The erosion of my faith in the Anglo-Saxon system of justice began on February 2, 1986, and the O.J. verdict has merely confirmed its loss. On that day, people searching for the body of an English tourist found a baby’s matinee jacket at Ayers Rock. It was identified by Lindy Chamberlain as that of her daughter, Azaria.
I had been part of the media ruck that had covered the case. I hadn’t covered the trial itself, but I covered the Federal and High Court appeals and reported and commented on the many sideshows.
During the Federal Court appeal I became convinced of her guilt. Ian Barker, QC, for the prosecution re-plaited the rope of circumstantial evidence, much of it scientific. His argument was so powerful, I can remember much of it now without going back to the files.
The jump suit had been found. Infra-red imaging revealed a hand print on it. Microscope analysis of the tears in it showed the ends of the fibres to be cut evenly, as if by scissors not jaggedly as if by a dingo’s tear. Blood clots had sand only around the surface, as if the sand were attached after the clot had dried. The sand was not scattered through the clot as you would expect if the baby were being dragged, bleeding, through the sand by a dingo. The blood found in the car was foetal, thereby nullifying the Chamberlains’ assertion that is was from an injured hitch-hiker. There was little blood and no dog hair in the tent, as you would expect. The vegetation on the jump suit was of one type, not from the several places the dingo would have dragged the baby. And a baby would not fit in a dingo’s jaw. It was tightly argued, supported by experts in all fields. Even without the foetal blood it was convincing.
Barker likened it to a rope. Each strand of itself was not enough to support a conclusion, but when plaited together the rope gained strength. It was enough to hang Lindy Chamberlain. And it was all crap.
It has probably not been said forcefully enough. Many people accept that the scientific evidence on the foetal blood was wrong. (Babies have an enzyme in their blood which disappears gradually over their first year. This was tested for and found, according to the expert evidence.) However, once the matinee jacket was found on the other side of the rock, the only reasonable conclusion was a dingo took it there. All the humans were accounted for.
It meant Mrs Chamberlain was innocent (not merely not guilty). It meant also that all eight strands of expert evidence in Barker’s rope were wrong. Were rubbish … biologists, zoologists, infrared-ologists, fabric-ologists. The lot.
Barker’s forensic creation of the rope that secured the conviction was plaited with the yarn that made the emperor’s new clothes. At the time, I admired those clothes.
By comparison I dismissed Mrs Chamberlain’s counsel, Michael McHugh, QC, … now a High Court judge … as emotive and defenceless against Barker’s science.
“”Who is this latter-day Lady Macbeth, and where is the blood on her hands?” McHugh asked at the beginning of the Federal Court appeal.
How could such a spectacular failure of law and science happen? There are several key factors: police bias, the adversary system and the jury system.
The Chamberlains belonged to what NT police would think a weird religious sect. They were also non-territorians. As Barker said in the trial, as territorians we know that crocodiles might take a baby, but not a dingo.
The adversary system means lawyers go for a win, rather than the trial being a search for the truth. And juries often are overwhelmed by science or succumb to bias. Juries made up of middle-class mainstream people can be biased against people from minority religions and biased in favour of their own.
I can understand the O.J. jurors being deeply suspicious of the LA police and their racial biases, and having little faith the prosecutorial system … even if I might disagree with the result.
The Chamberlain case is the most spectacular Australian example of the failure of our criminal justice system. There are others: Splatt, Puhl, Stuart, Hilton bombing, Guildford Four, Birmingham Six, Evans and McLeod-Lindsay, for example.
And then there are the guilty who get off. They get off through appeals to jury weaknesses and biases; through crafty use of the rules of evidence to exclude things which should go in because they appear to be conjecture or second-hand; through hiding their clients from the witness box and cross-examination.
We have been brain-washed into believing that British justice is the best. It starts at school. The propaganda pokes fun or fear at foreign systems and never admits to the folly of the Anglo-Saxon common-law system. If you go to law school the so-called strengths of the British system become axioms. You assume there could be no other way, or certainly no better way. Two lawyers pitted against each other doing their best for their client … surely the truth will inevitably fall out?
But ordinary life experience tells us how flawed such a method is. When we want to find out something we ask those closest to the action. We listen to everything they have to say, even if much of it is conjecture or second-hand. We just take more notice of anything their five senses received first hand, but we do not exclude the rest. If someone refuses to answer we draw conclusions from that. Moreover, we ask the questions to find out what we want to know, and we ask them from whomever we think has the answers.
What does Anglo-Saxon system do? Picks 12 people out of hat who no nothing about the case and plonks them with a judge. They are not permitted to call any witnesses and not permitted to ask any questions.
They listen to the lawyers from each side. A lot of evidence is excluded and every bit of evidence allowed in is subjected to one side saying it is black and the other saying it is white, often playing on emotion as they go. Small wonder the truth alludes them and we have cases like O. J. and Chamberlains.