggests @ human hand. Disagreeing rather colourfully, he said that it could be an emu's paw which made the marks. The jury saw the jumpsuit and special fluorescent photographs of it as did this Court. Whether or not Cameron was right to say that there was an impression of a hand was peculiarly a question of fact for the jury. Acting as jurors, we agree with Cameron without being able to say that those who thought otherwise were clearly wrong. We are unable to say that 1f the jury considered that there was the impression of a hand in transferred blood on the jumpsuit

they were wrong to do so. As to the heavy staining on the neck,

there was, as we have briefly set it out, strong evidence on both sides. We must say that we gained the impression from Dr. Plueckhahn's evidence that he had to some extent lost his proper

scientific detachment and objectivity and was anxious to attack

Dr. Cameron and entertained a degree of ill-will towards what he

described as "the London Set". This may be unfair to Plueckhahn, whom of course we did not see and hear. Also it may not have affected his evidence. But it indicates a difficulty facing an appellate court in a case of this sort. We are unable to say

that the jury was wrong to prefer the evidence of Professor

Cameron to that of Dr. Plueckhahn if indeed they did so.

It is argued that if the opinions of well qualified

scientists are in disagreement then a jury cannot be satisfied

beyond reasonable doubt that one or the other is correct. This cannot, we think, be right. Scientists, like other people, are capable of being mistaken. If two are in flat disagreement, plainly one must be wrong. It 1s for the jury, 1f they can, to

determine the facts and an appeal court is not usually in a4 position to say that they were wrong. The situation 1s, as it seems to us, distinguishable from that in Repatriation Commissioner v Law (1981) 36 A.L.R. 411 where there were conflicting written opinions and no witnesses were seen and heard. We also point out again that the jury do not require to be satisfied beyond reasonable doubt on a particular issue but require to be so satisfied on the whole of the evidence before they should convict.

The next question we consider is that of damage to the jumpsuit. Sgt. Cocks a most experienced police officer, who has

been engaged in forensic duties for more than twenty years and

has received formal training in forensic techniques. We have

already discussed his evidence in dealing with ground 17. He gave his opinion that the collar and the left sleeve of the

Jumpsuit had been cut with curved bladed scissors. He is not an

expert on textiles but has had training and experience in the effect of knives and other weapons on clothing and he supported his opinion by cutting an identical garment with curved bladed scissors and duplicating the damage to the sleeve. Professor

Chaikin is an academically well qualified man who has been

Professor of Textile Technology and Head of the School of Textile Technology at the University of New Scuth Wales since 1955. He examined the damage to the neck and the left sleeve both with and without the aid of the scanning electron microscope. He came to the conclusion for reasons which he gave and demonstrated concerning the configuration and appearance of the fibres at the edge of the damage, that the damage to the neck and to the sleeve were cuts made with fairly sharp scissors.

There was a good deal of evidence concerning tufts or loops of cotton which are loosely attached to new garments identical with the jumpsuit and which come out with washing and also which occur when the material is cut with scissors and not when it is torn. Such tufts were found in the Chamberlains' camera bag and in the car. This evidence may be of importance on the question of whether the jumpsuit was cut while it was in the car or it was at some time placed in the camera bag but 1t 1s of little significance when considering the question of whether the jumpsuit was cut or not. If it was cut, loops would either drop off the fabric or would be loosely attached to it and would later fall off or come off with washing. However, Professor Chaikin discovered some tufts at the site of the damage which he said indicated that the damage was a cut or cuts.

Professor Charkin's evidence was not, in our opinion, weakened by cross~examination. The theory advanced by the

defence was that the damage was caused by the teeth of a dingo. Professor Chaikin thought not as also did Dr. Brown, an

odontologist from Adelaide, Professor Cameron and Sgt. Cocks.

Mr. Orams, a senior lecturer in dental and oral pathology at

Melbourne University from 1965 to 1980, was of the opinion that the damage to the jumpsuit was consistent with having been caused by canine dentition. Mr. Sims, a senior lecturer in forensic odontology at the University of London, disagreed with Orams and said that there was not anything in the damage to the jumpsuit

There were holes in the singlet consistent with a sharp object being pushed through. This object could possibly have been a tooth of a dog but the holes did not correspond with the damage to the jumpsuit. If the damage to the jumpsuit was not caused by teeth then the possible consistency of singlet holes with teeth marks seems to us to be irrelevant. Professor Chaikin was the only textile expert to give evidence and although he claimed no familiarity with dingoes, or indeed with the dentition of dogs, he conducted experiments with a dingo tooth and fabric similar to that of the jumpsuit which demonstrated, amongst other things, that a dingo tooth could go unto flesh down to the gum without making a hole in the material which reinforced his opinion previously expressed. We have examined the jumpsuit ourselves and the damage certainly appears to us to resemble scissor cuts. The jury were entitled to, and no doubt did, make a similar examination and if they concluded that these were scissor cuts then we agree and can find no reason why such a

conclusion, if they came to 1t, should be disturbed.

Dr. Scott removed soil from the fabric of the jumpsuit by vacuuming it and these samples were tested and compared with samples from a number of areas by Dr. Collins, a geologist and forensic scientist. Collins was of the opinion that of the soil taken from the jumpsuit only 10% could have come from the site where the clothes were found and the rest could have come from the camp site and the sand dune immediately to the east of 1t. This evidence was tG some extent confirmed by that of Mr. Torlach, an agricultural scientist, who searched the general area of Ayers rock for soil with a similar acidity and similar colour according to the Munsell Chart. We say to some extent because Torlach, while confirming that little of the soil came from the site where the clothes were found, discovered three sites other than the camp site and the sand dunes to the east of i1t where most of the soil could have come from. Those three sites were near the house of the Chief Ranger, under the canopy of desert oak trees and possibly alongside the main road to Curtin Springs. The evidence about the soil from the jumpsuit which was not contradicted in any way tends to support that part cf the Crown hypothesis that the dressed body of the child had been buried near the camp site.

Lastly, there are the plant fragments found an the fabric of the jumpsuit, the singlet and the nappy by Mr. Kuchel, a botanist, and also plant fragments recovered from the clothing by Sgt. Cocks by vacuuming it. Sgt. Cocks said that 1t appeared to him that the jumpsuit had been rubbed in vegetation because

some of the fragments were embedded in the fabric. Because some

of the fragments were found on the inside of the back of the jumpsuit, Cocks' opinion was that the garment was rubbed in vegetation when it was fresh and when the baby was not inside it. This opinion evidence of Sgt. Cocks was given without objection. Mr. Kuchel, an experienced botanist, examined the plant fragments recovered from the various parts of the jumpsuit and singlet and nappy. Kuchel found seven identifiable species of plant material on the jumpsuit and three of these were found on the singlet together with two others not found on the jumpsuit. Pari1etaria leaf fragments outnumber the leaf fragments from the other plans by 50 to 1. Parietaria is only found in sheltered moist areas at the base of Ayers Rock and there was some growing close to the site where the clothes were found but these plants, according to Kuchel, from an interpretation of photographs, had not been disturbed. Of the other six species of plant fragments or seeds of which were found on the jumpsuit, the only relevant area where all may be expected to be found is on the plains area to the south of the Rock, between the Rock and the road, a @Gistance of seme 200 yards. Mr. Kuchel rubbed an identical jumpsuit lightly in parietaria and recovered from this jumpsuit leaf fragments in a very similar state to those found in Azaria's jumpsuit. This experiment lent confirmation to Sgt. Cocks' opinion that the jumpsuit had been rubbed in vegetation. The Crown says that whereas the plant fragments on the outside of the Jumpsuit may have got there in many different ways, it is remarkable that the parletaria, so far (50 to 1) outweighs the fragments of other

plants, and 1t is even more remarkable that fragments were found,

as Cocks says, on the inside of the suit where they could not have occurred when the baby was inside the suit. This all suggests, 1t 1s said, that after the baby had been removed from the suit, the suit was rubbed in vegetation to simulate what might have been expected to occur if a dingo had been carrying the child and dropped it in or dragged 1t through vegetation. If this had been the position, it is said that the parietaria fragments would not have outnumbered those of other plants. This evidence alone might not have a great deal of force but, taken with all the other circumstantial evidence, points to the guilt of the accused 1t 1s said by the Crown. The appellants on the other hand say that the plant evidence 1s really of no

significance at all and 1s too vague and imprecise to have any

The fact that the singlet was found inside the jumpsuit but inside out is unexplained. Mrs. Chamberlain said the singlet was put on the child the right way round and Professor Cameron says that the blood soaked into it from the outside in. [It would appear that the child was wearing the singlet in the correct way. Even if a dingo was capable of removing the child from the jumpsuit, it is hardly likely that 1t could have removed the

singlet from the child's body and replaced it inside the jumpsuit

Where and how was the child killed. The next 1ssue we

wish to examine is where and how was the child killed. The Crown case 1s that she was killed by having her throat cut with a sharp instrument in the family car. The appellants' case is that she

was taken by a dingo from the bassinet in the tent and killed by

The Crown case is supported by the evidence as to @ cut throat which we have already dealt with when considering the

bloo@ stains on the jumpsuit and the evidence of foetal haemoglobin in the blood stains in the car. It is also supported, as it is said, by the total absence of any blood stains in the bassinet or its mattress and the relatively small amount of blood and the nature of the stains found elsewhere in the tent. A comparison was made by the Crown between the comparatively large amount of blood in the car and the very small

Dr. Scott examined the tent and all or almost all of the articles said to have been in it on the night in question. He 1s a Doctor of Philosophy, having been awarded this degree on the basis of a study into the biochemistry of blood, and he is head of the forensic biology branch of the Forensic Science Centre in Adelaide. Scott detected blood on a number of articles that had been in the tent. He found one or two spots of foetal blood on a large purple blanket and a thin small smear on a small purple

blanket, both of which, according to the first appellant, had

been wrapped round the child. He examined three pieces cut from the second appellant's sleeping bag and discovered on each a very small amount of foetal blood. He also found a very small amount of blood not identified as foetal on 4 sleeping bag from which the samples had been cut. He discovered some foetal blood on a

child's parka which he described as a dessertspoonful at maximum and at minimum a third to a quarter of that. He found small

spots on the flyscreen on the rear window and on the floor which

gave a positive ortho-tolidine reaction but which could not be confirmed as blood. He found two spray patterns on the outside of the tent which he thought were blood but were highly unlikely in his view to be human blood. He found a spot of human blood on a yellow raincoat and three tiny spots of human blood on a sundowner torch. On a floral mattress which was on the floor of the tent he found quite a large area of staining which had soaked into the cover of the mattress but said that it was caused by less than a millilitre of foetal plocd. Dr. Scott said that some of the stains he found could have been transferred, for instance, from the track suit pants 1f the wearer knelt in the tent after they had been stained. He said that the stain on the mattress was consistent with that having been transferred but that it was probably more likely that 1t came on directly. The Crown case was that any foetal blood in and about the tent got there by transference when the first appellant came back to the tent looking, or pretending to look, for Azaria. If the blood on the mattress came on to it directly, this tends to weaken, if not destroy, the Crown case on the assumption that the foetal blood was Azaria's blood and there was no suggestion of any other sort of foetal blood being in the tent at any relevant time.

The evidence of Harris, @ dingo expert, 1s that a dingo when se1lzing its prey, 1f it is a smell animal like a 9.1/2 week old baby, would grasp and crush its head and then give a vigorous shake to break the animal's neck so that it dies and cannot escape. The Crown says that even 1f a dingo was able to get

Azgaria's head into its mouth, if it crushed the skull, removed it

from the bedclothes and then shook 1t, there must have been more blood in the tent and on the articles in it than there was. The appellants say that this is not necessarily so. First they say that the evidence shows that a dingo could quite readily

accommodate the head of the child and that if its teeth occluded

the wounds made by them, not much blood need necessarily be spilt even if a dingo did shake the child as Harris thinks it would. This is a classic jury question upon which either view is possible. If the jury concluded that the child was not killed in the tent, we cannot say that they were wrong.

Quite apart from the evidence of blood in the tent, there is other evidence touching the question whether a dingo killed the child. There were many dingoes around about Ayers Rock and some at least have overcome their natural shyness of human beings. They were to be seen scavenging around the camping area, some of them being very bold indeed. There was evidence of dingoes entering dwellings and of their molesting and attacking human beings, both adults and children. Dingoes are said to be

cunning and intelligent and capable of a good deal of dexterity

with their teeth and paws. In an experiment conducted in Adelaide with a corpse of a young goat in a jumpsuit similar to Azaria's, the dingo managed to extract the kid from the jumpsuit without difficulty. There was considerable evidence of dingo tracks and marks on the ground associated with them but this evidence seems to us to be equivocal. If there are many dingoes about they will leave tracks and they will from time to time be

carrying things which will leave marks associated with those

tracks. There was nothing in this evidence which makes 1t mcre likely than not that any of the marks found were associated with Azarla.

There was evidence from a number of sources of the presence of dingoes in and about the barbecue area and the tents and the camping area. In particular, there was evidence from Mr. and Mrs. West of a low throaty growl coming from the direction of the Chamberlains' tent not long before Mrs. Chamberlain called out that a dingo had taken her baby. Earlier Mrs. Whittacker saw a dingo going in the direction of the Chamberlains' tent. Constable Morris saw dingo tracks very close to the tent on the followzng morning. Inspector Gilroy also saw apparently fresh paw prints near the tent later on the following day. It was conceded by the Crown that dingoes had the opportunity and the propensity to take the child from the tent. The only person who saw a dingo coming out of the tent or indeed near it when the child may have been taken was the first appellant. She gave a number of accounts of what she saw which contained inconsistencies which are criticised by the Crown. She first told Constable Morris that she saw a dingo coming out of the tent with something in its mouth but told him later, and also told Roff and Haby, that 1t had nothing in its mouth. On one occasion she said that when she was half-way to the tent from the barbecue she saw the dingo coming out shaking its head. She went quickly to the tent, looked in the bassinet and 1t was empty. On another ocasion she said that she saw the dingo coming out of the tent,

believed that he had the child although she could not see it

notwithstanding that it was dressed in white, and could see that the bassinet was empty before she got to the tent. She gave different accounts as to where the dingo went in relation to the car and the rent after it left the tent. It was suggested that she altered her evidence in this regard to accommodate the blood stains which had been found on the outside of the tent which

turned out later almost certainly not to be human blood. She

said that the dango had its head down when it came out of the tent and shortly thereafter, which is inconsistent with the evidence of Harris that a dingo, in carrying its prey, has its head up. Of course if the dingo had had its head up the first appellant must have seen the white-clad baby.

The first appellant says she saw tear or cut marks on one side of the purple blankets which she had not seen before the incident and which she interpreted as having been made by the dingo. Professor Chaikin said that these were not tear marks but were made by insects, some of the larvae of which were found in the marks. The first appellant also said that she saw pad marks on a space blanket which was in the tent and she also spoke of rip marks in this article. The rip marks were said by Sgt. Cocks to be normal wear and tear. The first appellant said in her record of interview that her mother, her sister-in-law, her husband, her father and her brother, all saw the pad marks on the space blanket. None of these people were called to give evidence at the trial except for her husband who said nothing at all about

The appellants concede, as they must, that there are some differences between accounts given at different times to the police and to the coroner, to other witnesses and to the trial jury, but it is said that these differences are no more than is to be expected from a distraught and upset woman trying her best to recall what must have seemed like a nightmare.

A further point to be considered concerning the dingo is that not one dingo hair was found in the tent, nor was cone found on the singlet or the jumpsuit. The Crown concedes that Miss Fogarty, an inexperienced police officer, handled the tent and some of the articles therefrom less than perfectly but neverthe- less says that the total absence of dingo hairs is surprising. The jumpsuit was examined for saliva in a selective way by Dr. Scott. He took samples from where he thought saliva would have been and found none. This does not of course prove that there was not saliva elsewhere and the tests really proved nothing. When considering the question of saliva, one must also bear in mind that the evidence of the first appellant is that the child was wearing what is called a matinee jacket which, as we have

said before, has never been found. If she was grasped by the dingo by this matinee jacket, saliva stains might be thought to

The first appellant's track suit pants. Blood stains on

the first appellant's track suit pants formed an important issue. The first appellant gave these pants to a Mrs. Ransome at Mt. Isa on a day towards the end of August 1980 after the Chamberlains

had returned to Mt. Isa from Ayers Rock. The first appellant

asked Mrs. Ransome to take the pants and some other articles to the dry cleaners. She indicated to Mrs. Ransome some stains on the legs of the pants which she said she wanted the cleaners

attention directed to. Mrs. Ransome spoke of "small marks resembling a splash" which she took to be blood. Mrs. Hansell, a dry cleaner at Mt. Isa, said she saw blood stains on the pants at the front on each leg below the knee. These stains responded to the cleaning agent normally used for blood. She described the spots as like splattering and said that they varied in size and there were between one and three dozen ail told. The Crown opened the theory that the first appellant was wearing the track suit pants when she killed the child and that it was the child's blood which could be seen. Very shortly after the time at which, on the Crown account, she must have killed the child, Mrs. Lowe was talking to the first appellant at the barbecue and she says that she was not then wearing track suit pants. Mrs. West confirms this as also does Mrs. Whittacker. The first appellant says that she put the track suit pants on at about 9.30 to 10 o'clock that night and further says that the pants were lying in the tent when Azaria disappeared and that the blood spots must have got on to them when the dingo carrying the child shook its

head. Sister Elston says that the first appellant was wearing the pants when she was clearing out the tent after 10 o'clock. Unless Mrs. Lowe, Mrs. West, Mrs. Whittacker and Sister f&lston are all mistaken, if the Crown hypothesis about the pants is to be accepted, the first appellant must have donned the pants, killed

the child, taken the pants off, then pout them on again later,

somewhat unlikely behaviour. The issue of the pants seems to us

a weak aspect of the Crown case but, of course, the case does not depend on it.

We examine next the sequence of events just before it was discovered that the baby had disappeared. The appellants were at the barbecue with their son Aiden and were in conversation with Mr. and Mrs. Lowe. The second appellant and Alden ate a meal. Shortly afterwards the first appellant, who was holding Azaria, went with Aiden towards the tent. A lattle later she returned with Aiden who wanted more to eat. She had a can of beans in her hand. After the first appellant had returned to the barbecue Mrs. Lowe heard what she describes as a serious baby's cry coming from the direction of the tent. The second appellant apparently heard the cry too but the first appellant did not. At the second appellant's suggestion the first appellant returned to the tent. E1lther when she was half-way there or after she arrived there, the first appellant cried out, "The dog's got my baby" or words to that effect. After this, the alarm was raised and searches commenced. The Crown theory is

that the first appellant killed the child in the front of the car between leaving the barbecue area ostensibly to put the baby down and returning.with Aiden and the can of beans. The time interval between these events is fixed by Mrs. Lowe at six to ten minutes in one place, and five to ten minutes in another, and by Lowe at eight to ten minutes. The Crown says that this was an adequate time in which to kill the child and the appellants say that it

hardly was. If the Crown's theory 18 accepted, Mrs. Lowe was

either mistaken or lying about hearing the baby's cry, and so was the second appellant, because on the Crown's theory the baby was already dead when the cry was said to have been heard. The jury,

of course, saw and heard the witnesses and, because of their verdict, must have concluded that Mrs. Lowe's evidence and that of the second appellant was inaccurate.

