Chamberlain v The Queen [1984] HCA 7 | Case summary

Chamberlain v The Queen [1984] HCA 7 | Case summary | Zoe

[32]

The reasons given by the learned judges who constituted the Full Court in Duff v. The Queen for reaching their conclusion that the powers of the Federal Court in criminal appeals were limited in the way that we have mentioned appear at pp. 670-675 of the report and may be summarized as follows. The powers of a Court of Criminal Appeal to set aside a jury verdict depend on the statute creating the appellate jurisdiction. No grounds upon which the criminal appellate jurisdiction of the Federal Court may be exercised are specified in the Federal Court of Australia Act. It is clear that the appellate powers of the Federal Court are not limited to the hearing and determination of an appeal in the strict sense, and the grounds upon which it may allow an appeal therefore cannot be restricted to those which govern the determination of a strict appeal. The grounds upon which, at common law, new trials may be granted after judgments entered on jury verdicts govern the determination of an application for a new trial under s. 28(1)(f), and the words "on any ground upon which it is appropriate to grant a new trial" which appear in that paragraph (and which do duty both for criminal and civil appeals) refer to the grounds on which the verdict may be set aside as well as to the considerations to be taken into account in deciding whether a new trial should be ordered or whether the conviction should simply be quashed. Since it would be anomalous if the grounds for setting aside a verdict and judgment varied according to the relief which was sought or allowed, "the criteria for setting aside a jury verdict 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)" [3] . The grounds of appeal under the common statutory form (i.e. the common form of the statutes governing appeals in the Australian States, which were based on s. 4(1) of the Criminal Appeal Act 1907 U.K.) are not identical with "the new trial grounds of appeal". The conclusion of the Court was expressed as follows [4] :

[35]

It is said that the conviction may be upheld, because a new trial will not be granted in a civil case where evidence has been improperly admitted, if the Court sees that a contrary verdict would have been so demonstrably wrong that a new trial would have been granted. I am of the opinion that this rule, which is in the nature of a proviso to the general rule, that the Court will grant a new trial in a civil case where evidence has been improperly admitted, cannot be applied on the criminal side of the Court, where no power of granting new trials exists. In Reg. v. Berger [9] , where a defendant was found guilty on an indictment preferred in the Queen's Bench Division for obstructing a highway, the question whether the court had jurisdiction to entertain an application for a new trial on the grounds of misdirection, misreception of evidence and verdict against the evidence, was apparently still thought open to argument, but it was held that the court could grant a new trial after a conviction for misdemeanour on those grounds. The position at the beginning of the twentieth century was described by Professor Friedland as follows (Law Quarterly Review, vol. 84, p. 202): Before the Criminal Appeal Act 1907 abolished the practice, a new trial could be obtained after a conviction for a misdemeanour if the proceeding has been instituted or removed by certiorari into a Court of Queen's Bench. Professor Friedland went on to give an account of the procedural reasons which prevented the concept of new trials from developing as fully in the criminal law as in civil actions, and to explain that the procedure could have had no application for most criminal cases (see at p. 205). It would seem to us most unlikely that in 1976 the Parliament intended to confer on the Federal Court an appellate power whose extent was to be determined by reference to the rule of the common law which allowed new trials to be had in certain criminal cases - a rule which was limited in scope and rarely applied and which had been obsolete since the Courts of Criminal Appeal had been established decades before. It would seem equally unlikely that it was the intention of the Parliament that the common law rules relating to the grant of new trials in civil actions should govern criminal appeals in the new Federal Court. The true position, in our opinion, is that when the Parliament departed from the usual legislative model, and failed to state the grounds or principles on which the Federal Court is to determine criminal appeals, it conferred on that court a wide discretion to ensure that justice is done in criminal cases. The grant of a general appeal by s. 24(1)(b) of the Federal Court of Australia Act was intended to enable the Full Court of the Federal Court to "entertain any matter, however arising, which shows that the decision of the Court appealed from is erroneous": cf. Ah Yick v. Lehmert [10] . Since it cannot be supposed that the Parliament intended to make available to the citizens of the Territories an inferior sort of justice, or to require that the Federal Court should affirm a criminal conviction notwithstanding that it had reached the conclusion that a miscarriage of justice had occurred, it must be concluded that the power of the Federal Court, unfettered in terms as it is, was intended to extend at least as widely as those of the State Courts of Criminal Appeal, and thus to enable the Federal Court to set aside a verdict whenever it is of opinion that there has been a miscarriage of justice. 1. [1867] L. R. 1 P.C. 520. 2. (1890) 11 N.S.W.R.(L.) 218, at pp. 231-232. 3. [1894] 1 Q.B. 823. 4. (1905) 2 C.L.R. 593, at p. 601.

[36]

We cannot agree, although it probably does not matter, that the grounds for setting aside the verdict of a jury are to be found in par. (f) of s. 28(1). The power to set aside jury verdicts is given by par. (d), in the case of civil actions, and par. (e), in the case of trials on indictment. In both cases the power is conferred without restriction, and is not limited to any particular grounds. However, if, as their Honours thought in Duff v. The Queen [11] , the words "on any ground upon which it is appropriate to grant a new trial" in par. (f) state the criteria for setting aside a jury's verdict, they are no less wide than the words of s. 47 of the Northern Territory Supreme Court Act and s. 52 of the Australian Capital Territory Supreme Court Act, and could not have been intended to confer on the Federal Court powers narrower than those which the High Court formerly possessed by virtue of those sections. Indeed the provisions of s. 24(4), under which existing rights to appeal, or to seek leave or special leave to appeal, to the High Court, were converted into corresponding rights to appeal, or to seek leave or special leave to appeal, to the Federal Court, are inconsistent with the notion that in the conversion the right to appeal, or to seek leave or special leave to appeal, was somehow reduced in efficacy. In Duff v. The Queen the court said [12] , that the judgment of this Court in Stokes v. The Queen [13] implicitly recognized that the common law rules as to the granting of new trials were appropriate on an appeal against a conviction on indictment before the Supreme Court of the Australian Capital Territory. It was said in the latter case [14] that "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". No doubt that rule is analogous to the rule of the common law which governs the grant of new trials from jury verdicts in civil cases and which was discussed in the passage in Balenzuela v. De Gail [15] , mentioned by the Court in Duff v. The Queen [16] . However the same principle is applied by the State courts in deciding whether there has been a substantial miscarriage of justice within the proviso to the common form statutory provisions, and we do not think that this Court, in stating the principle applicable to criminal appeals, was intending to import the common law rules as to the grant of new trials in civil cases. It is more probable that the Court in Stokes v. The Queen simply regarded the position of the High Court, when acting as a Court of Criminal Appeal from the Territories, as being the same as that of a Court of Criminal Appeal in a State.

[46]

However we are indeed charged to allow an appeal against conviction if we think that the verdict of the jury should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory. That means that in cases of this kind the court must in the end ask itself a subjective question, whether we are content to let the matter stand as it is, or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done. This is a reaction which may not be based strictly on the evidence as such; it is a reaction which can be produced by the general feel of the case as the court experiences it. That passage was approved by the House of Lords in Stafford v. Director of Public Prosecutions [29] . However in Hayes v. The Queen [30] , Barwick C.J. said that he did not take the view that the function of a court under the provisions in the common form in force in Australia was the same as that which the Court of Appeal in Reg. v. Cooper (Sean) had decided was to be performed under the amended statute. In Ratten v. The Queen [31] , he said: This decision [Hayes v. The Queen] may not have disclosed as great a discretion in a court of criminal appeal in Australia, as the decision of the House of Lords in Stafford v. Director of Public Prosecutions 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. It is unnecessary to consider whether the jurisdiction exercised by Courts of Criminal Appeal in Australia is precisely the same as that exercised by the Court of Appeal in criminal cases in England under the amended statute. It seems to us that the proper test to be applied in Australia is, as Dawson J. said, to ask whether the jury, acting reasonably, must have entertained a sufficient doubt to have entitled the accused to an acquittal, i.e. must have entertained a reasonable doubt as to the guilt of the accused. To say that the Court of Criminal Appeal thinks that it was unsafe or dangerous to convict, is another way of saying that the Court of Criminal Appeal thinks that a reasonable jury should have entertained such a doubt. The function which the Court of Appeal performs in making an independent assessment of the evidence is performed for the purpose of deciding that question. The responsibility of deciding upon the verdict, whether of conviction or acquittal, lies with the jury and we can see no justification, in the absence of express statutory provisions leading to a different result, for an appellate tribunal to usurp the function of the jury and disturb a verdict of conviction simply because it disagrees with the jury's conclusion. We do agree that in many cases the distinction will be of no practical consequence; it will be merely a matter of words. That will not generally be the case where questions of credibility are decisive. However, whether it matters from a practical point of view or not in a particular case, it is not unimportant to observe the distinction - the trial is by jury, and (absent other sources of error) the jury's verdict should not be interfered with unless the Court of Criminal Appeal concludes that a reasonable jury ought to have had a reasonable doubt. 1. (1974) 131 C.L.R., at p. 516. 2. [1969] 1 Q.B. 267, at p. 271. 3. [1974] A.C. 878, at p. 892. 4. (1973) 47 A.L.J.R., at p. 605. 5. (1974) 131 C.L.R., at pp. 515-516.

