ALICE LYNNE CHAMBERLAIN and MICHAEL LEIGH CHAMBERLAIN v THE QUEEN

Federal Court of Australia|1983-05-02|Before: Jenkinson JJ, Jenkinson J, Forster J

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.

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

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.

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.

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.

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

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