We examine next the question of the appellants' Opportunity to bury the body of the child which, on the Crown hypothesis, they did. The precise sequence of events after the

alarm was raised at about 8 p.m. is not clear. For the time

being at least the body of the child must have been in the car or, a good deal less likely, hidden in the scrub somewhere. There were many people about for most of the time, searchers coming and going, and people comforting the appellants, but if the appellants were bold enough there were opportunities for the

child to be buried as hypothesised in a shallow grave somewhere in the nearby dune area. According to Mrs. West the appellants were away from the immediate area on one occasion for ten Minutes, and according to Mrs. Whittacker they were away once for fifteen to twenty minutes. There were also times later in the evening after the Lowes had left at about 10 o'clock and before the main searchers returned at about 11 p.m. when no-one is proved to have been with the appellants. Ne-one saw either of them going to the car for any apparent reason. Having examined the evidence we have come to the conclusion that it would have

been difficult but not impossible for the appellants or one of

Another point of amportance 1s that on the Crown hypothesis there must have been a good deal of blood in the car after the baby was killed. This must have been fairly thoroughly cleaned up before Sister Elston was invited to travel in the car to the motel at about 12.30 to 1.00 a.m. None of the witnesses, who were around the car and the tent from the time the child was discovered to be missing until the car was driven away, saw either of the appellants at or in the car doing any cleaning or indeed anything else. This is, of course, a matter of some weight. However, it 1s a negative proposition and does not prove that neither appellant cleaned up the car. There were people milling about, searchers coming and going as we have said. It would no doubt have been difficult for the car to be sufficiently cleaned of blood for Sister Elston not to have observed any, difficult but certainly not impossible.

There are other matters the weight of which in the appellants' favour must be taken into account. There is a psychological improbability of an apparently loving and caraing mother killing her child in the manner suggested by the Crown. The appellants not only had the presumption of previous good character in their favour, there was also positive evidence of good character. The second appellant was and is a pastor in good standing in the Seventh Day Adventist Church. Both appellants exhibited considerable distress after the child disappeared but, as was pointed out to the appellants' counsel, chis might be of equivocal weight because one would expect the first appellant to

be distressed after killing her child if she did so, and one

would expect the second appellant to be distressed after discovering what she had done. There was no motive proved or even suggested as to why the first appellant should kill her child. The child's body was never found. There was a good deal of evidence from persons at Ayers Rock and from Mrs. Ransome in Mt. Isa that the first appellant was a loving and caring mother. There was also evidence from Dr. Milne, an obstetrician who attended the first appellant at the time of the birth of Azaria, that the delivery was normal and that the child was normal and healthy and that after her birth the first appellant displayed none of the symptoms of even mild post natal depression. There was also evidence that both appellants were overjoyed at the birth of their daughter.

It 1s pointed out that the weapon used in the throat cutting, 1f it occurred, was never found. No blood was seen by any witness on the first appellant. This might be thought to be surprising if she had held the child and cut its throat so that blood soaked into the jumpsuit and singlet in such volume and so that blood spurted on to the underside of the dashboard. The only blood on the first appellant's clething was that on the track suit pants which she said she was not wearing at any relevant time, and on her sandshoes which can be accounted for by her having crawled into the tent, looking for the child, when there had been blood spilt there. No admission of guilt was made

by either appellant. Both have continually and consistently

It was also pointed out by the appeliants' counsel that

they were most co-operative with police and that some at least of what turned out to be evidence against them would not have been discovered without their help. The camera bag, for instance, was volunteered as were other articles which had been in the car and in the tent which police were probably unaware of.

behaviour of the appellants immediately after the baby's disappearance was inconsistent with what one might have expected from sorrowing bereaved parents. Instead of the frantic searching which one might have expected, the appellants stayed mostly close to the camping area awaitng, as they said, news from the other searchers. On the following day they went about the area taking photographs, some of which were for sending to an Adelaide newspaper. They did no further searching on this day or on any later day which one might have expected even though by then there could have been very little hope that the baby was alive. Fairly early in the morning of the following day they had been asked by Constable Morris to sign a form notifying death to the coroner. The fact that the child was almost certainly dead and the misbehaviour of their two boys were the reasons given by the appellants for going sight-seeing and photographing on the day after the disappearance. Another time the second appellant accounted for his failure to do any more searching by saying that he had to stay near the motel in case there was news, but of course he did not remain near the motel very much. As well as attacking the credibility of che second appellant the Crown

points to the inconsistencies in the various accounts given by

The jury's verdicts necessarily mean that they disbelieved the most significant parts of the evidence of each appellant. Whatever may be thought about the importance of seeing and hearing expert scientific witnesses in order to

evaluate their testimony, we are in no doubt that in assessing

the credibility of the two appellants the jury, who saw and heard them, enjoyed a considerable advantage over this Court. There is nothing about their evidence when read which compels belief, rather the reverse. If the jury disbelieved them, as they must have done, we are quite unable to say that they were wrong. The evidence of the appellants, because of its contents and their manner of giving it, may have been disbelieved quite apart from

the other inculpatory evidence or the jury might simply have

entertained doubts about its accuracy and these doubts, coupled with other evidence, may have led them to satisfaction of guilt beyond reasonable doubt. In either case we are unable to say that the jury was wrong.

Having re-read the evidence given at the trial and the submissions put on the hearing of the appeal and having considered fully the points and arguments both for and against we have come to the conclusion that we must reject ground 5. It would,in our view, be wrong to hold that the verdict against either appellant was one which viewing the whole of the evidence reasonably the jury could not properly find.

) ) NORTHERN TERRITORY DISTRICT REGISTRY ) No. NTG 23 of 1982 ) GENERAL DIVISION )

Between: ALICE LYNNE CHAMBERLAIN and MICHAEL LEIGH CHAMBERLAIN

1. Appeals against conviction by two persons, each of whom was convicted in a trial on an indictment by a judgment of the

Supreme Court of the Northern Territory of Australia. The appellant Alice Lynne Chamberlain was convicted upon the verdict of a jury that she was guilty of murdering Azaria Chantel Loren Chamberlain on 17 August 1980 at Ayers Rock; and the appellant Michael Leigh Chamberlain was convicted, upon the verdict of that

jury, of having heen accessory after the fact of that murder.

2. Alice Lynne Chamberlain was born on 4 March 1948. Michael Leigh Chamberlain was born on 27 February 1944. They were married on 18 November 1969. There was issue of the marriage three children : a son named Aiden who was born on 2 October 1973; a son named Reagan who was born on 16 April 1976; and the daughter Azaria, who was born on 11 June 1980, and of whose murder Mrs. Chamberlain is now convicted. On 13 August 1980 the appellants and their three children left their home at Mt. Isa in their motor car, on a holiday journey to Central Australia. On 16 August they arrived at Ayers Rock, where they pitched their tent next to the car in a camping area several kilometres east of Ayers Rock. On the following day they visited Ayers Rock and later watched the setting of the sun. Then they returned to their tent. There were cooking facilities for campers about 20 metres west of the tent. Other campers and the Chamberlains were near those facilities at about 8 o'clock in the evening when Mrs. Chamberlain carried the child Azgaria towards her tent, accompanied by the boy Aiden. The child Azaria was then alive, it was common ground at the trial. No witness claimed at the trial to have ever seen Azaria again, except Mrs. Chamberlain. The boy Aiden did not give evidence. Mrs. Chamberlain gave evidence that she carried her sleeping

daughter into the tent and placed her in a basket and covered her

with blankets; that Aiden was in the tent with them and was getting into his sleeping baq; that he asked for more food and that she and Aiden returned to the place where the adults were,

near the cooking facilities; and that she left Azaria and Reagan

sleeping in the tent. Reagan had been put to bed there some time earlier. A short time later Mr. Chamberlain said that he thought he had heard Azaria cry. Mrs. Chamberlain walked from the group of adults towards the tent. Then she called out an alarm. The child Azaria was not in the tent. Reagan was apparently still asleep. Mrs. Chamberlain gave evidence that her cry followed her

3. Only two hypotheses were proposed to the jury and to this court in respect of the disappearance of Azaria. The appellants and their counsel advanced the hypothesis that a dingo had seized the sleeping child from the basket and had carried her away.- The Crown adduced evidence of circumstances, and of expert opinion concerning some of those circumstances, which in the submission of the Crown established beyond reasonable doubt that while Mrs. Chamberlain and her three children had been alone in the vicinity of the tent before she and Aiden returned to the other adults, Mrs. Chamberlain had inflicted mortal wounds to Azaria's throat with a cutting instrument; and that after Mrs. Chamberlain had raised the alarm Mr. Chamberlain had aided her in disposing of the child's body, he then knowing that his wife had caused the child's death. The circumstances of which the Crown essayed proof were numerous and diverse in kind. Evidence for the appellants in contradiction of the Crown proofs, both as to circumstances and of expert opinions, was very substantial. The trial occupied more

4. On the hearing of the appeal Mr. Barker Q.C., who appeared with Mr. Pauling of counsel for the respondent Crown, submitted that 5 of the 23 grounds of appeal specified in the appellants' notice of appeal were unavailable to an appellant to this Court from judgment of conviction in a trial on indictment upon a jury's verdict. The submission was founded upon the reasoning of the Full Court of this Court in Duff v. R. (1979) 28 A.L.R. 663. (See also Erich v. R. (1980) 31 A.L.R. 123.) The submission and the reasoning of the Full Court in that case were addressed primarily to the provisions of Division 2 of Part III of

the Federal Court of Australia Act 1976. But there are other

provisions of that Act which may be relevant to a determination of

the questions which the submissions of the Crown raise.

"Constitution of the Federal Court of Australia." The first section of Part II provides:

"S. (1) A federal court, to be known as the Federal Court of Australia, is created by this Act.

(2) The Court is a superior court of record and is a court of law and equity.

such other Judges as from time to time hold office in accordance with this Act."

Part II contains no provision by which jurisdiction is conferred

on the Court. Part III has the heading : "Jurisdiction of the

Court." Division 1 of that Part is concerned with the Court's original jurisdiction. The heading of Division 2 is : "Appellate and related Jurisdiction." The first section in that Division

"24. (1) Subject to this section and to any other Act, whether passed before or after the commencement of this Act (including an Act by

virtue of which any judgments referred to in this section are made final and conclusive or not subject to appeal), the Court has jurisdiction to

(a) appeals from judgments of the Court constituted by a single Judge;

(b) appeals from judgments of the Supreme Court of a Territory; and

other Act, appeals from judgments of a court of a State, other than a Full Court of the

Supreme Court of a State, exercising federal jurisdiction.

appeal shall not be brought to the High Court from a judgment of the Supreme Court of a Territory except -

{a) in accordance with special leave given by the High Court on or after the commencing day; or

leave given by the High Court or the Supreme Court before the commencing day.

(3) Subject to stib-section (4), an appeal does not lie to the Court from a judgment of the Supreme Court of a Territory given before the commencing day.

(4) Where, immediately before the commencing day, a person has a right to appeal (otherwise than in accordance with leave or special leave referred to in sub-section (2)), or to seek leave or special leave to appeal, to the High Court

from a judgment of the Supreme Court of a Territory given before the commencing day, that right is, by force of this section, converted into a corresponding right to appeal, or to seek leave or special leave to appeal, to the Court.

Full Court of the Supreme Court of a State shall be read as a reference to the Supreme Court of a State

when constituted by 2 or more judges, and includes the Supreme Court of a State when so constituted

for the purpose of sitting as the Court of Appeal of the State."

The expression "the commencing day" was defined to mean the day,

to be fixed by proclamation, on which this Court should commence to exercise its jurisdiction: ss.2(2), 4.

Some of the provisions of s.25 should be considered:

"(1) The appellate jurisdiction of the Court shall, subject to this section and to the

provisions of any other Act, be exercised by a Full Court.

(3) Except where the Chief Judge considers it impracticable for the Court to be so constituted, a Full Court of the Court for the exercise of jurisdiction in an appeal from a judgment of the Supreme Court of a Territory shall include at least one Judge who holds office as a Judge, other than an additional Judge, of the Supreme Court of that

(4) The jurisdiction of the Court in an appeal from a judgment of the Supreme Court of a Territory constituted by 2 or more Judges shall be exercised by a Full Court of the Court constituted by not

Section 26 authorises a court from which appeals lie to this Court to state a case or to reserve any question, concerning a matter with respect to which such an appeal would lie from that court, for the consideration of this Court; and prohibits such a court

from stating a case or reserving such a question to any court

other than this Court; and confers on this Court jurisdiction to

hear and determine a case or question so stated or reserved. Sections 27 and 28 are in these terms:

"27. In an appeal, the Court shall have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence, which evidence may be taken on affidavit, by oral examination before the Court or a Judge or otherwise in accordance with section 46.

28.(1) Subject to any other Act, the Court may, in the exercise of its appellate jurisdiction -

(a) affirm, reverse or vary the judgment appealed from;

(b) give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse to make an order;

(c) set aside the judgment appealed from, in whole or in part, and remit the proceeding to the court from which the appeal was brought for further hearing and determination, subject to such directions as the Court thinks fit;

(d) set aside a verdict or finding of a jury ina civil proceeding, and enter judgment notwithstanding any such verdict or finding;

(e) set aside the verdict and judgment in a trial on indictment and order a verdict of not guilty or other appropriate verdict to be entered;

(£) grant a new trial in any case in which there has been a trial, either with or without a jury, on any ground upon which it is appropriate to grant a new trial; or

(g} award execution from the Court or, in the case of an appeal from another court, award execution from the Court or remit the cause to that other court, or to a court from which a previous appeal was brought, for the execution of the judoment of the Court.

(2) It is the duty of a court to which a cause is remitted in accordance with paragraph (g) of sub-section (1) to execute the judgment of the Court in the same manner as if it were its own

(3) The powers specified in sub-section (1) may be exercised by the Court notwithstanding that the notice of appeal asks that part only of the decision may be reversed or varied, and may be exercised in favour of all or any of the respondents or parties, including respondents or parties who have not appealed from or complained of the decision.

(4) An interlocutory judgment or order from which there has been no appeal does not operate to prevent the Court, upon hearing an appeal, from giving such decision upon the appeal as is just.

(5) The powers of the Court under sub-section (1) in an appeal (whether by the Crown or by the defendant) against a sentence in a criminal matter include the power to increase or decrease the sentence or substitute a different sentence."

The word "judgment" is defined to mean a judgment, decree, or order, whether final or interlocutory, or a sentence":

In the reasons for judgment of the Full Court in Duff's

"The grounds upon which the criminal appellate jurisdiction of the Federal Court might be exercised were not specified in the drafting of s.24 of the Federal Court of Australia Act. Indeed, the nature of 1ts appellate powers can be ascertained only by reference to other sections of the Act, especially ss. 27 and 28. Those sections

make it clear that the appellate powers are not limited to the hearing and determination of an appeal in the strict sense. The power to draw

inferences of fact and to receive further evidence (s.27), the power to set aside a jury verdict (s.28(1)(e)) and the power to grant a new trial (s.28(1)(£)) extend the powers beyond those which may be exercised on a strict appeal: see Musgrove v. McDonald, supra; Commonwealth v. Brisbane Milling Co. Ltd., supra; and Victorian Stevedoring and General Contracting Co. Pty. Ltd. v. Dignan (1931) 46 C.L.R. 73. But the absence of specified grounds governing the exercise of the court's appellate powers marks a radical departure from the usual legislative provision creating a criminal appellate jurisdiction, in which: "the grounds or principles upon which the court is to determine appeals are stated, and the duty is imposed on the court of dismissing an appeal, unless on those principles it determines that it should be allowed" (per Dixon J. in Grierson v. R. (1938) 60 C.L.R. 431 at 436). The statement of grounds is a logical step in the creation of criminal appellate jurisdiction, for an appeal is not a common law remedy, and grounds or principles must be established to govern the power to interfere with a

Clearly enough, the grounds upon which this court may exercise its powers are not restricted to those which govern the determination of a strict appeal, for the grounds must be appropriate to the appellate power the exercise of which 1s sought in the appeal."

No criticism of those observations was expressed by counsel for any party to this appeal. The joint judgment of Brennan, McGregor and Lockhart JJ. in Duff's Case continued thus

"Where an application for a new trial is made, the grounds upon which new trials are granted after judgments entered upon jury verdicts govern the determination of the application. At common law, there was jurisdiction to grant a new trial after a conviction (R. v. Berger [18941 1 Q.B. 823), though the availability of the remedy was limited to some classes of convictions for misdemeanours (Stephen, H.c.L.i, 310; R. v. Bertrand (1867) L.R.1 P.c. 520;

in applications for a new trial after a jury verdict are the grounds which are appropriate for consideration when an application under s.2R (1)(f)

is made. That paragraph empowers the court to grant a new trial 'on any ground upon which it is appropriate to grant a new trial', and as that

paragraph does duty for both criminal and civil appeals, it must be taken to refer to the grounds upon which the verdict may be set aside, and not merely to the considerations which a court of criminal appeal takes into account in electing between or quashing of a conviction simpliciter, and an order for a new trial. No doubt, when the court in a criminal appeal determines to set aside a verdict, the provisions of s.28(1)(f) then require that the grounds for election between the two courses be considered as a further question (see R v. Wilkes (1948) 77 C.L.R. 511 at 518; Reid v. R [IS79] 2 All E.R. 904 (P.C.)), but the grounds to which the paragraph refers include the grounds upon which the court determines to interfere with the conviction.

The appropriateness of the common law rules as to the granting of new trials appears implicit in the judgment of the High Court in Stokes v. R. (1960) 105 C.L.R. 279, an appeal against a conviction on indictment before the Supreme Court of the Australian Capital Territory. The court (Dixon C.d., Fullager and Kitto JJ.) wrote (at 284-5): 'in the end we think the decision of the application must depend upon the general rule that if an error of law or a misdirection or the like occurring at the trial is of such a nature that it could not reasonably be supposed to have influenced the result a new trial need not be ordered. The rule applies, we think, in an appeal under s.52 of the Australian Capital Territory Supreme Court Act 1933-1959.'

The 'error of law...misdirection or the like eccurring at the trial' is a reference to the variety of grounds upon which a new trial may be ordered, and the qualification to be found in the phrase 'could not reasonably be supposed to have influenced the result' is a reference to the qualifying rule in the form in which it stood at common law, prior to the Judicature Act (see Balenzuela v. De Gail (1959) 101 C.L.R. 226, per Dixon C.d. at 234-5).

The criteria for setting aside a jury veridct which are furnished by the new trial grounds are equally appropriate to govern the exercise of the power to

set aside a jury verdict and to substitute another verdict under s. 28(1)(e). It would be anomalous if the grounds for setting aside a verdict and judgment varied according to the relief which was sought or allowed. In Stokes, supra, the High Court thought it appropriate to apply the new trial grounds to all appeals under s.52 of the Australian Capital Territory Supreme Court Act, not merely to applications for a new trial under s.36 of the Judiciary Act.

The grounds of appeal under the common statutory form (as to which, see Raspor v. R. (1958) 99 c.L.R. 346 at 350-2: Plomp v. R. (1963) 110 C.L.R. 234 at 244-7: [1964] A.L.R. 267 at 270-2: Ratten v. R. (1974) 131 C.L.R. 510 at 514-6: 4 A.L.R. 93 at 97-8: Driscoll v. R. (1977) 137 C.L.R. 517 at 524-7: 15 A.L.R. 47 at 53-6) are not to be taken as identical with the new trial grounds of appeal. The judgments of a court acting under the common form statute cannot be unquestioningly applied by this court acting under powers differently formulated (see Ratten, supra, at the pages cited)."