[64]

It now becomes necessary to refer to the evidence to which these principles must be applied in the present case. At the time of the alleged crime Mr. and Mrs. Chamberlain were aged thirty-eight and thirty-four respectively. They were persons of good character; Mr. Chamberlain was an ordained pastor of the Seventh Day Adventist Church and (as is relevant to mention) both of them appear to have held strongly to their faith. Mrs. Chamberlain appears from the evidence to have been a devoted and happy mother, and to have been in good health; her obstetrician observed no signs of post-natal depression. On 16 August 1980 they arrived at Ayers Rock, in the course of a holiday journey by motor car to Central Australia. With them were their two sons - Aiden, aged six years and ten months, and Reagan, aged four years and four months - and their daughter, Azaria, a normal, healthy baby two months old. The Chamberlains pitched their tent in a camping area where a number of other persons, hitherto strangers to them, were also camped. The Chamberlains' tent was about 20 or 30 metres to the east of a barbecue area which provided cooking facilities for the campers. The entrance to the tent faced the barbecue area. The Chamberlains' Torana car was parked on the southern side of the tent, close to it, and also facing towards the barbecue area. At about eight o'clock on the evening of 17 August Mr. and Mrs. Chamberlain, Aiden and Azaria were at the barbecue for the purpose of having their evening meal. Mrs. Chamberlain was nursing Azaria and seemed happy and cheerful. Reagan was in the tent, in bed and apparently asleep. Two other campers, Mr. and Mrs. Lowe, were also at the barbecue area, and both saw Azaria; at the trial it was common ground that the baby was then alive. Mrs. Chamberlain, carrying Azaria and followed by Aiden, left the barbecue area and walked in the direction of the tent, intending to put both children to bed. Her evidence as to what then occurred was as follows. She placed the baby, who was asleep, in a bassinet in the tent and tucked her under the blankets. Aiden said that he was still hungry, so she went to the car and got a tin of baked beans, went back to the tent and then, with Aiden, returned to the barbecue area. There is no doubt that she did return to the barbecue area, accompanied by Aiden and carrying the tin of beans and a tin opener, about five or ten minutes after she had left. She seemed normal and quite composed. No one saw any blood on her clothes or her person.

[72]

Well she [Mrs. Chamberlain] chased in a direction where she was pointing where she said a dog had gone, and then she veered back towards the tent and checked the tent to find out whether the child was still in the tent or not, but by this time of course the outburst had raised a hue and cry and Mike and I raced from the barbecue site across to the tent and asked which direction the dog had gone, and we proceeded to search immediately. The initial search was to the east of the tent, in an area of sand dunes. To make an effective search it was of course necessary to have light. Mrs. West said that Mr. Chamberlain, who seemed very distressed, came running up, patting his pockets and saying that he had lost the keys to the car - she thought that he wanted a torch which was in the car, but in his evidence he said that he needed the keys to switch on the ignition to enable him to use the spotlight. The keys were found later in the evening; Mrs. Chamberlain said that she had put them under a pillow in the tent, because she had no pockets, and that she did not remember her husband asking her for the keys. Someone gave Mr. Chamberlain a torch to enable him to commence the search. Another of the campers, Mr. Haby, said that Mrs. Chamberlain came to his "Kombi" van and said: "A dingo or a dog has taken my baby - have you got a torch? - I need a torch." He asked her how she knew and she replied that she had seen a dog or a dingo coming out of the tent when she was walking to the tent and that she looked in the tent and found that the baby was missing. Mr. Haby said: "Did you see the dingo-dog carry out the baby?", to which Mrs. Chamberlain replied: "No, it wasn't carrying anything." She told him that she thought the dog had gone in the direction of the sand dune, which Mr. Haby then proceeded to search. It appears that Mr. Haby, like some other witnesses, sometimes used "dog" and "dingo" as synonyms. Soon a large number of persons had joined in the search, including some police and the ranger in charge of the area (Mr. Roff). The baby was not found - her body has never been found. However, during the search a number of tracks apparently made by dingoes or dogs were observed. Mr. Haby found some tracks on the sand dunes to the east of the camp. One track was bigger than the others and easy to follow; it led to a place on the top of the ridge where, in his opinion, the dog or dingo had put something down; he said that it "had left an imprint in the sand which to me looked like a knitted jumper or woven fabric and then it obviously picked it up because it dragged a bit of sand away from the front and kept moving ". The impression which he saw in the sand was roughly oval in shape and about 7 inches by 5 or 6 inches in size. Near the imprint on the sand was a drop, which he said, could have been blood or saliva; it was dark in colour but not red. The place where these things were seen was about 100 yards from the tent. Mr Haby showed the imprint to the ranger and a policeman. The ranger, Mr. Roff, gave evidence that he was informed that a track had been found on the crest of a sandhill and he went to see it. He saw a drag mark of about 8 or 10 inches in width and followed it in both directions. He described the mark as follows: Well, it was a shallow drag mark and obviously something had been dragged along, and obviously in that track in areas there was dragging vegetation, leaves and grass material, and there were other points where I formed the impression, an object had been laid down, forming an impression, the pattern of which I related at the time in my mind, and I have had no occasion to change that concept; a pattern very similar to what I would relate or I did relate to a crepe bandage. In cross-examination he said that the impression could have resembled a mark made by a knitted garment; the object which had been carried seemed to have been quite heavy and there were three areas where it had apparently been put down. Next day he saw the drag mark again; he joined a group of Aboriginals, who were following the tracks of a very large dingo, which they thought might be associated with the drag mark. Constable Morris also saw two sets of drag marks, one deep drag mark, possibly half an inch deep by half an inch wide, and the other a short and very shallow mark about one-eighth of an inch wide. The evidence does not definitely establish whether Messrs. Haby, Roff and Morris were describing the same mark, but the tracks seen by Messrs. Haby and Roff both led near to the Anzac Memorial, and may have been the same. That evening Constable Morris also saw on the right-hand (or southern) side of the tent some dog or dingo tracks that apparently ran eastwards, towards the sand dunes. On the following afternoon he saw tracks (apparently fresh) at the rear of the tent, at its very edge; the tracks could be seen only when one lifted the flap of the tent in the corner in which the bassinet had been standing. On that afternoon Inspector Gilroy saw some large paw prints not only at the rear right-hand corner of the tent, but also at the front, close to the tent - they appeared to be fresh. Mr. Roff saw no dingo tracks near the entrance to the tent on the night of 17 August, although he examined the entrance to the tent particularly to try to discover whether there were any dingo marks. The soil at the entrance was loose and sandy, and it had been disturbed by people who had been walking on it.

[73]

A number of witnesses saw blood in the tent, although no one seems to have made a very thorough inspection of the tent or its contents that night. Most of the witnesses who looked into the tent described what they saw as spots or sprays of blood on blankets and other articles in the tent. Mrs. Lowe said that she saw "a dark red wet pool of blood", about 6 inches by 4 inches in size; no one else saw such a pool. Mr. Roff, on the other hand, saw no blood at all. The floor of the tent was practically covered by blankets, mattresses, sleeping bags and some other articles, and these were subsequently examined by Dr. Scott, whose evidence on this matter is not challenged. There were three stains of blood, the largest about half an inch across, on one blanket, and a thin smear on another; if Mrs. Chamberlain's evidence is true, these may have been the blankets in which Azaria had been wrapped. There were small quantities of blood on a sleeping bag. There was quite a large area of staining on a floral mattress, some smeared blood on a parka, and a spot of blood on a raincoat. The articles on which blood was found were in various parts of the tent, and no blood was found on any other things that had been in the tent at the time. In particular, there was no blood on the bassinet, which stood in a corner at the rear of the tent, and in which Azaria had allegedly been placed. An examination of the tent itself revealed some very small spots on the flyscreen and the rear window that were thought to be blood, but were not confirmed as such; there was also a spray pattern (which Dr. Scott thought was blood, but not human blood) on the outside of the right-hand (or southern) wall of the tent. No trail of blood was seen leading from the tent. It is common ground that the blood on some at least of the articles in the tent was foetal blood - a term we shall later explain - and was that of Azaria. The explanation suggested by the Crown for the presence of the blood in the tent was that it was transferred blood - in other words that it had come from the person or clothing of Mrs. Chamberlain when she had re-entered the tent after having killed the baby in the car. On behalf of the Crown it was submitted that much more blood would have been expected in the tent if a dingo had seized the baby in its jaws and carried it from the tent. On behalf of the accused, however, it was submitted that the teeth of the dingo may have largely occluded the wounds made by its bite if it had held the baby in a firm grip.

