THE death of Michael Chamberlain makes me recall sitting in the High Court on the day that the decision on Lindy Chamberlain’s appeal against her conviction of the murder of her baby daughter Azaria came down. It was 22 February 1984. All five judges who heard the case were there so they stated their reasons one by one.
Chief Justice Harry Gibbs wrote a joint judgment with Justice Anthony Mason. So it was 2-0 against Lindy. Then Justice Lionel Murphy stated he would allow the appeal.
It was 2-1 with two judges to come. Tension was high. The remaining two judges, Justice Gerard Brennan and Justice William Deane (later to be Governor-General) were both noted for their fundamental humanity, particularly in refugee cases. Could the appeal be allowed 3-2?
Brennan was senior to Deane so he gave his decision next.
And some history here. Brennan, when a judge of the Federal Court, was part of a Full Federal Court decision that decided the case of Duff. Duff had been found guilty in the ACT Supreme Court of kidnapping an Indian diplomat. Justice Brennan gave a very narrow view of appeal rights from territory courts to the Full Federal Court. So when the Chamberlain case from the Northern Territory arose he applied his earlier reasoning.
Of the five judges he was the only one to say that Lindy Chamberlain should not even be given the right to special leave to appeal to the High Court, let alone win the appeal.
So, in that tense courtroom, the judgment of Justice Deane no longer counted. Already three of the five judges had said no to Lindy. As it happened Justice Deane, like Justice Murphy, pointed to the prejudice against Seventh Day Adventists; the questionability of scientific evidence; and the concern that juries might be blinded by science.
So it was 3-2 against Lindy and she stayed in jail.
Who knows, if either of the other two High Court judges – Wilson or Dawson – had taken the place of Gibbs, Mason or Brennan, the result might have been different. This is an irrelevant aside, but you might recall that Justice Ronald Wilson co-authored the Stolen Generations report.
I reported the Federal Court appeal and the High Court appeal, but not the trial. I was utterly convinced that Lindy was guilty. In the Federal Court, I was completely taken with prosecutor Ian Barker’s “rope” argument. He argued said that an individual strand of a rope was not enough. But when you added a little strand of scientific evidence with another and yet another, you had enough rope to prove guilt.
The strands were: foetal blood in the car (which turned out to be a spray used to dampen engine sound); an ultra-violet blood “hand print” on the jump suit; the fact that blood was only on the outside of sand coagulations on the jump suit (swiped by a human in the sand after death) whereas if the a dingo had taken the bleeding baby you would have expected the sand grains to be within in blood coagulation; the cuts in the jump suit fibre were too even to have been caused by a dingo’s tooth; and the vegetation samples from the jump suit were only from camp-site species and none from wider afield.
And now memory fails me. There were eight pieces of scientific evidence each pointing to guilt which Barker said that when taken together were proof of guilty.
A bit like “Silent Witness”. All convincingly damning stuff, especially the foetal blood bit.
Against this, Michael McHugh, later to be appointed to the High Court, opened his Federal Court appeal for Lindy with the words: “Who is this latter-day Lady Macbeth and where is the blood on her hands.”
He was right. There was no blood on her hands.
For me, after Azaria’s matinee jacket had been found six years later near a dingo’s liar and Lindy rightly exonerated, the case quite shattered my faith in the jury system and warned me against the legal establishment’s faith in it too.
Plucking 12 people from the street to decide criminal cases without any obligation to give reasons for their decision is idiocy. The system is almost rigged against good outcomes. Wise older people with time on their hands and a willingness to be diligent are excluded. Smart business and professional people who would make good jurors get themselves excluded because they are smart enough to do so, or the jury Acts specifically exclude them.
So the rest decide, unconstrained by any requirement to give even oral reasons for their decision which might make them more diligent and help us understand if the system works or whether it acquits too many guilty people and convicts the innocent.
We are not allowed access to deliberations (even for research decades later). Who knows. We could have had a “pub test”. It goes along the lines: “Yeah, mate, we know dingoes don’t take babies so she must have done it.”
Complexity, nuance, and detailed analysis of evidence of the sort done by judges in civil trials may have little bearing on the 12 randomly chosen.
If it had been a trial by judge alone, the result would probably have been different.
This next bit is unverified hearsay. The presiding judge, Justice James Muirhead, now deceased rang a judicial colleague immediately after the verdict aghast. He thought he had summed up for an acquittal, but the prejudiced Northern Territory jury “knew all about dingoes”. Muirhead was distraught. Alas, we cannot interview a dead man.
I got this from a barrister acquaintance of the judicial colleague. As that judicial colleague, too, is now deceased, it can be revealed.
As to the media, bear in mind that there was no initial beat up. Newspaper reportage on the day after was modest. Most had the story on Page 3 as a few pars. The Age had it on Page One, but only as a few pars.
The hysteria came only after the public clamour on the airwaves and in the letters columns. Then the reactive media picked it up and beat it up.
Yes, The Sydney Morning Herald’s Malcolm Brown and The Canberra Times’s Philip Castle were very sympathetic to Lindy’s cause, but otherwise, there was deep cynicism of “this evil woman who killed her child”. During the High Court appeal, for example, a commercial TV reporter sitting next to me whispered something to me when the jump suit was produced. It was perhaps the only time in the High Court’s history that a piece of physical evidence was put before the court. He whispered as the usher called for the exhibit: “Don’t look at the jump suit; look at Michael. As soon as it comes out he will put his hands in his head and cry.” And he did.
I had covered the Federal Court hearing, too. And he did it there. But we now know it was not staged as the TV journo had assumed.
How easy is it to misread motives. How easy is it to be prejudiced. How easy is it to ignore the obvious. How easy it is to have a closed mind – or a mind so open to scientific bamboozlement that the brains fall out.
If it had not been for the desert climate, the matinee jacket would never have been found. But it was.
Forget the jury. Forget the media. The truth was out. A dingo took baby Azaria. But even today you will find people convinced of Lindy’s guilt.
Michael Chamberlain’s suffering is unimaginable his courage extraordinary.
This article first appeared in The Canberra Times and other Fairfax Media on 14 January 2016.