One of the grounds of appeal included in the appellants'

"6. The verdicts of guilty against each accused are

(a) unsafe and/or unsatisfactory; (b) dangerous in the administration of justice;

(c) dangerous or unsafe in the administration of the criminal law."

The rest of paragraph 6, which it is unnecessary for present purposes to reproduce, consists of a summary of some of the many and diverse circumstances which the author of the notice of appeal

asserts to be against a conclusion of the appellants' guilt. The

phrases which are the predicates of the sentence I have quoted from that paragraph are the legal jargon in which it is customary to label a particular ground of appeal against conviction on a jury's verdict in the States of the Commonwealth, appellate criminal jurisdiction in each of which is regulated by a statutory provision conveniently described in Duff's Case as "the common form statute". The origin, and something of the substance, of the common form statutes were stated in the joint reasons for judgment

"The powers of a court of criminal appeal to set aside a jury verdict turn upon the statute creating the appellate jurisdiction (see Ratten v. R. (1974) 131 C.L.R. 510 per Barwick C.J. at 514-6; 4 A.L.R. 93 at 97-8). The Australian States adopted a common form statute governing appeals against

eriminal convictions. The common form follows an English paradigm, s.4(1) of the Criminal Appeal Act 1907:

'The Court of Criminal Appeal on any such appeal against conviction shall allow the appeal if they think that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before whom the appellant was convicted should be set aside on the

ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the

'Provided that the Court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred. '

Although the common Australian form is not materially different from this provision, there used to be a difference between the powers of the

the Australian State Courts of Criminal Appeal. The English court was not given power to order a new trial, and the common form statute of the Australian States invariably granted that power (Western Australia: Criminal Code s.689 (introduced 1 January 1912); New South Wales: Criminal Appeal Act of 1912 s.8 (now Criminal Appeal Act, 1912 s.8): Queensland: The Criminal Code Amendment Act of 1913 ss. 3 and 11 (now Criminal Code s.669); Victoria: Criminal Appeal Act 1914 s.4 (now Crimes Act 1958 s.568); Tasmania: Criminal Code Act 1924 s.404; South Australia: Criminal Appeals Act 1924 s.6 (now Criminal Law Consolidation Act 1935 s.353)). The difference in powers may have

effected some variation in the practices of the Australian and English courts (see Davies and Cody

v. R. (1937) 57 C.L.R. 170 at 179-81), but in all of those courts the appellate jurisdiction was exercised on grounds which were not narrowly confined. In more recent times, the English Court of Appeal has been granted power to order a new trial-in limited classes of cases by the Criminal Appeal Act 1964, and more generally by the Criminal Appeal Act 1968. In 1966, moreover, the Criminal Appeal Act of that year amended the appellate powers of the court, and that amendment has led to the exercise of even wider powers by the Court of Appeal and by judges presiding over jury trials: see Stafford v. Director of Public Prosecutions [1974] A.C. 878; [1973] 3 All E.R. 762; R. v. Mansfield [1977] 1 W.L.R. 1102; [1978] 1 All E.R. 134.

Under the common form statute, the appellate jurisdiction may be exercised whenever the court is of opinion that a miscarriage of justice has occurred - 'the greatest innovation made by the Act', as Isaacs J. said in Hargan v- R. (1919) 27 C.L.R. 13 at 23 - and the grounds of appeal extend beyond the errors of law which, before 1907, founded the intervention of the Court of Crown Cases Reserved in England or the exercise of a like jurisdiction by Australian courts when a trial judge reserved a point of law for consideration (see Raspor v. R. (1958) 99 C.L.R. 346 at 350)."

In the Northern Territory as in the Australian Capital

Territory appellate criminal jurisdiction has been otherwise

ordered. It is instructive to quote again the reasons of the Full

Court for judgment in Duff's Case (28 A.L.R. at 672)

"The statutory history of the jurisdiction in of the

Australian Capital Territory is quite different from the statutory history of jurisdiction in criminal appeals in the Australian States or in England. Appeals from convictions entered upon of the Australian Capital Territory have not been governed by the common form statute, and miscarriage of in the statutory provisions which govern or which have governed appeals from criminal convictions in the

At first, the Judiciary Act 1927 conferred original

criminal jurisdiction upon the High Court in relation to the Territory of the Seat Government, but s.30B(4) of the principal Act (the Judiciary Act 1903) denied an appeal 'except so far

as, under the Constitution or the laws of the Commonwealth an appeal may be brought to a Full Court of the High Court'. We have found

The High Court also had power, pursuant to s.36 of the Judiciary Act, to order a new trial when it set aside a conviction under s.52 of the Australian Capital Territory Supreme Court Act ({Sparre v. R (1942) 66 C.L.R. 149), and thus the statutory

formulation of the appellate jurisdiction of the as under

to the creation of the Supreme Court of the Australian Capital Territory pursuant to the Seat Government Supreme Court Act 1933. Section 52 of that Act conferred an appellate jurisdiction upon the High Court in respect of convictions indictment before the Supreme Court. Among the grounds of appeal specified in s.52, in both its original and amended form (s.52 of the Australian Capital Territory Supreme Court Act 1933 as amended in 1964) were grounds involving a question of law, a question of fact, a question of mixed law and fact and 'any other ground that appears to the Full Court of the High Court to be a sufficient ground

their respective new trial provisions, upon grounds which were seemingly as broad as those contained in

Section 47 of the Northern Territory Supreme Court Act 1961, as it was in force at the commencement of the Federal Court of Australia Act 1976, was in terms similar to those of s.52 of the Australian Capital Territory Supreme Court Act 1933. The opinion concerning grounds of appeal which is expressed in the last clause of the passage just quoted from Duff's case may have peen based on the view that the words, "any other ground that appears to the Full Court of the High Court to be a sufficient ground of appeal" would authorise the allowance by the High Court of any ground of appeal which might be authorised by the words of

The ground to which expression is given in paragraph 6 of the appellants' notice of appeal is said to derive from the expression "miscarriage of justice" in the common form statutes and Counsel for the Crown submitted that it is not a ground of appeal available to this Court. Barwick C.J. has expounded this ground, upon an appeal from the Full Court of the Supreme Court of

Victoria, in Ratten v. The Queen (1974) 131 C.L.R. 519 at 515-516:

"It is convenient first to observe the powers given to the court of criminal appeal vy s.568 of the Crimes Act. This provision is in the same terms as s.4 of the Criminal Appeal Act 1907 (U.K.). Apart from lack or deficiency of evidence or misdirection in point of law, the court is to allow an appeal if, on any ground there is a miscarriage of justice, just as it may yet reject an appeal, though there was error in the proceedings of the trial, if in the court's view there was no

miscarriage of justice. The use of the expression 'miscarriage of justice' in this context has given to the court of criminal appeal a function of independent judgment on the facts of the case which a court of appeal hearing an appeal from the verdict of a jury ordinarily does not have. "That is the greatest innovation made by the Act, and to lose sight of that is to miss the point of the legislative advance'. (Hargan v. The King (1919) 27 C.L.R. 13 at p.23, per Isaacs J.; also R. v. Baskerville [1916] 2 K.B. 658 at p.664, per Lord Reading C.J.).

The amendment in 1966 in the United Kingdom of the formulation of the jurisdiction of the court of criminal appeal now appearing in s.2(1) of the Criminal Appeal Act 1968 (U.K.), as interpreted by the House of Lords in Stafford v. Director of Public Prosecutions [19747 A.C. 878 would seem to have increased the scope for the exercise by the court of its own assessment of the evidence in a case, though it has had no opportunity to hear the witnesses called before the jury. This amendment has not beeri made in Australian legislation, but this Court has recently reiterated the view that under the Australian provisions a court of criminal appeal in Australia should allow an appeal if on its own view of the evidence it would be dangerous or unsafe in the administration of the criminal law to allow a verdict of guilty to stand (Hayes v. The Queen (1973) 47 A.L.J.R. 603). This decision may not have disclosed as great a discretion in a court ef criminal appeal in Australia, as the decision of the House of Lords in Stafford v. Director of Public Prosecutions [1974] A.C. 878 has done for the United Kingdom. But the Court's decision is founded on the existence of the function of independent assessment of the evidence by the court of criminal appeal. This function is of particular importance when considering what a court of criminal appeal should do when asked to disturb a jury's verdict on the production of new evidence.

Miscarriage is not defined in the legislation but its significance is fairly worked out in the decided cases. There is a miscarriage if on the material before the court of criminal appeal, which where no new evidence is produced will consist of the evidence given at the trial, the appellant is shown to be innocent, or if the court is of the opinion that there exists such a doubt as to his guilt that the verdict of guilty should not be allowed to stand. It 1s the reasonable doubt in the mind of the court which is the operative

factor. It is of no practical consequence whether this 1s expressed as a doubt entertained by the court itself, or as a doubt which the court decides that any reasonable jury ought to entertain. If the court has a doubt, a reasonable jury should be of a like mind. But I see no need for any circumlocution: as I have said it is the doubt in the court's mind upon its review and assessment of the evidence which is the operative consideration.

If that instance of miscarriage is not within the cognisance of this Court, although it did afford a ground of appeal which the High Court might have thought "a sufficient ground of appeal" from the Supreme Court of the Northern Territory of Australia or the Supreme Court of the Australian Capital Territory before the commencement of the Federal Court of Australia Act 1976, the draftsman of that Act may be thought to have had in mind the alteration in the available grounds of appeal which the commencement of that Act would work: 5.244) 1s so

ps expressed, in my opinion, as to preserve, for the persons to whom the introductory clause of the sub-section refers, the right to have determined in accordance with the provisions of s.47 of the Northern Territory Supreme Court Act 1961 or s.52 of the Australian Capital Territory Supreme Court Act 1933 the appeals or the applications for leave or special leave which before the commencement of the Federal Court of Australia Act 1976 they might have made to the High Court. Section 24 works an alteration of the court, from the High Court to this Court, in which those

persons may bring their appeals and their applications, but not an

alteration of the other provisions which are contained in s.47, or

in s.52. The conversion which s.24(4) is expressed to effect necessarily imports, as I think, the provisions of s.47 or s.52, as the case may be, which differentiate appeal as of right, appeal by leave, and appeal by special leave. The differentiation is for the most part by reference to the nature of the ground of the appeal in contemplation. It is not in my opinion to be thought that s.24(4) orders a determination whether an appeal lies as of right, and whether leave or special leave is to be required, in accordance with the nature of the ground of appeal, but refers to some source other than s.47, or s.52, a determination whether on the hearing of the appeal a particular ground of appeal is

The opinion of this Court in Duff's case upon which counsel for the Crown relied in support of his submission that the ground of appeal stated in paragraph 6 of the appellant's notice of appeal is not available to them is to be gathered principally from three passages in their Honours' reasons for judgment. Two of the passages are in the general examination which their Honours undertook of the criminal appellate jurisdiction of this Court and of the grounds upon which the jurisdiction was to be exercised.

"The grounds of appeal under the common statutory form (as to which, see Raspor v. R. (1958) 99 C.L.R. 346 at 350-2; Plomp v. R. (1963) 110 C.L.R. 234 at 244-7; [19641 A.L.R. 267 at 270-2; Ratten v. R. (1974) 131 C.L.R. 510 at 514-6; 4 A.L.R. 93 at 97-8; Driscoll v. R. (1977) 137 C.L.R. 517 at 524-7; 15 A.L.R. 47 at 53-6) are not to be taken as

identical with the new trial grounds of appeal. The judgments of a court acting under the common form statute cannot be unquestioningly applied by this court acting under powers differently formulated (see Ratten, supra, at the pages cited)." (28 A.L.R. at 674).

"The grounds upon which a new trial may be granted after judgment entered upon a jury verdict are the grounds available to an appellant to this court against a conviction after a trial on indictment before the Supreme Court of the Australian Capital Territory.

The limit upon the grounds available may be of some significance in the present case, for it would not avail the appellant to persuade this court to a view that it is unsafe or unsatisfying to allow a verdict of guilty to stand on the evidence of identification of the appellant as the assailant (Plomp, supra, per Dixon CJ: 110 C.L.R. at 244; (T9647 J A.L.R. at 270), if the jury could properly have found the verdict, viewing the whole of the evidence reasonably and appreciating the onus and

standard of proof (Raspor, supra; 99 C.L.R. at 352)". (28 A.L.R. at 675).

The third passage forms part of the Court's consideration of a ground of appeal that certain evidence of identification of the accused as the man who had attacked the witness should not have been admitted, or that the evidence, if admitted, should have been the subject of a warning by the trial judge to the jury.

"The appellant's arguments in support of this ground of appeal encounter some formidable obstacles. The appellant must show that the reception of the identification evidence before the jury was erroneous; it is not sufficient to show that a conviction based on that evidence is" unsafe or unsatisfactory. This court is not exercising appellate jurisdiction under "the common form statute which has been the statutory context of much of the case law on identification evidence.

In Davies and Cody v. R. (1937) 57 C.L.R. 170, the High Court pointed to the foundation of the jurisdiction to intervene. They noted (at p.180) that the Court of Criminal Appeal in England 'will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in -observing the conditions which, in the court's view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or mislead. This is the basis upon which the English court has set aside convictions resting upon identification conducted in an unfair or unsatisfactory manner.'

Armed with wide powers of intervention, courts of criminal appeal have laid down some rules of practice to be followed when a suspect is to be identified, and they are empowered by the common form statute to make those rules effective. But it does not follow that the rules of practice are transformed into rules of law; rather do the rules of practice acquire such force as the court of criminal appeal chooses to give them. Thus in Davies and Cody, supra, the High Court applied the English practice to Victoria when it said (at p-182): 'We think the view accepted in England and, as far as we know, elsewhere in the Dominions where the provisions of the Criminal Appeal Act have been adopted, should be applied in Victoria. That view, as we understand it, is that, if a witness whose previous knowledge of the accused man has not made him familiar with his appearance has been shown the accused alone as a suspect and has on that occasion first identified him, the liability to mistake is so increased as to make it unsafe to convict the accused unless his identity is further proved by other evidence direct or circumstantial. Where that further evidence consists in or includes other witnesses whose identification has been of the same kind, the number of witnesses, their opportunities of obtaining an impression or knowledge of the prisoner and other circumstances in the case must be taken into account by the court of criminal appeal for the purpose of deciding whether on the whole case the possibility of error is so substantial as to make the conviction unsafe.' If it be material to our decision, it may be noted that in the present case the appellant was not shown alone and other evidence tended to prove his identity with the assailant.

It is not sufficient for the appellant to show that his conviction was 'unsafe' as that term is used in

Davies and Cody, supra. Narrower grounds must be relied on, and it must be shown that the

identification evidence was inadmissible or that a judicial discretion to reject the evidence miscarried or that the summing-up was inadequate." (28 A.L.R. at 682-683).

Counsel for the appellants' submission was that we should decline to accept those passages as correctly stating the law. The Federal Court of Australia Act 1976 not containing any statement of the grounds upon which a conviction by verdict might be set aside in exercise of this Court's appellate jurisdiction, the Court should regard itself as free to exercise the jurisdiction upon no narrower a set of criteria than was available throughout all the States of the Commonwealth, it was submitted. It was said that the legislature could hardly be supposed to have intended, but to have abstained from plainly expressing, a circumscription of the grounds of appeal formerly available to persons convicted on indictment in the two continental Territories of the Commonwealth, and still available elsewhere throughout that

Before resolving, or leaving moot, the questions raised by those opposed submissions, I turn to consider what the scope of review is which is afforded by the "grounds upon which a new trial may be granted after judgment entered upon a jury verdict", for it

was those grounds which the Full Court declared in Duff's Case to

be available to an appellant to this Court against a conviction

after a trial on indictment before the Supreme Court of the Australian Capital Territory. And no means seems to exist of distinguishing between that Court and the Supreme Court of the

Northern Territory of Australia, for present purposes.

ll. Upon conviction for misdemeanour in the King's Bench a new trial might have been had, from the seventeenth century until the Criminal Appeal Act 1907, upon motion to the court in banc, and proof of facts in support of the motion by affidavit was admitted: see 84 L.Q.R. 202-209; 26 Yale L.d. 49-60; 27 Can. B.R. 46, 153; and the authorities there cited; Rv. Mawbey (1796) 6 T.R. 619; 101 E.R. 736. One of the grounds on which a new trial might have been granted in that Court was variously stated: that the verdict was against the weight of evidence (South Eastern Railway Co. v. Smitheram (1883) 47 J.P. 773 at 774, per Lord Blackburn; Holdsworth: A History of English Law, vol. Il, p.216; Driver v. War Service Homes Commissioner (No. 1) [1924] v.L.R. 515 at 533, per Cussen A.C.J.); contrary to evidence (Gurner: The Practice of the Criminal Law of the Colony of Victoria (1871), p.174; Chitty's Criminal Law, vol. 1, pp. 654-656; Blackstone's Commentaries vol. III, pp. 387-388; Tidd's Practice (9th ed.) vol. II, p.908; Hawkins' Pleas of the Crown Book 2 Ch. 47, S.12); and against the evidence (Stephen: A History of the Criminal Law

(MacMillan, 1883) vol. 1, p.311l; Metropolitan Asylum District v.

Hill (1882) 47 L.T. 29 at 33, per Lord Blackburn). But there is,

as I think, no doubt that it was a ground for the grant of a new

trial that the court considered, having regard to the whole of the

evidence (whether or not the evidence was conflicting) that the verdict was one which the jury, viewing that evidence reasonably, could not properly have found. The matter for consideration by the court was a question of fact and the function of the court was the discretionary exercise of a "superintendent" power over trials by jury in that court. Although sometimes fine, the distinction is clear and important between that function and the function, which a judge might be called upon to perform at a trial by jury and which the court in banc or another court exercising appellate jurisdiction might be called upon to exercise, of determining whether there was reasonable evidence upon which a jury might reasonably find an issue in favour of the party on whom the burden of proof rested. That 1s a question of law. The distinction between the two functions lies in "the distinction between the power of the court to control perverse or unreasonable verdicts by new trial, a power the exercise of which involves no question of law, and its duty to decide the question of law whether there is evidence which might reasonably satisfy the jury that the fact sought to be proved is established" (per Dixon J. in Hocking v.

Bell (1945) 71 C.L.R. 435 at 497). The exercise of the former

function could result only in an order for a new trial, unless statutory authority for some other order was provided. The exercise of the latter function could have other results, as for example a non suit or a judgment, contrary to the jury's verdict, in favour of the party on whom the burden of proof had rested. See Hocking v. Bell (1943) 43 S.R. (N.S.W.) 154 at 155-160;

Hocking v. Bell (1945) 71 C.L.R. 430 espec. at 439-445, 465-469,

486-487, 497-500; The Queen v. Berger [1894] 1 Q.B. 823; Raspor v. The Queen (1958) 99 C.L.R. 346; and the authorities previously cited in this paragraph. As a matter of terminology the expression "against the evidence" should, it seems, be reserved for a contention that a verdict for the party on whom the burden of proof does not lie should be set aside and a new trial ordered on the ground that all the evidence was the other way; and the expression "against the weight of evidence" should be reserved for a contention that upon conflicting evidence the verdict was one which a tribunal of fact could not reasonably find: Mount Bischoff

Tin Mining Co. v. Mount Bischoff Extended Tin Mining Co. N.L.