[76]

After the alarm had been raised, and for the rest of the evening, Mrs. Chamberlain seemed distressed and shocked. For most of the evening, until the Chamberlains departed from the camp site at about midnight, Mrs. Chamberlain was in the company of other campers, who endeavoured to give her comfort. There were two or three occasions on which Mr. and Mrs. Chamberlain went away together - once (or twice) for about ten minutes, and once for about fifteen or twenty minutes. According to their own evidence, they did so to join in the search. No witness who saw them go appears to have thought their actions in any way remarkable, and no one saw either of them carrying anything like the body of a child or any implement for digging. Mr. Chamberlain's movements cannot be accounted for so precisely. However, it is apparent that it must have been very difficult for either Mr. or Mrs. Chamberlain to bury the body of the baby that night. If Mrs. Chamberlain killed the baby, it is most probable that she left the body in the car. If it had been left in or near the tent, it is hard to imagine that it would not have been found - a number of people went into, or looked inside, the tent: Constable Morris did so three times. If the body had been left in the car, there was a great risk that anyone removing it would be seen to do so. By that time a gaslight had been erected near the tent to provide some extra light. Mrs. West remained near the car from the time when the alarm was given until Mr. and Mrs. Chamberlain left the area, and Mrs. Lowe was also there until about 10 p.m., and neither saw anyone remove anything from the car. If Mrs. Chamberlain killed Azaria, the possibilities are that the body was buried that night, or that it was left in Mr. Chamberlain's camera bag in the car and buried on the following day. It is also possible that the body was buried that night, and that the baby's clothes were removed in the camera bag. If the body was buried that night, it is surprising that no one saw Mr. or Mrs. Chamberlain remove it from wherever it was secreted and carry it away; in the circumstances, if either had been carrying any sort of a bundle, or a camera bag, it could hardly have escaped notice. And if the body was buried in the dunes near to the camp - which, as will be seen, is a possibility - it is somewhat surprising, if the burial occurred that night, that the searchers found no sign of the freshly turned earth. If the body was left in the camera bag, it showed considerable sangfroid for Mr. Chamberlain to invite Mrs. Elston, who was a nurse, to accompany him in the Torana when he drove from the camp site to a motel. The question how and when the body was buried is a difficult one to answer, but the evidence shows that there were opportunities for Mr. or Mrs. Chamberlain to have buried the body either on 17 August or on the following day.

[82]

On 19 August Mr. and Mrs. Chamberlain left Ayers Rock to return to their home in Mount Isa. A few days later, on 24 August, the baby's clothes (a jumpsuit, bootees, a singlet and a napkin) were found at a place which is near to the base of Ayers Rock about 5 kilometres from the camp site and which is known to be near to a dingo lair. The singlet was inside out but (according to one witness) inside the jumpsuit, and both were heavily blood-stained. According to the evidence of Mrs. Chamberlain the baby had also been wearing a jacket, but no jacket was found. Soil, and fragments of vegetation, were found on the jumpsuit, and there was scientific evidence which entitled the jury to infer that the clothes had been buried, not near where they were found, but in an area with a different type of soil - one place that answered the description was under bushes on the side of the sand dunes about 100 metres from the camp, but there were other places also with similar soil. There was evidence which might have convinced the jury that the jumpsuit had been rubbed with vegetation; also some traces of vegetation were found on an inner surface, which suggests that the baby was not in the jumpsuit when the vegetation was rubbed on to it. The clothes were damaged - there were some holes in the singlet and the napkin, and there was a large hole in the sleeve of the jumpsuit and what appeared to be a linear cut along the collar of the jumpsuit. Mrs. Chamberlain gave evidence that the clothes were not in this condition when she last saw them on Azaria. There was a conflict of expert testimony as to the cause of the damage. The Crown called a number of witnesses the effect of whose evidence was that the damage was the result of cutting, possibly by a pair of curved scissors, and that it was not caused by the bite of a dingo. These witnesses included Dr. Brown, a forensic odontologist, Mr. Sims, Senior Lecturer in Forensic Odontology at London Medical College, Professor Chaikin, Head of the School of Textile Technology of the University of New South Wales, Professor Cameron, Professor of Medicine at the University of London, and Sergeant Cocks, a police officer who conducted some experiments by cutting a jumpsuit. On the other hand, a witness for the defence, Dr. Orams, a Reader in Dental Medicine and Surgery at the University of Melbourne, disagreed, and asserted that the damage could have been caused by the teeth of a dingo. It would not be profitable to review this evidence in detail, for in our opinion it was clearly open to the jury to prefer the evidence of the Crown witnesses. Professor Chaikin, whose expertise was not questioned, subjected the jumpsuit to examination under an electron microscope. He expressed the opinion that the jumpsuit was cut, probably with fairly sharp scissors, and that the damage was not caused by a dingo. His conclusion was based on the facts that he observed that all fibres at the end of the yarn were in the same plane, whereas when fabric is torn there is a distortion which would prevent the fibres from coming together, and that he found tufts which occur as a result of cutting but not as a result of tearing. No error in this approach was demonstrated. He concluded also that the holes in the singlet were probably produced by pushing something through it - such as a knife or scissor blades. As to the napkin, he could not exclude the possibility that the damage to it had been caused by a dingo. His evidence as to the jumpsuit was criticized on the ground that he had found only one nylon fibre which showed what he called a classic scissors cut, and that he had never examined the clothing of a person bitten by a dingo (although he had carried out an experiment with dingo teeth) and had assumed that a dingo bite would tear rather than cut - an assumption which is disputed. Notwithstanding these criticisms it was open to the jury to accept his evidence as correct. A quite different circumstance which supported the Crown theory was that no blood or tissue was found near the tear in the sleeve although, as some witnesses pointed out, some would have been expected if the tear had been caused by the bite of a dingo while the baby was wearing the jumpsuit. In our opinion it was open to the jury to be satisfied, beyond reasonable doubt, that the clothing had been buried, and later exhumed and removed to the place where it was found. It was further open to the jury to be satisfied that the damage to the jumpsuit at least had been caused by cutting and not by the bite of a dingo. Some evidence was directed to the question whether a dingo could have removed the baby from the jumpsuit, but even if the jury had been left in doubt as to the manner in which the baby was removed from the jumpsuit, the evidence as a whole would have justified them in concluding that the clothing had been interfered with, and put where it was found, by some human agency. The theory advanced by the Crown was that the clothing had been dealt with in this way, by one or other of the accused, in an attempt to lend support to the idea that the baby had been taken by a dingo. There is however nothing that directly shows that Mr. or Mrs. Chamberlain had been responsible for cutting the clothing or putting it where it was found. It was sought to connect Mr. Chamberlain with the clothing by evidence that on the day before the alleged murder he had taken photographs of the place where the clothes were later found. Mr. Chamberlain was, as the evidence shows, a very enthusiastic photographer and took many photographs; the fact that he photographed the part of the Ayers Rock area where the clothing was later found could not safely be relied on as being of any importance. The Crown also relied on the fact that the place where the clothes were found was not far from where Mrs. Chamberlain and others had seen a dingo earlier in the day of 17 August on a visit to Fertility Cave - a dingo which, as we shall later mention, Mrs. Chamberlain said resembled the one which took Azaria. In addition to these arguments, the Crown submitted that it was not reasonably possible that any person other than Mr. or Mrs. Chamberlain would have dealt with the clothing in that way. It is true that it is difficult to suggest any rational motive for such actions but it is not beyond the bounds of possibility that the clothing was cut and moved by some unknown person, either prompted by some undiscovered motive or acting quite irrationally.

[91]

The expert evidence given for the defence strongly challenged the correctness of the tests for foetal blood, and we shall turn to consider the criticisms of Mrs. Kuhl's evidence advanced for the defence. Whatever be thought of these criticisms, however, in our opinion it was open to the jury safely to conclude that the tests did indicate the presence of blood in most of the samples tested, except perhaps in those taken from under the glove-box, which we are about to discuss separately. Indeed, except in relation to the marks observed under the glove-box, the defence did not dispute that blood was found in the car, but attempted to explain its presence. First it was proved that a Mr. Lenehan was, on 17 June 1979, involved in an accident near Port Douglas, and was picked up by the Chamberlains and driven by them to Cairns in the Torana. The rear seats of the Torana, which was a hatchback, had been lowered to make a flat surface, on which he lay with his head towards the front passenger seat. He bled profusely from a scalp wound. There was also evidence that Aiden and Reagan had had nose bleeds while travelling in the front passenger's seat of the car, and that Azaria sometimes vomited when sitting on her mother's knee on the front passenger's seat. There was also evidence that children from a church group were often carried in the car and that sometimes they would have bled from minor injuries. None of this evidence would explain the presence of the blood if it were foetal blood, because, of the possible sources of the blood, only Azaria would have had foetal blood, and if there was any blood in her vomit it could not possibly account for the quantity and distribution of the blood found. Even if the blood was not foetal blood, the jury were entitled to consider it highly unlikely that the incidents which we have mentioned would explain the presence of all of it. There was evidence, which the jury could accept, that an experiment conducted by Crown witnesses on a similar car seat showed that when someone was sitting on the seat blood would flow down the side of the seat in a pattern which corresponded to that which Mrs. Kuhl observed on the side of the front passenger's seat of the Torana, and would flow or drip behind the hinge and into the bolt hole. It is unlikely that Mr. Lenehan's bleeding caused blood to flow down the side of the front passenger's seat in that way. Mrs. Chamberlain said in evidence that he was lying with his head on her knee very close to the end of the back seat. There would therefore have been an appreciable distance between his head and the front seat. Of course, the accused were under no burden to explain the presence of the blood found in the car a year after the alleged crime: the burden of proof did not shift from the Crown.

[93]

We must now deal with the submission on behalf of the Crown that foetal blood was found under the glove-box, or dashboard, of the Torana. Detective Metcalfe gave evidence that he examined the car in October 1981, and then observed a spray pattern under the dashboard next to the glove-box compartment; he touched part of the pattern, and it felt sticky. The substance he touched could not have been Azaria's blood, since her blood would have dried within two hours (at latest) after it had been shed. On the same day, Mrs. Kuhl screened the area of spraying, and the Orthotolidine Test proved negative; she concluded that the pattern was made by soft drink or something like that. On 10 November 1981, the car was examined by Dr. Jones, who saw, welded under the dashboard, a metal plate, which appeared to have on it spots consistent with blood. Dr. Scott did a presumptive Orthotolidine Test, which proved positive. Dr. Jones collected four samples from under the dashboard - each a complete spot. He later sent three to Mrs. Kuhl: one taken from the metal plate, and two from another part of the glove-box support area. He removed the metal plate, and observed two patterns of staining - what appeared to be a splash pattern of large drops along the front edge, and a spray pattern, of droplets such as would be formed by the ejection of fluid from a small orifice under pressure, such, for example, as would result from blood ejected from a small artery. Mrs. Kuhl, who tested the three samples by the use of the anti-HbF anti-serum, concluded that each contained foetal haemoglobin. Dr. Jones removed the metal plate from under the dashboard and examined the leading edge, and found other spots on it; Mrs. Kuhl's test of a sample taken from the edge was non-specific, since the sample reacted with a number of anti-sera, and she concluded that it was not blood. Dr. Jones and Professor Cameron both expressed the opinion that the spray on the plate must have come from a source forward of the plate, which it must have struck at an angle of about 30 to 45 degrees. Some months later, in May 1982, Mr. Culliford was given a number of samples, including one from the steel plate. With one exception (metal clips from the seat) he was satisfied that the samples were blood, but he could not take the testing further: at least by that time it was not possible to say whether the samples contained foetal haemoglobin.

[94]

No doubt the splash pattern and the spray pattern under the dashboard could have been formed by different substances - one perhaps by blood, another perhaps by soft drink. On behalf of the accused it was argued that the effect of the evidence was that of the three spots tested by Mrs. Kuhl, two must have come from the splash pattern, and that it was not clearly shown from which pattern the other came. It does seem to us right to say that two of the drops did not come from the spray pattern, and that it was not proved that the other spot came from that pattern. However, even if all came from the spray pattern, that does not assist the Crown case unless the blood is shown to be foetal blood. For, as Jenkinson J. pointed out, the conclusion that the source of the spray was an artery depends on the assumption that the spray was deposited on the metal plate at a time when it was incorporated into the car. The Torana had been used as a demonstration model by a dealer from September 1977 until Mr. Chamberlain bought it in December 1977. Before delivery was made it was cleaned inside and out, but, as Jenkinson J. said, "the position of the sheet in the car precludes any confident belief that the sheet would have been cleaned before the car was delivered by the manufacturer to the dealer". In this connexion it should be mentioned that Mr. Chamberlain discovered, in another 1977 Torana, a metal plate on which was a pattern which, according to Dr. Jones, was of a similar character to that on the steel plate removed from Mr. Chamberlain's car. There was no evidence as to what caused this pattern, and the trial judge suggested to the jury that this steel plate was of little evidentiary value. The defence also relied on the evidence of Mr. Tew, who did some electrical work on the car in November 1980, and who saw some blood-stains on the console but did not notice any blood under the dashboard, although he fixed wires over the position in which the spray was said to have been. We consider that notwithstanding Mr. Tew's evidence, the jury were entitled to find that there were some spots of blood under the dashboard. However, it seems to us, for the reasons given by Jenkinson J. to which we have already referred, that the jury could not safely have drawn the conclusion that the spray pattern under the dashboard indicated that the source of the blood was an artery and indeed could not safely have attached any great significance to the blood under the dashboard, unless and until they were satisfied that some of the spots contained foetal blood.

[95]

We now turn to the evidence of the two witnesses for the defence who challenged the result of the tests conducted by Mrs. Kuhl. They were Professor Boettcher, Professor of Biological Science at the University of Newcastle, and Professor Nairn, Professor of Biology and Immunology at Monash Medical School. Both were distinguished academics and undoubtedly expert in this field. They criticized Mrs. Kuhl's testing on a number of grounds. Perhaps the most important opinion expressed by Professor Boettcher and Professor Nairn was that the anti-HbF anti-serum used by Mrs. Kuhl was not monospecific; if that is so, as we have said, her conclusions that the blood was foetal blood cannot be accepted. This opinion was based on a number of apparent anomalies in Mrs. Kuhl's results. For example, Professor Boettcher said that it appeared from Mrs. Kuhl's notes that she observed a more positive reaction by the anti-HbF anti-serum to the test samples than to cord blood (blood taken from the umbilical cord) used as a control. This is the reverse of what would be expected if the test sample was of Azaria's blood, since cord blood is richer in foetal haemoglobin than is the blood of a baby of Azaria's age. Further, he said that the tested samples reacted more strongly with the anti-HbF anti-serum than with an anti-serum which was supposed to react to any haemoglobin, adult or foetal; again this was the reverse of what would be expected, since Azaria's blood would have contained more adult than foetal haemoglobin. The Crown witnesses explained these apparent anomalies; amongst other things they said that the tests were qualitative and not quantitative, and that the foetal haemoglobin molecule is more stable than the adult haemoglobin molecule - the latter assertion is vigorously controverted by the defence. Professor Boettcher himself conducted a number of tests using an anti-HbF anti-serum, which was of course intended to be specific to foetal haemoglobin; he obtained the anti-serum from Behring Werke, the source from which Mrs. Kuhl had obtained her anti-HbF anti-serum, and conducted experiments which in his opinion showed that it was not monospecific. It was not established that the serum which Professor Boettcher obtained from Behring Werke came from the same batch as that supplied to Mrs. Kuhl - assuming, that is, that the substance was made in batches kept distinct when supply was made to purchasers.

[101]

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. Jenkinson J. took a different view. He said [53] : 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 idiosyncracies 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 conclusion. We agree with Jenkinson J. The most that could be said against Professors Boettcher and Nairn was that their work was done in the comparative seclusion of academic surroundings, so that they lacked the day-to-day experience of the forensic scientists called for the Crown, and that they exhibited "an unbecoming arrogance" (in the words of Bowen C.J. and Forster J. [52] ) and that Professor Boettcher did not fare well in cross-examination. There was no challenge to their knowledge or their honesty or impartiality. The criticisms they advanced appear to be rational and compelling. Of course the Crown witnesses had answers to those criticisms. We do not doubt that if the question was whether there was evidence to support a finding that the blood in the car was foetal blood, the question should be answered in the affirmative. But when the question is asked whether such a finding could safely be made it seems to us that the answer must be in the negative. The conflicting evidence should have raised a doubt in a reasonable mind, and there is no other evidence that can resolve the doubt before a decision on the verdict is ultimately reached. We conclude therefore that, in the present case, we must proceed on the basis that the jury were entitled to accept as a fact, from which inferences might be drawn, that those parts of the car, and those articles in it, that responded affirmatively to the tests had blood upon them, but that they could not safely accept as a primary fact that the blood was foetal blood. 1. (1983) 72 F.L.R. 1, at p. 30; 46 A.L.R. 493, at p. 520. 2. (1983) 72 F.L.R., at pp. 81-82; 3. (1983) 72 F.L.R. 1, at p. 30; 46 A.L.R. 493, at p. 520.

[107]

Finally, the Crown, in support of its case, relied on what were claimed to be inconsistencies in various statements made by Mrs. Chamberlain from time to time as to what she saw when she approached the tent after her husband had heard the baby's cry. It will be remembered that Mrs. Chamberlain had cried out that the dog, or the dingo, had got her baby. That did not necessarily mean that she had seen the dingo carrying the baby; her conduct, in veering back towards the tent (to use Mrs. Lowe's words) and her statement to Mr. Haby, indicated that she did not mean that. Later in the evening she told Mrs. Whittacker that she had entered the tent, looked for the baby, seen that the bassinet and clothing were dishevelled and had thought at first that perhaps the baby had fallen out and had searched but could not find it. Again that evening, Mrs. Whittacker heard Mrs. Chamberlain say to her husband: "Is it possible that someone could have entered the tent and taken away the baby?" to which Mr. Chamberlain replied, in a gentle voice: "But what about the blood?" Mr. Roff also asked Mrs. Chamberlain whether she had seen the dingo carrying the baby out of the tent; she replied, "No, the dingo wasn't carrying anything." On the other hand Constable Morris said that when he first spoke to Mrs. Chamberlain on the evening of 17 August she told him that she had seen a dingo near the tent which had what appeared to be something in its mouth and that she had not taken a great deal of notice until she returned to the tent site a short while later and then suddenly realized that the dingo must have taken her baby. He said that later in the evening, after the unsuccessful search, he had a further conversation with her, and that on this occasion she said that the dingo had nothing in its mouth. He said to her: "But you made a statement earlier that the dingo had something in its mouth" and she said that she did not recall making that statement. Mrs. Chamberlain was emotional and upset at the time and Constable Morris did not make a contemporary record of the conversation and could not vouch that he could repeat it verbatim. On the following day Mrs. Chamberlain was interviewed by Inspector Gilroy. In the course of that interview she said that when she was half-way to the tent she saw the dingo come out of the tent. Her statement continued: "I saw the dingo from about shoulder up, and he sort of looked as if he, I thought he'd got a fright and heard me coming with having trouble getting out the tent flaps. He sort of waved his head to get out and I immediately, I didn't realize he was in there and the cry disturbed the baby, he might have savaged it I yelled at it to get out of the road and it took fright and ran in front of our car which was parked right next to the tent. But I didn't sort of keep looking at it, I dived straight for the tent to see what had made the baby cry. " She went on to say that the bassinet was empty, that she came out of the tent and called to her husband that the dingo had taken the baby. She said that she could still see the dingo and chased it until it went into the bush. Later in the interview she said: "No I did not see anything in the dingo's mouth because that was below the level of the light. It sort of had its head down, and coming out of the tent I thought it was just shaking its head to get past, the thing, it was obviously because it had a heavy thing, she had a little towelling stretch suit on, and often my other two used to wear towelling suits, and often when they were bigger and crawling I'd pick them up by the back, they're very strong, and it is quite easy to pick them up by the back, and in which case, the towelling stretches and the baby would be maybe six inches from the mouth if he was carrying her like that." She volunteered the information that, during the afternoon, at the Fertility Cave, she had seen a dingo which seemed to be watching her; she said "it's almost as if the dog had been casing the baby".