(1913) 15 C.L.R. 549 at 551, 552, 559, 560-564; Hocking v. Bell (1945) 71 C.L.R. 430 at 440-444; 75 C.L.R. 125 at 130-132; Raspor v. The Queen (1958) 99 C.L.R. 346 at 351; Conlon v. Davis 719671 2 N.S.W.R. 6 at 9-10. But, as Sugerman J.A. points out in the last case, the terminological distinction is often not observed. In

The fifth ground in the appellants' notice of appeal

"The verdict was against the evidence and the weight of the evidence."

Counsel for the respondent Crown submitted that in this

Court the verdicts of the jury cannot be impugned on the ground

that they were against the weight of the evidence. Counsel

founded the submission upon Aladesuru v. The Queen [1956] A.c. 49

and Raspor v. The Queen supra. Neither decision provides, in my

opinion, a comfortable ground for the Crown: the first was, as I think, a decision based on the precise verbiage of a "common form statute", whereas the Crown otherwise rests its submissions in restriction of the grounds of appeal available to this Court upon the circumstance that those statutory provisions do not regulate eriminal appeals to this Court; and the reasons for judgment in the second decision in my opinion both delicately undermined the authority of the first decision and also affirmed the conceptual identity of the two phrases, "against the weight of the evidence" and "cannot be supported having regard to the evidence", as Menzies J. pointed out in Plomp v. The Queen (1963) 110 C.L.R. 234 at 250. The latter phrase is to be found in the common form statutes. The authority which is cited by Dixon C.J., Fullagar and Taylor Jd. in Raspor's Case (99 C.L.R. at 352) for the proposition that "to be against the evidence means that the verdict is one which viewing the whole of the evidence reasonably the jury could not find" was a decision of the Privy Council (Phillips v. Martin (1890) 15 A.c. 193) that upon conflicting evidence a verdict could not, on the facts, be disturbed by the Judicial Committee, on an appeal on the ground "that the verdict was against the evidence, or the weight of the evidence". As was said by Lord MacNaughten for the Judicial Committee (15 A.C. at 194): "It is settled that a verdict ought not to be disturbed on that ground unless, to use the words of Lord Herscheli in

Metropolitan Railway Company v. Wright (1886) 11 App. Cas. 152,

'it was one which a jury, viewing the whole of the evidence reasonably, could not find'." Lord Herschell's observation was made in explanation as to what is required to establish the ground that a verdict is against the weight of the evidence, and was made in a case in which there was conflicting testimony on the issue

In Aladesuru's Case, supra, complaint was made before the Privy Council that the West African Court of Appeal had struck out of a notice of application for leave to appeal, against convictions of the appellants in the Supreme Court of Nigeria, a ground that "the judgment is against the weight of evidence". The language of the West African Court of Appeal Ordinance, by which appeals against such convictions were regulated, follows the language of the English Criminal Appeal Act 1907. In delivering the reasons of the Judicial Committee for dismissing the appeal Lord Tucker upheld the course taken by the West African Court of Appeal on the ground that the court "was entitled to require strict observance of the provisions of the statute so as to put a

stop to attempts, which had evidently become prevalent, to review the findings of fact by the Supreme Court", and "was clearly entitled to reject any particular ground which was not within the terms of the statute". But Lord Tucker had also said [F19561 A.C.

"It will be observed that the language of the West African Court of Appeal Ordinance follows that of the English Criminal Appeal Act, 1907, under which

it has long been established that the appeal is not by way of rehearing as in civil cases on appeals from a judge sitting alone, but is a limited appeal which precludes the court from reviewing the evidence and making its own valuation thereof. The position is correctly stated at page 346 of the 33rd edition of Archbold's Criminal Pleading, Evidence and Practice as follows: 'In order to succeed an appellant must show, in the words of the statute, that the verdict is unreasonable or cannot be supported having regard to the evidence. It is not a sufficient ground of appeal to allege that

In R. v- MeGibbony [1956] V.R. 424 at 427, the Full Court had observed that Lord Tucker had "made it perfectly clear that, in order to support an appeal on the ground that the verdict is 'unreasonable or cannot be supported by the evidence', it must be established either that there is no evidence to support the charge in some material respect or that, though there is some evidence to support it, no reasonable tribunal could base a verdict upon it." In Raspor's Case the members of the High Court were concerned, in

my opinion, to expose the error of that observation, by showing that the statutory ground comprehended error of fact as well as error of law. In the course of their reasons for judgment Dixon C.J. Fullagar and Taylor JJ. made the following observations (99

"While upon the facts appearing from the report of McGibbony's Case (1956) V.L.R. 424 there is no reason to doubt the correctness of the decision in that case, the judgment contains expressions, which as it seemed to us, were capable of being read in a sense which would unduly narrow the functions of the Court of Criminal Appeal. Our hesitation in the present case has been due to a fear lest by reason of these expressions the Court of Criminal

Appeal might not have applied an unfettered judgment to the question this case involved.

The expressions to which we refer in McGibbony's Case (1956) V.L.R. 424 might perhaps be taken to mean that upon an issue which the Crown must establish beyond reasonable doubt a verdict against the accused must be sustained unless upon the evidence the finding is unreasonable, there being no misdirection, erroneous reception or rejection of evidence and no other lawful objection having arisen to the course of the trial. If this were so the Court of Criminal Appeal would occupy much the same position as a Court of Crown Cases Reserved. For it has long been considered a question of law - that is a question for the court - whether there is reasonable evidence upon which a jury may reasonably find an issue in favour of the party upon whom the burden of proof rests. It is unlikely that it was intended by what was said in McGibbony's Case (1956) V.L.R. 424 to restrict the functions of the Court of Criminal Appeal to such cases. The express words of the statute say that upon a certificate of the judge of the Supreme Court or chairman of general sessions before whom a prisoner was tried or with the leave of the Full Court he may appeal against his conviction on a ground which involves a question of fact alone : s.563. Moreover, the Full Court may examine witnesses or have them examined before a judge or an officer, send matters of certain descriptions for inquiry and report to a special commissioner and exercise any power which might be needed in an appeal in a civil proceeding: s.570......-However, no special powers were invoked in the present case and the question simply was whether the verdict was unreasonable or could not be supported having regard to the evidence or whether on any ground there was a miscarriage of justice. It was not a question of a verdict being found in opposition to the evidence. In Aladesuru v. The Queen [f19561 A.C. 49, an appeal from West Africa, the Privy Council decided that it is not a sufficient ground of appeal to allege that the verdict is against the weight of evidence. What was the tribunal of fact in that case does not appear but presumably it was not a jury. The distinction between an attack upon a verdict on the ground that it is against evidence and an attack upon it on the ground that the weight of evidence is opposed to 1t 1s, or at all events was, well understood. It is well illustrated by Mount Bischoff Tin Mining Co. Registered v. Mount Bischoff Extended Tin Mining Co. N.L%. (1913) 15 C.L.R. 549, at pp. 552, 559, where a Tasmanian

statute provided that a new trial should not be granted on the ground that the verdict is against the weight of evidence.

In the Supreme Court of Tasmania it has been said that the distinction between a verdict contrary to evidence and against the weight of evidence is that in the former case the court is ready to grant new trials to rectify the obvious miscarriage of justice while in the latter they are loth to disturb the decision of a competent tribunal: Bennett v. Pierce (1872) Merc. (Newspr.) (Tas.) noted 1 Austn. Digest 259. It must be remembered that it was on the ground that verdicts were against evidence that the control of verdicts by granting new trials was first assumed, and, when new trials were still granted in cases of misdemeanour, convictions for perjury and other offences were set aside in the King's Bench on this ground: see R. v. Smith (1682) T. Jo. 163; 84 E.R.

1197. One may safely suppose that no court of criminal appeal at the present date could pronounce

a conviction to be against the evidence and yet at the same time confirm it upon the ground that the court was unable to say that it could not be supported having regard to the evidence. For to be against the evidence means that the verdict is one which viewing the whole of the evidence reasonably the jury could not properly find: Phillips v. Martin (1890) 15 A.c. 193, at p.194. Verdicts of course ought not to be, and are not in practice, set aside except upon very substantial grounds. But it is one thing to exercise powers with caution and discrimination and another to deny their existence."

In my opinion the fifth ground of appeal is available to the appellants. Its verbiage provides a conventional label for a ground on which a motion for a new trial might have been sustained in the King's Bench after verdict of guilty of a misdemeanour, and in my opinion nothing in Raspor's Case or in Aladesura's Case precludes this Court from entertaining the ground in each of these

appeals. A further question is as to what scope that ground

affords this Court of exercising, in considering the evidence, the

power to "have regard to the evidence given in the proceedings out of which the appeal arose" and the power "to draw inferences of fact", both of which powers are conferred by s.27 of the Federal

In 1867 it was held that a motion for a new trial could not be entertained upon conviction for felony : A.G. for N.S.W. v. Bertrand (1867) L.R. 1 P.C. 520; 10 Cox C.C. 618. That view had been expressed in the eighteenth century : see 84 L.Q.R. at 208, n.97. I need not be concerned with the correctness of the decision, which has been doubted (see 84 L.Q.R. 205-208), for there can in my opinion be no reason now for importing such a restriction into the determination of the grounds of appeal to be held available in this Court. Certainly the restriction did not rest on any broad principle of common law of contemporary value, such as guided the decision of this Court in Thompson v.

Mastertouch TV Service Pty. Ltd. (1978) 19 A.L.R. 547. Bertrand's Case serves rather to recall to mind that for several reasons the development of legal principle informing the adjudication of motions for new trials in criminal proceedings was retarded in the nineteenth century. Only if the proceeding had been instituted in, or removed by certiorari into, the King's Bench could a motion for a new trial be entertained, and the number of such proceedings was not great. From the statutory establishment of the Court of Crown Cases Reserved in 1848 (11 & 12 Vic. c. 78) the review of conviction upon a jury's verdict

tended to be concentrated in that court, where only questions of

law could be entertained. (See, for example, Reg. v. Stubbs

(1855) 1 Dears. C.C. 555.) The observations by Isaacs J. in Hargan v. The King (1919) 27 C.L.R. 13 at 23 concerning the "greatest innovation" and the "legislative advance" made by the common form statutes were evoked by a comparison between statutory appellate jurisdiction exercisable only for error of law and the appellate jurisdiction conferred by the common form statutes to review a conviction on grounds not so confined. It may be a question whether, in respect of misdemeanour tried by jury in a colonial or State Supreme Court on which had been conferred the jurisdiction and powers of the King's Bench, any innovation or advance of the kind Isaacs J. had in mind was effected by a common form statute. It is to be observed that Peacock's Case (1911) 13 C.L.R. 619, which was a decision before the enactment of the common form statute in Victoria (The Criminal Appeal Act 1914) upon questions of law reserved by the trial judge, was concerned with a felony. (See Plomp v. The Queen (1963) 110 C.L.R. 234 at 244.) Section 20({1) of the Criminal Appeal Act 1914 provided:

"Writs of error, and the powers and practice now existing in the

Supreme Court in respect of motions for new trials or the granting

thereof in criminal cases, are hereby abolished". Similar provisions appear in other common form statutes. One substantial change the enactment of the common form statutes did effect: the subjection of all verdicts of guilty, not only those for misdemeanour returned in a court having the common law powers of

the King's Bench, to review for error of fact. During the decades

since the common form statutes came into force in this country

there have been development and change in the expression - some might say in the substance - of the principles governing the

exercise of the powers conferred by those statutes: compare Ross

v. The King (1922) 30 C.L.R. 246, espec. at 255-256; Raspor v. The

Queen (1958) 99 C.L.R. 346 at 350-352; Plomp v. The Queen (1963)

110 C.L.R. 234; Hayes v. The Queen (1973) 47 A.L.J.R. 603 at 604-605; and the passage from the reasons for judgment of Barwick

C.J. in Ratten v. The Queen (1974) 131 C.L.-R. 510 at 515-516, which is set out in paragraph 8 hereof. If during those decades the superior courts of this country had been reviewing verdicts of guilty for error of fact only upon the grounds developed in England during the two preceding centuries for grant of a new trial in criminal and civil proceedings, the process of development in the law relating to the grant of new trials, which Dixon C.J. noted in relation to civil actions in Balenzuala v. De

Gail (1959) 101 C.L.R. 226 at 235, might have been such as to make

as adequate a provision for the satisfactory administration of justice in criminal matters as has been made by reasoning upon the verbiage of the common form statutes. The underlying principles upon which the common law courts in banc exercised discretionary supervision of trial by jury in those courts before the legislative reforms of the Victorian era might be thought to

provide a sound basis for such a development. In Bright v. Eynon (1757) 1 Burr 390; 97 E.R. 365 at 366 Lord Mansfield discussed

writing, their sentence or decree may, many ways, be reviewed and set right.

"But a general verdict carl only be set right by a new trial : which is no more than having the cause more deliberately considered by another jury ; when there is a reasonable doubt, or- perhaps a certainty, that justice has not been done.

"There are numberless causes of false verdicts, without corruption or bad intention of the jurors. They may have heard too much of the matter, before the trial; and imbibed prejudices, without knowing

it. The cause may be intricate ; the examination may be so long as to distract and confound their attention.

"Indeed, for a good while after this time" (that is, the middle of the seventeenth century) "the granting of new trials was holden to a degree of strictness, so intolerable, that it drove the parties into a Court of Equity, to have, in effect, a new trial at law, of a mere legal question; because the verdict, in justice, under ail the circumstances, ought not to conclude: and many bills have been retained upon this ground ; and the question tried over again at law, under the direction of a Court of Equity. And therefore of late years, the Courts of Law have gone more liberally into the granting of new trials, according to the circumstances of the respective cases. And the rule laid down by Lord Parker, in the case of The Queen against The Corporation of Helston, H. 12 Ann. B.R. seems to be the best general rule that can be laid down upon this subject, viz. 'doing justice to the party', or in other words 'attaining the justice of the case'.

The reasons for granting a new trial must be collected from the whole evidence, and from the

nature of the case considered under all its circumstances."

Sir James Burrow reported further of the concurring judgments:

"He (Denison J.) added, that it would be difficult perhaps to fix an absolutely general rule about granting new trials; without making so many exceptions to it, as might rather tend to darken the matter, than to explain it : but the granting a

new trial, or refusing it, must depend upon the legal discretion of the Court; guided by the nature and circumstances of the particular case, and directed with a view to the attainment of justice.

"Mr. Just. Foster agreed to the propriety of what had been said; as to such cases in which the juries give verdicts against evidence; and even as to cases where there may be a contrariety of evidence, but the evidence, upon the whole, in point of probability, greatly preponderates against the verdict: (which, depending on a variety of circumstances, is matter of legal discretion, and cannot be brought under any general rule:) but in all cases where the evidence is nearly in aequilibrio, he declared that he should always think himself bound to have regard to the finding of the jury; for 'ad quaestionem facti respondent

juratores.' In such a case, it is not the province of the Judge, to determine: it ought to be left to the jury."

In Swinnerton v. Marquis of Stafford (1810) 3 Taunt. 91;

128 E.R. 37 the Court of Common Pleas granted a new trial of an issue as to a right of common. For the Court Mansfield C.J.

"The point that weighs most in this case on the part of the application for a new trial, is, that it is a question involved in great doubt, great obscurity, and of great value; and the verdict in this case binds the right for ever ...... And although ...... seven months elapsed before the time of the trial, yet that is not a very long time for the investigation of a matter, from its nature involved in so much doubt and obscurity: and since much pains seem to have been taken, the subject-matter is of great value, and the inheritance is to be bound for ever by the verdict,

and since it is very possible that more light may be thrown on it, it is better that it should go down to a further investigation. But the new trial must be had on payment of costs, and the person who applies for it would not be wise to pay the costs, and to try it again, unless he could throw more light on the subject. The Court does not decide that the present verdict is wrong; but for the reasons above-mentioned it may be more satisfactory that the case should undergo another inquiry."

@iscretionary considerations were still thought important as the

following passage from Chitty's Archbold's Practice (12th ed.

"If the jury find a verdict contrary to evidence, the Court will in general grant a new trial, even

in the case of a trial at bar. But not so if the verdict be such as the justice of the case required. Nor will they grant a new trial if a

verdict be found for the defendant against evidence, in a vexatious or hard action; or if found for the plaintiff after an unconscionable defence set up by the defendant. And it was refused, where the credibility of a witness was left to the jury, and they found a verdict against his evidence, although there was no evidence to impeach his credit. Where the evidence is conflicting, a new trial will seldom be granted, unless the evidence against the verdict very strongly preponderate. In a question, however, relating to real property, where the inheritance would have been for ever bound by the verdict, the Court granted a new trial although the case had been left to the jury upon conflicting evidence. In granting a new trial upon the ground that the verdict is against the evidence, the Court are in a great measure guided by whether the judge who tried the cause is satisfied with the verdict or not."

In Metropolitan Asylum District v. Hill (1882) 47 L.T.

an order for a new trial was affirmed by the House of Lords.

jury had determined, by answers to questions, that a small-pox hospital constituted a nuisance, both by reason of its "character and capacity" and its situation relative to the plaintiffs' several parcels of land and by reason of faults and defects in its

management. Lord Blackburn observed (47 L.T. at 32,33):

"The jury, in this case, after a long trial have answered six questions put to them by Pollock, B., before whom the case was tried, and from those answers it sufficiently appears that they thought it proved that the maintenance of the hospital, however skilfully and carefully it was maintained, was a nuisance to each of the respondents. But the finding, if satisfactory, that the hospital was a nuisance per se to each of the respondents entitles them to have an injunction to restrain the appellants from carrying on the asylum so as to be a nuisance to all or any of the respondents. This is a very important matter, casting great, if not insuperable, difficulty in the way of carrying out the scheme of having separate hospitals for the treatment of those ill of infectious disorders, which the Legislature appear to have approved of. For, though it might be contended, consistent with this verdict, a hospital for the reception of a smaller number of patients might be maintained on this spot without being a nuisance to the respondents, yet if the appellants were to maintain a hospital there for any number of small-pox patients, they would do so at their peril and subject to a great disadvantage so long as this verdict stands......I think that in this case a new trial ought to be granted. It is not easy, probably it is impossible, to lay down any precise rule as to when a new trial shall be -granted or refused as against evidence, and I shall not attempt to do so. The power to do so is intrusted to the courts for the purpose of securing that, as far as is practically possible, justice should be done. And the mode in which it is exercised, and the principles on which the courts act in doing so seldom got into the reports, whilst there was no appeal on such questions. Perhaps now they will get better known. The constitution of this country has entrusted the determination of facts to the jury; but even when the jury had acted properly on the materials before them, it may well be that,

without imputing blame to any one, it may appear that the nature of the case was such that it was not sufficiently investigated, or as Bramwell, L.d. says, sifted, and that a verdict founded on such

imperfectly investigated materials is unsatisfactory. Even if that is made out, it does not follow that there should be a new trial. The

court has in its judicial discretion to weigh the delay, vexation, and expense of a new trial, all in fact which forms the foundation of the maxim Interest reipublicae ut sit finis litium, against the injustice which may be worked in the particular circumstances by treating a verdict so unsatisfactorily obtained as conclusive; and I think, though as I have already said, it would be difficult to find reported authorities for it, that the importance of the consequences of the verdict is always an important element in coming to a decision on such a question. It is for this reason that I have pointed out the important effects of the verdict, finding that the hospital is a nuisance per se if it stands. I am not at all prepared to say that, if the verdict only affected the payment of a sum of money to the respondents, I should think it right to interfere; at the same time, I am not to be understood as saying that I should 'not. I think that a further and very important element to be taken into account is, whether the question in issue is one of novelty, such that the litigants could not reasonably be expected to grapple with it and understand it at once, and this is what weighs most with me."