[108]

On 30 September 1980 Detective Sergeant Charlwood interviewed Mrs. Chamberlain at Mount Isa and had a conversation with her. She later signed a record of interview. In the course of the conversation that was not recorded, she said that when she first saw the dingo it was partly inside and partly out of the tent. She said: "Its head was out and it was trying to get something through the doorway and swinging its head round like this, now, with its head down, that's what made me think it was a shoe. " She said she yelled at the dingo thinking it might drop the shoe and then she realized that it might have bitten the baby. She said that as soon as she reached the front of the tent she could see the blankets scattered and instinct told her that the dog had the baby but she dived into the tent to make sure. She saw that the baby was missing. She went out of the tent and as she did so she called to her husband that the dingo had got the baby. As she was calling out she started to run in the direction in which the dingo had gone; she said that it went out of the tent and across in front of the car, that is to her right, and into the darkness. She went around the car and saw the dingo standing in the shadow of the car at the back - the back left-hand corner of the car. As soon as she peered at it, it took off. She said: "It was standing with its back to me, with its head slightly turned at that stage. I couldn't tell you whether it had anything in its mouth or not. My mind refused to accept the thought that it had her in its mouth, although I know that sort of it must be it " She said that the dingo ran off at an angle into the dark. In the written record of the interview it is recorded that she was asked whether she actually saw anything in the dingo's mouth when she was at the entrance to the tent and she replied: "No. It was the way it moved that made me realize that it had something. The tip of its nose and its legs were in the shadow and it had its head down." She was asked whether she saw anything in the dingo's mouth when it ran into the scrub and replied: "I have already stated I didn't; my mind refused to entertain the possibility. It was like a mental block. I tried to recapture the picture I can see the dog in my mind its mouth remains a blurred blank." She said that she wondered if the dingo was the one she had seen at Fertility Cave but thought that the cave was too far away.

[178]

The position and condition of the clothing as it was found by Mr. Goodwin on 24 August 1980 were advanced by the prosecution as important components in the mass of evidence from which murder was to be inferred and which was said to warrant rejection of the dingo hypothesis. Mr. Goodwin's recollection of the position of the clothing is partially supported by Constable Morris who went to the place when Mr. Goodwin reported the find to him. The place was about 200 metres from the road on the south-west of the Rock. It was in an area visited by the Chamberlains during a photography expedition on 17 August. When the clothing was found the jumpsuit was laid out on its back "with the feet facing up in the air". The two bootees were inside the feet of the jumpsuit. The singlet was inside the jumpsuit according to Mr. Goodwin, but Constable Morris thought it was with but not inside the jumpsuit. The singlet was inside out, opposite to the way in which Azaria had been wearing it when she disappeared. The disposable nappy was on the righthand side of the jumpsuit. It had been damaged and some pieces of it had been separated. After Constable Morris arrived he picked up the jumpsuit, opened two press studs below the four already opened, and put in his hand to check what was in the feet of the garment. Mr. Goodwin showed the jury the arrangement of the clothing as he found it, which was in a more compact arrangement than Constable Morris remembered. The prosecution submitted to the jury that a dingo could not have taken the baby's body out of its clothing and left the clothing in this way. The baby's body must have been removed from the jumpsuit with both of the baby's bootees being left (or subsequently replaced) in the feet of the jumpsuit, the singlet taken up over the arms and head so that it was inside out and then placed back in or perhaps beside the jumpsuit, the nappy taken off and placed on the righthand side of the jumpsuit. In an attempt to rebut the inference of human interference, the defence relied on an experiment in which a dingo had removed the carcase of a kid from a similar jumpsuit undoing only two press studs. The jury were well-equipped to evaluate this evidence. They were entitled to find that a human being had placed the clothing where it was found. Indeed, any other view strains credibility.

[180]

The jumpsuit, singlet and nappy were submitted to examination by a number of scientific experts, including Professor Chaikin, who is highly qualified in textile technology. He produced models of the yarns in the texture of the jumpsuit and singlet. He had used a scanning electron microscope to examine the fibres where the jumpsuit was damaged and he showed the jury micrographs (a form of photograph) of what could be seen. The ends of severed fibres at the end of a yarn in the jumpsuit could be seen in the same plane. There was no such distortion of the yarns as would be caused by a tear. Most significantly, Professor Chaikin had found some little cotton tufts still adhering to the fabric at the edge of the damaged areas - a phenomenon that is caused only by cutting. Although fibres in a yarn are fractured as they bunch up under the pressure of a cutting instrument, Professor Chaikin was able to find a nylon fibre which showed a classical scissors-cut surface at the end. His conclusion was that the apparent tears on the left arm, left shoulder and collar of the jumpsuit and a small hole in the back had been cut with fairly sharp scissors. In his opinion that damage could not have been caused by a dingo. This opinion is supported by the absence of tissue remains or blood-stains on the cut edge of the hole in the left arm, except for a drop of blood below the hole apparently unconnected with any injury to the baby's left arm. Dr. Scott, who was the forensic biologist in the Northern Territory at the time, tested parts of the jumpsuit for proteins that are found in dingo and dog saliva. He found none, though he took samples from near the tears and damage to the collar of the jumpsuit, the hole in the left arm and what he called the "sort of balance point in the centre rear". However, that negative finding did not conclusively eliminate the dingo hypothesis. If a dingo had carried the baby by her matinee jacket, the saliva may have been deposited on that garment or the tell-tale protein of the saliva may have been washed away by rain (there being some suggestion of a shower before 24 August).

[184]

There was very heavy blood-staining right around the neck of the jumpsuit, produced by a pooling of blood inside the neck which was fastened up when the pooling occurred. Some blood had run down over the left shoulder and some had flowed on to the top part of the garment on the right-hand side at the back of the neck. Professor Cameron, a forensic pathologist of vast experience and renown, said that the only way in which this pattern of bleeding could be produced was by cutting across or around the neck - a fatal injury that must have been caused by a human. Other pathologists agreed that the blood must have flowed from one or more wounds in the neck or above. Professor Cameron and Drs. Jones and Scott, called for the prosecution, and Dr. Plueckhahn, called for the defence, did not exclude the possibility of bleeding from a head injury, though Professor Cameron would exclude the possibility that a head injury was the sole cause of the bleeding and Dr. Jones favoured the view that the blood came from an injury to the neck. Professor Cameron pointed out to the jury that with a head injury there are rivulets of blood which drain down missing the collar. Of course, it is essential to the dingo hypothesis that a head injury be the source of the blood flow. That hypothesis attributes Azaria's disappearance to a dingo seizing her head in its jaws, lifting her from a carrying basket into which she had allegedly been tucked in the tent and carrying her through the flaps of the tent away into the bush. There was a body of evidence (including the appearance of the jumpsuit itself) to support an inference that the blood which had flowed directly on to the jumpsuit had come from a wound in the neck. But the blood on the jumpsuit did not all come directly from the fatal wound. There were some blood marks on the jumpsuit which had been transferred to the surface of the jumpsuit from another surface bearing Azaria's blood. The prosecution contended that these smear marks came from the hands of her murderer. Some of these smear marks were on the front of the jumpsuit, some on the back. Those marks could not have been placed on the garment by wiping it against a pool of blood in the sand for there were no grains of sand adhering to the blood. Although there was sand in and on the jumpsuit, the sand had come into contact with the blood-stained parts of the garment only after the blood had dried. Some small deposits of Azaria's blood were found subsequently on articles in the tent. Could these deposits have been the source of the transferred blood? There were one or two drops of Azaria's blood on a large purple baby blanket, a smear of her blood on a small purple baby blanket, a couple of spots on Mr. Chamberlain's waterproof sleeping bag, some smears on Reagan's waterproof parka jacket and a very small amount (less than a millilitre) on a floral mattress. There may have been a drop on the sleeve of a raincoat, and some drops on the legs of Mrs. Chamberlain's tracksuit. Some of these deposits could themselves have been transferred from another blood-stained surface. There was very little blood in the tent; none in the carrying basket into which Mrs. Chamberlain said that she had tucked the baby or on the bunny rug in which Mrs. Chamberlain said she had wrapped her. If a dingo had lifted the baby out of the carrying basket, it is difficult to envisage any movement of the baby's body after it had started to bleed which would have left such small deposits of blood on the articles in the tent but which would have produced such diffuse smearing of the jumpsuit front and back. Professor Cameron thought that there was a print of smeared blood on the back of the jumpsuit made by a human hand, but it is difficult to detect a handprint on the coloured slides that were tendered to show the distribution of blood on the garment. However, unless there is some reasonable possibility that might explain the smeared blood marks consistently with the dingo hypothesis, the existence of those marks betokens a human handling of the baby when her life-blood was flowing away or shortly after she died. There was no track of blood through the tent and no spray of blood on the tent flaps (through which Mrs. Chamberlain had said she saw a dingo emerge shaking its head). To maintain the dingo hypothesis, it was suggested that a dingo's teeth or mouth may have staunched the flow of blood while the baby was inside the tent. Yet, to give credence to that suggestion, it must be postulated that the direct bleeding into the pool around the neck - chiefly venous bleeding occurring before death - occurred after the baby had been taken out of the tent and while she was being carried off into the bush. There was extensive evidence given by the expert witnesses relating their opinions to the observable state of the exhibits. The jury, who had the clothing in front of them against which to check the opinions expressed by Professor Cameron and the other expert witnesses, were entitled to come to the conclusion expressed by Professor Cameron that the blood on the clothing showed Azaria's throat had been cut by human agency.

[188]

They were both the same golden colour neither had dusty coats. The shape of the bridge of the nose was similar, the pointed ears were straight on both sides and had a few longer hairs on the outside edge making them look a little distinctive. Immediately after she raised the cry, Mrs. Chamberlain told Mr. Haby "a dingo has taken my baby" and asked for a torch. In reply to the question: "Did you see [it] carry out the baby?", she said: "No. It wasn't carrying anything." She told Mrs. Whittacker that she thought at first that the baby had fallen out of the carrying basket and she searched around and could not find it. She told Mr. Roff as soon as he arrived on the scene at about 8.20 p.m. that she did not see anything in the dingo's mouth. She and Mr. Roff then went into the tent to make sure the baby was not there. When Constable Morris first arrived, she told him that the dingo appeared to have something in its mouth, but about an hour later she said that, when she had seen the dingo near the entrance to the tent, it had had nothing in its mouth and that she did not recall making her earlier statement. The next day, 18 August, she told Inspector Gilroy that she did not see anything in the dingo's mouth "because that was below the level of the light". If the baby had been carried out of the tent by a dingo whose nose and ears Mrs. Chamberlain was able to describe in some detail, it is remarkable that she did not see the baby whose whole body from the neck downwards (including the hands and feet) was dressed in a white jumpsuit. And if Mrs. Chamberlain did not see the baby, it is surprising that she should have cried out: "that dog's got my baby". If she cried out before she went into the tent, as both Mr. and Mrs. Lowe asserted, then it is difficult to account for her going into the tent instead of chasing the dingo. Mrs. Chamberlain herself said at the first inquest: When I last saw it before I went into the tent - the last time I saw it it was heading out of the tent past the car. I didn't follow it with my vision because I was more interested in what was in the tent than following it. If I had realized what had happened I would have gone straight after the dog instead of into the tent, but I had no idea that anything like this would have happened.

[191]

Halfway back I saw the head and chest of a dingo trying to get out of the tent. It was shaking its head from side to side with its nose down the way it was shaking it looked like it was trying to get something through the tent fly. Our shoes were all along the inside of the tent, what ever it was the dingo was having difficulty getting it out. I thought it may have had my husband's shoe and it was swinging by the laces. I yelled "go on get out" thinking it would drop it and run. I had paused when I first saw the dingo after I yelled I started running towards the tent I called there was a dingo in the tent. I remembered I was going to the tent 'cause the baby had cried. I felt sick - it occurred to me dingos are wild animals - if she had cried she had been disturbed. When she first went to sleep she was hard to disturb and therefore may have been attacked. This all flashed through my mind in a matter of four or five seconds. I thought she may need immediate first aid. I am a first aider with a St. Johns certificate. When I got to the railing I could see her blankets were scattered between the carry cot and the door. They were in three different places. Reagan was sleeping peacefully with his sleeping-bag hood on and his face buried in his pillow. There was no visible flesh anywhere. I dived straight to the back of the tent instinct told me she was gone. Reason told me it was not possible. I felt in the carry cot to make sure she was not there even though I could see she wasn't. I scrambled back to the door backwards feeling as I went the blankets to make sure she was not unconscious and lying under one of the blankets. She was very tiny approximately 9 pound 4 ounces bareweight. I felt Reagan as I went past to make sure he was really still there as I backed out the tent I called to Michael, "The dingo's got my baby." When I had previously yelled at the dingo it had run out of the tent across the front of the car and into the shadow. As I was calling to Michael I was running in a direction the dingo had gone around the front of the car. Michael said, "What?" As I reached the front corner of the car left-hand corner at the time Michael answered I noticed the dingo standing motionless and slightly behind the rear of the car in its shadow. Approximately the middle of the distance between the two railings. It had its back to me but at a slight angle with its whole body visible, its head was turned slightly as if listening. I did not see anything in its mouth, my mind refused to accept what was happening, I'm glad I did not. As I appeared it ran swiftly on an angle to the right into the scrub towards the sand hills. I did not hear it move the night was very quiet. I cut across the angle to where it was heading I answered Michael's question as I ran. I repeated, "the dingo has got the baby."

[227]

If Azaria was murdered at this time, what was done with her body? When the jumpsuit was found it was discoloured by soil, mostly on the outside, and there was some dry sandy soil in the feet. This indicated to some of the scientific witnesses that the jumpsuit, possibly still on Azaria's body, had been temporarily buried. The deposits of soil did not come from the vicinity where the clothes were found but there were places on the sand dune to the east of the camping area from which the soil could have come. Mr. and Mrs. Chamberlain had said in their statements to the police that they had been out on the dune searching by themselves on several occasions during the night of 17 August before they packed up their tent and went to a nearby motel with Aiden and Reagan to sleep for the rest of the night. Although other camping families or the nurse, Sister Elston, were at the camping area and in the company of one or both of the Chamberlains for a large part of the evening, there was opportunity for the Chamberlains to bury Azaria and her clothing. If Azaria died in the car, it is likely that her body was left there for the time being. Mrs. West, one of the campers, said that Mr. Chamberlain had wanted to get into the car shortly after Azaria's disappearance but he could not find the keys. Mrs. Chamberlain says that the car was unlocked. Mrs. West may have been mistaken. Mr. Chamberlain says he wanted the keys to operate the ignition so that a spotlight which plugged into the car's cigarette lighter could be turned on. The keys were found under a pillow in the tent when the Chamberlains were packing up to go to the motel. Whatever the explanation may be, there is no evidence that anybody got into the car until about 12.30 a.m., when some of the Chamberlains' possessions were loaded into the car and Mr. Chamberlain and the nurse, Sister Elston, drove to the motel. Mrs. Chamberlain, Aiden and Reagan went to the motel in a police vehicle. The Chamberlains would have had to watch for an opportunity both to take Azaria's body out of the car and to clean up any blood that may have been obvious after the killing, and that was a matter for the jury's consideration. But there was nothing which prevented the jury from finding that any obvious signs of the killing had been cleaned up before Sister Elston got into the car. During the short journey to the motel, Sister Elston's attention was attracted by a large camera bag on the floor of the car under Mr. Chamberlain's legs. It was bulging and seemed to be heavy. This evidence raised another hypothesis, namely, that Azaria's body had not then been buried and that the camera bag contained Azaria's body. It was not necessary for the prosecution to prove either of these hypotheses. What is material is that neither of them is inconsistent with murder.

[232]

I turn then to the evidence relating to blood in the car. The police did not take possession of the car until September 1981. Samples of deposits were then taken from various parts of the car and items found in it and subjected to tests in order to determine whether those deposits were in fact blood and whether they contained foetal haemoglobin. Foetal haemoglobin persists as a significant but diminishing component in the blood of new born children for some time after birth. Analysis of Azaria's blood on the clothes she was wearing when she disappeared showed that her blood then contained one molecule of foetal haemoglobin for every three molecules of adult haemoglobin. Immunological tests were applied to the samples, using an anti-serum which was intended to react specifically with the antigens associated with the particular molecular chains (called gamma chains) that distinguish foetal haemoglobin. Twenty of these samples gave positive reaction to the anti-serum that was used. The scientific evidence adduced by the prosecution to establish and support the validity of these tests was impressive; the scientific evidence adduced by the defence to challenge their validity was equally impressive. The area of scientific dispute was lucidly explained by Jenkinson J. in the Federal Court, and I gratefully accept that explanation. In substance, the question in controversy between the scientists was whether the anti-serum that was used in the tests was, in the concentrations used, specific only to antigens associated with gamma chains. Although laboratory tests had verified the monospecificity of the anti-serum before it was used, controls to check its monospecificity were employed during the tests, and subsequent extensive testing against adult haemoglobin gave uniformly negative results, two scientists called for the defence testified to the possibility of a mistake. They testified that the concentration of adult haemoglobin antigens in the samples tested may have reacted with unwanted antibodies in the anti-serum (whose existence had not been excluded by the laboratory testing of the anti-serum) to give a reaction falsely interpreted as a reaction with foetal haemoglobin antigens.