The speeches of the other members of the House were to like

"Limiting myself to the main issue, I consider it important to observe that the jury had not, in this case, to find a verdict on a common question of fact, depending on the memory or the credit of witnesses, who (if they remember accurately and speak truly) must be capable of understanding what they have seen and heard. Nor was the question one of scientific knowledge, ascertained and verifiable by experiment, as to which any expert, properly qualified, could speak with the same certainty as concerning things which are the direct objects of sense. It was a problem of medical science, not

yet fully solved, but still within the region of bona fide controversy. I think it would be a fallacy to apply to a case of that kind the ordinary reasoning, according to which the verdict of a jury on a question of fact ought not to be disturbed when there has been evidence on both sides, unless the preponderance of evidence against the verdict is strong and clear. If, indeed, nothing were at stake beyond the right of the plaintiffs to receive a certain sum of money by way of damages for a particular trespass, the maxim, Interest reipublicae ut sit finis litium, might be in point, even in a case of this problematical kind, as (in patent cases especially) may sometimes be liable to happen. But, when much more than this is at stake, it may well be that a single verdict on such an issue, which appears to the court to have been founded upon an inconclusive and unsatisfactory state of evidence, ought not to stand, even though an opposite verdict might also have been open to a similar objection."

In South Eastern Railway Company v. Smitheram (1883) 47

J.P. 773 Lord Blackburn's speech in favour of ordering a third trial of an action in negligence, in which order the other members of the House are reported to have "very reluctantly concurred",

included an account of the history of motions for new trial:

"A practice began at least as early as the beginning of the 17th century, by which the court in banc would entertain a motion, if made within the first four days of term, while the proceedings were, as it was called, in paper only, to stay the postea, and if it was made out that there had been any miscarriage at the trial to set aside the proceedings at nisi prius and grant a new trial. But they could do no more. However clearly it appeared that the verdict ought to have been entered for the other party, the court in banc could not enter it. The judge who tried the cause at nisi prius might by his notes amend the postea, but not the court. This defect was partially cured by a practice which grew up, by which the judge with the consent of the parties, for he could not do it without, reserved leave to move in bane to

enter the verdict the other way. This practice had, before the Common Law Procedure Act, 1852, become the established law. There was no reason why the motion should not, where leave was reserved, be in the alternative to enter the verdict according to the leave reserved, or to have a new trial, on the ground either of misdirection of the judge or anything else which amounted to a miscarriage on the trial. One well recognised head of miscarriage was when the verdict was against the weight of evidence; where if the court thought

that, though the right direction in law was given, the jury had, either from misapprehension or disregard of the direction, or not properly appreciating and considering the evidence, found a verdict so unsatisfactory that it ought not to stand, and that the question should be submitted to

another jury, and for that reason granted a new trial."

If the "grounds upon which a new trial may be granted after judgment entered upon a jury verdict are the grounds available to an appellant to this court against a conviction after a trial on indictment before the Supreme Court of the Australian Capital Territory" or the Supreme Court of the Northern Territory of Australia, as it was submitted on behalf of the respondent we should follow Duff's Case to hold, I should have thought that this Court might without error so apply the underlying principles, and so adapt the more particular rules, which shaped those "grounds" as to enable this Court to examine a jury's verdict of guilty for error of fact, and to provide an appropriate remedy when error is found, by reference to substantially the same criteria as have been established by the High Court under the common form statutes. There 1s of course difficulty in adapting criteria framed with a view only to a further trial to serve as criteria upon

satisfaction of which a choice between a further trial and a

directed verdict is to be made. But, if Duff's Case is to be

followed, the difficulty must be faced: see the penultimate

paragraph of the second of the two passages from Duff's Case which are quoted in paragraph 6 hereof. Conviction upon indictment is

of no less public or private importance than rights of common and

the convenient siting of public institutions. Even the verbiage under the one rubric - "miscarriage", "unsatisfactory" - smacks of the verbiage under the other - "miscarriage of justice", "unsatisfying". Further, it has been made clear by Barwick C.J.,

in Hayes v. The Queen (1973) 47 A.L.J.R. 603 at 604-605, if not in

Ratten v. The Queen, supra, and by the Full Court of the Supreme Court of Victoria in Reg. v. Tsakmakis (unreported: judgment 24 October, 1979), that the reasonable doubt of guilt in the mind of the appellate court, to which effect is to be given under the common form statutes (see paragraph 8 hereof), must be formed "on the view of the facts which in its opinion the jury were entitled to take, having seen and heard the witnesses". If, as Barwick

C.J. said, it be of no practicable consequence whether the

criterion he propounded in Ratten's Case by reference to a

reasonable doubt "is expressed as a doubt entertained by the court

itself, or as a doubt which the court decides that any reasonable jury ought to entertain", that criterion might be thought the same

as that which was said in Raspor v. The Queen to constitute the

ground for grant of a new trial which 1s summarily called "against evidence". (See paragraph 12 hereof.) But I would not, unless compelled by authority, regard as unimportant or inconsequential

the distinction between a determination whether or not the court

entertained a reasonable doubt as to guilt and a determination by the court whether or not a jury might reasonably have been satisfied of guilt beyond reasonable doubt. However widely the appellate powers of this Court in criminal matters may be defined, the Court would not be free of a like constraint to that which has maintained a distinction of a similar kind in relation to verdicts in civil actions in order to ensure that the civil appellate jurisdiction conferred during the second half of the nineteenth century was not unwisely exercised in subversion of the jury

system of trial. (See MacBean v. The Trustees Executors and

Agency Co. Ltd. [1916] V.L.R. 425 at 441-443; Mechanical and

General Inventions Co. and Anor. v. Austin and Anor. [1935] A.c.

346 at 373-375; and the cases cited in Eng. & Emp. Digest (Blue Band) vol. 51 pp. 862-863; Aust. Digest, vol. 1, pp. 330-348.) It is a distinction which was maintained, in R. v. Ive (Full Court of the Supreme Court of Victoria; unreported; judgment 19 May 1976) by Newton and Fullagar JJ.. In this case I am of the opinion that the jury's verdicts were verdicts which, viewing the whole of the evidence reasonably, the jury could properly have found, and I am also free of any such a doubt as to the guilt of the appellants as might justify a conclusion that the verdicts were unsafe or unsatisfying. Acting on that view of the facts which in my opinion the jury were entitled to take, I do not myself entertain any reasonable doubt of the guilt of either appellant. It 1s therefore unnecessary to express, and I refrain from expressing, any conciuded opinion as to whether the "grounds upon which a new

trial may be granted after judgment entered upon a jury verdict

are the grounds available to an appellant to this court against a conviction after a trial on indictment before" the Supreme Court

of the Northern Territory of Australia, or as to whether, if those are the grounds available, any such an appeal might be differently decided by a court exercising the appellate jurisdiction conferred

There were three other grounds of appeal (numbered 3, 4 and 22) which in the submission of counsel for the Crown were shown by the reasoning in Duff's Case to be unavailable in this Court. Each ground assigned error in the learned trial judge's failure either to direct or to advise verdicts of acquittal by the jury. Those grounds must fail, if my conclusions are correct that the verdicts of guilty were reasonable and not dangerous, unsafe or unsatisfying. It is unnecessary for me to consider any of the

When the hearing of the appeal commenced counsel for the Crown moved, upon notice, for an order that the five grounds of appeal which in their submission were unavailable be "struck out". The grounds of the motion assigned in the notice were that those grounds of appeal were "incompetent and not grounds known to the law". The motion was said to be justified by Order 52 Rule 18(1),

"KA respondent may move on notice at any time for an order dismissing an appeal as incompetent."

The timely warning which service of the notice of motion gave the appellants' legal advisers of the important submissions which the respondent intended to advance no doubt was a fair and prudent step for the Crown to have taken in the interests of justice. But I do not think that, on its proper construction, Order 52 Rule 18(1) has application to a ground, or to some but not all grounds of an appeal. I would propose that the motion,

which was heard by consent of the parties at the commencement of

I now state my reasons for concluding that neither the fifth nor the sixth ground of appeal, (which are set out, but not

in extenso, in paragraphs 7 and 12 hereof) can be upheld.

Azaria's body has not been found. But clothes she was A wearing when she disappeared were found on 24 August 1980, close to the base of Ayers Rock. It was common ground that the bloodied collar of one of those garments justified a confident conclusion that extravasation of blood in substantial volume from the neck or head or from the neck and head of the child had occurred at about the time she died. Evidence was adduced by the Crown of circumstances from which it was to be inferred, as the Crown contended, that extravasation of blood in substantial volume from the body of Azaria had occurred in the appellants' car. It was

not, nor could it have reasonably been, suggested that during the

period when the child disappeared any creature capable of wounding

Azaria might have had access, with the child, to the car, except Mrs. Chamberlain and her sons. But each of those three persons might have had access, with the child, to the car during that period, if the evidence of Mrs. Chamberlain and other statements of hers which were proved be disregarded. One set of circumstances of which the Crown offered proof was claimed by the Crown to justify an inference that blood of Azaria had been shed in the front of the Chamberlain's car at about the time the child disappeared. On 19 September 1981 the police took possession of the car and on the same day they took possession of articles which Mr. and Mrs. Chamberlain told them had been in the tent or in the car on the evening of 17 August 1980 and which were in the appellants' home when taken by the police. Thereafter matter found on parts of the car's interior or on articles within the car or on other articles taken from the appellants' home was examined and made the subject of biochemical testing. The expert witnesses were in agreement concerning certain evidence which one of those witnesses gave about human and other animal blood. It may confidently be inferred that this evidence, the effect of which it is necessary that I now summarise, was accepted by the jury.

Human blood may be considered as including a component called serum and red blood cells. Within such a cell each of the haemoglobin molecules may be considered as including four different molecular chains, two of which are designated alpha chains. In the normal adult the other two chains of most of the

molecules are designated beta chains. The normal human foetus

produces not only a haemoglobin molecule the four molecular chains of which are as in the typical adult molecule, but also a haemoglobin molecule which includes two alpha chains and two molecular chains designated gamma chains, but which includes no beta chain. The latter kind of haemoglobin molecule, to which reference was commonly made in evidence as foetal haemoglobin, has a much higher affinity for oxygen than what may conveniently be

called adult haemoglobin. The presence of foetal haemoglobin in

the blood of a foetus gives the child an advantage in competition with his or her mother for the oxygen which the mother's breathing

supplies. It is the two gamma chains which cause the advantageous

Substances may be prepared which contain molecular complexes called antibodies, which react with components of haemoglobin molecules called antigens. An antibody may be prepared which reacts specifically with an antigen associated only with the gamma chains of haemoglobin. Under appropriate experimental conditions such a chemical reaction affords evidence visible without magnification of a product of the reaction, and thereby evidence of the presence of foetal haemoglobin in the

The production of foetal haemoglobin diminishes very substantially as a foetus approaches full term. At birth the proportion of foetal to adult haemoglobin in the blood is commonly

about 3:1. Five months after birth the proportion is commonly

about 1:99. The blood of Azaria Chamberlain which was shed on to her clothing when she was nine weeks old was found to include the two haemoglobins in the proportion 1:3. That proportion is normal for an infant of that age. The normal percentage of foetal haemoglobin in the blood throughout life after the age of about 5 months is not more than one per centum, except in persons suffering one or other of several genetic disorders, who in the places where bleeding in the appellants' car might have occurred were so few that all parties and witnesses ignored the possibility that a person above the age of 6 months might have shed in that car blood which contained a higher proportion of foetal haemoglobin than one per centum. And the parties and witnesses did not call in question the inference, which the whole of the evidence justified, that the foetal component of the blood of a person above the age of 6 months and not suffering one of those rare disorders would not have had any influence on any of the biochemical experiments and tests which were the subject of

The Crown adduced evidence that the presence of foetal haemoglobin had been detected in the Chamberlain's car and on articles which might have been in the car at about the time Azaria disappeared. There was no evidence that any child other than Azgaria had bled in the car when that child was under the age of 6

The commercial production of a substance containing

antibodies which react with an antigen associated only with the gamma chains of haemoglobin is achieved by utilising the immunological reactions of an animal such as a rabbit. The blood of the animal which contains the desired antibody will be likely to contain also other antibodies and other components of blood which the manufacturer tries by various means to remove from his product. The possibility exists that when the product is sold by the manufacturer it will contain not only the desired anti-foetal haemoglobin antibody but also other, unwanted components which will react, under certain experimental conditions, with components of haemoglobin other than an antigen associated only with the gamma chains. One such an unwanted component of the product might be an antibody which reacts with an antigen associated only with the alpha chains of human haemoglobin. That is one of the reasons why a purchaser would conduct tests of the product before using

Some of the tests of which the results evidenced, in the opinion of some expert witnesses, the presence of foetal blood in the appellants' car, or on articles which might have been in the car when Azgaria disappeared, involved the use of a product containing antibodies which react with an antigen associated only with gamma chains. Such a product was called in evidence sometimes anti-foetal anti-serum, sometimes anti-HbF anti-serum (HbF being itself a contraction commonly used by the expert witnesses in reference to the gamma chains of a haemoglobin

molecule or to the foetal haemogloben molecule itself), and

sometimes, inelegantly, anti-foetal haemoglobin. Products containing one or other of the several antibodies used in the tests and experiments of which evidence was given were designated

Unless the anti-HbF anti-serum used in the tests, of which the results were said to evidence the presence of foetal blood, reacted, under the experimental conditions which prevailed in the tests, only with HbF, the results of the tests could not be regarded as evidencing the presence of foetal blood in the samples which were the subjects of the tests. If, for example, the anti-HbF anti-serum (that is to say, the commercially produced fluid containing antibodies which would react only with antigens associated only with gamma chains) contained also a substance which would react, under the experimental conditions which prevailed in a test, with a blood component associated with alpha chains (which are common to adult and foetal haemoglobin) then the observed product of the biochemical reaction which occurred during the test might have been the product of reaction between that unwanted substance and an antigen associated with alpha chains, rather than the product of a reaction between the anti-bodies specific to antigens associated only with gamma chains and those antigens. And if that were so, the observed product of the biochemical reaction would afford no evidence that the matter from

The witness who had conducted the biochemical testing of

the matter from the car and articles which might have been in the car, Joy Laraine Kuhl, later subjected to testing anti-HbF anti-serum which I will for the present assume was from the batch out of which had come the anti-HbF anti-serum used in some of the testing of that matter. Between February 1982 and September 1982 the anti-HbF anti-serum was tested against the blood of more than 230 adults and in no case was any reaction observed. The blood samples came from blood kept in the laboratory of the Division of Forensic Medicine of the Health Commission of New South Wales, where Mrs. Kuhl was employed as a forensic biologist. The age of the samples - that is, the period elapsed from the time when the blood was shed or was extracted from the body until the time of testing - ranged from two and a half years to a few days. None of the samples was said to have been exposed for any particular time outside the laboratory. But some samples were subjected to heating in a humid environment in the laboratory and thereafter

The experimental subjection of blood samples to heat was undertaken because it is known that exposure of blood to an environment outside the body, as well as the passage of time after the shedding or extraction of the blood, is causally related to biochemical changes in the blood which are generically described as denaturation. Changes of haemoglobin molecular structure occur in the course of denaturation. It was not suggested by any

witness that a consequence of such a change might be a biochemical

reaction between the anti-HbF antibody and any substance other

than the antigen associated only with gamma chains. The possible significance of denaturation lies rather in the circumstance that the product of reaction between a particular antibody and a particular antigen is identifiable only when the numerical preponderance of the one over the other in the experimental medium does not exceed certain limits. (That is why the foetal haemoglobin content of normal adult blood may be ignored in the experimental conditions of the tests and experiments of which evidence was given.) Those limits encompass a range within which the proportion of antibody to antigen may vary without failure of the experiment. But when the possibility is under consideration, that the products of reaction, identified by Mrs. Kuhl and other witnesses as products of reaction between gamma chain antigens in matter from the car and antibodies in the anti-HbF anti-serum which react only with gamma chain antigens, were in truth products of reaction between alpha chain antigens and unwanted antibodiesin the anti-serum, the possibility is enhanced by the circumstance that denaturation has reduced the number of reactant alpha chain antigens, for the hypothetical unwanted antibodies could be expected to be present in the anti-serum only in relatively small numbers. Mrs. Kuhl denied the possibility. She rested her opinion, in part, on the results she obtained between February and September 1982 when she tested the anti-HbF anti-serum for reaction with adult blood samples from more than 230 persons in different dilutions of the blood ranging between one part blood to one thousand parts diluent and one part blood to eight thousand.

Neither fresh nor aged adult blood reacted with the anti-HbF

anti-serum at any of those dilutions. The samples of matter from the car had been so small that dilution of each sample had to be estimated by visual colour comparison of the sample in diluent with a control blood specimen in a known dilution. Mrs. Kuhl sought to achieve by this method of colour comparison a dilution of the sample within the range between 1:500 and 1:1000. The colour of blood is produced by the haem component of the haemoglobin molecule, but the reactions which may evidence the presence of foetal or adult blood are with molecular chains in the globin component of the molecule. As little is known as to the rate of change of the structure of those chains in the course of denaturation of blood, there can be no reliable estimation of the number or proportion of antigens associated with a particular chain which will have lost by denaturation the capacity to react with antibodies specific to those antigens during any given number of months after shedding or extraction of blood from the body. Samples of foetal blood which Mrs. Kuhl ""aged" by heating in a humid environment and then tested with anti-HbF anti-serum reacted with the anti-serum at a dilution of 1:1000, but not when further

Two witnesses gave evidence that the anti-HbF anti-serum was not mono-specific, that is to say reacting only with antigens associated only with gamma chains. They were Professor Boettcher and Professor Nairn. The former was at the time he gave evidence

Professor of Biological Sciences at the University of Newcastle.

He had published many scientific papers on blood-group genetics

and immunology. Professor Nairn was at the time he gave evidence Professor of Pathology and Immunology at the Monash University Medical School at the Alfred Hospital. He had played a considerable part in the founding of the study of applied clinical immunology in Australia. He was author of standard texts in immunology. He had had extensive experience in forensic biology and had conducted courses of instruction at Monash University in immunological testing, which were attended by forensic biologists

Professor Boettcher observed of the testing in 1982 by Mrs. -Kuhl of adult blood samples against the anti-HbF anti-serum at various dilutions of the blood, that the circumstances were different from those under which she had tested matter from the appellants' car. He was not offered the opportunity to specify the differences and the significance which he attributed to those differences in reasoning to a conclusion that her testing did not show the anti-HbF anti-serum to be mono-specific. It might be inferred from the whole of his evidence that he regarded the denaturation of blood aged in the appellants' car as likely to have deprived a high proportion of the antigens associated with the molecular chains of the capacity to react with antibodies, so that Mrs. Kuhl's testing with adult blood samples of unspecified age and unknown environmental history could not be regarded as a

satisfactory test of the specificity of the anti-HbF anti-serum in

Professor Boettcher had himself obtained anti-HbF anti-serum from the German manufacturer, Behring Werke, which was the source of the anti-HbF anti-serum used by Mrs. Kuhl. There was no evidence as to whether the anti-serum procured by Professor Boettcher was of the same batch as that from which Mrs. Kuhl's anti-serum had come. Indeed, there was no evidence which would elucidate the concept of batching at all, except what the use of

the word itself might convey when Mrs. Kuhl gave this evidence:

your tests?---I had two - two batches of antifoetal haemoglobin which were used in the initial tests.