[239]

In the present case, the jury were entitled to find, inter alia, that Mrs. Chamberlain raised a hue and cry that a dingo had taken Azaria when she had not seen a dingo taking Azaria and did not believe that a dingo had taken Azaria, that a dingo did not take Azaria, that Azaria's throat was cut, that Azaria's clothes were cut, rubbed against vegetation and left by a human close to dingo lairs and dingo pads, that Mrs. Chamberlain was the last adult to have seen Azaria alive, that there was blood in the car that was consistent with its being Azaria's blood, and that Mrs. Chamberlain had an opportunity to murder Azaria in the car. Upon those facts, it was open to the jury, in my opinion, to infer that Mrs. Chamberlain murdered Azaria. But further, in my opinion, the jury were also entitled to find that the samples taken from the car which gave a positive test for foetal haemoglobin were in fact samples of Azaria's blood. A fortiori, they were entitled to infer that Mrs. Chamberlain murdered Azaria. It is impossible to ascertain what primary facts the jury (or any particular member of the jury) found upon which they (or the particular member) based the guilty inference expressed in the verdicts. An appellate court cannot speculate upon what facts were found; it cannot interfere with a verdict if an inference could safely have been drawn from primary facts which the jury were entitled to find beyond reasonable doubt. The closer the primary facts approach to the facts in issue, the smaller the room for inference. An appellate court will give more anxious consideration to a verdict of guilty where the basis of primary fact is thin and the room for inference is large, but the test for determining whether the inference was lawfully drawn is constant: upon the facts which the jury were entitled to find beyond a reasonable doubt, could a reasonable jury, employing their critical judgment of men and affairs, have been satisfied that the inference of guilt was the only inference to be drawn. Applying this test to the facts I have mentioned - and they do not purport to be an exhaustive statement of the evidence - in my opinion a reasonable jury, whether or not they were entitled to find that the samples taken from the car were samples of Azaria's blood, could have been satisfied that Mrs. Chamberlain had murdered Azaria.

[245]

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 [78] , per Isaacs J.; also R. v. Baskerville [79] , per Lord Reading C.J.) His Honour asserted "the existence of the function of independent assessment of the evidence by the court of criminal appeal" and said [80] : 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 is the reasonable doubt in the mind of the court which is the operative factor. It is of no practical consequence whether this 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. 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. In Ratten, the Court was not asked to set aside a verdict because a reasonable doubt ought to have been entertained on the evidence given at the trial. An appeal and further appeal against conviction had already been dismissed. Subsequently, a petition for a pardon had led to a reference by the Attorney-General of the whole case to the Supreme Court of Victoria which, pursuant to s. 584 of the Crimes Act 1958 Vict., was required to hear the whole case as upon an appeal by the petitioner. Evidence that was not given at the trial was relied upon, and the opinion of the Supreme Court was required as to whether there had been a miscarriage of justice in the conviction in the light of all the evidence which was then available. The question for decision was the correct course to be adopted by a Court of Criminal Appeal in considering an appeal against conviction based upon the production of evidence not given at the trial. Barwick C.J. [81] said that the court should quash the verdict without ordering a new trial if the court upon its own view of the new material (whether or not it is fresh evidence) is convinced that the verdict could not be allowed to stand; but if the court is not so convinced, a new trial should be ordered where only fresh evidence, properly capable of acceptance and likely to be accepted by a jury is, in the opinion of the court, so cogent that, being believed, it is likely to produce a different verdict. 1. (1974) 131 C.L.R. 510, at p. 515. 2. (1919) 27 C.L.R. 13, at p. 23. 3. [1916] 2 K.B. 658, at p. 664. 4. (1974) 131 C.L.R., at p. 516. 5. (1974) 131 C.L.R., at p. 520.

[254]

If the Court of Criminal Appeal had thought that it was dangerous to convict Plomp in all the circumstances it would have been within the province of that Court to interfere. At the time when Peacock's Case [87] was decided, the Criminal Appeal Act had not been passed in Victoria. It was decided on a case stated by the judge at the trial. Some of the expressions used by Barton J. and O'Connor J. tending to the view that the Court might not interfere if there was some sufficient evidence to support a verdict of guilty, however unsafe or unsatisfying it might be, probably are not correct under the provisions of the Criminal Appeal Act, as incorporated in Queensland Criminal Code, see particularly s. 668E; and see Raspor v. The Queen [88] . The occasions when a verdict is set aside because it is unsafe to rely upon an inference of guilt must be rare indeed. If a jury could reasonably draw that inference from the primary facts as they are entitled to find them and, exercising their critical judgment of men and affairs, could conclude that no other hypothesis was reasonably open on those facts (that is, if the verdict could not be said to be unreasonable or not supportable having regard to the evidence) it would be an exceptional case where the court would hold that it was unsafe to draw and act upon the inference. Yet circumstances can occur which evoke the exercise of the power. In Hayes v. The Queen [89] , Barwick C.J. with the concurrence of the other members of the Court said: In considering the matter, I have not taken the view that, so long as there is some evidence on which reasonable jurymen might be entitled to convict, there is no responsibility in a Court of Criminal Appeal in any case to consider whether none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand. I agree with what was said in the joint judgment of Dixon C.J., Fullagar J. and Taylor J. in Raspor v. The Queen [1] , and what was said by Sir Owen Dixon in Plomp v. The Queen [2] . These expressions of opinion were made in relation to courts of criminal appeal constituted under statutory provisions containing the formula "if it thinks that the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence". In exercising its powers under such a formula, the court of criminal appeal must, of course, act on that view of the facts which in its opinion the jury were entitled to take, having seen and heard the witnesses

[272]

Sections 27 and 28 detail a variety of powers which are exercisable by the Federal Court in the course of its appellate jurisdiction. Those powers include the "power to draw inferences of fact and, in its discretion, to receive further evidence" (s. 27); the power to "give such judgment, or make such order, as, in all the circumstances, it thinks fit" (s. 28(1)(b)); the power to "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" (s. 28(1)(c)); the power to "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" (s. 28(1)(e)); and the power to "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" (s. 28(1)(f)). The content of those appellate powers is of assistance in defining the nature and scope of the jurisdiction of the Federal Court on an appeal from the Supreme Court of a Territory. In particular, the appellate power to "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" confirms that the general grant of jurisdiction to hear and determine appeals from judgments of the Supreme Court of a Territory was intended to confer jurisdiction to entertain an appeal from a judgment of conviction entered upon the verdict of a jury in a criminal trial. The appellate powers "to draw inferences of fact" and "to receive further evidence" make clear that the jurisdiction is not confined to an appeal in the strict sense, that is to say, an appeal on which the appellate court is limited to determining whether the court of first instance fell into error on the material before it and on which it is no part of the function of the appellate court to hear evidence for itself or to examine the evidence to reach its own conclusion. Quite apart from those particular matters, the scope and generality of the express appellate powers conferred upon the Federal Court support the conclusion that the appellate jurisdiction was intended, where it exists, to be as full and complete as the general words in which it was granted would prima facie indicate.

[278]

An appeal from a conviction on indictment before any of the Supreme Courts of the Australian Territories lay - in some cases by leave - to the High Court. In no case did the statutory provisions creating or regulating such appeals particularize specific grounds upon which such an appeal could be brought. Appeals from the Supreme Court of the Territory of Cocos (Keeling) Islands and from the Supreme Court of Christmas Island were in a special category by reason of past associations with Singapore and the Straits Settlements and the continuation of some Singapore laws including provisions of the Criminal Procedure Code 1955 (Singapore). They may be put to one side. Otherwise, the grounds upon which an appeal could be brought from a conviction on indictment before a Supreme Court of an Australian Territory were classified rather than identified in the relevant Commonwealth Acts and Ordinance: (i) "any ground of appeal that involves a question of law alone", (ii) with the leave of the Territory Supreme Court (or a judge thereof) or of the High Court, "any ground of appeal that involves a question of fact alone or a question of mixed law and fact", and (iii) with the leave of the Full Court of the High Court, "any other ground that appears to the High Court to be a sufficient ground of appeal" (see Northern Territory Supreme Court Act 1961-1976, s. 47; Australian Capital Territory Supreme Court Act 1933-1973, s. 52; Supreme Court Ordinance 1960 (Norfolk Island), s. 33). Those general descriptions did not identify specific grounds of appeal; the legislative intent was, plainly enough, to leave that identification to this Court. The breadth of the descriptions - particularly "any ground that appears to the Full Court of the High Court to be a sufficient ground of appeal" - is, however, such as to warrant the conclusion that the available grounds of appeal were intended to be at least as ample as the statutory grounds which had, since 1924, been available in the State Courts of Criminal Appeal. In particular, and subject to one qualification, those available grounds of appeal were sufficiently wide to encompass the established ground that "there was a miscarriage of justice". The qualification arises by virtue of the proviso that existed in the State Acts that the Court of Criminal Appeal may dismiss an appeal if it considers "that no substantial miscarriage of justice has actually occurred" (emphasis added). There was no corresponding provision in any of the relevant Commonwealth legislation. While varying views have been expressed in this Court on the question (see, e.g., Stokes v. The Queen [5] ; Da Costa v. The Queen [6] and Pemble v. The Queen [7] ), the better view appears to me to be that accepted and applied in Stokes , namely, that, under the relevant Commonwealth legislation, this Court was empowered to dismiss an appeal notwithstanding that a particular ground of appeal had been made good if it appeared that "no substantial miscarriage of justice [had] actually occurred" in the sense in which those words are used in the proviso in the State legislation (see Mraz v. The Queen [8] ; Duff v. The Queen [9] ): "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" (per Dixon C.J., Fullagar and Kitto JJ., Stokes [10] ). Subject to the effect of that "general rule", an appeal lay, at the time when the Act was enacted, from the Supreme Court of every Australian State and mainland Territory and from the Supreme Court of Norfolk Island on the ground that there had been a miscarriage of justice. In that context, one would prima facie expect that a general grant of jurisdiction to the Federal Court to hear and determine appeals from judgments of the Supreme Court of a Territory was intended to include the jurisdiction to set aside a judgment of conviction on the ground that there was a miscarriage of justice subject to the overriding power to dismiss the appeal in any case where it appeared to the Federal Court that, notwithstanding that a point raised in the appeal might be decided in favour of the appellant, no "substantial" miscarriage of justice had actually occurred.