One was - one was continually used for the rest of the examination, because I ran out of the other one.

Subject to that one exception, or one qualification rather, that you just made, you used the same antisera in all your tests?---Yes, as far as I remember.

Look, you swore you did, did you not, at the inquest?---Yes, Mr. Phillips.

Professor Boettcher tested the anti-serum which he had bought from Behring Werke against adult blood in dilutions ranging from 1:8 to 1:16000. At dilutions of 1:512 and above there were visible products of what in the Professor's opinion were reactions between the anti-serum and some component of the adult blood. Further testing was then conducted by Professor Boettcher of adult blood in dilution of 1:512 placed in a well in a gel medium and

surrounded by several wells, some of which contained the anti-HbF

anti-serum he had bought from Behring Werke and others of which contained anti-serum specific to antigens associated with beta chains (called anti-HbA anti-serum) and which was therefore specific to adult haemoglobin. In this test, called an Ouchterlony test after its inventor, the test substances are left undisturbed to diffuse, each from its well, through the transparent gel medium. Where appropriate relative concentrations of two reactant substances are present together in the gel, there the products of reaction become visible as a line in the gel (called a precipitin band), usually an arc bisected by the axis of the two wells from which the reactant substances have diffused. The lines or bands which Professor Boettcher observed between the well of adult blood and each of the wells into which the anti-HbF anti-serum had been placed, compared with the stronger bands between the adult blood well and the wells into which anti-HbA anti-serum had been placed, led him to the conclusion that the anti-HbF anti-serum he had obtained from Behring Werke was not mono~specific, but contained also antibodies which were specific to antigens associated only with alpha chains, which are common to the adult and the foetal haemoglobin molecule. He confirmed his conclusion by other tests, called cross-over electrophoresis tests, in which antibody and antigen are brought into close association, not by diffusion through a gel, but by the influence of an electric current passing through the fluid medium. If a reaction occurs, the products of reaction are observable as a

Professor Boettcher was fortified in his opinion that the anti-HbF anti-serum used by Mrs. Kuhl in her tests of matter from the car was not mono-specific by several anomalies, as he regarded them, in the results of tests by Mrs. Kuhl in which the anti-serum was used. Some of these results could be examined by the expert witnesses at the trial in the preserved test medium. Other results were recorded in Mrs. Kuhl's working notes of tests, of

which the test medium had been destroyed after completion of the

tests. Several of these suggested anomalies were the subject of detailed consideration in the evidence of the immunological

In order to demonstrate to the jury the Ouchterlony test Mrs. Kuhl had, at some unspecified time before she gave evidence at trial on 30 September 1982, carried out such a test and had prepared a photograph of the test plate, after completion of the test. The photograph was tendered in evidence (Exhibit 102, photograph 9) and later the plate itself was received in evidence as Exhibit 103E. The legend on a diagrammatic sketch plan (Exhibit 102, photograph 8) of the plate identified the substances which Mrs. Kuhl had placed in the 7 wells in the gel medium covering the plate. Near a well into which anti-HbF anti-~serum had been placed a mark could be observed in the gel, and the significance of that mark was disputed by the immunological experts who gave evidence. The evidence does not disclose whether the anti-HbF anti-serum in that well came from the same batch as

provided the anti-HbF anti-serum used in the testing of adult

blood samples by Mrs. Kuhl between February 1982 and the time of the trial. Perhaps one might draw an inference from the whole of the evidence and the conduct of counsel during the trial that it

Mrs. Kuhl swore that the mark was not visible before staining procedures were carried out in order to preserve the materials on the plate. Professor Boettcher agreed that, if the mark was not visible in the gel before staining, the explanation Mrs. Kuhl and other expert witnesses gave of the mark was correct and the presence of the mark only after staining did not suggest that the anti-HbF anti-serum was not mono-specific. Professor Boettcher considered, however that Mrs. Kuhl might have failed to observe the mark before the staining procedures were carried out. He supported that opinion by pointing out that evidence Mrs. Kuhl had given of her previous experience of the Ouchterlony test and of her opinion concerning the positions on an Ouchterlony test plate in which precipitin bands would form afforded good reason to believe that she would not direct her attention to the position on the plate where the mark was to be seen when she was engaged in an examination of the plate before staining. The jury had, however, heard Mrs. Kuhl in evidence at great length and had examined her working notes of other biochemical testing she had carried out and they had heard the evidence of several other expert witnesses concerning much of her work in the laboratory. The jury might reasonably have been persuaded that the mark was not present

before staining, in my opinion, by reason of the confidence they

may have thought fit to repose in Mrs. Kuhl's reliability as a witness and in her care and skill in observation, upon a consideration of the whole of the evidence relevant to an

Another test plate prepared by Mrs. Kuhl (Exhibit 102, photograph 23 & 35) manifested anomalous marks, according to the evidence of Professor Boettcher and Professor Nairn. The test carried out as part of a screening programme of infant blood samples by cross-over electrophoresis. The samples were prepared from stains aged, after shedding or extraction from the body, over different periods, from fresh to about 2 years old. There was no evidence as to the age of the stains used in this particular plate. The ages of the children when the blood was shed or extracted ranged from a new-born infant to a child of 30 months. Four of the samples on the plate manifested double precipitin bands between the well containing anti-HbF anti-serum and the well containing the sample. A fifth sample manifested a faint mark as well as a precipitin band. The children from whom those five blood samples came were all younger than 16 weeks. It was agreed by the expert witnesses that in each case one of the bands was the product of reaction between an antibody specific to an antigen associated only with the gamma chain. Professor Boettcher and Professor Nairn were of the opinion that the second band was the product of a reaction between an antibody specific to an antigen associated only with the alpha chain. If that opinion were

correct, and if the anti-HbF anti-serum used in the test were of

the batch from which Mrs. Kuhl drew the anti-HbF anti-serum used in some of the tests of matter from the car, then the products of reaction observed in the latter tests might have been products of a reaction between the antibodies specific to alpha chain antigen and such antigens, which are found in both adult

Professor Boettcher conceded that, if mono-specificity of the anti-HbF anti-serum were assumed, there were available other possible explanations of the double banding on the plate. On the other hand Mrs. Kuhl and Bryan John Culliford, one of the expert witnesses whose evidence supported her conclusions, conceded that, if the anti-HbF anti-serum used in a test were not mono~specific, no conclusion that the matter from the car contained foetal blood could be drawn from any demonstrated

Mrs. Kuhl was of the opinion that the correct explanation of the double banding might be that each band was the product of a variant type of gamma chain, one of which she called foetal 1 and the other foetal 2. Dr. Simon John Baxter, who was in charge of the laboratory in which Mrs. Kuhl was employed, was inclined to think that the correct explanation might be that a reaction had occurred with foetal haemoglobin which was in combination with another blood component called haptoglobin, but he said that there was a number of explanations other than that

of Professor Boettcher, which he rejected. Dr. Baxter had

worked as a forensic biologist in the United Kingdom and in Australia for more than ten years after he obtained his doctorate in a faculty of chemical pathology, and he had published articles on immunological and other identification of blood components. He had developed the application of cross-over electrophoresis to the identification of foetal bleo@g. Mr. Culliford, the Deputy Director of the Metropolitan Police Laboratory in London, swore that there were many possible reasons for the double banding, but he excluded Professor Boettcher's explanation on the ground that "from what I read in the transcripts, the anti-serum has been extremely thoroughly tested against - if I remember rightly - something over 200 different adult haemoglobin samples. It didn't react to any of these. So one has, in fact, got a specific anti-serum. The precise nature of the reason for two bands with this anti-serum, I don't know". Mr. Culliford had been engaged for 29 years in the identification and grouping of blood. He had published many papers in forensic biclogy and had written a book, entitled "The Examination and Typing of Blood Stains in the Laboratory" at the request of the Department of Justice of the Government of the

United States. He had invented the cross-over electrophoresis technique. The Metropolitan Police Laboratory served the forensic biology requirements of a population of nearly fourteen

Mrs. Kuhl's working notes recorded what were said by

Professor Boettcher and Professor Nairn to be anomalous results

in some tests of matter from the car and articles from the car. For example, in a test recorded as evidencing a reaction between the matter tested and anti-HbF anti-serum, the reaction in the same test between that anti-serum and the blood of a new born infant (called cord blood in evidence because 1t was commonly taken from the umbilical cord) was recorded as having been weaker than the reaction with the tested matter. In a unit volume of the fresh blood of Azaria there would be approximately one third the number of gamma chains as in the same unit volume of fresh cord blood. But, although the cord blood used in the test was not aged, the blood in the tested matter would, if it were Azgaria''s blood - and might, if it were the blood of some other person - have been shed more than a year before the test was conducted, and the structure of some of its molecular chains could be expected to have been so altered in the course of denaturation during that period as to deprive the antigens associated with those altered chains of their capacity to react with whatever antibodies there were in the anti-HbF anti-serum.

Further, because estimation of the dilution of the tested matter was by colour comparison and the colour of the tested matter, derived from the haem component of the haemoglobin molecule, would not diminish in proportion to the diminution, by reason of the denaturation process, of reactant antigens, the dilution achieved by colour comparison could be expected to involve a greater dilution of reactant antigens than a dilution of fresh blood, whether by colour comparison or by a quantitative

measure. Accordingly, in the opinion of Professor Boettcher and

Professor Nairn, the comparative strengths of the reactions, as recorded by Mrs. Kuhl, between the tested matter and the anti-serum and between cord blood and the anti-serum, were the reverse of what were to have been expected and suggested unreliability of the test in which the products of those reactions were observed and recorded. The other expert witnesses responded by insisting that the tests in question were qualitative not quantitative, that the comparisons of strengths of reactions were subjective, visual evaluations by Mrs. Kuhl and that the tests were not anvalidated by the anomalous features to which attention was drawn, provided that the anti-serum was accepted as being mono-specific. Mrs. Kuhl offered the further opinion, in explanation of another suggested anomaly in the comparative strengths of reactions between the tested matter and on the one hand anti-HbF anti-serum and on the other hand anti-HbA anti-serum, that it was well-known that under conditions inducing denaturation the foetal haemoglobin molecule was more stable than the adult haemoglobin molecule. Professor Boettcher gave evidence of tests he had carried out which in his opinion suggested that under conditions inducing denaturation by heat neither molecule was more stable than the

other. No other witness gave an opinion on the point.

It will have been observed that the differences of expert opinion so far considered might be resolved by a decision as to

whether the anti-HbF anti-serum was mono-specific. The absence

of reaction between the anti-serum and samples of adult blood

introduced into the tests of matter from the car as "controls" {so called by the expert witnesses) was in one respect less persuasive to a conclusion in favour of mono-specificity than the tests of the anti-serum conducted by Mrs. Kuhl in and after February 1982. The adult blood used in those earlier tests was diluted to one part in about 750 parts diluent. Such a dilution might have left the number of alpha chain antigens so much greater than the number, if there were any, of antibodies in the anti-HbF anti-serum specific to such antigens that the limits might have been exceeded within which reactions evidencing the

presence of such antibodies occur. That was no doubt one of the reasons why Mrs. Kuhl carried out the testinq of adult blood samples from more than 230 persons in and after February 1982 in dilutions ranging as high as one part blood to eight thousand parts diluent. Such an exhaustive sampling of the range within which alpha chain antigen and antibody might be matched in numbers apt to produce observable reaction must exclude, 1t was submitted on behalf of the Crown, the possibility that the products of reaction between matter from the car and the anti-HbF anti-serum used by Mrs. Kuhl were products of reaction with unwanted anti-bodies specific to alpha chain antigens. And, counsel for the Crown 'further submitted, if that possibility had been thus excluded, the circumstance that in other anti-HbF anti-serum from Behring Werke the unwanted anti-bodies had been detected by Professor Boettcher's experiments did not vitiate the conclusion reached concerning

the mono-specificity of the anti-HbF anti~serum which had

established the presence of foetal haemoglobin in the matter

Professor Nairn advanced a reason, against acceptance of Mrs. Kuhl's proofs of mono-specificity, which no other witness discussed. He expressed the opinion that mono-specificity of the anti-HbF anti-serum cannot be regarded as having been established for the purpose of identifying foetal haemoglobin in a sample unless appropriate testing of the anti-serum is undertaken on the occasion when the sample is exposed to the anti-serum, because in his opinion anti-sera can alter during storage under refrigeration in the laboratory. For that reason he concluded that the testing of the anti-HbF anti-serum against adult blood samples in and after February 1982 was, as he put it, "completely irrelevant" to the question whether the anti-serum was mono-specific at the time when matter from the

Evidence was adduced of the practice, observed in the laboratory where Mrs. Kuhl carried out all her tests and experiments, of testing and diluting anti-sera purchased from Behring Werke and other commercial manufacturers before use in the laboratory. It was not suggested that either of the witnesses who gave this evidence - Dr. Baxter and Mrs. Kuhl - had carried out or observed the routine testing of the anti-HbF anti-serum used by Mrs. Kuhl in the tests she carried out on

matter from the car. The evidence was of routine laboratory

practice and justified an inference that persons other than those two witnesses had the duty of carrying out the routine testing. There was evidence of testing and diluting to achieve satisfactorily comparable sensitivity of various anti-sera in use in tests of the kind Mrs. Kuhl carried out, but with that evidence I am not presently concerned. There was also evidence of testing to establish the mono-specificity of anti-sera,

Mrs. Kuhl gave this evidence in re-examination, without

"Now, you were asked a number of questions about rabbits, and anti sera?---Yes.

anti-bodies - being in the anti sera, do you remember that?---Yes.

Well, firstly, as a forensic biologist, dealing with commercially obtained anti sera?---Yes.

Do you repose any trust in the manufacturer?---Not unless the anti sera are tested out thoroughly.

At your laboratory?-~-Yes. Is that a routine practice?---Yes.

Do you ever use anti sera that is not tested?-~-No.

the testing is to determine the specificity of the

• of the anti sera that it 1s reacting against what

1t is being claimed to react with by the manufacturer.

And you have said that the anti foetal haemoglobin sera?--~Yes.

Was specific to foetal haemoglobin?---Well, it has always reacted to known foetal controls, except in that ouchterlony plate which is under such contention. I have screened over 230 adult bloods in the range of dilutions that the technique is operable in, as well as the number of different adult controls that were used during the course of the investigation, and the anti foetal haemoglobin has never reacted against an adult blood. We have a small, but very purified sample of foetal haemoglobin, which has also been tested against the anti foetal haemoglobin, that also reacts in a very specific manner".

very purified sample of foetal haemoglobin", nor what the

precise relevance of the test was to mono-specificity.

"I would like to talk about the anti-~sera which is used in your laboratory?---Yes.

We have heard that you get anti-sera from various commercial laboratories around the world?---Yes.

When you get it, how do you know that it is going to work?---Well, we try the anti-sera against the specific protein or proteins that they are raised against. For example, we -would try the anti-dog against dog blood at a range of dilutions. We would also test - in the majority of instances - how specific the antibodies are by testing it against a range of different species of blood.

Is all your anti~-sera tested?---Yes. Before you use it?---Yes. Is the system such that it will not contain

unwanted antibodies?---In general] there may be antibodies present but they would not show up un

Dr. Baxter's evidence was plainly given in reference to

the routine testing of anti-serum before use in the laboratory.

It is convenient now to set out again some evidence,

already quoted, by Mrs. Kuhl under cross-examination:

"You used, did you not, the same antisera in all your tests?---I had two - two batches of antifoetal haemoglobin which were used in the initial tests. One was - one was continually used for the rest of the examination, because I ran out of the other one.

Subject to that one exception, or one qualification rather, that you just made, you used the same antisera in all your tests?---Yes, as far as I remember.

Look, you swore you did, did you not, at the inquest?---Yes, Mr. Phillips.

The context in which this questioning occurred and the

reference therein to the second inquest strongly suggest that

the expression "all your tests" would have been understood by Mrs. Kuhl as a reference to tests on matter from the appellants' car and from articles which might have been in the car when Azaria disappeared, but as not including reference to tests conducted by her in and after February 1982. It might be inferred from the whole of her evidence that Mrs. Kuhl's

reference to "the initial tests" was intended as a reference to

tests on matter of that kind which Mrs. Kuhl had brought to her laboratory for testing after her first examination of the car on 21 September 1981, as distinct from tests on matter of that kind which had been brought to her laboratory for testing after the second examination of the car on 28 September 1981 or after later examinations of the car. The testing of matter of that kind had been completed before the second inquest, which was concluded in February 1982. There seems to be nothing in the passages I have quoted from Mrs. Kuhl's evidence, or elsewhere in the evidence, which amounts to an assertion that biochemical tests involving the use of anti-HbF anti-serum and carried out by her in or after February 1982 were made with anti-HbF anti-serum of the same batch as provided the anti-HbF anti-serum used in her tests, other than "the initial tests", of matter from the car and articles which might have been in the car. During re-examination of the last expert in immunology to give evidence at the trial, Professor Nairn, the following exchange

took place between counsel for the appellants and the learned

"MR. PHILLIPS: Assume she did the work on the samples from the car September/October 1981, the work on the camera bag January 1982, and then from February '82 onwards she did the 200 tests to which our learned friend has alluded, professor?---I see.

Do you follow that?~--Yes. Are those adequate tests to establish mono-specificity?---I would say that that's -

HIS HONOUR: Was that the evidence? The 200 tests

MR. PHILLIPS: No. I don't think there's any evidence about it one way or the other, sir.

HIS HONOUR: I am just wondering whether you're putting it correctly, Mr. Phillips.

evidence, to say it was the same batch or a different batch, sir. There's just no evidence about it, as I recall".

Crossexamination by counsel for the Crown of Professor Boettcher and Professor Nairn could be understood to have proceeded on the assumption, which neither witness nor counsel for the appellants questioned during the crossexamination, that Mrs. Kuhl's testing of samples of adult blood from more than 230 persons in and after February 1982 had been carried out with anti-HbF anti-serum of the same batch as that from which the anti-HbF anti-serum was drawn for use in testing matter from the car and articles which might have been in the car. And the submissions of counsel for the appellants on the hearing of the appeal did not call the assumption into question. Nor is there anything in the learned trial judge's charge to the jury which shows that the assumption had been challenged. On the other hand I can find nowhere in the material before this Court and the submissions of counsel any clear indication that the assumption was accepted by counsel for the appellants or by any

witness as justified by evidence or by aareement between

A witness whose experience of aged blood stains of diverse environmental history was extensive, Mr. Culliford, gave uncontradicted evidence that the rate of denaturation of blood is unpredictable, but that heat and humidity tend to accelerate the process of denaturation. Neither Mrs. Kuhl nor Dr. Baxter had been involved before September 1981 in testing to identify foetal haemoglobin in a sample which, if it did contain foetal haemoglobin, was more than a year old, and most of the blood

samples tested in their laboratory were aged under 3 months.

Mrs. Kuhl and Dr. Baxter had identified by one or other of the immunological tests evidence of the presence, in the opinion of each of them, of foetal haemoglobin in 20 samples of matter taken either from the interior of the front of the car or from articles which might have been in the car at the time Azaria disappeared or which were available to the appellants if wanted for the purpose of wiping away blood stains at that time. It was submitted by counsel for the Crown that it was highly improbable that so many reactions between the ant1-HbF anti-serum and tested matter should have been observed if those reactions were with a small number of unwanted antibodies specific to alpha chain antigens. The Crown relied also on the evidence of Mrs. Kuhl and Dr. Baxter that two samples of tested matter were demonstrated to contain foetal haemoglobin by a

technique in which nezther immunological reaction nor anti-serum

71. Matter was found between the off side of the front

passenger seat and a hinge of the seat close and parallel to

that vertical surface of the seat. Underneath that seat was found other matter in such a position as to suggest that, if while it was fluid the matter had flowed to that position, it had dripped on to the floor from the place where the matter between the side of the seat and the hinge was found. There was evidence upon which the jury might have been satisfied that both those collections of matter were dried human blood which had flowed or dripped down between the side of the seat and the hinge and some of which had dripped down on to the floor and flowed to the position in which the matter was found. Five samples from those collections of matter were tested by immunological techniques with anti-HbF anti-serum and they are five of the 20 samples in respect of which Mrs. Kuhl and Dr. Baxter expressed the opinion that foetal haemoglobin was

present. There being sufficient matter unused after those tests, Mrs. Kuhl subjected two other samples - one a swab from the vinyl surface of the seat behind the hinge and the other flakes suspended between the vinyl surface of the seat and the hinge - to a test known as gradient gel electrophoresis. The sample is introduced into the upper surface of a polyacrylamide gel which acts as a molecular sieve through which the sample descends under the influence of an electric current. Foetal and adult haemoglobin molecules being of different shape, each kind is trapped in the sieve at a different level, the adult lower

than the foetal. The concentration of trapped molecules results

in a visible band at the level of concentration of each kind. Mrs. Kuhl and Dr. Baxter gave evidence that the two bands they both observed in each of the two tests established the presence of foetal haemoglobin in each of the two samples. Dr. Baxter referred to "the very obvious foetal haemoglobin band" in the test of the sample taken from the matter which had adhered to the hinge. The test plates had been destroyed in accordance with the routine of the laboratory and therefore had not been seen by any other witness, but Dr. Baxter swore that he remembered the appearance of the plate because the foetal band was so obvious. Mr. Culliford gave evidence that the tests were in accordance with "an accepted method of determining the presence of foetal haemoglobin". Professor Nairn was not asked any questions about these tests, but he gave evidence of his concurrence in the conclusion Professor Boettcher had expressed in evidence that the results of the tests reported by Mrs. Kuhl in her evidence did not establish the presence of foetal haemoglobin in any of the tested samples. Professor Boettcher gave evidence that in his opinion the presence of two bands was not in itself indicative of the presence of foetal haemoglobin : it would be so only if in the same test gel a "control" sample Known to include both adult and foetal haemoglobin molecules produces two bands in similar positions to the two bands produced by the unknown sample. He pointed to the circumstance that, whereas a gradient gel electrophoresis test of Azaria's

blood had produced two bands comparison of which suggested a

proportion of about 3:1 between adult and foetal haemoglobin

content, Dr. Baxter had estimated a proportion of about 1:1 in one of the two tests carried out by Mrs. Kuhl. Counsel for the appellants relied also upon the evidence of another eminent forensic biologist, Andrew Charles Scott, that the production of double bands in such a test "is only an indication" of the presence of foetal haemoglobin, of which confirmation is sought

by other tests; and that denaturation of a blood sample may

26. There was evidence of other testing by Mrs. Kuhl of samples of matter from the car or articles associated with the car which in the opinion of Mrs. Kuhl and Dr. Baxter gave results as to blood grouping and age of the samples which were consistent with an hypothesis that the samples contained Azaria's blood. But there was much other expert evidence which made it difficult to base any finding as to the age of the samples on the reported results and the probative value of any finding which the jury might have been disposed to base on the results reported on blood grouping was slight, because there was neo evidence as to the incidence of the particular blood type in

27. In my opinion the jury might, in reliance upon expert evidence of scientific opinion, reasonably have found, on a balance of probability, that matter from the car and articles associated with the car which Mrs. Kuhl had tested contained

foetal haemoglobin. But no such a finding could in my opinion

have been reasonably made beyond reasonable doubt. Those means of evaluating evidence which the jury enjoys by hearing and watching witnesses, and which are denied an appellate tribunal, could not in my opinion have enabled the jury reasonably to have eliminated the doubt, as to whether the matter tested contained foetal haemoglobin, which a careful consideration of the transcript of evidence and the exhibits raises in the mind. It may be conceded, as counsel for the Crown submitted, that idiosyncrasies of manner and voice may undermine confidence in the reliability of a witness. But the evidence of Professor Boettcher and of Professor Nairn claimed the consideration of the jury upon grounds which could not rationally be shaken substantially by those things which the eyes and ears of a jury receive, but which a transcript does not reveal. Each of them was giving his opinion on matters of science within disciplines of which each was a master, and at a level of difficulty and sophistication above that at which a juror, or a judge, might by reasoning from general scientific knowledge subject the opinions to wholly effective critical evaluation. The reasoning by which other expert witnesses criticised the conclusions of Professor Boettcher and Professor Nairn, as well as the reasoning by which the latter two witnesses supported those conclusions and criticised the conclusions of the others, were all matter for the jury's evaluation. But in my opinion no juror could reasonably have failed to acknowledge that, reason as he might,

he was not in a position to assure himself of the correctness of

a conclusion against the opinions of the two professors to the

degree which would eliminate reasonable doubt as to that

28. The distribution of the tested matter within the car was such that, if all or most of the samples said by Mrs. Kuhl and Dr. Baxter to have contained foetal haemoglobin did in fact contain that substance, a conclusion could reasonably have been drawn, beyond reasonable doubt in my opinion, from that evidence and the evidence concerning the depositing of blood in the car, that Azaria had bled profusely in the front of the car at about the time she disappeared. The car had been received into the stock of a dealer from the manufacturer on 17 August 1977 and was registered early in September of that year. Thereafter it had been used by the dealer in and around Bowen in Queensland as a demonstration model until it was delivered to the appellant Mr. Chamberlain on or about 16 December 1977 on sale "as a new demonstration model". Before delivery it had been cleaned inside and out by a car detailer. Mrs. Chamberlain gave evidence that each of her sons and other children not of her family had bled in the car, but all at an age much greater than 6 months. She swore in answer to a question whether Azaria had bled in the car : "No blood that would have got anywhere". She gave evidence that Azaria had vomited in the front of the car and there was medical evidence that vomitus may contain blood shed in consequence of damage to the oesophaqus caused by the vomiting. But the volume and appearance and aistribution of the

matter tested by Mrs. Kuhl were inconsistent with an hypothesis

that foetal blood had been deposited in the front of the car in a mixture with vomit, but had not been remarked by either of the

If on the other hand foetal blood had not been shown to have been present in the tested matter, the evidence as to blood found in the car after the police took possession of it and the evidence as to blood shed in the car while it was in the appellants' possession could not in my opinion justify a finding, beyond reasonable doubt, that any of the blood found was Azaria's blood. Except in relation to the profuse shedding cf blood by one Lenehan, who gave evidence of it and for the rejection of whose evidence no reason was advanced on behalf of any party, the evidence of the shedding of blood came from the appellants. Even if the jury had, for sufficient reason, disbelieved the appellants' evidence on the question, the

evidence as to blood found does not justify an inference that the source of that blood was more probably Azaria than either of the other two children of the appellants. Matter deposited on the underside of a sheet of metal, which formed part of the structure of the car and was positioned below a glove box which faced the front passenger seat, was said by Professor Cameron and another forensic pathologist, Dr. Anthony Neal Jones, to have been deposited in a fine fluid spray at an angle of about 45 degrees to the plane of the unierside of the sheet from a source forward of the sheet. Those opinions were based on the

shapes and the distribution of the separate items of matter on

the metal sheet. Near the matter said to have been deposited in a spray was matter said to have been deposited as droplets and it was contended on behalf of the appellants that those samples of the matter removed from the metal sheet and found by Mrs. Kuhl to contain haemoglobin were not shown to have been taken from spray rather than droplets. However that may be, the strength of the inference, which the two pathologists suggested, that the source of the spray was a small artery in the body of Azaria depends on an assumption that the spray was deposited on the metal sheet after the sheet had been incorporated into the structure of the car, which had been manufactured in 1976. But the position of the sheet in the car precludes any confident belief that the sheet would have been cleaned before the car was

29. Fresh foetal blood of a type consistent with the appellants' parentage of the child who had shed the blood was found on articles which had been in the tent when Azaria disappeared. There was also evidence indicating the presence of further traces of fresh human blood on articles which had been in the tent at that time, but of that blood scientific testing had not revealed the type, nor whether it was foetal blood. The evidence was that careful and competent examination and testing of the tent and of almost every article which had been in the tent when Azaria disappeared had revealed very little blood. Some of the articles were not subjected to scientific testing

until more than a year after the child disappeared and many of

those articles would have been washed in the meantime. But they were articles on which blood stains would probably have been noticed by Mrs. Chamberlain, in whose interest it would have peen to elicit evidence of the presence of blood within the tent after her daughter disappeared. The Crown adduced expert evidence that the removal of Azaria from the tent by a dingo would have been likely to have caused the shedding of far more of the child's blood on to the tent or articles within the tent than had been detected by examination and testing. The child had been left tucked under blankets in a wicker basket, according to Mrs. Chamberlain's evidence, so that only the top of her head protruded beyond the covering blankets. No blood was found on the basket or the bedding and only very little on two of the blankets. The medical evidence was that the superficial tissues of the human head, face and neck are very well supplied with blood vessels. Professor James Malcolm

Cameron was of the opinion that a seizure of the head of Azaria by canine jaws would have been likely to result in severe crushing injury and substantial bleeding. Professor Cameron held the Chair of Forensic Medicine in the Unaversity of London at the London Hospital Medical College. He was eminent and very experienced in forensic medicine and pathology and had been engaged in the study of blood staining of clothing over many years. He had also been concerned as a forensic scientist in the consideration of a number of cases of suspected dog bite.

He was asked to consider the possibility that the mouth of a

dingo seizing the child's head in its jaws miqht occlude the

wounds. He swore that he found that difficult to accept, but that "all things are possible". Another forensic pathologist of great experience, Dr. Vernon Douglas Pleuckhahn, expressed the opinion that the teeth of a dingo seizing the child's head might have occluded the wounds which the teeth caused so that no profuse bleeding followed immediately after the seizure. He denied that immediate profuse bleeding was more probable than an

The jury had the benefit of much evidence about the predatory behaviour of dingos upon which they could not reasonably have failed, in my opinion, to find that a dingo might have seized the head of a child of Azgaria's size in its jaws and carried the child away. But upon the question whether such an abduction might have been effected without the depositing of much more blood in the tent than was found the jury might in my opinion reasonably have formed a confident conclusion, if not a conclusion beyond reasonable doubt. They had evidence, if their own experience had not in any event furnished them with knowledge, of the haemic vascularity of the human head and neck. As part of the fauna of this continent and as a creature akin to a dog, the dingo was within the scope of their observation and experience. Effective critical evaluation of the evidence of expert opinions on the question was within their capacity. No one, it might be supposed, would have seen a dingo or a dog seize in its jaws the head, other than a furred

head, of a live mammal : certainly there was no evidence that

anybody had seen such a_ thing. It would not have been reasonable, in my opinion, to have made a finding beyond reasonable doubt that a dingo could not have seized Azaria and removed her from the tent without a depositing on objects within the tent (other than the dingo and the child) of more of her blood than was found in the tent. But I think that such a finding might reasonably have been made by the jury with a

Professor Cameron gave evidence of his opinion that a wounding of the throat was a necessary, although not necessarily the only cause of the flow of blood on to the upper extremities of Azaria's clothing. The relevance of that opinion to a determination of the cause of the child's death derived from Professor Cameron's further opinion that such a wounding of the throat as might cause bleeding of the kind required to cause the blood staining observed on those extremities could not have been inflicted by canine jaws without tearing of those extremities by the canine teeth and that no tearing of the fabric of the kind the Professor contemplated was to be observed. It is unnecessary to comment on the further opinion, which I will assume to be tenable. In support of his opinion that a throat wound provided the source of most, if not all of the blood which caused the observed staining of the upper extremities of the childa's clothing, Professor Cameron took into consideration the

volume of blood required to cause the staining, the possible

attitude of the child's torso to the horizontal at different

times, the modes of distribution of the blood through the fabric, and his experience of the course blood takes in flowing from a head wound towards the neck and shoulders. Again it 1s unnecessary to criticise this evidence, except to observe that the reasoning of the witness does not exclude, or even cast any doubt on the reasonableness of, the hypothesis that laceration by canine teeth of the child's face - between a line at the mouth above and just under the lower jaw line below - may have provided the sources of the blood which caused the observed staining of the garments. The questioning of Professor Cameron, in chief and under cross-examination, was not always so expressed as to make clear what circumstances he was to take into account in making answer. A careful reading of the whole of his evidence convinces me that to the formation of his expressed opinion, that a throat wound was the principal source of the blood, he brought a consideration of circumstances which were additional to those I have mentioned, and as to the existence and significance of which there was conflicting

30. When Azaria's clothing was found on 24 August 1980 there were tears or cuts in the fabric of the jump suit. The Crown adduced evidence by an expert in textile physics and technology, Professor Malcolm Chaikin, of his opinion that the severance of the fabric had been effected by cutting, probably with scissors and not by the teeth of a dingo. In respect of that latter

opinion his evidence was supported by the opinion of persons

skilled in odontology, but another odontological expert swore

that in his opinion the severance of the fabric could have been

The jury would in my opinion have been justified in finding - as I would myself find - beyond reasonable doubt that cuts had been made in the neck of Azaria's jumpsuit by a human being with a cutting instrument, almost certainly scissors. There was convincing expert evidence to support such a finding, which in my opinion could in any event have been reached by a jury upon their own careful examination of the garment and their own experience of canine behaviour, notwithstanding the evidence of expert opinions tending against that finding. Those opinions were based on odontological science and were directed to the question whether the teeth of a dingo might have been applied by a living dingo to the fabric in such a way as to cause the severance of fabric which I have described as cuts. The witness who expressed the opinions professed neither expertise in the physics or the technology of the fabric or its components, nor any particular experience of the behaviour of a dingo or a dog when eating or attacking prey. Professor Chaikin conceded his ignorance of the behaviour of the dingo in attack on a clothed body and his ignorance of the appearance of fabric

bitten by a dingo. There was very little evidence of observation of the action, or the effect of the action, of canine teeth on fabric. But the jury were in my opinion able to

subject to effective critical evaluation the expert evidence as

to the dentition and the behaviour of the dingo and as to what scientific examination of the fabric of the jumpsuit revealed. After considering the evidence and examining the garment I cannot think reasonable an hypothesis that canine teeth might

Mrs. Chamberlain gave evidence that none of the damage to the neck of the jumpsuit which I have described as cuts nor any of the other severances of the fabric of jumpsuit and singlet which were found when the garments were recovered on 24 August

1980 had been sustained when she last saw the garments on 17

August 1980, shortly before Azaria disappeared. No suggestion has been, or could reasonably be, made that her evidence might have been mistaken. No suggestion has been, or could reasonably be, made that after she last saw the jumpsuit before Azaria disappeared, either of her sons might have made the cuts.

Therefore, if a dingo abducted the child and Mrs. Chamberlain's

evidence was truthful, there is no reasonable explanation of the cuts but that a human being other than a member of the Chamberlain family found the jumpsuit and made the cuts before the jumpsuit was discovered on 24 August 1980. Counsel for the appellants did not deal in their submissions to this Court with the hypothesis that such a person was responsible for the damage to the fabric of the garments. Their submission was that the evidence did not justify a finding that a dingo was not

responsible. Nor is there anything in the learned trial iudge's

charge to the jury to suggest that such an hypothesis was

canvassed before the jury. But in my opinion the whole of the evidence was such as to require consideration of the hypothesis, particularly as the Crown invited the jury to infer from a finding that a human being had caused the damage, and from other evidence said by the Crown to indicate human interference with Azaria's garments after she had disappeared, that it was the appellants or one of them who had interfered with the garments

Before proceeding to a consideration of that hypothesis, however, I state my opinion that, if the jury were persuaded beyond reasonable doubt that there were cuts on the neck of the jumpsuit which had been made by human hands, they might have reasonably based upon that conclusion, upon the evidence of Professor Chaikin and upon their own examination of the garments a further finding, beyond reasonable doubt, that all the severances in the fabric of the child's jumpsuit and singlet were made by a human being with an instrument, and by a finding that it was no more probable that a creature other than that human being had caused the damage to the child's nappy than that the human being had caused that damage. If those findings were made - and they are findings I would make myself - the jury would then bring to a consideration whether they were satisfied beyond reasonable doubt that a dingo aid not abduct the child not only the finding to which I have said in paragraph 29 that the jury might reasonably have made, but also those further

findings which I have just stated. Those findings would leave

84, the jury in the position that nothing about the clothing as found could be said to suggest abduction by a dingo. On the other hand they are findings which tend to overcome any difficulty which the jury might have had in accepting the possibility that a dingo might have removed the child's body from her jumpsuit and singlet without damaging those garments more extensively than the garments were in fact damaged, for the unknown person who did cause the damage to those garments might

without difficulty have removed them from the child's body.

The hypothesis that a person unknown found Azaria's clothing after abduction of the child by a dingo from the tent and caused the damage to the clothing may be thought not utterly inconsistent with the evidence of physical fact and event. The great difficulty about the hypothesis is to imagine a credible psychological explanation of the unknown person's actions. Why should he have damaged the clothing at all? If it be thought that he may have desired to spare the appellants the pain either of uncertainty as to the child's fate or of seeing the child's disfigured corpse, and therefore placed or left the corpse where it was unlikely to be found and placed the clothes near the lairs of dingoes in order to strengthen belief that the child was killed by a dingo, it is difficult to believe that one so tender of the appellants' feelings should have done nothing to rescue them from the long agony of trial and conviction for a murder the unknown person would surely have had good reason to

believe was not committed. If the unknown person was concerned

only to induce a conviction that a dingo had been responsible for the child's death, why would he not simply cali the police to where he had found the clothes, unless the body of the child had been removed from the clothes before he found them and he feared that what he had found would not induce in others a conviction that a dingo was responsible. There was evidence to suggest that a dingo might have extricated the child's body from her clothes without causing more damage than was to be observed when the clothes were found. But to add to the hypothesis of the unknown cutter of the clothes the hypothesis of such an extrication seems to go far from reasonable possibility. Closer perhaps to the reasonably possible is the hypothesis of an

unknown person of a disposition either irrational or mischievous

Satisfaction beyond reasonable doubt that a dingo did not take Azaria from the tent cannot reasonably be reached, in my opinion, unless there be satisfaction to that standard that an unknown person did not cause the damage to the child's garments. I think that the jury might reasonably have been persuaded beyond reasonable doubt to reject - as I would myself reject - an hypothesis of an unknown person, who caused that damage but

thereafter gave no indication that he had done so, as not within

31. It is convenient here to mention another hypothesis of

human intervention. Mrs. Chamberlain's strong expression of her

pelief that a dingo had taken the child, from the moment when she saw, as she swore, a dingo at the entrance to the tent, may have had an influence against consideration of the hypothesis that an unknown human being took the child from the tent after wounding her in the tent. Mrs. Chamberlain's evidence at the trial was that she could not recall having seen the child with the dingo and the evidence that dingos were in the vicinity of the tent shortly before the child's disappearance was discovered is not inconsistent with the presence also of an unseen human being. No such an hypothesis was canvassed during the hearing of the appeal and there is nothing in the learned trial judge's charge to the jury to suggest that any such an hypothesis was canvassed at the trial. Although a predatory animal might bring itself within 20 metres of a group of people standing near a source of artificial light, it seems in the highest degree improbable that even so abnormal a human being as this hypothesis contemplates would enter the tent in view of those people, inflict a wound on the child within the tent and then leave the tent, as he must have done, through the tent entrance

which faced that group of people. In all those circumstances I do not think the hypothesis should be entertained as reasonably

32. It may I think reasonably be concluded that, if the blood identified by Mrs. Kuhl and Dr. Baxter as foetal blood was foetal blood, Azaria was mortally wounded 1n the car by Mrs.