[291]

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 is the reasonable doubt in the mind of the court which is the operative factor. It is of no practical consequence whether this 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. 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 (emphasis added). McTiernan J. and Jacobs J. expressed unqualified agreement with the reasons for judgment of Barwick C.J. in Ratten and the above statement of law, which was central to the reasoning underlying Barwick C.J.'s judgment, was properly to be seen and acted upon as an authoritative statement of the law by this Court. It has been so accepted and acted upon in the Supreme Courts of the various States (see e.g., Reg. v. Smith [23] ; Hill v. The Queen [24] ; Coolwell v. The Queen [25] ; Reg. v. McKittrick [26] ; and see Glass J.A., The Insufficiency of Evidence to Raise A Case to Answer, Australian Law Journal, vol. 55 (1981) 842, at p. 844 ). The mischief which would be involved if this Court were now to reverse that plain and recent statement of law is well illustrated by reference to four Western Australian decisions: Jackman v. The King [27] ; Armanasco v. The King [28] ; Reg. v. Privitera [29] and Conroy v. The Queen [30] . 1. (1974) 131 C.L.R., at p. 516. 2. [1979] 2 N.S.W.L.R. 304, at p. 309. 3. (1981) 3 A.Crim.R., at p. 401. 4. (1982) 7 A.Crim.R. 368, at pp. 373-374. 5. [1982] V.R. 637, at p. 646. 6. (1914) 16 W.A.L.R. 8. 7. (1914) 16 W.A.L.R. 174. 8. [1966] W.A.R. 12. 9. [1976] W.A.R. 91.

[297]

In these circumstances, I consider that it would need to be demonstrated that the clear statement of the law contained in the above passage from the judgment of Barwick C.J. in Ratten was vitiated by some manifest error of fundamental principle before the Court would be justified in again re-opening the question. No such error of principle has been shown to exist. There is no principle which requires a jury's verdict of guilty in a criminal proceeding to be treated as beyond examination in an appellate court. There is no principle which precludes the approach that an appellate court should hold that there has been a miscarriage of justice if a person has been convicted on evidence which, in the opinion of the appellate court, fails to establish his guilt beyond reasonable doubt. Nor is there any principle of law which requires an appellate court, in determining whether a verdict of guilty involves such a miscarriage of justice, to refrain from itself reviewing and assessing the evidence. The conclusion that, in determining whether there has been a miscarriage of justice by reason of the existence of a reasonable doubt as to the guilt of an accused, it is "the reasonable doubt in the mind of the court which is the operative factor" does not mean that an appellate court is entitled to disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence or the consideration that the jury has had the benefit of having seen and heard the witnesses: to the contrary, the appellate court must pay "full regard" to those considerations (see per Campbell C.J., Coolwell [36] ). On all but "rare occasions" (see per Street C.J., Smith [37] ), those considerations will make it impossible for an appellate court to conclude that the verdict of a jury that the guilt of an accused has been proved beyond reasonable doubt is unsafe or unsatisfactory. If, however, the appellate court, in examining the evidence for itself, is positively persuaded that, notwithstanding those considerations, there remains a reasonable doubt about whether the accused is guilty, the appellate court will be persuaded that there has been a miscarriage of justice for the reason that the evidence did not, in the appellate court's view of it, establish the guilt of the accused to the requisite standard of proof.

[304]

Mr. and Mrs. Lowe met the Chamberlains in a barbecue area in the vicinity of Ayers Rock around 7 p.m. on Sunday, 17 August 1980. Mrs. Chamberlain was nursing the baby, Azaria, whom she was trying to put to sleep. There was nothing in her demeanour to indicate that she was other than the loving mother of a normal child. Indeed, Mrs. Lowe, who appears to have observed her closely, gave evidence that "she sort of had a new mum glow about her". Around 7.50 p.m., Mrs. Chamberlain left the barbecue area carrying the sleeping baby. She was accompanied by the Chamberlains' son, Aiden, who was then six years old. She walked to the Chamberlains' small tent which had been pitched, alongside their car, some 20 metres away. If murder was committed, it was in the few minutes which followed. Mrs. Chamberlain gave evidence that she tucked Azaria in her bassinet at the back of the tent, that Aiden told her that he was still hungry, that she went to the car and obtained a tin of baked beans, and that she then returned to the barbecue area having a racing game with Aiden for the first few metres of the way. The Crown alleges that she took Azaria to the front passenger seat of the car and there cut her throat, wearing the bottom half of a tracksuit which was subsequently found by Mrs. Chamberlain to be spotted with blood. It is common ground that Mrs. Chamberlain in fact returned to the barbecue area between five and ten minutes after she left it. If Mrs. Chamberlain had murdered her baby, Mr. and Mrs. Lowe saw nothing to suggest it. In one hand, Mrs. Chamberlain carried the can of baked beans. She wore the same floral dress that she had worn when she left some few minutes earlier. The Lowes saw neither sign of blood on her or her clothes nor anything else unusual about her or her demeanour. At about 8 p.m., Mr. Chamberlain is said to have made a comment about hearing the baby cry. Mrs. Chamberlain walked towards the tent. It was as she drew near to it that she cried out that "that dog has got my baby". According to Mrs. Chamberlain, she had seen a dingo shaking its head as if it had something in its mouth at the entrance of the tent and had observed the empty bassinet within the tent. According to the Crown, her cry was the beginning of a facade of deceit, erected by Mrs. Chamberlain with the subsequent help of her husband, to conceal Azaria's murder.

[309]

There was some discussion in the course of argument as to whether a jury is precluded from taking account of, or drawing an inference from, a fact unless that fact is established beyond reasonable doubt. In the view I take, it is impossible to give a general theoretical answer to that question. There is certainly no requirement of the law that the members of a jury must examine separately each item of evidence adduced by the prosecution and reject it unless they are satisfied beyond reasonable doubt that it is correct. Nor is it the law that a jury is in all circumstances precluded from drawing an inference from a primary fact unless that fact is proved beyond reasonable doubt. If a primary fact constitutes an essential element of the crime charged, a juror must be persuaded that that fact has been proved beyond reasonable doubt before he or she can properly join in a verdict of guilty. Whether or not a juror must be satisfied that a particular fact has been proved beyond reasonable doubt will, however, otherwise depend not only on the nature of the fact but on the process by which an individual juryman sees fit to reach his conclusion on the ultimate question of guilt or innocence. If, for example, the case against an accused is contingent upon each of four matters being proved against him, it is obvious that each of those matters must be proved beyond reasonable doubt. Indeed, it would be appropriate for the presiding judge to emphasize to the jury in such a case that even a minimal doubt about the existence of each of those matters would be greatly magnified in the combination of all. On the other hand, if the guilt of an accused would be established by, or a particular inference against an accused could be drawn from, the existence of any one of two hundred different matters, each of which had been proved on the balance of probabilities, it would be absurd to require that a jury should disregard each of them unless satisfied, either in isolation or in the context of all of the facts, that any particular one of those matters had been proved beyond reasonable doubt.

[311]

I have found the question whether the evidence failed to establish beyond reasonable doubt that Mrs. Chamberlain murdered Azaria a difficult one. As the judgments in the Federal Court demonstrate, the circumstantial evidence against her was strong. There is much about the defence story of a dingo that strikes me as far-fetched. The Crown case against Mrs. Chamberlain was, however, neither comprehensive nor, in itself, impregnable. The body of the alleged victim was never found. The evidence established no motive for the alleged murder; to the contrary, it was to the effect that Mrs. Chamberlain was the loving mother of a normal child. Indeed, it would seem fair to comment that the Crown case was, perhaps of necessity resulting from the absence of both the baby's body and direct evidence against Mrs. Chamberlain, directed more to destroying Mrs. Chamberlain's defence of the dingo than to positively establishing her guilt. Much of the material upon which the Crown relied - camera bag, scissors, blood-stains on the tracksuit pants - was directly or indirectly volunteered by the Chamberlains. The evidence led by the Crown supported much of the Chamberlains' own account of the context in which the attack on Azaria occurred: it established that Mrs. Chamberlain was engaged in conversation at the barbecue area; that she was nursing Azaria "with a new mum glow about her"; that she left the area to put a sleeping Azaria to bed; that, within minutes, she returned to the barbecue area showing no sign of distress; that when she left and when she returned she was accompanied by Aiden, who was, apparently, also behaving quite normally; that when she returned she had a can of food in her hand for Aiden; that Mr. Chamberlain - who is not suggested to have been other than an accessory after the fact - made a comment about Azaria crying; that Aiden, in subsequent conversations that evening, indicated that he believed his mother's assertion that Azaria had been taken by a dingo. In that context, the Crown case (that, within the five to ten minutes while she and Aiden were together absent from the barbecue area, Mrs. Chamberlain put on tracksuit pants in preparation for her crime; took her baby to the front seat of the family car; there cut the baby's throat; and afterwards hid the body) strikes me as being, in its own less spectacular way, almost as unlikely as is the story of the dingo. And there remains the clear evidence that the baby was heard to cry after, according to the Crown case, she was dead.

Chamberlain v The Queen

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