Chamberlain or one of the child's brothers shortly before she

disappeared. And it may be reasonably concluded, I think, that 1£ a dingo did not take her from the tent, she was mortally wounded by Mrs. Chamberlain or one of her brothers shortly before she disappeared. In my opinion the jury could not reasonably have been satisfied beyond reasonable doubt, before it reached its verdict, that any of the blood in the car was foetal blood. (I restrict that opinion by reference to the period before a verdict was reached not only in recoqnition of the circumstance that a verdict of guilty would almost certainly involve as a consequence satisfaction beyond reasonable doubt concerning the blood, but also in recognition of the circumstance that I have limited, perhaps arbitrarily, the evidence I have treated as relevant to the determination of each of the issues, whether there was foetal blood in the car and whether a dingo might have abducted the child, to a small part of the whole of the evidence by reference to which a jury might reasonably have determined that issue. Much of the remainder of the evidence has been discussed in the reasons for judgment of Bowen C.J. and Forster J.. It is not possible to discuss the whole of the evidence. I say only that a consideration of the whole of the evidence leaves undisturbed in my mind the opinions I have expressed about each of those issues; and that the opinions I have not discussed whiich were given in evidence and which were based on observation of associations between Azaria's clothing and mineral, vegetable and haemic matter were

consistent with, but not strongly persuasive to, a conclusion of

guilt.) In my opinion the jury might reasonably have considered

what chance there was that they were in error in both the conclusions to which they had come on those two issues, if upon each issue they were strongly persuaded, but not persuaded beyond reasonable doubt, to the conclusion which points in turn to a killing of Azaria by Mrs. Chamberlain or one of her sons. If upon each issue the jury thought the possibility of error in their conclusion to be very slight, they might in my opinion reasonably have thought the possibility of error in both conclusions to be much less. (I do not suggest that evaluation of the possibility of error in both conclusions could be made by a mathematical application of the theory of probability. But the logic underlying the mathematics is available to the jury and if attention is confined, in estimating the chance of error in the conclusion upon an issue, to the evidence I have discussed in relation to that issue, the two conclusions may reasonably be regarded as substantially independent. See R.

Eggleston : Evidence Proof and Probability (1978) Ch.2.) Either conclusion leads, by steps as to which in my opinion there could be no reasonable doubt, to persuasion that Azaria was killed by Mrs. Chamberlain or one of her sons. A determination by the jury that the chance of error in both their conclusions on the two issues was so small as to justify their satisfaction beyond reasonable doubt of the killing of the child by one of those three persons could not, as it seems to me, be characterised by this Court either as unreasonable or as involving infraction of any rule or principle of law. If the jury had come very close

to satisfaction beyond reasonable doubt on each of those two

issues, their refusal to admit as subject to a reasonable doubt the conviction in their minds that they were not in error on both issues would have justified their verdicts, I am inclined to think. It is, however, unnecessary that I form any conclusion as to that, or as to the aspects of the proof of

guilt which are canvassed in R. v. Van Beelen (1973) 4 S.A.S.R.

353; R. v. Beble [19791] Qd. R. 278; Thomas v. The Queen [1972]

N.Z.L.R. 34; R. v. Power (Full Court of the Supreme Court of

Victoria: unreported: judgment 8 November, 1976); and R. v.

Dickson (Full Court of the Supreme Court of Victoria;

unreported; judgment 26 June 1981), because I think that the

jury might reasonably have founded their verdicts upon the issue as to whether it was established that a dingo had not taken the

33. Of course no final determination of that issue could precede a consideration of the whole of the evidence, so much of which I have omitted to discuss. In particular, no final determination of the issue against the appellants could precede a consideration of their own sworn testimony and of the testimony of Sally Coral Lowe. No determination of the issue against 'the appellants is reasonable unless Mrs. Lowe's evidence, of hearing Azaria cry out immediately before the discovery of the child's disappearance, can be rejected. I do not think that Mrs. Lowe's evidence could reasonably have been found to be deliberately untruthful, but a conclusion that she

was mistaken could in my opinion have been reasonably reached.

Not having seen or heard those three witnesses, I cannot say that the jury's judgment of the appellants' veracity or of Mrs. Lowe's reliability as to the noise she swore she heard was unreasonable. A final determination of the issue against the appellants could not have preceded a careful consideration of the psychological improbability of the appellants' conduct which verdicts of guilty necessarily impute to them. But again I cannot characterise the jury's evaluation of those circumstances as unreasonable when the jury had the appellants, whom I have

not seen, under observation in the court for weeks and in the

34. I have expressed my conclusion that a finding, either that there was foetal blood distributed in the car substantially in accordance with the evidence of Mrs. Kuhl and Dr. Baxter or that a dingo did not take Azgaria, would justify a conclusion that the child was mortally wounded by Mrs. Chamberlain or by one of the child's brothers. The elimination of an hypothesis that the wound was inflicted by one of the brothers is, for me, achieved by the conduct of the trial and the conduct of the appeal by counsel for the appellants. In the course of opening the Crown case at trial Mr. Barker Q.C. said: "On the evidence I will take you to in detail, it is not possible that either of the two boys, for example, could have contributed in any way to the baby's death. On the Crown case the alternatives are that either a dingo took the child or it was homicide, and if 1t was

homicide the murderer 1s the child's mother." Counsel for the

appellants accepted the restriction thus proposed in their conduct of the trial and there is nothing in the learned trial judge's charge to the jury to suggest that the involvement of either boy in Azaria's death was at any time canvassed before the jury. During the hearing of the appeal counsel for the appellants abstained from any discussion of any hypothesis involving any role of either boy in the girl's death, notwithstanding several interrogative observations by me on the subject. Both at trial and in this Court the appellants were represented by experienced and able counsel. In those circumstances it would be an inadmissible violation of the adversary principle underlying the trial of issues of fact in the criminal courts for this Court to take such an hypothesis into consideration in determining this appeal. As was pointed out by counsel for the Crown on the hearing of the appeal, there may have been circumstances, inconsistent with any such an hypothesis, which were known to the appellants and to counsel for the parties, but which were not disclosed in evidence. If that were so, my inability to find in the evidence any reason to exclude such an hypothesis would be of no significance. Counsel for the appellants did not say that it was not so. The reasoning in Pemble v. The Queen (1971) 124 cC.L.R. 167, concerning the consequences of a trial judge's failure to direct the jury's attention to circumstances which the jury might reasonably have considered relevant to their finding of a

verdict according to law, notwithstanding counsel's disclaimer

of reliance on those circumstances, ought not in my opinion to

be regarded as applicable in the face of a refusal by counsel for the appellants to contend on the hearing of the appeal that such a failure had occurred. In the circumstances of this case there is to be found what in my opinion is a further, particular impediment to the application of the principles stated in Pemble's Case: if the true facts of Azaria's death were in accordance with such an hypothesis, those facts are known to Mrs. Chamberlain; and she and the other appellant are husband and wife; and the two appellants are represented on the appeal,

as they were at trial, by the same firm of solicitors.

If satisfied that Mrs. Chamberlain had killed Azaria, the jury could not in my opinion have failed of satisfaction, beyond reasonable doubt, that Mr. Chamberlain had learnt of the killing that night and had assisted his wife to conceal what she had done in order to save her from prosecution. Grounds 5 and 6

cannot be upheld in relation to either verdict. Nor can ground

2, which asserted error in the learned trial judge's refusal to

35. Further evidence not adduced at the trial was tendered to

this Court in support of grounds of the appeals numbered 20 and

All the further evidence except the evidence of a witness named Roff (with which ground 20 is concerned) was directed to the issue whether the presence of foetal blood in the car and on articles associated with the car had been established by the scientific testing of Mrs. Kuhl, an issue discussed in paragraphs

I shall assume, but without deciding, that the principles in accordance with which evidence not adduced at trial may be held to justify the setting aside of a verdict of guilty by this Court are those propounded by the High Court in Ratten's Case, supra. It was not suggested that principles more favourable to the

36. In my opinion most of the further evidence relevant to the issue concerning the blood was shown to be "fresh evidence", within the meaning ascribed to that expression in Ratten's Case. Although the further evidence is largely of opinion on particular questions as to which there was conflicting evidence at the trial, failure of the appellants' legal advisers to foresee before trial either that some of those questions would arise, or that others of

them would assume such importance as it may now be thought that

they did, ought not in my opinion to be regarded as evidencing a

lack of reasonable diligence, having regard to the "great

latitude" to be allowed appellants : see Ratten's Case (1974) 131

37. Some of the provisions of Order 52 Rule 36 of this

"(1) This rule applies to any application to the Court to receive evidence in a proceeding on an appeal additional to evidence in the court

(2) This rule applies unless the Court otherwise directs.

(3) The application shall be made by motion on the hearing of the appeal without filing or serving notice of the motion.

(4) The grounds of the application shall be stated in an affidavit.

grounds of the application, and the evidence which the applicant wants the Court to

In compliance with those provisions affidavits deposing to the further evidence were sworn by the persons who would have given the evidence viva voce before this Court or on any re-trial. Filed with those affidavits were affidavits by the appellants' solicitor deposing to circumstances alleged to establish that the evidence was "fresh". The motion to which Rule 36 (3) refers was argued on the hearing of the appeal, but before the conclusion of

that hearing. When argument on the motion concluded the learned

Chief Judge made the following statement to counsel for the

"We have heard argument on this application and we have decided to proceed to hear the evidence but to defer our decision on the question of leave until we have heard the whole of the appeal. There are

various reasons we see for adopting this course in this particular case. We believe we will be in a better position to give a decision after we have

another ground of appeal, that the verdict is unsafe and unsatisfactory and there is here a

degree of overlap. Finally, I should perhaps mention that the court at this stage is divided in opinion on the fate of the application for leave if we were to decide it at this stage.

In the circumstances we will defer a final decision

evidence and to hear the rest of the argument. Perhaps we should dispose first of the question whether there is to be cross-examination or

anything of that kind. What course is to be taken about it?."

Mr. Barker Q.C. then said: "No, we do not seek that." The learned Chief Judge then said : "Well, that evidence stands and is complete. We can go on with the rest of the appeal." No further application or suggestion concerning the further evidence was made on behalf of any party to the appeal, and the members of

the Court did not make any further suggestion that the witnesses

be orally examined before this Court on the hearing of the appeal. In those circumstances this Court must make its evaluation of the

credibility and the cogency of the further evidence, as the

principies in Ratten's Case require that it do, upon the terms of

the affidavits. (Compare Ratten's Case (1974) 131 C.L.R.- 510 at

518; Lawless v. The Queen (1979) 142 C.L.R. 659 at 664-666,

The further evidence concerning the matter tested by Mrs.

"T, BARRY BOETTCHER, Professor and Head of the Department of Biological Sciences of the University of Newcastle MAKE OATH AND SAY:-

experience are set out at page 2227 to 2229 of the Appellants trial transcript.

I was called as a Defente Witness at the Appellants Trial and was present in Court when Mrs. Kuhl, Dr. Baxter and Mr. Culliford

I examined photograph marked 23 and 35 of Exhibit 1092 produced by Mrs. Kuhl and observed that the anti-foetal haemoglobin serum used in the test photographed, produced double bands against some of the tested samples. I had observed similar double bands in the tests I conducted using the anti-foetal haemoglobin serum supplied by Behringwerke which led me to conduct further tests in which I established that the two bands were caused because the anti-~foetal haemoglobin serum reacted against foetal haemoglobin and adult haemoglobin.

In the test plate produced by Mrs. Kuhl under Exhibit 103E the photograph of which being No. 9 of Exhibit 102 I believe it is confirmed that the anti-foetal haemoglobin serum used by Mrs. Kuhl reacts against adult blood because it is my opinion that a precipitin band is clearly visible between the well containing anti-foetal haemoglobin serum and adult blood.

I was cross examined in respect of this opinion at page 2383 to 2390 of the trial

transcript and the contradicting opinions of Mrs. Kuhi, Dr. Baxter and Mr. Culliford were

At page 1681 to 1682 of the trial transcript Mrs. Kuhl gave evidence that what I believed to be a precipitin band and evidence that the anti-foetal haemoglobin serum reacted against adult blood was an artifact caused by a collapsed well and further that it was in the wrong position to be a precipitin band.

At page 1776 to 1777 of the trial transcript Dr. Baxter gave evidence that what I believed to be a precipitin band and evidence of a reaction between anti-foetal haemoglobin serum and adult blood was an artifact due to the drying out procedure and that it was in the wrong position to be a precipitin band.

At page 1870 to 1871 of the trial transcript Mr. Culliford gave evidence that what I believed to be a precipitin band and evidence of a 'reaction between the anti-foetal haemoglobin serum and adult blood was an artifact and was in the wrong position to be a precipitin band.

Following the Trial I have carried out further testing with the anti-foetal haemoglobin serum suppizred by Behringwerke and have produced a specific precipitin band between the anti-foetal haemoglobin serum and the adult blood which was close to and intercepted the well containing anti-foetal haemoglobin and was offset from the line adjoining the mid points of the two wells. Consequently, this result establishes that under experimental conditions similar to those produced by Mrs. Kuhl in producing test plate Exhibit 103E a specific precipitin band formed which is analogous to that produced in est plate Exhibit 103E without any damage eccurring to the well."

"T, ROBIN WAYNE CARRELL, Professor of Clinical Biochemistry, Christchurch Clinical School, University of Otago, New Zealand MAKE OATH AND SAY:-

M.B. Ch. B, University of New Zealand 1959, B. Se. Hons (1) University of Canterbury

1964, M.A. Ph. D. University of Cambridge 1968, F.R.A.C.P., MRC. Path (London) and F.R.S.N.Z.

I was the Resident Medical Officer and Consultant in Chemical Pathology and am presently the Professor of Clinical Biochemistry, Christchurch Hospital and Clinical School. Between 1965-68 I was the Senior Registrar in Chemical Pathology and member of the Abnormal Haemoglobin research unit, University of Cambridge, Department of Biochemistry and between 1976-1978 I was a University Lecturer and Consultant Medical Officer in Clinical Biochemistry University of Cambridge.

I am a member of the Editorial Board of the journal, Hemoglobin, a member of the Expert Panel on Haemoglobins of the International Society of Haematology and am currently director of a research programme on Molecular Pathology for the Medical Research Council of New Zealand.

I have published some one hundred papers on haemoglobin stability and abnormalities of haemoglobin and plasma proteins and I am the author of chapters on haemoglobin and its abnormalities in various texts.

I have read the evidence of Mrs. Kuhl and I note at pi564 she said

es. it is a very well known fact that foetal haemoglobin is a far more stable molecule than is adult haemoglobin..."

I have been researching the stability of haemoglobin since 1965 and have established that adult haemoglobin is more stable than foetal haemoglobin when subjected to heat denaturation.

It is my belief that if the samples tested by Mrs. Kuhl contained foetal haemoglobin it would have been more significantly denatured than any adult haemoglobin present.

In giving evidence concerning the dilution range of the tested samples Mrs. Kuhl at p1517 said

error than 10 percent. I can't deny the possibility that it could've been greater, but it was always a very strict attempt to make the extract within the acceptable range of the control."

I believe it is unreal to claim this accuracy in diluting such denatured samples. As Director of the Medical Research Council Molecular Pathology research programme I receive haemoglobin samples, many of which are denatured, from around the world for the detection and diagnosis of their abnormalities.

I supervise technicians experienced in diluting these samples and not infrequently

when their dilutions prepared in the same way as by Mrs. Kuhl, have been tested by subsequent weighing of the globin, errors of

A consequence of diluting the sample to greater than 1:1000 would be to increase the likelihood of reaction against a secondary specificity of the anti-serum.

I have seen Exhibit 102 photograph marked 23 & 35 and it is my opinion that this photograph evidences that the anti-foetal haemoglobin serum used in the test photographed produced double bands against some of the tested samples which demonstrates that the anti-foetal haemoglobin serum had a secondary specificity. I do not accept Mrs. Kuhl's explanation for this double band at pl537 or Dr. Baxter's explanation at p1l774.

It is my opinion that if the sample taken and tested by Mrs. Kuhl, from the scissors (Exhibit 15), was blood of Azaria Chamberlain, 8 reactions should have been observed; as only 3 reactions were observed and because of Mrs. Kuhli's unsatisfactory

explanation of the prozone reaction the results of this test are inconclusive and should not have been reported on.

It is my opinion that Mrs. Kuhl's testing and conclusions are unsatisfactory for the above

suitable for relatively fresh samples but was not rigorous enough to give

unequivocal results on the severely denatured samples available in this case.

(ii) insufficient testing was carried out on the anti-foetal haemoglobin serum used, to determine that 1t would react only with foetal haemoglobin.

(iii) undue reliance was placed on the immunological testing which was not satisfactorily corroborated.

9. It is my opinion that for the reasons stated above the presence of foetal haemoglobin was not demonstrated beyond resonable doubt in any of the tested samples."

The test plate to which reference is made by Professor Boettcher in paragraph 4 of his affidavit and the test plate to which reference is made in paragraph 3 of that affidavit and in paragraph 6 of the affidavit of Professor Carrell are discussed in paragraph 23 hereof. The other questions to which reference is made in Professor Carrell's affidavit, except the question to which paragraph 7 of that affidavit refers, are discussed in

The further evidence relevant to the issue whether there was foetal blood in the car and on other articles near at hand when Azgaria disappeared consists of the results of scientific tests and experiments carried out or observed by the witnesses who

would give the further evidence and their scientific opinions on

several of the disputed questions to which I have referred in my

discussion of that issue. There appears no reason to doubt the

honesty or the scientific expertise of those witnesses. As to the "cogency, weight or power of persuasion" which the evidence might be likely to have in the estimation of a reasonable jury, much would probably turn on the jury's evaluation of the detailed exposition which in oral evidence the witnesses could be expected to give of the brief narratives and succinctly expressed opinions to be found in their affidavits. Doing the best I can with those affidavits, I think the further evidence likely to be accepted by a jury in the sense that the evidence would be likely, taken with the evidence which was given at the trial, to induce a reasonable

doubt as to whether there had been found foetal blood in any of